Requests for Postponement in Divorce Action: Be courteous

Founded in 2017 by a Marine, Project Til Valhalla has donated more than $1 million to #Mission22 as part of the fight against veteran suicide. This year, the project launched with a simple message: “Be kind.” The foundation of the message is straightforward: “With every act of kindness, we make the world a little better.”

On the subject of kindness, we turn to requests for postponement in marital practice. Requests for adjournment by a competing attorney (aka your opponent) are routine. Sometimes you may have a double booking. Other times, you may find yourself bogged down in one matter and need to put off another. Or you can request a delay so you don’t miss any important family event. And then, there are times when a postponement request is made for personal reasons, whether it be due to physical or mental health issues.

The question becomes whether, as the recipient of the request for deferment, you say “yes” or “no” and under what circumstances. And again, we were not given any training in law school on how to answer this question.

To assess how requests for adjournment are handled in marital practice, this author urges you to read and learn from what happened in the matter Tucker v. Lantmann Unipack USA, (USA District, Maine, 5/30/23). At first glance, you might wonder how a Maine federal court decision involving an age- and sex-discrimination lawsuit against an artisan bread and Danish pastry company has to do with requests for deferrals in New York state marriage proceedings. But it would be a mistake to ignore this decision, which was covered in this journal in June 2023.

In the days of commercial litigation, I experienced firsthand how the practice of law can be a ruthless forum. A reputation for lack of mercy is no badge of honor. You can be a very passionate advocate while simultaneously appreciating the fragility of the human condition in the process.

In fact, when the nightmare of coronavirus hit me in January 2021, a colleague advised me to clear out the floors and push back all my deadlines immediately for several months. And when I immediately asked for a delay of up to three months, not knowing what my condition would be, none of my powerful enemies blinked. The unanimous answer was “yes”. You know who you are, and I am forever grateful for your kindness during that time.

Perhaps that is why I am so appalled by what happened in me Tucker issue. Losing someone very special to me to cancer certainly heightened my strong reaction. in TuckerMs. Rinda Tucker sued her former employer (Lantmännen) for age and gender discrimination. I will not burden you with all the procedural nuances; In short, in the context of Lantmannen’s application for summary judgment, Tucker’s attorney, Jay Lorganer, failed to provide a statement of additional material facts in a timely manner because he was being treated for a recurrent cancer.

When Loranger applied for permission to present his statement of material facts, defendant Lantmannen objected. Specifically, “While Lantmännen expresses sympathy for the medical problems Loranger is facing, he strongly objects to the motion for late submission.”

Before we go any further, I can’t help but notice that “strong stuff” sounds eerily similar to Demi Moore’s ferocious – and legendary – disastrous objection in “A Few Good Men.” Whether or not Judge Woodcock Jr. had that in mind when he wrote Tucker Resolution, I do not know.

Lantmännen bemoaned the “seven months’ delay” as the basis for denying Loranger’s request for leave. Lantmanen concluded that the delay only meant that Tucker’s attorneys “did not actually read the defendant’s response.” Finally, Lantmännen claimed that it would be biased “by having to respond to the plaintiff’s statement on additional material facts; by having to re-evaluate its strategic decisions and rewrite its response; and incur additional delays.” , horrified by the additional information contained in the record, whether it be evidentiary materials at trial or a statement of additional material facts regarding the request for summary judgment.

Now, let’s get to the real-world background that will put it all into context: Loranger has been diagnosed with cancer, works part-time, and is “actively undergoing chemotherapy when[Tucker’s]opposition to the Urgent Rule movement was due.” In April 2022, Loranger developed cancer again, and his treatment plan included 12 two-week cycles of chemotherapy, covering a total of 24 weeks, and radiation. Loranger stated that “he and his oncologist decided to pause the last two cycles because he physically and mentally needed a break from treatment”. Loranger stated that “he and his oncologist decided to put treatment on hold” and that he was “exhausted when treatment was finished”. Tucker The opposition.” The court found that Loranger’s “recurrence of cancer and his need for intensive treatment” was “apparently correct and fit the concept of justifiable negligence.”

The court concluded that “Attorney Loranger’s excuse is more compelling than simply ‘inattention or negligence’, which does not ordinarily constitute justifiable negligence.” More importantly, citing an earlier decision of the same court, the decision states: “Lawyers are human beings; They make mistakes and omissions that can amount to neglecting their professional responsibilities. But that does not make all this neglect “forgivable”. Something more is required. Here, cancer and its treatment fulfill the requirement of “something more”.

It should therefore come as no surprise that the court “concludes that Loranger’s negligence was likely due to his incapacitation or distraction by his cancer recurrence or treatment.”

There is something troubling about the fact that rather than suggesting that Loranger’s missed deadline was “excuse me,” the law still feels the need to characterize it as an excusable “negligence.”

Negligence means careless wrongdoing. Loranger has not been implicated in any wrongdoing.

Of course, there will be times, in a divorce proceeding, when you receive an adjournment request that merits a “no,” for example, an adjournment request intended to enable one party’s bad behavior to continue. Just one extreme example is a father who refuses to pay child support but wants to postpone the return date for the mother’s application for child support immediately; This kind of adjournment request deserves a “no”.

In law school, we learned the “reasonable person” standard in the context of negligence (tort) claims. Specifically, claims of negligence should be adjudicated by asking what an ordinary person of basic intelligence would do under the circumstances.

With that in mind, when your opposing attorney asks for a delay in divorce action, ask yourself this: “What would a reasonable person do?” If you find yourself struggling with an answer, go back and read Tucker resolution. Lessons to be learned from Tucker You will undoubtedly get the correct answer.

Alan Feigenbaum He is a counselor in empty Rome.