Nice Doesn't Count in Court

    Ask any matrimonial attorney what the biggest shock his or her client experience when going into divorce court for the first time, and you will hear the same thing: the fact that judges don’t care whose naughty or nice.   

“Nice” isn’t codified in the family code so judges have no parameters to use it,” said David Pisarra, 41, partner in the Santa Monica, Calif., law office of Pisarra and Grist. “It speaks to the fact that marriage is a business contract and emotions have very little impact in proceedings.”   

That in a nutshell is what is the most difficult thing to accept for many, especially when a marriage is anything but a business. Many soon-to-be-ex-spouses want to be heard. They want their side of the marital story told, and it comes as a shock when the judge often times, doesn’t care to hear it. Perhaps part of the misconception that nice should matter stems from the old days, before no fault divorces, when conduct and morality could come into play.   

“We grew up watching Perry Mason in the courtroom, when Paul Drake would show up with photos of the husband in hotel room with another woman. That’s not the case anymore. It has no bearing on the outcome,” said Pisarra. “When we moved to no-fault based divorce, marriage became more of a business contract and less of a morality-based religious contract. ‘He cheated on me that makes him the bad guy’ – it’s irrelevant. It doesn’t factor into the whole algebra of who gets what support or property. It doesn’t factor into child custody, unless the other party is very promiscuous or has some serious problems with drug or alcohol. Short of that,  the judge really doesn’t care.”   

Perhaps the hangover of that black-and-white justice is hard to shake off since many who go through divorce find themselves frustrated because they feel like the better of the two parties in the marriage.   

“Judges are judges. They are not psychologists;  not priests or rabbis. They are there to be decent people who follow the law, and sometimes the law and emotions are divergent,” said David Rasner, 61-year old veteran matrimonial lawyer and co-chair of the Family Law Group of Philadelphia-based law firm Fox Rothschild. “The judge isn’t going to insert himself or herself into the marriage. You don’t know what goes on behind closed doors. Just accept the fact the marriage is over and now we have to find out what is equitable to both parties.”    

But what is deemed equitable by one party, often isn’t to another. Especially if that person who feels he or she is the injured one or the victim, thanks to an extramarital affair. “Some spouses can never deal with the fact that they were cheated on, which makes it difficult to settle the case. Or they expect to get monetarily rewarded because the other spouse had cheated. You tell them that them that “No, you don’t 75 percent of the estate.” It’s an enormous hurdle we have to deal with as attorneys,” said  Joseph Trotti, 49, a practicing matrimonial lawyer of 26 years whose practice, Capell Vishnick LLP, is located in Lake Success, N.Y.    

In short, the law governing the dissolution of a marriage has everything to do with business and not much to do with the personal, with the judge looking to weigh what is fair and equitable to both parties, and the children. And it gets particularly sticky when there are children and the divorcing couple are at odds with each.   

“The client wants to be perceived a certain way. ‘I am the good person. I am nice. I want the judge to see I am the better parent.’ It’s an image they want to present to the court, but that’s not what the court looks at,”said Pisarra. “The court doesn’t care who the better parent is. The court looks at it from the perspective that we need both parents involved if possible. What’s the deciding factor for the judge is what is in the best interest of the child. Not who cooks vegetarian food and who gives the kid takeout. That’s not all that important to the judge.”     

“Simply put, the courts are not in the business of dealing with affairs. They are strictly in the business of dealing with financial aspect of the marriage and children involved,” said Trotti.  


Lenore Skomal is a career journalist with 25 years of professional writing experience for newspapers, broadcast and the Internet. The author of nine books and an award-winning columnist in the Erie, Pa., Times-News, she also teaches college journalism in Pennsylvania.

Lenore Skomal is author of nine books and columnist of an award-winning weekly column in the Erie, Pa., Times-News, she also teaches college journalism in Pennsylvania.