BPDFamily.com

High-conflict Family Law Matters and Personality Disorders

Maultsby, B., Samler, K. (2013)

www.gbfamilylaw.com/wp-content/uploads/2014/03/Beth-High-Conflict-Family-Law-Matters.pdf

This article was written by lawyers for lawyers -- it was intended to guide lawyers who find themselves representing clients with high-conflict (soon to be ex) spouses, but it provides some really good points to help us manage ourselves in divorce and custody disputes. The text has been lightly edited to speak to us, the clients, but it was written by lawyers for lawyers. It might even be a good article to print out and give to your lawyer to make sure you both understand what it means to take an assertive approach.

Take an Assertive Approach.

Because the nature of the family law court process seems to reward combative thinking and behavior, it often results in the reasonable person who attempts to use cooperative and problem solving skills to risk losing their case. If the target of the high conflict person takes a passive approach, then the high conflict person’s allegations appear to be unchallenged and therefore true. On the other hand, if the target responds too aggressively, then they may give the appearance of being the abusive, controlling person that the high conflict person has accused them of being. In the end, taking an assertive approach to a high conflict case is the most effective way to respond to false allegations.

Be assertive by:

• Immediately documenting the other party’s abusive behaviors, focusing on actual behaviors and statements.

• Avoiding acting out of frustration and anger and thinking strategically, not reactively.

• Being honest and admitting their own shortcomings.

• Gathering evidence regarding the high conflict person’s false statements, pattern of abuse and the truth about themselves.

• Quickly providing credible factual information to the court.

• Trying to be as perfect as possible in every way during the court process. You do not want to give the high conflict person something to legitimately use against you.

• Preparing for the lies. You may have the truth on your side but you need to be prepared for the lies.

• Exposing false statements and serious misbehaviors of the high conflict person with credible evidence. Take depositions of the high conflict person and their negative advocates.

• Not being emotional during the court process. Emotions in family court can be seen as a sign of a psychological problem.

• Making a BIFF (brief, informative, friendly and firm) written response to communications from the high conflict person.

• Being willing to proceed to court to set limits and consequences to the high conflict person’s behavior.

Preparing for the Custody Evaluation.

The custody evaluation may be the most important piece of evidence that the judge and jury consider in determining the child related issues. For this reason, it is important to provide the evaluator with sufficient factual evidence for them to determine the true facts and make recommendations in the best interests of the children. The evaluator needs to be provided with:

• Accurate, verifiable and organized documents and information.

• Responses to each allegation that the high conflict person makes against your client.

• Collateral sources that do not have a vested interest in the case but have information that confirms your version of the facts.

The non-BPD party needs to be prepared to not complain to the evaluator or slam the other party. If they do, then they run the risk that the evaluator will view both parties as being difficult.

Settling Out of Court.

A case can only be resolved by an agreement or by a trial. To reach an agreement, both parties have to be willing to make compromises. Parties who are rational and reasonable want to end the adversarial process which is both emotionally and financially costly, as quickly as possible, and not prolong it. However, when dealing with a high conflict person, it is often unlikely that a settlement can be reached, or at least, not until there has been a great deal of emotional and financial expense because these individuals are not rational or reasonable.

High conflict people are not good at negotiation because of their all-or-nothing thinking. They will refuse to compromise to avoid feeling abandoned and/or they feel that they are superior and should receive much more than is reasonable. At the same

time, the high conflict person will pressure the other party to give them much more than a court would give them because of the high conflict party’s belief they were abandoned or are superior. When trying to settle with the high conflict person, you may also encounter “oppositional withholding.” In oppositional withholding, if there is something that the other party wants, no matter how small or insignificant, the high conflict person will not agree to let them have it, thereby delaying resolution of the case. At the same time, giving in and making concessions will often not expedite getting the case finalized. Instead, by giving

in to the high conflict person’s unreasonable demands, you may have just set a dangerous precedent which will only fuel the high conflict person to make more unreasonable demands. So, while it is tempting to just give in, long term resolution is not reached by this method.

In the event that you are able to reach a settlement out of court, then it is critical that the agreement be written in an enforceable manner and as specific and as detailed as possible. By doing so, you can avoid the high conflict person trying to change or add terms to the agreement and causing delay in getting the order entered. Also, your attorney will need to draft the agreement with the thought that the high conflict person will try and violate the agreed to terms.

How to Defend Against the High Conflict Person with BPD.

It is not only difficult to diagnosis BPD, but it is also difficult to defend against it. So, it is important that you gather information and documents to help the judge or evaluator determine that the spouse is indeed suffering from BPD. If you believe that the opposing spouse suffers from BPD:

• Prepare for the possibility of false allegations. You need protect yourself from false allegations. You client should not be alone with the spouse with BPD and they should not have telephone conversations that are not recorded or witnessed by a third party.

• Take caution to be on the defensive and offensive at the same time and avoid putting yourself in harm’s way.

• Do not take the bait of the spouse with BPD. You need to remain above the fray and have clean hands at all times. You don’t want the judge and/or evaluator to believe that you are engaging in “mutual combat” with your spouse.

• Outline the BPD spouse’s behavior that best identifies them as having BPD, such as self-destructive behavior, false allegations, wasting of assets, sexual affairs, etc. Be as specific as possible and give this information to your lawyer. You need to know dates, locations, times and the names of the persons that can provide information on each of these behaviors.

• Think about sources from which you can gather documents to reveal the lies and distortions of fact by the party with BPD.

• During this process, don’t let your attorney reveal to the opposing attorney that you believe his or her client is suffering from BPD – this revelation may impede your ability to gather much needed evidence.

• Have your attorney ask opposing counsel for releases so you can get documents directly from a source – if the opposing attorney does not yet know what you are looking for, they may be more likely to provide the releases.

• Send a request for production of documents to gather documents from the opposing party.

• Have your attorney identify and interview witnesses that can provide information on the behavior of the party with BPD. Get the witnesses to provide written statement about the facts they know.

• If you are involved in a custody evaluation, outline the behaviors for the evaluator and then have your attorney provide the evaluator with the documents and witness statements to support your position.

• Ask your attorney to help you prepare for the custody evaluator. Do not “slam” the other spouse and do not pronounce that you have diagnosed their spouse as having BPD. You need to stick to just the undisputable facts.

• If you will be testifying at a hearing or in trial, again make sure you do not “slam” the other spouse and stick to just the facts. If you stoop to bad mouthing the other parent, you will lose credibility. And more importantly, the judge will not be able to ascertain that both parties are not equally to blame for the conflict or who is telling the truth.

What to Expect at a Trial with an Individual with a High Conflict Personality

The more successful that you and your lawyer are in presenting facts to the court about the high conflict person’s behavior, the more extreme the high conflict person’s attack will be on you and your client. The following are the primary problem areas in a trial with a high conflict person:

• Procedural manipulations – if the opposing parties attorney has become a negative advocate, he or she will often improperly give notice of a hearing, seek continuances and miss discovery deadlines.

• Disputes over evidence – the high conflict person will not be forthcoming with documents responsive to discovery requests and they will not agree to the pre-admission of documents that are clearly admissible.

• Trouble with testimony – the high conflict person will seek to get in hearsay testimony to bolster their lies. They will seek to present testimony on issues that are the subject of a motion in limine and excluded by the court. They will attempt to have their experts testify to matters that they are not qualified to testify about.

• Emotional persuasion versus factual persuasion – the high conflict person will want to flood the judge or jury with emotional persuasion. However, the longer the trial, the more opportunity your attorney will have to present factual testimony versus emotional testimony. It is important to get as many facts presented as possible so that the court does not make decisions based on emotional persuasion.

• Obtaining enforceable orders – if the trial does not result in very specific enforceable orders, then not much has been gained. In order to stop the behavior of the high conflict person, the orders will need to be very detailed and specific. If there are loopholes in the order, then the high conflict person will use it as a justification for non-compliance.