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Author Topic: Order Never Submitted....What's Next?  (Read 1065 times)

TPK

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Order Never Submitted....What's Next?
« on: Jan 12, 2006, 09:54:44 AM »
Soc,

Divorce finalized in court Nov 5, 2005. Wife's attorney had 30 days to submit the order. She didn't submit order in 30 days. She asked and got a 15 day extension. 15 days passed and still didn't submit order. It's now 2 months later and no order has been submitted.

I spoke to my attorney, he sent wife's laywer a letter basically giving her a nudge to submit the order. That was weeks ago. She still hasn't submitted it.


1. Why would an attorney not submit the order??..possible reasons??


2. Is everything that was settled Nov 5, 2005 valid right now??


3. Is there a time limit on entering the order??...and is anything ever voided if order is not submitted in a certain amount of time??


I had a problem over Xmas when wife didn't show up with child for parenting time transfer ( on a Friday). I had to track her down hours later and I got the State Police involved. To make a long story short, I did get daughter the following morning (saturday). Wife insisted I was to get daughter Saturday and not Friday. I knew she was wrong because the agreement in court was that if I would get daughter for Xmas & Xmas eve for 2005, and that if a holiday fell on my time (Fri-Mon) that I'd get daughter in the future anyway.

Not having the unsubmitted order in hand when I went to the Police made it difficult to get them to help. They did help, only because it was Xmas, that's what they said.


Also, wife claimed in court she lived at X residence, when in fact I found out she's living somewhere else now and she never told me.

4. Shouldn't she be required to tell me where she's living??


Thanks


TPK



socrateaser

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RE: Order Never Submitted....What's Next?
« Reply #1 on: Jan 12, 2006, 10:22:50 AM »
>1. Why would an attorney not submit the order??..possible
>reasons??

Most likely because your spouse's retainer has dried up and she won't pay anymore, so there's no monetary incentive to finish up the case. Happens all the time.

>2. Is everything that was settled Nov 5, 2005 valid right
>now??

Nope. You would have to go to court and have the court order the settlement. At the moment, you can't enforce anything because there's no final order from which the clerk could issue a writ, or the sheriff to execute on. For example, if you have a custodial interference problem, you can't show a deputy a certified copy of a final order stating that you have custody from date and time x through date and time y, because you don't until that final judgment is entered.

>3. Is there a time limit on entering the order??...and is
>anything ever voided if order is not submitted in a certain
>amount of time??

Some courts have a time limit after which a case will be automatically dismissed, if no action by either party is taken. Usually, 6 months to 1 year.

>4. Shouldn't she be required to tell me where she's living??

Yes, she should and it should state so in your judgment. Tell your attorney to give the other attorney until 5 pm Friday, and if there's no judgment at the court, then you're instructing him to prepare the order and submit it. Usually, the final judgment must be approved as to form and signed by the non-preparing counsel, before the court will sign it. So, even if your attorney does the paperwork, he'll have to submit it to your spouse's attorney, or in the alternative, write the judge a letter and state that opposing counsel has dropped the ball, so he's picking it up.

Attorneys don't like to do this, because it makes the other lawyer look bad, and attorneys must work together in subsequent cases, so this action creates a problem for future clients.

In short, you need to tell your lawyer that you understand all that, but enough is enough and you want the judgment filed -- otherwise, your attorney will stall in hopes of avoiding future difficulties -- all to your disadvantage.

TPK

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RE: Order Never Submitted....What's Next?
« Reply #2 on: Jan 12, 2006, 12:39:45 PM »
>Most likely because your spouse's retainer has dried up and
>she won't pay anymore, so there's no monetary incentive to
>finish up the case. Happens all the time.


1. Can a client direct counsel to not submit it??....I was thinking maybe wife wasn't happy with what she agreed to and wants to squash it.




>>Attorneys don't like to do this, because it makes the other
>lawyer look bad, and attorneys must work together in
>subsequent cases, so this action creates a problem for future
>clients.


My attorney said he would submit it himself, but that he was getting no response from the other side.



>
>In short, you need to tell your lawyer that you understand all
>that, but enough is enough and you want the judgment filed --
>otherwise, your attorney will stall in hopes of avoiding
>future difficulties -- all to your disadvantage.


2. If I ran over to family court and filed negligence or something over the vaccine issue, and asked for temp custody, would the family court hear it being that the judgement of divorce was never submitted in Superior court??

I know.....it's a real long shot.


Thanks


TPK




socrateaser

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RE: Order Never Submitted....What's Next?
« Reply #3 on: Jan 12, 2006, 12:49:46 PM »
>1. Can a client direct counsel to not submit it??....I was
>thinking maybe wife wasn't happy with what she agreed to and
>wants to squash it.

Yes, but that would merely mean that you would have to go to court and prove that you reached a settlement. I'm assuming the agreement was signed, and if it was, then absent proof by your spouse of mistake, illegality, fraud, duress, unconscionability, then the court will enforce the agreement. All of the above would be very difficult to prove, becaues your spouse was represented by counsel.

And, she'd have to pay your attorney fees for wasting the court's time.

>2. If I ran over to family court and filed negligence or
>something over the vaccine issue, and asked for temp custody,
>would the family court hear it being that the judgement of
>divorce was never submitted in Superior court??
>
>I know.....a real long shot.

If you aren't happy about the settlement and you want to litigate custody, then you should ask your attorney to move for a trial, and if the other parent tries to enforce the settlement, then you will have to demonstrate that it was YOUR mistake to believe that the other parent would act in the child's best interests, and that she is already not doing so, demonstrating that she knew or reasonably should have known that she intended this outcome, and therefore the court should refuse to enforce the settlement.

I can't tell you what to do, but it's obvious you're not happy with the outcome. No one is happy with a divorce outcome, so be careful about what you wish for, because your spouse is not happy with it either, and the final result could as easily be worse for you than it is now -- or better -- but it's a crap shoot, either way.

DecentDad

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For what it's worth, my own experience with this
« Reply #4 on: Jan 12, 2006, 02:51:17 PM »
Hi,

I've grown accustomed to my ex's current attorney never following through on preparing the orders for the court or signing orders that I have to draft.

Soc advised me (per California's code), that I could take it upon myself (in pro se), with such cover letter to the court as he described to you when the time limits (to either draft orders, or object to a draft) come and go.

This has happened to me 3 times, and each time I sent something in (and cc'd the attorney), the attorney wrote to the court complaining of something or other about what I drafted, or wanting more time to review hearing transcripts, or wanting more time to raise objections, etc.

And each time, the court just signed what I sent in.  Boom, done.

DD


 

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