QUESTION
Is there any ethical problems in the division of assets?
Asked on Oct 21st, 2012 on Divorce - Michigan
More details to this question:
The law firm James & James represents the husband in a divorce action. One of the largest assets in the marriage is the husband's pension. The wife's attorney fails to inquire about the pension because he believes that pensions are not divisible are marital property. Consequently, the final divorce decree does not divide the pension.
8 ANSWERS
Divorce/Family Law Attorney serving Carlsbad, CA
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Anne B. Howard, A Professional Law Corporation
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If the pension is not mentioned, it is a missed asset. Try to get back into court. You will need an attorney to help you with this.
Answered on Oct 24th, 2012 at 5:25 PM
Criminal Defense Attorney serving Deltona, FL
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R. Jason de Groot, P.A.
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Ethical problems? The husband's pension is a marital asset subject to equitable distribution. If it was not listed on his financial affidavit or in the discovery materials, there is probably a fraud which can cause the final judgment to be set aside.
Answered on Oct 24th, 2012 at 5:25 PM
Michael Paul Vollandt
I California you have an omitted asset which can be fixed by a motion. I do not know about your state. But it sounds like your attorney committed mal practice.
Answered on Oct 24th, 2012 at 11:33 AM
Alternative Dispute Resolution Attorney serving Coral Gables, FL
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Robert J. Merlin, P.A.
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In my opinion, that is malpractice and you should consult with a local attorney who represents clients who seek redress from their former attorney. Florida Statutes Section 61.075 clearly states that retirement accounts are marital to the extent that they were accumulated during the marriage. To believe otherwise simply is not adequate legal representation.
Answered on Oct 24th, 2012 at 11:33 AM
Depending upon when the Judgment was entered it may be possible to reopen it on the grounds of mistake and get the pension divided. If too much time has passed, then the mistake of wife's attorney may be malpractice. You should consult a malpractice attorney to review the facts and determine how to proceed.
Answered on Oct 24th, 2012 at 11:32 AM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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Since you don't say what state the divorce occurred in, it isn't possible to be certain the attorney's opinion was wrong; but, almost every state views pensions as marital property at least the extent they were earned during the marriage. If your description of the attorney's failure is complete and accurate, he is probably guilty of negligence (malpractice) and you should consult another attorney who can assist in evaluating the situation and explaining options available.
Answered on Oct 24th, 2012 at 11:32 AM
Interesting scenario. You might want to consider talking with an attorney that specializes in legal malpractice.
Answered on Oct 24th, 2012 at 11:32 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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It is not an ethical question, the wife's attorney committed a professional negligence. Husband and his attorney are adversary to wife and her attorney and have no duty to assist them.
Answered on Oct 24th, 2012 at 11:31 AM