Most people want to avoid extensive litigation if at all possible. After all, it makes a case take longer, cost more, and (generally speaking) yield poorer results. Most people, after getting a couple bills from their attorney, will suddenly become much less litigious.
Most people, of course, are fairly sensible. They’ll instead start to focus less on the fight and more on the outcome – on what happens to the retirement accounts, to custody and visitation, and what kind of award of spousal support is appropriate and manageable under the circumstances. Maybe they’re still furious, and probably for good reason, but most people just can’t financially withstand litigation for too terribly long.
And, honestly, that’s a good thing. In family law cases, the best results are generally ones that are achieved in negotiation or alternate dispute resolution (like collaboration or mediation, with some caveats), and not necessarily through litigation.
After all, judges are limited in what they can award. They definitely don’t specialize in coming up with unique or varied decisions; they tend to follow fairly predictable patterns. Why, when each case is so obviously unique? Well, for a lot of reasons: to avoid allegations of judicial misconduct (like, that they favored one side over the other), to avoid making mistakes (something that might sound good on the spur of the moment might give one party an unforeseen ability to manipulate the ruling), to avoid being overturned on appeal… the list goes on and on.
But “most people” are not all people. Not everyone is sensible. Not everyone sees reason. Not everyone will refrain from extensive and ongoing litigation. And, if you’re married to someone like that, there’s often not that much you can do to avoid finding yourself in a courtroom again and again.
Abusive litigation is a thing, and it happens with some frequency in family law cases. Mostly, we see it in the context of either spousal support or custody and visitation litigation.
Spousal Support Litigation
Spousal support is, unfortunately, always going to be one area of the law that is positively ripe with opportunities for litigation to be abused. If you think about a spousal support case, the main components are (1) a higher earning spouse, and (2) a significantly lesser earning spouse.
These days, with the changes in the law that have taken place, the higher earning spouse can’t even claim the spousal support payments as a tax deduction. It’s not tax deductible to the person paying it, or taxable to the person receiving it – so, essentially, any benefit for paying it is nonexistent.
When you go into a case with such a disparity – one party with the ability to pay, and the other without – and no benefit at all for coming to an agreement, you run into a situation where the higher earning spouse can stall or make the case take longer in order to disadvantage the other party.
I find that husbands who don’t want to pay support will indicate to their wives that they want to negotiate an award of spousal support. They’ll spend ages negotiating, or make their wives take the lead, and then just … not agree. Or not respond. So, then, the majority of what the wife hoped to spend on the divorce is whiled away in negotiations, rather than making any actual progress, and then the husband just doesn’t commit. In order to move it forward, the wife would need to file for divorce and press the issue, but by then she may have exhausted her already meager resources.
Because she wanted to believe her husband, because she wanted to spend less money on litigation and focus on negotiation, she ends up in a situation where her money is gone and she has achieved basically nothing – her husband’s goal all along.
And why should he hurry it along? It would only be a burden to him, because then he’d have to start paying support! Where’s the incentive?
Child Custody and Visitation Litigation
Custody and visitation is a place where we see a lot of litigation, too, both in terms of getting an initial award of custody and visitation established, and also because modification is permitted afterwards once there has been a ‘material change in circumstances’.
So, not only can you find yourself litigating a lot in the very beginning, either as part of an underlying divorce or independent from it, you can also find yourself back in court, modifying the original order again and again.
There’s no limit to the number of times that the court can revisit custody and visitation, since it’s based on the ‘best interests of the child’ factors, which aren’t fixed but instead constantly evolving to suit the age, development, maturity, and experience of the child.
In that sense, custody and visitation litigation can be extremely abusive. Even if no change in custody is actually awarded, defending against multiple petitions can cost in time, money, lost wages, and more. It can be very difficult to withstand continued custody litigation, especially if you’re already not a high earner.
What can I do if I’m the victim of abusive litigation?
There’s no perfect answer. If your ex is one to continually file petitions with the court, you’ll have to answer them. The ideal situation would be one where you’re well represented by a competent, experienced local family law attorney – so that he can’t just continually manipulate you and the circumstances.
Ideally, too, a judge would eventually see through the shenanigans. Judges can see the procedural history in a case, so if he’s filing an obscene number of petitions, the judge will pick up on it sooner or later. Likewise, in a custody case, you’ll often have your case assigned to the same judge and/or the same Guardian ad litem, who will eventually begin to figure out what’s happening here.
If he’s a narcissist, it may be difficult to see his abusive litigation for what it really is, so you’ll definitely want to be prepared. Again, an experienced attorney will be a critical person to have in your toolbelt, as well as, probably, a therapist who can help you mentally deal with the challenges associated with continued abusive litigation.
There’s no perfect solution. No amount of litigation will, I am sorry to say, stop him from being abusive or mentally ill. As in sports, though, the best defense is often to have a good offense. So, prepare. Get professionals on your side.
For more information or to request a consultation, give our office a call at 757-425-5200.