Skip to main content

Divorce Court isn't Fair. Get over it.

Image
By
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.
Labels:

Comments

Post a Comment

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

By
In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be
74 comments
Read more

Does a Criminal Record affect Child Custody?

By
If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#
65 comments
Read more

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

By
I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann . Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?" I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “W
2 comments
Read more