There is nothing final about a divorce. I find it somewhat comical that two people will spend thousands of dollars and countless hours of time trying to rid themselves of an unwanted to spouse, yet 75% of the time, with or without children involved, they will be plagued with issues from the ex for the rest of their life. What is so final about that? My husband was going through a divorce when I first met him, and in sharing his story with me, he let me read the paperwork involved with his process. When it was all said and done, I got to read the judge’s orders. It was a fifteen page document labeled FINAL DECREE of DIVORCE, and as I read it, I couldn’t help but see all the potential issues that were going to accompany the orders in the years to come. My husband had children with his first marriage, and although that gives the two separated parties a reason for contact, I have had friends without children who experienced a divorce and had to deal with the same issues as those who do.
In the past two years, my husband has had to deal with several problems that were out of his control. I am very proud of how he has dealt with the issues, and he has made it a point to not “fight” back. However, there was a problem that arose that jeopardized the financial stability of our family, and he knew he had to take action. I do not want to speak ill of my husband’s ex wife, simply because I do not know her personally and have no real reason to judge her, but reading the court paperwork, the subsequent correspondence that we have received from her, and the stories that have made their way back to us have influenced my opinion of her. To be polite about it, she cannot and should not be trusted.
Last summer, my husband attempted to refinance our house. I was five months pregnant with our first child, and his hours at work were inconsistent. We wanted to establish some financial stability, and thought refinancing was our best option, since rates were so low. Earl was able to qualify for a great rate, and he filled out the paperwork and made a payment to secure his rate. About four days later, he received a call from the bank informing him that our loan was denied. They had performed a title search and found that there was a lien against his property. They gave him the number of the law firm that issued the lien, and after calling them, he discovered that it was issued by Capitol One for a credit card that his ex-wife had never paid. The amount was several thousand dollars, and needed to be paid in full before it was released.
Once Earl got off the phone with the law firm, he immediately called his lawyer and questioned why someone could issue a lien against his property when his ex-wife’s name was no longer attached to it. The lawyer did some researcher and found that the ex-wife failed to sign the quit claim deed that had been ordered by the judge at the time of the final decree. Since the paperwork was never registered, the deed still showed the ex as being a holder of the property. The lawyer submitted the paperwork to the ex’s lawyer, and stressed that it needed to be signed immediately and stated the final decree as the authority. The opposing law firm did not act, and neither did Earl’s ex, who received numerous phone calls from my husband’s lawyer.
This drama went on for weeks. Earl had several certified copies of the final decree, quit claim deed, and letter from his lawyer sent to his ex, but she responded that she would not sign any paperwork until her lawyer told her she needed too. Several calls to her lawyer informed us that she was no longer represented by their office. As each week passed going round and round, the interest rate that we were guaranteed began creeping back up. Getting the lien removed was absolutely critical. Earl was able to make a deal with the issuing law firm, and the bank allowed him to finance in the credit card amount with his mortgage. However, he had to pay an additional several hundred dollars to get his interest rate back down. Despite all of this, we still needed to have that deed signed. Earl had no choice but to issue a lawsuit against his ex. The lawyer filed a lawsuit stating contempt of court over the refusal to sign the deed.
I had never been to any court except traffic court, and I was extremely nervous. One day before our appearance the lawyer called and asked us to come by his office- we were being countersued. I was confused. We had not done anything wrong, and yet now we had to go to court prepared to defend ourselves. There were a lot of bogus charges in the paperwork we received, and in order to “clear” things up, we had to produce tons of random documentation for her lawyer. One of the charges was harassment, because Earl didn’t write her name legibly on the child support checks. Another charge was that I was violating a restraining order because she had seen me driving down the road by her house. According to our lawyer, it was a tactic to sidetrack the judge. We were up till about two in the morning the night before compiling and organizing all the documents they asked for, because we knew if any were missing, it would give them a reason to delay the trial.
This long story gets really short now. I was not allowed in the courtroom during the actual trial, since I was a potential witness. No such luck on getting to experience things firsthand. All I know about the whole thing is what my husband told me. He is usually a very mild and shy man, but he said God gave him courage to say what needed to be said. The judge made his ex sign the paper in front of the court, and also ordered that she pay Earl back the money he spent on the credit card and additional financing charges. She was required to have one fourth of the money by nine o’clock the next morning, or she would go to jail. She was allowed an additional thirty days to come up with the rest.
The next morning, Earl got his money and copy of the quit claim deed. He was able to go straight to the bank and sign the loan. However, we have yet to see the rest of the money owed. Earl contacted his lawyer after the thirty days had passed, and the lawyer decided to send her a notice, but waited on issuing another contempt suit. He waited and waited, and still nothing. After ninety days and still no word from either of the lawyers, Earl was rather frustrated. He wanted to go back to his lawyer, but found out that he wouldn’t be able to. He received a notice in the mail from the Bankruptcy Court of Tennessee listing him as a creditor associated with a recently opened case from his ex wife and her husband. He called the lawyer and said we couldn’t go to court because they were protected under the bankruptcy motion. The only bright spot to this ordeal is that she can’t take us to court for anything (increased child support) because she is still in contempt. Although we can’t get our money till they are out from under bankruptcy, a judge can still issue additional fines or jail time. In this situation, there were several different legal issues involved. I think the breakdown first started when no one went back to check and make sure all the paperwork was truly “final” with initial divorce decree. An absolute divorce is a judicial termination of a legal marriage. An absolute divorce results in the changing back of both parties' statuses to single. To obtain an absolute divorce, as it is legally called, courts require some type of evidentiary showing of misconduct or wrongdoing on one spouse's part. This was proven in my husband’s case. Typically, after an absolute divorce, one party can no longer inherit property from the other, and any property owned by them jointly as husband and wife automatically becomes property held in common (each owns one-half). However, my husband’s property is family property, and thus the court order for the ex to surrender her “portion” or name on the deed. The most common use for a quitclaim deed is to surrender full rights to, and eliminating any interest in, a property in which both parties held an interest. If a husband and wife own a home and divorce, and the wife acquires the home in the decree, the husband would enact a quitclaim deed to eliminate interest in the property. Failing to make sure this was accomplished as a requirement of the final order is a failure on the part of both my husband’s and his ex’s legal counsel and therefore I felt that they should have been responsible for the attorney’s fees that we incurred by filing a lawsuit.
The second issue that we ran into is the leniency of the court with those who are in contempt. Contempt of court is an accusation made that results in a court or judge declaring a person or organization to have disobeyed or been disrespectful of the court's authority. In our case, as with any contempt case, we had to prove existence of a lawful order, the contemnor's knowledge of the order, the contemnor's ability to comply, and the contemnor's failure to comply. By the time our court date rolled around, we had established proof for all of the above. In the end, our case was validated, but the judge did not validate the contempt with firm consequences. According to Wikipedia, it is relatively rare that a person is charged for contempt without first receiving at least one warning from the judge. Constructive contempt, also called consequential contempt is when a person fails to fulfill the will of the court as it applies to outside obligations of the person. This is what should have been pursued after the thirty, then ninety days had passed when we hadn’t received our total payment. Our lawyer should have been more proactive at following through with our original complaint. I do not think it was fair to “take our money and run” as some might say when it came to defending our case. I feel this was the second time that Earl’s lawyer did not see the case through to the end, and I think he would have demanded more money from us to finish the job. The nature of contempt and the difficulty in pursuing and acquiring a verdict seems to be a way for the legal counsel to exploit their clients. In the end, a court of a different kind protected the guilty from further action by either us or our lawyer.
Lastly, the issue of bankruptcy court overruling the order from a previous civil trial is unreasonable. In Bankruptcy law, filing Chapter 13 provides for adjustment of debts of an individual with regular income. This allows a debtor to keep property and pay debts over time, in her case, five years. Filing bankruptcy under chapter 13 "automatically stays" (stops) most collection actions against the debtor or the debtor's property. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even make telephone calls demanding payments.
Why should financial hardships caused by personal indiscretion and irresponsibility overrule a responsibility to a court of law? The original “final” divorce decree divided the debt between the two spouses, and my husband worked many, many extra hours to pay it off and have the financial freedom to start another family. He also pays a significant weekly amount in child-support to his ex, yet she can declare bankruptcy to avoid the consequences of bad choices. By filing Chapter 13, my husband’s ex “gets away” with ignoring two separate court orders. It seems there is no follow through with our judicial system, and as of now, we have no faith in the system to recover not only what we have lost, but what is legally ours.