One problem with the high conflict opponent is that they are unable to negotiate an issue to settlement. They have difficulty believing that if their opponent is willing to agree to something, that this could possibly be in their own best interests to agree as well, and so putting anything in writing and signing it is generally not done by a high conflict person unless it's unavoidable. If they have been presented with something in writing that they must follow, a statute, rule, court ruling or contract, they will look for a loophole to crawl out of the minute the thing becomes inconvenient. In general, they do not follow rules if it does not suit them, and they will try to find a way to re-interpret things to allow them to do as they wish.
Most attorneys recognize that agreements which are not in writing are subject to improper interpretation and very difficult to enforce. While unwritten agreements are often subject to honest mistakes and differences of opinion, the high conflict opponent creates a new level of meaning to “difference of opinion”. When you know that you are dealing with a high conflict personality, never rely upon a settlement until it is in writing, and recognize that if there are loopholes, the high conflict litigant will find a way to crawl through them.
I had one high conflict case where the judge made a temporary custody ruling. My client arranged to maintain the schedule of activities in the hour between school and when he could get home from work, that they had maintained during the marriage. However, upon realizing that my client was no longer going to support her lifestyle, his high conflict wife decided to manipulate the parenting issues, in the hopes that if she got sole custody, that she would get the house and support to maintain her lifestyle. She decided that the "right of first refusal for babysitting time" meant that she could insist on exercising parenting time during my client's week at the time the kids would usually have been at thier extracurriculars, play dates and tutoring sessions. She would show up and create a fuss with the tutors, coaches, and other parents, insisting that she had the right to this time with the children. The children, embarrassed by her behavior, had their grades plummet during the few months that she was doing this before we were able to get a hearing scheduled where a judge ordered her to stop.
In another situation, a judge at trial ordered that my client woudl get the house as long as she was able to re-finance it within 30 days, and if she could not, it was to be sold and the proceeds split. Her high conflict ex spouse refused to sign her refinance documents, and once 30 days passed, he had a realtor put a “for sale” sign in the yard and start marketing the house. I was able to get a quick hearing to order the high conflict opponent to cooperate with the re-financing. We suggested adding a clause into the judge’s original ruling to force the opponent to cooperate, and we got the judge to order the opponent to pay for her costs in getting this change, as the loophole he thought he had found in the judge’s order was clearly bad faith in trying to circumvent the order.
The first tactic is to put everything in writing. The second step is to enforce the contract. The third step is to look for ways to improve or add to the contract when the high conflict person believes they've found a loophole. Finally, the fourth step (which is only really available to lawyers and people who repeatedly draft contracts like landlords, but which hopefully does not happen for individuals in divorce situations), is to create a new form for a better contract to avoid this problem with new situations in the future. Everyone involved must understand that the high conflict person will take every ambiguity and try to use it to their own advantage, not caring who they hurt in the process.
This is not a problem exclusive to family law. I know a high conflict personality who thought he had found a loophole in his mother’s will and took his mother’s estate to pay off a house that had been jointly owned by himself and his mother. This high conflict personality’s siblings cannot recover the mother’s estate. After 2 years the courts finally traced what happened, but were unable to recover the funds, as the high conflict brother is now insolvent, having sold the house and spent the proceeds. Anyplace there is a contract, rule or written document, a high conflict personality who is constrained by it will look for a loophole. The high conflict loophole seeking is different than a person seeking justice by a reasonable means, bur rather the high conflict personality seeks personal advantage without regard to the effect on others. They will look to manufacture loopholes where none exist, and will seek out ambiguity rather than certainty.
In some rare situations (more frequently in parenting or ongoing support issues), documentation can often give cause to re-open litigation. In ongoing litigation, documenting the high conflict person's issues with an interim order can help your lawyer find evidence to resolve an issue. In a contract situation, you will need to get an attorney to review the contract to see if amendment or enforcement of the contract will help you.
How would the siblings whose brother looted their mother's estate handle this? Start with enforcing the contract, in this case, the Mother's will. These siblings should have immediately sought probate after the mother's death, and obtained liens/stays on the property so that the high conflict person could not have diverted their estate to pay off the mother’s house. Waiting is what allowed their brother to exploit a loophole he thought he had found. More importantly, during their mother’s life, they should have consulted with their mother to make sure her will had no loopholes, and everything she intended was clearly explained in detail, so that it would not have been vague enough for anyone to twist her intent and circumvent her choices. Some things are nearly impossible to fix, after the fact, and this is one of them. The lawyers involved will certainly change their will forms to close up the loophole that this sibling thought he found. But there may be no way to recover the money that this sibling wasted.
If you find yourself in litigation over a contract, and the judge offers an opportunity modify the contract, be sure to have more than one option for alternative clauses. Also, you will want a clear explanation of how the opposing party acted in bad faith and therefore costs of the litigation should be paid by the opposing party. Make sure you have followed all of the local and state rules required to set up for a ruling to be in your favor on the main issue as well as on the issue of awarding costs and fees. Understand that there are many jurisdictions which require specific citations and other “magic words” before your request for compensation for someone else’s bad faith can be granted. All the legal strategies in the world cannot fix this if you have not used the correct magic words for your jurisdiction.
As in all situations where you find yourself in litigation with a high conflict opponent, you need to get the help of an attorney who is familiar with the high conflict nature of this situation in order to maximize the possibility of winning on these issues.
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