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Hogarth judge

February 2018



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Hogarth judge

Why I don't do divorces.

As a lawyer, I refuse to take divorce, child custody, and other domestic and family law cases. There are a couple of reasons why.

First, I'm not enough of a hypocrite to make the arguments in court. "He drinks too much!" "She smokes pot!" "He had an affair!" "She had one first!" "He's a slob!" "She speeds!" These are the arguments I'd be called on to make, to show why he or she should get custody or a larger share of the marital property. There's an old rule of thumb that says you shouldn't present an argument in court if you can't make it with a straight face. I can't do that here.

Second, there's no law in it. There are, in fact, statutes on the books, carefully gender neutralized, that purport to govern the proceedings. But the statutes typically end by leaving everything to the judge's discretion, or in custody matters, the "best interest of the child". This is not a legal standard; it is in fact the absence of a legal standard.

There are, however, rules in Oliver Wendell Holmes's sense: the law is what a seasoned practitioner reckons a judge will do. ("The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.") These rules are hardly gender neutral. They contain, for instance, a strong presumption that she gets custody. Her weapons to collect child support are far more effective and terrible than his to enforce visitation. The real rules vary from court to court; getting your case in front of the right judge is often half the battle.

So the lawyer must cast his argument in terms of the carefully neutral text of the lawbooks, but always with an eye out for the real rules, which cannot be stated or acknowledged openly. They would be naked violations of equal protection if they were so stated. I don't want to deal with that. Again, I'm not enough of a hypocrite.

I have a tin ear for human emotion much of the time. Now, mere felons, mere murderers are one thing; but a person who has contracted a marriage or begotten or given birth to a child has done something so unwise that I find them hard to relate to. These are simply some of the worst things you can do to yourself from a legal perspective. You'd be better off carefully filling in your address and SSN on the first page of your tax return, then attaching your screed saying that you object to the income tax because the fringe on the flag is the wrong color, and submitting it to the IRS in person, naked except for those guns you're carrying. Marriage and parenthood are simply rotten deals if you have a penis. And you aren't going to change that, either; the only good option is none of the above.


Marriage can be an equally foolish proposition if you're female, and it regularly astounds me how shocked people are that I'm averse.
Thank you for saying it so I didn't have to. Marriage can be an exceedingly bad move for a woman.

I'm sure it can be. (Just easier to describe the view from this side of the fence.)
Also parenthood. I am continually astonished at the number of women I know who will force men to acknowledge paternity and then are all shocked when it comes back to bite them in the ass.
This post is now in not very good taste.