There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament.
The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures.
Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law.
Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12).
Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer.
A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel?
Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes.
Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is.
Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination.
The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare.
Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates.
What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ”
Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement.
The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate.
The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities.
Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying.
If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
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When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
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