I am hurt.
A plague o’ both your houses! I am sped.
Is he gone, and hath nothing?

-Romeo and Juliet

The houses, in this case, are those of the feuding Montague and Capulet families, which caused Juliet so much grief and was the source of her ‘O Romeo, Romeo! wherefore art thou Romeo’ speech.  The phrase is commonly used to refer to two sides whose fighting has caused injury to others.

In the case of the family court, one of the jobs of a judge is to administer justice in an efficient manner.  When “high-conflict” cases (defined as cases which span many years and have multiple files) clog the courts, this becomes an irritation to judges who view these cases as wasting the time of the court, and in general, making their lives miserable.  Often such judges throw up their hands trying to figure out if someone is right or wrong and simply take a neutral position.  This is fair when, in fact, the parties are equally to blame.  This is a travesty of justice when one party is innocent, because it amounts to favoring the wrong-doer and results in a lot of bad decisions.

Although everyone thinks their cases are unique, self-employment cases all pretty much follow the same basic outline (I call it the “discovery shell-game”, other attorneys have called it the “rope-a-dope”)

  1. Self-employed spouse files for divorce.
  2. Self-employed spouse controls  business and finances.
  3. Self-employed spouse refuses to turn over information required by law to be turned over.
  4. Spouse (known as the “out” spouse) requests more information, files discovery motions etc.
  5. Self-employed spouse turns over garbage answers that create the appearance of cooperation without the actuality of it.  Said spouse insists on protective order that does nothing to help your client and can be used to stonewall process.
  6. Out spouse demands more discovery.
  7. Self-employed spouse claims they have complied with everything.
  8. Self-employed spouse creates delay after delay after delay.
  9. Out spouse demands attorney fees because self-employed spouse is out-spending them (often by quite a bit)
  10. Court denies fees or grants a disproportionate, unhelpful amount.
  11. Out spouse settles for meager, unfair settlement and waives all future claims.

The right attorney, if hired in the first phase of the case, may get a better result for the out-spouse.  Asset searches, third-party subpoenas and other methods can uncover helpful information.  Document requests, directed toward self-employed spouse, may uncover pieces of a puzzle but you will almost certainly never get anything useful no matter how many years you try.  The court can be a real ally if you get a judge who is capable of making good decisions.  The court can also act as an enabling force, essentially siding with self-employed spouse by failing to either understand or enforce the informal provisions of the family code or the Civil Discovery Act.

Although Judges limit discovery if they think it is being abused (because many of them come from a background unrelated to family law) usually opposition to discovery is because that information will hurt the party in possession of it.

“With the noble sentiment of “levelling the playing field” so that no party has an undue information advantage, the writers of the discovery rules created a multilevel playing field where the information-rich can kick the information-poor in the head and escape unscathed. “Discovery” is anything but … Hundreds of thousands of dollars to maintain the status quo, to preserve the information-rich at the expense of the information-poor. Thousands of lawyer hours to keep the discovery process as unrevealing as possible. The best minds of a generation thinking of new ways to manipulate, distort, and conceal.”.