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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89095
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have asked something regarding this before, but I need further

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I have asked something regarding this before, but I need further clarification. When my brother got divorced, his lawyer typed and filed the divorce decree at the courthouse. In the decree it stated that the debts were assigned according to the attached debt list. The debts will not be assigned by the court so that there is no court ordered obligation to make payments. It then went on to say which party would assume which debt. His lawyer worded it this way so that in the event that my brother became behind on credit card payments (they were financial struggling at this time), his ex wife couldnt take him to court for content.

However, his attorney failed to attached the mentioned debt list. So a year later when he was behind, she in fact took him to court for contempt. At the time my brother used a less expensive attorney, but his original attorney came and testified that he neglected to attach the debt list and that they had worded it that way so that they wouldnt find themselves in court over this.

Judge still ruled against my brother. He said, "well there isnt a list attached." The judge also ruled that my brother was in contempt and that he pay $1000 of her attorney's fees. His former attorney denied any wrongdoing, but agreed to reimburse $1000 to my brother and for him to sign a waiver ending all dealings.

I encouraged him not to take the money or sign until everything is settled. The credit card is over $30000...and his ex wife doesnt want him to pay it, she uses it as leverage. She is making very good money now and child support is going to be adjusted. But if he will not lower it as much she agrees to drop the whole credit card issue. And she is asking for $2600.00 of her attorney's fees.

We have gone back to his former attorney to show that this whole thing can be settled for good.

He is a very good attorney, but I think it was a detrimental mistake to leave off an attachment that you specifically reference in the decree? Am I correct?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

While it is very hard to judge anyone with the advantage of hindsight, it is possible to say that leaving off an attachment that specifically is mentioned in the decree and one which clarifies the matter, and by doing so has caused an issue down the road, is indeed a detrimental error.

Whether or not he wishes to pursue his former attorney for this matter is another question, of course.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

I know this is just general information, but if it is stated in the decree that there should be an attachment and it isnt there. And for a lawyer to come testify as to this mistake, and agree to "reimburse" fees for dissatisfaction of a client, I think he knows he is somewhat wrong, without saying he is wrong.


It never was an issue that my brother was to be responsible for the credit card, but it was that it wouldnt be court ordered.

Expert:  Ely replied 1 year ago.
J,

Thank you for your follow up. There indeed possibly was a mistake.

In an action for legal malpractice, the claimant must prove four elements: (1) the existence of an attorney-client relationship; (2) breach of a duty by the attorney; (3) damage to the client; and (4) proximate causation of the client's damages by the breach. Smith v. Haynsworth, Marion, McKay & Geurard, 322 S.C. 433, 472 S.E.2d 612 (1996).

Your brother may wish to talk to another attorney about possible action here.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89095
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 3 other Family Law Specialists are ready to help you

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Ely
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