What Should I Expect From The Family Law Judge?
Learn what to expect from the family law judge in a California divorce
What should you expect from the family law judge in your divorce?
Many think the family law judge is the one who makes the decisions on every issue.
That is not correct.
The parties make all of the decisions and if they cannot reach an agreement, the parties and only the parties together make the decision to leave it to the family law judge.
What happens when spouses leave the decision to the family law judge? Let's find out.
Family Law judges usually go along with the spouses' mutual agreements
It is rare that a family law judge vetoes an agreement both parties reached. The only time we may see a judge balk at approving the spouse’s agreement is when the agreement may significantly be contrary to the children's best interest.
That is not to say family law judges are not without their opinions on agreements. Sometimes, a family law judge may question whether a party enters into the agreement voluntarily, knowingly and intelligently.
While this is rare, it does happen in cases where the judge wants to ensure each party knows what he or she is doing.
That situation is one lawyers typically see if the parties reach an agreement inside the courtroom. Most settlements are outside of court and the judge does not actually speak with the parties or the lawyers before signing the agreement.
Regardless, there are certain expectations you should have from the family law judge but take what we write here with a grain of salt.
Different family law judges may make different rulings on the same set of facts
Judges are lawyers who no longer practice law and were either elected or appointed. That also means they are human and just as different human beings have different personalities and perspectives, so do judges.
Family law is one of those unique areas of law where you may walk into a courtroom with judge number one and get one result and walk in with the same case in front of judge number two in a different courtroom and get a different result.
Are those results dramatically different from each other? Probably not but many times, judges do not see every fact and every issue the same.
What to expect from the family law judge on division of property
1. Agreements on dividing property
Judges usually do not get in the way of property division agreements. Since spouses traditionally resolve property issues outside the courtroom and through negotiations, a family law judge assigned to the case may not know the details that went into the negotiation. Family law judges instead see the end result, which is the actual agreement between the spouses.
In such situations, a “judgment clerk” will usually review the agreement to ensure it complies with what the court expects. This is a "checklist" of sorts they use. If it does, the family law judge will usually sign the order or judgment which approves the agreement.
2. Contested hearings
In a contested hearing, the spouses leave the decision to the judge. On division of any property (property being defined as any asset set to be divided in the divorce), the judge will look at whether the property is community property, separate property or a combination. That “characterization” is typically what drives the judge’s decision on division.
Learn more about how property is divided in a California divorce.
What to expect from the family law judge on spousal support
Spousal support, also called alimony, ranges from the very simple to the most complex.
1. Spousal support agreements between spouses
Similar to property agreements, family law judges usually do not interfere with agreements between spouses on the issue of spousal support. Unless there is something glaring and extraordinary, family law judges typically do sign the agreements the spouses, through their lawyers, submit.
A judge has the power to question agreements and not sign them. For example, if the spouses enter into the spousal support agreement inside the courtroom and the judge is of the opinion one or both of the spouses did not enter into the agreement voluntarily, knowingly and intelligently, the judge may refuse to make the orders consistent with the agreement until such time he or she believes the agreement is proper.
2. Contested spousal support orders
Spousal support orders fall into three categories – the temporary order while the divorce is pending, the order at the divorce judgment phase, and the post judgment modification. We wrote informative articles and guides about each of these and we encourage you to review them to learn more about how family law judges make rulings on spousal support. These articles and guides are linked below.
What to expect from the family law judge on child support
California child support guidelines control much of what a family law judge may or may not do. That is because decades ago, the California legislature enacted laws to avoid discrepancy in child support orders from one county to the next.
And judgment related orders on child support follow the same guideline. Post judgment modifications of child support also follow guideline.
Since child support is more streamlined and predictable than spousal support, we encourage you to read the following guide that explains nearly everything you can hope to know about child support: Guide on California child support laws.
What to expect from the family law judge on a child custody case
Judges know the priority – the children's best interest. Everything they do at all times focuses on that best interest.
While some custody cases have legal hurdles before you get to the best interest analysis, the practical reality is best interest drives the decision-making process.
Best interest is something we write about extensively in our guide on California child custody laws. For the purposes of this article, best interest simply means what is in the children's best interest as it relates to health, safety, education and general welfare.
Here are the list of reasonable expectations you should have from a family law judge in a child custody case:
1. A desire to keep the status quo if that status quo is consistent with the children's best interest
Family law judges like to keep consistency in the children's lives if it is consistent with their best interest.
2. Court orders that promote stability in the children's lives
Stability goes beyond the children's residence and with whom they live. Stability also means their routines and day to day life events and activities.
3. Court orders that promote frequent and regular contact with both parents
The exception is a parent who has engaged in conduct or is a real risk to engage in conduct that harms the children's best interest.
Examples include child abuse, child neglect, substance abuse, domestic violence, child abduction, etc.
4. A desire to not separate siblings
Family law judges do not like separating siblings. They do not want to break that bond. The court will make exceptions if it is necessary to save one child from emotional abuse such as parental alienation. This usually happens when one child is younger than the other, the older child is alienated but the younger one is not.
5. A preference toward a simple parenting plan that reduces parental conflict
Family law judges do not like complex orders. They like to keep it simple and create well-tested parenting plans that limit conflict.
6. A desire to order joint legal custody
Family law judges like joint legal custody to allow both parents to be involved in the decision-making process including obtaining consent with certain major decisions. The exception to this again are those situations where it would be contrary to the children's best interest to order joint legal custody.
7. An unwillingness to micromanage parenting
Family law judges do not have the time or patience to micromanage parents. They do not want to hear complaints that do not significantly impact the children's best interest.
8. A willingness to trust the noncustodial parent to frequent and regular parenting time
Family law judges do not assume the worst. They like to give a parent the chance to prove himself or herself, even if it means more parenting time than what the noncustodial parent may have exercised during the relationship.
This can vary between judges. However, we too often see the custodial parent come to court and expect the judge will significantly minimalize the other parent's time. They expect this because the other parent did not have as much child raising responsibility during the relationship due to the family’s dynamic at that time.
The reality is because judges are supposed to provide frequent and regular contact to both parents, they often are willing to give a historically noncustodial parent a benefit of the doubt. This results in orders that result in frequent and regular contact, athough the child or children’s ages may significantly impact how much contact there is.
If the noncustodial parent then fails to exercise that parenting time, the custodial parent can return the court and ask for less parenting time for the other parent.
9. Hesitation to get into either parent’s idiosyncrasies on how to best raise a child
Family law judges recognize different parents have different styles and there is no right or wrong style. Since the overarching consideration is the children's best interest, family law judges rarely dictate how the parents should raise a child unless that parent's conduct actually becomes misconduct and endangers the children's best interest.
10. Not dedicate the amount of time you want the judge to dedicate to the child custody issues
While child custody cases are supposed to be a priority for family law judges on their calendars, they will rarely dedicate the amount of time most parents believe they should. This is especially true for temporary orders that judges make while the divorce or parentage case is pending.
Know your family law judge
If you walk into family court knowing what to expect, you have a tactical advantage. You leave emotions and fear at the door and focus on facts. From that focus comes smart choices. Do you want to make smart and informed choices?
Yes, of course you do and making smart choices has two components: (1) gaining knowledge about the process, and (2) hiring experienced and knowledgable representation.
Do not stop learning. We provide you on this website with a wealth of information on pre-divorce and post-divorce planning and preparation. To learn what you should expect from your own attorney, click on the link below.
Ready for an affordable strategy session? Contact us and let's talk.