Beware of legal terminology

iVillage Member
Registered: 03-29-2014
Beware of legal terminology
6
Sat, 03-29-2014 - 7:34pm

Divorced for 6 years...married for 29.  1-1/2 years ago my ex decided to want out of the separation agreement terms.  This was not merged with the divorce and is just a legal contract.  Common in my state.  So I filed a breach suit 10 months ago.  Now, they have put forth an offer to settle....and said that the following term (read the next sentence) is ambiguous and therefore they will appeal any decision in my favor and therefore keep me tied up in the courts for a year more likely 2 or more.  It states: "It is the INTENTION of the parties.....and that the Husband SHALL......  So now he is wanting out of the agreement due to the word "intention".  We did not use attorneys but I have had an attorney for over a year now and have been told that the legally signed and filed contract is totally binding and the judge would uphold the contract.  She met with his attorney's who conveyed the threat to her that not only would I be tied up in the courts for a very long time but that the entire contract would then be on hold and not enforceable until the appeals are completed.  Meaning...my alimony would continue to be withheld from me.  I've read many sites and legal findings and the terms INTENTION and SHALL are both used.  But it is up to each individual judge I guess.  It is my feeling that my attorney is letting them threaten us into accepting very little of the terms agreed upon instead of fighting for me.  It is well known that I cannot afford to pay for another attorney.  This attorney accepted one lump sum and I believe she had no idea what she was getting into and now does not want to have to put further time into my case.   Anyone know anything about the terms "intention" and "shall" in a legally binding contract?  They are also claiming that since I typed up the agreement then he should not be bound to it.  Actually, I typed it (using a legal separation form) after he and I emailed it back and forth while working on the terms (in an effort to avoid attorneys and the messiness of that).  We met in person, went over it, he took a copy to read and have looked at before we signed.  We then had it notarized and HE filed it with the court asking it to be merged with and become the terms of our divorce.  There was an error made by the judge's clerk and the merge never happened.  Anyone have any suggestions??

iVillage Member
Registered: 11-28-1999
Sun, 03-30-2014 - 12:45pm

This is much too complicated an issue--I'm a lawyer and I wouldn't know what to do about the intention and shall terms because in our state every separation agreement is automatically part of a divorce judgment and has legal effect.  I do know that just because one person "typed" it doesn't make any difference--one person always has to draw up the agreement and if the other person signs it and has it notarized, it still has full legal effect.  A lot of people do threaten that they will do this or that to force you to accept a settlement--doesn't mean they will actually do it.  And if they did appeal, couldn't you ask for temporary support?  I do think this situation points out that it's usually a very big mistake not to have attorneys when people get divorced, unless both people have very few assets and there are no kids involved.  It's too easy to make a mistake.

iVillage Member
Registered: 03-29-2014
Sun, 03-30-2014 - 4:08pm

Musiclover...thank you for replying.  I agree, it is a complicated situation.  He has agreed to pay the alimony if I will sign off on the insurance clause.  He also forged my name to a "health indemnity" last year in an effort to deceive me and then to get out of the insurance clause.  He had previously covered me under his employer and I now believe that he lied to them and continued to mark himself as "married".  I am unable to find this out for certain but my attorney has told me that there is no doubt he did that, however, she will not request any information on that.  I've been unable to get anyone to do anything about the forgery and fraud in regards to the insurances even though he had been informed to cease and desist using my personal information.  Now, I'm looking into legal aid and have so far hit a brick wall stating that I am not being physically threatened.  Even if the "intention" phrase may be ambiguous, his emails and correspondense following that are all very clear and he states over again that he will always uphold his end of the legal separation.  I was the dependent spouse for 29 years...as I was a homemaker.  

You are very right on your statement about not trying to do things without attorneys.  I've learned a very hard lesson and hope that others will not follow down that same path.

Community Leader
Registered: 09-25-2003
Mon, 03-31-2014 - 8:37am

Why not get a second opinion from another lawyer?  It sounds like you want to fight this, and your lawyer does not.  I am hoping that the new lawyer I found will work for me to fight the abusive, narcissistic personality so that I don't get raked over the coals.  My previous two lawyers "caved in, " resulting in no perjury (he lied while under oath).  If you are not getting the activity you want, you deserve a second opinion.  However, I would not give the second opinion lawyer the name of your current lawyer, as it will be breed a bad relationship should you continue to use your current lawyer.

iVillage Member
Registered: 03-29-2014
Mon, 03-31-2014 - 11:02am

I am working on getting another lawyer but funds are preventing that at the moment.  It sounds like you have been through the maze that legal cases can end up being.  I like the phrase you used..."caved in".  That is exactly what I feel my attorney has done.  My attorney is not even willing to pursue the forgery issue (he forged my name) and thinks I should just laugh it off.  However, it was used as a ruse to get out of part of the legal separation.

I don't know the details of what you are going through legally...but I wish you the best, as I understand the toll this can take on someone's life-physically, emotionally, financially.  

iVillage Member
Registered: 09-24-2007
Tue, 04-01-2014 - 7:33am

Hugs,

I unfortunately don't have words of encouragement.  

My experience is that there are good lawyers and bad ones.  There are good judges and clueless ones.  My XH is an attorney and very very good at burying me with paper and running up my bills with a variety of delaying tactics.  Even though we have a contract that clearly stated he was responsible for certain things, he violated the contract for years only complying right before we went before the judge.  Since he was paid up at the time we went before the judge, the judge refused to impose any punitive measures to prevent my X  from playing the same game in the future.

We were also up for a child support review (my XH's income has nearly doubled since our D).  My attorney was very clear, I was entitled to an increase in CS but knowing my XH's talent for running up the court costs, she estimated that it would cost me way more to litigate the issue than what I could expect as an increase.  Bottom line, not worth it.

In these situations you sometimes have to swallow your frustrations and indignation and suck up the reality of the situation.  What is the cost benefit?  If it's going to cost you more than what you will get in return - it's just not worth it.  Fairness doesn't come into the equation.  My XH has WAY deeper pockets than me, he could afford to grind me in court in order to win and ultimately I walked.  Yes it sometimes still pisses me off but I can't waste my life being bitter over this.  

I wish you the best.

Community Leader
Registered: 09-25-2003
Wed, 04-02-2014 - 8:27am

Rmdp, if you had a really aggressive attorney, he/she could prove the games/contempt, and recoup your legal costs in addition to getting more child support.  All it would take is to request the tax return as well as the W2 and end-of-year paystub.  Your attorney could also ask for a financial affadavit along with all financial records, thereby burying YOUR ex with paperwork.  Just saying....

I found a lawyer that feels she could (finally) prove criminal perjury (the statute of limiations ran out on the civil perjury.)  If she takes my case on, I just may pay her to do that because I need to set a boundary once and for all!  I am sick of the games.