ex-spouse is a divorce attorney - she modified settlement secretly

[rma153]

State of Texas

I found out yesterday that my ex- wife, who is a divorce attorney, filed and was granted a motion for judgement Nunc Pro Tunc three days after our final divorce decree in 2008 (State of Texas, Tarrant County). I was never notified/served with this. She simply added one line that assigned a $12,000 credit card debt to me. This card I did not even know existed and it was in her name as the primary. She has continued to charge on this card, and apparently paid the monthly bill. Now she says I owe this debt.

I am shocked that this could even happen. How could a court allow this? Seems they were asleep at the wheel. I thought a motion for "Nunc Pro Tunc" was to fix small non-significant clerical errors, not for secretly modifying the property settlement to the tune of $12,000! If this is an allowable legal scheme, then why stop at the one line adder? Why not go all the way, i.e., she could have just assigned all the assets to her and all the debts to me, trashing the property settlement I agreed to in the "first" final decree? This is wrong/unethical on many levels! Did she break the law? Surely this is a conflict of interest. If not outright illegal, it should at a minimum be grounds for disbarment!

I had no idea that I did not have a final divorce decree in hand for all this time. In fact, there was a subsequent "final" final divorce decree, with a modified property settlement! What a swindle!

What recourse do I have to get this reversed?What is the name of your state (only U.S. law)?

 

[Proserpina]

State of Texas

I found out yesterday that my ex- wife, who is a divorce attorney, filed and was granted a motion for judgement Nunc Pro Tunc three days after our final divorce decree in 2008 (State of Texas, Tarrant County). I was never notified/served with this. She simply added one line that assigned a $12,000 credit card debt to me. This card I did not even know existed and it was in her name as the primary. She has continued to charge on this card, and apparently paid the monthly bill. Now she says I owe this debt.

I am shocked that this could even happen. How could a court allow this? Seems they were asleep at the wheel. I thought a motion for "Nunc Pro Tunc" was to fix small non-significant clerical errors, not for secretly modifying the property settlement to the tune of $12,000! If this is an allowable legal scheme, then why stop at the one line adder? Why not go all the way, i.e., she could have just assigned all the assets to her and all the debts to me, trashing the property settlement I agreed to in the "first" final decree? This is wrong/unethical on many levels! Did she break the law? Surely this is a conflict of interest. If not outright illegal, it should at a minimum be grounds for disbarment!

I had no idea that I did not have a final divorce decree in hand for all this time. In fact, there was a subsequent "final" final divorce decree, with a modified property settlement! What a swindle!

What recourse do I have to get this reversed?What is the name of your state (only U.S. law)?

There's no conflict of interest - an attorney is allowed to represent him/herself ....

...and this is why you needed an attorney.

You should speak with one now at any rate, since fighting this may be quite the uphill battle.

 

[mistoffolees]

There's no conflict of interest - an attorney is allowed to represent him/herself ....

...and this is why you needed an attorney.

You should speak with one now at any rate, since fighting this may be quite the uphill battle.

I would also file a complaint with the state Bar. Clearly, changing a divorce decree in this way is unethical (if not illegal).

 

[Tex78704]

Although Nunc Pro Tunc was not the proper post-judgment motion for such a change, the pleading likely sufficiently pled the change requested. Given the change request was filed only three days after judgment signed, the court was still within its plenary period to modify the order. Which it did.

Given two years has passed, it will be an uphill battle that will be hard, if not impossible, to win.

It's generally a bad idea to trust your spouse who is a divorce attorney to handle your divorce for you

 

[mistoffolees]

Although Nunc Pro Tunc was not the proper post-judgment motion for such a change, the pleading likely sufficiently pled the change requested. Given the change request was filed only three days after judgment signed, the court was still within its plenary period to modify the order. Which it did.

Given two years has passed, it will be an uphill battle that will be hard, if not impossible, to win.

Except that OP says he never received any notice of the change and just learned about it recently. That might make it possible (although it won't be easy). He certainly should not be responsible for any amounts charged after the date of the decree, though.

 

[Tex78704]

Except that OP says he never received any notice of the change and just learned about it recently. That might make it possible (although it won't be easy). He certainly should not be responsible for any amounts charged after the date of the decree, though.

As it now stands, the last signed order is valid and enforceable. And he is legally responsible for the amount in question.

It's a good bet that if his ex is an attorney, the record will show he was properly served, and most likely by first class mail that does not need to be certified. At this point it will not be easy to have judgment overturned based upon his contention he was not served.

While I agree with the "possible but not easy" chances of getting this overturned, it will also be far from cheap. OP could spend several thousand dollars litigating this and still lose.

OP should to talk to an attorney to review his case file and determine if he has a reasonable chance of winning if he wishes to challenge the judgment.

 

[LdiJ]

Except that OP says he never received any notice of the change and just learned about it recently. That might make it possible (although it won't be easy). He certainly should not be responsible for any amounts charged after the date of the decree, though.

Obviously he should have been served for any motion that she was bringing back in front of the court...that is the most problematic thing in this whole situation.

However, I have to admit that I don't quite see what her motivation would be to do something like that.

She is an attorney, and unless she is just starting out under her own "shingle" her income would have to be relatively decent. I can't really see a motivation to transfer 12k like that in a fraudulent way.

I can see her doing it if it was clearly stated in court that the debt was to be the responsibility of the OP (with transcripts to back it up) but it inadvertantly got left out of the final paperwork...but to do it without service or fraudulently doesn't make sense to me. The benefit doesn't outweigh the risk.

Yes, its absolutely true that attorney spouses sometimes run rampant over their non-attorney exes or soon to be exes, but they are generally more clever and more legal about it than that...and not over something that's only 12k.

I hope that OG weighs in on this one...it just seems off to me.

 

[garrula lingua]

A 'Nunc pro Tunc' (latin, roughly: now for then), is a correction, usually to include an item that was stated, on the record, in court, when the Judge granted the divorce.
Many attorneys misuse NPTs, believing they can restate and correct any 'clerical' error by this method, and unfortunately, many Judges sign them without checking the validity - the 'newly included' order must have been stated on the record.

Again, a major key issue, is whether the Court ordered the 12K debt distribution, on the record (even by simply saying: 'So ordered' after a party stated their request on the record).

If it wasn't on the record, then a Nunc Pro Tunc Divorce Decree is incorrect.

OP, see a local attorney. Inquire about a Bill of Review - you may have waited too long to address this issue.
You may want to purchase a copy of the court transcript to see if the 12K debt distribution was on the record.
Most County Bar Associations offer low-cost consultations. Ask for a consult with an attorney who is familiar with Bill of Review procedures (it's not hard, just not every-day issue: they just have to file under new cause #, and state sufficient grounds and be within time period to file).
Seek legal advice immediately - there are strict time limits.
PS: distribution of debt is usually within the Petition, so it's very doubtful that 'the Judge granting relief not requested' is an issue.
Service is important. Go to the courthouse - to the clerk's office - and pull your file and review. See what type of service (notice to you) is alleged in the file.
Regarding a NPT, the relevant issue is whether it was stated on the record in order to reform the Decree (theory being the Divorce Decree is being reformed to conform with the Judge's orders which were stated, on the record).

 

[mistoffolees]

A 'Nunc pro Tunc' (latin, roughly: now for then), is a correction, usually to include an item that was stated, on the record, in court, when the Judge granted the divorce.
Many attorneys misuse NPTs, believing they can restate and correct any 'clerical' error by this method, and unfortunately, many Judges sign them without checking the validity - the 'newly included' order must have been stated on the record.

Again, a major key issue, is whether the Court ordered the 12K debt distribution, on the record (even by simply saying: 'So ordered' after a party stated their request on the record).

If it wasn't on the record, then a Nunc Pro Tunc Divorce Decree is incorrect.

OP, see a local attorney. Inquire about a Bill of Review - you may have waited too long to address this issue.
You may want to purchase a copy of the court transcript to see if the 12K debt distribution was on the record.
Most County Bar Associations offer low-cost consultations. Ask for a consult with an attorney who is familiar with Bill of Review procedures (it's not hard, just not every-day issue: they just have to file under new cause #, and state sufficient grounds and be within time period to file).
Seek legal advice immediately - there are strict time limits.
PS: distribution of debt is usually within the Petition, so it's very doubtful that 'the Judge granting relief not requested' is an issue.
Service is important. Go to the courthouse - to the clerk's office - and pull your file and review. See what type of service (notice to you) is alleged in the file.
Regarding a NPT, the relevant issue is whether it was stated on the record in order to reform the Decree (theory being the Divorce Decree is being reformed to conform with the Judge's orders which were stated, on the record).

Everything above is absolutely correct. I was going on OP's statement that "This card I did not even know existed" which led me to believe that it was never discussed in court.

First step is to do what you suggested - maybe it was addressed and he just missed it.

 

[rma153]

OK. I called the Texas State Bar and they advised me to file two complaints. One against the attorney and one against the judge with the Judicial Conduct committee. And they advised me to get legal representation to bring the matter up with the Family Court and get it reversed.

I am consulting with a family law attorney who has agreed to take the case.

The debt that was added was never part of the record.

 

[LdiJ]

OK. I called the Texas State Bar and they advised me to file two complaints. One against the attorney and one against the judge with the Judicial Conduct committee. And they advised me to get legal representation to bring the matter up with the Family Court and get it reversed.

I am consulting with a family law attorney who has agreed to take the case.

The debt that was added was never part of the record.

Then I absolutely do not understand why an attorney would do something that stupid. I makes absolutely no sense whatsoever. But hey, attorneys are human beings too and are capable of being stupid, just like anybody else.

 

[Tex78704]

rma153 was unrepresented and unable to properly manage his divorce case.

Now he feels he has grounds to file complaints to the State Bar and Judicial Conduct Board against an attorney and judge, suggesting both fraud and collusion in his case.

Just because someone at the State Bar helpline may have told him to go ahead and file complaints, does not even minimally suggest any merit to his allegations.

Under the circumstances, one should be far less inclined to presume impropriety (or even stupidity) on the part of an attorney and judge, and far more inclined to believe OP's perception of the facts are flawed. That is, until the attorney he hires reviews his case files and says otherwise, and can prove this up in court.

 

[stealth2]

Under the circumstances, one should be far less inclined to presume impropriety (or even stupidity) on the part of an attorney and judge, and far more inclined to believe OP's perception of the facts are flawed. That is, until the attorney he hires reviews his case files and says otherwise, and can prove this up in court.

Pretty much what I was thinking.

 

[garrula lingua]

rma153 was unrepresented and unable to properly manage his divorce case.

Now he feels he has grounds to file complaints to the State Bar and Judicial Conduct Board against an attorney and judge, suggesting both fraud and collusion in his case.

Just because someone at the State Bar helpline may have told him to go ahead and file complaints, does not even minimally suggest any merit to his allegations.

Under the circumstances, one should be far less inclined to presume impropriety (or even stupidity) on the part of an attorney and judge, and far more inclined to believe OP's perception of the facts are flawed. That is, until the attorney he hires reviews his case files and says otherwise, and can prove this up in court.

Agreed.
The Bar's normal practice is to refer a caller to a complaint form; they, normally, don't discuss the issue and give verbal advice ...
They will advise HOW to register a complaint; they do not make any comment as to the merits of the complaint.
It's standard practice to advise callers to seek an appeal at the trial court level, and refer a caller to the complaint divisions, regardless of the merits of the complaint.


OP: Get the facts down first (including: get the transcript and examine all the evidence/info & see what can be appealed/reformed/corrected), then proceed on the correction of your orders. If warranted, then proceed with complaint(s). Hiring an attorney was very smart.