Realities of Divorce: Laws, Precedents, and Norms: Part I

When we describe how divorce works, by necessity (as we are, in fact attorneys), we describe the processes in terms of what the law says and what it means for our clients. But the truth is that our very system of law is rooted in a massive series of assumptions and routines that aren’t actually written into lawbooks anywhere, but that lawyers, judges, and even jury members follow simply because they are the “way it’s done.” In fact, there are three ‘levels’ of “way it’s done” in the US justice system:

  • Statutory laws, a.k.a. ‘The lawbooks,’ must be followed;
  • Precedents, a.k.a. Case Law or Common Law, vary in strength; and
  • Legal norms are customs that expected, but not given any legal weight.

In Part I, we’re going to talk about those first two points — Part II will get to the part that is relevant to the “Realities of Divorce,” which is to say, the part that most people might be caught off-guard by.

Statutory Laws
Statutory laws are those laws created by the government, recorded, and referenced by courts when relevant. Statutory laws can be thought of as “top-down” laws, in that the leadership of the (city/county/state/country) decides what the law should be and hands it down to the courts.

Case Law/Common Law
You’ve probably heard the phrase “common-law marriage,” meaning a marriage that exists because the participants have acted married for long enough that it just makes sense to treat them as married. This comes from a centuries-old ruling by a judge in England who looked at a couple that had been cohabitating for years and had commingled finances and children, and said “Well, duh, of course we should treat them like they’re married.”

That judge’s decision was recorded in what England called the “Common Laws,” or “laws created by the decisions of judges.” So, the “common-law marriage,” or “marriage created by a judge’s decision,” was born. Because they are created by judges rather than legislators, these common laws can be thought of as “bottom-up” laws, in contrast to statutory laws.

One of the core assumptions of our legal system is that, if a previous case looks extremely similar to the current case, the decisions made by the judge of the previous case should probably inform the judge of the current case.

Precedents
In the legal world, we call those previous rulings “precedents,” and they come in a few forms.

  • Binding precedents are decisions made by a court “up the food chain” from the one currently addressing the case, or decisions made in the past by the same court currently addressing the case. Binding precedents, as you might imagine, must be followed unless a statutory law contravenes them.
  • Persuasive precedents are decisions made by a court “down the food chain,” a court that is of equal or higher status but not from within the same “food chain” as the court currently addressing the case, or in some circumstances, from courts in entirely different systems (i.e. a civil court referencing a decision from a criminal, military, maritime, administrative, or foreign court.)

The aspect of precedent that makes them distinctly less powerful than statutory law is that, in each case, the judge decides whether or not a precedent is relevant. If the judge decides it’s irrelevant, the precedent is discarded even if it is binding. And even a relevant precedent may be discarded if it is merely persuasive.

 

The point of all of this is that every court proceeding, divorce included, is guided first by a relatively small amount of statutory law, then by a larger amount of binding precedent, then a much larger amount of persuasive precedent. The most commonplace ‘guidelines’ that determine the behavior of the court — especially courts that dictate social behavior like family court — are called “norms” or “legal norms”. We’ll talk about them more in Part II.

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