This week, I was told by an adversary that her client was taking what clearly is an unrealistic position as to custody and parenting time, "on principle." I have another matter where a spouse is delaying the matter on principle, because he doesn’t want his spouse to move on with the new significant other. I tried a case earlier this year, clearly over principle, because the wife wanted permanent alimony in a marriage that clearly warranted a term of years and over her demand for 50% of the value of his medical practice, when a lesser percentage was appropriate. Another client wanted us to file a motion, on principle, over a minor violation of a parenting time agreement during the hurricane. In another case, a party is seeking virtually all of the equity in the marital home, clearly on principle, though the law would not suggest she is entitled to anything more than 50% under the facts.
All of these recent examples remind me of a blog post that I did in 2009 entitled "Musings on Principle vs. Litigation." The examples, however, suggest at least two different classes of standing on principle. In the first, someone has a meritorious claim or position, but the cost of litigation exceeds the amount at issue, and/or though right, they are fighting a fight that they don’t need to fight, just to win. As I recently told a family member who was getting divorced, sometimes it is very expensive to be right.
The second class of "principle" is the crazy principle where you think you are right, but you really aren’t right. Not only that, you aren’t listening to your lawyers, mediators, settlement panelists, judges, friends, etc. who are telling you that your position isn’t right. Rather, these people are embarking on a holy crusade, either to punish the other party or for some other improper reason.
Aside from being expensive and hurting the other spouse, you risk hurting your children. For instance, in the custody matter above, the party pushing the unrealistic position (when a fair proposal is on the table), will no be exposing the children to a custody evaluation (or two or three) and perhaps an interview with a judge. The parson delaying the matter is really hurting them self too because, just as the spouse can’t move on with their life (though they really already are), neither can they. The person who tried the case seeking permanent alimony, etc. did so at a cost to her that she will not be able to buy a new house or will be significantly limited in doing so, because a lion’s share of her equitable distribution has/will go to her lawyers and deservedly so.
As noted in that prior post, sometimes there are just those cases where a client is put in the impossible position of having to make a "Hobson’s choice" accepting a patently unfair or otherwise unpalatable settlement or taking their chances at trial. I am not talking about accepting a deal that is on the low end of the "realm of reason" or agreeing to a little more or a little less in parenting time. Rather, in order to get the case over with and "stop the bleeding", they have faced with the proposition of having to take less than is reasonable or agree to more/less parenting time then is fair, appropriate and/or in the best interests of the children.
One can only hope that if the choice is trial, that the judge will see that the other side is simply not reasonable. In that case, the hope is that the trial judge will make a generous award of counsel fees to make the oppressed party whole, or close to it, for having deal with unreasonable positions, etc. I had a trial a few years ago where the husband refused to negotiate, at all. He sought alimony, without basis, and made us try every single issue, including the exemption of clearly premarital property, the exemption of clearly post complaint property, even the exemption of the engagement ring. In that case, even though my client earned far more than her husband, she was awarded a generous counsel fees.
The bottom line is that litigants should look at the big picture and listen to their professionals before fighting the good or bad fight for all of the wrong reasons.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.