Why Divorce Court Gender Discrimination is a Myth


There is a persistent myth which goes around claiming courts are biased towards one gender or the other. Men claim there is bias against men when the issue of child custody or spousal support comes up. Women claim there is bias against women when abuse comes up.

While there is certainly some room for judges to exercise some unconscious bias, there is nothing in the law which demands this bias. In addition, there are things you can do to prevent bias, even unconscious bias, from playing any role in your case.

Focus on What Makes You a Good Parent

Parents tend to make one of two mistakes when they’re in divorce court. The first is attempting to trash the other parent. Unless the other parent is truly, dangerously unfit, this strategy is going to backfire every time.

The second mistake is failing to come up with evidence of involvement in your child’s life. Involvement, as the courts see it, means:

  • Feeding the child meals.
  • Taking the child to school.
  • Helping the child with homework.
  • Taking the child to medical appointments.
  • Going clothes shopping for or with the child.
  • Reading to children at night.
  • If age appropriate, bathing the children at night.

If you know you’re going to get a divorce you may want to consciously step up this involvement. And you’re going to want to document it. 

If you’ve been a little uninvolved before, now’s your chance to correct it. The other parent may still have an edge by noting that you stepped up your involvement after the separation or the divorce filing, but it’s a weak edge. You can as easily point out that you had indeed been focused on providing for your children over the day-to-day care, but that the divorce helped remind you that time with them was precious and so you reordered your priorities. 

Why do women get physical custody more often than men? Because women are still the most likely to perform the above-mentioned tasks in most households. If you want to eliminate the bias, seek to change that. 

See also: 8 Things To Avoid During Your Custody Battle.

Bring Evidence For Every Claim You Make

Now let’s look at abuse claims. You want to make sure you’re taken seriously, and that the court doesn’t dismiss your claims as an attempt to alienate the children from the other parent. 

To do this, you must make sure your abuse claim doesn’t come out of thin air. Retain records of medical and psychological evaluations. Note the date of incidents. File police reports. Seek a PFA while the divorce trial is still pending. Print out any threatening emails, social media messages, voicemails, or text messages that you receive, and save the original copies.

If you’ve never once given any indication that abuse was a factor in your household prior to the divorce it’s going to be hard to make a case for abuse after.

You should also be aware that it’s important to focus on major issues. Don’t focus on the time your spouse slapped you if your spouse broke your arm once. Go straight for the broken arm.

Be Flexible About Alimony Arrangements

The most likely alimony payor is neither the man nor the woman. It’s the person who makes the most money.

And plenty of women are making large alimony payments.

Whether you’re a man or a woman, what you want to do is find ways to work out an alimony arrangement that doesn’t cripple you. This could mean offering a little more money for a fixed period of time, or paying a lump sum. It could mean giving up some property today to avoid having to write a major check tomorrow.

Speak to your attorney about creating equitable alternative arrangements that you can propose to your ex.

Settle Out of Court

This is the big one. 

When you go to trial you are dealing with a human being: the judge. This human comes into divorce court with his or her own assumptions and values. The judge does not know you and only has the base facts of the case to work off of.

There is a reason almost nobody is happy with their divorce settlements when they walk out of court.

If you can commit to settling out of court, then the biases of the judge don’t matter. You can create an arrangement that works for your family, one that ignores traditional gender roles and which offers each party a fair deal. 

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