High-Conflict Divorces: Using Civil Litigation Techniques
Turns out that civil litigation and divorce litigation have more in common than one would anticipate. Several techniques in civil litigation are very useful in divorce litigation.
Motions for Summary Judgment and/or Motions to Dismiss are often used in employment litigation, insurance defense, and many other civil litigation practice areas. These types of motions are less common in Michigan family courts but can be just as effective in family law cases.
A family law attorney is often more familiar with filing a Motion to Dismiss when the issue arises regarding jurisdiction or venue. It is not common practice for a family law attorney to use a Motion for Summary Judgment or a partial summary judgment in matters that involve defending or enforcing a prenuptial agreement, reconciliation agreements, or marital torts. Counsel may utilize a motion for summary judgment to help limit the issues at trial or to attempt to prompt a favorable ruling leading to resolution before trial.
Motions For Summary Judgement in Civil Matters
Motions for Summary Judgment in civil matters are often filed after the completion of discovery and at least (30) days before trial. In Michigan and many other jurisdictions, there are no rules that state that these motions may not be used in family court, and there are no rules about what types of issues may be pursued by a motion for summary judgment. It may also be beneficial to utilize depositions, admissions, and other aggressive forms of discovery which may be attached to a Motion for Summary Judgment. To be successful, all material fact must be uncontroverted.
Since facts and issues tend to be more vague in divorce cases, the use of motions for summary judgment is seeking to limit issues. Often times there will be material facts in dispute which contribute to such motions being rare in family courts. Some attorneys may even be discouraged from ever using such methods in a family law matter. Using such motions may bring a party to the negotiation table who would otherwise refuse to do.
Public records may also be used in divorce matters. Many states have open public records acts which allow for the release of public records within a timeframe. This information may also help verify information, or to expediate the receipt of information in time-sensitive matters.
Civil Matters and the Discovery Process
In civil matters, the discovery process involves extensive discovery as well as discovery motions. In a divorce matter, depositions are rare. If a family law attorney uses such strategies they have the ability to gain an advantage for their client. Depositions are often not necessary in a low asset and/or low conflict case. Depositions when used correctly and appropriately can help bring a matter to a resolution, uncover additional discovery points and information, and help impeach the other side or their witnesses if the case goes to trial. In many instances, sending a deposition notice is enough to get the other party to the negotiation table. Admissions are often underutilized in family law cases. Using discovery motions, collection techniques, motions in limine or to suppress, and other related civil litigation strategies can be proven beneficial when handled correctly.
In a civil case, the defense will file a letter to the Plaintiff threatening damages for frivolous lawsuit. These letters are very rare in a family law matter. If an improper cause of action is filed, or a party is improperly named as a co-defendant in an adultery cause of action, then the attorney should send a frivolous litigation letter and seek further sanctions if the violative issues are not withdrawn or corrected. However, asking for attorney’s fees is a common practice in divorce cases, and in a case where frivolous claims exist, attorney fees should be considered appropriate.
During the start of a civil litigation matter, a party will send a non-spoliation letter that states all discoverable material must be preserved. This practice has become more popular, but it is not common for an attorney to send such a letter, and rarer to include a spoliation of claim as a complaint count. For example, this claim is appropriate if a party should remove their social media after a complaint in a family law matter is filed.
These techniques are more likely to be found utilized in civil litigation courtrooms, however, they can be used as new strategies and tactics in a family law matter. There are many more techniques that are used in civil litigation that can be utilized in family law matters. These techniques can be helpful to keep in mind for cases where these techniques could help bring a case to completion.
Reviewed, approved and posted by Kathryn Wayne-Spindler.
The attorneys at Kathryn Wayne-Spindler & Associates are experienced attorneys who change with the times to meet the needs of their clients. Contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000 for assistance. The attorneys of Kathryn Wayne-Spindler & Associates practice law throughout Southeastern Michigan including Oakland, Wayne, Washtenaw, Genesee and Livingston counties as well as four mid-Michigan counties Clare, Gladwin, Ogemaw and Roscommon. The attorneys handle cases in Milford; Highland; Hartland; White Lake; Wixom; Commerce; Walled Lake; Waterford; West Bloomfield; Linden; Fenton; Flint; Grand Blanc; Holly; South Lyon; New Hudson; Howell; Clare; Gladwin; Houghton Lake; Higgins Lake; and many more Michigan communities. And soon to be opening another office in Dadeville, Alabama.
For more information, please see article “Utilizing Civil Litigation Techniques in High-Conflict Divorces” by Carl Taylor on www.familylawyermagazine.com