The Myth of the Biased Judge

A few days ago, when writing about some of the things clients should do or bear in mind when working with their divorce or custody attorney, I talked about clients' often erroneous perception that the judge in their case is biased.  I mentioned that, in my experience, few judges suffer from any kind of consistent bias in favor of moms or dads or husbands or wives.  I am also strongly of the view that the overwhelming majority of judges are strictly unbiased in every conceivable respect.

The generally high ethics of our judges was driven home to me today when I received an order from a local Superior Court Judge in which he—on his own motion—decided to recuse himself from a case.  In that case, the mother is seeking to move out of state with the children so that she can attend a four-year university (which we don’t have in Mohave County, Arizona).  Under Arizona law, the father has a right to object to the move and to have the Court determine whether allowing the relocation is in the best interest of the children.  Here, the father did so object (I represent the mother); accordingly, the Court needs to determine whether the mother will be allowed to move out of town with the children.

No one had voiced the slightest concern to this judge, but he simply decided that he should not continue with the case.  I thought that the reasons he gave in his order might help the folks who read this blog understand the lengths to which judges go to be completely impartial, so I have reprinted them below.  Although the Order is a public document, out of respect for the judge, I have not included his name, and have deleted certain other information which might allow identification of the parties:

“The Court set this matter for hearing on the Petition to Prevent Relocation and then questioned itself as to the propriety of hearing this matter. For the past couple of years the Court has witnessed the parent’s interaction with the children on numerous instances, and in most particular, how well the Petitioner has conducted himself with the children, primarily at [certain sports events attended by both the judge and the parents]. In the relocation case, the Court will be called upon to make findings under both A.R.S. §§ 25-403 and 408. The Court has come to the conclusion that it would inevitably have to draw upon its personal observations with the parents of the children, and in particular, that of the Petitioner.

Therefore, in order to avoid the appearance of impropriety, the Court recuses itself in this matter.”

My files are full of orders of this kind, where a judge recuses himself because when he was a private attorney he represented the parents of one of the parties, or because the judge attends the same church as a party, or because the judge has some distant social connection with the parties, and so forth.  I once had a judge recuse himself because an expert witness—not one of the parties but simply one of the witnesses—was someone with whom the judge sometimes plays golf. 

I’m sure that there are biased trial court judges out there somewhere.  But, it has been a long time since I have tried a case in front of one. Most people who think they see evidence of bias on the part of a judge do so from their own biased perspective, or because they don't understand the law that the judge must apply to their case.

Marriage Killers, Part 2: Infidelity

The statisticians tell us that about half of all married people, men and women virtually alike, will commit adultery (defined for the purposes of these studies as some sort of overt sexual act) at some time while married. I can tell you from my experience as a "divorce lawyer" that some kind of what I will call "infidelity" (a term which I will define later in this essay) is involved about three quarters of the divorces that come through my office.

This statement is probably not surprising. What may be surprising is that infidelity is almost never the precipitating factor in the divorce. In other words, I very rarely see the stereotypical case, so familiar to us from television dramas, in which one spouse discovers that the other is having an affair and storms off to the lawyer's office to obtain a divorce. Rather, what I see far more frequently is that the parties are getting a divorce because they have "grown apart" or "don't get along" or "don't love each other any more" and, when I learn more about the couple, I find out that one OR BOTH of the parties have been unfaithful, often for many months or years.

In fact, I worked on one case a few years ago where the couple expressed total mystification about why the love had gone out of their marriage in the past two or three years. Yet, as I came to get to know my client better, he confessed that he had been having a series of affairs with women he knew through his employment, beginning five years ago. AND, as I was interviewing witnesses for the child custody phase of the trial, one of my client's friends told me that he had been having an affair with the wife for more than four years.

Neither of these spouses was aware that the other had been unfaithful, and had been so for many years. Yet, both of them knew that something was wrong with their marriage and that they needed to get a divorce.

I leave to the psychologists and the metaphysicians the issue of whether the infidelity is a cause of the distance that this couple, and so many others for whom this story stands as an archetype, experienced. I do know the unfaithfulness of these people cannot have made them feel closer to each other.

My observation of my clients is that infidelity is the dry rot of marriage. That is, it is often the decay and weakness that robs the marriage of the strength that would have allowed it to withstand the other stresses of life, so that when those stresses arise, it collapses, much like a dry rotted house that is felled by a windstorm that the homes around it endure. Infidelity rots the marriage, even though the other party never discovers it, in two ways: dishonesty--that is, the partner who is being unfaithful knows he or she is being unfaithful communicates that subtly to the other partner; and, "emotional embezzlement," which is what I call the diversion of a partener's emotional resources that belong in the marriage to someone outside of the relationship.

The inherent dishonesty of infidelity subtly but powerfully robs the marriage of trust, closeness, and emotional warmth because the cheating spouse, quite simply, knows he or she is cheating. Not only does that knowledge trigger guilt that cannot help but change the way the cheating spouse treats the other, but it creates a web of lies and secrets and barriers to intimacy that drain the lifeblood of the marriage the way a leach drains its host of blood. The cheating spouse has a whole part of his or her life that must now be kept a secret from the other, must constantly guard every statement to the other spouse, must constantly be on the watch for any evidence that would betray the affair, and has to put on academy award performance every day in order to "look innocent" to the other.

It is almost certain that the other spouse will know that there is "something wrong." What is particularly tragic, is that the "innocent spouse" will often not suspect an affair, but will sense that the other spouse is becoming "distant" and may blame him or herself for driving the other away or for somehow "losing" the other's love. In that way, the dishonesty that is part an parcel of infidelity poisons the marriage and, in all likelihood, slowly kills it.

The other face of infidelity, emotional embezzlement, can sink a marriage the same way that financial embezzlement can drive an otherwise healthy business into bankruptcy--by taking away the narrow margin of resources that separates success from failure. About half of all marriages end in divorce, in part because staying happily married in today's culture and with the demands placed on today's families is inherently difficult. People have so little time and energy to devote to each other to making their families successful and making their marriages work. If one of the partners is having an affair, precious time, energy, effort, and emotional vitality that should go into the marriage is going elsewhere. It's like a business that has a three pecent profit margin having four percent of its revenues being stolen. The four percent may not be very much, BUT IT IS ENOUGH TO SINK THE BUSINESS.

I think there are a lot of marriages out there with a one or two percent "profit margin." They need every available resource to make them work.

And here is where I apply a different definition of "infidelity" than a lot of people. I do not define this word in the way that Bill Clinton did. Essentially, I believe that if you are married and you are seeking any kind of sexual excitement or gratification from another person outside the marriage, you are being unfaithful. In other words, if you are exchanging sexy emails online, having sexually oriented exchanges with someone in a chatroom, flirting with a co-worker even though both of you know "it will never go anywhere, but it is exciting now," every bit of excitement, energy, and sexuality you are investing in that other person is being stolen from the marriage. It belongs there, not between you and that other person.

And, if you believe you can have these kinds of outside sexual and romantic interests short of intercourse without harming the marriage, you are just plain wrong. The resources that you are diverting stay diverted--forever. That energy, once invested in some other person is gone for good. The time you spend thinking about, fantacizing, writing emails, flirting, or whatever is gone forever from the moment you spend it. Further, imagine what happens if your spouse discovers what you are doing. It happens more often than you think, because lots of spouses discover these things without ever telling the other. Do you believe that your spouse is sure that you have done nothing but send emails? Do you really believe your spouse will ever, EVER trust you completely again.

If you do, you are kidding yourself.

And don't get me started on what happens when your spouse discovers that you are actually having sex with someone else. People constantly tell themselves that they can have an affair because, not only are they likely to get away with it undiscovered but, even if they are found out, a good marriage can survive an affair.

Well, I've already talked about how an affair, even if undiscovered, can destroy a marriage. As for what happens when one is discovered, no reasonable person can believe that the discovery doesn't harm the marriage. As for marriages surviving affairs, well, I suppose there are marriages that survive affairs. But, then again, I know that there are people who have walked on the moon, swum the English Channel, climed Mount Everest, or memorized the Old Testament. That doesn't mean that you or I will ever do any of those things. Similarly, just because some unusual marriages survived affairs, don't count on yours making it.

In short, if you are unfaithful, in any way, you can absolutely count on it harming your marriage, one way or another. Bet on it. Take it to the bank. Even if your spouse never finds out.

Infidelity is a marriage killer. If you value your marriage, you will be utterly faithful, in every way. You will not only avoid having sex with anyone else, but you will also avoid any kind of sexuality, any romantic interest, any flirtation, anything of any kind that diverts your romantic and sexual energies from your marriage. Don't count on not being discovered. Don't count on your marriage "weathering the storm." You are just lying to yourself to justify gratifying your own desires of the moment.

Infidelity is one of the major factors that brings people to my office, even if they never know it. So many of the marriages I deal with were mortally wounded by infidelity long before they actually died, their deaths blamed on some other "cause" seized upon by the heartbroken husbands and wives who come into my office to tell their gut wrenching stories, cry up boxes of my kleenex, and show me the pictures of their children whose sad eyes silently scream from the photographs that things have not been happy at home for a long, long time.

Postscript--for more about Marriage Killers and the book that my wife, Kathleen Honsinger, and I published on the subject, see my post on this blog for April 14, 2011.

Marriage Killers, Part One: Debt and Greed

Note:  This post, written years ago, formed part of the inspiration for the new book published by my wife Kathy and me, How to Save Your Marriage from 12 Top Marriage Killers which is now available from Amazon.com, Barnes & Noble, and many other booksellers.  For more information on this book, please see other posts on this blog.  Or, just click on the following link and enter the discount code DLTWEULT to buy the book directly from Createspace for $10.00 plus postage:


https://www.createspace.com/3572687

I'm a "divorce lawyer," meaning that most of my practice consists of divorces, child custody cases, child support matters, and similar disputes. In a twisted sort of way, that makes me a bizarre kind of expert on marriage, the way that a pathologist becomes an expert on what kills people. I see a lot of dead marriages, and believe that, in an unscientific way, I am beginning to get a good idea of what kills them. One of the things I want to do in this blog is talk about those observations.

I believe in marriage. I want to see marriages succeed. I want people to be happy. I want to help people avoid some of the pitfalls that I have seen so many marriages. I call these pitfalls, "Marriage Killers."

Marriage Killer Number One: Debt and Overspending

Perhaps it is unfashionable to point to material circumstances as the killer of something that is supposed to be eternal and built on the indestructable rock of love, but the patterns I observe in the cases coming into my office are unmistakeable: in the overwhelming majority of cases, the couple is in serious hot water financially AND has been having serious disagreements over who is responsible for all the debt, who gets to buy what, who spent what, how money is going to be allocated, and how to get the family out of trouble.

Maybe these couples would have made it if the didn't have such terrible money problems. Maybe they wouldn't. But the stress of barely being able to keep their heads above water can't help. But, I can't help but see how angry they are with each other about material things. They have stored up so many grievances against each other about which spouse has gotten to spend more on him or herself, which spouse has created most of the debt, which spouse is responsible for the family being in trouble, which spouse works the hardest to make the money but has gotten the fewest benefits, and on and on.

What is tragic about these cases is that these couples' financial problems are entirely self-inflicted. These people are NOT poor. In fact, most of them have incomes well into the six figure range, which is quite affluent by the standards of Mohave County, Arizona where I practice. These are NOT families suddenly beset by some financial catastrophe, such as one spouse being diagnosed with cancer or losing a job. Rather, the source of these couples' financial stress is their own overspending.

Simply put, these young families, who earn what are essentially upper middle class incomes have a standard of living that that appears to represent their best efforts--given the credit and resources available to them--to emulate "Lifestyles of the Rich and Famous" or, at least, how people appear to live on soap operas. They certainly live far "better" than I do. It seems that they all live in 3000 square foot homes with granite counter tops, vaulted ceilings, and enormous "master suites." Of course, these residences come with $2500 a month mortgages. They drive $75,000 vehicles. Plural. The Hummer and the Beamer sit side by side in the four car, boat deep garage. Beside them, there is the Harley. Beside it are the multiple other toys, such as four wheelers, dirt bikes, and wave runners. The $250,000 boat is stored at a separate facility.

Let's not even think about what was spent on furniture, also financed or paid for with a credit card, not to mention the electronics. I'd kill to have a couple with a plain, old television. I hardly ever work on a case in which there is not a "home theater system" at issue. I've become expert at determining the fair market value of used Harleys.

Now, don't get me wrong. I'm not one of those envious socialists who thinks that property is theft and that people should not have these things because they don't "need" them. On the contrary, I think wealth is great and that if people have the money, they can spend it on whatever they damn well please.

The problem in these cases is that these people don't have the wealth. They just have the stuff. And the debt. Often, these families are carrying a total debt load of half a million dollars, two to five times their combined annual incomes. They have huge notes on their luxury vehicles and the Harley and the wave runner and the boat. They have $75,000 in credit card debt because the home theater, the furniture, and the "toys" were all put on plastic. They are up to their eyeballs in hock and can barely make the payments, and are under unbearable emotional and financial stress--MOSTLY FOR THINGS THAT THEY DO NOT NEED.

And, when they divorce, they are in immediate and serious trouble because, not only do they have to come up with substantial sums to pay lawyers, there are now going to be two households to operate out of a pool of income that was barely sufficient to keep one going. Many of these assets will have to be sold, often at fire sale prices. Often, no one gets to live in the luxurious family home, because the house note is so high that neither spouse can afford to make the payments alone, even with alimony or child support payments. And, in a soft real estate market, the couple often loses tens of thousands of dollars on the sale, sometimes leaving no equity to distribute to the parties.

What if these couples had taken a more modest approach to the material facet of their lives together? Maybe they would have made it. Maybe, without the arguments over who gets what, who gets to spend what, whose fault it is to have all the stress, the marriage would have survived.

My advice to couples? Simple. Live within your means. That means:

1. Select a home with a mortgage payment or rent that you can EASILY make with your combined incomes. In fact, you will probably want to stick with the recommendation of many experts that your house payment or rent be no more than ONE THIRD of your family TAKE HOME pay (not your gross). There is no shame in living in a smaller home with fewer luxury amenities when you are getting established, or if your income simply will not easily support a larger home. Currently, I am living (with my wife and her son) in a 1400 square foot rental house, and the rent is under $800 a month.

2. Select vehicles that are similarly within your means. When you add your vehicle payments to your mortgage payment or rent, you should still have HALF of your take home pay left over. I'm a lawyer and spend several days a month on the road going from courthouse town to courthouse town, but I am driving an eleven year old used car--it runs well, has cold AC, and it's paid for. I don't need to impress anyone; I just need a vehicle that will comfortably and reliably get me from point A to point B. Which, by the way, is all most people need. If you can EASILY afford luxury wheels, knock yourself out. Otherwise, content yourself with something more humble until you can either save for something better, or until your economic circumstances improve. Irrespective of what your ego, your friends, and the salespeople are telling you, virtually no one NEEDS a new vehicle every three years and no one NEEDS a Yukon Denali or a Hummer or a Navigator or a Mercedes or a Beamer. Anyone friends, relations, potential romantic interests, or other folks whose opinion of you will be altered by what you drive are so shallow that you really shouldn't care what they think.

3. Do NOT go into debt to buy luxuries. And, yes, big screen TV's, boats, designer furniture, designer clothes, jewelry, and vacations are all luxuries. That does not mean you shouldn't have these things; it just means you should not have them if you cannot afford them. And, the way to be sure you can afford them is to save for them and pay cash. In fact, if you can possibly do without a credit card, do so. I don't have one and don't miss it.

4. SAVE money. Put ten percent of your take home pay away, every month. That way, if you have unexpected expenses, you can deal with them and there is no crisis. What if your car suddenly needs $2500 in repairs? If you are spending everything you are making, have no savings, and your credit cards are maxed, you are in trouble. If you have been living within your means and have money in the bank, it's no big deal. Think of all the stress, family crises, arguments, and other turmoil you will avoid. Think how much easier it will be for you as a couple to focus on your love for one another if you don't have to struggle every week to try to cover the bills.

Love, like every other tender emotion, flourishes best where animosity, turmoil, and conflict are kept to a minimum. On the other hand, where husband and wife are constantly struggling and competing for limited resources, they become angry and resentful, generating emotions that strangle and smother and destroy their love for one another. It is one thing for low income couples to struggle to make ends meet, but middle and upper income couples can make lives for themselves where they have at least adequate, and often abundant, resources to meet every legitimate need and to live in comfort and security--so long as they exercise a bit of financial discipline and restraint.

I firmly believe that, if couples would rein their desires to enjoy a standard of living that is more closely related to what they see in television than to a rational assessment of their own means, far fewer of them would need the services of myself and my colleages to end their marriages, sell and apportion their family possessions, and struggle over custody and visitation of their children.

And, again, I want to emphasize that I believe very strongly that there is nothing wrong with people having any of the nice things that I describe in this post--so long as they can afford them easily. My position here is not about materialism, but about removing a source of stress, contention, conflict, and potential disaster from a family.

So much of this pain is unnecessary, and could be avoided so easily, if only people would keep their credit cards in their wallets.

Postscript--for more about Marriage Killers and the book that my wife, Kathleen Honsinger, and I published on the subject, see my post on this blog for April 14, 2011.