Tuesday, April 23, 2013

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.
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.
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?
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.
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.)
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.
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.
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.
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.
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.)?
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.
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.

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)
 X        probability of success (S factor)

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.

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