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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33810
Experience:  Retired (mostly)
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I was poorly represented in mediation divorce, our mediator

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I was poorly represented in mediation divorce, our mediator did a very poor job and left the door open for me to get taken to the cleaners during the QDRO mediation part of divorce. Several verbal agreements were made during divorce mediation and attorney said it would be handle with a MSA and during QDRO. Well after divorce final ex fired mediator got differant attorney and is now and as taken me to the cleaners. The more I research the more I find out how bad the mediator was. Can I anul mediation final divorce and take all back to court, ex fired mediator knowing that she could not be taken to court to testify on verbal agreements made during mediation and what ex wife agreed to and then went against when taking my retirement. I am in california is it possible to retry divorce and start from scratch to get fairness.
Submitted: 10 months ago.
Category: Family Law
Expert:  socrateaser replied 10 months ago.
Hello,

When was the final judgment entered (date)?
Customer: replied 10 months ago.
December 12, 2013, and then we started working on the QDRO WITH MEDIATOR, EX FIRED MEDIATOR GOT ANOTHER ATTORNEY AND CAME AFTER ME AND MY RETIREMENT. dURING MEDIATION i AGREED TO TAKE ALL THE BILLS $68,000.00 if she agreed to only take 28% of retirement, but after hiring new attorney she went after all 43%. Verbal agreement was if I paid the alimony amount she wanted $1200.00 a month and took the bills she would only take 28% of retirement. Mediator said during mediation this was how things were done divorce first then QDRO, well now I can't get mediator on court stand to state what was said during mediation.
Customer: replied 10 months ago.
I followed every agreement, followed every rule and I took trust in mediator. But I was played like a Large Mouth bass hook line and sinker, I just need to know if I can fight all of the divorce from the beginning, can I hold mediator liable for anything, do I have a chance in hell to win anything back, or to fight this in anyway.
Expert:  socrateaser replied 10 months ago.
Thanks for the additional info.

I assume you meant Dec 12, 2012, because Dec 12, 2013 hasn't occurred yet.

Anyway, from a pure jurisdictional standpoint, you can set aside an agreed-to family law judgment within one year of date of entry, so you still have time -- but, not much. Family Code 2122(e). Grounds are fraud or mistake.

Your complaints sound as mistake or fraud, but you cannot use the mediator's testimony to try to prove that there was some sort of bias in play. The agreement itself is the real evidence. It's either fair or it's not -- and if it's not, then the court can set it aside, assuming you can explain why you were mistaken or why the other party misrepresented their position in a manner that deceived you into agreeing.

Beyond all of this, if your attorney at the time did not competently represent you, you may actually have a better claim against the attorney for malpractice, than against your ex to have the judgment set aside. So, if your new attorney thinks that the agreement is absurdly lopsided, then you need to shop the case to a few malpractice attorneys (which would be a contingency case, so you wouldn't be paying anything to try to sue your former legal counsel).

As for your chances of winning, courts strongly disfavor setting aside an agreed to judgment -- so, you must have good evidence. The agreement must really look unreasonable, such that any competent attorney would have been unlikely to have agreed to the deal. Otherwise you will likely be wasting your time -- and throwing good money after bad.

Please let me know if my answer is helpful, or if I can provide further clarification or assistance.

And, thanks for using justanswer.com!
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33810
Experience: Retired (mostly)
socrateaser and 4 other Family Law Specialists are ready to help you

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