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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Can the defendants attorney change the grounds for divorce

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Can the defendants attorney change the grounds for divorce once the divorce is in the final stages and about to go to trial?

More detail:

Trial is 6 weeks away. On the morning of the defendant's deposition, his attorney indicated he had changed the plaintiff's grounds from adultery to neglect with notification by email to plaintiffs attorney that morning. He then objected to every question prepared by the plaintiff's attorneys regarding infidelity and the defendant did not answer. The deposition was a waste of time. The plaintiff was told the questions asked but unanswered had been certified and presented to the Court for a decision on whether to answer. There is no further time for plaintiff to schedule another deposition. The plaintiff's deposition had already been completed and there were no objections to any of the def's attorney's questions. The grounds remained adultery at that time. The plaintiff was asked a week prior to the def's deposition if she would change grounds from adultery to another grounds and she responded no. How can this happen? Hasn't the plaintiff's case now been prejudiced? How can the def's attorney suddenly change the plaintiff's grounds?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Up to the trial, either party can change and modify the claims and defenses in the divorce. The defense attorney cannot change the plaintiff's grounds for them so I do not know what is going on in your case. The defense attorney cannot pick and choose the grounds the plaintiff has chosen to pursue the divorce under and something is seriously wrong with this defense attorney or something else happened in the case between your attorney and defense attorney you might not know about.

However, there is nothing that allows the defendant to change the plaintiff's grounds for a divorce.

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Customer: replied 3 years ago.
I initially saw an email from defen attorney to plaintiff's saying "Can we agree that grounds will be incompatibility?"

My lawyer (plaintiff) then asked me if I wanted to change to incompatibiity from the grounds we had filed - gross neglect, extreme cruelty, adultery

I answered no

She conveyed this to defend attorney

Defen attorney then wrote something like "we are wasting clients money having the court address the grounds"

I did not see anymore emails until the one below which was sent the night before the defendants deposition. At the deposition, the def attorney advised defen not to answer any questions about adultery/infidelity as adultery was no longer grounds and the deposition was wasted time and effort and money. My lawyer's response to my WTF? was to blow me off with "the court will decide the grounds, it is not up to you or me or glen hazen or your husband" Again, my question is "WTF"??????

--- Forwarded Message -----
From: Glen Hazen <[email protected]>
To: Randal Bloch <[email protected]>
Sent: Thursday, September 19, 2013 8:17 AM
Subject: Sigrest


Ted Sigrest will admit to the allegation of gross neglect of duty.

Accordingly, discovery on the other grounds for divorce will not be necessary.

Glen E. Hazen, Jr.

Law Office of Glen E. Hazen, Jr.

810 Sycamore Street, 4th Floor

Cincinnati, Ohio 45202

Thank you for your response and clarification.

Just because he will admit to one of the grounds that does not negate your other grounds and the court will order him to answer those deposition questions he refused to answer about the adultery in most all cases. However, you also need to consider whether or not you want to invest money litigating this in court, because once he admits to one of the grounds for divorce, the divorce can be granted, but if alimony and child custody are in contention here, then because the Ohio court uses fault to determine both alimony and child custody, this would be something you would want to consider pursuing to force him to answer.

The defense cannot just pick and choose to change or dismiss grounds you have alleged, so they will have to answer.
Customer: replied 3 years ago.

My lawyer tells me there is not enough "time" to redo the deposition to get these questions answered as now to have the court force him to answer, the deposition has to be transcribed which took 3 weeks in my case, then the court has to review it (more $ and time) and the trial is set for mid November. I feel this has unfairly prejudiced my case now. My chance to have the same fair deposition as his attorney got from me is lost unless the judge will allow more time to repeat the deposition. In addition to this, I had specific questions I wanted asked at the deposition, my lawyer and I talked about these beforehand, she agreed to ask them, then she never did. At the end of the deposition when I kept trying to signal her I still had not got my questions asked, she ignored me. So now, my questions as well as all relevant questions to the adultery have gone unanswered. Is this not enough to grant me more time to level the playing field with a re-do deposition?

Also, he wants to avoid answering questions about the adultery(s) because he is currently being investigated by the state board of med licensure for sexually inappropriate behavior. I believe he is fearful of incriminating himself. I am looking for spousal support. Both he and the woman have already admitted to the adultery. They couldn't deny it as the process server was also the private investigator and caught them redhanded in a motel room where he then served the papers on him.


He also wants to avoid answering adultery questions because I have also filed a alienation of affection suit against the woman in Mississippi. His lawyer claims we are only seeking grounds for adultery to be able to ask these questions to also provide discovery for that suit. So what? It's convenient. He will also be deposed for that case as well anyway.


But can his lawyer make this assertion and force the grounds to be neglect instead of adultery anyway? Because he admits to neglect? He also admitted to adultery.

Your lawyer can get a continuance on these grounds, which for some reason he might not want to pursue.

His attorney CANNOT change your grounds and you have grounds to purse this. Your attorney will have to force the deposition answers by motion and file a continuance based on the respondent's non-cooperation in the deposition and the case is going to take longer.

Yes you have been prejudiced, but it does not destroy your alienation of affection suit in MS because you can subpoena him to a deposition in MS and make him answer to the adultly and then he will try to argue that adultery was not part of your divorce, which is what his attorney is trying to do with this strategy.

You are going to have to get your attorney to pursue the deposition answers and ask for a continuance of the November hearing to get it done.
Customer: replied 3 years ago.

Thank you! One last question.



I had very specific questions that were very important to me personally to answer. They actually had more to do with neglect and cruelty which they had no questions prepared for other than mine.


Do I not have a right to have my question answered?



I do have a separate question but it is very brief: If I start to date at this point, would notifying him that I intend to spend time with an individual but also intend to limit the relationship to a friendship until the divorce is final, intend to keep the relationship platonic until the divorce is final, and giving him the opportunity to acknowledge and respond that he doesn't have an objection to this and thereby also agrees to not attempt to make any accusations of infidelity. Would this protect me from being accused of adultery in the same way that once one marriage partner becomes aware of the other's affair yet doesn't object to it protects the adulterous party?

Thank you for your response.

You have a right to have all questions posed in the deposition answered unless the court finds they serve no purpose other than to embarrass, annoy or harass.

It is not adultery when you are in the process of going to your final divorce. You should not tell him anything at all, that would only bee sen as rubbing his nose in the fact you are dating. What we tell our clients in these cases is that while you can date, be discrete and do not flaunt it before the final decree is entered and that is what I will tell you. If you date, you need to keep it quiet and use your utmost discretion in the relationship.
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