Does It Matter Who Starts the Divorce Proceeding?

A skilled divorce attorney understands the concept of “perceived credility.”  Maximizing the effect of “perceived credibility” for a client is one of the most important things an attorney does.

Often I am asked whether it makes any difference who initiates the divorce proceeding.  My own opinion is that, often times, who goes first does matter.  This has to do with what many attorneys call the “halo effect.”  I call it “perceived credibility.”

In addition to the “facts,” human beings make decisions based on a variety of factors, including various biases, preconceived ideas, emotion and, importantly, perceived credibility.  In contested divorce cases, parties often appear in court early in the process to request an order for temporary relief.  That is, one or the other party brings a formal motion or request for a temporary order that will remain in place during the several months that the divorce proceeding is pending.  A temporary order can award temporary custody and parenting time to one of the parties.  It can award temporary child support, temporary alimony (alimony is called “spousal maintenance” in Minnesota divorce courts) temporary occupancy of the home, and it can grant other provisions.  These provisions can remain in effect for a month or six months or longer, until the divorce process is concluded.  For obvious reasons, presenting a compelling case at a temporary relief hearing is very important.

In Minnesota, a hearing for a temporary order is brief, typically lasting no more than 15 or 20 minutes.  Prior to the hearing the attorneys submit formal written requests for relief (motions) and formal statements of facts signed by their client and other people (affidavits).  Usually the judicial officer will have read the motions and affidavits (the pleadings) submitted by the parties prior to the hearing.  Sometimes they do not, and sometimes they say this at the hearing itself. 

So, a judicial officer, who may or may not have reviewed the written pleadings, will have two parties and their attorneys appear before him or her for a few minutes, and then make a decision that could have a life altering impact for one or both parties.   Many people believe that there is a “halo effect” that postively impacts the person who starts the divorce action and who brings a formal motion for temporary relief.  In fact, logicians have identified a particular kind of logical fallacy which they call “poisioning the well.”  This means that the person who gets to the decision maker first with his or her story tends to have a bit more credibility.

Many human beings make decisions from their “gut,” and then justify them with legal rationales later.   Effective divorce advocacy requires an understanding of how human beings make decisions.   It is a process of presenting the best facts and best legal argument, based on the facts.  And, in order to maximize the potential for success, attention to perceived credibility is essential.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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