The Levels of Relationship Scrutiny

 All is not fair in Love and Law....

Hello, everyone! Two of the most confusing things to engage in are the practice of law and romantic relationships. Since these two things (my legal practice and my relationship) are the sources of most of my own personal confusion, I began to think about how they were related started to view my relationship through a Constitutional Law lens, and my girlfriend as the Chief Justice of our Supreme Courtship (isn’t that normally the case?).


In “Con Law” (as law students like to call it), there are three levels of scrutiny that courts use to decide the validity of a law in the eyes of the Constitution: rational basis; intermediate scrutiny; and strict scrutiny.


When a law’s validity is subject to the rational basis test, the law must be “rationally related” to a legitimate government interest to be held constitutional. So, points A and B should logically lead you to point C. For example, the government deciding to instate a 55mph speed limit on public highways because slower driving will decrease the amount of high-speed accidents. Pretty simple.


Likewise, if your significant other judges you under a rational basis level of scrutiny, chances are you have it pretty easy. There isn’t much second-guessing involved in what you are doing and why you are doing it. Essentially, you have the green light to do whatever you want because your reasoning generally makes sense to your partner.


Intermediate scrutiny is the second-toughest level of scrutiny. Under this test, a judge decides if a law is constitutional by determining whether the law  is “substantially related” to an “important” purpose (whatever that means). Without getting into semantics, the takeaway from intermediate scrutiny should be that the purpose of the law must be more important than merely legitimate, and the means of achieving that purpose must be more closely related to achieving that goal than only showing some indicia of “rational” logic. A better way to put it would be to say that if there were three roads that all led to the pot of gold, under intermediate scrutiny you cannot pick the scenic route. This type of scrutiny is saved for important issues, like laws that touch upon gender.


In a relationship, if your decisions are judged under intermediate scrutiny then this means that your significant other has their eye on you. You still have the benefit of the doubt when push comes to shove, but you better not stray too far away from the line. This may manifest itself in the form of “playing hard to get”, or being questioned as to why you must use their iPad to look up the score, instead of going upstairs to use your own. This level presents a challenge, but not one that’s insurmountable.


And -last but not least- there’s strict scrutiny. Under this level of review, the law’s means must be narrowly-tailored to achieve a “compelling” end.  Narrowly-tailored means that the means by which the end is achieved must be the least-restrictive way to achieve that compelling governmental purpose…aka, the only way. This level is very stringent because it is saved for laws that touch on very sensitive issues such as religion, race, ethnicity, and fundamental rights.


If your significant other judges your Supreme Courtship using strict scrutiny, then this means you are constantly under a microscope, and you bare the burden of proving that your decisions are the absolute best way of achieving your purpose. Think of your significant other questioning why you drove instead of taking the train, why you chose a blue tie instead of a red one, why you are coming home at 6:45 instead of 6:30. For some people, this type of standard is great for them because it keeps them at the top of their game, but to many this can be an extremely stressful and tiring environment to be in. In a nutshell, if you can operate in strict scrutiny you are either a glutton for abuse or you are one smooth operator. If you recognize you are in this situation and you are neither of those two…RUN!


*Please do not confuse this information as legitimate relationship advice, as lawyers are not known for managing relationships well.*


3 Things to Think About Before Filing for Divorce


Marriage Counseling. Do you still have feelings for your spouse? The divorce process can be long, tedious, and costly. Not understanding what went wrong or not resolving lingering emotions before the divorce may end up costing you not only more money, but also more pain.  Unresolved feelings may cause both you and your spouse to fight for every last issue in the divorce decree (marital property division, custody arrangements, etc.), regardless how insignificant. These types of disagreements only draw out the divorce process, making it more difficult for all parties involved.  If you doubt the divorce and/or are restless about the decision, marriage counseling could -at worst- save you future emotional and financial grief by helping both of you come to terms with break-up or it could wind up saving your marriage.


What Do You Envision for the Future? Do you see yourself finally living your dream, free of whatever marital struggles were weighing you down? Or is it impossible to even imagine life outside of your marriage? Regardless of the answer, if you have children and you plan on retaining or splitting custody, your future plans should include remaining in-state.  Courts have long upheld the “best interest of the child” test when determining custody arrangements, and plans to move your children out of their schools, activities, and away from friends are hard to justify. Be sure to consider your children’s futures when making plans of your own.


Finances. With or without children, it is important to remember that a divorce does not equal financial freedom.  In fact, research shows that divorce drops a person’s wealth by 77%, and not just for men. Contrary to stereotypes, men’s wealth is only slightly higher than women’s wealth after divorce. Even if your financial situation seems stable before divorce, it is important to examine your overall finances from a larger perspective.  Often, people forget about minute costs that are new to post-divorce life (transportation for children, furniture, etc.).  Be sure to have a financial plan in place before filing.


Bonus: Lawyer Up! The sooner you engage with an attorney, the better. Be sure to have some questions written down and come prepared to ask them. It’s your life, and your attorneys are there to help you through the process.