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‍Litigation Abuse: Reactions‍

Piece researched and written by Fall '19/Spring '20 intern Magdalena D'Aiuto

DV LEAP continues to be concerned about the courts ignoring “ligation abuse,” so during my internship this spring, I spent time researching this issue further to help DV LEAP develop strategies to combat it. “Litigation abuse” is a term that refers to an abuser’s use of the legal system to keep a survivor in court as long and as frequently as possible. Custody cases involving domestic violence are particularly susceptible to this tactic due to the nature of these cases, which last a long time, involve multiple court appearances, and are alway subject to modification by either party.  

Because family law cases typically last so long and can be reopened so easily, they become a perfect opportunity for abusers to repeatedly force survivors back to court. Usually the survivor no longer lives with their abuser, so bringing the survivor back to court allows the abuser to find a new way to continue to exercise power and control over her. Finding an attorney, responding to motions, and attending hearings is incredibly draining—both psychologically and financially—and thus litigation abuse continues to be a widespread problem for survivors.

Despite these concerns, my research demonstrated that very few states have legal protections in place to explicitly help prevent litigation abuse in the family law context. In fact, 29 states do not have any legal protections against litigation abuse at all. Of the states that do have legal safeguards, only one state, California, expressly applies them to family law cases. While Pennsylvania does have a statute prohibiting litigation abuse, the statute applies to everything except family law cases. Courts in the remaining states that do have these protections invoke them in family law cases only on a discretionary basis because there is no explicit mandate requiring them to do so.  

Of those states with statutes to protect against litigation abuse, they do not seem to recognize the particularly harmful role it can—and often does—play in cases involving domestic violence.  Most of these states refer to litigation abuse as “vexatious litigation.” This choice of terminology is concerning for several reasons. First, leaving out the word “abuse” diminishes the impact of this kind of behavior by refusing to call it what it is. This language distances abuse from the courts, which could be interpreted as a refusal to acknowledge that the legal system could be manipulated and used to abuse other litigants. Second, calling it “vexatious” rather than “abuse” makes it sound like a mere annoyance rather than a tool that abusers use to maintain the cycle of abuse. Finally, by avoiding the language of “abuse,” the concept of “vexatious litigation” excludes the experience of domestic violence survivors. 

Furthermore, the concern that “vexatious litigation” does not address the experiences of domestic violence survivors is not merely semantic.  Just like other areas of the law that are supposed to help survivors, protections against “vexatious litigation” are sometimes actually used against survivors. For example, a North Carolina court made a finding of litigation abuse against a survivor after determining she made improper claims of domestic violence.  As a result, the Court granted sole custody of her minor child to the abuser. 

The many states that have failed to take meaningful steps to address litigation abuse actually stand to benefit from curtailing abusers from being able to manipulate the system against survivors. State governments and the judiciary are continuously worried about overburdened courts. But when it comes to litigation abuse, a prime example of overburdening courts, states have taken little action. DV LEAP is working to develop strategies to overcome this unacceptable oversight.