By Joryn Jenkins and Lori Skipper
It is common in divorce proceedings that someone close to a party ― a parent, a friend, a child, a new romantic interest, or some other person whom the party trusts ― influences the outcome of the case. Many people are incapable of making critical decisions during this stressful process without input from loved ones and other advocates. Often, these outside influences are beneficial, but sometimes collaterals have a harmful impact instead. When a third party becomes so embroiled that he or she controls the case, the impact can be toxic.
A collateral who finances the litigation often controls it. He or she may sign your retainer agreement (technically becoming the “client,” despite not being a named party). The person may perform legal research. He or she may meet and correspond with you regularly, with your client’s approval, sometimes outside the client’s presence. The person may go so far as to direct your actions and even prepare documents for you to file and/or execute. Your client may feel unable to make decisions without the person’s approval, despite the fact that it is the client’s life that is impacted by them.
By financing and controlling the litigation, the collateral essentially substitutes himself or herself into the proceedings. Given that the collateral has made himself or herself a party by virtue of involvement ― nay, control over the case ― the court may implead the person.
A “party” is “any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.” Visoly v. Security Pac. Credit Corp., 768 So. 2d 482, 489 (Fla. 3d DCA 2000). That includes “one concerned with, conducting, or taking part in any matter or proceeding, whether … named or not.” Fong Sik Leung v. Dulles, 226 F.2d 74, 81 (9th Cir. 1955). That includes, “not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing towards the expenses thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of [the] proceedings. …” Theller v. Hershey, 89 F. 575 (C.C.N.D.Cal. 1898). That includes anyone who “financed and controlled the litigation,” who “approved the filing of the lawsuit; controlled the selection of the plaintiffs’ attorneys; recruited fact and expert witnesses; received, reviewed and approved counsel’s bills; and had the ability to veto any settlement agreements.” Abu-Ghazaleh v. Chaul, 36 So. 3d 691, 693 (Fla. 3d DCA 2009).
Our courts have recognized when the assets of friends and family should be considered in determining one’s ability to pay. Mendana v. Mendana, 911 So. 2d 130 (Fla. 3d DCA 2005); Sibley v. Sibley, 833 So. 2d 847 (Fla. 3d DCA 2002); Luskin and Luskin v. Luskin, et al., 616 So. 2d 558, 559 (Fla. 4th DCA 1993). Because of the compelling interest in discouraging collaterals from becoming so involved in the proceedings that they cause either side to incur extraordinary fees, a suggested remedy may be to require third parties to pay those fees when they do so.
