Vexatious Litigation Used in Divorce

By Beverly Bird

Updated March 19, 2020

Businessman watching frustrated businesswoman on desk

Comstock Images/Stockbyte/Getty Images

Divorce is an emotionally charged process that often brings out the worst in people -- they may find themselves fighting for their lives, their livelihoods and their children. Sometimes anger and frustration with the legal system can spill over and cause them to go overboard. Vexatious litigation -- sometimes called frivolous or egregious litigation -- may be the result. Courts don't take kindly to it.

What It Involves

The phrase "vexatious litigation" is commonly used when a spouse repeatedly files motions as part of divorce proceedings, dragging the other spouse into court over and over again to readdress issues that have either already been resolved, or are of minor importance. For example, your spouse might file a motion, asking the court to make you move out of the marital home so she can have exclusive use of the dwelling. If the court rules against her, she might file a motion a week or so later, asking the court to order you to pay for her $500-a-night hotel room, alleging that she had to move out because living with you was intolerable and the court wouldn't make you leave. Vexatious litigation also can involve your spouse trying to impede the proceedings because she doesn't want the divorce. She might refuse to answer discovery requests, to appear for court-ordered mediation, or otherwise do what must be done so your matter can proceed.

Fighting Hard vs. Fighting Dirty

Judges don't expect you to concede every contested aspect of your divorce without a whimper. Charges of vexatious litigation are rare, because you're allowed to defend your interests, and you can do so with every resource at your disposal. Vexatious litigation involves numerous motions or requests for court involvement for no justifiable reason. If your soon-to-be ex files a motion one month to set a visitation schedule while your case is pending, then files again a month later to establish a child support order, it's unlikely that the court would view this as vexatious -- these are reasonable issues that must be addressed as part of most proceedings. To prove vexatious litigation, her filings must be without merit -- meaning that there is no good or logical basis for them and they're intended mostly to cause you stress or to browbeat the court into seeing things her way. In some states, the court may let your spouse off the hook if she hired a shark of an attorney, and if she can prove that she filed the motions on his advice.

Sanctions and Repercussions

The sanctions for vexatious litigation can be relatively benign or far more serious. Often, courts order the offending spouse to pay the other's attorney fees and legal costs, because he would not have incurred these fees if he hadn't had to defend himself against frivolous motions. A more extreme remedy would be to bar the vexatious spouse from filing any more motions in current or related proceedings. In some states, the innocent party can file a separate lawsuit, requesting damages.

The Court's Dilemma

When a spouse is handling her divorce pro se, without the help of an attorney, this can complicate the issue. Judges are not required to make any special accommodations for litigants who choose to represent themselves. Some do, however, because when it comes to divorce, making a procedural error can have long-lasting consequences. A judge might give an unrepresented, vexatious spouse a little leeway because she may not fully understand that what she's doing is wrong. If she continues her vexatious filings after being instructed to stop, however, judges are usually within their rights to prohibit any more filings. On one hand, this goes against the basics of the judicial system, but on the other, there may be no other available remedy. Such bars usually only apply to motions relating to the same case, such as to rehash custody issues or alimony over and over again. Litigants generally cannot be barred from a fair hearing on other, unrelated matters.