In highly acrimonious and hotly litigated divorce actions, the word “frivolous” is tossed around like a small boat in hurricane waters. This word is familiar to most individuals, as it has a commonplace meaning. In the law, the word is specifically defined and comes with certain consequences if a party’s conduct appears to fall within the legal definition.
Pursuant to NYCRR. Section 130-1.1(a), "a Court, in its discretion, may award to any party or attorney . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct". "Frivolous conduct" is defined under N.Y.C.R.R. Section 130-1.1(c) as follows:
(1) completely without merit in law and cannot be supported with a reasonable argument for an extension, modification or reversal of existing law;
(2) undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) asserts material factual statements that are false.
As set forth in the statute above, a party or attorney found to have engaged in frivolous conduct may be subject to an order directing that he/she pay certain costs and expenses to the aggrieved party as a result of the misconduct. In addition, the frivolous party may also be subject to other penalties in the form of sanctions.
In a matrimonial action, frivolous conduct can take many forms, including but not limited to: pursuing baseless claims, making false allegations, failing to appear for court conferences or other mandated appointments, missing court deadlines, misrepresenting circumstances, and the like.
In matrimonial actions, possibly more than any other, frivolous misconduct is rampant. The reason for this may be that these actions are often fraught with strong emotions such as: anger, betrayal, distrust, vengeance, sadness, and conversely, even a desire to prolong the litigation in order for one party to remain in contact with the other. Whatever the reason, litigants should be aware that the courts greatly frown upon frivolous misconduct and have demonstrated a penchant to address same in the form of counsel fee awards. Given this, a litigant should think deeply regarding his/her claims and courses of action, and heed the advice of his/her attorney regarding the reasonableness of his/her position.