United States: Do Not Be That Divorce Litigant

Last Updated: March 28 2014
Article by Robert A. Epstein

There are always going to be those divorce litigants that, no matter what we say or do as the divorce lawyer, he or she is going to do what they want.  Legal advice, no matter how costly, falls on deaf ears, only leading to more counsel fees and issues to address in an ongoing matter.  Don't get me wrong – I completely understand why this may occur, especially in the context of an emotional proceeding that impacts upon the members of what was once an intact family.  As a litigant, however, you have retained a divorce lawyer to provide a specific service on your behalf.  These experiences and litigants have inspired me to provide this brief list for you, as the litigant, to be aware of.

  1. Disagreement is a Good Thing - Many clients often do not like to be told that his or her position or approach is not the best way to go.  This, however, is not necessarily a bad thing.  This does not mean that your lawyer does not like you.  This does not mean that your lawyer does not support you and will not do everything possible to provide zealous advocacy.  As a litigant, you are going to work closely with your divorce lawyer to reach a resolution or result that is in your best interests.  The process should be collaborative, and not confrontational.  Disagreement can lead to a better strategic path since, ultimately, your lawyer is there to act on your behalf and to guide you through the process based on years of knowledge and experience in family law.
  2. Your Divorce Lawyer is (Hopefully) Not a "Mouthpiece" – Oftentimes, a litigant will retain an attorney simply to do his or her "bidding," so to speak.  The litigant will insist on drafting letters, briefs, and more, and will completely disregard the attorney's advice.  Usually, however, this is a terrible idea, as your attorney knows the law (presumably), knows how to address adversaries and the court (ideally), and knows how to strategize on your behalf for your specific case.  While a client's input is oftentimes instructive and quite helpful, and this approach can be more cost effective, I am not simply going to sign my name to a pleading or letter drafted by a client unless it is something with which I am completely comfortable.
  3. Time Wisely Spent is Critical – Do not handcuff your attorney's ability to act on your behalf.  Directing your attorney not to review a certain document that may contain valuable information, or not to incur fees communicating with an adversary, may ultimately impair your case.  While it is your right, as a litigant, to tell your attorney not to do something, it is also the attorney's right to tell you that she cannot represent you if you are not going to allow what she believes is appropriate representation.
  4. Saving Fees is Not a Sign of Surrender – There is no doubt that divorce proceedings can often be quite expensive and drag on for months, if not years.  While you may be intent on fighting about every issue no matter how big or small, without concern for the dollars spent, your lawyer will hopefully advise you of the cost/benefit analysis of your approach.  Is it worth spending $20,000 fighting over a $500 lamp?  Is it worth spending $5,000 fighting over $200 in reimbursement credits?  Ultimately it is up to you what you spend on what issue, but do not take your lawyer's concern over the cost of litigating and recommendation to resolve the issue as a sign of surrender.
  5. Typically, it Takes Two to Tango - Some clients refuse to take accountability and will blame only the other spouse for the divorce and what has transpired during the divorce proceeding.  In certain cases, this position certainly has merit.  Oftentimes, however, the situation is otherwise.  The litigant does not like being told that he also could have handled a specific issue or incident differently, could have said something else to the children, could have refrained from sending that damaging email.  These clients are usually unambiguous and unrelenting in this sentiment – he has done everything wrong, I have done everything right, how can you as my divorce lawyer think otherwise?  Ultimately, one of the best ways to bring your case to an amicable, and equitable end, is to acknowledge that (usually) both parties have had a role in the undoing of a marriage or some other related issue.
  6. Keep Focused on the Long-Term Goals – When you first met with your lawyer, you had goals.  Get a divorce.  Procure primary custody.  Receive alimony for X years in a specified amount.  Move on with your life.  Protect the best interests of your children.  Do not get consumed by the daily back-and-forth, alternate universe world created by a divorce proceeding, where nothing is what it once was because everything you say and do is under a microscope.  The goal here is to get through the proceeding and onto the next stage of your life.

These are just a few of the tips on how "not to be that divorce litigant" that I describe at the outset.  It will only help you, your mindset, and, hopefully, your wallet, to keep these tips in mind when litigating your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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