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From to Divorce Court to Small Claims

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J

jwallen

Guest
What is the name of your state? Ohio

I think this is a fairly simple question, but I can't seem to find the answer to it.

My wife and I finalized our divorce about a year and a half ago or so. During the proceedings we agreed to do an amended tax return (long story short: she tried to screw me on taxes, in the end I got her to agree to do an ammended return). Now, we had filed bankruptcy too and there of course were court costs due for that. So in the judgement the court stated that we split the tax return 50/50 AFTER all court costs were paid to the bankruptcy court. Several months later we got the tax check in the mail and paid the court costs and settled up. Now it's been almost a year and a half and I get a notice in the mail from small claims. She it suing me in small claims stating she never received her half of the check. Now, I'm not really worried because I doubt she will be able to prove she DIDN'T get her share of the check. What I want to know is this:

This all started in divorce court (which is Civil right?). Well since the judgement was from divorce court can she even take this to small claims? What does the law say about this? Wouldn't she have to take me back to civil (divorce) court and file the claim there? If not, what do I tell small claims and what laws do I site to show they can't make a ruling on this case?

Thanks for any advice you can give!
 


JETX

Senior Member
"This all started in divorce court (which is Civil right?). Well since the judgement was from divorce court can she even take this to small claims?"
*** Yes.

"What does the law say about this?"
*** It doesn't. She can take ANY claim of money damages to the small claims court as long as the claim is within the jurisdictional limit.

"Wouldn't she have to take me back to civil (divorce) court and file the claim there?"
*** No.

"If not, what do I tell small claims and what laws do I site to show they can't make a ruling on this case?"
*** They can rule as to the issue of damages.
 

I AM ALWAYS LIABLE

Senior Member
My response:

You need to understand something about Marital Settlement Agreements. Yes, it was signed by the Family Law judge; however, in it's most basic form, it's nothing more than a written contract between you and your ex-wife.

Therefore, the Small Claims judge has jurisdiction to hear and decide contract claims. The SM Judge is not going to re-litigate the Agreement - - the only issue before the Small Claims judge will be whether there was a breach of a term within the MSA and, if so, what damages have flowed from that breach; e.g., any consequential damages, and to determine how much, if any, should be paid by you to her.

You should have split the check. It's easy to find out that she wasn't paid. All she needs to do is to obtain a copy of the check from the Feds, and for you to be unable to show the judge a "counter check" written to her for her share.

Good luck. You're going to need it.

IAAL
 

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