Leonardo Angiulo: Difficult Divorces Can Be Even More Expensive Than You Think
Monday, September 08, 2014
According to facts contained in the opinion published on September 3, 2014 Mr. and Mrs. Kelso shared two children and a home when one of the parties filed for divorce. After filing, a series of events unfolded that are, unfortunately, common in courts all across the Commonwealth. Mrs. Kelso made allegations of domestic violence resulting in criminal charges, filed for a restraining order and testified to a history of abuse by Mr. Kelso during the marriage.
However, her story unraveled during the court proceedings. While five specific claims of misconduct were made against the husband, no witnesses at the trial supported them. After considering the evidence, the trial judge ruled that inconsistencies in the wife's testimony resulted in a lack of credibility. In addition, while the husband was alleged to have entered the wife's bedroom and assaulted her in June of 2009 the surveillance video of the house on that night did not support that assertion.
According to the SJC, the husband incurred significant expense to prove his case including the costs of hiring a forensic video expert; and the wife not only had to pay that bill, but also had to pay out a portion of the marital assets because of her “uncooperative behavior at trial and because she forced . . . [the husband] to defend himself against false allegations of abuse.” To say it another way, her choices ended up costing her money.
While all this drama might make for good television, there is a particular issue of law that put the case in this week's spotlight. Namely, the husband went on to file a civil lawsuit against the wife after the divorce. In it, he claimed abuse of process, defamation, as well as intentional and negligent infliction of emotional distress. If the husband was successful, the wife could be liable to him for monetary compensation for any damages he sustained as a result of her behavior. Before that could happen, the trial judge dismissed the suit claiming the divorce resolved all claims between the parties under a theory known as issue preclusion and the husband appealed.
Issue preclusion and claim preclusion are legal principles that say once a thing is heard in court, the case is over and cannot come back. If it appears that you have put a new label on an old issue, the opposing party may file a motion to dismiss and, like Mrs. Kelso did, try to get the matter thrown out. In this case, however, just because the divorce entered doesn't mean the pain has ended for these litigants. More specifically, the SJC decided that whether the husband was entitled to recover damages for the wife's behavior during the course of proceedings was a live issue that could only be decided at trial.
In total, the Kelso case could serve as a fair reminder to parties on either side of a divorce. While going through this process, it can be as easy or hard as you choose to make it. And as difficult as sharing holidays can be, it's nothing compared to having to pay your ex even more.
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