How to deal with a hostile judge
When you die, a judge will determine how your property is distributed through a process called probate. Often, these judges face a monumental caseload and can spend very little time reviewing your circumstances before your estate appears in court. While judges are entrusted with making fair and just decisions, we must remember that judges are people too, and are subject to any of a number of personal biases and prejudices that any person may have.
What this means for same-sex couples -- especially those in states that do not permit marriage or civil unions -- is that you may appear before a judge who is hostile to gay and lesbian individuals and is under no real obligation to honor your relationship.
Fortunately, judges tend to be good people who are truly committed to doing the right thing. Those that make rulings out of pure animus are rare. It is important, then, to humanize your position and let the judge see you not as the "gay lover" or, even worse, as the total stranger, but as who you really are: the loving and committed partner.
In probate proceedings, try to answer these five critical questions for the judge:
- Who are you? Often people overlook this simple question because they and all of the other people involved in the proceedings already know who you are. But remember that judges are often under-prepared. While it might not seem particularly relevant to the issue of property distribution, judges need to know who you are in order to make their decision.
- What is the controversy, in one sentence? In contested probate proceedings, there can be any number of different claims parties are making. It is important to know the issues that people are going to raise and be able to summarize your position and interests succinctly.
- Why are you here? This is an especially important question for same-sex couples when facing a judge who does not really understand your relationship to the deceased. Hostile judges may view you as someone merely trying to unjustly claim property from a grieving family. It is vital to tell your story and explain fully exactly why you believe that you are entitled to your partner's property.
- What outcome do you want? Explain to the judge clearly what it is you want to come of the proceedings. If you want to make sure you can still live in the home you and your partner have shared, say so. If you want to continue to care for the child you and your partner have reared, make that clear. While it all may seem obvious to you, a judge may not understand without you explaining it.
- Why should you get it? This is the most important question to answer for a hostile judge. This is your opportunity to tell your story and appeal to the judge's sense of right and wrong. While as a matter of law you might not necessarily be entitled to a piece of real property, explaining that it has been your and your partner's home for several years and that you have both contributed equally to it makes it feel much more equitable to allow you to continue to keep it.
The most important thing to do, however, is to retain the aid of an attorney with experience not just in probate, but who can also handle your specific needs and can address the particular difficulties same-sex couples face. While these tips are helpful generally, nothing can replace the advice of a lawyer who knows your particular situation.
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