How to Turn a Winning Case … into a Loser
In family litigation, there are always (at least) two sides to any dispute. Legally speaking, one of those sides will be a winner, and the other is much less likely to be. With adequate preparation and good representation to the court, the likelihood of a litigant with a solid case being victorious at trial is high.
But this is not always how things turn out. Sometimes good cases don’t end up being the winners in the courtroom.
In my experience, if you are a family litigant there are a number of reasons why this might happen to you:
• Lack of preparation. This includes failing to gather all the necessary documents, not preparing your witnesses, not obtaining expert results when they would be helpful to your case, and not familiarizing yourself with the Family Law Rules. The merits of even a good case can become clouded by the fact that you as a litigant are not putting your “best foot forward”, or because you have failed to take the time to marshal all the evidence and documentation that will help the court reach the decision you want and are legally entitled to.
• Using the court to get revenge or retribution. Whenever there is litigation, emotions always run high. Even more so with family litigation, where the levels of acrimony, interpersonal contempt and vindictiveness, and a need for retaliation or being proven “right” are at an all-time peak. Family litigants are especially prone to using the court system to “get even” with an ex-partner, or to achieve other objectives that are not grounded in legal rights, but rather on moral rights. Court cases can go terribly are wrong when as a litigant you lose sight of the proper aim, objectives and processes of the justice system.
• Not fulfilling your obligations to the court and to the other side. Family litigation – despite being an adversarial process – nonetheless involves a good deal of co-operation between litigants. For one thing, each of you has an ongoing disclosure obligation; for example, if you are paying child support based on a specific level of income you are earning, you must disclose the fact that you got a better paying job. Also, in the context of equalizing family assets post-separation, you and your ex-partner both have an obligation to be completely forthright in connection with your income, assets, and liabilities. Many good family law cases falter and go wrong because one of the parties has tried to hide their assets or income from the other.
• Having unreasonable expectations. Going to family court with the expectation that you are going to “take your Ex to the cleaners,” during the Equalization process is not realistic. Neither is expecting to have no financial responsibility whatsoever for the support of your own children, once your relationship with their other parent breaks down. More to the point, these kinds of assumptions and expectations demonstrate a fundamental lack of understanding of the legal rights and obligations that arise in connection with separation, divorce and custody. It is important that you have a solid awareness of the law that governs your particular situation, ideally by getting competent legal advice that is tailored to your own fact situation. This will prevent you from having expectations that cannot and will not be met when your matter actually gets before a family court judge.
There is an old saying that “a good product will sell itself.” Unfortunately, the same is not true in family law: You can have the best, strongest, most watertight legal position, and you can have ample supporting facts and evidence. But in terms of persuading a court, the merits of your case can get clouded and obscured by all kinds of factors. Getting good legal advice long before you go to court will help you avoid this possibility.