The Black, the White, the Gray and…Discretion

I feel part of my job as a divorce attorney is to educate my clients, but sometimes they come to me thinking they are already educated…. some are… some aren’t.

Sometimes divorce “education” is attained at the barber shop, hair salon, the local saloon or at the Home Depot or supermarket waiting to get checked out. Some of it is accurate, some if it is, how do I put this……. incomplete, if not downright wrong.

You wouldn’t tell your doctor how to perform your appendectomy just because your BFF or the local bartender told you about theirs. Yet many people contemplating divorce do “research” before they see a divorce attorney, relying on the experiences of others – or worse still, what others have heard.

I frequently tell people that it usually takes an hour and a half to two hours for an initial divorce consultation, which allows me to cover the BASICS of what a divorce entails in New York and to BEGIN the process of converging the client’s facts and circumstances with the law of New York. As part of this process, I explain that there are some “black and white” issues that will almost never cause any uncertainty. There are also some gray areas, where different courts have come out with different results and where there is no accepted legal precedent that would allow for a reasonably certain prediction of an outcome. Making matters even more complicated, in addition to black/white and gray, is another factor… discretion. Put simply, it’s an issue where it’s up to the Judge to decide. It’s built into the process and it can be scary and impossible to predict. I’ll give you two examples.

There is no question in New York that absent a prenuptial agreement, if one spouse starts and builds a business during a marriage, and the marriage heads towards a divorce, the business will be considered marital property subject to appraisal and distribution between the two spouses. The $64,000 question is, “How much will I get?” That is where discretion comes in. It’s my job to explain that unless the parties can agree on a division, it will ultimately be up to the judge to decide based upon a number of factors and circumstances, as well as the judge’s own personal predilections. At this point in the conversation the client will ask, “Well what do you think will happen?” and my response will be, “It depends….” and we will review the various factors that are considered.

Even more difficult to predict is how a judge will rule in a custody dispute. There are many books, articles and authorities on how to raise children, but there is no universally accepted right way or wrong way.

What time do you make the children go to sleep? How involved should you be in making sure your child does his homework? Do they get a cell phone and when? Football or Jiujitsu? Should they be allowed to play video games and for how long?

Judges will be the first to admit that there is no accepted formula that they can apply that makes it easy to determine custody and in recent years the courts have come to accept that a custody determination is not scientific and should not even be based upon the opinion of a mental health professional. I have seen judges literally plead with divorcing couples to reach a custody settlement because they didn’t want to have to make a decision about something so personal as other people’s children, whom they have likely never met. Yet, inevitably, a prospective client will ask me at the first interview what the outcome will be.

My point here is that anyone contemplating a divorce needs to get educated about the process, and the best place is to start with a knowledgeable family law attorney. The client should seek to objectively assess the issues in his or her case with the help of their attorney and approach their case mindful of the gray areas as well as the court’s discretion. Once properly educated, a client is in a much better position to make informed decisions along the way and hopefully resolve their case as cheaply and quickly as possible.

OK, everyone out there thinking about a divorce…. you need to get educated. You have some homework to do!