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Vexatious litigant

Started by mistoffolees, Dec 11, 2006, 07:13:32 AM

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mistoffolees

Soc, In a different thread, you posted:

"The point is that it's rarely worth bothering to challenge a support mod, unless you are served with more than one in a year's time and none of them are valid, at which point, I would ask for the moving party to be sanctioned as a vexatious litigant, for abusing the legal process and wasting the court's time."

I'm curioius how commonly this is used and enforced. My stbx's first husband was always dragging us into court over silly things. Her attorney said that there was little that we could do because our system allows people to sue for almost anything and it was almost unheard of for the courts to chastise a litigious parent.

My stbx looks like she's going to go the same way. After agreeing in writing to 50:50 physical custody and allowing it to go on for months (it's working very well), she's suing for sole even though there are no new facts or change in circumstances - just after we gave her a proposed final settlement which she dismissed as too low. Now, she's suing because I'm not giving her enough money on a temporary basis - even though the records show that she's gotten about 65% of our combined income since I filed for divorce.

What are the standards and how likely is it that I'm going to be able to keep her in check or will I simply have to live the rest of my life with an attorney on retainer?

Thanks.

socrateaser

>What are the standards and how likely is it that I'm going to
>be able to keep her in check or will I simply have to live the
>rest of my life with an attorney on retainer?

I don't know whether your jurisdiction has a specific vexatious litigant statute. If so, then the standard is expressed in the statute. If not, then you are essentially suing for:

1. Abuse of process, which is the use of legal process for a purpose other than that for which it was originally intended. This is a separate civil suit, and requires you to have prevailed in the action on which you are suing, and that you show the real purpose of the suit. This is also an action which would go before a jury, and which both parties must bear the cost of their legal fees. Most cases like this settle, but if the other parent has no assets (i.e., home with equity), you may not be able to obtain any damages, which would make your action a waste of time.

2. If you simply get a dismissal or denial on grounds of your opponent filing a completely unnecessary motion, you could ask the court to personally sanction opposing counsel on grounds that the motion was not offered in good faith (with the honest belief that the other parent had a reasonable basis for the motion), or on grounds that the motion is a waste of the court time, and falls below the attorneys duty of competency.

Your attorney will be extremely reluctant to go after opposing counsel because your attorney must work with that attorney on another day in another case. Which is why he/she's balking at doing anything now.

Point is you need a really compelling reason to push back hard -- otherwise your own attorney will resist to the point of withdrawing from your case on grounds that he/she believes you are a difficult client.

Not saying you are difficult -- this is just the reality of the system. From what I'm reading, I think your best best is to just ask for attorney fees and costs on the repetitive motion. That's a reasonable request, and your attorney shouldn't find it unreasonable, unless there's some new issue in the motion which is relevant and not yet in dispute.

mistoffolees

That's exactly what my own attorney is doing - asking for legal fees and costs every time an unreasonable motion is filed.

My own EMOTIONAL reaction is not to push back to hard, so I'm glad there's some legal rationale for that, as well. I don't like the other attorney and he does appear to be vastly overcharging and overlitigating, so it would be emotionally satisfying to ask for sanctions, but I'm being careful not to let anything distract me from my focus on getting at least 50:50 physical custody of my daughter right now and that would clearly be a distraction and probably get in the way of my goal.

Thanks again.