Considerations in reconciliation

Posted Monday, February 18th, 2013 by Gregory Forman
Filed under Divorce and Marriage, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Occasionally separated spouses in marital dissolution actions attempt to reconcile.  Even though it’s bad for my business when they do so, I generally encourage reconciliation

There are times when reconciliation is quite beneficial for my client. Perhaps my client was the Defendant and did not desire the separation in the first place.  Or my client may have received a disappointing outcome at the temporary hearing and realizes that reconciliation is preferable to the new status quo.

However there two occasions when the opposing party’s desire for reconciliation leaves me suspicious about that party’s motivation.  In such circumstances I counsel caution–counsel that is rarely heeded when my client desires the reconciliation too and is sometimes ignored to my client’s detriment.

The first instance in when the opposing party’s behavior during the litigation has been heinous.  While family court litigation is contentious by its very nature, this doesn’t mean that the parties need to behave dishonorably.  However domestic litigation is occasionally initiated with behaviors such as cleaning out bank accounts, running up the other party’s debts, or secreting assets.  Other times opposing parties file paperwork with the court making hurtful and inaccurate claims about my client.

Understanding that we are not seeing folks at their best, I still expect a certain level of honor from parties in a divorce action.  When I observe such dishonorable behavior, it’s concerning that my client is considering reconciliation.  Love is a powerful emotion but allowing this love to unduly cloud judgment is not–in my experience–a pathway to long-term happiness.  When one’s spouse has demonstrated him or herself to be so dishonorable, I think it best to end the tie rather than attempt reconciliation.  As I note, my clients don’t always agree.

The second instance when an opposing party’s attempt at reconciliation raises my alarm is when that party has achieved very disappointing results at the temporary hearing–especially when that party was the moving party for the motion.  More than once I have seen such “reconciliation” attempts be nothing more than a cynical ploy by the opposing party to seek an opportune moment to refile a marital dissolution action and hope for a better temporary hearing result.

I’ve had two cases in which the opposing party reconciled twice with my client before they achieved the desired temporary hearing result on their third attempt.  Needless to say, both clients were unhappy with the ultimate resolution of their divorces (and likely would have been much happier if settlement negotiations had taken place with the prior temporary orders in place).

Ideally and in theory on could make a “reconciliation agreement” a requirement of any reconciliation requested by the opposing party.  S.C. Code. § 20-3-630(a)(4) would seem to allow reconciliation agreements to resolve property issues and case law allows prenuptial agreements to resolve alimony issues, so it is likely a reconciliation agreement could limit future alimony claims.  Further one can condition reconciliation upon a dismissal that dismisses fault-based divorce claims with prejudice–which would require future fault divorce actions to be predicated upon future events.  However, no reconciliation agreement can resolve issues involving the children and, in practice, my clients have always rejected my suggestion that they have a court-approved reconciliation agreement before they reconcile.

While only the most cynical domestic attorney would discourage all reconciliation attempts, only a naive attorney believes all such attempts are sincere.  Cognizance of when these attempts might be mere manipulation can lead to valuable counsel for divorcing clients.

One thought on Considerations in reconciliation

  1. joe mendelsohn says:

    Good work. All too true.

    Joe M.

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