Lawyers Behaving Badly: Gamesmanship in Divorce Cases

Forms of gamesmanship show up in our California family law cases from time to time. For whatever reason, opposing counsel get into their heads that grandstanding in court or playing fast and loose with procedural rules gives them an advantage in their divorce trial or hearing.

They are usually wrong. To illustrate my stance, here are a few examples.

I represented a client in an international child custody case that began in a European country, which meant that country had exclusive jurisdiction over custody issues. When my client traveled here to litigate that issue, opposing counsel tried to serve him with California divorce papers, because physical presence in the State of California is a common basis for the state court to get jurisdiction over a person. But this tactic in international jurisdictional fights (“Hague Convention cases”) is not permitted. A parent arguing that California has no jurisdiction over the matter and appearing here to make that argument cannot then have jurisdiction imposed upon him by getting served with divorce papers while present for the Hague dispute. I’m not sure if opposing counsel knew this and hoped I didn’t, or if they had no idea. But had I not educated them on the law, the divorce may have moved forward here when it should not have. Because California has very different laws from virtually every other jurisdiction regarding property, support, and everything else related to a divorce case, that could have jeopardized my client significantly.

These attorneys may think they’re representing their clients zealously, but what they are actually doing is undermining the intended fairness in the process that the procedural rules are supposed to be preserving.

Similarly, opposing counsel can be slick under “live fire” court action.

For instance, I represented a client in a spousal support trial and opposing counsel attempted to introduce the testimony of a private investigator (along with a video). Problem: this witness had not been disclosed in the pre-trial witness list, as was required by a local court rule. I objected on this basis, and the witness was not allowed to testify. Had I not known the local rule, the witness would likely have testified and perhaps we would have gotten a different result.

Overall, knowledge of procedure and of local court rules is important in ensuring that opposing counsel or parties do not game the system. These attorneys may think they’re representing their clients zealously, but what they are actually doing is undermining the intended fairness in the process that the procedural rules are supposed to be preserving.

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ABOUT THE AUTHOR: Neil M. E. Forester is Managing Shareholder of FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. He is recognized by the State Bar of California’s Board of Legal Specialization as a Certified Family Law Specialist. Neil regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. Beyond his legal practice, Neil serves on the Board of Directors for WEAVE and as pro bono legal counsel for NorCal Boxer Rescue. He can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice. Follow FPS on Facebook, Twitter, and Instagram: @law_fps
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