Jan L. Warner & Jan Collins
Question: When my wife and I split after two years (we had no children), we were told by our lawyers there were no grounds to get a divorce – meaning that we would have to wait a year. Both of us were working and seeing other people, and I had inherited a good bit of money from my grandfather, and I wanted to protect it. Although I had never laid a hand on her, my lawyer suggested that if I did not contest a divorce she would bring for physical cruelty, we could be divorced in a few months and she would not request support or property settlement. He said that so long as I did not show up at the hearing, the divorce would be granted.
I did as my lawyer suggested, and we were divorced; however, not six weeks later, I was hit with a lawsuit for damages based on domestic abuse. My new lawyer tells me that because I did not contest the divorce case and because my ex did not sign a release, it comes down to how much she is going to get from me. He suggests that I cough up $25,000 to settle the case. Is there nothing else I can do?
Answer: Your new lawyer is telling you what your first lawyer should have told you: Because your divorce was granted after notice to you and you had the opportunity to appear and contest the facts, you are probably prevented from going behind the proof which resulted in the family court judgment of divorce. And, using the underlying "facts" behind this judgment, your ex is now trying to get money from you through damages which she could not get through support or property settlement in the family court.
However, we think that before you pay up, there is an important issue that should be considered: Perjury is a crime, and perpetrating a fraud on the court is a breach of lawyers’ ethical responsibilities. Your wife used fraud to get the divorce from you and, based on your version of the facts, there was collusion between your lawyer and your ex wife's lawyer in which you participated based on your lawyer's advice. If this is the case, it may be wise to discuss with your new lawyer an attempt to set aside the decree of divorce based upon what appears to be a fishy set of circumstances; however, your acquiescence in the "deal" in order to get divorced more quickly could be your undoing.
If you settle with your wife, you may have a cause of action against your first lawyer for malpractice. No matter the outcome, your situation points up some very important "Don't's": (1) Don't cut corners to try to get a quick result. (2) Don't participate in a fraud on any court for any reason. (3) If your lawyer suggests that you participate in a scheme that you believe is fraudulent, report it to your local bar association. (4) If you and your spouse are going to settle your differences, make sure that the agreement includes a full mutual release. If a release had been signed, you would not be where you are today.
SoloFact: In most states, there are two different types of divorce: Final and Limited. Referred to as "divorce a vinculo matrimonii", an "absolute" or "final" divorce means that if certain criteria which vary from state-to-state are met, the court will terminate your marriage relationship. These "criteria" include such things as grounds and waiting periods. Once you are finally divorced, you lose your rights to inheritance and other benefits that accompany the marriage relationship.
"Limited" divorces are sometimes called "divorce from bed and board" or "divorce a mensa et thoro" or "legal separation." While the extent of these limited divorces depends on the law of the state in which you live, you are given the right to live separate and apart, but the marriage remains in tact.
In each type of divorce, the courts have broad discretion to award support, property settlement, attorneys fees, other economic relief, and protective measures such as restraining orders.
Many states have enacted "no-fault divorce" grounds for divorce which were intended to help families avoid proof of fault; however, even if a "no fault" divorce may be granted, proof of fault is often an essential element in such attendant issues as custody, alimony, and property settlement – meaning that in many instances, "no fault" does not eliminate embarrassing facts from being presented to the court.