Divorce - Parenting Plans, Divorces, and the Cost of Litigation

Thursday, March 2, 2017

    In  another article printed on this website there is a discussion of some of the issues that accompany a change in child support, and an example of how much a small change in parenting time can change child support amounts, and total child support paid over the years.

    The positive or negative effect of a change in a parenting schedule can make it well worth while to spend some money fighting for or against such a change.

    The long term difference in child support totals can make it possible (and financially reasonable) to engage in such litigation.

    In addition to the direct costs of litigating parenting plan issues, other issues, including property division issues, and spousal support issues, can also play a part in the cost of parenting time litigation.

    The reason for this is that if there are other issues that are not resolved, these issues can be used as bargaining chips in the parenting time negotiations, even though this is not supposed to happen.

    These other issues can consume time in preparing for court, and time in court, which can add significantly to the cost of an entire case.

    The way and the completeness with which these other issues are presented can also have a significant effect on the credibility of the client with the court, or with an arbitrator or mediator, or even with the other side (and the lawyer for the other side).  

    If the other side does not believe the client, or does not believe that the client can prove what they assert, or if the other side believes that they can point out current or past inaccuracies to the court or a mediator or arbitrator, this can lead to actual court battles that could otherwise have been avoided.

    Such things can also lead to a case that could otherwise have been won being lost instead.

    Trying to mitigate such harm, while never likely to be fully successful, can also add to the cost of a case.

    It is also important to remember that such factors may contribute to a client’s success in parenting issues, even when the issues or credibility and/or completeness and accuracy of information provided arise in some other area, including possibly even some relatively unimportant area such as the list of assets to be distributed, or the condition of a ten year old car.

    This is particularly true if the client does not give his or her lawyer the information and background documentation that the lawyer needs to prepare the case.

    Similarly, if the client fails to give the lawyer a full listing of assets and debts to be split, and later seeks to add to that (or is forced by the other side to accept that the client did not initially give a full listing), this can cost time and money, as well as credibility.  Dealing with damage to credibility can add to the expense in terms of time and money, even though such damage can often not be completely repaired.  

    In like fashion, if the client fails to provide some document which the other side has requested and which the client’s lawyer has agreed should be provided, this also will add to the cost of litigation, and may significantly and negatively affect the outcome of the case.

    Things of this nature can also cause the lawyer to expend time (which adds to the bill), preparing for a position that the lawyer may never be able to argue for, or seeking to defend some position that turns out to be indefensible.  Overvaluing an asset such as a car that is likely to be awarded to the other side, or failing to accurately report on damage or general condition which significantly reduces the value of such an item can have such negative effects.  Things like this can also reduce the sense of certainty that the lawyer needs that he or she can rely on what his or her client says.  At a minimum, this will increase costs, as things are double checked or verified.

    Failing to report an item that the client later is forced to admit exists, or even that the client later decides he or she wants the court to consider when dividing debts and assets, can be very damaging.  The damage in loss of credibility, or even just in the time spent dealing with the issue, can often far outweigh the value of the item itself.

    Having to accept that a client has not accurately represented things (or has failed to fully disclose assets, or the like) can seriously impair the lawyer’s ability to negotiate.  If the other side finds out that the lawyer has presented information that is inaccurate, the negotiating leverage that one side otherwise would have can virtually disappear.  If this happens when information is presented to the court, either in a trial or hearing, or in affidavits submitted to the court, other things which that side wishes to present, even if true, may be disbelieved, and, at a minimum, may have to be supported in ways that would not otherwise be necessary.

    This can be true even when the facts or documents that are not initially provided are apparently related only to property issues, even when the client’s major goal relates to parenting issues, since the two are inevitably intertwined, even if only in respect of the client’s credibility in the eyes of the court or a mediator or arbitrator.