October 29, 2019 Domestic Violence

De-Weaponizing the Courts: Attorney’s Fees may Help Deter Litigation Abuse against Domestic Violence Survivors

By: Maleaha Brown

Abusers perpetrate domestic violence to maintain power and control over their partner through fear and manipulation. The abuse often continues long after the relationship has ended and commonly extends to civil courts, where many abusers will use any available means to exert power and reestablish control over survivors long after the relationship has ended.[1]  This method of harassment is referred to as litigation abuse.

Litigation abuse is a particularly manipulative method of domestic violence because it weaponizes the judicial process against survivors who must trust that the legal system will provide protection from their abusers. This can result in survivors losing trust in the courts and deter survivors from exercising their right to access the justice system.

Since disputes relating to marriage, shared property, and children provide a clear pathway to legal proceedings, litigation abuse is often perpetrated by abusers who are married to the domestic violence survivor or who share children or property with the survivor. In fact, child support and custody litigation are the most common legal processes through which abusers prolong contact with survivors.[2] Abusers, at times aided by counsel, will intentionally and excessively file frivolous lawsuits and motions to force contact with survivors who are compelled to return to court and face their abusers.

The most common abusive litigation tactic is to deliberately run up legal expenses by filing frivolous requests and demanding excessive or irrelevant information in the discovery process in the hopes of leaving the survivor without representation.[3] Many attorneys cannot continue to represent a survivor when faced with constant motions and court appearances, particularly if the survivor is not able to pay for the ongoing litigation. Consequently, survivors are compelled to make important concessions in family law cases, like giving up demands for child or spousal support or giving in to less desirable resolutions, out of fear of navigating the complex legal system on their own.

Once an abusive litigant’s tactics are recognized, attorneys and courts have remedies available to curb the abusive behavior. One such remedy is the ability to request attorney’s fees and costs when litigation is being misused as a tool of abuse. If the attorney is able to prove to the court that the abuser’s requests and motions are being filed without a good reason and are intended to harass the survivor, then the abuser could be ordered to pay the survivor for the fees and costs related to responding to the litigation. An order of attorney’s fees can also incentivize attorneys to retain survivors as clients despite the threat of litigation abuse by the opposing party.

Motions for attorney’s fees and costs can be a powerful tool to curtail litigation abuse. Awards of attorney’s fees encourage survivors to seek protection through the justice system and send an important signal to abusers and their attorneys that the civil court cannot be weaponized.

Maleaha Brown

Esq., Los Angeles, CA

Legal Aid Foundation of Los Angeles

ABA Section of Family Law Domestic Violence Committee Vice-Chair

    [1] Jessica Klein, How Domestic Abusers Weaponize the Courts, The Atlantic (July 18, 2019), https://www.theatlantic.com/family/archive/2019/07/how-abusers-use-courts-against-their-victims/593086/.

    [2] Mary Przekop, One More Battleground: Domestic Violence, Child Custody, and the Batterers' Relentless Pursuit of their Victims Through the Courts, 9 Seattle J. Soc. Just. 1053 (2011).

    [3] Legal Voice, Domestic Violence Manual for Judges, Appendix H: "Abusive Litigation and Domestic Violence Survivors."