Pursuing reimbursement from ex.

[JennyBlue]

What is the name of your state (only U.S. law)? IL

Divorce was final in October 2008. Ex is ordered to reimburse me for various kids' expenses (medical, etc.) He is not doing so, for a variety of untenable reasons; currently he's just ignoring the matter completely.

I do still have my attorney on retainer and I spoke briefly -- very briefly -- with him to verify that my ex's position is legally "unreasonable" (which the MSA states we may not be) and if I choose to pursue this, I should go for attorneys' fees as well. That's all well and fine, but I'm going to make damn sure it's cost-effective first.

What exactly happens next? A motion? Petition? Is he already in contempt or do we have to ask a judge to rule if he's in contempt, then go back to court again for some other reason? What kind of prep work goes into something like this? I've plenty of documentation to support my position; my attorney knows me well enough to know that much.

Just trying to get a handle on what I should expect in the way of attorney and court time.

Thanks in advance.

 

[LdiJ]

What is the name of your state (only U.S. law)? IL

Divorce was final in October 2008. Ex is ordered to reimburse me for various kids' expenses (medical, etc.) He is not doing so, for a variety of untenable reasons; currently he's just ignoring the matter completely.

I do still have my attorney on retainer and I spoke briefly -- very briefly -- with him to verify that my ex's position is legally "unreasonable" (which the MSA states we may not be) and if I choose to pursue this, I should go for attorneys' fees as well. That's all well and fine, but I'm going to make damn sure it's cost-effective first.

What exactly happens next? A motion? Petition? Is he already in contempt or do we have to ask a judge to rule if he's in contempt, then go back to court again for some other reason? What kind of prep work goes into something like this? I've plenty of documentation to support my position; my attorney knows me well enough to know that much.

Just trying to get a handle on what I should expect in the way of attorney and court time.

Thanks in advance.

He is not in contempt unless a judge finds him in contempt. However, its the sort of thing that generally gets handled in one hearing. If you have plenty of documentation to support your position that's generally the "prep work".

However...those are generalizations. That's no guarantee that your case will follow what generally happens.

 

[mistoffolees]

What is the name of your state (only U.S. law)? IL

Divorce was final in October 2008. Ex is ordered to reimburse me for various kids' expenses (medical, etc.) He is not doing so, for a variety of untenable reasons; currently he's just ignoring the matter completely.

I do still have my attorney on retainer and I spoke briefly -- very briefly -- with him to verify that my ex's position is legally "unreasonable" (which the MSA states we may not be) and if I choose to pursue this, I should go for attorneys' fees as well. That's all well and fine, but I'm going to make damn sure it's cost-effective first.

What exactly happens next? A motion? Petition? Is he already in contempt or do we have to ask a judge to rule if he's in contempt, then go back to court again for some other reason? What kind of prep work goes into something like this? I've plenty of documentation to support my position; my attorney knows me well enough to know that much.

Just trying to get a handle on what I should expect in the way of attorney and court time.

Thanks in advance.

It's impossible to say - there are all sorts of possible complications.

In general, your attorney would file a motion with the court to have him found in contempt. You would ask for your expenses plus attorneys' fees. If he continues to do it, the court might throw in jail time, but that's not likely at this stage.

The court then schedules a hearing on the motion. Your ex can file a counter-motion or response if he wishes. Eventually, you get to the hearing and the judge rules. Then you have to collect on the judgment - which isn't always easy.

Check on the statute of limitations in your state. I'm not sure it applies specifically in a divorce case, but it will give you an idea of what is reasonable for a waiting period. Since it's only been a few months, I'd wait a little bit to see if you're going to be back in court on some other matter, anyway. Otherwise, you could spend a lot of time and money and even win the case, but if the judge doesn't award your attorney's fees, you might not come out ahead.

 

[JennyBlue]

Sorry to be so rude as to reply to my own post, but I guess I finally hit on the right combination of search words... Petition for Rule to Show Cause.

So am I correct in thinking:

1) I need to provide my attorney with the specific particulars of what the ex owes as well as my numerous attempts to collect;

2) he prepares Petition for Rule to Show Cause and Notice for Rule to Show Cause, causes (pun!) them to be filed with the court and gets an appearance date;

3) my attorney (me too?) appears to present the petition;

4) my ex's attorney also appears and does what? answers the petition with the so-called causes? requests another appearance so can provide causes at a later date?

5) the judge can rule right then and there? With what, another court order the ex can ignore so I have to drag him back into this again?

I'm counting lots of billable hours here. Ugh.

 

[LdiJ]

Sorry to be so rude as to reply to my own post, but I guess I finally hit on the right combination of search words... Petition for Rule to Show Cause.

So am I correct in thinking:

1) I need to provide my attorney with the specific particulars of what the ex owes as well as my numerous attempts to collect;

2) he prepares Petition for Rule to Show Cause and Notice for Rule to Show Cause, causes (pun!) them to be filed with the court and gets an appearance date;

3) my attorney (me too?) appears to present the petition;

4) my ex's attorney also appears and does what? answers the petition with the so-called causes? requests another appearance so can provide causes at a later date?

5) the judge can rule right then and there? With what, another court order the ex can ignore so I have to drag him back into this again?

I'm counting lots of billable hours here. Ugh.

Well...you could study up on the rules of proceedure etc and represent yourself. That would avoid all those billable hours.

 

[JennyBlue]

Ach! Posts crossed.

Thanks very much. It was about what I expected to hear, and if I learned one thing during the past four years, it's that rarely is anything about a divorce ever simple. Even with cut-and-dried, incontrovertible documentation; there's no black-and-white -- it's all one big murky pit of gray.

You're right, it is new, and I suspect this is a test, to see if I'll roll over.

One last question: If the judge finds in my favor on the Rule to Show Cause, do I automatically win on the associated fees and costs (presuming I've filed for them)?

 

[mistoffolees]

One last question: If the judge finds in my favor on the Rule to Show Cause, do I automatically win on the associated fees and costs (presuming I've filed for them)?

No. It's not automatic. You have to convince the judge to award your fees.

 

[JennyBlue]

From my perspective, awarding of fees is somewhat punitive -- is that correct?

I realize how subjective and unpredictable judges can be, but what factors would commonly be weighed in this kind of situation, to determine the awarding of fees? Can his past behavior/actions during the divorce proceedings be considered, e.g., his refusal to reimburse is very typical (and sadly, was expected.)

As far as representing myself, I'm reminded of the old saying: "An attorney who represents herself has a fool for a client." While I'm reasonably intelligent and can research 'til the cows come home, I think I'd be doubly foolish to go that route.

Fortunately, my attorney is not averse to to doing as much of the grunt work as possible, and I leave little for the clerk. I've prepared affadavits, subpoenas, even correspondence to OC, just leaving minor tweaking and editing to my attorney.

But I know my limits, and want counsel in court, not me -- that's money well-spent! Plus -- just my opinion -- I think judges don't much care for pro se on a Domestic docket, so why add a hidden strike against myself.

 

[mistoffolees]

From my perspective, awarding of fees is somewhat punitive -- is that correct?

I realize how subjective and unpredictable judges can be, but what factors would commonly be weighed in this kind of situation, to determine the awarding of fees? Can his past behavior/actions during the divorce proceedings be considered, e.g., his refusal to reimburse is very typical (and sadly, was expected.)

The judge will look at all sorts of things. For example, if the person has been unable to pay because he lost his job and he has been trying to work out an arrangement with the other person, many judges will not force him to pay attorney's fees. Or, some judges don't like awarding attorney's fees until someone has been dragged into court for contempt several times. Your attorney will know the judge's behavior well enough to guide you.