Reading and considering Eric Solotoff’s blog from earlier this week regarding the benefits of settlement, it is also critical to know when to settle and, quite frankly, whether to settle at all. This especially applies to those current or former spouses who simply cannot afford to litigate against a financially superior former spouse. This situation is often referred to as litigating on an "uneven playing field."
Trying to some degree to place myself in your shoes, it can only be an extremely difficult decision whether to, once again, go up against the other party with the bottomless wallet, or just settle for what they want and get it over with. These decisions may not only have an impact on your own wallet, but also on your family’s overall well being, especially if children are involved. Too often, the other party knows this to be the case, which is why they will continue to file or threaten to file motions in the hope that you will eventually "give in" under the pressure.
This blog should not be taken as a sign of encouragement to litigate a case, but rather as a cautionary note for what you, as a litigant, may be sacrificing with your decision. Ultimately, it is you who has to wake up in the morning and be comfortable with your decision, which is why having all information at your disposal is, perhaps, the most important part of the decision-making process.
One tell tale example that comes to mind revolves around a party’s threat that he will request all available remedies, including counsel fees, if he is forced to file a motion in the event that the alleged issues do not settle. In family law motion practice, the party filing the motion (and for that matter, the other party filing a cross motion) will almost always ask for counsel fees from the other party, with a common justification being that he was compelled to file the motion only after the other party refused to settle the issues before the court.
Simply because the issues did not settle, however, does not mean that they should have settled, or that there were even any legitimate issues at all. Last year I was in court for oral argument after a former husband filed a motion against his former wife for a modification of his parenting time. Notably, this was no less than the fourth time that dad had sought such relief in the past two years and his annual income was no less than six times that of my client, rendering her unable to continue litigating with dad on a so-called “even playing field."
Dad, however, conveniently forgot to mention to the new trial judge that his prior requests for relief were made at all, let alone denied (despite the fact each of his prior applications and the resulting Orders were a part of the court’s file). Of course this did not stop him from asking for counsel fees on the basis that our client allegedly refused to "settle" his latest requests to modify the parenting time schedule, when, in actuality, she was simply trying to defend herself against his latest litigation onslaught.
Fortunately, the trial judge understood what was happening and not only denied dad’s requests for relief, but directed him to pay my client’s counsel fees as well. Unfortunately, I have no doubt that dad will file another motion at some point soon for the same type of relief and, if denied, will file again and again until he gets what he wants because he knows that mom simply cannot afford to keep up with him.
I recently experienced another cautionary example in the midst of oral argument on a former husband’s latest motion to reduce his child support. Similar to the dad referenced above, this litigant had been denied his requests to lower his support obligation on no less than four prior occasions, essentially filing every two years and, in this latest instance, attempting to take advantage of a new trial judge unfamiliar with the matter. Considering his financial superiority over our client, it was not surprising that he continued to come back time and again in an effort to get what he wanted.
In this case, as is often the case, the trial court, in advance of oral argument, issued a tentative order, based solely on a review of the motion papers and opposition. In its order, the court determined that the father had fulfilled his initial burden of proof, thereby entitling him to a period of discovery and a trial to determine if his support should be reduced. Based on the tentative order, my client requested oral argument, since, once again, the former husband’s numbers simply did not add up.
During the midst of oral argument, the other attorney asked for a brief recess after my argument and, incredibly, asked to step outside and discuss a settlement because the judge had already "given him his plenary hearing." After argument concluded approximately thirty minutes or so later, he again asked if I wanted to discuss settlement – after the judge had just indicated that he would be conducting an entirely new review of the information and alleged issues before the court. It became clear that the husband was concerned with the weaknesses of his application and was trying to quickly settle before the court made its decision and potentially denied his requested relief.
I have no doubt that, he, like dad above, will continue to litigate every year or so until he gets what he wants – via financial pressure or otherwise.
In both of these examples, our clients considering the options of defending themselves against their financially superior adversaries, or acceding to their demands, and decided to proceed. Each case is very different from the next, as is each litigant. Ultimately it is you, based on your own circumstances, who has to decide how to proceed.
The court is there to protect the interests of both parties and, along with that, there are ways to ensure that you do not simply have to give in to the pressure of a determined adversary. Counsel fees, sanctions, and the like are available remedies designed to even the uneven playing field, and also to discourage the other party from continuing down a path of misconduct that may seemingly never end.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.