Deciding Whether or Not to Litigate in Family Court-
"The Equation"
Jonathan D. Gordon, Ph.D., J.D.
"The
Equation"
© Jonathan
D. Gordon, Esq. 2013
When trying to make decisions in
the Family Court arena, it is good to ask one’s self several questions prior to
choosing a course of action. Sometimes decisions are thrust upon you. There is
not much choice. For example: You receive a notice from Court that an
application for relief was made and you are summoned to Court for a hearing or
arguments on a particular issue. Even in that scenario, however, you are not a
total victim of the other party. There might be several options available to
you. The option not to show up, however, is not one of them because you then
can default and the Court will issue an order you won’t like. If you don’t show
up, the other party can often have granted all of the relief they sought
(within reason).
You can try to mediate the disputed
issues. You might be willing to concede on a point that is not that crucial to
you. You may decide that it would be better on many levels to just give in on
this particular battle, depending on what it is. These should be discussed with
a competent attorney who can advise you as to the pros and cons of those
options. You should not only listen to your attorney, but to your own gut
feelings. It is your life and no one else can live it for you. Your attorney is
there to advise you. He or she is not your parent. Whether or not you take the
advice is under your control. If you are unsure, see another attorney for a
consultation to get another perspective. Your friends and relatives are biased
and often will not give you sound advice. They may simply egg you on, without
adequate knowledge of your case and without any knowledge of the Law.
Ultimately, however, you are the only one who can decide your own course of
action. Doing nothing is also a decision, and that too, has consequences—not
all of them good ones.
Your adversary (spouse, ex spouse,
or partner, etc.) may have done something that angered you or frustrated you.
There may be a lack of cooperation, control issues, dominance over the
children, failure to keep promises, failure to comply with prior agreements and
orders, failure to pay child support on time, problematic parenting time
issues, and on and on. These unfortunate interactions, failures to cooperate,
failures to adequately co-parent, irrational competition for the affections of
the children, etc., are a continuation of the previous dysfunctional
interactions that characterized the marriage (or at least the end of it).
Perhaps these ongoing failures to cooperate, competitiveness and
passive-aggressive behavior (e.g. sabotages) represent an inability to let go
of the other party; an inability to fully“break up” with that person.
Accordingly, the “hanger-on” has a need to continue the contact, the
relationship, the interactions—albeit dysfunctional and unpleasant ones.
Continuing the marital drama is not in your best interests. How much of that
you want to participate in is, at least partially, under your control. But
let’s first look at it from the equation of the aggressor, if you will.
The Chronically Angry
Litigant:
If you are filled with resentment,
anger or even hatred, and you can afford it, you have the choice to fight with
your adversary via litigation. Although you may indeed have a legitimate cause
of action such as your adversary’s failures to cooperate, failure to pay
Court-ordered support, etc., then you might have to file an application in
court. But that is not necessary fueled by destructive anger. It should be a
rational, well thought-out decision. There is quite a difference between the
litigant who initiates an action and who is resigned to the necessity to do so,
and the angry litigant who wants to beat up the other party via court. The
latter person often threatens taking the other person to court, “going after”
that person in court, having their lawyer“drag” the other party through endless
litigation, etc. You’ve heard these phrases and terminology: “drag”,“going
after someone”, taking so-and-so “to the cleaners”, etc. I previously mentioned
the common fantasy that “if only I can tell my story to the Judge, she/he will
understand. . .” This fantasy is irrational and based on a person’s
self-righteous sense of victimhood and indignation. Most of the time, the Judge
won’t be impressed by that person’s story. Sometimes, maybe, but most of the
time, there is a story from the other litigant as well. Your story, argued by
your lawyer in a motion hearing, is not sworn testimony, and there probably is
no corroborative evidence to back up your story. The Judge is not your friend
who will sympathize and believe everything you say. If you want to roll the
dice and take the chance that you will prevail in court, you can do so, but
this course of action should be well thought out and a cost-benefit analysis
should be conducted. What costs do I need to expend on this course of action, and
what is the likelihood that I will succeed? Am I willing to risk losing the
money spent on legal fees with no guarantee of a successful outcome? Maybe yes,
maybe no. Your righteous indignation, anger and sense of victimhood is not
part of the equation, although you may feel motivated to act, based on those
feelings. If you act primarily based on your emotions, anger, hatred, sense of
victimhood, you are taking a very big gamble with your time, money and status. Angry,
self righteous people tend to be overly optimistic that they will prevail.
Your estimation of the probability of success will be inflated. This is huge. I
do not know the statistics (and this would be a good research project), but
based on experience in Court, I do not see that there is a strong correlation
between the degree of anger or sense of victimhood with a positive outcome for
that person in Family Court. The one possible exception to this is in Domestic
violence actions, where one of the actors was actually victimized by the other,
it’s not fabricated, and he or she is justifiably angry. A black eye is a black
eye. (But you don't want to get one in Court.) In divorce, child custody and
parenting time disputes, however, there is less of a correlation and more risk
of failure in Court. I see so many people leaving Court devastated and crying
because the anticipated outcome they expected did not occur. The judge may have
been dismissive and fairly unsympathetic to the client’s story (which costs a
small fortune in legal fees to prepare and submit to the court. An attorney
should go through this with a client ahead of time, should discuss the costs
and possible realistic benefits of litigation vs. settlement so that the client
can make informed business decisions as to how the legal fees will be spent.
Finally, you cannot simply go back to court over and over again with trivial or
nonexistent claims. This can be deemed to be harassment via litigation, an
abuse of the process, and possibly frivolous litigation. If the Judge agrees
that your application is frivolous and brought in bad faith, you can be liable
for the legal fees of the other party. So your cause must be brought in good
faith and represent a real issue appropriate for the Court.
The Decision Tree in the
“Equation”:
It is the client’s responsibility
to construct the equation with the attorney. Ultimately, as I said previously,
the decision is the client’s. It is your life and no one else can live your
life for you. You are responsible for what you decide to do, just as you are
responsible for having previously linked up with your ex partner. Most
decisions have consequences. You might be paying now for the earlier decision
to choose your partner (who is now your adversary). But you can try to cut your
losses in the present by making better decisions and choices so that you can
move on with your life in a healthy manner. Here are some essential elements
you might want to consider in your decision making. There may be overlap in the
columns below, but these concepts represent basic thoughts you should entertain
before embarking on litigation (unless obviously and truly emergent):
Identify the Facts and Problems to overcome:
Scenario: Basic Principles: Arguments pro/con:Decision Making:
Emergency (e.g. refusal to
return a child after parenting time; refusal to hand over a child’s passport prior to other parent’s vacation,
etc.).
Your being very upset is not—in and of itself--an emergency if there
is no imminent, irreparable harm to
persons or to property.
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Usual definition of emergency involves a showing of imminent,
irreparable harm. If a true emergency, the likelihood of success is better.
If child abuse, call your child protective services agency or police immediately.
If you are a victim of domestic violence, call your local police or visit your
court’s domestic violence office.
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Your definition of emergency may be very different from the
Court’s. Check with your lawyer as to
the legal definition and criteria. Here, the emergency may compel that you respond
and take precedence over any anticipated costs. Sometimes problems come to
your front door, like it or not. Is there any possibility of getting relief
without court action?
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If the legal criteria are satisfied, likelihood for success is good.
In many cases, such as in issues directly affecting children, or danger to
any person, you should act swiftly or face criticism yourself for doing
nothing. If it an emergency regarding
dissipation of marital assets, your failure to act quickly may cause you a
financial loss.
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Financial Issues (e.g.
litigation over child support, spousal support, court ordered or agreed-upon reimbursement
for expenses (e.g. college costs, extracurricular expenses, medical expenses,
child care, etc.)
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How much do you seek? Are you already entitled to this money by court
order? Why wasn’t it paid? Is there a
plausibly good reason (extenuating circumstances) the other party didn’t pay
you?
Is there a factual dispute over the issues? (If so, there will be a
trial on those issues). With
conflicting factual arguments by both sides, the Judge may need to conduct a
trial with testimony and evidence to make findings before rendering a
decision.
Is an existing order in place and is the other party clearly in
violation of that order? Can you show that clearly with your exhibits
attached to a motion, clearly showing that you are owed a specific amount of
money.
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Do the arrears exceed the expected legal costs? Have you tried speaking with the obligor or
tried mediation? Do you have paid
receipts for reimbursement? Do you have clean hands and have you complied
fully with your obligations? Did you submit the receipts (if required) within
the time limits (if any)? What are the arguments against you getting paid? On
what basis (if any) could your
adversary argue that paying you would be unfair or not required under the
current circumstances?
Paying in cash and relying on verbal agreements is foolish. You need everything in writing and should
pay by check so you have a record of everything. People lie in Family Court and often deny
that the verbal agreements and cash payments ever happened.
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If the money was previously ordered and not paid, and the amount is
mounting and already significantly exceeds expected legal fees, it may be
worth pursuing. Don’t wait years to seek reimbursement or you may lose it. A lot
of time passed can be considered to be your waiver of getting these
funds. Prepare a list of your
adversary’s expected arguments against you even if you disagree.
In pre-divorce settlement negotiations: balance the cost of attorney
time vs. the amount or item you seek (e.g. spending $2,000 on joint legal
fees to obtain a $1,500 benefit).
Are you willing to risk the costs of litigation against the
possibility you will not get the relief you seek? Sometimes it is a toss of
the dice. Weigh the odds of success first.
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Child Custody: Legal
custody differs from primary residential custody in many states. You can potentially have joint legal custody and be primary
parent of residence (PPR). Ask your lawyer about this and what are your
obligations if joint legal.
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Getting sole custody is rare.
Some scenarios:
(a) You seek
sole (legal and residential)
custody:
You will generally NOT
succeed unless the other parent is an unstable addict, alcoholic, criminal,
mentally ill, abusive, missing, or significantly neglectful of the child’s
needs.
(b) You seek
to be PPR. Ask your attorney for
your State’s criteria to be PPR.
(c) You want to
Expand your current parenting
time (visitation).
(d) You want to move out
of State with or without the child. Need
custody and/or parenting time to be changed.
(e) Are there issues of
child abuse, neglect, substance abuse
or alcoholism in the other parent (old issue, or new relapse, etc.)?
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Are you prepared to pay-in addition to legal costs of a likely
custody trial: the costs of psychological evaluations ($5-10,000),
depositions of the expert(s). A
custody trial can cost anywhere from $25-$50,000 or significantly more.
Is the current PPR uncooperative, sabotaging your parenting time,
actively alienating the children, not taking care of them, being abusive,
neglectful, etc.?
Are you looking for more overnights with your child to reduce your
child support? Because you are angry
at the other parent? Because you are
in competition with the other parent?
To punish the other parent? OR:
Because you already have a fairly close relationship with your child,
you are involved in the life of your child, and you honestly want to spend
more time with your child because you love your child and want to be closer?
Important: Are you available to handle the duties that come along
with more time with young children (e.g. preparing dinners, taking child to
activities, pick up at bus stop, etc.). Is the other parent trying to
alienate the child from you (really)? What arguments will the other parent make
against you having more time?
What is your definition of parental alienation? The other parent
spending lavishly on the children and not setting the same limits with them
that you set, is likely not parental alienation although the child may prefer
the more permissive, gift-giving parent.
Discuss with your lawyer.
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Very clearly identify your motives.
Talk frankly with your lawyer and perhaps see a therapist to get
feedback as to why you are going down this road, and the possible bad effects
on you and on the children. Weigh this against the likelihood of a beneficial
result.
Count how much money you have to spend on this, or how much money you
can raise from friends, relatives or via a home equity loan, etc. Custody litigation is extremely expensive
because it almost always leads to trial, requires experts, and often
depositions.
Consider that the Judge may need to interview your child, possibly in
chambers, but recorded. A transcript
will be made of the interview. You may
or may not want to go that route and you may not want to see what is on that
transcript.
If parental alienation is ongoing, you may not have much choice,
except perhaps to wait until the child is an adult and hope for the best
later. There is no guarantee that
litigation over alleged parental alienation will result in the outcome you
desire. You may also have to hire
expert(s) in parental alienation in addition to the local expert who does the
psychological evaluation.
Your credibility is important.
Don’t tell the judge that the other parent is a terrible parent when
you relied on that parent for child care for years previously, or that the
other parent is a drunk. The question
you will be asked is why you left the children in the care of a drunk. Discuss with your attorney. Your facts may be complex.
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So perhaps the decision to litigate
equation could be conceptualized this way:
Litigate (L) = How Compelling (C factor): (scale of 1-10) + legal fees-costs
available funds (F factor)
Litigate (L) = How Compelling (C factor): (scale of 1-10) + legal fees-costs
available funds (F factor)
X probability of success (S factor)
Or:
L = C +
F x
S
What about doing nothing? The
most important question is whether you will get to the same desired result (or
close to it) if you do nothing, or settle on a compromise position.
Imagine how frustrated you would be after spending a small fortune and
litigating for months, only to get whatever could have been obtained by
settlement negotiations anyway. You are in the same place you would have
been in anyway, but you are much poorer and possibly beaten up
emotionally. Or you could get a home run, who knows?
Your estimate of the likelihood for success should be based on what does the
Law provide, what are the facts of the two relative positions of the parties,
what is the need or necessity for relief, and if you have the emotional and
financial wherewithal to go through the litigation process. Home runs in
Family Court are very rare. Most of the time, the outcome represents a
Judicially-imposed compromise between the two positions. Often, both
parties get something they want while both parties also get disappointed in
some way. Settlements will be similar, but without the high costs of litigation
in Court. There is no substitute for competent legal advice.
Depending on the circumstances, it may also be advisable to get a reality
check-up from a therapist to help you to obtain some insight into your
subconscious motives. As was already said,
sometimes troubles will come to you and there is little choice but to
respond. But deciding when and how to respond should be done after
using a cost vs. benefit equation to see if it is worth going through the
difficult process of litigation in Family Court.
Good luck, and please post a comment about your experiences.
Copyright © Jonathan D. Gordon, Esq. 2013
Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.
Web Site: www.jdgordonlaw.com
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