Equitable Distribution??

[anna95]

What is the name of your state? NC

Do you have to divide your property to be legally separated? I am legally separated but am hoping to use the time to cool things down, get counseling, and hope to reconcile one day. My lawyer has been pushing me to go through the property division phase. He told me if I didn't the court would throw out my separation agreement!! Is this true? I do need to be separarted to provide guidelines at this point but see no need to pursue the other now.

I am suspicious because the first day w/ my lawyer I signed a contract to pay him 10 % of the assessts I get in a settlement. It also states I pay him even if I drop the suit. I asked at that point if I had to do this to be separated, he said yes that the two went together. Faced with the either or scenario, I proceeded. Now, I am beginning to feel like he wasn't entirely honest with me. My husband and I are finacially responsible people and have had no trouble dealing with our finances during this time. I need some help. I am lookoing at a very hefty bill over 30,000 for nothing. We have not even been to mediation or court.

What can I do?

 

[Ohiogal]

You better look at that again. Divorce/family law attorneys are NOT allowed to take payment based on contingency. If your attorney is doing this you better check with the bar. He is most likely in violation of the ethics code of the state and could face severe repercussions. You can start by contacting the local bar assocation and questioning his practices and filing a complaint.

 

[anna95]

What about the part about HAVING to pursue ED? Telling me this was something I HAD to do and giving me NO other option in order to obtain a legal separation is how he got me to sign such a contract. This lawyer comes highly recommended in our small county and I trusted him. I thought there was no other option.

 

[Ohiogal]

Contact the local bar.

 

[Golfball]

What about the part about HAVING to pursue ED? Telling me this was something I HAD to do and giving me NO other option in order to obtain a legal separation is how he got me to sign such a contract. This lawyer comes highly recommended in our small county and I trusted him. I thought there was no other option.

In NC (and while I'm not a lawyer, I'm going through the divorce process currently), as far as I know, one does not have to pursue ED (as defined in the NCGS.) I've already had attorneys tell me (given my situation and venue) that I would spend more money pressing an ED action than my share of the joint assets, just from the sheer volume of paperwork involved in my county.

Of course, if the divorce goes through before the ED action is filed, one loses the right to petition the court for ED, but the legal divorce can be granted with or without filing an official ED proceeding as long as you have the year separation.

 

[anna95]

I have, they replied that they could not give me legal advice or answer legal questions. They directed me to the NC general statues to read and told me where to go to file a greivance, if I decided I needed to. My contract with my lawyer clearly states that it is "upon a contingent basis". It states , "in the event I discontinue my cause of action or dismiss attorney, I agree to pay the hereinabove agreed upon fee based upon one-half of the total marital estate.

 

[Ohiogal]

I have, they replied that they could not give me legal advice or answer legal questions. They directed me to the NC general statues to read and told me where to go to file a greivance, if I decided I needed to. My contract with my lawyer clearly states that it is "upon a contingent basis". It states , "in the event I discontinue my cause of action or dismiss attorney, I agree to pay the hereinabove agreed upon fee based upon one-half of the total marital estate.

Then file a grievance.

From http://www.ncbar.com/ethics/ethics.asp?page=2&keywords=non+lawyer :

Many jurisdictions, like North Carolina, hold contingent fee arrangements in domestic relations actions void as against public policy where the fee is contingent upon procuring a divorce or the amount of alimony or child support payments, or property settlement in lieu thereof, to be awarded. See Speiser, Attorneys' Fees §2:6 (1973). However, most jurisdictions which have considered the issue of contingent fees for attorney efforts to collect specific amounts of past due support payments owed pursuant to contract or prior court order have concluded that such arrangements do not violate the public policy prohibiting contingent fee contracts in divorce actions based upon the amount of alimony or child support to be awarded or on a property settlement in lieu thereof. Bar organizations reaching these conclusions include Florida (See lawyers' Manual on Professional Conduct 801:2501), the Birmingham Bar Association (See lawyers' Manual on Professional Conduct (801:1103), and New York County Bar Organization (See lawyers' Manual on Professional Conduct 280).

Fire your attorney and get a new one. Do not pay him anything until this is settled according to rule 1.5(f) of the Code of Ethics of NC for attorneys:
(f) Any lawyer having a dispute with a client regarding a fee for legal services must:



(1) make reasonable efforts to advise his or her client of the existence of the North Carolina State Bar's program of nonbinding fee arbitration at least 30 days prior to initiating legal proceedings to collect the disputed fee; and

(2) participate in good faith in nonbinding arbitration of the fee dispute if such is subject to the jurisdiction of any duly constituted fee arbitration committee of the North Carolina State Bar or any of its constituent district bars if the client submits a proper request for fee arbitration.



According to the comments:
[3] Once a fee agreement has been reached between attorney and client, the attorney has an ethical obligation to fulfill the contract and represent the client's best interests regardless of whether the lawyer has struck an unfavorable bargain. An attorney may seek to renegotiate the fee agreement in light of changed circumstances or for other good cause, but the attorney may not abandon or threaten to abandon the client to cut the attorney's losses or to coerce an additional or higher fee. Any fee contract made or remade during the existence of the attorney-client relationship must be reasonable and freely and fairly made by the client having full knowledge of all material circumstances incident to the agreement. If a dispute later arises concerning the fee, the burden of proving reasonableness and fairness will be upon the lawyer. Fees, including contingent fees, should not be excessive as to percentage or amount.

Now if you REFUSE to listen and just want to whine then you apparently don't want help.

 

[anna95]

Thanks for all your info. I will look into all of it. I am still amazed at how hard the statues are to read. I guess I am just afraid to fire him, lose my greivance, and end up paying another lawyer to handle my affairs on top of paying the first one. That's worse case. I cannot believe someone would be so dishonest with me. I will stop whinning and get busy.

 

[anna95]

I have gone to the NC State Bar website and found the information you've given me. I scrolled all the way to the bottom and read the Ethics Opinion notes, they read contingent fees are allowed in equitable distribution cases. Is this only an opinion. I cannot afford to fire my attorney only to hire a new one if lose a greivance and have to pay him anyway. Rule 1.5 does say they are not allowed when contingent upon securing a divorce or on the amount of alimony or support but does not mention property settlement. Am I reading this right?

What about HAVING to do the equitable distribution and the way he has pressured me to continue this entire time?? Why can't I just be legally separated for as long as we need and not divide our property now?

What can he do to me if I don't pat him? Ruin my credit? Put liens on my property?

 

[Ohiogal]

I have gone to the NC State Bar website and found the information you've given me. I scrolled all the way to the bottom and read the Ethics Opinion notes, they read contingent fees are allowed in equitable distribution cases. Is this only an opinion. I cannot afford to fire my attorney only to hire a new one if lose a greivance and have to pay him anyway. Rule 1.5 does say they are not allowed when contingent upon securing a divorce or on the amount of alimony or support but does not mention property settlement. Am I reading this right?

What about HAVING to do the equitable distribution and the way he has pressured me to continue this entire time?? Why can't I just be legally separated for as long as we need and not divide our property now?

What can he do to me if I don't pat him? Ruin my credit? Put liens on my property?

He should NOT be pushing you to do something you do NOT want to do. He is to represent YOUR wishes. Not his own. File a grievance anyway and get rid of him. he could take you through the fee arbitration procedure and if you lose you would have to pay him HOWEVER in order to put liens on your property and such he would have to get a judgment and then get another court order allowing him to place liens on your property.

 

[anna95]

So he's lying when he says I have to file for ed in order to remain legally separated.

 

[LdiJ]

So he's lying when he says I have to file for ed in order to remain legally separated.

I have stayed out of this discussion but I feel compelled to point something out. Its really not wise to have a legal separation without dividing marital property as part of the separation. It just makes things more complicated legally if you don't do it now....for BOTH of you.

I realize that it appears that your attorney has set up a payment contract with you that appears to be about a percentage of the marital property agreement, (which I agree is highly unethical) but its also possible that your attorney is pushing you because its also NOT wise not to settle those issues as part of the separation.

Just to give you an example.....lets say that your husband goes on a bender and starts seriously gambling during your separation and runs up 200k worth of gambling debt. You shouldn't be responsible for that. However, if you don't legally divide your property as part of the settlement you will, or at least could, be held responsible for 1/2 of that.

It really is wiser to have your financial lives be separated as part of the process. You can certainly avoid selling off assets in the short term, but it really is wiser to settle those issues legally.

 

[Golfball]

I must concur w/ LdiJ that while it is not absolutely legally required to do an ED, the sooner you can get your financial/property lives disentangled, the easier things will be.

That being said, one does not necessarily have to go through the courts to do this, either, and the NCGS recognizes this in NCGS 50-20 (d).

Depending on how big your marital estate is, which county you're in, and how agreeable your spouse is, ED may or may not be the best option. (You do not need to file it, as far as I know, in order to remain separated, though. A friend of mine went through a divorce with a 2.5 year separation before everything was settled, and she never went to court once except for the divorce decree itself. She did not petition the court for ED, either.)


Obligatory disclaimer: I'm not an attorney, so please take the 50lb salt-lick with this post.

 

[anna95]

Greivance?

So what's my chances on winning a greivance. I am ready to drop my separartion. Advising that ed is the best way and smartest way as descibed above is one thing. Telling that it is legally required is another. I never would have moved so fast or far w/ this if he hadn't been there pushing so.

 

[Ohiogal]

So what's my chances on winning a greivance. I am ready to drop my separartion. Advising that ed is the best way and smartest way as descibed above is one thing. Telling that it is legally required is another. I never would have moved so fast or far w/ this if he hadn't been there pushing so.

That depends. 50/50. If you want to drop your separation drop your separation.