Trump Trial 2 (Maybe 3): It’s Not Like Family Law
The world knows that today was closing argument day in the Trump criminal trial associated with the payments made to Stephanie Clifford in connection with her claims of a sexual relationship with former President Trump.
This trial began on April 22 and concluded either today or a week ago depending on how you look at it. It was 21 days of evidence involving a transaction that took place over just about the same amount of time in 2016. Many people think it is crazy how detailed trials of this kind become. But, this is a criminal trial and as Trump’s counsel Todd Blanche improperly argued today, Mr. Trump’s liberty interest at stake. He is charged with a crime and when that happens the judicial procedure employed is the highest standard you get. This may also explain why courts are confining trial of your divorce or custody dispute to a few days while criminal cases occupy weeks on court calendars.
Laypeople can be confused by this. In all criminal and most civil trials the first question before the court is a straight on/off question. Did one or more parties commit a wrongful act. One of the big fights about to occur in the current trial is whether Mr. Trump was aware and participated in the wrongful act, i.e., payment of money to cover up a sexual relationship. In the Jean Carroll civil case where Mr. Trump was accused of sexual assault, the core question was “Did the assault occur?” But these are yes/no questions and if the answer is no, the trial is over.
These worlds are much different than almost anything related to family law. The only clear exception are claims for protection from abuse. Unless the court is convinced the plaintiff has an objectively reasonable fear of bodily harm based upon the acts or words of the defendant, the claim is dismissed.
Almost all family law cases relate to “family management.” Clients often come to lawyers looking for us to paint a narrative where they are “good” and their unworthy spouse is “bad.” There is a place for that, yet too often clients never get past the fact that the goal of any judge isn’t to decide good/bad but to send a former loving couple back into the world in a setting where each can go on with life.
This happens a lot in the law. When we think of bankruptcy most people think about Chapter 7’s liquidation provisions. Sell the assets and divide the proceeds among the creditors. But that’s a small piece of the bankruptcy world. Most of it centers on Chapters 11 and 13 where business and personal debt is “managed” so that a liquidation can be avoided. Debtors are encouraged to compromise on the basis that they may do better by seeing the business or person survive with a payment plan than by demanding liquidation.
Land developers take 30 acres of undeveloped land and will come in with a plan to build 100 townhomes. Local planning commissions put up resistance to these dense building plans but both sides know that someday/somehow the land is going to be developed. The goal is to be practical and find a solution where there is responsible development with less density.
Custody law arises because parents cannot agree on how to manage children once they separate. Rare are the instances where one parent is so corrupt or dangerous that he or she is deprived of access to children. Countless custody trials center on fights over who gets equal custody or primary custody. Yet when clients are asked to explain to a court how an equal or near equal custody arrangement would harm the child or children, they can’t articulate much more than “They’re better off with me.”
Support trials are more formulaic. The question is what integers are fed into the support calculation in terms of actual or potential earnings. In the case of spousal support, it is possible to engage in conduct that deprives you of the right to spousal support, but candidly, courts don’t favor such results. Again, these are management, not blame issues.
The experience of trials as observed on television, whether “Perry Mason”, “Matlock” or “Judge Judy” are on/off experiences. The defendant is guilty or innocent. The landlord owes the security deposit to the tenant or he doesn’t. Family law is about hitting the re-set button on a failed family arrangement. And rare are the instances where one party wins and “takes all” in a divorce or child custody arrangement.
This recent Trump trial, much like the South Carolina month long murder trial of Alex Murdaugh in 2023 offers some fascinating insights into how criminal law is administered. But the approach in family cases is entirely different. Ironically, this is a comparatively recent development in American legal history in that no fault divorce did not exist in the U.S. until 55 years ago when California led the way. Today every state has no fault divorce and while some, like former cabinet secretary Ben Carson think we need to roll that clock back, not many Americans would be anxious to live in a world where they have to live indefinitely in a miserable marriage.
