It continually amazes me that folks fail to realize that the family court judge may ultimately read anything they commit to writing and hit send. Often these folks have been long-time participants in the family court system yet they still tend not to grasp this idea. Anyone in family court litigation, or anticipating family court litigation, should assume that a family court judge may read anything they put in writing to the other party or see anything they post to social media.
And folks post some really awful stuff–often without any insight into how awful it is. In the days before email, text messaging and social media, verbal communication was the primary way family court litigants argued. Plausible deniability–or outright lying–mitigated a lot of the possible damage of noxious communication: family court judges were reluctant to resolve minor “he said/she said” skirmishes. They have no problem resolving these disputes when they are literally “in black and white.”
Despite this, folks continue to write their (ex)-spouses and coparents obnoxious, harassing, offensive and vulgar missives. Often they don’t even realize they are doing so. I frequently review the parties’ communications with clients and they easily note instances of the other party writing offensive or inappropriate things without ever seeing that they give as good as they get–it’s as though they have some bizarre problem with their vision. Cases in which the parties communicate offensively to each other rarely end well for either, as the parties leave a family court judge no good or obvious solution. They do, however, provide attorneys tremendous financial benefit–if also a lot of headache–as the parties fight over every issue without resolution.
In contrast, the cases in which the other party is offensive but my client remains gentle and calm in his or her communications almost always end well for my client. Family court judges have no problem reading these communications and discerning which party is the problem. It’s always fun to observe offending parties attempting to justify these communications when testifying in court. They invariably make their problems worse. The “I called him a ‘son of a bitch’ ‘cause he’s a son of a bitch” defense has never, in my experience, convinced a family court judge of that fact.
Anyone in family court litigation, or anticipating family court litigation, should be gentle in his or her written communications to the other party. Deviation from this suggestion invariably provides the other party ammunition for trial.
Do not forget about voice mail messages. We recently incorporated this transcript of a voice mail message into an affidavit:
“I don’t know if you wanna see me lose everything I fucking have…I
don’t know what your problem is…are you doing this for [daughter] or are you doing this for you [mother]? Because when we talked on the phone a couple few weeks ago you seemed fine with coming to an agreement and now you just trying to ram it up my fucking ass. Why don’t you think about what you’re doing before you do it? Either that or I hope you got a good fucking lawyer.”