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Divorce and Legal Malpractice

Many litigants are upset with the outcome of their family law case. Sometimes "upset" is an incredible understatement.

 

Because family law cases are so fact and judge dependent, claiming and proving legal malpractice feels virtually impossible. In fact, in most instances, it is not possible.

 

To prove legal malpractice in a family law context, you must first prove that the family law attorney actually committed malpractice. However, that is not enough. After proving the malpractice, you then have to prove that the result would have been different.

 

In a child custody case, that means you have to prove the judge would have ruled differently. That is a virtually impossible task.

 

In an alimony case, that means you have to provide the judge would have (or would not have) issued a very specific award. Again, highly improbable.

 

However, on certain rare occasions, malpractice can be proven. I want to give you an example from a case I just finished. Another attorney represented the client at trial. She was entitled to a share of the retirement pension of her former spouse. After the trial, her attorney failed to have the pension timely entered by the government. Then the unthinkable happened. Her former spouse died.  Far too often, her right to receive her pension died with him, if all of the paperwork was not completed before his death. That is exactly what happened here.

 

The former wife came to me to sue her divorce attorney. She could easily prove the malpractice, and in this case, because we knew exactly how much money she was losing by not receiving the survivor's benefits of the pension, we knew her actual damages.

 

I decided to first try to appeal to the government to provide her the pension based on the malpractice of her attorney, so I hired an expert on her behalf. The first and second appeals failed, but we persisted. The government relented and granted her the entire pension!

 

I count this as one of my defining moments as a family law attorney. Through knowledge and persistence, we were able to right a very grievous wrong. It does not happen often, making the victory all the sweeter.

 

The moral of this story is that while it is usually futile to file and pursue and legal malpractice claim against your former family law attorney, a free consult with one of the highly experienced attorneys at SIEGELLAW can result in a great education and explanation of your rights. 

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