Where persons in a marital or nonmarital relationship have relatively equal bargaining power, that balance of power can help them dissolve those relationships amicably and reasonably, without a great deal of assistance from either attorneys or the court. In many situations, however, an imbalance of power exists. When these relationships dissolve, they present several challenges to the family law attorney.

First, we have to ascertain the existence of unequal bargaining power. It is not always easy. A client can be completely dominated by and dependent upon—or even be abused by—their spouse, and not know it. Or perhaps not willing to admit it.

What do we look for? One party may have a more dominant personality, or greater access to resources, or sole control of the family finances. One party may be motivated by fear of physical abuse, or emotional abuse, or threats to take the children away, or fear of an uncertain future without the other party as their guide. First impressions, however, are not always reliable. Sometimes the stay-at-home spouse also handles the household finances, or has the dominant personality. A party might threaten to get sole custody of the children in order to obtain a financial advantage. Sometimes, the one who appears to be the subjugated party is actually the one in control. Occasionally, the actual victim of abuse is so unable to string together a credible story that they are the one arrested and charged with abuse. Family law attorneys have to peek behind the curtain.

Assuming we have discovered an imbalance of power, what then? We can seek restraining orders to protect a client who is a victim of domestic violence, and help them find ways to allow their children to safely see the other party. We can seek custody orders to protect the best interests of the child. A primary breadwinner might need us to help them share information about their marital finances, and either party might need an order to set support. We can seek attorneys fees to “level the playing field” for clients without access to income or community assets, or as sanctions when a party refuses to behave reasonably.

How do we convince opposing counsel, or a court, that an imbalance exists and that orders are needed? In a domestic violence setting, for example, a persuasive abuser might have greater credibility. In a custody dispute, a parent might get a boost from our society’s mythological belief that the “ideal” is a 50-50 shared parenting plan. Even if we successfully obtain orders, those orders do not change the underlying issues; it may not be possible to equalize access to or understanding of the parties’ finances, or to improve a weaker spouse’s ability to make credible arguments.

How can we be good advocates without taking on our clients’ roles? We can discourage our clients who wield greater power and control in a relationship from abusing it. We can curb the impulse to try to intimidate opposing counsel. We can encourage our clients who have less power to stand up for themselves. We can remember that going to court is not a panacea. At court, the best we can do to try to mitigate the power imbalance is to educate the judge, who might have no prior experience in family law, about how the law should be applied in the current case, with the facts of that case.

About the Author:
In 1992, Janet Frankel received her JD from Hastings and opened her private law practice. In 2004, Janet became a Certified Family Law Specialist, certified by the CA State Bar Board of Legal Specialization. She teaches Community Property Law and Mediation Law as an Adjunct Professor at SF Law School (Alliant University), and she is a past Chair of BASF’s Family Law Section.