Friend just got hosed in divorce - what can she do?

[legallurker]

What is the name of your state? My friend is in WA.

The story is long & sordid, so I'm posting a modified version of an email I received from friend's mom on behalf of friend as a summary version. Please take a look & advise on what, if any, recourse my friend has in this situation. I can give more details if necessary, but mainly I'm concerned about what transpired in court on Monday & if there is anything friend can do about it. Thanks in advance for your assistance.


Hey everyone,

Because I know you have all been worrying, wondering and/or praying or all, I am briefly going to tell you what happened in the last couple of days.

We recessed on Thursday after two days of trial. We had Friday, Saturday and Sunday to prepare for Monday. Lots of ground was covered and we thought we were in good shape and had our ducks in a row.

However, much to our disappointment and disbelief, our attorney was a little tipsy and couldn't put two questions together in a row. I (friend's mom) was second on the stand and she tried to hold it together, but the other attorney kept objecting because she was asking very leading questions, which she didn't need to do. I knew what I wanted to say. The more he objected, the more confused she got.

She finally gave up on me and put friends husband on the stand. She was going to question him at length and get some of the documentation entered into evidence that we needed to make a decent case. She tried to ask him about his financial declaration, had lots of fudging going on, she couldn't remember what was the matter with declaration. I guess at some point she decided she was doing more harm than good and quit.

And she did that about 30 min too early, the other attorney jumped up and said he was ready to close. This effectively kept her from recovering any ground on Tuesday morning.

Friend read a wonderful statement in lieu of a closing argument. She maintained her dignity, self-respect, her moral fiber and feels really good about how she comported herself. And the judge saw her character, displayed in many ways throughout the entire trial, he even acknowledged it in the beginning of his decision.

Nonetheless, the law is the law and since our attorney left all our fine and perfect evidence sitting in boxes in the court room and never offered them for exhibits, his hands were tied. He made repeated references throughout his decision that because nothing was offered into evidence to offset, justify or in any way allow him to make a different determination, he had to go by the law.

Bottom line, he gave Friend $500 a month for 30 months (spousal maintenance), and half of what was left in the money market, about $1500. She has to give now-ex-husband about $40,000.

It's nice that the judge seemed genuinely distressed that this was the best he could do and well, life goes on and we have moved on with it.

Love to you all, Friend's Mom on Friend's behalf

 

[mistoffolees]

Well, if attorney was tipsy, you should have stopped right then. I guess 'friend' could file for an appeal on that basis, but I don't know how you would prove it. You could also file a complaint with the state bar - it would get the attorney in trouble but wouldn't get anything for your friend.

But this is why third parties aren't often given advice here - not all the facts are presented. You state "Bottom line, he gave Friend $500 a month for 30 months (spousal maintenance), and half of what was left in the money market, about $1500. She has to give now-ex-husband about $40,000." Was there a house? Retirement assets? Other offsetting assets? Sure, things look very unfair if you look at part of the decision in isolation, but I suspect that there was more to it than that.

Have your friend come back here and tell the entire story and spell out the settlement in detail and she'll get plenty of advice.

 

[Staci2455]

I'm in Florida, and every state's laws are different, but I believe your friend could ask for a rehearing.

Additionally, that attorney should be ashamed, if truly showing up tipsy in court. Short of filing a Bar complaint against the attorney, your friend should have a face-to-face with the attorney about what happened at trial. The attorney apparently put together some good information and exhibits, but due to being inebriated (sp?) or otherwise impaired, failed to properly represent the client in court. Therefore, the attorney should "admit" the "mistake" and do whatever is possible to have the matter reheard.

If the attorney will not, then it's time to seriously consider a Bar complaint, and obtaining new counsel to try to have the matter reheard or to file an appeal - if it's possible to appeal due to the circumstances.

Be wary of the passage of time - most states have time limits for the filing of a Motion for Rehearing or Reconsideration, and for appeals.

 

[legallurker]

Thanks, Staci

I figured she could request something like that. She's pretty beaten down at the moment & I'd like to give her some hard truth about what needs to happen next, if anything can actually be done.

Mistoffolees -

Friend is severely depressed & playing "turtle" w/ the world right now, which is why friend's mom wrote the email I posted below. I got a VM from friend yesterday & could make out about 1/4th of it. I didn't realize how bad it was until I got the email below.

Slightly longer version - Friend & husband in TX for ~5 years. Want to have kids, turns out friend can't (emergency hysterectomy due to severe endometriosis). Move back to WA ~ 2.5 yrs ago w/ the intent that friend be stay-at-home wife & eventually mom when they are able to adopt.

Both friend & husband like to fix up distressed houses, so they buy one & friend works on it during the day w/ husband is at work. Both like idea of building equity/wealth this way. Work w/ several adoption agencies, finally find one they like & are approved to be adoptive parents in October 2007.

Early Nov. 2007, friend's husband comes home & says he has feelings for another woman at work, but he's knows it's wrong & wants to work on their marriage. One week later, says he's done w/ marriage completely. Friend in shock, leaves marital home & spends several days w/ family.

Comes back several days later to talk w/ husband, husband doesn't want to talk & offers to leave the house. They mutually agree it's better financially if he stays there & she stays w/ parents for awhile (yes, I know; this looks like abadonment). He gets restraining order against her, saying he's afraid for his life (lying weenie) & she's not allowed in house to collect her personal effects.

FF a few weeks - he calls & says he wants to talk about getting back together. She decides to meet him where he suggests, & is served w/ divorce papers. She hires an atty (he already has one). FF some more - his atty total slimeball, husband not providing any discovery, & her atty does nothing about this. Speak to her atty several times before leaving a VM w/ the receptionist for atty's senior. Receptionist tells atty, atty calls friend & quits b/f she can be fired.

Friend hires new, seemingly good, atty. New atty. states on several occasions she can't believe how unethical husband's atty is. Friend, friend's mom, & friend's step-dad spend hundreds of hours compiling evidence, working up questions w/ new atty, etc.

FF-June 4th is official day in court & one last settlement attempt made before they go in. 3 hours, no progress, though husband's atty FINALLY gives friend's atty discovery. Judge decides not to continue case, even though friend's atty has literally just gotten the discovery that day (originally requested in December).

W/ initial restraining order both parties were not supposed to spend monies outside of "normal expenditures", husband drains accounts, doesn't pay bills the temporary order says to pay, & trades in paid-off car for new truck, thus giving himself a new monthly expense.

All of the above is complete b.s., but due to tipsy atty on Monday, friend now owes husband atty fees, a large portion of her 401(k), etc. Friend's VM stated that the judge seemed genuinely upset over the verdict but since no evidence was submitted by tipsy atty, he had to go by statutes.

Is that enough info on which to get initial feedback? I assume it will be a few days before friend gets final, certified order, & quite frankly tihink it may be a week or so before she starts answering any phone calls. I'd like to give her some good starting info once she comes out of her initial shock, if possible. Thanks again for your assistance.

 

[LdiJ]

The fact that the money she owes him comes from her 401k is a relevant fact we needed. Most of the rest of that wasn't particularly useful. The money that accrued in a 401k during the marriage IS a divisible asset in a divorce.

We need the specific facts of the property settlement in order to be able to give any useful advice.

I can't believe that the judge didn't stop the hearing if it was obvious that the attorney was tipsy.

However, your friend has a very limited time to make any kind of appeal. So she can't play turtle for more than a few days if she really wants to try to do anything about this.

 

[Bali Hai]

The fact that the money she owes him comes from her 401k is a relevant fact we needed. Most of the rest of that wasn't particularly useful. The money that accrued in a 401k during the marriage IS a divisible asset in a divorce.

We need the specific facts of the property settlement in order to be able to give any useful advice.

I can't believe that the judge didn't stop the hearing if it was obvious that the attorney was tipsy.
However, your friend has a very limited time to make any kind of appeal. So she can't play turtle for more than a few days if she really wants to try to do anything about this.

Hell, the judge was probably worse than the attorney!!

 

[legallurker]

Thank you

I spoke w/ my friend this a.m. & she is under the impression that b/c this is a community property state - regardless of the atty's behavior on the last day of the trial - any inter-mingled funds legally have to be split 50/50. The part that confuses me is that if it's community property & there is no partition agreement, wouldn't separate funds/assets/liabilities still be subject to the 50/50 split? I had similar issues w/ my ex in a community property state when we divorced ~8 years ago.

I'm sending my friend this link & have asked her to fill in the property settlement info so that you have all of the relevant facts. Some of my concerns come from the non-compliance by the ex-husband to the temporary order (don't spend, hide assets, etc), as well as not submitting discovery until the day of the trial; it seems like that would have some bearing on the final settlement.

Thanks again for your assistance.

 

[mistoffolees]

I spoke w/ my friend this a.m. & she is under the impression that b/c this is a community property state - regardless of the atty's behavior on the last day of the trial - any inter-mingled funds legally have to be split 50/50. The part that confuses me is that if it's community property & there is no partition agreement, wouldn't separate funds/assets/liabilities still be subject to the 50/50 split? I had similar issues w/ my ex in a community property state when we divorced ~8 years ago.

It sounds like she got what she was entitled to and the attorney's behavior didn't affect things.

Essentially, each party is entitled to 1/2 of marital assets. That includes and property, cash, etc acquired during the term of the marriage. So if she earned a paycheck and then put $1,000 per month from that paycheck into a separate account in her name, it is still community property.

 

[LdiJ]

I spoke w/ my friend this a.m. & she is under the impression that b/c this is a community property state - regardless of the atty's behavior on the last day of the trial - any inter-mingled funds legally have to be split 50/50. The part that confuses me is that if it's community property & there is no partition agreement, wouldn't separate funds/assets/liabilities still be subject to the 50/50 split? I had similar issues w/ my ex in a community property state when we divorced ~8 years ago.

I'm sending my friend this link & have asked her to fill in the property settlement info so that you have all of the relevant facts. Some of my concerns come from the non-compliance by the ex-husband to the temporary order (don't spend, hide assets, etc), as well as not submitting discovery until the day of the trial; it seems like that would have some bearing on the final settlement.

Thanks again for your assistance.

In a community property state, separate assets (not subject to division) are premarital assets, or gifts and inheritances (assuming that nothing has been co-mingled). There can be a marital interest in any equity that accrued in separate assists, during the marriage, if marital funds were used to maintain or improve those assets.

Example: 401k with 20k balance when they got married. During the marriage, additional amounts from the spouse's salary were put into the 401k (salaries are marital funds). When they divorced the balance was 60k. Therefore 40k of the balance was a marital asset.

 

[legallurker]

Ldi & Mist

That was my understanding, too. She did intermingle some inheritance money so it sounds like that's a lost cause. However, she is still under the impression that if other monies (salaries, etc) went into separate accounts it belongs to that person. I thought that was incorrect, & that's why I want her to post the details here.

 

[mistoffolees]

That was my understanding, too. She did intermingle some inheritance money so it sounds like that's a lost cause. However, she is still under the impression that if other monies (salaries, etc) went into separate accounts it belongs to that person. I thought that was incorrect, & that's why I want her to post the details here.

Her salary is joint income. In fact, any account that she puts her salary into will generally become a joint account - even if it's in her name.

 

[Zigner]

Hell, the judge was probably worse than the attorney!!

Yeah! Darn them judges that follow the law!

 

[legallurker]

Thanks, Mist

It's not so much my friend's accounts that concern me, but her ex's. She doesn't seem to think she should have 1/2 of his based on what the atty told her.

Also, none of her evidence about those assets & her ex's behavior w/ the assets while the temp order was in effect was presented in court due to her atty's intoxication. The judge said over & over "Without evidence to the contrary, I have to rule _________ way on _______ asset."

Their judge is apparently notorious for sticking w/ the letter of the law re property settlements & per friend & friend's mom, seemed very upset that her evidence wasn't presented. This is the main reason I think she got hosed, & why I want to see if there is a way this can be appealed or otherwise re-heard.

 

[nextwife]

Has your friend considered proceeding with adoption after divorce as a single mom? I know many adoptive parents, through my web support groups for adoptive parents, who adopted as singles. She shouldn't give up on adoption.

 

[mistoffolees]

Has your friend considered proceeding with adoption after divorce as a single mom? I know many adoptive parents, through my web support groups for adoptive parents, who adopted as singles. She shouldn't give up on adoption.

While that may be a good idea in the long run, I would strongly discourage making such an important life decision while going through a divorce - even if the agency would allow it.

It will depend on the person, but I would say it's a very rare person who would have their life in order enough to consider this even a year after the divorce is final. Give it time.