Proper pleadings are essential in all litigation, including family law litigation. Pleadings define the matters in issue and the scope of disclosure and questioning under the Family Law Rules. The pleading is one of the most important documents that will be prepared yet the art of a carefully and properly drafted pleading is becoming a lost art.
Pleadings should be concise and disciplined. In the family law context, it appears that the principles of proportionality and efficiency have prevailed over the technical rules of pleadings. Family Courts generously provide allowances for deficient drafting. However, there should be limits to the latitude and flexibility with respect to pleadings in family law cases. Pleadings can be riddled with argument and hyperbole under the guise of promoting efficient and affordable litigation. Pleadings are not memorandum drafted for purposes of a Case Conference or Settlement Conference where the temptation to plead evidence to provide a persuasive context or create atmosphere is strong and warranted. Pleadings in family law cases tend to be excessive, include rhetoric, editorializing and facts pleaded simply to create colour. Improper pleading adds delay and expense and can prevent the fair and just resolution of disputes.
The style of the pleading is left to the drafter; however, the use of evidence, immaterial facts, inflammatory and prejudicial language must be avoided. Such pleadings may be struck out under the recently amended Rule 1(8.2) of the Family Law Rules as a waste of time, an abuse of process or otherwise. Pleadings in the family law context should be civil and measured, which will promote settlements.
The rules of pleadings are of fundamental importance to the family law bar as the family law pleading may contain diverse claims for relief intersecting various areas of substantive law. The importance of preliminary legal research cannot be overstated to ensure that each element of all causes of action are properly pleaded. If a claim is not made in the pleadings, it usually cannot be raised at the trial of the matter or on an appeal, nor can evidence be presented if it is not relevant to the pleadings. Carefully drafted pleadings will help ensure that relevant evidence will be produced by the other party. If the matter proceeds to trial, the first exposure the trial judge will have to the case is the pleading.
Read full paper by George Karahotzitis and Melanie A. Larock – Pleadings: There Are Rules