I recently spent a significant amount of time preparing for and then spending nearly four days in court for what was supposed to be a divorce trial.  While the court time was used to settle the case, the entire process was ponderous.  Due to both passage of time and a series of unfortunate events, there really wasn’t many issues left – and certainly none that should have not been so difficult to resolve.  Yet the case was not resolved until a few more wild (see false) allegations and un-provable (because they were false) suppositions were thrown out, literally in the court house.  Literally, countless hours were spent by both counsel who had thoroughly prepared to try the case, and literally, countless more were spent over minor issues or small dollar differences in the proposal.  The sayings “death by a thousand paper cuts” and “how many angels can dance on the head of a pin” came to mind, as at the end of the day, the few dollars in either direction were long since expended for counsel fees.

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How did we get here?  I have long said that trials only happen for a few reasons.  First, there is an unresolvable issue that requires a judge’s decision – for example, a bona fide, good faith custody dispute; an application to relocate with the children.  Sometimes there is an esoteric or novel issue with a lot a stake that cannot be resolved. Perhaps there is a bona fide valuation issue.  These few examples occur less frequently than, in my opinion, what is the most common reason that there is a trial, especially in the days when court do everything possible to get cases to settle.

The reason for most trials is that one or both parties are unreasonable and/or will not listen to their counsel or anyone else.  Either they are delusional or have so much anger and hatred that they must get their day in court – even if the end result is the parties’ mutual financial and emotional destruction.  Often the parties are a matched set – think of the movie The War of the Roses.  But all it takes, like my recent experience, is one party to be so far out of line to create a needless, and in some cases, tragic result.  At the end of the day, people are entitled to their day in court if they really want it – no matter what the cost.  Hopefully, in those situations, if it is really one party that is totally unreasonable (or worse), the court will award a hefty counsel fee.  But does it really make anyone whole?  Probably not.

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Eric SolotoffEric 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.

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One Response to TRIAL OR RITUAL BLOODLETTING? CONTINUING TO FIGHT WHEN THERE IS NOTHING LEFT TO FIGHT ABOUT

No, a hefty counsel fee does not make the reasonable party whole, especially when the unreasonable party against whom the fees were assessed refuses to pay, even after all appeals are exhausted, forcing the other party to expend even more money simply to try to defend the award through the appeals period, and then enforce the Attorney’s fees award thereafter. When the unreasonable party is pro se, he can do pretty much anything, even file a whole new round of motions (this time post trial) seeking to improperly litigate the issue all over again. My divorce Judgment was entered in December 2011. I received significant attorney’s fees on the basis of defendant’s bad faith. It is now March 2015 and I have yet to see one penny.

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