A plague (commonly quoted as a “pox”) on both your houses.   One web site noted that the “… phrase is commonly applied to criticize warring factions whose rivalry brings ruin to others.”   Who would have thought that Shakespeare (in Romeo and Juliet) would have coined a phrase that is as apropos to the goings on in family court, as it is anywhere else?

How often do we see fighting, for fighting sake?  How often do we have to explain to clients, just as we may explain to our children, that two wrongs don’t make a right?  How often do we suggest to our client, that is when we get a chance to stop the retaliation as opposed to being presented with the fait accompli, that it is better to be the bigger person, to have the court perceive you as pure as the driven snow, to be seen as the one trying to de-escalate the situation?  How often do we see the use of a bazooka in response to a small afront?  The answer is all too much.

Recently, I heard of a parent cutting off her children’s cell phones because that parent didn’t like what the kids told the custody evaluator?  Was that a good idea to fix the already strained relationship?  Probably not.  I have recently heard someone say, in the same sentence, that we had to win the case for her, but also, get the case settled immediately – two entirely mutually exclusive results.  We have all heard of parents wanting to cut off parenting time because the other parent isn’t paying support.  Or a party that has the upper hand by virtue of an improvidently granted Order sticking it to the other parent for as long as possible, without regard for the affect on the children or the cost.

Granted, divorce and custody are emotional matters.  Granted, there are often real and bona fide disputes during the process.  I am not talking about that.  What I am talking about is the petty, and perhaps not so petty warfare that has little to do with the ultimate merits of the case.  What is worse is that the parties often lose sight of the big picture, and more importantly, lose sight of the fact that they are at least, if not just a little, at fault for the costly war that has ensued.  After all, they feel morally justified in their position.  The will say that they are only protecting their kids, they are only doing what was right, that she/he started.

Here’s the problem, aside from the cost and the merits of the case getting off track, judges quickly get a sense of what is really going on in a case.  Sometimes, where appropriate, that see that it is really one party who is the “bad guy” and then manage the case accordingly.  That is when you want to be the party who has taken the “high road” and is pure as the driven snow.  When you act that way, you are largely free from he criticism that can ensue.  This may be a particularly useful position to be in when the issue of counsel fees arises, either during a motion or at the end of the case.

On the other hand, when both parties act badly, the judge gets that quickly too. At the beginning, you might get the pep talk about knocking it off for the benefit of the kids, to save money, etc.  Thereafter, if the bad behavior continues, the result is often ” a pox on both of your houses.”  Courtesies from the court regarding scheduling may go away.  There may be more active case management which costs more money.  Discovery masters, parent coordinators, mediators, etc. may be appointed by the court so that the court doesn’t have to deal with the skirmishes as much, all at greater expense to the parties – both economically and emotionally.

So better to try to avoid being considered the plague and start taking the higher road.  Unfortunately, many who will read this probably wont think that they are the part of the problem (too) and that is the problem.


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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.