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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 91938
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I am not dumb just not an attorney yet and I realize you know

Customer Question

I am not dumb just not an attorney yet and I realize you know more than I will ever know about law but please for my sake read the below which includes some state and constitutional law threads.
1. First to set the record of this nightmare straight, the fact is the entire ordeal was a conspiracy between my x, her sister, and her attorney at her attorneys office and they used my father as a go between and he is the one who told me what they said I had to do to be released and gave him the paper for me to sign. So. I have a wittiness that will provide all the details in his affidavit as further evidence to support what I am saying or have said. I also still have the original of the paper I was force to sign, wet signatures. I have did a lot of research on this and I understand you are and attorney but I dare say you would not do something like was done to me for money or anything else to even a dog. I found out from a criminal attorney that there is no statute of limitations on filing charges again individuals who have committed a crime. Therefore I am filing a police report on everything illegally done to me by these criminals which constitutes or can come close to constituting a criminal act. (Pleas advice if you can) Below are some of the issues I want to deal with and yes there are more but this is enough for now. Please read and give me your opinion (agree or disagree and why), thanks…
2. I first feel like this was violation of my Due Process rights which protects individuals from this sort of thing happening in the first place one being forced to sit in jail without an order which supports all of the things I had to agree to before being released. I did everything the judge order within two days and was in jail for seven days, pending my x agreeing I had abided by all which was in the paper I was forced to sign.
3. I feel this has elements which could fall under the category of Malicious Prosecution; I mean the elements fit pretty well although I was executed not prosecuted because there was no judge involved. Our Supreme Court has this to say about that subject: The elements of malicious prosecution are (1) the institution or continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3) termination of such proceedings in plaintiff's favor; (4) malice in instituting such proceedings; (5) lack of probable cause; and (6) resulting injury or damage. Law, 368 S.C. at 435, 629 S.E.2d at 648. In this cause of action, malice is "the deliberate intentional doing of a wrongful act without just cause or excuse." Eaves v. Broad River Elec. Coop., Inc., 277 S.C. 475, 479, 289 S.E.2d 414, 416 (1982) (internal quotation omitted). It does not necessarily mean a defendant acted out of spite, revenge, or with a malignant disposition. Law, 368 S.C. at 437, 629 S.E.2d at 649. Malice also may proceed from an ill-regulated mind which is not sufficiently cautious before causing injury to another person. Moreover, malice may be implied where the evidence reveals a disregard of the consequences of an injurious act, without reference to any special injury that may be inflicted on another person. Malice also may be implied in the doing of an illegal act for one's own gratification or purpose without regard to the rights of others or the injury which may be inflicted on another person. In an action for malicious prosecution, malice may be inferred from a lack of probable cause to institute the prosecution. Id. (emphases added).
4. I feel this has elements which could fall under the category of Malicious Prosecution INVOLUNTARY SERVITUDE ( Peonage) Summary: Section 1581 of Title 18 makes it unlawful to hold a person in "debt servitude," or peonage, which is closely related to involuntary servitude. Section 1581 prohibits using force, the threat of force, or the threat of legal coercion to compel a person to work against his/her will. In addition, the victim's involuntary servitude must be tied to the payment of a debt.
18 U.S.C. § 1581
(a) Whoever holds or returns any person to a condition of peonage, or arrests any person with the intent of placing him in or returning him to a condition of peonage, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both. (b) Whoever obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be liable to the penalties prescribed in subsection (a). Involuntary Servitude Summary: Section 1584 of Title 18 makes it unlawful to hold a person in a condition of slavery, that is, a condition of compulsory service or labor against his/her will. A Section 1584 conviction requir
Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.
I believe you could be right in everything you assert above, but the fact of the matter is the police will not interfere or take a report because they will tell you this is a civil matter. Second, while you might be right in all of your claims above, the proper forum for this is in the court where everything took place and it is done by filing a motion to vacate the agreement first and foremost. Once you get the agreement vacated and prove to the court that the contempt charge and subsequent jail was false, then at that point the court (or appeals court) should vacate the contempt charge AND THEN you can file suit against her for malicious prosecution.

However, before you can do anything else, you have to file to vacate the contempt charge and prove it was based on fraud and also file a motion to vacate that agreement based on it not being voluntary and that it was coerced based on the incarceration.

You have to take baby steps in pursuing the legal process one step at a time and you do not want to take them out of order.



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Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 91938
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
Law Educator, Esq. and 2 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.


Well after thinking about it I feel I should be able to have the Divorce Decree held Void because several of these issues which I was forced to agree to were incorporated in to the Final Decree not attached. Therefore it is not a legal document correct. Or I could have it modified to reflect what I did agree too if I put some pressure on the right individuals

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2. I never receive notice from my attorney that the order was ready to be finalized and now I have figured out he quit me. So I had no representation at all.


 


3. I found this on the SC Judicial website concerning Private GAL's:


§ 20-7-1545 Private Guardians ad Litem


 


Guardians ad litem are appointed by court order in private action before the family court in which custody or visitation of a minor child is an issue only when the court determines that:
(1) without a guardian ad litem, the court will likely not be fully informed about the facts of the
case, and there is a substantial dispute which necessitates a guardian ad litem; or
(2) both parties consent to the appointment of a guardian ad litem who is approved by the court. The court has absolute discretion in determining who will be appointed as a guardian ad litem in each case.


 
















63-17-40. Settlement and voluntary agreements




(The below never happened in this case)
(A) The court must encourage settlements and voluntary agreements and must examine and approve them whenever they are warranted. Upon a finding of fairness the court shall approve, without a hearing, settlements and voluntary agreements which are reduced to writing, signed by the parties, and properly verified. The agreement must be accompanied by financial declarations and affidavits from the custodial and noncustodial parents stating that they have read, or have had read to them, and understand the agreement and that they have voluntarily executed the agreement or consent order. The parties may submit themselves to the jurisdiction of the court by a settlement or voluntary agreement which must be filed with the summons and complaint. A defendant's affidavit must state that the defendant is capable of fulfilling any financial requirements of the agreement or consent order applicable to the defendant. Upon the court's approval, the settlement or voluntary agreement becomes an order of the court.


This pursuant to Rule 43(k), South Carolina Rules of Civil Procedure, which provide


(A) Agreements of Counsel, No agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record, or reduced to writing and signed by the parties and their counsel. Settlement agreements shall be handled in accordance with Rule 41.1, SCRCP.


So I had no Due Process in nothing concerning this divorce...


Due process is best defined in one word--fairness. Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 569 (1972).


 

Expert:  Law Educator, Esq. replied 1 year ago.
They are not likely to void or vacate the divorce decree, but they will modify it if they find you have had your due process rights violated or if the agreement was obtained by coercion or you did not actually agree to it and your attorney improperly performed. It will depend on your production of evidence to the court.

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Law Educator, Esq.
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Experienced attorney: Family law, Estate Law, SS Law etc.