Hard law requirements and soft law expectations for divorcing couples and their counsels
The terms “Hard law” and “soft law” are not as sexy as they sound. They are terms of art in International law as a matter of fact. “Hard law” has to do with what you are required to do – spelled out by treaties, constitutions, statutes and the like. Soft law has to do with what is expected of you – like memorandums, understandings, opinions and regulations. Both hard and soft laws can be “binding” meaning that you could be held responsible for both hard law and soft law. But obviously, law that is hard will have greater, more immediate and clearly defined consequences; and law that is soft affords you more wiggle room to plead ignorance.
In divorce jurisprudence, what is hard law? What are you required to do? Hard law goes to things like how you serve your spouse. SERVICE of the summons and complaint is a critical component of divorce law and if you get it wrong, the divorce can be voided. You have to serve your spouse in the way described in the statute. Typically that is going to mean by personally delivering a a summons, at the very least, upon him or her. In order to get a divorce this is a hard and fast rule. You must get this right. You don’t have a choice with this. No service of summons (or summons and complaint), no divorce. You are also required to state in the summons that you are seeking a divorce. And you are required to say the grounds upon which you are seeking the divorce. You are also required to include the residence of either you or your spouse so that the court knows the basis of jurisdiction. You are required to include your spouse’s correct name in the caption and you are required to include the name of the court in the caption (for example, you can’t put the Kings County Supreme Court on the summons when you are petitioning the Nassau County court for the divorce.) These are examples of hard divorce laws.
There are other things that are required and that would be considered hard laws. You have to personally serve your spouse (meaning that the papers must be handed to him or her by someone of competent age); even if your divorce is uncontested, you must provide the court with an affidavit detailing certain information like your social security number and that of your spouse, your marital address, the date of your marriage, and whether or not you have children. This list is not exhaustive.
With regard to “soft” laws, you are expected to cooperate with your attorney; you are expected to be honest in what you are alleging in your complaint and summons; you are expected to obey the court and it’s rulings and orders; you are expected to answer the summons and complaint; you are expected to show up on court for scheduled court hearings. Again, this list is not exhaustive.
For the lawyers
Play nice. These are soft rules, of course. But you don’t have to be a complete AH to your adversary. As far as hard rules, you can’t have sex with your client. That’s a big one. You cannot do it except under very narrowly defined circumstances, such as, you were having sex with the client before the client became a client….but then you will have to prove it. Or risk disbarment.
What else? You can’t sign off on affirmations if you know the contents are false. That’s a hard rule. You can’t make frivolous motions to the court, example, blocking “quickie divorces” without good reason; or refusing to answer bills of particulars or interrogatories without a good reason. (One good reason might be that the attorney on the other side served you with a boiler plate set of questions that clearly have nothing to do with the case at bar. You can actually object to bills of particulars on that basis.)
If the judge issues his orders (example, you should have your answers to interrogatories by a certain date) and you continue to flout these orders (semi hard law here) you could find yourself in contempt of court or something crazy like that. In jurisdictions like the state of Georgia – Atlanta in particular – you routinely hear of judges holding lawyers in contempt and throwing them in the county jail for seemingly off the wall reasons. One judge threw an attorney in a family court case in the lock up because he didn’t like the way she was looking at him. I kid you not!
Hard law counsels: Don’t stare down the judge.
I could go on with this but I think you get the point. There are hard rules/laws and soft laws in divorce and matrimonial jurisprudence, just as there is in the international realm.
Originally published January 22, 2011