Ah, that unforgettable line uttered by Veruca Salt in Willy Wonka and the Chocolate Factory. As a matrimonial attorney, this is what it feels like we deal with quite often. But I am not referring to people just being demanding, I am talking about people making unreasonable demands, with no apparent justification in law or in fact. In fact, I have had enough of “my client just wants”, “that’s not enough” and “I know that a court would never do that but my client insists” over the last several months to last me a career.
Some examples have been, in no particular order, demands for child support that exceed what the Guidelines would require by 7 to 10 times; demands for combined alimony and child support representing 60% or more of pre-tax income; demands for a buy out on the house for higher than the agreed upon value less the agreed upon mortgage; demands to share in exempt inheritances, trusts or family gifts that were never commingled; demands that one party get most of the marital assets because they were held in her name, though not exempt; demands for more than half of the assets, or 100% of the house free and clear of the substantial mortgage debt “because you caused the divorce.”
It is bad enough when an a litigant, who is uneducated about the law makes these demands. That is to be expected because of ignorance of the law or raw emotions clouding judgment or both. It is quite another thing when the client’s lawyer makes the demand, knowing that there is no rational or legal basis for the request. As a younger lawyer, I remember incredulously asking an adversary, “Is your client really seeking 80% of the assets and 90% of my client’s net income?” to which the answer was yes. Inevitably, when they are called on it, they sell their client out, saying how unreasonable they are, but they are just doing what they have been instructed to do. Is that response good enough? First, you wonder if they ever actually educated their client on the law (or whether they know it themselves). If they have educated the client, is it proper to make a demand that is unreasonable, if not bad faith?
On the other side of the equation there may be the litigant that is willing to negotiate a reasonable resolution within the expected settlement parameters based upon the facts of the case (though often, water finds is level and where there is one unreasonable party, their spouse may be their mirror image in that regard.) But what is the reasonable litigant to do? They are often left with having to make the “Hobson’s choice” of capitulating to the unreasonable party, or incurring the cost of litigation. Worse yet, I have seen mediators, early settlement panelists, and even judges, try to pressure the reasonable party to settle because the other party wont budge, or split differences between the reasonable proposal and the unreasonable demand resulting in a slightly less unreasonable proposed resolution. That said, I have seen these same judges, mediators or panelists use the threat that the unreasonable party may be required to pay the other party’s counsel fees as an effective deterrent. Unfortunately, usually by that time, a lot of money has already been spent for something that should probably have been nipped in the bud from day one.
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 firstname.lastname@example.org.
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