Like snowflakes — no two divorce cases are alike because no two people are alike. Everyone comes with their own particular life history and therefore everyone experiences their relationships differently.
One of the biggest problems in the divorce field is that judges have too much discretion when rendering legal decisions (the results of which do not provide enough guidance to practitioners to advise their clients with certainty about what will happen when they walk into a Courthouse). The cases that are printed are so fact-specific that it makes it very easy to distinguish one fact pattern from another. Since no two cases are exactly alike in facts, Courts cannot write blanket rules for every judge to follow. This leaves case law not being a strong indicator of what a judge will do in the case at bar.
For example, the standard for custody in New York is “best interest of the child.” Now, what I may believe is in the “best interest of the child” may not be what you believe will best serve your child. It is a totally subjective standard.
Further, when dealing with high net worth cases, there is even less law to help predict outcomes. The statutory cap in New York for calculation of child support is a combined parental income of $136,000. However, the Court has the discretion to consider income above that cap when it is appropriate. When you have a client who is earning millions a year, a child support cap of $136,000 would not be considered appropriate. However, what is the appropriate cap then? One judge may say $400,000. One judge may say $500,000 and another may say let’s look at the “needs of the child”, which again is a subjective standard.
“Are you a gambler?” is a question I often ask clients when they speak of litigation. While that is a bit exaggerated, the power and discretion that matrimonial judges have makes it more true than it should be.
To learn more about Jacqueline Newman, visit her website.