The Family Law News Blog

Fathers need to do more; mothers need to let them

Link: Get Ready to Step Up, Dad - washingtonpost.com.

A great article from the March 25 Washington Post about how mothers and fathers set up their parenting roles, and how fathers need to get, or take, more responsibility and equal dignity in dealing with children, especially as women gain equality or superiority in the workplace. It quotes some of the wisest experts out there.

Quote: "If the latter, some things are going to have to change, not the least of which are women's attitudes toward their men as parents. A male friend who has three children put it this way, "Women have a way of making a father feel like the paralegal to her lawyer.""

Mills v. McCartney: Entertaining but irrelevant

Link: Text of full judgment: Heather Mills v Sir Paul McCartney - Times Online.

I agree with the Mills opinion -- the idea of deserving to be supported "in the manner to which she has become accustomed" is not the law, and in fact it has not been the law in most people's lifetimes.

However, I worry that people who are facing divorce themselves will not realize that the facts which the judge dwelt on -- at least in the parts of the opinion that were extensively quoted in the press -- are completely irrelevant in nearly all divorces.

Lawyers and judges generally don't want to hear all that detail about how much the spouses supported each other's careers, how they treated each other, etc. Yes, it is technically part of the property-division law in my state, Virginia, and it occasionally comes up in a case, but you only bring it up when you are going to trial anyway on more important issues, since your client is testifying anyway. Nearly always, when it does come up, the judge says that he has carefully considered all those factors and finds that they are a wash, and the marital property will be divided 50-50.

It's not about the wife!

Some more perspective on Spitzer and the Mrs., from one of my gurus on such matters, Diane Sollee of smartmarriages.com, discussing another one of our mutual gurus, Dr. Frank Pittman:

"I didn't see the Today Show but dozens of you did and were appalled that Dr.
Laura was blaming the wife....I guess the thought is she didn't bake enough
pies or perform well enough in bed??  Or, maybe it's because she only gave
the Gov three daughters, no sons?  Puleeze!  As Frank Pittman points out, the
performance or non-performance of the wife doesn't predict squat when it
comes to infidelity.  Pittman says to look, instead, at what a man was
taught by his father and uncles (his tribe) about what it means to be a
successful man. Is a successful man the one with the most stuff including a
wife, kids and as many mistresses as he can afford and get away with?  Or,
is a real man one who is committed to his marriage, his family, his vows?
If you want to understand this whole Spitzer conundrum and what we can do
about it, I highly recommend you start with Frank's books: "Private Lies:
Infidelity & the Betrayal of Intimacy"; "Man Enough: Fathers, Sons & the
Search for Masculinity"; and, "Grow Up! How Taking Responsibility Can Make
You a Happy Adult" -- and IT his Smart Marriages keynote: "What Are Men for,
Anyway?"  You can order the keynote at 800-241-7785."

Columnist: Stop pressuring wronged wives to divorce.

Maggie Gallagher came out with one of those observations that has been vaguely bothering me for years, but which I probably couldn't have articulated in a million years, in her column today, "SPITZER, STOP TORTURING THE WIFE" --

"Can we end the public practice of trying to shame these wives into divorcing their husbands?  There's a reason we feel impelled to do this these days. ... Because we no longer have any public punishments for adultery, we have turned wives into instruments of the public morality; if she doesn't punish him by divorcing him, he will go unpunished, which is intolerable.  (Without some punishment, won't all husbands stray?) I'm tired of this transference of the sins of the husband onto the wife. Leave the wives alone."

Judges' Bad "Intuitive Decision-Making" only partly mitigated by procedural requirements, adversary system

Link: Judges Flunk Story Problem Test, Showing Intuitive Decision-Making | ABA Journal - Law News Now.

A study of 295 Florida trial judges, reported in the ABA Journal online and forthcoming in the Cornell Law Review, showed they consistently used "intuitive", superficial, unreflective thought processes in (wrongly) answering three basic logic-testing questions, in the form of word problems typical of a high school algebra test or "brain teaser". None of the problems was long or difficult; each required just a moment's thought to realize that the easiest-sounding, off-the cuff answer was wrong and to then figure out the right answer.

The study recommends some antidotes to the problem:

• more time to deliberate
• written opinions explaining their decisions
• training
• peer review
• checklists

Some commenters likewise noted that the best remedy was the legal "adversary system"-- "If these were presented in an adversarial context, with an advocate for the right answer and an advocate for the wrong answer, I think they would get these simple questions right, pretty much every time."
Another said, "illustrates the importance of written opinions:  element-by-element analysis highlights errors before they become holdings."

Very true. But it's important to realize that we do not have a perfectly Adversary legal system. And many trial court judges never write opinions.

Many of the worst judicial decisions I have seen in my family law career are "sua sponte" afterthoughts by judges, which neither side ever asked for, and which thus did not get to be vetted by the adversary process of legal argument. These include rulings that cost people hundreds of thousands and cause years of extra litigation. How do they happen? Usually the judge gets an idea about something he thinks would be good for the family, and whips it out from under his robe at the end of the hearing. Other times it comes up when he is making a decision "on the papers" where no lawyers are around to argue with him.  Once a judge went through a whole trial applying the wrong statute of limitations to my evidence, and I never heard about it until her final ruling, because no opposing counsel had argued it. Also, the adversary system is muted in modern, therapeutic-minded, "problem-solving courts" such as family courts, juvenile courts, and drug courts, where judges, and various experts not identified with any party, take a lot of initiative (and make a lot of intuitive decisions, according to a critique of such courts in the latest Family Court Review (Jane M. Spinak, "Romancing the Court", 46 Fam. Ct. Rev. 258 (April 2008)).

Some commenters, who evidently have ethereally pure law practices that have nothing to do with money, said that judges don't need to know math anyway. Tell that to my client whose fee award was cut from 150K to 22K by a judge's post-trial "on the papers" math error. Or to the lawyer who would've gotten those fees.