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I have recently had a divorce and felt that my attorney was

Customer Question
negligent in giving me...
I have recently had a divorce and felt that my attorney was negligent in
giving me the right advice in representing my case. I felt that she steered me
along the wrong course and was not prepared when we appeared in front of the
Judge (she was told so). As a result my ex who had little retirement and had
spent most of his time in jail or out of a job collected more than what I
remained with. In addition I have to continue to pay for house expenses and pay him an additional $800. per month.

Could you tell me in terms of cost and in terms of whether I have a case if I should try to overturn this judgment.

Jackie Bynoe
Submitted: 9 years ago.Category: Family Law
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Answered in 1 hour by:
10/1/2008
Family Lawyer: AlexiaEsq., Managing Attorney replied 9 years ago
AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 13,580
Experience: 19+ Years of Legal Practice in Family law matters.
Verified

DearCustomer

 

Thank you for your question and I look forward to assisting you. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, oftentimes there are future facts that are as yet undetermined in your matter, that can and must leave some areas of information provided by me broad in nature. However, don't hesitate to ask for clarification if needed! At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break. That being said...

 

The bad news is, getting a case overturned based on your attorney's poor representation is a tough one to guarantee, particular from this venue, where we can't have access to the full file - you would have to likely show malpractice, rather than a subsequent lack of happiness with the result, in hindsight. A signing of a settlement agreement is generally binding and non reversable unless you can show you were not of sound mind, were coerced, or the like. Generally, agreeing to a settlement of issues will not be overturned due to a subsequent change of heart and because both sides generally have compromised off of their original demands, neither side is usually not 100% pleased. Thus, you really can never guarantee a reversal. However, you can file an ethics complaint against your attorney if you think she did not live up to a competent level when representing you, particularly if you can show it was detrimental to the outcome. This shouldn't cost anything to do. But again, remember that being unsatisfied with an agreement that you made will not suffice - you will have to give tangible examples of where she failed to properly advise, legally speaking.

 

However, the good news is that you do have the option of filng a motion to modify spousal support and you can do this pro se if money is a factor (when isn't it, right?) - although it will take a little studying up of course to do it on your own, people self-represent in this area all the time.

 

The court's authority to modify spousal support agreements is governed by Ca Fam §§ 3590-3593. The provisions of an agreement for spousal support are subject to subsequent court-ordered modification or termination except as to amounts accrued before the date of filing the motion to modify or terminate and except to the extent the parties expressly agreed otherwise. [Ca Fam § 3591(a),(b),(c)]

 

(Caveat: A spousal support order may not be modified or terminated to the extent the parties' written agreement or, if no written agreement, their oral agreement entered into in open court, expressly provides spousal support is not subject to modification or termination. [Ca Fam § 3651(d)]---so check you agreement.)

 

When deciding whether to seek a change in support consider that a spousal support modification may be granted only if the party seeking the modification shows a material change of circumstances since the most recent order.

 

Whether a spousal support modification is warranted "depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court . . ." [Marriage of Olson (1993) 14 Cal.App.4th 1, 7, 17 Cal.Rptr.2d 480, 485; Marriage of Tydlaska, supra, 114 Cal.App.4th at 575, 7 Cal.Rptr.3d at 595-596]. So long as the trial court exercised its discretion along legal lines, its decision will not be disturbed on appeal if there is substantial evidence to support it. (Reversal requires a clear showing of abuse of discretion-rare, particularly if you yoursevles provided the court with a signed agreement).

 

Also, while proof of changed circumstances is required for a modification, the converse is not necessarily true: i.e., the court is not bound to alter or terminate support simply because one party has proven some change. There must be a substantial, material change (and of course, it is somewhat discretionary and subjective on whether a change in circumstances is 'substantial' and 'material'...)

 

When deciding your motion to modify, the court will have to consider and weigh all of the appropriate spousal support factors under Ca Fam § 4320. Those factors are:

1. Ability to maintain marital standard of living in light of earning capacities: The extent to which the parties' respective earning capacities are sufficient to maintain the standard of living established during the marriage (Ca Fam § 4320(a)).

 

---Under this one, you can argue that the ex has an ability to earn X amount more than he is earning now, particularly if he is not working full time to using all of his skills.

 

2. Contributions to other spouse's education, training, etc.:
The extent to which the supported spouse contributed to the other spouse's attainment of an education, training, career position or license. [Ca Fam § 4320(b)] Section 4320(b) is a companion to Ca Fam § 2641, which creates a right of reimbursement for community contributions to one spouse's education or training that "substantially enhances" the spouse's earning capacity.

 

-- I don't foresee this one helping you, as it wouldn't constitute a change.

 

3. Supporting spouse's ability to pay: The supporting spouse's ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. [Ca Fam § 4320(c)]

 

--- I.e. if you income decreased. However, if it hasn't changed, but the agreed amount is actually a true and severe hardhip, I would urge this point.

 

4. "Needs" in light of marital standard of living.

 

5. Parties' assets and debts: The parties' respective assets and obligations, including the separate property of each. [Ca Fam § 4320(e)] Thus, aspouse's separate estate (including assets allocated to each as a result of the community property division)--and the reasonable income potential therefrom--may require the "withholding" of support altogether or a termination of previously-awarded support. [Ca Fam § 4321(a)].

 

6. Duration of marriage. [Ca Fam § 4320(f)] The length of the parties' marriage bears both on the "need" for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other § 4320 factors and the "totality of the circumstances," offset alleged "need" and justify a lower level of support and/or a shorter support term.

7. Employability of custodial spouse vs. impact on children: The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody. [Ca Fam § 4320(g)]

 

8. Age and health of the parties. [Ca Fam § 4320(h)] On balance and after weighing all of the § 4320 factors, age and health may warrant either an extension or withholding of support. Age and health considerations are also particularly relevant to the question of duration of support.

 

11. Relative hardships: "The balance of hardships to each party." [Ca Fam § 4320(k)] This factor seems to underscore the court's obligation to consider and weigh all of the § 4320 circumstances in determining the appropriate amount and duration of spousal support.

 

12. Goal of self-support: "The goal that the supported party shall be self-supporting within a reasonable period of time." [Ca Fam § 4320(l) (e)] Except in marriages of long duration (as described in Ca Fam § 4336, a "reasonable period of time" within which to achieve the goal of self-support "generally shall be one-half the length of the marriage." [Ca Fam § 4320(l)]

 

-- This one you should definitely keep in mind for down teh road.

 

13. Spousal abuse conviction (mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory factor to be considered in making a reduction or termination of

spousal support in accordance with Ca Fam § 4325. [Ca Fam § 4320(m)]

 

14. Other "just and equitable" factors: "Any other factors the court determines are just and equitable." [Ca Fam § 4320(n)] This final factor is a "catch-all," clarifying the court's authority to consider any other circumstances, although not expressly codified, bearing on the propriety of awarding support and, if so, its amount and duration.

 

--- There is nothing to say that you can not urge that the agreement you made is far from equitable and that your attorney was unprepared and pressured you to sign an extremely poor agreement and did not explain to you th e extent to which the law would have favored you differently from your agreement on the terms..

 

I know it is an extremely tough decision - hopefully the above factors will hlep you decide one way or another.

------------------

I hope you have found this information informative and/or helpful. If so, please click the GREEN "ACCEPT" button NOW, in order that it be recognized as such and I receive credit for same from the company. Your promptness is greatly appreciated. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you need additional related follow up on this particular question afterwards, don't hesitate to Reply. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of post. Thanks!

 

Sincerely,

 

Stephanie Joy

 

Please note: A times there can be a delay of an hour or more in between my answers because I may be helping other customers or taking a break. In addition, if it is late at night, EST, and we are between postings, I may go get some shut eye, but I'll be back, so never fear. On Saturday, there will be greater gaps in time due to scheduling, for any needed follow up, but rest assured, by day's end it will be done.

Legal Disclaimer. The information given by me here is not legal advice. You should not and may not rely on anything on this website as legal advice and you agree that the nominal price you may pay for information here clearly does not pay for any legal advice. I am neither establishing nor accepting an attorney-client relationship with you. The only method of gaining an attorney/client relationship with me is via a retainer and fee agreement at my standard billable hour rate of $275.00, which is not offered via this site. I am providing only research, resources, opinion and information for you to be informed and educated about your particular needs and my answer is limited to the facts presented with the understanding that you will do your proper due diligence and appropriate follow up if needed. I do not provide general or specific legal advice on this site. I also do not claim to be licensed to practice in the state where this information is being provided or state whose law would apply, if any. My licensing credentials are noted in my profile, which you have full access to. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and its associated sites. As law is always changing, you are recommended to speak with the appropriate legal counsel for accurate and complete information. Thank you and have a great day.

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Customer reply replied 9 years ago

Here is some more background on this case: This marriage is a 30+ year old marriage. I was not ordered to pay spousal support. The $800 is based on the fact that the fair rental value of the house works out that I would owe him this amount until the house is sold. I am a teacher and working part time-so spousal support was not granted. Because of this determination, my standard of living will be reduced. He will be enjoying a higher standard of living as he will receive more money when the decree is finalized, and I will receive way less that he does. He will inheret his parents home, but I would have to rent a small apartment, or room. Due to long delays and postponement over 3 years of this dissolution, I have paid my lawyer a lot more than he had to and my retirement resources have been depleted. I am not sure if I should pursue this, as some of the advice was not in written form. I am wondering what I should do?

 

The judge gave us 4 hours to come to an agreement and I agreed to his conditions.

At the time I was in shock that she was sending us back to the drawing board, as I had waited for 3 years to get to the trial. This was because she was not prepared.

 

I was shocked, felt coerced to come to an agreement, and couldn't think through the situation in such a short time.

 

My question is could this be overturned.

 

 

Family Lawyer: AlexiaEsq., Managing Attorney replied 9 years ago

HelloCustomer I thought you got lost, glad to see you back. I know this is a difficult subject for you.

 

I'm am so sorry about what has happened to you - I detest when a judge or attorney pressures a litigant to settle (sign an agreement) at all, not to mention in 4 hours. The sad part is, there was nothing they could do to you if you didn't sign that particular agreement that you didn't like (or, didn't have time to determine if you didn't like it, more accurately.) If the judge wanted it over that day, he would have had to make the Order as he saw fit without your agreement, and that would have been better for you because at least it would not have been something you agreed to. Unfortunately, I see this frequently.

 

It is not clear from your facts why you believe your attorney was not prepared, although I do understand you feel that way, and that the judge did also.

 

As for certain terms of your agreement: if I am clear, because he owns 1/2 the house and you own 1/2 the house, and because you are living in it, you are paying him 1/2 the rental value, yes? (Since you don't pay spousal support, is the $800 actually because you are using his "1/2" of the house in addition to your own?.) That would actually be considered fair in general, (particularly in CA where it is a community property state) unless there are facts not known. But, if you don't want to pay $800 for a $1600 rental, is there any legal reason why you can not move out to somewhere less expensive? Also, can you not rent it out to third party pending sale, and use your 1/2 of the proceeds to pay your rent elsewhere? Also, is there a mortgage that must be paid - is that includedin 'house expenses' or are the house expenses actually utilitiies that you and only you use?

 

With regard to his potential future inheritance, you could have used that (and any other fact) as a reason to not sign the agreement as it was - I possibly would have argued for that consideration. (If the judge had made he decision, rather than you submitting a signed agreement and asking the judge to pass it, he may not consider a future possible inheritance when determining your ex's needs now, as inheritances are technically not guaranteed, by any means - - I also know that is a hollow fact, particularly if you are darn sure he is to be left a chunk by his parents - that could, of course, be many years away.)

 

You don't mention how/why he will recieve more money when the decree is finalized, so I can't comment on that.

 

With regard to your repeated question "could this be overturned", in addition to the modification provisions provided above, I have to repeat my answer above, as much as you would like a chrystal ball, we just don't have that ability. To overturn the judgment, - Yes, it is possible, it is also possible not - it depends largely on what you can prove - and again, judgments and agreements are ment to not be overturned - so the burden of proof is heavily on you. You would have to prove coercion, duress, etc. - it may help if the judge's comment to your attorney that she was unprepared is on the record - because if you want to make a Motion to vacate the judgement, you would argue both ineffective assistance of counsel (and after getting the transcript of that hearing date, you can cite to the fact (proof) that the judge found her unprepared, ergo not representing you properly) combined with a resulting pressure/coercion (with very close paraphrasing of whatever was said to you, if off the record, that made you feel coerced, as you don't describe it here).

 

A motion to vacate the judgment will cost possibly a few thousand if you use an attorney, or next to nothing if you don't.

 

So, to be clear, yes, the judgment could be overturned. Depending on what you can prove, in terms of your coercion and poor counseling.

 

I wish you the best with this. I also hope that you home can be sold sooner rather than later and this real estate market in your area moves in your favor so you can move on in that regard.

 

I hope you have found this additional information informative and/or helpful. If so, please click the GREEN "ACCEPT" button NOW, on 1 or more than 1 answers, in order that it be recognized as such and I receive credit for same from the company for the time and effort. Your promptness is greatly appreciated. In addition, Positive "FEEDBACK" and BONUSES are also appreciated, particularly when the customer included multiple questions in their single post and multiple answers and interaction were provided by the expert. If you need additional related follow up on this particular question afterwards, don't hesitate. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of post. Thanks!

 

Sincerely,

 

Stephanie Joy

 

Please note: A times there can be a delay of an hour or more in between my answers because I may be helping other customers or taking a break. In addition, if it is late at night, EST, and we are between postings, I may go get some shut eye, but I'll be back, so never fear. On Saturday, there will be greater gaps in time due to scheduling, for any needed follow up, but rest assured, by day's end it will be done.

 

 

Legal Disclaimer. The information given by me here is not legal advice. You should not and may not rely on anything on this website as legal advice and you agree that the nominal price you may or may no pay for information here clearly does not pay for any legal advice. I am neither establishing nor accepting an attorney-client relationship with you. The only method of gaining an attorney/client relationship with me is via a retainer and fee agreement at my standard billable hour rate of $275.00, which is not offered via this site. I am providing only research, resources, opinion and information for you to be informed and educated about your particular needs and my answer is limited to the facts presented with the understanding that you will do your proper due diligence and appropriate follow up. I do not provide general or specific legal advice on this site. I also do not claim to be licensed to practice in the state where this information is being provided or state whose law would apply, if any. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and its associated sites. As law is always changing, you are recommended to speak with the appropriate legal counsel for accurate and complete information. Thank you and have a great day.

AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 13,580
Experience: 19+ Years of Legal Practice in Family law matters.
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