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Family Law Is Not What People Expect

Posted by Elizabeth Steen | May 26, 2021 | 0 Comments

Most people think they know what's going to happen in a courtroom. They will have a chance to tell their story to a judge who will decide. A lawyer will fight for them. And some fair result will come from the process. 

That's how criminal law generally works (or is supposed to work). It's the process we've all seen play out in a million television episodes. But it's not what's happening in a family law courtroom. 

Family court is totally different than a criminal law courtroom. When you divorce, you go to a family law commissioner or judge who is really only there to make sure your paperwork is correctly entered. Both you and your ex have equal rights to be protected in a hearing or a trial. No one in the courtroom is deciding which of you is "right." Your hearing or trial is really just a fight about who has the better set of paperwork. 

This isn't what people expect. People think, "I'm going to tell the judge that my ex didn't help the kids with their homework and I'm the better parent..." and they do. Then the other parent comes back with a story about the parent who's complaining about homework. The lawyers play up the drama (that's how lawyers get fees). Maybe the lawyers push the controversy until, after about 18 months, you end up in a family law trial in front of a judge where you can both "tell your story."

But the judge mostly doesn't care about anyone's story of their divorce. The judge is only there to check that the rules are followed under RCW 26.09. Based on these rules in Washington, the judge is probably going to give you a 50-50 parenting plan, or as close as you can get, unless one of the parents has harmed the children physically or emotionally, and there's proof of that damage under the rules. Proof generally only counts if someone who's not a party provides the evidence. A pediatrician or therapist has more weight in the courtroom than either parent. And the pediatrician or therapist is required to screen both parents, not just one, which surprises most people (it's at the end of the statute linked to earlier). So basically the judge will sit there while the parents trash each other. Then the judge follows the recommendations in the pediatrician's report or the therapist's report, which evaluated both parents for harm to the child. And that's it. There's no process to decide what's fair or who is the better parent through telling your stories. The judge is just checking the boxes for the paperwork. 

It works the same way when you're dividing assets in a divorce. People tell the commissioner long stories about what's fair. And the commissioner ignores it and follows the rules. One spouse says "I deserve the house because I did all the remodeling on my own and I sacrificed to afford a more expensive house..." and the other spouse says "It's better for the kids if I get the house..." Then eventually you go to trial, and the family court trial judge checks to see if there's an appraisal, and awards each partner half the equity in the house. Most of the time people have to sell the house to get the equity. This surprises everyone again, but the judge is just following the rules. The judge isn't there to decide "Who deserves the house in this divorce?" The judge is only there to check the rules. "Is there an appraisal?" "How much?" "Okay each party gets half." 

This divorce process is not what people have been led to expect. No one thinks the judge is going to mostly ignore their arguments, even if they're warned. Then when they get the exact deal that the rules allowed, despite what they think would have been fair, people think their lawyer or the judge screwed up. But that's just the family court process. 

People want court to be a personalized, custom divorce process focused on what's fair. But family court is an impersonal, administrative process focused on the rules. The rules are mostly set by the legislature. Any lawyer who tries to persuade you to "take a chance" on what you could get in court isn't being fair to you. It doesn't matter if your lawyer "fights for you." The rules are what they are. The judges won't bend the rules for just you. They will give you and your ex the same treatment (unless you happen to get a particularly bad judge, which would be a whole other story). 

It would be a shame for you to go through this process hoping for something that i

About the Author

Elizabeth Steen

Elizabeth Steen is licensed in Washington State as well as Washington D.C. After work, Elizabeth enjoys making her West Seattle renowned flan recipe with her daughter, which she’s willing to share with favorite clients. She also enjoys hiking, yoga and chasing her family’s fantasy football league title every fall.


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