Dear Socra,
In her latest filing for a change of custody, my ex made numerous false allegations against me. All allegations have been researched and found to be untrue by the GAL.
The judge however is very likely not going to award attorney fees.
Can I (with all the proof I have that her allegations were false) take her to small claims court, and recoup my atty fees via that route?
Kent!
>Can I (with all the proof I have that her allegations were
>false) take her to small claims court, and recoup my atty fees
>via that route?
No. The family court sits in equity (fairness) and has sole authority to award reasonable attorney fees to fairly balance the hardships of the parties. You should research the various factors for awarding reasonable attorney fees in your jurisdiction and prepare a motion with an affidavit of supporting evidence and legal argument, explaining to the court why it should award attorney fees in your favor.
If you prove that the other parent materially falsified testimony in an effort to cause the court to rule against you, then that would almost certainly justify some attorney fees in your favor.
>Can I (with all the proof I have that her allegations were
>false) take her to small claims court, and recoup my atty fees
>via that route?
No. The family court sits in equity (fairness) and has sole authority to award reasonable attorney fees to fairly balance the hardships of the parties. You should research the various factors for awarding reasonable attorney fees in your jurisdiction and prepare a motion with an affidavit of supporting evidence and legal argument, explaining to the court why it should award attorney fees in your favor.
If you prove that the other parent materially falsified testimony in an effort to cause the court to rule against you, then that would almost certainly justify some attorney fees in your favor.
Dear Socra,
Thank you for your quick response.
What however if she just withdraws her case, and we don't go to court? Then we've had several thousand dollar in expenses. Is there any way to recoup that in small claims court?
Or do I have to file a counterclaim for damages so the case still comes before the (family court) judge in spite of her withdrawl? (with the result of incurring more costs, and the risk of not getting anything back)
Thank you for your answer!
Kent!
She can't just "withdraw." She must move to dismiss the action, and your response would be a motion for attorney fees, on grounds that she filed a frivolous action and you were damaged by having to defend.
If she simply does nothing, then after a reasonable time with no litigation, YOU can move that the court dismiss the action for want of prosecution, and, again, ask for attorney fees for her wasting your time (and the court's).