Long Lines for Santa ... and the Family Court Judge

December 18, 2010

Ah, the holidays, twinkling lights, trees festooned with ornaments, presents wrapped in festive bows ... and attorneys lined up at the clerk's desk filing emergency motions in family court. Okay, maybe not everyone sees that last part. Unfortunately, season's greetings often include hearing dates in the shadow of the holidays.

For many, the holidays are an important time for family, especially if the family is now fractured by a divorce, or worse, in the midst of the divorce proceedings. You want to spend them with your children. Your custody and support issues should have been settled by the time the divorce is final. If your divorce is in progress, and you haven't worked out holiday schedules in advance, it may still be possible to file an emergency motion, but it won't be easy or cheap.

For most attorneys, courtroom time is charged by the hour, and is their highest rate. In addition, because of the crowded calendars, the previous hearing may start late, run late or both. And you will be paying your attorney to cool his or her heels in the hallway.

And while we all have heard of there being no room at the inn this time of year, there may not be any room at the courthouse, either. All of the other attorneys filing emergency motions means the judge may not have any time for your motion despite your lawyer's best efforts. A hearing date in the New Year probably isn't going to make your season bright.

How to Avoid This?

Family holiday schedules should be finalized long before divorce is complete. You and your ex should know exactly who has the kids, and when. Remember, the holidays (and spring break, Memorial Day, Fourth of July etc) are not a surprise, and should you obtain a court date, the judge will be happy to point this out to you and your attorney. You and your lawyer should have discussed and worked out these dates with the other side.

Your divorce settlement is, in essence, a contract with your ex-spouse, and the key to a good contract is clarity and explicitness. Everything should be spelled out, with exact dates and times and locations. Any unusual terms should be specifically defined, so everyone knows what they mean. There should be no misunderstanding when the terms are clearly laid out in the agreement itself.

While you and your ex may have differences of opinion on what is obvious, the attorneys should understand how the agreement should be drafted to make sure there is a "meeting of the minds" and potential for misunderstandings are minimized.

Don't Make a Judge Play Scrooge

Courts are busy places in the best of times. When the holidays arrive, scarce court dates become even scarcer, and a disinterested judge isn't interested in choosing between two emotionally laden arguments.

If you have a true emergency and you have a viable argument why a visitation schedule should be changed (medical reasons, military deployment etc.) the judge will listen and entertain your arguments. However, keep in mind, if he or she has served as a judge for any length of time, he or she will have heard practically every reason for an "emergency" motion, and will be easily able to distinguish between genuine emergencies and poor planning.

If the family court judge has time to hear your arguments, he or she is going to find for the party that best displays the interest of the children being at heart. That is going to hinge on how well argued your position is, which probably depends, to some degree, on how well your divorce agreement was drafted.

Remember, even the most forbidding judge probably doesn't want to play the role of Scrooge. Don't give them the opportunity.

Article provided by Clayman & Dodge, LLC
Visit us at www.claymaninterests.com