Do Not Play Tit For Tat, Always Have Clean Hands

Too many litigants want to play tit for tat in their divorce case, do NOT  play that game, here’s why:

In the discovery phase of pre trial litigation of a divorce or support matter, too often a client’s says: “I refuse to produce financial documents until the other side does.  Well, if the other side is saying the same thing, it will never get done.  Without discovery completed, equitable distribution of assets and debts cannot be determined.  Adjusting, awarding and or modifying child support and or spousal support cannot be considered. If you timely produce, you can then ask the court to sanction the other side if they do not produce for delaying the case.  You may even be able to have the other precluded from presenting evidence at trial.  This is a steep penalty which would heavily tilt the case to your favor. But, only if you have clean hands and timely produced all of your documents which were requested.

In custody and visitation (which should permanently be renamed parenting time), one parent may withhold child support when the children are withheld; or withhold the children for not having received the child support.  Let me remind everyone that: 1) most children in poor households that have two very involved loving parents grow up to be healthy adults; and 2) many children in rich households grow up wanting for nothing but because their parents are rarely home, they grow up with emotional and psychological problems.  The involvement by both parents in a child’s life is way more important than child support for the true best interests of the children.  But here’s the rub: If you withheld child support because the children were withheld from you, the courts are more apt to look to put you in jail for not paying your support than care that you have not seen your children.

Stay up to date in your child support, and if your scheduled time with the children is being withheld or interfered with, petition the court for contempt, enforcement and counsel fees to enforce the order being violated.  Then if it gets chronic, you can also seek to have spousal support if at all suspended and or terminated, and if it gets that bad, you can also seek constructive emancipation of your children to terminate your child support obligation. But you must be up to date in your support or the court will not help you.

But then, we should also consider the study conducted by U.S. Senator Tom Harkin, in the early 1990’s, who accessed over $4,000,000.00 in federal funding to look into this problem and found that it is not just a problem but is also the symptom of other problems such as interfered with or with held visitation.  We must stop over simplifying.  This tells us that a great way to ensure payment of child support is to treat visitation interference as severely as non payment of child support, jailing the parent withholding the children from the other.  But do not hold your breath for this.

Almost all stipulations of settlement and separation agreements, which at law are contracts and become part of the order by being incorporated by reference, have provisions that make the terms independent and severable, such that a breach by one party of one term does not justify or permit a breach by the other party of any other term.  Thus, for example, just because your ex-spouse does not remove your name from the mortgage as required by the agreement and has caused the mortgage to go into arrears hurting your credit rating, you cannot withhold spousal support or fail to fulfill any or all of your obligations in the same agreement.  You stay up to date and fully comply, and move the court contempt, enforcement and counsel fees.  If necessary and appropriate based on the terms of your agreement, you ask the court to order the house sold and to appoint you receiver to sign the other party’s name for all documents necessary to do so.  This could also get you 10% of the other party’s share of proceeds.  But you must be up to date in all of your support obligations or the other side will say it is all because you are in arrears and you will lose. Not to mention there would be a cross motion to jail you if you do not bring all arrears current and for the other side’s counsel fees.

If you want the court to be on your side, always have clean hands by being in full compliance with all of your obligations under the agreement and or order(s) and never ever play tit for tat!