Invalid Date of Separation


#1

Situation - The only mention (filing) of ED was included in the parties’ original Complaint for Divorce from Bed and Board which was made in Dec 2011 while they were still living together in the same marital house.
Defendant later discovered that there had never been a valid and proper claim for Equitable Distribution filed by either Party AFTER the date of separation (and before the Court issued a Final Divorce Decree, and because Final Divorce Decree has been issued, it is too late to file a claim for equitable distribution).
Defendant wants to move the Court to dismiss both Parties’ claims for equitable distribution on that basis (that is, the basis that no valid and proper claim for equitable distribution was ever filed by either Party, and cannot be now be filed after the issuance of a Final Divorce Decree by the Court). (see LOCKAMY v. LOCKAMY No. 9213DC827).
Problem - In a previous hearing for post separation support the judge made a major mistake in a “Finding of Fact” included in his Order. He found as “fact” that the parties separated in September of 2011 which was NOT accurate.
A careful review of the transcript of the hearing for which the judge issued the Order (which included the erroneous finding of fact), shows that neither party ever stated that the date of separation was Sept 2011.
In fact, both parties clearly, unequivocally stated nine different times (between them) that they separated in July of 2012. It is beyond dispute that the judge had absolutely no reason to find that “fact”. That error was not noticed until now (almost 2 years later).
Problem #2 - Now Plaintiff plans to use that erroneous “fact” (the judges “fact” that DOS was September 2011) to establish that the DOS occurred before the filing of the original Complaint in Dec 2011 (which included the only mention of ED) thereby making that mention of ED in that original complaint filed Dec 2011 valid (because theoretically it would have been filed after the parties separated in Sept 2011, according to the erroneous “fact”).
I understand that the statutes, (and generally case law) says that “separate and apart” means in a different house, HOWEVER, several lawyers here insist that, as if stands now, the erroneous Finding of Fact takes precedent over the actual, provable date the parties moved to different houses.
Question # 1 - Is that true? Does a finding of fact carry such weight that it establishes a DOS by its mere status as a “Fact” found by a judge? If possible can you give me a case law reference that deals with this kind of situation, PLEASE?
Question # 2 - How can this situation be dealt with? What needs to be done to correct the erroneous “fact” (it has been over the one year limit for correction of this type of error).?
Help please.


#2

If one party is using a procedural error to enforce an equitable distribution claim that was otherwise not preserved prior to the divorce decree being entered, I would suggest you have a consultation with an attorney to discuss your options. If it is obvious that the judge used the wrong date of separation, then you should consider appealing that judgement that contains the erroneous date of separation. If you are looking for someone to provide case law on this issue, the most appropriate person to do that would be an attorney who has been retained to represent you in this matter.


#3

Dear Lindsay, Don’t you read the questions? I specifically said, “several lawyers here insist that, as if stands now, the erroneous Finding of Fact takes precedent over the actual, provable date the parties moved to different houses.” If you did read it why did you feel it was appropriate to reply, “I would suggest you have a consultation with an attorney to discuss your options”?
If you don’t know the answer, just say so.
I see you frequently do that, that is ignore the question and scatter a few words.
If you had looked up a little “case law” you might have learned something that would have prevented you from having to spout that worthless drivel.
Or is it that you are merely a law school wanna be?
You should hope that Rosen never reads your answers. You are basically an embarrassment to an already tarnished “profession”.


#4

I apologize for your dissatisfaction with this free service we provide, and that you are experiencing procedural difficulties with your divorce and ED claim. If the judge has included in her findings of fact a date of separation, that date is controlling. If the plaintiff pursues the ED action based on the erroneous date of separation, you need to appear at the hearing, move for a dismissal and subsequently appeal the judgment.