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Legal Malpractice in Divorce For Failing to Include

We get many calls from folks who claim that their divorce lawyer, usually at the last minute, convinced them to settle; wherefore, they sign and later claim that they had to forgo claims they now see as a valuable asset.  Frequently it’s because their Massachusetts divorce attorney failed to undertake complete discovery and then, when the trial was imminent, strongly encouraged the client to settle for the best deal they cold get, given the weak case.  But not always.

Divorce Contempt Case

For example, in a case in which we did not represent the legal malpractice victim, a decision was issued against the plaintiff husband.  In 2011 the legal malpractice plaintiff husband hired an attorney to represent him in a divorce contempt case.  The (former) wife alleged that the (former) husband did not pay child support and health insurance premiums that he had agreed to pay at the time of the divorce. There was some twenty years of missed payments; it’s not clear how many missed payments or during which years.  During the course of the contempt case, the husband and wife resolved the claims and signed an agreement, which was approved by the Probate and Family Court.

Subsequently, the husband sued his divorce attorney saying that the agreement he signed, which was for the husband to make the wife’s mortgage payments in exchange for a settlement of the contempt case, was too open ended as to time.

The Legal Malpractice Case

The former husband sued his attorney saying that the agreement should have had an end date, or a date in which the former wife should sell the house.  Essentially, the husband said that it was legal malpractice to allow him to sign the agreement.  The legal malpractice defense attorneys argued several points:  first, what was the damage to the husband?  The alleged better contract would have been for what duration?  What would have been fair given the long period of missed support and insurance payments?  What would the former wife have agreed to and could he prove that?  Second, what would a more prudent attorney have been able to actually achieve?  Could the husband prove that a more aggressive stance would have resulted in a limited duration of payments?  The Court found that it was “mere speculation” that a better agreement would have been forthcoming.

In divorce cases, when there is a settlement, the Probate Court hears the key terms of the settlement from the parties and gives each litigant, the husband and wife, the opportunity to say that they understand the agreement, they agree to the terms of the agreement, and that they are satisfied with their attorney’s work on their behalf.  This gives divorce litigants a huge opportunity to have their agreement questioned, nullified, or not approved:  an open court discussion, on the record, regarding the terms of the agreement and the satisfaction of their counsel.  When the parties testify to the judge that they understand the agreement, that they have had the opportunity to undertake discovery, and that they are satisfied with the result and don’t want a trial because of the risk, it is hard later to say they did not understand the agreement.

Summary Judgment in the Legal Malpractice Case

In the instant case, the Court allowed the defendant lawyer’s Motion for Summary Judgment.  Thus, given the facts most favorable to the husband, the Superior Court found that the law was on the side of the defendant lawyer.  The Superior Court (Judge Mary K. Ames) found that the wife never intended to settle for less; in fact, the amount is a sum certain in that there are X months left on the mortgage and the amount per month was agreed upon.  The Superior Court judge found no breach of duty by the defendant lawyer and no causation for the husband’s alleged injury.

Burns & Jain – Massachusetts Legal Malpractice Attorneys

If you have a legal malpractice claim, or potential claim, against your former Massachusetts attorney, call 617-227-7423 for Attorney Neil Burns and Attorney Roshan Jain and get a free consultation to discuss your rights.