Real Estate Law
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I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your situation.
The only way to enforce a prenuptial or marital settlement agreement is through divorce court. That's the courts the Commonwealth has set up to hear these types of disputes. If you were to file in the regular civil courts on a contract theory, she would file a Motion to Dismiss, you'd have to pay your lawyer to fight it, and the case would be thrown out because it was filed in the wrong court. So, proceeding through the divorce court in the first place will actually be a lot cheaper because that's where you'll end up no matter what.
When you file a Motion to Enforce the agreements, she'll have to give her reasons for objecting in the Answer. Otherwise, she'll lose. But if her answer doesn't provide you with any useful information, your lawyer can either ask to do discovery or can file a motion asking the judge to order her to give you more information about her arguments so you'll have a way of figuring out how to refute them. Hopefully it won't come to that.
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So does filing for consent (she filed for divorce a yr ago) by my attny get this process started OR can my attny file for a motion to Enforce the agreements instead? Will this end up in ED or can we stand by the agreements as written? Her disputing these agreements without cause/ evidence is costing my a lot of attny fees - can I file to have her pay for these?
You always CAN stand by the agreements as written. But if she's choosing to dispute it, then the judge will have to hear her arguments before he can make a decision. She's probably going to try to claim that you forced her to sign the agreement, or that it favors you so heavily that it would be unfair for the judge to enforce it (those are the two most common arguments for trying to invalidate a settlement).
A motion to enforce would be filed if the divorce is already over and she's not following them OR if there are temporary orders in the settlement that she's ignoring. It is possible to ask the judge to order the other party to pay attorney's fees incurred because that person isn't following a settlement agreement or court order. That's a motion your lawyer can file.
So being that we are not divorced and she owes me for back property taxes for properties she owned, can I just file a claim in small cliams court since its for about $2k and it doesn't need more lawyer time/fees to get this ruling. My wifes attorney already admits she owns these per the prenup at time of separation so now I just need proof of taxes owed/paid. The tax dept gave me numbers over the phone but what docs do I really need to handle this myself?
You cannot sue your spouse in Small Claims Court. It has to go through the divorce courts. If you file in Small Claims, she's just going to show the judge that you're in the middle of a divorce and ask him to dismiss the case. He will, and then you'll be out the filing fees.
Finally, So with contracts agreed signed and performed on by her to refinance the marital home in her name with my $65k loan, and delinquent taxes I am out more and more legal fees simply because she won't perform her obligations. What good is a contract if when one parties benefits the other has to go to court spend a lot of money to enforce the contract? My attny filed both contracts to the court. so with all this cost to me for her defiance to perform how do I get reimbursed for my legal fees?
Without a contract, it would be much more difficult to make the other party do what they're supposed to do. The contract is proof of the agreement. The only way to enforce a contract, unfortunately, is to go to court. You can ask the judge to order her to reimburse you for legal fees she wouldn't have spent if she'd followed the agreement in the first place.