In the majority of divorce and family law cases, a court will issue its opinion from the bench. This is more common during motion call. The other times a court will issue a written opinion.
Careful drafting is important because a court speaks through its orders.
When a court issues its opinion from the bench, it is the responsibility of the attorneys to formalize the court’s opinion into a written order or judgment. In doing so, many lawyers will use the opportunity to tweak the language in favor of their client. Sometimes misplacing a comma or the insertion of a “may” for a “shall” can create an ambiguity that can impair enforcement. This language dual is typically not intentional, rather, people sometimes hear things differently. Which underscores the importance of carefully reading and writing every court order or Judgment. If the lawyers cannot agree on language of an order return to the judge before signing. Clarification is paramount because a court speaks through its orders, not its oral statements.
A court speaks through its orders is a pillar of the law.
The notion that a court speaks through its orders, not its oral statements is a pillar of English Common Law. It is recognized in Michigan in a number of Court of Appeals cases, most recently, the case of Cassidy v Cassidy, 318 Mich App 463, 509; 899 NW2d 65 (2017), quoting In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009). The Cassidy court stating:
As an initial matter, “a court speaks through its written orders and judgments, not through its oral pronouncements.” . . .”Thus, to the extent that the trial court’s oral pronouncement varied from the actual order, the order controls.Cassidy v Cassidy, 318 Mich App 463, 509; 899 NW2d 65 (2017) , quoting In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009).
The key learning in this post is that this pillar of Michigan law should not be overlooked. whem drafting. Specifically, the notion that if a conflict exists, the order controls. Which is why it is paramount that every order or judgment be carefully reviewed and drafted to ensure that language of the order or judgment is consistent with the order of the court. A misplaced comma, semicolon, shall or may can alter the interpretation and create ambiguity because a court speaks through its orders, not its oral statements.
In simple terms, it is not what the judge says, it is what the judge signs that matters because a court speaks through its orders, not its oral pronouncements.
About Findling Law
I have been exclusively practicing divorce and family law in Michigan for over two decades. The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.
By: Daniel Findling