Contested Motion Hearings

Wendy’s Story

Five years ago, Wendy* came to the firm with a very particular set of facts. 1.5 years ago, she had been divorced with a daughter. When getting divorced she felt sorry and charitable towards her soon to be ex-husband. She knew his character and track record of dishonesty and yet she was too generous and had undue faith in his regard for the father-child relationship.

First of all, there were parenting time issues; if given to a judge they could have gone either way. The more pressing issue though was that her husband was awarded a condo in the divorce but the condo loan was solely in her name – and he had missed most all the payments in the last four months, which she had to borrow money to cover. She needed to remedy the credit issue without putting her daughter at risk.

Once hired, we held a strategy session. Working with the client to identify all the facts and the key elements, we identified a two-phase strategy.

In the coming four weeks, we executed phase one. We invited her ex-husband to participate in mediation, which was successful; we came to a new agreement that not only served the child’s best interests as our client saw them, but removed any risk that parenting time was going to hinder phase two.

What followed was a very precise contested motion hearing strategy. With a comprehensive affidavit and numerous attachments, we made a tight argument to the court in this post-divorce motion to rectify his non-compliance. It sought to hold her ex-husband in contempt, asking the court to hold jail time over his head if he didn’t comply, ordering him to turn over the condo, allowing us to sell the condo and apply it to the condo loan and, after that to reimburse our client for the condo payments she had made on his behalf to preserve her credit, and an award of attorney’s fees. What followed was a hearing before a local district court judge, her husband turning over the condo and the keys, the sale of the condo, and my client being made whole.

How, you ask? In the decree, the parties had been ordered to alternate the tax dependency exemption for the daughter every year. We used the dollar value of that annual exemption in our request for the court transfer from him to her such additional future years that her increased tax refunds in those years reimbursed her for her total out-of-pocket expense, including attorney’s fees. While that was going to take time, there was no other way to make her whole given her ex-husband’s financial insolvency.

Some motion hearings are easily won because the law and statutes are on your side. And others seem like a toss-up where the attorney’s work made no difference. In this client’s case, it was neither. If the client had handled it on her own, there’s no reason to believe it would’ve turned out good for her and alternatively, it wasn’t a matter of the judge flipping a coin. This was a case where having an experienced, skillful attorney made all of the difference.

Most of the time, when people make mistakes in their divorce, it is like scrambled eggs – it doesn’t matter which attorney you hire afterwards, the outcome cannot be unscrambled. In this instance, we were able to set right the legal relationship that she should’ve secured in the divorce.