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Your Rights — Going Fast! Part 2

Rachel Alexander Jan. 23, 2019

{4:30 minutes to read}

The Ramifications (and Rants)

The conundrum: our legal system has two opposing principles.

First: it encourages parties to engage in alternative dispute resolutions to resolve conflict without court intervention (sparing the overburdened courts).

Second: the court insists that parties seek immediate court intervention in order to protect their rights.

The party who follows principle one risks being denied her rights based on principle two. An individual who invests time attempting to resolve a conflict prior to seeking court intervention may risk the court-imposed remedy to which he was entitled.

If the party brings a matter to court, however, he will often be instructed to go work things out with the other party (and attorneys) before coming back before the judge.

If you’re confused, you might be sane.

Relying on a judgment or an order is far from the solid ground we once thought.

Precedentary Residue and Open Questions

  • Should we be incentivized or disincentivized to resolve conflicts outside of court? A delay in seeking judicial enforcement (by how long is unclear) can be interpreted as having “prejudiced” the other party. Here “prejudice” means affecting the non-moving party so that he would be disadvantaged by the delay, so that upholding the terms now would create an unanticipated burden. Instead of the public policy that supports families in resolving divorce issues through mediation, settlement panels, and the final imprimatur of the court, must we start to alert families that their only “safe” remedy is in taking immediate legal action? Are we required to inform clients that it may ultimately benefit them to ignore the unfavorable terms of their JOD, or to deliberately delay compliance with their Agreement, frustrating the other party so that he will be forced to either accept the new terms or retain counsel? How do we protect our clients’ remedies and encourage them to respect resources and resolve all they can outside of court?

  • Flexibility and post-divorce relationships. How can anyone relax into and depend upon their Marital Settlement Agreement (MSA) and Judgment of Divorce (JOD)? How is one parent to afford the other any flexibility (or even common courtesy) with regard to a scheduled payment or parenting time? Even a benign variation from the Agreement can be cause for concern: is immediate court intervention needed? Did I just accept a modification? Or can he pay me the $10 next week…?

  • Finality. Is your original “Final Judgment of Divorce” not so aptly named? Might it better be entitled: “Hello from your Judge: A gentle suggestion of what you might consider adhering to, at your discretion, unless you come up with a better, self-serving idea and choose to directly defy this Order, which follows?” That would wreak havoc on the formatting…

  • The vulnerable. Will our legal system provide checks and balances to protect the vulnerable party, or provide the imperious party extra leverage? While it once seemed logical that the party seeking to change a court order would have the burden of soliciting court intervention, this case held that the obligation lies with the party simply seeking the court to uphold what was already promised. Is this the dawn of the bullying-spouse-take-all doctrine? Do we need the court at all? Why not just have a duel or whatever conflict resolution strategies they employ on Game of Thrones?

When it comes to getting your court ordered relief – time is not on your side. And neither, it seems, is the court.