It's complicated


#1

A friend is seeking a divorce but it’s gotten very complicated and he realizes he’ll need a lawyer, but he’s not sure if he can even afford it. Ironically, his soon to be ex-wife has filed a complaint against him alleging he withdrew affection. Untrue, she kicked him out of their bedroom and they moved to entirely separate floors of their three story house. She alleges he emotionally abused her. Untrue, he was always supportive of what she wanted to do, even when she wanted to sing in lounges. She has had several mental breaks, once even going after him with a machete. Eventually he felt, for his own peace of mind, he had to sleep with his bedroom door locked at night. She states, too that he had extra marital affairs, something he does not deny, but they did not occur until after she’d no longer wished to share their marital bed and room together for nearly three years.

They both moved back to Durham in 2005 and physically separated, but he did not file for divorce in order to keep her on his medical insurance because she was not eligible due to a job dismissal. This was how things remained for five years. Meantime, once he’d moved back to his childhood home, he lost his sight without any help from his ex wife or daughter, nearly lost his house, lost his car, and was close to bankruptcy because of problems with the accountant handling his taxes. The IRS garnished his wages for several years until they’d been reimbursed for back taxes, leaving him nearly penniless. His credit rating is ruined.

The house he live in has a jointly held home equity loan he received in order to make the home habitable again. The renters who stayed there nearly ruined it. One bathroom is unable to even be accessed because its floor has holes in it. The wood was rotted out from the renters flooding the flooring. studs will need to be replaced, which requires a contractor and reconstruction crew, which he cannot afford.

They signed a separation agreement last fall wherein they mutually agreed on everything, in particular she stated she would not request alimony or a settlement. She will, however, receive 50% each of his retirement and pension. This is a substantial figure and she was agreeable to this sum, but now, upon filing this complaint has requested more money from him due to his income level. He does not get the full amount, however. There are several things taken out that he must pay off, such as the equity loan, a just-finished loan for his daughter’s private education, the 401, his pension, taxes. etc. So after it’s all done, he takes home about 40% less than his actual earned income. This is not enough for him to be able to live on and still be able to pay off the loan, the replacement windows that had to go in after the break in last fall in which the tv and computer were stolen, groceries, phone, internet, transportation (he takes the bus to work in Cary which means he gets up at 3:45 each morning), the gas bill, electricity, water, property tax, income taxes due at year’s end if there isn’t any type of credit to decrease the amount due, and other incidentals. He lives paycheck to paycheck, so there is nothing left over to pay alimony or a lawyer, so he’s very worried about this situation she’s brought to his door.

I’m concerned for his welfare and his health. He’s diabetic, not sleeping well, and under a great deal of stress over this situation. What are his options?


#2

I’m not a lawyer, but I do believe that if they signed a separation agreement, outlining what the ED would be and that she waives alimony, etc, that that would be held up in court…and cannot be changed without both parties agreeing…


#3

If the Separation Agreement was intended to be and was drafted as a full and final settlement of all martial claims (property and support) she cannot go back and seek more now. He needs to retain a lawyer and seek a dismissal of the action she filed.


#4

A QDRO was submitted to her lawyer, but he never heard anything from the lawyer about the QDRO, just the filing of the Complaint with all of the additional charges and the demand for more money. Does that mean she’s going to get it?


#5

Not if the Separation Agreement is valid and waives further claims.


#6

Is there a statue of limitations of alimony requests or requests for spousal support? He’s been separated from his ex for more than five years (6 1/2 yrs to be exact) and she never once even hinted at wanting or needing support. Any precedent on this?


#7

Case law research is beyond the scope of this forum, but I can say that her failure to seek support for so long gives rise to a strong argument that she does not have a need for support as she has been able to sustain herself for a number of years since separating.


#8

She dragged her feet during the separation agreement negotiations, quibbling over petty details she didn’t like and during that time, she’d gotten a home equity loan for $42,000, that she now wants put into the divorce alimony or at minimum, a settlement, for him to pay for as well as her attorney’s fees. That all seems very suspicious. What do you think?


#9

Again, I think her failure to demonstrate a need for so long works in favor of the other side.


#10

Thank you! You’ve been so helpful, we deeply appreciate the quick responses and knowledge behind it.


#11

You are most welcome. I wish you the best.


#12

Sorry to be a pest. I’m back again. He’s had to seek counsel, but the relationship with his attorney was strained at best. So, the attorney stepped down just one month before the court date and now my friend is in Bangladesh on business for the next two weeks. This court date is problematic in its timing. It’s schedule for the day after he returns from overseas and there’s no possible way for him to be prepared in any way shape or form for this court date now that he also has to find new counsel. He’s not certain that he can afford to have one. Of course, he also knows he cannot afford to NOT have one. Is it possible for attorneys to offer a payment schedule that is workable if the costs exceed $2500 from the point at which my friend is currently?

He’s already done the separation agreement, it’s been signed and notarized by both parties. A complaint was filed by his ex and it has been responded to by his former attorney. A financial statement was given to the former attorney and it was just after this point that the relationship ended with this attorney. So, he’s not going to need to start from the ground floor so to speak, but the documents from his former attorney’s file must be picked up and he’ll need to pay off the large balance before he can claim his files. His absence for a business trip overseas until June 5th coupled with the outstanding balance, is making it very difficult for him to get anywhere in his case.

Can you offer any answers to these questions?


#13

Your friend will need to address fee payment structures directly with any attorney he is seeking to retain.