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Legalease, Lawyer
Category: Legal
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Experience:  15 years exp all aspects of general law
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Recently, opposing attorney called for ex parte motion for

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Recently, opposing attorney called for ex parte motion for attorneys fees n costs on same day as my attorney asked for hearing on substitution! (Felt extremely unethical and contrived). The atty fees n costs were based on an allegation of refusing to sign a listing agreement for a large property we share, atty cited sudden debt of 140k against property, which was not mentioned in Discovery (yes alleged debt, but not attached to property's corporation.) as reason for forcing quick sale. In my rebuttal I cited that property was left a disaster by former spouse, which significantly lowered appraised value (new appraisal shows 50k increase because of repairs and refurbishments I had undertaken in past 6 months.) also, only time property sale was discussed was in pre-settlement conferences, which were never recorded in court. But in my response, in order to respond to this, I cited the myriad of things opposition did not undertake to do, although stipulated to in conferences. Opposing counsel just advised that I was 'put on notice' that anything I cited related to settlement conferences was sacred and inadmissible and that he would ask the court to strike these from my rebuttal. I heard there was an exception to this 'sanctity of settlement conference discussions' in the case of asking for attorney's fees -- in that former spouse has done much to delay processes, too, by not acting on his stips. I need case law supporting this... Help! Thanks

Hello there


I apologize that your question has gone so long without an answer, but there is no "exception" to attempting to use the content of settlement discussions for any purpose in a court proceeding unless all parties who are part of the settlement discussions agree to the disclosures and it sounds like the attorney you are dealing with will not grant his permission for this. I am uncertain where you got your information, but many attorneys have reviewed this question over the last several hours and because we are unable to offer you any good news as an answer, the question has not been answered yet. So, I thought that it best that one of us let you know that you cannot use the settlement discussions in your rebuttal. However, if the sale of the house was not agreed to in any of the written documentation regarding your divorce, then you should put that into your rebuttal and make that the basis of your argument, together with the fact that you have put 50K in repair money into the property since your separation from your ex and your ex has done nothing -- if you can show receipts for this repair work then you can ask the court to be awarded that amount of money as a payback for what you have put into the house (if what you did to the house actually made it saleable then you should also mention that in your rebuttal). If you have already written the rebuttal and the attorney has filed a motion to strike, my suggestion is that you file an amended rebuttal and take out the references to the settlement conferences and simply state that you were led to believe that your ex would undertake certain improvements and when those improvements were not made, you had to put repairs and money into the property yourself (if you then attend a hearing on the matter and the judge asks you why you were led to believe that your ex would repair or help repair the property, it is at that point that you can mention that it was agreed to in the settlement conferences -- the lawyer will object, but at that point the statement has already been said and there is no way that you can take it back). I wish I had more definitive information for you on this, but the content of settlement negotiations can never be used against any party in court unless they all agree to the use of it --- that is how the courts encourage settlements.


Please let me know if you have further questions.




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