Parties to a family law litigation generally believe, and justifiably so, that if something is going wrong, someone should be able to fix it—the attorneys, the police, or the courts. Unfortunately, there are some situations in family cases which, although troubling, cannot be fixed absent a change in the law, an escalation of the facts, or both.
Here is a fact pattern to illustrate this type of scenario: Harry and Sally, a married couple, are going through a divorce and are still residing in the marital home together with their children. Neither party has enough money to move out and/or neither party wants to be the one to vacate the home for sentimental, tactical, or any other reason(s). Sadly, Harry and Sally do not get along. Harry talks badly about Sally in front of the children and both argue incessantly with each other, but their arguments do NOT rise to the level of domestic violence. So, while the tension in the home is unbearable for everyone, there is no actionable domestic violence claim. To compound the problem, Harry is an alcoholic. He is often impaired at home in front of the children. He is setting a terrible example for them. Sally is concerned that Harry would potentially drive with the children while he is intoxicated. Sally wants something to be done. She cannot bear to live with Harry anymore and she is afraid for their children with his serious substance abuse issues. What can Sally do?
Unfortunately for Sally, the law and the facts in the above scenario do not support taking immediate action. While it no doubt shows poor judgment to be drunk in front of the children, and while he may be neglecting parental duties while intoxicated, it is not against the law for Harry to simply be intoxicated at home, and his intoxication alone, without more, does not rise to the level of being “emergent” for the courts to get involved on an expedited basis.
Moreover, if Harry’s behavior toward Sally does not rise to the level of actionable domestic violence (i.e. where Harry would be forced to leave the home upon the granting of a Temporary Restraining Order), there is little that can be done to prevent arguments between Harry and Sally or to realistically prevent Harry from badmouthing Sally in front of the children. Although Sally could file a Motion with the court to request that Harry vacate the residence prior to the divorce being final, it is unlikely based on the fact pattern above, without more, that the court would order such drastic relief.
Clients faced with this type of ‘bad but not bad enough’ scenario often rhetorically ask the same question: something REALLY bad has to happen for someone to do something? The unfortunate and tough reality of situations such as the one above is that, yes, absent a change in the law or escalating circumstances, such as Harry driving drunk with the children in the car or Harry committing an act of domestic violence, there is sometimes little that can be done by others to rectify a tense and undesirable situation between parties to a family litigation.
But, not all hope is completely lost. Even if Harry’s attorney (alerted by Sally’s attorney about the issues) cannot talk sense into him, the police cannot arrest him, and the courts will not grant emergency relief, Sally can still file a Motion in the normal course with the Court. The downside is that a Motion filed on a non-emergent basis will be heard, at the very least, 24 days after the filing date. So, while Sally is free to seek relief from the court, she will have to wait to be heard and hopefully in the interim, things do not go from bad to worse.