It is common in traditional divorce cases that someone close to a spouse, a parent, a friend, a new romantic interest, or some other person whom that spouse trusts, influences the case’s outcome. Some people are incapable of making critical decisions during this stressful process without input from their loved ones and other advocates. Often, these outside influences are beneficial, but, sometimes, outsiders have a harmful impact instead. When a third party becomes so embroiled that she controls the case, her impact can be toxic.
An outsider who finances litigation often controls it. She may sign the lawyer’s retainer agreement (technically becoming the “client,” despite that she is not a named party)! She may perform legal research. She may meet and correspond with the lawyer regularly, with the party’s approval, sometimes even in his absence. She may go so far as to instruct the lawyer, and even prepare documents for him to file. In fact, the lawyer’s client may feel unable to make decisions without her input, despite that it is his life and not hers that is impacted.
By financing and controlling the litigation, the outsider essentially substitutes herself into the proceedings. Given that she has made herself a party by virtue of her involvement, nay, hercontrol over the case, the court may “implead” her.
A “party” is “any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.”[i] That includes “one concerned with, conducting, or taking part in … proceeding, whether … named or not,”[ii] “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 … have such control … as to be entitled to direct the course of [the] proceedings….”[iii] That includes anyone who “financed and controlled the litigation,” “approved the filing of the lawsuit; controlled the selection of … attorneys; recruited … witnesses; received, reviewed and approved counsel’s bills; and had the ability to veto any settlement agreements.”[iv]
The courts have recognized when the assets of friends and family should be considered in determining a party’s ability to pay.[v] Because of the compelling interest in discouraging outsiders from becoming so involved that they cause either side to incur extraordinary fees, the court should require third parties to pay those fees when they do.
[i] Visoly v. Security Pac. Credit Corp., 768 So. 2d 482, 489 (Fla. 3d DCA 2000).
[ii] Fong Sik Leung v. Dulles, 226 F.2d 74, 81 (9th Cir. 1955).
[iii] Theller v. Hershey, 89 F. 575 (C.C.N.D.Cal. 1898).
[iv] Abu-Ghazaleh v. Chaul, 36 So. 3d 691, 693 (Fla. 3d DCA 2009).
[v] 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).