What Your Judge Thinks is All That Matters

Metallica and Divorce Judges


A new client of mine, going through a child support issue, said to me “I don’t care what the judge thinks!”  We were discussing how a judge in family court has the descretion to determine how much monthly income she earned.  My response was, “You better care, because what the judge thinks is all that matters.”

As I was saying these words to my client, I could hear Metallica in my head echoing, “So close, no matter how far………Nothing else matters.”

This discourse led me to explain that the ONLY thing that matters in a divorce case is What Would a Judge Say (WWJS).    What I think, what the other attorney thinks, or what you think does not matter.   Your experiences, your feelings, your thoughts of what should happen or what would be fair do not matter.   What the judge thinks is ALL that matters.

There is no jury in divorce cases.    There will not be twelve men or women who make the final decision.  The judge is the jury.  His or her opinion and decision is supreme.

You can have all the facts stacked if your favor.  You can present the most stellar documents.   You can bring in the best witnesses.   You can feel you have the perfect case.   All this does not matter if the judge thinks differently.   I have seen perfect cases go up in flames because a judge believed one person’s testimony over another.   We lost a case because our witness rolled his eyes.  The judge felt the eye roll indicated he was lying.   In a divorce or custody case the judge’s opinion is the law.

The judge has the final say in any divorce or custody matter, period.   Sure, you can file an appeal and have a higher court review the judge’s decision.    And after thousands of more dollars in legal fees, and six months or more of court hearings, the appellate court may change the lower judge’s decision.   Or they may not.   Relying on, or banking on, an appeal is a fool’s errand.   Therefore, I treat the judge’s decision as final.

In a divorce there are only five general areas a judge makes final decisions;  child custody, child support,  dividing community property, dividing community debts, and alimony.    If you do not have children, then just dividing property and alimony.   And if you are not married then just custody and child support.

The judge is given the authority to make these final decisions through laws passed by our state’s legislatures.   These are the men and women who make our laws.  The laws give the rules for how property should be divided in a divorce, or how child support should be calculated, or how long a spouse should pay alimony.   The laws are not so rigid that a judge does not have discretion.    The laws allow room for the judge to determine the outcome and to craft an order that seems fair. We refer to this power as judge discretion.  And it is a superpower.

With judge discretion a judge can determine you make $4,000 a month instead of $3,000 a month because she believes the testimony presented is more believable than your document.  Yes, a judge can find someone’s words are more believable than a printed document.

The judge could determine that the mother should have primary physical custody of the child because that would be in the best interests of the child.  The judge could determine your spouse wasted community assets by gambling too much.  The judge can determine that your signing of a quit claim deed to the home was a gift and now the home is not community property.   These are all decisions made within the boundaries of “judge discretion.”

The judge making the final decision is exactly what they are elected to do.  The judge is following the law because the law allows the judge to make final decisions based on what they think.  The judge is within his or her authority to determine the reliability and believability of the evidence and testimony presented and to make a final decision.

What Would A Judge Say (WWJS) is not to be ignored!  WWJS is so powerful that it’s exactly what I use during every client consult.  I play judge.   I gather the facts from the client and then I pretend to be a judge.    I take a moment to think like a judge and decide what the final outcome will be.    Our opinion is not always exactly what a judge will think.  But it should be close because we  have handled enough cases to know what a judge will typically think.

The judge has five main areas to make decisions; child custody, child support, dividing community assets, dividing community debts and alimony.    Child support is based on incomes and the custody schedule.  We use the same child support calculator the judges use.   Dividing community assets and debts is fairly simple.   You determine what is community, value it, minus the debts and then divide it.   Child custody and alimony are the two areas that can be tough to estimate.   The default for child custody is joint.   Judges still have discretion to award a parent primary custody.   For alimony there are no calculators or formulas.   We created an alimony calculator but judges are not forced to use it.  Judges can look at any factor to determine a just and equitable amount of alimony.

I explain the law to the client, but the law is nothing if I do not think about what a judge is going to say after hearing all these facts.    I even do this if the consult is talking about an uncontested divorce.

Uncontested divorces are where couples are able to come to an agreement on the terms of the divorce.    Uncontested divorces rarely go before a judge.    So why do I care about WWJS?   Because not every uncontested divorce goes as planned.

Couples must agree on all the terms of the divorce to file an uncontested divorce.  When a client calls, they often “think” their spouse will agree to the terms.   This is not always the case.   To prepare for the possibility of the other spouse not agreeing I want to determine what a judge is going to say.

I refer to this preparation as the “worst case scenario”.   What the judge is going to say or decide is the worst-case scenario.  The final decision might go in your favor so the word “worst” might be a little misleading.  I refer to it as the worst-case scenario because, in my opinion, this is the worst outcome my client will face.  They may be fine with the outcome so it might not be the “worst” outcome.

This exercise is important in an uncontested divorce because now I know what can happen if your spouse doesn’t agree or will not settle.   Just because you think your spouse will agree to everything doesn’t mean they will.    Now that we know (within a ballpark) what a judge would say about your case we negotiate with your spouse.

With the judge’s, most likely decision on the table, we can negotiate with your spouse without fear of them not agreeing.   We know the “worst-case” scenario and can look to negotiate for something better.   I call this “Prepare for the Worst and Negotiate for the Best”.  If the negotiations fail, we know what the likely outcome is going to be.  We are not worried about going to court.

Which takes me back to my conversation with my client.   What the judge thinks about my client’s income or his ex-spouse’s income is all that matters.   We can present documents and testimony that shows the mother makes $4,000 a month.  But if the judge thinks she makes $4,200 a month or $3,800 a month then that is how much she makes per month.

What I think or what anyone else thinks does not matter.  The judge’s opinion is all that counts.  What the judge is likely to say is all that matters.