When Virginia divorce and custody litigation becomes abusive
For the most part, the court system exists to help people reach resolution in their cases, especially when they’re unable to agree on a resolution between themselves. We use the courts for all types of reasons – when one party is unresponsive, when our client isn’t familiar enough with the assets and liabilities in the marriage to really participate fully in negotiations, when one party behaves unfairly (like by withdrawing all financial support from the other), if the only offer one party makes is wholly unreasonable, etc. There can be lots of good reasons to go to court. Even though it often makes things take longer and increases the cost, it can be a good use of money to go to court.
Unfortunately, though, there are also some cases in which litigation becomes abusive. It’s not always the case, certainly, but sometimes one party uses litigation in a way that materially disadvantages the other party, and it’s always a really frustrating thing to watch.
I’m thinking, specifically, of three cases right now. One is a custody case, where the other party appealed a decision by a juvenile court judge to return custody to our client. No one contends that there is anything wrong with our client, the GAL agreed, and the judge ordered custody returned. Now, there’s an appeal. Within a couple of days, the opposing attorney filed a motion to expedite the hearing and a motion to appoint a new GAL – without leaving any time for the mother in this case to retain an attorney and prepare herself for the hearing.
A juvenile court appeal is a matter of right; it’s not so much the appeal part that’s abusive (though it is frustrating when we won at the lower court, fair and square), it’s the way the other party filed frivolous motions so quickly (in this case, even setting the hearing on a date that the Guardian ad litem had indicated that she was NOT available to attend, which is a bit shocking in and of itself) in an effort to put a sneak attack on the judge — and, probably, intimidate and harass our client.
The other case I’m thinking of is someone that I just recently (and fairly briefly) spoke with. She lost a job, and doesn’t have the money to hire an attorney. After separating from her husband and having, essentially, primary physical custody for two years, she asked for child support. (Child support, by the way, is a matter of LAW, not a favor that your child’s father is doing for you.) She went through DCSE first. He appealed to the juvenile court. The juvenile court also awarded child support. (Right – it’s a matter of law.) He appealed. Oh yeah – he also filed for divorce, and scheduled a pendente lite hearing (that’s Latin for “while the litigation is pending”, and it’s a temporary support hearing). He’s asking for custody now (because the more time he has with the children, the less he pays in support) and also that the court impute income to her (meaning, make her responsible for earning income that she’s no longer earning, because he’s arguing that she’s voluntarily underemployed, even though she lost her job because of her health).
In a third case, it’s a discovery practice that’s abusive. Even though there are only petitions for custody and visitation that have been filed, opposing counsel is asking for all sorts of income related information for our client. Discovery is the legal process we use to get answers to all the potential issues in a case. It’s usually income information, in a divorce, and, in a custody case, it’s information related to the best interests of the child (LINK) factors. Income information WOULD be useful, of course, if there was a child support petition filed — but there isn’t. It looks to us like it’s just a fishing expedition — just sent out for the opposing attorney to dig through, embarrass or upset the client, and look for something (anything!) that he could make an issue of in court later.
I don’t know what’ll happen in either case (though I know that, in the second, that dad will have to pay child support eventually – and probably retroactively as well). They’re not finished yet, and I don’t have a crystal ball.
It’s especially hard when the bad guy has an attorney. But, then again, litigation wouldn’t be abusive if he didn’t take full and complete advantage of the system! An abusive person knows when you don’t have the resources to retain an attorney to represent you, and that makes the situation even trickier.
If your husband/child’s father is using tactics like this to take advantage of you, you really should retain an attorney. There are likely options available to you that you’re not aware of, and, in some cases, we can get attorney’s fees and sanctions for some of this behavior. The rules are fairly complicated and difficult to navigate on your own, though. Without knowledge of the legal system, too, it’s hard to discuss and explain things in a way that will make the judge stand up and take notice. The things that, to you, seem the most important, may or may not be the points that, to the judge, are legally the most important.
To illustrate this point… The second one, with the child support issue, kept telling me over and over that she and her husband previously had an agreement with respect to custody (though it was a verbal one). This, to me, is largely irrelevant. In Virginia, as in most everywhere, anything that you discussed as part of a settlement discussion is not admissible in court – so any prior discussions really aren’t something that the judge cares about. There’s not really any agreement to speak of without a writing to reflect the agreement – so just on that basis, I don’t think he has done anything wrong by filing or trying to move this forward by judicial means. It’s the other stuff – the refusal to pay support, at any level, and the way that he continues to appeal without ever paying a cent in support – that’s more relevant. An attorney can often craft a better argument because we know the laws, and know the specific words a judge is looking to hear.
What if I can’t afford to hire an attorney?
Okay, I get it. Not everyone can afford to hire an attorney. It’s expensive, and, sometimes, it’s just not possible.
I’d at least go to legal aid, and see whether there’s anything they can do for you. I’d also consider attending one of our divorce or custody seminars, and request a copy of any of our free books or reports that apply to your situation. The more you know, the better.
I’d also recommend at least having a consultation with an attorney, and asking them to tell you what you need to know when you go to court. You can use your consultation to plan at least the beginnings of an oral argument, and the attorney can pretty quickly, usually, sketch out some talking points for you to use. It may not be ideal, but it’ll at least give you a bit of a leg up if this goes to court. You don’t want to walk in to the courtroom blind; do what you can, in advance, to get the information you need to give the judge the information he needs to hear to decide in your favor.
Keep in mind, too, that attorney’s fees aren’t something you can ask for unless you actually have an attorney! There may be other sanctions available to you, but not fees.
For more information or to schedule a consultation, give our office a call at 757-425-5200. Good luck!