What Happens If the System Fails Me in My Divorce?
Feb 18, 2019 | Written by: Share|
The system currently in place for families contemplating divorce is imperfect. It is not possible for a system based on very specific rules to uniquely or perfectly apply to each individual’s desired outcome. That defies logic and ignores the multiple personalities at play in each divorce matter (custody, support, removal, paternity, etc.). The judge, lawyers, clients, children, etc., each have their personal beliefs and experiences that color their opinions, biases, and perspectives. How then, can a litigant endure this perfect storm with dignity, respect, and the ability to move on and create a new life in the aftermath?
The law can be ignorant of special facts and circumstances. Family Courts are courts of equity, which means that judges have wide discretion to achieve justice, but what happens when the court is unable or unwilling to do what is necessary? And what happens when a client will not allow his/her attorney to do what the attorney recommends is necessary?
Each and every case, person, and child is unique. It is critical that you understand there is not a “one size fits all approach” and instead, you must work with your attorney to strategize and create a plan (albeit with flexibility) to achieve your reasonable goals.
This can be extraordinarily frustrating at times for all involved. Behind the scenes, your spouse or his/her attorney may refuse to cooperate, pay support or expenses, exchange information, go to mediation, and so on. You may want your attorney to “call the judge,” thinking that the judge will want to know this and will want to help.
Unfortunately, it is not always that simple. In some counties, some judges will agree to a telephonic case management conference upon request of an attorney (after receipt of a letter requesting same and explaining why in some detail). However, in most counties, even where this telephone call is permitted, judges cannot and will not issue an Order over the phone. Instead, the unanimous response is often that counsel should file a motion if cooperation is not possible.
A motion is a formal, lengthy (4-6 weeks, at minimum) process by which you can make a request to the court in writing for specific relief (support, information, parenting time, etc.). This can also be an expensive process, however, it may be the only way in which to present your issues to a court to obtain adjudication.
Some clients are hesitant to file a motion for fear of loss, the costs associated with it, and the general unknown. However, not filing a motion when all else fails can cause irreparable harm to your case. By way of example, if you have a spouse who owns a business and refuses to comply with discovery (requests for information) and/or refuses to advance fees for an expert valuation to determine income and business value, doing nothing may prevent the court from hearing the issues or reaching a conclusion in your favor. If you wait to file a motion until after discovery ends or wait to bring these issues to the court’s attention at the eleventh hour, you may be prejudiced and unable to obtain the relief you would have received had you addressed the issues in a timelier manner.
It is critical that you listen to your attorney’s advice and recommendations in dealing with these issues. If you doubt the need to file a motion or the advice you receive, obtain a second opinion. When you do not allow your attorney to take the action he/she believes to be in your best interest, you tie the attorney’s hands and, in doing so, potentially harm that relationship and your case.
Many litigants express their dissatisfaction with the family court system. Some of these complaints are well-warranted, but sometimes the litigants can change the course of their history by working within the imperfect system rather than fighting against it. New legislation often takes years, and most litigants are unlikely to see the changes they wish for in the duration of their case. Moreover, new rules, laws, etc. rarely effect sweeping change that clients desire based on their personal experiences.
Justice is not always fair and reasonable. It is extremely rare for anyone to “win” in a family law matter.
If you feel the system is failing you or your children, what can you do?
- Try to remain calm and reasonable;
- Strategize with your attorney;
- Consult with a new attorney;
- File a formal application for relief;
- File an appeal;
- Write to your state and local legislators.
Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters. She is a Certified Matrimonial Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, and 2018, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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