I hear this question from two competing perspectives. The First is the person who feels that they have made some bad choices during their marriage and have sleepless nights thinking that the circuit family court will be their judgement day. The Second is the person who feels that they have been wronged in the marriage and look forward to their day in court where their errant spouse will finally face the music. The answer lies in the Divorce Acts.
Don’t worry I am not going to give you a dry analysis of the Divorce Act but will just give you the key lessons you need to understand why the Judge must decide your case in a certain way and what is primarily in their mind when they do decide.
Under the Divorce Act the Judge is the person by law empowered to make decisions on the orders that should be made when someone asks for a Divorce (Issues the Civil Bill the Document which starts the Divorce process and sets out the Applicants history of marriage from their viewpoint). Their first consideration is (if there are children) are what are the best interests of the children. Their second factor that they must decide on is that based on the financial pot that is available to both spouses and the children of the marriage, how do I best make proper provision for both parties. You will notice that it doesn’t say that the Job of the judge is to punish the person who behaved most badly in the marriage.
When the initiating spouse issues the Family Civil Bill ,that is then served (given) to the other spouse. They then complete a mirror type document to the Family Law Civil Bill which is the Defence and Counter claim. This as you can probably predict is that spouses history of the marriage from their viewpoint. Each party is required to prepare a document which is called an Affidavit of Means (and Welfare if children) which sets out their financial circumstances from how much the mortgage is to approximately how much they spend on groceries. It is important to know that this is sworn on the bible(replace as appropriate) and it is quite serious that it be accurate as the court relies on it.
The Court is then required to look at the financial situation and ask themselves the question “How should this money pot be divided fairly and equitably?”. So in general if there are two working parents, going forward there will be 2 properties to be managed so there will a consequent reduction in standard of living for both parties.
The bottom line is that Judge is stuck with the financials, ie whats in pot and attempts to answer “how do we deal with this in a fair ,equitable and reasonable way”.
And in a nutshell that is what they think about. It is why it can be more difficult to advise the “wronged” spouse rather than the “errant” spouse as I end up with the difficult job of giving the cold advise that despite everything, the judge is going to be looking primarily at the financials. When inevitably asked whether this is fair, I can only reply that this is the Law.
