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FS-Lawyer Tells Me to Lie & Pension Double Dipped
Jan L. Warner & Jan Collins

Question: My wife and I have had problems for years. We both keep the family finances on our computer. In an effort to not have excess paper, I would scan into the computer what was important and destroy other papers every two years or so. Keeping good records was important because my wife is the beneficiary of a few trusts and has inherited a good bit of money over the years. When our problems did not subside, I decided to consult with a divorce lawyer.

When I gave my lawyer the facts, he told me that because my wife's non-marital funds were the source of the vast majority of the assets we had acquired, my share of the property would probably be minimal. But, he said, without the records on the computer, it would be difficult and expensive for my wife to reconstruct various transactions.

He told me that it would be to my benefit if the computer records were not available, and suggested that I make backups that only I would keep and then delete the records from the computer to put us in a better bargaining position to get a bigger share of the property.

Not only was I surprised that this lawyer would talk this way, but I began thinking about what would happen if my wife's lawyers had already advised her to get a copy of everything on the computer without my knowledge, and before I deleted the records and lied about their existence. What should I do?

Answer: It is axiomatic that lawyers should not (1) counsel or assist clients in criminal or fraudulent conduct, or (2) use false evidence. Your lawyer's advice amounts to him helping you engage in conduct that involves dishonesty, fraud and deceit. In fact, by suggesting that you lie under oath, your lawyer is placing you in the position of being indicted for perjury. Telling a client to destroy evidence is a breach of a lawyer's professional responsibility. We suggest that you get another lawyer and report to your state bar association.

Question: Five years ago, my wife and I divorced. I agreed to give her a share of my pension upon my retirement. I also agreed to pay her alimony. After I retired last year, I began drawing my retirement pay -- a lesser amount due to the fact that she was to receive a survivor annuity. Because I was short of money, when a well paying job became available, I took it. Now my wife has brought a suit to increase the amount I am paying her as alimony. She and her lawyer say that the monthly retirement pay I now receive -- which is less than it would have been if I had not given her a share -- should be added to my new salary when considering my ability to pay her more alimony. I don't think my retirement should be counted twice. My lawyer says that this is "new ground" and that it may end up in an appeal. What do you think?

Answer: Commonly called "double dipping," this tactic is not unusual in matrimonial cases. Although you should always follow the advice of your lawyer, it appears to us that if your pension was previously divided with the other assets, your ex-wife would be unjustly enriched if she were allowed to count the retirement twice -- once as an asset, and again as part of your ability to pay alimony.

It seems to us that when this type of agreement is made, a clause should be included that clarifies this point. For example: "The husband's retirement has been divided as an asset of the marital estate, and therefore neither his share of the fund nor any income derived by the husband from that fund shall be considered in any future action to increase alimony or for any other reason." With the wife officially agreeing to this, we believe that a situation such as yours is less likely to occur.

Because changes in economic status and ambiguities are often the causes of litigation after divorce, those faced with similar situations should make every effort to try to avoid ambiguities in agreements by stating intentions clearly from the get-go.



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Suggested Reading:
Separation and Divorce Guidebook
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FS-Be Wary of Credit Issues with Ex
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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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