One question that I am asked obsessively by clients, is “Will the judge consider {insert evil deed of your choice here}?”

The “evil deed” is usually something about a spouse sleeping around, or coming home drunk, or openly eating non-kosher food in the house. All valid complaints, certainly.

The short answer is “No, the Judge will not consider this at your next court appearance.” But in reality, there is more to be said.

A divorce can end in one of two ways: a settlement or a trial. There is no third option. In the event the divorce ends with a settlement, the Judge will be quite happy to not have to take testimony and perhaps lose a day of golf. The settlement agreement will be reviewed by the Judge, or his or her law clerk, and assuming there is nothing completely wacky or illegal in it, it will be approved and you may never even meet the judge. In this case, the judge does not care that your husband came home drunk and urinated on your bed; or that your wife had sex with your brother on your kitchen table and you came home to find them in flagrante delicto. The matter is settled and the Judge will not consider any of those things.

On the other hand, if there is no settlement, what exactly will the Judge consider? It depends on the case. What is really relevant to the issues at hand? Urinating on the bed may go to the issue of whether he should have to pay for the cost of a new mattress and may show that he’s a mean drunk, but at the end of the day, it gets you the same divorce decree as anyone else.

Lets take the other hypothetical of you finding your wife and brother playing kitchen. Once all thought of Cain and Abel has been put aside, there is, again, not much for the Judge to consider at the end of the day except that your wife has exhibited some very poor judgment and your brother is a jerk. It likely won’t effect the financial outcome much in and of itself. But change the scenario a bit, and have your 9 year old kid walk in on Mommy and Uncle Johnny, and you now have exhibit A in a custody trial, where Mommy is going to have gobs of fun being cross examined about exactly what was being cooked up in the kitchen that day. Yes, the Judge will certainly consider it when rendering a custody decision.

I have used some crazy and far fetched hypothetical situations to demonstrate “what the Judge will consider.” But the real question at trial is not “Will the Judge consider this?”, but “Is this RELEVANT to the issue the Judge is deciding.” Some of the most atrocious acts of immorality, bad taste, and poor decision making are simply not relevant in all situations. And as harsh as it might sound, the Judge may not consider it.