Hess Family Law | Blog

In the case of Huntley v. Huntley, Charles Huntley discovered just how costly it can be if you fail to affirmatively request relief in your pleadings. 

After twenty-eight years of marriage Lydia Huntley filed for divorce. In Lydia’s Complaint she requested, among other things, a monetary award, alimony, a portion of the marital share of Charles’s retirement benefits, and attorney’s fees. Charles filed an Answer in which he denied Lydia’s entitlement to a monetary award and asked the court to deny Lydia an award of alimony. Charles did not request any affirmative relief aside from the grant of a divorce nor did he file a Counter-Complaint. Although Charles subsequently requested a portion of Lydia’s retirement benefits at trial, because Charles did not include such a request in his pleadings, the trial court denied his request. 

On appeal, Charles argued that the trial court erred in refusing to divide Lydia’s retirement benefits. He also contended that Lydia was not prejudiced by his failure to request an equitable division of her retirement benefits because they were included on the parties’ Rule 9-207 form as marital property. The Court of Appeals disagreed finding that the only relief Charles requested in his Answer was that the trial court “grant him a Divorce, and deny [Lydia] alimony.” Charles never filed a Counter-Complaint or an Amended Answer requesting that the court make an equitable division of Lydia’s retirement benefits.

The Court noted that although Lydia listed her retirement assets on form 9-207, the facts stated on this form are “admissions by the parties in a judicial proceeding” and admissions are not the same as pleadings.   Lydia’s request for a portion of Charles’s retirement benefits did not automatically put her on notice that Charles would request a portion of her retirement benefits.  The only way Lydia would be aware of this request would be if Charles indicated such in his pleadings. Charles could have amended his pleadings up until fifteen days prior to trial, but he did not. If Lydia had known that Charles was requesting a portion of her retirement benefits she may have used a different trial strategy and/or requested alternative relief. 

The lesson learned from this case is that it is essential to put the other side on notice by including any and all relief you want in your pleadings.  If you are considering filing for divorce, and/or have been served with divorce papers and need to file an Answer and possibly a Counter-Complaint, Hess Family Law can provide strategic advice based on your particular situation and goals.

Published in Divorce
Friday, 02 February 2018 18:14

Is My Spouse Alienating the Kids?

What is parental alienation?  Parental alienation is when a parent uses psychological manipulation of a child to damage his or her view of the other parent, often by speaking negatively about the other parent, keeping the child from seeing the other parent, and/or continually questioning the child about the personal life of the other parent.  Because of these behaviors, the child often allies him or herself with one parent and rejects a relationship with the other parent without legitimate justification.  While not always, parental alienation occurs in high conflict divorces when a parent cannot separate conflict in the marriage from the well-being of the child.  

For some divorcing or separating couples, parental alienation is a concern.  In an article for DivorceMagazine.com, Russell J. Frank, Esq. discusses how to recognize parental alienation.   Behaviors such as listening in on a child’s phone conversation with the other parent, excluding or withholding information about the child from the other parent, using the child as a spy, and refusing to grant reasonable requests to a change in the custody schedule, may lead to parental alienation.  These behaviors create a moral dilemma for the child as they struggle to remain loyal to both parents.

Sharing inappropriate or misleading information with the child about the divorce and/or the other parent is another red flag. Allowing the child to determine whether or not they see the other parent, despite having a timesharing schedule also leads to alienation. These behaviors can be emotionally and psychologically damaging to the child.  If allowed to continue, the child may become physically, emotionally, and psychologically, separated from the other parent.  

If you suspect that your spouse is alienating the children, it is important to seek professional advice from a licensed therapist and/or a family law attorney such as Hess Family Law to discuss your specific case and concerns.

Published in Custody

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