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Pam Priest
Pam Priest, Family Law Attorney
Category: Family Law
Satisfied Customers: 122
Experience:  17 years of experience as a family law attorney, including 2 1/2 years as a family law facilitator
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Can my divorce decree of 6 years be overturned because my spouse

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Can my divorce decree of 6 years be overturned because my spouse now wants part of my workers compensation settlement and personal injury settlement that they waived any liability for in the divorce agreement that we both signed? My spouse wanted no part of the legal entanglements that were ongoing during our divorce in regard to a pending workers comp case and a personal injury case. My spouse went so far as to seek out and volunteer to "testify against me" in both law suits after our divorce was signed. Now that I have prevailed in both she seeks to set aside the divorce and receive half of my settlement monies. Can they do this under Ca. law?
Submitted: 5 years ago.
Category: Family Law
Expert:  Pam Priest replied 5 years ago.
Hi, and thank you for contacting Justanswer. I have a question, though - is she actually asking to set aside the divorce? I mean - has she filed something with the court and if so, were those words used "set aside"? Or is she calling it an "omitted asset"?
Customer: replied 5 years ago.
She is threatenting me to not to request an adjustment in the amount of child support I am paying due to the change in my financial status. Since I live off social security and an annuity from the settlement I have lost 53% of my monthly income in the downturn of the economy. She has gone from a W-2 stated income in 2007 of 76, 00 dollars to a W-2 stated income of 102,046 income for 2008. My attorney states that he feels neither of us had good representation during our divorce. Now that I prevailed in both cases she is holding me ransom so that I will not file for a adjustment. My attorney says he is not an expert and does not know what would happen.
Expert:  Pam Priest replied 5 years ago.
She cannot set aside the divorce settlement. It is WAAAAAAAY too late for that - even if there was fraud or duress, it is just plain too late.

So if, in the divorce settlement, the potential settlement award on your worker's comp case was awarded to you as your sole and separate property, she is totally out of luck and you can ignore her threats and ask for a support reduction.

By the way - if you would like me to calculate what support should actually be, I can do that, although you may already know what it should be.

I hope this answer helps!
Customer: replied 5 years ago.
My net income went from 5800 a month to 3800/month. I have 700,000 left in my annuity that I am drawing the 2,000 a month on and I get 1,800 from social security. I get 750 a month from social security for my daughter that I sign over to her now that my daughter has chosen to live with her. She went from $76,000 on her UCLA 2007 wages to $102,0046 for 2008 plus the 15000/month I pay her now for child support. She provide a 1099 form for only 13,000 in child care exspenses for 2008. She refuse to provide the court with any of the monies she recieved from her parents estate in 2008.
Expert:  Pam Priest replied 5 years ago.
What is the timeshare? How often do you see your daughter? Are you remarried? Is she? Do either of you have kids with with anyone else? Do you file single and one? Does she file head of household and two?

Also, the court uses your gross - not net. I can put the $1,800 in as social security - I am assuming that is SSDI? The $750 for your daughter would not go into the calculation because that is a derivative benefit.

About the information she refuses to provide - your attorney can do special interrogatories and a Demand for Inspection of Documents - they are both pretty easy to do.
Customer: replied 5 years ago.
neither is remarried. Neither has other children. This was my first marriage her second. I own my own home she is renting. We pay about the same in monthly rent/mortgage payment. I bought my house with my disability money in 2007 and it is titled to my daugters living trust.
Expert:  Pam Priest replied 5 years ago.
I don't know the timeshare, but let's put it this way: Based on you have a taxable income of $3,800 per month and her having a taxable income of $8,504 per month (which is $102,046 per year) and you having no contact with your daughter at all, your support would be reduced to $670 per month. This a rough figure, because really your mortgage interest would go into the calculation, which would make your payment higher (because you would have the benefit of the tax deduction, which would, in turn, give you a higher net income from which to pay support. Since she rents, she is not entitled to an interest deduction, so her income would remain as is for calcuation of child support). However, it should be close. If you see your daughter 10% of the time, your support would be $525. If you see her every other weekend, or about 20% of the time, it would be $343. If you see her 30% of the time (usually alternate weekends, alternate holidays and some vacation time) you would pay $122. If you had a 50/50 custody split, the mother would pay YOU $429.

HOWEVER, because your daughter is receiving a derivative benefit - good news!!! The amount you would pay should be offset by the derivative benefit. So the way it works is that if you would owe MORE than $750 per month (which based on the figures you gave me would not happen), then it would be whatever is calculated by the Dissomaster minus the derivative benefit. If the derivative benefit is MORE than you would have to pay, you owe nothing!

If you have not filed a motion yet, do so immediately! A change in support can only go back to the date the motion was filed.

However, I should mention that IF there was no mention of the worker's comp settlement and the PI settlement in your divorce case, then it is an omitted asset and she CAN try to get half (I didn't say she would succeed, but she can try). Assuming that it was mentioned in your divorce and that she waived all interest in the proceeds of any potential settlement, she is out of luck.

But again - she cannot set aside the divorce settlement - no way, no how. Her only option is to try to treat the worker's comp and PI settlements as an omitted asset. If they are mentioned in the divorce - they are not omitted.
Pam Priest, Family Law Attorney
Category: Family Law
Satisfied Customers: 122
Experience: 17 years of experience as a family law attorney, including 2 1/2 years as a family law facilitator
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