Judicial Bias: The Elephant in the Courtroom

Let me set the stage for you with a real-life story that many in the divorce process might find unsettling and, at the same time, revealing.

Imagine you have spent years as the primary caregiver for your children, while your spouse has run a highly successful restaurant. When the two of you divorce, you see how skillfully he has hidden his income. The tax returns he provides to the court show little money, but you, the long-suffering spouse, know better.

You've shared the expensive lifestyle, the lavish parties, the luxurious vacations. Yet, because of your ex’s clever financial maneuvering, the judge does not award the amount of maintenance and child support you were expecting.

To make matters worse, you discover that the night before one of your first court conferences, the opposing counsel attended a gathering at the judge's home after the judge’s father had passed away.

It’s not hard to feel the wind knocked out of your sails at this moment. The sinking sense feeling of injustice, the anxiety that the judge might be biased toward an attorney the judge mixes with outside the courtroom, gnaws at you. But in the end, despite everything, the judge helps resolve the case fairly—not exactly all in your favor, but in a way that feels reasonable.

This is the precarious reality of going to court. There is always uncertainty, and yes, bias.

Judicial Bias: The Unseen Influence

All judges, no matter how well-intentioned, carry unconscious biases. They’re human beings with their own life experiences, values, and worldviews, which inevitably shape their perceptions. Even judges who are meticulously trained to be impartial are susceptible to these biases, often without even realizing it.

Judicial bias is one of the least talked-about, yet most influential factors in family law cases, especially in divorce proceedings.

This is not the overt bias we see in movies, with judges actively favoring one party over another due to personal prejudices. Instead, it’s far more subtle and unconscious. This type of bias may come from the judge’s socio-economic background, cultural beliefs, personal experiences with marriage and parenting, or even familiarity with the attorneys involved in the case.

Often, judges themselves are unaware of these biases, which makes them even harder to detect and navigate.

In the case of the restaurateur hiding his income, the financial complexity added a layer of confusion that played into the judge’s bias. The judge’s perceptions may have been further shaped by the highly experienced attorneys the husband hired, or by seeing one of these attorneys at recent memorial events for the judge’s father. Even if the judge wasn’t consciously favoring one side, the subtle influence of these elements can have a real impact.

How Bias Can Affect Divorce Cases

Judicial bias doesn’t always manifest in ways that are immediately obvious. It can show up in the form of:

  1. Looking through a Personal Lens: Judges might sympathize more with one party because of their own personal experiences. A judge who had a particularly acrimonious divorce might be less sympathetic to parties asking for high alimony payments or maintenance. If they have children of their own, they might instinctively side with a parent who seems more hands-on or nurturing, even if that perception is incomplete.

  2. Cultural or Gender Bias: A judge might subconsciously view traditional gender roles as the norm, favoring a stay-at-home parent for custody or viewing the higher-earning spouse as the more financially responsible party. This can especially harm cases where the division of labor within the marriage was less conventional.

  3. Favoring the Familiar: Judges are human. They see the same attorneys day in and day out. If your opposing attorney is a well-known, respected figure in the court system, the judge might subconsciously favor their arguments. This bias isn’t about corruption or conspiracy—it’s simply human nature.

Navigating Bias Strategically

So, what do you do when the deck seems stacked against you because the judge seems biased? First, you must acknowledge that bias exists. Then, you adapt. This is where a seasoned divorce lawyer becomes indispensable.

A successful strategy isn’t necessarily about winning a battle against bias; it’s about playing the hand you’re dealt in the most strategic way possible 

In my office, we use a three-pronged strategy for handling bias :

  1. Research and Anticipation: We begin by researching the judge assigned to your case. We look at their history of rulings—do they tend to favor one gender in custody disputes? Are they strict on financial disclosures? Do they lean conservative or liberal in their interpretations of the law? By understanding their tendencies, we can tailor our approach.

  2. Framing the Case: We can often counteract bias by presenting the case in a way that aligns with the judge’s values or perceptions. For instance, if we know that the judge respects financial responsibility, we might emphasize your careful budgeting and frugal lifestyle rather than focusing on the extravagant lifestyle of your spouse. If the judge tends to favor shared parenting, we craft our argument to highlight your co-parenting efforts rather than positioning for sole custody.

  3. Transparency with Clients: I believe in being transparent about potential biases in the courtroom. I’ll tell you upfront if I suspect a judge’s bias might work against us, and together we can decide how to handle it. This isn’t about accepting an unfair situation, but about knowing when to push back and when to adapt. 

The Case for Settling Outside of Court

Bias is inevitable in court, and its effects are highly unpredictable. That fact is one of the strongest arguments for attempting to resolve issues outside of court. When you reach a settlement outside the courtroom, you eliminate the risk of judicial bias altogether.

Mediation or collaborative divorce allows you to craft a solution that reflects the true needs and the interests of both parties outside the sway of a judge’s unconscious biases. You control the outcome, rather than leaving it in the hands of someone who may not see the whole picture.

This isn’t to say that court is always a bad option. In some cases, when one party is completely unreasonable, court is necessary. But even then, understanding the presence of bias can help us make more strategic decisions. It’s not about compromising your rights or settling for less—it’s about being realistic about the system we’re working within.

The Take-Away

Judicial bias in divorce cases is an uncomfortable reality, but one that you can navigate successfully with the right strategy.

While it’s easy to get caught up in feeling victimized by an unfair system, an effective attorney will keep you tightly focused on getting maximum leverage from the factors that are under your control instead of those, like a judge’s subtle biases, that are not.

We can adjust our approach to maximize your chances of success, always aiming to resolve disputes as fairly as possible.

In the end, as my story about the restaurateur’s case shows, even with bias in play, it’s often possible to reach a resolution that feels fair. Maybe not perfect, but fair—a result we can live with.

And that’s the ultimate goal in divorce: to move forward with your life, feeling whole and ready for the next chapter.

Corey M. Shapiro