Friday, April 2, 2010

What Divorce Law is Doing to Marriage Part 15

More from the words of Jeb Abraham

Your lawyer will tell you that you have to respond to most of interrogatories. You can rightly object to some questions, but you might end up in a special court hearing to determine whether your objections are legally valid. And, of course, court hearing to determine whether your objections are legally valid. And, of course, court hearings will mean additional costs to you.

You will find it incredible that you must expose the most intimate details of your life to public scrutiny just to remain a parent to your children. And isn’t there the Fifth Amendment to the Constitution of the United States which is supposed to protect you from having to give information against yourself in a trial?

Your lawyer will explain that discovery procedures such as interrogatories are among the great innovations of American law. They are designed to prevent trial surprise and ambush. Before the trial starts, both parties have a right to dig for-and get-all relevant information about the case. The law reckons that if the parties see all the facts ahead of trial, they may decide to settle and save themselves the hardship of a court battle. And if they decide to go on trial anyway, at least the trial will be conducted as openly and truthfully as possible.

In the context of discovery, “relevant information” has a very broad meaning. It can mean information that itself may not be admissible at trial but might conceivably lead to other evidence that is admissible. So, for example, if it turns out that you had sex with other women during your marriage, that may not be relevant because your wife filed for a no-fault divorce, and she isn’t claiming alternate grounds of adultery. But her attorney could argue if you have had extra-marital sex or even if you just dated other women, then you undoubtedly spent some money on them, too. She could then claim that, by spending money on other women when your marriage was in the process of breaking down, you dissipated marital property on non-family matters and you should be held accountable for that. The irrelevant facts of your having sex or socializing thus lead to the relevant fact of dissipating marital property.

Of course, you could argue back that if your wife’s attorney is looking for instances of dissipation, she should phrase her interrogatories more narrowly rather than fish for sensational information that she doesn’t really need other than to fazzle and embarrass you. But that could get to be an expensive argument. And then, the court may find that-given the policy of encouraging as much information as possible to come to light before trial-the questions, as phased, are relevant enough.

But here’s the rub. If we were to ask your wife the same kinds of questions, and she objects, her objections may carry more weight than yours. If she had sex or socialized with other men, it is likely that the men spent money on her rather than the other way around. So you couldn’t pin the dissipation rationale on her. You couldn’t even argue that the money that men spent on her was income earned during the marriage and thus marital property in which you should share. That’s because, unless your wife explicitly charged them to go out with her, a court would undoubtedly rule that the money was in the nature of a gift to her-not earned income, and, therefore, not marital property. You could only argue that sleeping around diminished her moral fitness to be a custodian of your children, but courts don’t much buy this kind of thinking anymore.