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Most cases are settled

According to various law firms’ websites and government data, 90-95% of divorce cases settle rather than going to trial. This means that the parties waived their right to a trial and reached agreement on all the outstanding issues in their divorce action: division of property, spousal support, child custody, child support and payment of counsel fees. This does not necessarily mean that the parties to the settlement agreement were happy or satisfied with the terms of the settlement. Parties in a divorce action agree to settle for different reasons:

1) they run out of money and can no longer afford to litigate;

2) they realize that the chance of them prevailing at trial is slim or less than 50%;

3) they want to move on with their lives and are tired of being in court;

4) the dollar amount over which they disagree is less than what it will cost to litigate.

There is no “speedy trial” in divorce cases

If every case were tried, the number of divorce cases in family courts across the country could easily overwhelm the family and civil court system. Trial time is limited in most jurisdictions to the number of judges and cases in each county. The most populous counties have the longest wait times. Counties with electronic filing are quickest and counties with smaller populations have shorter wait times although every state has a residency requirement that must be met in order to bring a divorce action. Clerks can remove or transfer cases that are not properly brought in their jurisdiction.

Residency Requirements

Nevada has the shortest residency requirement (6 weeks). Other states (California, Florida, Louisiana, Maine, Maryland, Mississippi require 6 months and some counties require a specific amount of time residing in their county before filing for a divorce. Courts do require that children have lived in the jurisdiction for at least six months (UCCJEA or UCCJA) before the court has jurisdiction to hear a custody case. Distribution of real property (such as a marital home) sometimes requires that the case be brought in the county in which the home or property is located.

Time to trial

In New York County (Manhattan), the time in duration to get trial dates and commence a trial is often two years after the divorce was actually filed. Trial dates are not always consecutive and can span out over several weeks, meaning that a trial can last months or even years between the first trial date and the submission of a summation.

Accountability in the private sphere

In divorce cases involving domestic violence or other bad behavior such as disseminating sexual images of the spouse on social media to third parties, abusing drugs or alcohol, recording the spouse illegally, surreptitiously installing tracking devices on the spouse’s car, withdrawing large sums of money from marital assets, having prostitutes to the home while the spouse was working, clients often want the spouse to be held accountable for their behavior in order to achieve some sense of “justice”. I am often asked, “he just gets away with this?”.

Courts see both parties, often when parents, as equal at least initially. Bad behavior that took place, especially if it occurred in the past and is not ongoing, by example husband is no longer disseminating images on line, no longer abusing drugs, such that they are not currently a risk to their spouse or the children, a family court is unlikely to do anything re the bad behavior so long as it is not impacting their spouse or the children presently. Courts will take action if a spouse poses a threat to the safety and wellbeing of children and the other spouse or has subjected them to such abuse that they are in fear of being with the spouse or parent. However, when reaching a settlement agreement, there is usually a clause that protects both parties in which they agree to give up all claims, each against the other, from “the beginning of the world until date they sign the agreement.” There is in these settlement cases no accountability for prior bad acts as this provision protects each party from future claims against them stemming from incidents that occurred during the marriage or prior to.

Accountability in the Public Sphere

The British newspaper, The Guardian, recently published an article on “accountability” in which its reporter raised questions about Prime Minister Keir Starmer’s judgement in appointing Peter Mandelson as the UK ambassador to the U.S. as lacking, as Mandelson’s relationship to Jeffrey Epstein was revealed in the released Epstein files. The Prime Minister was held to account for his actions as was the UK Ambassador to the US who was fired.

Representative and Democratic nominee for Governor of California, Eric Swalwell, was forced to resign from Congress and withdraw from the Governor’s race following accusations of sexual misconduct and assault.

Before these two politicians were held “accountable” Harvey Weinstein, Matt Lauer, and others were removed from positions of power based on accusations of sexual misconduct. Persons in the public sphere are more likely to be held accountable than those in the private sphere.

Criminal Cases

Clients often ask if they can or should file claims with the police to bring about criminal charges against the spouse during the divorce for behaviors that occurred during the marriage that were criminal. Other than allegations of domestic violence, criminal actions brought during a divorce will be looked at with a degree of skepticism— why are you bringing this action now? Why didn’t you bring it when it happened? I advise clients that actions have consequences and that for every action, there is a reaction. What will the accused spouse do if a criminal action is brought against them? Usually, they will retain criminal counsel who will go with them to the District Attorney (DA) and will spell out a case of revenge by the other spouse, mental illness, such that the DA may refuse to prosecute. The action against the spouse will be used to further claims of parental alienation or purposeful estrangement of the child(ren) from the accused parent in the Family Court. Oftentimes these attempts to gain accountability boomerang against the complainant and end up favoring the abuser even when the actual complaint is accurate and the crime stook place. Criminal cases have a much higher burden of proof (beyond a reasonable doubt) and require a jury. They also require the testimony of the complaining witness.

Tort Cases

Civil tort cases can also be brought but these too are fraught with difficulty. While the burden of proof for a tort case (personal harm for which the law provides a remedy) is lesser than a criminal case (beyond a reasonable doubt), they too can be used against the accuser or person who brings the action. The tort action may well be brought into the divorce action so the same judge hears both matters.

What should you do?

Divorce is not about revenge, accountability, or justice. It is about separation, providing financial support for children and the lesser monied spouse, and for both parties and the children to be able to move on to a happier, more secure place in which to launch their new post divorce lives. Divorce should be considered rehabilitative—a means of rehabilitation from an unhappy and unfulfilling past into a brighter future. Accountability is often difficult to embrace publicly by a party to what is a private matter- divorce. Both parties are often afraid to admit mistakes of a private nature, fearing it will cost them custody of their children or some other penalty. Perhaps learning to do better is a more palatable approach to divorcing and to moving on in one’s life.

People do grow and can admit mistakes and improve without losing their children or their future. They can and are rehabilitated. Numerous parties to divorce have done so—privately.