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Monday, September 29, 2008

Some "Petition for Rule to Show Cause" Nuggets

If you practice in the domestic relations field you need to be an expert on petitioning to hold a party in contempt of court and defending your client against being held in contempt of court. This is the most common pleading you'll deal with in the family law field. Do you know the 4 types of contempt cases? Well...indirect civil, indirect criminal, direct civil, and direct criminal of course. 90% of the time I'm dealing with indirect civil, in other words the alleged violation of the court's order occurred outside the purview of the court and standard of guilt or violation is a preponderance of the evidence standard.

So I had three contested Petition for Rule hearings on Friday morning so I have some fresh viewpoints to share...

First, you will (almost) NEVER successfully defend a party against a Petition for Rule without non-verbal or tangible evidence to support your position. I've had a couple of these lately where the client I was defending had pretty good "sob" stories...real homeless, sort of destitute tales of woe but little or no written support for his/her verbal testimony. I just don't think judges believe these tales even if they're true. In one of my recent cases I had a corroborating witness but still no paper records of tax returns of financial woes. And I'll acknowledge that the big problem here is that these clients keep terrible if any records so there's not too much you as lawyer can do.

Second, don't file your Petition for Rule until your case is really ripe. I know I've done this before as a younger attorney and I saw it Friday too. Granted this is subjective and every case has its unique facts but you shouldn't file your Petition against the dad who's legitimately unemployed and has missed a couple child support payments. I had one of these Friday, my client had a ton of legitimate doctor's records regarding his injuries over a couple years and he was some $1,300 behind in child support. What client wants to NOT have the other party held in contempt (so no jail and no attorney's fees) and all you've gotten is a judgment for $1,300?? Probably a money loser for the client after they pay theirlawyer.

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