Building the Divorce Case Around Themes

The major theme and corollaries

Part and parcel of determining whether to take your case to trial is to identify why you are going to trial. The reasons could be one or many; but if your case is going to trial, you ought to know why, or more specifically, what it is you hope to accomplish by calling upon the judge to decide the case.

You are more likely to achieve success if your family law attorney develops your issues into themes and builds your case around those themes. The themes are created by the facts, and you and your attorney’s determination of what you are trying to accomplish, and what you need to prove to accomplish it.

For example, assume the main issue in a case is the wife’s role as stay at home mom, wife and homemaker and her need for significant assets and income to be able to become self sufficient after a long term marriage. Usually collateral to that issue is the lifestyle the spouses have established during the marriage, which also bears upon the question of the wife’s economic needs. All too common in this scenario is an issue of the husband’s infidelity which gives rise to the divorce in the first place. Obviously, fault is not a relevant factor in many states, but infidelity often gives rise to claims that the husband dissipated or squandered the marital estate traveling with his paramour, or buying her gifts.

These facts are presented for illustrative purposes, to demonstrate the thought process and organization that will enable a family law attorney to make the most effective presentation to the court. Effective presentation at trial involves determining what you are trying to prove, and what you need to prove it and developing themes to organize your evidence and presentation most effectively to the court.

Developing the themes involves consideration of the law and facts, and painting mental pictures for the court through the use of these themes. These themes, and their corollaries ultimately form the road map your attorney will give to the court to lead the judge to the desired result. They also form the basis of your attorney’s opening statements and closing arguments. Your family law lawyer is, in effect, like the medieval minstrel of old, staging a masque for the entertainment of the king. Your attorney’s success is determined by how successful he or she is in telling a story that resonates with the sovereign.

What am I trying to prove, and how do I prove it?

In the example above, the main theme the attorney representing the wife would attempt to put before the court is that she needs a significant asset and support award in order to be able to survive in the post divorce world. The corollaries to this involve the wonderful, comfortable lifestyle that the parties enjoyed before that philandering husband began squandering the parties’ assets in furtherance of a tawdry liaison with another woman. Sounds simple enough, but how does a family law attorney go about proving it?

The first resort is always to the law written in the governing statute in your jurisdiction.

  • What factors does the statute say the court must consider in connection with the division of assets and awards of child support and alimony?
  • Which of these factors are most important to the central theme of your case?
  • Does the statute create a presumption in favor of alimony, or guidelines for the imposition of child support and alimony awards?
  • Does the statute have a preference for property awards instead of alimony? If so, what factors does the court rely upon in determining these issues?

In short, what facts central to your case are on point with the particular factors the law mandates the court to consider in deciding the issue? For example, the statute may say the court has to consider:

  • The length of the marriage;
  • The contribution of a spouse to the career of the other;
  • Whether the spouse deferred or gave up her career in furtherance of the husband’s and the impact on the spouse’s ability to support herself having done so might have had; and
  • The value of the spouse’s contributions as homemaker, mother and spouse.