Continuing today’s theme of gifts from benevolent domestic litigation deities is the issue of overly vitriolic affidavits for temporary hearings in marital dissolution cases.
When beginning representation in a marital dissolution case the spouse who moved out is often at a disadvantage unless he or she can provide a good explanation for why he or she left. Fault is a big factor in alimony–in my experience even more so for temporary alimony–and the family court tends to see the spouse who left without good reason as being at-fault for giving up on the marriage. When I represent the deserting spouse much of my work will be developing evidence to explain and justify that desertion. Often my client’s explanation for moving out is “we just weren’t getting along” or “(s)he was often mean to me (or didn’t seem to like me).” Such justifications are hard to prove.
When, at the temporary hearing, the other side provides me myriad affidavits slamming my client, this can often be the evidence that supports my client’s justification. Sometimes the “slamming” will be for reasons the family court considers entirely justified (my client was drinking too much, committing adultery, spending money frivolously to the point that essential bills were not getting paid). Often this “slamming” is for things that most spouses simply put up with because they are married to another, imperfect, human being and this is the way imperfect humans often act. A litany of picayune complaints about my client, coupled with the claim that this spouse cannot comprehend why my client left, is often the best evidence I have to make my client’s desertion explicable.
Unless one wants the family court to empathize with the opposing party’s leaving the marriage, one should not lard one’s temporary hearing affidavits with relentless disparagement of the opposing party. Further, if one’s client takes the position that the marital dissolution is inexplicable, such affidavits render the inexplicable quite explicable. No one wants to remain married to someone who hates him (or her). Even family court judges can understand that.