Family court is not ordinary litigation. In a business dispute, the parties may fight hard, settle, and never see each other again.
In divorce and child custody disputes, the parties often have to deal with each other for years to come. They exchange children every week, make school, health care, and other decisions pertaining to their children together, attend graduations, weddings, funerals, and family emergencies. Even when no children are involved, financial obligations such as alimony may keep the parties connected long after the decree is entered. The case ends. The relationship, in some form, usually does not.
Yet family court often operates as if it were built for total war.
This is especially true in motions for temporary orders and motions to enforce or hold a party in contempt. Temporary orders decide who stays in the house, who pays support, who has the children when, who pays what debts, and what the family’s life will look like while the case is pending. Contempt and enforcement proceedings accuse someone of violating court orders, sometimes willfully, sometimes foolishly, sometimes because the order was unclear or impossible to follow.
These hearings are contentious by nature. Clients are scared and angry. Lawyers are defensive. Affidavits and declarations are often written to wound, not to clarify. Judges and commissioners are left to sort through exaggeration, selective facts, wounded pride, legitimate fear, financial panic, and sometimes outright nonsense.
So here is a modest proposal: before an attorney argues his or her own client’s position, the attorney must first state the opposing party’s position fairly.
Call it the Reciprocal Argument Rule.
The rule would be simple:
Before presenting argument on a motion for temporary orders, enforcement, or contempt, each attorney must briefly and fairly state the opposing party’s requested relief and the strongest good-faith basis for that request.
Counsel need not concede disputed facts or legal conclusions.
And the court may excuse or modify the requirement when necessary to prevent intimidation, abuse, delay, or unfair prejudice.
This is not asking lawyers to betray their clients. It is not asking lawyers to agree with the other side. It is not asking lawyers to concede facts that are disputed. It is asking lawyers to prove they understand the actual dispute before they attack the other side’s position.
The Rule in Action: Temporary Orders
Take temporary orders, for example. Father wants equal parent-time. Mother wants the children to remain primarily with her in the marital home. Under the Reciprocal Argument Rule, Father’s lawyer might have to begin by saying something like this:
“Your Honor, Mother’s position is that the children need stability during the case, that they have historically spent more weekday time with her, and that remaining in the home will reduce disruption to school, homework, and routine.”
Mother’s lawyer might then have to say:
“Your Honor, Father’s position is that he has been an active and capable parent, that temporary orders should not create a de facto final custody arrangement, and that the children benefit from substantial time with both parents.”
Now these examples are intentionally brief. They illustrate the idea; they are not the full method. In real advocacy, a lawyer who fairly states the other side’s position would need to do so with much more granularity. That is where the value of the exercise appears.
A vague summary may show basic comprehension. A granular summary shows whether the lawyer truly understands what is being argued, what is being disputed, what is being assumed, and what relief is actually being requested. The more specific the reciprocal argument becomes, the more transparent the parties’ positions become. Broad accusations shrink into concrete claims. Emotional narratives separate from provable facts. Real risks can be distinguished from exaggerated fears. Disagreements that first appear massive often narrow into smaller, more manageable questions.
Neither lawyer (or his/her client) has conceded the case. Neither side has weakened his/her argument. Both have done something truly useful (if they do it right): they have cleared away some (even most) of the fog. They have helped identify what is truly disputed and what is merely being argued past, around, or through.
Contempt, Context, and Proportion
The same rule could help contempt and enforcement hearings. These hearings often devolve into accusations of bad faith. Sometimes that is justified. Sometimes a party really is violating orders and daring the court to do something about it. But not every violation is the same. A missed payment due to job loss is different from a refusal to pay. A late exchange caused by traffic is different from a parent intentionally withholding the children. A confused reading of an ambiguous order is different from open defiance.
Under the Reciprocal Argument Rule, the moving party’s lawyer would have to identify any fair explanation for the alleged violation. The responding party’s lawyer would have to explain why the violation looked harmful, disruptive, or willful from the moving party’s point of view.
That kind of forced realism would help courts distinguish between noncompliance that needs correction and misconduct that deserves sanctions. It would also reduce the court’s workload without reducing the quality of the court’s analysis. Indeed, it would improve the analysis. Judges and commissioners would not have to spend as much time cutting through drama, posturing, selective outrage, and lawyer-generated fog just to figure out what the real dispute is.
When each side is required to state the other side’s best fair argument, the court gets to the useful questions faster: Was there a violation? Was it willful? Was there a reasonable explanation? Was anyone actually harmed? Is correction enough, or is a sanction justified? The court can then ask fewer questions, but better ones—questions that are more incisive, more relevant, and more material to the decision that actually has to be made.
The court’s time is then spent deciding the merits, not excavating them.
A Litmus Test for Good Lawyering
The Reciprocal Argument Rule would also expose bad lawyers quickly.
A lawyer who gives a sarcastic, distorted, straw-man version of the other side’s argument would damage his own credibility before he even began arguing. Judges and commissioners are usually good at detecting when a lawyer is playing games. The court could simply interrupt and say, “Counsel, that does not sound like a fair statement of the undisputed facts or the opposing party’s position. Try again.”
Even better, the court could ask opposing counsel, “Was that a fair summary of your position?”
That does not mean the lawyer must meekly accept the court’s criticism. If counsel believes the statement was fair and accurate, counsel should be free to say so and explain why. The point is not appeasement. It is not ambiguity. It is not sycophancy. The lawyer’s duty is still to advocate. But advocacy is stronger, not weaker, when the lawyer can show that he understands the other side’s position and still has a better argument.
Less Performative, More Precise
Far too much family law advocacy turns the opposing party into a cartoon: the selfish father, the unstable mother, the controlling spouse, the manipulative ex, the victim, the villain, the saint. Sometimes those labels contain pieces of truth. Often they obscure more than they reveal.
The Reciprocal Argument Rule would push lawyers in the opposite direction. It would require fewer caricatures and more disciplined statements of what is actually being disputed. What fact is agreed upon? What fact is disputed? What inference is being drawn? What remedy is being requested? What risk is real, and what risk is being inflated for tactical effect?
That is not softness. It is precision. And family court needs more precision.
The Reciprocal Argument Rule would also help clients.
Many family law clients want their lawyer to treat the other side as evil, stupid, or irrelevant. Sometimes the lawyer’s most valuable service is telling the client, “No. That is not how the judge will see this.” The Reciprocal Argument Rule gives lawyers a built-in way to manage unreasonable expectations. It forces the lawyer and client to confront the weaknesses in their own case before the court does it for them (or doesn’t).
Understanding Before Arguing
The Reciprocal Argument Rule would also expose whether the lawyer and the client actually understand the dispute.
A lawyer who cannot state the other side’s argument probably does not understand the case well enough to argue his own. A party who cannot understand what the other side is asking for may not be ready to resolve anything. And a court that requires both sides to begin with fair summaries may learn, very quickly, where the real dispute lies.
That benefits clients because confusion is expensive. Misunderstanding breeds unnecessary motions, inflated expectations, wasted mediation sessions, and hearings that should never have been needed. When a lawyer can accurately explain the other side’s position to his own client, the client is better able to distinguish between what feels offensive and what is legally important.
The result is not weaker advocacy. It is better judgment before advocacy begins.
There are limits.
The rule cannot be permitted to become a ritual of false equivalence. Some cases involve real domestic violence, coercive control, stalking, child abuse, intimidation, or financial abuse. Courts should not require a victim to pretend that manipulation is merely “another valid perspective.” But even in those cases, a lawyer can usually state accurately what the other side is requesting without pretending the request is reasonable.
Such a rule does not replace evidence. It would not require settlement. It would not excuse contempt. It would not prevent vigorous advocacy. It would simply require intellectual honesty before the real arguments commence.
Family court does not need more performance. It needs more accuracy. It needs fewer cartoons of the opposing party and more disciplined statements of what is actually being disputed.
The point is not courtesy for courtesy’s sake. The point is to make advocacy more honest, disputes more defined, and judicial decisions better informed.
Progress Without Pretending
The Reciprocal Argument Rule would not fix family court by itself. No single rule could. But it would move the process in the right direction: toward accuracy, disciplined advocacy, and courtroom realism, and away from caricature, theatrics, and gamesmanship. This is not a sentimental plea for everyone to be nicer. It is a practical argument for making family court a little less delusional, a little less performative, and a little harder to game. That alone would be progress.
Utah Family Law, LC | divorceutah.com | 801-466-9277