If it is necessary to apply to the Court of Orders relating to the division of marital property, great care must be taken in the handling of the application. Unless the request is confidential and can be supported by evidence, the client is at risk. Any applicant is exposed to the possibility of having to pay the costs of the other party. This exposure to an Order of costs must always be in the mind of the lawyer.
An experienced family lawyer will have two goals in mind:
To obtain a fair and equitable division of property for the client; and to protect the customer.
EXAMPLE:
Betty and Harold had been married for 25 years. Their marriage broke down after Harold had an affair. The pool of real estate assets available to the division is $2 million. Betty sought advice from an old friend who was a lawyer but not a family lawyer. Harry obtained the services of an experienced family attorney.
Betty filed an application with the Court to receive 80% of the property. There was no justification for such financial requests that she sought Betty, she just thought she had a moral right to this since Harold had an affair and was devastated. Harold sought an equitable division of the property. During the marriage, both Betty and Harold contributed equally to the acquisition of assets, whether in terms of raising children, housework, or paid income. All the children had grown up and moved on. Betty and Harold were retirees with similar incomes and were the same age, and both were in good health.
Betty would not budget from her position. Harold’s attorney made an open settlement offer saying he would settle for an equitable division of the property and the letter also stated, “In the event the offer is not accepted, this letter will be used to support a request for costs.” This part of the letter was totally ignored by Betty’s attorney.
The matter went to trial. The Judgment passed had the effect of dividing the property equally between Betty and Harold.
Harold’s attorney then filed a request for Betty to pay his legal costs in bringing the matter to a final hearing. The evidence in support of the request for costs was the open settlement offer submitted approximately one month after Betty had submitted the request. It had taken 18 months for the matter to go to court and Harold had incurred legal costs of $35,000.00.
The Court listened carefully to the request and, based on Harold’s offer to settle the matter some 18 months before trial on the same terms as the Court now orders, the Court ordered Betty to pay Harold’s rights in full. costs
Betty was less than satisfied with the result. First, she had been led to believe that her request for 80% ownership was a proper request and that she expected to succeed. Second, her attorney had not informed her of the risk she was exposed to by Harold’s settlement offer.
The lesson to be learned is that any application before the Court must be handled with care. You must be informed along the way about the offers being made, how they should be responded to, and what risk you are exposed to by those offers. If experienced Family Lawyers advise you, they will protect you from unnecessary risks.