Reprise: The Role (or not) of Boilerplate Defenses in Divorces

August 26, 2016 § Leave a comment

Reprise replays posts from the past that you may find useful today.


March 4, 2011 § 5 Comments

boil•er•plate. n 3.  Inconsequential, formulaic or stereotypical language.

Here is the SECOND DEFENSE from a pleading styled Answer and Defenses to Complaint for Divorce filed last September in my court:

The facts having not been fully developed, the [defendant] would affirmatively plead any and all affirmative defenses as may be applicable in this action:  accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Whew.  Fortunately, after a spate of such monstrosities having been filed last fall, they dropped off drastically after I threatened to require hearings on all of those defenses before any temporary hearing.  After all, don’t we need to know whether the adultery was a result of an injury by a fellow servant before we proceed?  Or was the plaintiff contributorily negligent when the defendant slipped off to the Motel 8 in Philadelphia with his paramour?  We need to know these things.  Or, I guess we need to know them because they were pled.

Some of these defenses, foreign as they are to chancery court, do stir the imagination …

  • Accord and satisfaction should be available when the defendant claims that the plaintiff should be happy with her Honda automobile.
  • Assumption of risk.  If you knew she was crazy when you married her, well …
  • Failure of consideration.  Most people are pretty inconsiderate of each other in the context of the hostility that leads up to a divorce, but should that be a defense?
  • Failure to mitigate damages.  My personal favorite.  Shifts the whole burden of blame, doesn’t it?
  • Laches.  So much for the public policy of Mississippi that encourages folks to stay in a marriage as long as possible.
  • Lack of capacity to commit the offense.  This is actually a viable defense to some marital offenses involving biological functions, but how does it apply in equitable distribution?
  • Pre-existing injuries or damages.  Another one with some wondrous possibilities.  “She hasn’t been harmed by my moving in with my girlfriend and leaving her penniless because she was already broke.”
  • Release.  As in “Please release me; let me go, I don’t love you any more?”  Nah.
  • Res Judicata.  Don’t laugh.  There are possibilities here for folks who have remarried each other after a prior divorce judgment.
  • Statute of frauds.  Since Mississippi did away with common-law marriages in 1956, this one is a long shot today.
  • Statute of limitations.  The lawyer who discovers how to make SOL apply in a divorce case will have struck gold.
  • Waiver.  “But she told me it was okay for me to go out with Doris.”

Maybe you can come up with some imaginative offensive or defensive theories of your own.  If they’re as goofy as these, though, you’d probably be better off keeping them to yourself.

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