Below is my article that recently appeared in the online version of Family Lawyer Magazine, titled: Utilizing Civil Litigation Techniques in High-Conflict Divorces.
hat does representing a County and representing someone in a divorce have in common? As it turns out, more than one might expect. Although my practice has continuously emphasized divorce and family law, for the past several years I also served as Deputy County Counsel for a mid-sized County in New Jersey, practicing primarily in civil courts, both federal and state. As the saying goes, sometimes the best ideas come from outside your industry. For this article, I looked to ideas more common in civil litigation to determine what techniques may prove useful in high-conflict divorces.
Consider Utilizing these 6 Civil Litigation Techniques in High-Conflict Divorce Cases
1. Motions for Summary Judgment
In employment litigation, insurance defense, and most other areas of civil practice cases live and die based upon Motions for Summary Judgment and/or Motions to Dismiss. These venerable motions are much less common in New Jersey family courts, however, but can prove just as effective.
Although family law practitioners may be familiar with filing a Motion to Dismiss when issues of jurisdiction or venue arise, in my experience far fewer family law attorneys consider using a Motion for Summary Judgment or to attempt partial summary judgment in matters such as defending or enforcing prenuptial agreements, reconciliation agreements, or marital torts. In such cases, counsel may consider utilizing a motion for summary judgment to limit the issues at trial or to attempt to trigger a favorable ruling leading to resolution before the commencement of the trial.
In civil cases, Motions for Summary Judgment are often filed after discovery is complete and at least thirty (30) days prior to the trial date. In most jurisdictions there are no rules stating such motions may not be utilized in family courts. In a matter where enforceability of an agreement is an important part of a high-conflict divorce case, it may prove beneficial to utilize depositions, admissions, and other aggressive discovery techniques that may be attached as part of a motion for summary judgment. In most jurisdictions, there are no limits on what types of issues may be pursued via a motion for summary judgment, but it should be noted to be successful all material facts must be uncontroverted.
As facts and issues tend to be more nebulous in divorce cases the key to utilizing this strategy is picking one’s spots and seeking to limit issues. In my New Jersey divorce practice I have, for instance, previously received a ruling for a client invalidating a prenuptial agreement following the filing of a Motion for Partial Summary Judgment on that issue. Although there will often be material facts in dispute, which renders such motions rare in family court, it appears that some practitioners may be discouraged from ever considering such methods. Utilizing such motions – more common in civil courts – presents another arrow in the quiver of a divorce lawyer in high-conflict divorce cases and may bring a party to the negotiation table that would otherwise neglect to do so.
2. Utilize Open Public Records
When I was performing work for the County, I saw many disputes regarding access to open public records. Many states have open public records acts allowing for the release of public records within established time-frames. Such records could also be utilized by a savvy divorce practitioner to obtain verifying information or to expedite the receipt of information when there is a time-sensitive issue, such as when working on a domestic violence restraining order matter. For instance, in a case where a spouse is a public employee, a request can often be made directly to the public body for salary information. Although some information may be redacted to protect confidentiality, a great deal of information is not exempt. This is another creative method family law practitioners may employ to obtain information in a divorce case.
3. Depositions and Requests for Admissions
Outside small claims, almost every significant civil litigation case will involve extensive discovery and discovery motions. Depositions are the norm, not an exception. In family law matters this method is flipped on its head and depositions are rare. Therefore, an attorney that can effectively employ such techniques can gain an advantage for their client. Although depositions may be overkill in low-asset and/or low-conflict cases, the tactical use of depositions when appropriate can help bring a case to a conclusion, uncover additional discovery avenues and information, and help impeach the other side or their witnesses should the matter proceed to trial. The simple act of forwarding a deposition notice to the other side may help bring parties to the negotiation table. It is my opinion that admissions are still somewhat underutilized given their low-cost and the common court rules in many states noting that any admissions not responded to are viewed, as a matter of law, to be answered in the affirmative. The use of discovery motions, collection techniques, motions in limine or to suppress, and related civil litigation strategies may prove beneficial in divorce cases when handled with care.
4. Frivolous Litigation
In many civil court matters, the defense will file a letter to the Plaintiff threatening damages for frivolous litigation. Such letters are exceedingly rare in family court matters. However, should an improper cause of action be filed (such as a marital tort when there are no facts to establish such a claim), or should a party be improperly named as a co-defendant in an adultery cause of action, then practitioners should at least consider sending a frivolous litigation letter and further consider seeking sanctions should the violative issue(s) not be withdrawn or corrected. Although requests for counsel fees are common in divorce cases, in jurisdictions where frivolous litigation claims may be raised in the family law setting they should be considered as appropriate.
5. Non-Spoliation of Evidence
In civil lawsuits, it is common at the outset of a claim or demand notice to respond with a non-spoliation letter advising that all discoverable materials must be preserved. Although such letters are becoming somewhat more common-place in divorces, it remains somewhat uncommon for an attorney to forward such a letter and rarer still for an attorney to include a spoliation of evidence claim as a divorce complaint count. However, such a claim is allowed in many jurisdictions and appropriate should, for instance, a party remove their social media after a divorce complaint is filed.
Consider these Strategies for Unusual Cases
Utilizing litigation techniques more commonly found in civil courtrooms opens up new avenues of strategy and tactics in the divorce setting. It’s an interesting topic and this article admittedly only skims the surface of the myriad of techniques and potential creative avenues available. Although there are generally reasons why such techniques are underutilized or rare in family law courtrooms, it’s helpful to keep these and other such techniques in mind for the unusual cases where such strategies can help bring a case to completion or allow for better results for your client.