Using Civil Litigation Tactics in a High-Conflict Divorce
Many divorces are not knock-down drag-out kinds of events. By now you’re probably aware that I generally advocate against such a junkyard dog mentality. When you’re a hammer, everything is a nail and you can force the litigation costs way up by taking overly aggressive and ultimately pointless positions.
A rabid dog is a risk to its owner as well as its owner’s enemies. If you can get divorced with a minimum of vitriol then consider yourself ahead of the game. Nonetheless, it takes two to tango, but in a divorce case it also takes two to settle, and if the other side is hell-bent on an overly aggressive tact, then it comes time for intelligent tactics and strategy. With my vast prior experience in civil litigation, that is when I often turn to that toolbox to gain an edge in high-conflict divorce cases.
Using Civil Litigation Tacts in a High-Conflict Divorce
Again, there’s plenty of uncontested divorces and most of my clients find a way ultimately to an amicable resolution. Perhaps neither party is completely happy with the settlement but they can both live with it and move forward in their lives. There is a real value to that certainty and to that ability to get unstuck. Many of the cases I work on tend to go fairly smoothly and there’s really no need for emphasizing a great deal of litigation techniques or tactics.
Invariably, there are cases that are for whatever reason, whether it’s the emotion of one or more parties, whether it’s the amount of assets, whether it’s the custody issues, there are simply certain cases where there is higher conflict; there are more motions that need to be filed, more techniques and tactics that need to be utilized. This blog post is all about what kinds of tactics are out there if you’re contemplating a New Jersey divorce. I know some of you reading this are probably interested in some of the more aggressive techniques you can try or that you may need to defend, so here is a short primer utilizing my civil litigation background:
Now my background is somewhat interesting in that I’ve always done family law, but for a period of time I also served as deputy county council for a county and I handled a lot of cases in federal courts and state courts. I had a great deal of exposure during those years to civil litigation, and have also represented many businesses, business owners, municipalities, and school boards. Just like how sometimes reading a book outside of your industry can give you new ideas, or have you view things in a new way, those experiences were helpful for my divorce practice when it comes to high-conflict matters.
I previously wrote about the subject of using civil litigation tacts in an article for Family Lawyer Magazine. That article was titled: Utilizing Civil Litigation Techniques in High-Conflict Divorces. Now that article was aimed more at other attorneys. That’s a national magazine that is written for other attorneys and family law experts as the audience. The main takeaway was that as divorce attorneys, we need to remember we have the entire playbook available to us. We have many court rules that apply to not just civil litigation, but to family court matters as well, but many of us tend not to utilize them for whatever reason, whether it’s custom, whether it’s just the belief system of specific attorneys; but there are many possibilities to gain leverage there. Again, these are ideas that aren’t going to apply to every case, but there’s certain techniques out there that some attorneys are using, but not all. I later did a Podcast on the subject, but aimed at consumers actually going through a divorce, and I am now blogging about the subject.
So, I have thought long and hard about how to take that experience doing civil litigation practicing in federal and state courts (and appellate courts) and put forth a manual, or a list of ideas that family law attorneys could utilize. One of the issues is what do you do if you have a prenuptial agreement? Plenty of people have prenuptial agreements and then they’re somewhat disappointed when they learn that there’s still some burden on them during the divorce process to prove that the prenup is valid.
Summary Judgment Motions in Divorce Cases
There’s also what’s called summary judgment motions. These are motions that are usually utilized by insurance companies or other defense attorneys and civil litigations. The idea is there’s not enough here to go to trial on these issues. As family law attorneys, we tend not to utilize motions for summary judgment, but in instances where there’s a claim of marital tort where you’re saying there’s a personal injury from the marriage, or if somebody’s alleging that against you in instances where you’re trying to prove a prenup is not valid or prove that it is, filing a motion for summary judgment can be a very fascinating way to gain some leverage in the litigation to put certain issues to bed and to make sure that you can focus on the more important issues that are out there.
It’s not a total victory in family law, like it may be in civil litigation where you can prove via a summary judgment matter that perhaps an immunity exists and you can win on that issue and be out the case. In family law, you still have to get divorced, you may still have to address custody issues, which obviously would tend not to be good for summary judgment, because one of the standards of summary judgment is that no uncontroverted fact exists and it’s really more of a legal argument. You can win on the law on issues of whether a prenup is valid, whether a reconciliation agreement is valid. If you utilize those techniques, you can really go far in gaining leverage and bringing the case to a head.
To that end, another thing that family law attorneys don’t do as often as civil litigation attorneys is we don’t often depose people. Now in TV shows and in movies, people – lay people watching those types of shows will not see that many depositions. Usually, if somebody’s being questioned by an attorney it’s during an actual trial.
There’s actually the ability to have what’s called a deposition prior to the trial where you put key witnesses or even the parties themselves under oath. Each attorney will be there and the other side’s attorney will have a chance to question you, to cross-examine you under oath. That’s why when they say never ask a question at trial you don’t know the answer to, depositions is where you get some of those answers. It’s also where you can impeach the credibility of somebody if they later change their story during the trial.
Depositions in Divorce Cases
Another nice thing about a deposition is it can be utilized to point you towards new discovery. You can ask people certain questions that may open up new lines of discovery beyond the actual discovery requests. For whatever reason, historically family law attorneys do not utilize depositions. That’s an area that in a high-conflict divorce, you can utilize depositions. Is it going to cost a little bit more money than not using them? Sure. Is it for every case? Definitely not.
In these certain types of cases where it’s high-conflict, where there is certain discovery issues you need, or you have a – somebody your trial lock-in to a certain view or a certain truth that you want them to say, it could be very, very useful and it can be the type of thing that can bring a case back from the brink, or bring a case to a logical conclusion earlier than they would otherwise go.
Another discovery technique that has gained some increased use over the years from when I first started practicing (but still somewhat underused in my opinion) are requests for admissions. This is the cheaper way to do a deposition. You send statements to the other side and they have to say whether they are true or not true. If they don’t answer them at all, then you can make a motion at trial to state essentially that they have admitted everything in the statements that everything is admitted and therefore, they waive the right to now deny it. You can get a procedural upper-hand using admissions.
It’s the in-between, not all the way up to a deposition, but you can get certain statements made. You can start to carve out what the factual discrepancies may be between the parties and it could be very useful. Another technique that we use a lot in civil litigation but not very much in a New Jersey divorce is a claim of frivolous litigation.
Barring Future Motions in a Divorce Case
Now this will come up particularly in post-judgment matters, where people will continue to file motion after motion. Then you can file a counter motion with the court asking that the person be barred from filing future motions, or that they may have to pay for counsel fees. You can use frivolous litigation rule 1:4-8. In many other circumstances, you could use if somebody files a marital tort against you and you know that it’s bogus. You could use it if somebody is attempting to file an adultery claim against you and you know it’s not true and you can prove it’s not true, it’s just meant to harass.
What you do is you have your attorney send a letter to the other side threatening damages for frivolous litigation and advising that you’re going to seek all sanctions available under the frivolous litigation law. We’ve talked a lot today about discovery. Another thing that is very common in civil litigation but not as common thus far in family law is non-spoliation of evidence claims. Usually, when a civil litigation case starts out, you’ll send a letter to the other side saying, “Please maintain all discovery or potential discovery pertaining to the case. If you don’t, it’ll be considered a spoliation of evidence.”
In family law, this could be really important for Facebook or social media accounts, for example. You can send a letter to the other side saying, “Please maintain all discovery,” so if the person later takes down a picture of them out partying when they’re fighting for custody, you can say that they spoiled the evidence and you can get an award of damages and positive inferences drawn towards your case, because the other side spoiled that evidence. You could also add that in as a count in your complaint for divorce, or counterclaim for divorce; it’s another way to gain leverage and high-conflict divorces like all litigation, or most litigation, it’s all about leverage. How do you gain that leverage to bring the case to a satisfying conclusion? If you can’t, how can you properly prove your case before a judge?
Using New Jersey’s Open Public Records Act to Gain Discovery from Government Entities
One last thing I want to talk about is Open Public Records Act. When I served as deputy county counsel for Somerset County for several years, OPRA or the Open Public Records Act was the bane of my existence, in that there’s just so many requests for records and it is very fact-sensitive, whether a government entity should give those records out or not. Because of that experience handling those types of matters and trial courts all the way up through appellate courts, I have a good familiarity with them and what kinds of requests can be made and what kinds of requests can’t be made.
If you have a spouse who works for a government entity, you might be able to circumvent some of the discovery by requesting their salary information, for example, or their certain employment information; not all of it. Some of it is exempt, but some of it directly from the source, and that can help get you records quicker, it can help get you records that your spouse or his attorney would otherwise object to, and it’s another way that you can gain some leverage, gain information and move the case forward. It’s not something that you see very often, but it’s certainly an area of information and documentation available to us that we could utilize in certain circumstances.
Using Civil Litigation Tacts in a New Jersey Divorce – Conclusion
So there you go, a little taste of red meat for those who want to be aggressive in a divorce. But don’t say I didn’t warn you if the ends do not justify the means. Our firm is in this for the long hall and we try not to burn bridges or take positions that are ridiculous, so we can attempt to maintain our reputation in the community and more specifically in the legal community.
That said, you can’t be a pushover in a divorce, and sometimes more aggressive tactics are the correct play. It’s sort of like in a game of football: you’re not going to blitz on every play but sometimes an aggressive blitz package can disrupt the other side and cause a game-changing turnover. Or since we’re now in a football era where defense is semi-banned: it’s like throwing a deep pass. You want to work on the workmanlike run game and short passes and then go for the big play downfield. The problem with being aggressive all the time is you’re easy to read. The element of surprise is important in a divorce, just as with any litigation. And often times all litigation boils down to a high-stakes game of chicken.
Meanwhile, the meter is running and the size of the pie both parties are fighting for continues to shrink.
Partner with Carl Taylor, Esq.
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