Posted on 07/23/2007 6:50:45 AM PDT by The Spirit Of Allegiance
A FReeper who shall be unidentified here asked for help in locating wise counsel regarding an ex whose debts have now resulted in a lien being placed on the FReeper's home and recorded on credit history, to much chagrin.
Looking for an attorney for at least a brief initial consultation, possibly a retainer.
Apparently there is a 'foreign judgment' involved, from an Alabama state court. Residence state of the FReeper will be disclosed privately.
Any suggestions or referrals would be appreciated.
Advice useless w/o that.
Generally these matters are decided by terms of instrument or act that created the debt as superior in date (before) to any separation agreement or divorce decree.
Example, Couple Ralph and Mary buy a car. Loan papers with SpeedyLoan for car say both are responsible. Both sign agreement.
Ralph and Mary divorce. Mary gets car and divorce decree or agreement says she will make all future payments.
If Mary does not pay for car, Ralph is on hook to SpeedyLoan because an agreement between Ralph and Mary cannot limit SpeedyLoan’s rights.
Basic legal principle here: A and B cannot make agreement to bind, require performance by or limit rights of C, without C being signatory to agreement. There are certain exceptions, POA, minors, the incompetent, etc.
Ralph can go after Mary for damages such as car payments if made, legal fees, etc. but if he signed loan papers with SpeedyLoan (or Mary had POA) he is on hook despite what a later agreement or divorce decree says, unless of course, Ralph has written release from SpeedyLoan.
In some states, SpeedyLoan would have been required to file the loan documents with local recording agency (County or Court Clerk) at the time they were signed and/or have signatures notarized at time of signing in order to collect from Ralph (establishes date of car loan)
FReeper needs to SEE A LAWYER. Most will give free consult.
Of course, since you are in People’s Republic of California, good luck!
>>>>AND the loan
Exactly, and that release must come from loan company, not ex-spouse.
I refinanced and completely cleared the old loan with a new bank and that was easy once the ex’s name was off the title. Only needed the ex’s signature on a single piece of paper drawn up by an attorney to get the whole thing done.
Saved me a world of hurt when her new husband managed to bankrupt them.
Maybe this isn’t the referral you were looking for, but I’m obligated to say it based on my one divorce many years ago:
Make sure that your FReeper friend gets the meanest, most aggressive, take-no-prisoners, let God sort ‘em out attorney that’s available. His or her (financial) reputation in the community and in society is now being destroyed, actively and with the full malicious intent of the “ex”. This is not an “accident” or “oversight”. The “ex” knows exactly what he or she is doing. This is an all-out fiscal assault against your FRiend.
If the FReeper is a man, get a female attorney, and younger (but not inexperienced) is best. No matter who, get one who will go (is *anxious* to go) on a search and destroy mission on behalf of their client. No slackers, no nice guys, no “we’ll negotiate”, none of that. Your FRiend needs a warrior, and most definitely not a “gentleman” (how did he/she get into this position in the first place?).
As for mine, about 20 years ago: After a long and very painful experience with “nice guys” and negotiators (aka “do nothing at all until court day”), I could endure no more and luckily found my “Dragon Lady”, a new-ish (4/5 year) female grad from a decent local law school. In the first hour she outlined 5 or 10 things she was going to do that hadn’t been done in the previous 18 months. I gave her total carte blanche to do everything and anything necessary. I almost no longer cared about the money (and this was *not* going to be cheap).
But within four weeks the whole thing was turned around 180 degrees, and “my ex” and her attorneys were begging for mercy. The were seriously frightened by what had been unleashed upon them in just a week (depositions, document production, subpoenae to nearly a dozen parties, etc). “Ex” was also informed that she was now facing several counts of perjury, including many demonstrably false written, verbal, and sworn statements before a probate court judge, and upon which their central position was based (this was entirely a financial dispute).
At the end of those four weeks they’d had enough, and asked for a settlement meeting. I joined in for just a few minutes (to approve the offer), and saw that “Dragon Lady” had assembled several foot-high stacks of financial documents on the table. “Ex” and her “team” on the opposite side looked at me with the most crushed and dejected expressions, I knew the perjury problem had been hammered on by Dragon Lady. In fact they were in danger of losing everything for the repeated perjuries.
I think you get the point, this is the kind of representation you need when someone (even an ex-spouse!) is out to damage and/or destroy you and your reputation. It’s tough but must be done in many divorce situations. In my experience and observation with other friends and acquaintences, the guy is more apt to lay down and play dead in the interest of misguided chivalry.
I mean every word I’ve said. Do the right thing and get the right person, even if it’s not something you’d prefer to do.
With one critically important caveat. Make sure your atty’s opening line is something like;
“OK, at least one of your wants be divorced, so in accordance with the laws of this state, you will be divorced.
Doesn’t matter if one you wants stay married. If one of you wants to be divorced, you’ll be divorced. That’s the law. Period.
Secondly, understanding that you can do one of two things. I’m sure you have great stories that you could tell a jury that you think would swing them to your side. So does your wife/husband.
Here’s the secret. It matters almost nothing. The court has a “formula” as to who gets what after the divorce, with very little change regardless of who is at fault.
The judges don’t have time to hear all the he said/she said stuff, so they simply have a set formula as to who gets what.
Forget the TV dramas. It’s already been decided by custom what you’ll both get.
Now your lawyer and I can play the game and run up huge legal bills or we can all sit here today as reasonable adults and work it out.
No one will get everything they want, but if we settle it today, you will both get a lot more real assets at a lot less expense, with a lot less hate and anger than you would ever get otherwise.
If we don’t settle it today, I’m a barracuda. I’ll make your life miserable, and the lives of your friends, coworkers, employers, employees, golf buddies, everyone..., miserable.... but I don’t want to do that.
So it’s up to you. Want to settle fairly, and when I say settle fairly since you have your lawyer here, I would never propose anything that both of us don’t agree is fair for the both of you.
Your lawyer, Mr. XXXX is a very good lawyer and I think he would agree, we have better things to do than ruin the rest of the lives of the two of you just so we can make some high legal fees.
So, it’s up to you.......
Also, in any civil litigation, since financial damages are being sought in virtually every case, demand tax records AS FILLED WITH THE IRS, passports with entry and exit stamps, credit card bills and the like.
At that point, many fold and go away.
Without the state (and for most states, location within the state) no one is going to be able to help. See post 5, that’s a good general summary from MindBender26; you are going to need a local lawyer to get more specific info.
I am an attorney, and know a bit about debt collection law in Texas. I also must preface this that this is not specific legal advice because (1) I don’t know you or your situation, (2) I don’t know the state of origin, and (3) I wouldn’t give specific legal advice on a public board. So - take it for what it’s worth.
You specifically withheld state in this - and without that information it is virtually impossible to give any binding advice whatsoever.
Though - in part - I can say the following. In a divorce situation, debt, like an asset, is generally controlled by the divorce decree. The party responsible for particular debts should be identified in the divorce decree (presuming the debt was a pre-divorce debt)?
However, a divorce decree is cannot control the rights of a creditor (as the creditor is not a party to the decree) ... so the creditor can probably still sue - and recover from - both the husband and the wife (regardless of who was given the debt in the decree). The divorce decree should allow the husband to recover from the wife (or vice versa) for any debts not deemed his/her responsibility under the decree.
My advice ... seek an attorney in your State, with knowledge of your state’s debt collection laws, to help more specifically. A web-board isn’t really the best place to ask for legal advice - it isn’t confidential, and isn’t really a good place to screen actual accredited attorneys from nutjobs.
Hope this helps some.
H
Your point is a good one but....
I'd bet that 90 percent of divorces begin with sentiments of sadness, fairness, and empathy. And a desire to refrain from a catfight.
But when money is at stake, and lawyers are in the picture, that 90 percent fast becomes 80, then 70, then 60, then 50 (or less). Unfortunate but true, I've seen it happen with too many friends. The "fair and honest" equitable divorce is desired but seems a rarity, unless very few assets are involved. Why fight over nothing?
As I said in my post, I (and my layabout attorney) did nothing, said nothing, spent nothing, and filed nothing for 18 months. Yes, my "ex" was spending a lot on her attorneys, but it was MY name that was being sullied and dragged through the mud, and entered into the public record. I guess one's tolerance dictates how long that kind of thing can continue.
Finally, the judge doesn't decide the outcome of a settlement made in a private conference room. The settlement we reached was precisely the one I offered a year earlier. Only difference was that they effectively paid my last month of attorney fees (about $7,000).
The logic of avoiding a "nice" and "reasonable" attorney applies not only to divorces, but to virtually every other legal matter of any consequence. If I want "nice" and "reasonable", I'll do it myself. But that's not the way the game is played.
Yeah, that was implicit in my explanation.
The more papers demanded and subpoenaed, the more nervous they became. The stacks of documents my attorney assembled for the settlement conference were theatre, pure and simple (my requests for papers from the home filing cabinet had been ignored for more than a year).
And when they saw the witness list for trial (which "ex" was demanding), they caved, absolutely. endgame.
It would be a "nice" thing to be "nice", if everyone would just play "nice". But they don't, and so we have subpoena and witnesses and trials and judges and lawyers.
To try to ignore it, deny it, hide from it, and "this too shall pass" is a noble thought.
But when someone is actively destoying your reputation and credit and community standing and etc., it's just plain stupid to "take it like a man". Men like to do that, but it's still stupid, it's not noble, and it's not chivalrous.
An "ex" must be called to account if they continue to mess with your life in such a serious manner.
Agreed. I'm the nutjob *and* the unaccredited non-attorney :) My advice isn't and wasn't legal advice. It's my experience and that of other close friends who have gone through this sort of nonsense.
The "ex" in this instance knows precisely and exactly what they're doing, which is not paying a bill, knowing that you're liable for it.
And not just momentarily, but long enough to damage your credit rating and reputation. That is serious, and it's deliberate.
It looks like a prior lawyer, presumably a "nice guy" type of lawyer, didn't tie this particular loose end. That's bad news. Divorces (except in the case of kids) must end with absolute maximum finality. That can be painful but it is best for both, since there won't be any latent feelings of "getting back" at the other "ex", like as in .... oh, say... not paying leftover joint bills so as to hurt the other's credit rating. Hmmmmm......
IMO that's as bad as any stalking or theft or other assault and must be dealt with severely, with finality, and in the most aggressive possible legal manner. "Nice" doesn't work when "ex" wants you to pay and pay and pay. Unfortunately, it's DEFCON 3, so roll out the nukes.
Your post lacks sufficient detail for a meaningful response. Any advice you get here may be not applicable because of the omission of essential detail.
>> Agreed. I’m the nutjob *and* the unaccredited non-attorney :) My advice isn’t and wasn’t legal advice.
I wasn’t referring to anyone in particular ...
>> The “ex” in this instance knows precisely and exactly what they’re doing, which is not paying a bill, knowing that you’re liable for it. And not just momentarily, but long enough to damage your credit rating and reputation. That is serious, and it’s deliberate.
Possibly - maybe not. Either way, it won’t change the liability situation, though. The creditor can still nail you on the debt ...
>> It looks like a prior lawyer, presumably a “nice guy” type of lawyer, didn’t tie this particular loose end. That’s bad news. Divorces (except in the case of kids) must end with absolute maximum finality.
There is a place for scorched earth lawyering, and a place for less aggressive means. I’ve had my moments as both. A good negotiator can bring even the most aggressive opposing counsel to a reasonable position. But - you’ve got to know when to threaten, when to be a “nice guy”, and when to flatten someone.
An attorney that goes straight to scorched-earth isn’t usually a very good attorney. Escalation is often necessary - but you can’t escalate if you’ve already used the nukes.
Its like chess ... keep a straight face, strategically position yourself for victory, then strike with only the necessary force (whether that be in a negotiation, or a lawsuit). Conserve the big guns if you can ... you may need them later, and if you don’t, things may be more amicable.
By the way - I do mostly transactional law ... mergers & acquisitions, securities, contract negotiations, some lobbying, etc. I’m not a family law attorney or even a litigating attorney.
H
Thanks to you all for feedback. I’ll refer this thread to our FRiend to determine where to go from there.
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