Archive for the ‘Litigation Strategy’ Category

Small bites on visitation

Absent a showing of a “substantial change of circumstances” one is allowed to bring only one motion for temporary relief on a particular issue prior to trial. Typically these motions are brought early in the case–some attorneys almost reflexively file these motions with their initial pleading. However whatever relief the client obtains at the temporary […]

The problem in filing updated financial declarations at final hearings to approve agreements

Family Court Rule 20(a) requires “a current financial declaration” “be served and filed” “[i]n any domestic relations action in which the financial condition of a party is relevant or is an issue to be considered by the court.” A problem arises when parties negotiate an agreement involving financial issues while relying on old financial declarations, […]

Script for defeating the “unclean hands” defense in contempt prosecutions

I don’t believe “unclean hands” is a defense to contempt. If an opposing party seeks to hold my client in contempt for conduct that party has engaged in, I believe proper procedure is to bring one’s own contempt action. If that party’s conduct has prevented my client’s compliance with a court order, I think the […]

“I don’t know/recall” may be the best interrogatory or deposition answer you can get

I lectured last week to recent law school graduates about family law discovery. Part of this lecture discussed Rule 37(a)(3), SCRCP which reads: “Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.” I remarked this rule meant that they should not […]

Why join stepparents as opposing parties to family court proceedings?

The short answer is discovery. While I understand the logic of joining stepparents as parties to custody or visitation proceedings when that stepparent will not behave around the child(ren), I remain convinced it is bad strategy. Not only does it double the number of adversarial parties, it allows the stepparent to participate in all the […]

Why not divide up legal custody?

Deciding who will have legal custody–final decision making authority for a child–can be one of the more contentious issues in custody cases. Often one parent wants final decision making authority to “validate” his or her superior parenting. More often, and not mutually exclusive with the desire for validation, one parent wants the right to control […]

Using opposing parties’ evasive discovery responses against them

Often opposing parties will respond to discovery with evasion: giving answers that respond to some, slightly different allegation; providing lengthy responses to “yes/no” questions without really stating “yes” or “no”; citing a lack of knowledge to answer a question that, given their litigation posture, they really should be able to answer. The Rules of Civil […]

Acknowledging the obvious

In responding to discovery or pleadings, some of the responses, if accurate, will bolster the other party’s case.  Clients, even (especially) sophisticated clients, often balk at issuing a formal response that, although accurate, bolsters the other party’s case. Sometimes these clients will want to issue an evasive response. Occasionally they will want to issue an […]