Divorces are usually tried before a judge, not a jury.
Judges are human! Like you and me, they have their own biases and learning styles. In fact, you can try the exact same case before ten different judges and get that many different results.
Because of the arbitrariness of a trial, it’s essential to conserve your divorce budget, which includes time, emotion, energy, and money. A key way to do that is to look objectively and subjectively, as early as possible, at how the court will likely view the issues of your divorce. Taking seriously what you find out will help you steer clear of a budget-busting trial.
You can get a sense of what’s to come as soon as you learn which judge will preside over your divorce. Your attorney will most likely know if the judge is biased against stay-at-home parents of school-age children. The attorney will also know if the judge supports equal or almost equal parenting time or is more traditional in their parenting views.
If your divorce cannot be settled through negotiations, usually one of the attorneys will schedule a court conference. Most divorces are settled at these conferences, where the parties’ attorneys update the judge on which issues have and haven’t been resolved. The conferences give the litigants the feeling that they “have their day in court” and the settlements reached there let the court manage its docket, as court conferences are much less taxing on the court than trials.
Parties required to appear. A unique feature of divorce litigation is that in many jurisdictions, parties are required to appear with their attorneys at all court conferences. (In most litigations, the attorneys appear on behalf of their clients at all pretrial conferences.)
Having to appear at all court conferences automatically increases your divorce budget, because you’ll have to take time away from your personal and professional life to come to court, which is a place most people are uncomfortable going.
You may also face resistance at work when you ask for time off to make your court appearances. In fact, I have had clients who were put on probation by their employers and even fired because court dates interfered so much with their jobs. You may also have to arrange childcare, even if the other spouse refuses to pay for it and you don’t have the funds to cover it yourself. The pressure this will put you under is intentional. The system is designed to tax your time, emotion, financial, and energy budget early on, to give you the incentive to resolve your case well before trial.
Advisory opinions. The judge has another way to encourage you to keep from going to trial. After hearing about the issues in your case, she may be willing to give you an “advisory” opinion about how it should be resolved. These advisory opinions are of course, not binding, but they come with the weight of the court behind them and make most litigants feel that the judge has heard their concerns.
Not every judge will give an advisory opinion; I've observed that the busier the courtroom is, the more willing the court is to offer one. But with the guidance from the court received at the initial conferences, most litigants can resolve their divorces satisfactorily under the circumstances—that is, given the preferences of this judge in this case.
Still, some litigants feel so strongly about their positions that they are willing to double down and continue to increase their budget with discovery and trial preparations to either force the other side’s hand (divorce litigation is also a mind game) or to prove themselves right, because they really believe their position should prevail at trial.
One of my clients wanted a quick and fair divorce after a long unhappy marriage to a successful businessman. The other side wanted to give my client a very low spousal support award for a very short period of time and but for the court giving us his advisory opinion, we would not have been able to resolve the divorce on terms my client found satisfactory in such a short period of time.
Coaching. So, if you are lucky enough to receive an advisory opinion in your divorce, it’s wise to take advantage of it. The best divorce attorneys shine when using an advisory opinion to manage their clients' expectations and budget. These attorneys are not only effective advocates and competent trial lawyers but also first-class counselors of the law—in other words, coaches who can convey the court’s thinking and the most productive way of working within it. (Remember: the court is always right!)
By being a first-class counselor—aka your coach—your divorce attorney is helping you make the best decision in the thick of emotional stress, when it’s extremely difficult to be thinking at your best. His or her goal is to help you understand the likely direction of the case and also to show you how the judge has heard and understood your concerns. Once you can see both of those things, it’s easier to come off your stated position and make the compromises that will allow you to settle the case in a way that lines up with the court’s direction and your divorce goals.
When divorce attorneys are unable to influence their clients of the benefits of the court’s “advisory” opinion, the court may step in and attempt to dissuade the parties from proceeding with litigation through such tactics as focusing on the risks involved in litigation. The court will warn you of the uncertainty, the high costs, and time-intensive challenges ahead. It may also schedule several pretrial conferences just to pressure you further to settle your divorce.
If those tactics do not work, and you are undeterred by the adversity not only from the other side but also from the court (and the system, which is set up to settle cases), the case will ultimately proceed to trial. It is important to note though that the trial will likely be many times as long and twice as expensive as budgeted for). It is also important to note that in busier courts, such as the courts of New York City, years can elapse between commencing a divorce case and getting a written decision after trial!
And when you finally receive a decision, just remember that it probably will not be what you expected. But don’t worry. If you’ve got unlimited time, energy, money, and emotional reserves, you can always appeal the decision, and start the process over again!