Tuesday, May 29, 2012

Divorce Court isn't Fair. Get over it.

In many divorce cases that end up litigation, at least one of the spouses is not doing something they are supposed to do. A spouse who refuses to abide by court orders or the discovery rules can delay the process and drive up the costs for both parties. These situations often lead to the following exchange with clients, both during and after their divorce:

Client: My ex is not making a payment that they agreed to make, and which was included in the court order.

Attorney: Have you discussed it with them?

Client: Yes, but they still refuse.

Attorney: Okay, if you would like us to help with this issue, then we will start with a letter or phone call indicating that the payment should be made immediately. If they don't respond by the deadline then we can file a Complaint for Contempt. If there is an emergency then we can request a quick hearing, but that will require an extra court appearance. Otherwise we will have a court hearing in about one month. We will have to serve them with the summons, and we can request those costs and attorneys fees be paid as part of the Contempt order, but there is no guarantee the Judge will include those sanctions.

Client: Why should I have to pay you to do this? Why should I have to pay to serve them? This is something they were supposed to do.

Unfortunately, none of the answers that I can provide to these questions are satisfying because the client is right: the Client shouldn't have to pay to force the opposing party to do the right thing. It's not fair. But life isn't fair. 

Many clients are just voicing their frustration when they say this, and we make every effort to hear our client's frustration so we can help. However, sometimes clients truly don't want to have to pay their attorney or a constable to enforce the court order. The sheriff or constable who serves the Complaint for Contempt, and the lawyer who represents the client are not responsible for the opposing party's behavior and they should both be paid for their time and services. In a perfect world, the party violating the agreement should bear any costs of their wrongdoing. But this is not a perfect world, and court orders, if not enforced, are simply pieces of paper that don't make people do anything.

Click here to learn more about filing a Complaint for Contempt.

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