Questions

[bells7]

Hi

New to the site and have a general question.

I was just served with a motion to show cause and a hearing date for 11/22/06. Two problems

1. I am scheduled to be out of town with family for the week of Thanksgiving and

2. I will be 33 weeks prego at that time as well.

My Doctor is prepping a letter to the court noting it is unhealthy for me to be in a stressful situation until well after my delivery.

This is regarding a matter that actually occurred almost two years ago and the outcome is not a pending matter. My ex husband agreed to pay our IRS overpayment and he did in jan 05. Now that he is remarried he has just served me with a demand to pay half. I paid the State overpayment that we were just billed for as was our agreement. I would technically owe him about $1,000. Again I do not see this as an impending situation and just wondering ......

How do I request a change of court date.

Any suggestions, insights or answers are greatly appreciated.

Holly
State of California

Please help

 

[socrateaser]

>How do I request a change of court date.

1. Contact the other party's attorney or the party and request a 60 day continuance. Make sure you can provide the physician's note to back up your position -- otherwise you will have no leverage.

If they agree, then "they" must contact the court and request a continuance, because they are a moving party. For an OSC, this means just calling the judge's clerk and telling him/her that the parties have agreed to a continuance, and requesting a new hearing date. The clerk will offer some dates, if it's accepted, then they must send you notice of the continuance and file it with the court.

They may want you to pay their attorney fees for the inconvenience and to prepare the notice of continuance and file. If you refuse, so will they, and then, you will have to file a notice of motion for a continuance as an adversarial matter, on grounds that you will suffer irreparable or great harm if the hearing is held as scheduled. You can request a telephone conference on the face of the motion, and you can get a hearing date by calling the court clerk.

Once again, they may want you to pay their attorney fees, otherwise it will cost money to respond to your motion.

If, as you say, the difference between you is $1,000, and you can prove it, then I suggest that you offer your proof to them now, and offer to stipulate to settle the matter for the $1,000 cash, made payable immediately.

This will probably be the cheapest way to go and you will not have to fight the legal battle to postpone.

Frankly, unless your physician claims that you are under some unusual circumstances in your pregnancy, the court will probably deny the continuance.

Then you will get another hearing date, sooner, and



>
>Any suggestions, insights or answers are greatly appreciated.

[bells7]

Thank you for your response truly appreciated...

Clarifications to add:
We are both appearing in Pro Per as involving an attorney seems a bit unessary needless to say costly.  

My response declaration states.......... that we had a verbal agreement that he would take care of the federal taxes for our 2001 taxes.  My main concern at the time was that I wanted to have the audit reviewed by my acountant and had offered to pay for that.  My ex just wanted to pay it and get it over with.  He did pay in full on Jan 20 2005, the total was $5,385.  I signed the notice agreeing to the proposal and there was no attempt to review or request any type of abatement.  He told me he would just take care of it,  that he just wanted to get it done.  There were no letters nor documentation noting that he had changed his mind.

 In Sept of 2006, 21 months later we both recieved a 2001 CA tax proposal of change to total $$2,258.  Upon receipt I had decided to take it upon myself to simply pay for the total.  I felt that it would recipricate the gesture of my ex, make us even short about $1,000 and we would be done.  


Questions:

1.)  On principal:) regarding the verbal agreement, if he says and pays in full, with no indication of otherwise...No documentation, no e-mail no correspondence nor proof of, and one is silent for 22 months, does that not consistitute in any way a binding verbal agreement?

2)  I am out of town on our hearing date.  It is the day before Thanksgiving and we have family flying in for the holidays.  This had been planned for months.  If my ex won't agree to continue, can I submit anything to the court for that day stating that I have paid the state tax and prior to settling I would want to persue a review of our 2001 tax audit.  What forms or action would I take to accomplish this.  

3.)  If the court won't rule on a verbal agreement, then a review of our 2001 audit would be requested.  I will offer to pay for that and submit to the court the correspondence and ruling from the IRS.  If we are entitled to any refund, my ex would be the one to receive as he is the primary social on the taxes.  If we are entitled to any portion of the refund then it would be sent to him and we can review the new total.  What form would I fill out for this?


4.) These are the three points I had hoped to cover.  Please let me know if I have anything here esp with the verbal agreement.  Skip it completely or to persue is reasonable?


Your suggestions and thoughts have helped tremendously in thinking about this as rationally as possible.  

Thank you so much for your insight and time

Holly

[socrateaser]

>Questions:
>
>1.)  On principal:) regarding the verbal agreement, if he says
>and pays in full, with no indication of otherwise...No
>documentation, no e-mail no correspondence nor proof of, and
>one is silent for 22 months, does that not consistitute in any
>way a binding verbal agreement?

Forget your principals -- the law is confined to its own analytical constructions -- not the personal value systems of litigants.

This is actually a very complicated scenario, and one which may be resolved more easily by looking at the court orders. So:

1. Was your divorce filed and pending final judgment at the time that this tax assessment was signed?

2. Was your divorce final when the tax assessment was actually paid?

3. Does your final judgment have any language which complete disposes of any property issues that are NOT expressly described in the judgment? I'm assuming that if the tax issue were expressly discussed, that you wouldn't be asking me questions, but if your judgment disposes of the issue, then the judgment is controlling.

And, I can practically guarantee, that the judge will try to find something in the judgment that will help resolve this issue without having to analyze the contract law and equity issues, of which there are myriad.

>2)  I am out of town on our hearing date.  It is the day
>before Thanksgiving and we have family flying in for the
>holidays.  This had been planned for months.  If my ex won't
>agree to continue, can I submit anything to the court for that
>day stating that I have paid the state tax and prior to
>settling I would want to persue a review of our 2001 tax
>audit.  What forms or action would I take to accomplish this.

No. You signed the proposed assessment. Game over on that one. Best move is to provide your calculations of what you owe, and then offer to pay in exchange for a stipulated settlement and release of the matter (you pay -- he moves for dismissal with prejudice on grounds that the parties have settled).

>3.)  If the court won't rule on a verbal agreement, then a
>review of our 2001 audit would be requested.  I will offer to
>pay for that and submit to the court the correspondence and
>ruling from the IRS.  If we are entitled to any refund, my ex
>would be the one to receive as he is the primary social on the
>taxes.  If we are entitled to any portion of the refund then
>it would be sent to him and we can review the new total.  What
>form would I fill out for this?

Moot issue, if you signed the proposed assessment, as you stated above.

>4.) These are the three points I had hoped to cover.  Please
>let me know if I have anything here esp with the verbal
>agreement.  Skip it completely or to persue is reasonable?

Let's assume that your divorce judgment is irrelevant to the analysis. The short version is:

1. You signed the tax assessment and thereby accepted joint liability for the debt with your ex.

2. He paid. His payment could be either a gift or merely an offer to pay upfront in return for reimbursement at a later date.

3. The fact that he took so long to come after you for reimbursement doesn't necessarily mean that his payment was a gift, because as a divorcing person, he had no real incentive to gift you anything, UNLESS:


4. You can show that he was trying to reconcile the relationship and the payment was part of his attempt to do so. This is a reasonable argument, but you will need something more than just your word against his.

5. Without more evidence, the court will take the reasonable route and find that you both agreed to be liable for the tax bill, and that you have been unjustly enriched at his expense. Similarly, the court will find that he has been unjustly enriched by your payment of the state tax bill. Thus, the two amounts will offset each other and you will owe the difference.

6. However, if you can prove that his delay in paying the bill cost you interest and penalties that but for your reliance on his payment, would not have occured, then you could use this as an argument to avoid some, or perhaps all of what you owe.

7. His counterargument would be that your paying the state bill without his acceptance cost him more than would have occurred had he had an opportunity to contest the audit. This may or may not be valid.

In summary, you need to sit down and run the numbers, show him your calculations and then, if you owe, pay him in exchange for his filing a motion for dismissal with prejudice on grounds that the parties have entered into a binding settlement and release agreement -- the terms of which are agreed to remain undisclosed.

If you don't owe, then get ready for the hearing, because it's gonna go down -- unless your water breaks on the way to the courthouse.

[bells7]

Thanks again for all your thoughts.  I did have an oppurtunity to pull out the divorce settlement and I wanted to addres a couple of your questions

1. Was your divorce filed and pending final judgment at the time that this tax assessment was signed?

The tax assesment was was signed 29 months after our divorce was final.

2. Was your divorce final when the tax assessment was actually paid?
The tax was paid in full by my ex 31 months after our divorce was final


3. Does your final judgment have any language which complete disposes of any property issues that are NOT expressly described in the judgment? I'm assuming that if the tax issue were expressly discussed, that you wouldn't be asking me questions, but if your judgment disposes of the issue, then the judgment is controlling.

My divorce agreement specifically states as
Section 5.05  Income Tax Notices


Each party shall immediately forward to other a copy of any tax deficiency notice or other correspondence or documentation received by the party by any Federal, ,State or local taxing agency relating to any joint or individual return filed by the other.  

A party shall reimburse the other for any and all damages and costs that may be reasonably incurred by the other as a result of a party's failure to abide by these terms indicated in this section.  Costs incurred would include attorney fees, costs, accountant fees, or additional interest and penalties.  

This is the only refererence to taxes in our agreement.



The only other mention of debt is in our Concluding Provisions

Release of Claims:  By this agreement , Husband and Wife intend to settle all rights and obligations betweem them, including all aspects of their marital rights and obligations.  Except as otherwise stated in this Agreementr, each of them releases the other from all liabilities, ebts and obligations of every kind whether previously or hereafter incurred.


1.)  Does the phrasing of these two sections give me anything to work with?

2.)  What can I do about the court date if he refuses to dismiss?  I am on a vacation and out of town that entire week with my kids for their break from school.  


Thanks again for all your insight!!!!!  It has been extremely valuable

Holly

[socrateaser]

>1.)  Does the phrasing of these two sections give me anything
>to work with?

Not really. The release is from liabilities to each other, not to third parties, such as the IRS. If you signed the joint return, and the susequent compromise offer, then you're on the hook for the dough to the government. And, if your ex pays the government in order to relieve himself of the liability for non-payment, then you are unjustly enriched by his actions, and he is entitled to restoration from your for the unjust benefit received.

My advice is unchanged. run the numbers, and whatever they say is what you owe him (or visa versa).

>2.)  What can I do about the court date if he refuses to
>dismiss?  I am on a vacation and out of town that entire week
>with my kids for their break from school.  

You can file a motion for a continuance, but you will need to show "good cause," which means a "clear justification" for the continuance. Being on vacation MIGHT be sufficient if you can show that you made these plans prior to being served with the legal process, and that you will be injured unless the hearing is continued (for example, because you paid for tickets that cannot be refunded, or you will not have another opportunity for this time with your kids until next year, etc.)

That's how I'd argue it, but frankly, I think you're wasting your time, because you're gonna lose this hearing, eventually, so you may as well, just put an end to it now and work out some payment schedule with your ex.

[bells7]

Just wanted to thank you one more time for all your sound advice.  I deeply appreciate it and want to let you know that I am taking it fully......I must be a least five 'cause I got it:)

I hope that others will benefit from from our discussion and my situation.

Thank you for saving me a lot of time and struggle on an avenue that I would have stubbornly pursued had I not been better informed.  

Thanks Again and
Take care

Holly