While many people hope their New Jersey divorce matters will go smoothly, sometimes matters become more litigious. Carl discusses his background in both civil litigation and family law and how you can utilize tactics more commonly found in civil litigation to gain the upper-hand in high conflict and/or high net worth divorces.
Podcast & TranscriptBelow is a transcript of the Podcast.
[0:00:08.3] CT: Hello. Thanks for listening. Welcome to the Carl Taylor Law: New Jersey Divorce and Family Law Podcast. As always, I am Carl Taylor. I’m a Central New Jersey attorney emphasizing divorce and family law in my practice. Today, we’re going to delve into the interesting topic of – interesting to me at least, topic of how to utilize civil litigation techniques in a New Jersey divorce.
Now, many divorces are not knock-down drag-out kinds of events. There’s plenty of uncontested divorces. Many of the cases I work on tend to go fairly smoothly. There’s really no need for emphasizing a great deal of litigation techniques or tactics. Invariably, there are cases that are for whatever reason, whether it’s the emotion of one or more parties, whether it’s the amount of assets, whether it’s the custody issues, there are from time to time cases where there is higher conflict; there are more motions that need to be filed, more techniques that need to be utilized. This is all about what kinds of tactics are out there if you’re contemplating a New Jersey divorce.
Now my background is somewhat interesting in that I’ve always done family law, but for a period of time I also served as deputy county council for a county, and I handled a lot of cases in federal courts and state courts. I had a great deal of exposure during those years to civil litigation. Just like how sometimes reading a book outside of your industry can give you new ideas, or have you view things in a new way, that experience was helpful for my divorce practice.
Actually, the impetus for this podcast is I recently was published in the family lawyer magazine with the article Utilizing Civil Litigation Techniques in high-conflict divorces. Now that was aimed more at other attorneys. That’s a national magazine that was written for other attorneys as the audience. The main takeaway was as divorce attorneys, we have the entire playbook available to us. We have many court rules that apply to not just civil litigation, but to us as well, but we tend not to utilize them for whatever reason, whether it’s custom, whether it’s just the belief system of specific attorneys, but there are. Again, these are ideas that aren’t going to apply to every case, but there’s certain techniques out there that some attorneys are using, but not all.
I wanted to take that experience doing civil litigation practicing in federal and state courts and appellate courts and put forth a manual, or a list of ideas that family law attorneys could utilize. Now the audience of this podcast is not other family law attorneys, so I’m going to try to talk about it in less of a technical manner and more of a workman manner. Nonetheless, these are certain ideas that can give you perhaps a sense of what you could utilize in a New Jersey divorce. One of the issues is what do you do if you have a prenuptial agreement? Plenty of people have prenuptial agreements and then they’re somewhat disappointed when they learn that there’s still some burden on them during the divorce process to prove that the prenup is valid.
There’s also what’s called summary judgment motions. These are motions that are usually utilized by insurance companies or other defense attorneys and civil litigations. The idea is there’s not enough here to go to trial on these issues. As family law attorneys, we tend not to utilize motions for summary judgment, but in instances where there’s a claim of marital tort where you’re saying there’s a personal injury from the marriage, or if somebody’s alleging that against you in instances where you’re trying to prove a prenup is not valid or prove that it is, filing a motion for summary judgment can be a very fascinating way to gain some leverage in the litigation to put certain issues to bed and to make sure that you can focus on the more important issues that are out there.
It’s not a total victory in family law, like it may be in civil litigation where you can prove via a summary judgment matter that perhaps a immunity exists and you can win on that issue and be out the case. In family law, you still have to get divorced, you may still have to address custody issues, which obviously would tend not to be good for summary judgment, because one of the standards of summary judgment is that no uncontroverted fact exists and it’s really more of a legal argument. You can win on the law on issues of whether a prenup is valid, whether a reconciliation agreement is valid. If you utilize those techniques, you can really go far in gaining leverage and bringing the case to a head.
To that end, another thing that family law attorneys don’t do as often as civil litigation attorneys is we don’t depose people. Now in TV shows and in movies, people – lay people watching those types of shows will not see that many depositions. Usually, if somebody’s being questioned by an attorney it’s during an actual trial.
There’s actually the ability to have what’s called a deposition prior to the trial where you put key witnesses or even the parties themselves under oath. Each attorney will be there and the other side’s attorney will have a chance to question you, to cross-examine you under oath. That’s why when they say never ask a question at trial you don’t know the answer to, depositions is where you get some of those answers. It’s also where you can impeach the credibility of somebody if they later change their story during the trial.
Another nice thing about a deposition is it can be utilized to point you towards new discovery. You can ask people certain questions that may open up new lines of discovery beyond the actual discovery requests. For whatever reason, historically family law attorneys do not utilize depositions. That’s an area that in a high-conflict divorce, you can utilize depositions. Is it going to cost a little bit more money than not using them? Sure. Is it for every case? Definitely not.
In these certain types of cases where it’s high-conflict, where there is certain discovery issues you need, or you have a – somebody your trial lock-in to a certain view or a certain truth that you want them to say, it could be very, very useful and it can be the type of thing that can bring a case back from the brink, or bring a case to a logical conclusion earlier than they would otherwise go.
Another discovery technique that has gained some increased use over the years from when I first started practicing but not as much as perhaps it should is requests for admissions. This is the cheaper way to do a deposition. You send statements to the other side and they have to say whether they are true or not true. If they don’t answer them at all, then you can make a motion at trial to state essentially that they have admitted everything in the statements that everything is admitted and therefore, they waive the right to now deny it. You can get a procedural upper-hand using admissions.
It’s the in-between, not all the way up to a deposition, but you can get certain statements made. You can start to carve out what the factual discrepancies may be between the parties and it could be very useful. Another technique that we use a lot in civil litigation but not very much in a New Jersey divorce is a claim of frivolous litigation.
Now this will come up particularly in post-judgment matters, where people will continue to file motion after motion. Then you can file a counter motion with the court asking that the person be barred from filing future motions, or that they may have to pay for counsel fees. You can use frivolous litigation rule 1:4-8. In many other circumstances, you could use if somebody files a marital tort against you and you know that it’s bogus. You could use it if somebody is attempting to file an adultery claim against you and you know it’s not true and you can prove it’s not true, it’s just meant to harass.
What you do is you have your attorney send a letter to the other side threatening damages for frivolous litigation and advising that you’re going to seek all sanctions available under the frivolous litigation law. We’ve talked a lot today about discovery. Another thing that is very common in civil litigation but not as common thus far in family law is non-spoliation of evidence claims. Usually, when a civil litigation case starts out, you’ll send a letter to the other side saying, “Please maintain all discovery or potential discovery pertaining to the case. If you don’t, it’ll be considered a spoliation of evidence.”
In family law, this could be really important for Facebook or social media accounts, for example. You can send a letter to the other side saying, “Please maintain all discovery,” so if the person later takes down a picture of them out partying when they’re fighting for custody, you can say that they spoiled the evidence and you can get an award of damages and positive inferences drawn towards your case, because the other side spoiled that evidence. You could also add that in as a count in your complaint for divorce, or counterclaim for divorce; it’s another way to gain leverage and high-conflict divorces like all litigation, or most litigation, it’s all about leverage. How do you gain that leverage to bring the case to a satisfying conclusion? If you can’t, how can you properly prove your case before a judge?
One last thing I want to talk about is Open Public Records Act. When I served as deputy county counsel for Somerset County for several years, OPRA or the Open Public Records Act was the bane of my existence, in that there’s just so many requests for records and it’s very fact-sensitive, whether a government entity should give those records out or not. Because of that experience handling those types of matters and trial courts all the way up through appellate courts, I have a good familiarity with them and what kinds of requests can be made and what kinds of requests can’t be made.
If you have a spouse who works for a government entity, you might be able to circumvent some of the discovery by requesting their salary information, for example, or their certain employment information; not all of it. Some of it is exempt, but some of it directly from the source, and that can help get you records quicker, it can help get you records that your spouse or his attorney would otherwise object to, and it’s another way that you can gain some leverage, gain information and move the case forward. It’s not something that you see very often, but it’s certainly an area of information and documentation available to us that we could utilize in certain circumstances.
With that, I’m going to wrap up this podcast. I hope it’s been informative. I hope it presents some possibilities beyond what you would normally read about divorce litigation. If you’re interested in learning more, you can go to our firm’s website mynjdivorcelawyer.com. Or if you’d like to call us to schedule a consult, or to meet, our number is 908-237-3096.
Thanks and have a great day. Take care. Bye.