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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 36412
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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My ex girl friend and I went to an attorney emergency

Customer Question

Hello. My ex girl friend and I went to an attorney for filing emergency custody for her kids. I paid per check. He didn't file it and sent a check about the difference to her. Now she won't give me my money back. What can I do?
Submitted: 1 year ago.
Category: Family Law
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

Because the children were not yours that meant that under the law, only your ex could legally be the lawyer's client. When you paid the lawyer, unless it was written in the fee agreement that any funds returned would have to be returned to you---then the lawyer was legally obligated to return unused fees to her---despite the fact that you paid them in the first place.

At this point the attorney has not violated the law, and to get your money back you will have to sue your ex. Small claims court would be an effective tool for this suit.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please be so kind as to rate my service to you. That is the only way I am credited for assisting you.

I wish you and yours the best this holiday season,

Doug

Customer: replied 1 year ago.
Hello. I understand that the attorney was obligated to send unused fees to her. But I can sue her and there wouldn't be any issues? I can proof that I paid per check and I have something in writing from the attorney that he sent the refunds to her. Is it my money by law or could it be a difficult suit?
Expert:  LawTalk replied 1 year ago.

Good afternoon,

Sure you can sue her. While you may have agreed to pay her legal fees, you never told her that anything left over was hers to keep. You have a right to get back the money that was returned to her by the attorney.

It seems like a pretty easy small claims court case for you and I just don't see any problems that you would have.

Please keep in mind that, even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

You may of course reply back to me and I will be happy to continue to assist you further.

I wish you well,

Doug

Customer: replied 1 year ago.
We never talked about left over money and I agreed to nothing, especially not her keeping it. We didn't talk about such a case at all. She was lying to me and told me that the attorney offered to keep the money and use it for a motion instead. In reality the check was already on the way and I found out a week later after talking to the attorney.
So, legally the money is mine because we never talked about her keeping the money and I didn't agree to such a thing?
Expert:  LawTalk replied 1 year ago.

Yes, if there was never an intent to make the remainder of the money a gift, then she is obligated to give you back the money. You only agreed to pay for her legal expenses and you did. She is a constructive trustee of the funds for you. See this discussion of a constructive trust: https://en.wikipedia.org/wiki/Constructive_trust

Please remember to rate my service to you so that I can be compensated for helping you. Thank you in advance.

I wish you and yours the best this holiday season,

Doug

Expert:  LawTalk replied 1 year ago.

In followup, I don't know how much she owes you, but keep in mind that the NC limit for small claims court is $5000. If she received more than that back from her attorney then you will need to sue in a higher court,

Please be so kind as to rate my service to you. That is the only way I am credited for assisting you.

Doug