Attorney malpractice in divorce trial

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Jo,

you ask, "why continue to "argue" with these people?"

Its because deep down, we care about them and are concerned about these people .Its because, even if they are not from Texas and don't understand the laws that we have, I think they are truly interested. They just have a different way of asking.

For those of us who are responding, we continue to argue in the legal sense. Legal argumentation is a good thing and leads to resolution. For those of you in the legal profession, the reason to argue is for the $250.00 to $300.00 per hour that it pays. For the rest of us, it is to correct the inaccuracies that occur when the discussion isn't brought out into the public forum.

Let me state outright that I take pleasure in reading your postings. Whether I agree with them or not, it is your right to say what you say and I can value that. After all, my time in the military was in protection of your right to speak your mind.

I don't think anything that I or others who disagree with you are doing so just to upset you or to just be argumentative. What I have seen is that most of us just want to clear up some mistaken beliefs. On the other hand, there are more than a few people from other states who have no familiarity with the way that the laws in Texas where meant to operate. You have conceded this much when you said "While not familiar with Texas law,,". I am wondering what leads someone who has no concerns or interests involved with the affairs of another state to be so adamant it expressing such opinions. This would be arguing on a personal and nonproductive level. So I ask (in a friendly way) why do you continue to argue? It would seem to me that your time could be better spent working with your clients and generate a better income. Or on a more philanthropic note, help those who can't afford the legal expense of defending themselves.

If you have noticed tax agent's previous reply, he has started using a legitimate base for arguing his point when referencing the statute directly. I had thought that all lawyers did so untill I started reading the forums here.

The postings here are topical and informative and are exactly what freedom of speech and assembly are all about. Gathering in the public forum just like our forefathers had done in the beginning. If you would rather not take part in the discussions, that would be your right as well. I would surely be disappointed and we would all miss out on what you have to add but it would be up to you.

bluetone:

If you have noticed tax agent's previous reply, he has started using a legitimate base for arguing his point when referencing the statute directly. I had thought that all lawyers did so untill I started reading the forums here.

 

Correction: I cited the wrong person and had ment to attribute this to adjuster jack. Pardon the mistake.

I know that this was directed to Thelmaglo and I will leave it to her to speak on her own behalf. Please forgive me for interjecting if politeness says that I shouldn't.

From an outsider looking at this from a third party's perspective, I can see that Thelma's post clearly was with the intention of keeping the government from interfering. Please reread the last half of her post starting with:

This is one thing - can the court grant a divorce if there isn't any reason to? If it is the state that makes the laws and the law that I found says that a spouse who gets married in good faith has the state on her side, doesn't that mean that the law favors her? Can the court favor the husband without him having any reason?

The other thing that is worring me is that my lawyer says that the judge gets to decide what is best for my kids. The judge doesn't even know them. How can someone know what is best for them if he has never even met them. My lawyer tells me that the judge will ask them who they want to live with. Cant the judge ask them if they don't want us to divorce. I know that neither of them want this and would say so if asked. Can't this be considered when deciding about granting the divorce?

I might be getting it wrong and please correct me if I am, but the tone of your reply sounds like you are getting riled up with the things that she is saying. It may sound disagreable to you but these are the opinions of other people who feel just as strongly about thier beliefs as you do about yours.

I personaly try to remain neutral on the personal level. Sometimes thats hard to do but you and ThelmaGlo and everyone should be constructive and posative in your comments and try to explain yourselves as best as you can without trying to deminish each other.

Can I ask if you are from Texas? The reason being is that it makes things a little easier when there is a common understanding of the discussion. Please check out gemini47's reply when she qoutes In re Marriage of Beach (2003) 97 S.W.3d 706, 708 &  In re Marriage of Wellington, No. 10-07-00181-CV (Tex.App. Dist.10 08/27/2008).

If I disagree, Im not doing it to insult you or get you [mad at] me so please take my comments as a friend might. I will give you the consideration that I do with my own and hope to get this chat a little further down the road.

If you read the reply that bluetone wrote to adjuster jack, you might find some important things concerning what you are asking Thelmaglo. When you asked Thelma about what reason there is of hers that is greater than her husbands:

SPlum:

What makes you think your right to not getting divorced supercedes your husbands right to get a divorce. No where does it state someone has to remain in a marriage they do not wish to be in...hmm life liberty and the pursuit of happiness.

I would've chosen a little less confrontational way to say it but that would just be me. The way that I would answer it if it was me is pretty much the same as the way bluetone put it -

The next reason why Insupportability cannot be considered as incontestable is because such a statute would place the interests of the claimant as the sole interests to be considered. This cannot be held as the case. The court must recognize the interests of all parties and balance those interests as described in the policies of the State. As it has been expressed in previous posting, there are the interests that the State holds, the interests of the respondent and the interests of the children. All three of these parties have a legal interest in the outcome of the dissolution directly and unless and until the claimant can prove otherwise, the strong presumption is held that these interests favor the continuation of the marriage - "The marital presumption." This is not my opinion, it is found in statute as enacted by the legislature. (maybe I couldn't say it as good as this but I realy agree that it makes the point).

 

All due respect, please name landmark cases in which the state of Texas would not give a petitioning party the divorce in which they sought.

 

 

Addendum...I asked specifically the poster why she felt her right to stay in a marriage outweighed her husbands right to leave the marriage.  Only the poster can answer that.

Additionally, this all goes back to the initial post of malpractice, the poster has the absolute right not to have an attorney who she feels is not representing her best interest.  Why would you wait for the courts decision then decide malpractice.  

Perhaps it isn't the fact you don't want the divorce, perhaps what is aggravating is you want to sit back with the advice you have been given from your own attorney, CHOOSE to stay with that attorney and then ahead of time plan a malpractice suit. 

 

Huh?

Sounds like SPlum is taking all this rather personal. I'm supposing that general politeness just flew out the window. I don't mean to barge in on the topic but there needs to be a little civility interjected at this point. Lets all remain calm an be courteous in our responses. If there is a private conversation going on, please submit it to the member's personal page and that way, none of us can interrupt.

SPlum, I don't know you so I can't say that you are mean or presumptuous. I bet that you are really allot nicer than your posts reflect. I bet that we can even have a good conversation going once we get past the little differences. Please take what I am saying as a friend.

I, for one, take allot of pleasure from reading and contributing. There is nothing that ThelmaGlo has said that should cause consternation on any one's part. I think it would be nice and polite just to ignore Sabina63's response and wait for ThelmaGlo to respond on her own. Aside from that, you are wanting answers and the answers are being given but you ignore them. Why? I would think that If ThelmaGlo posts a question, you have the chance to help her the best as you can and leave it at that. Your replies, my replies and others are all there for her (or anyone else) to choose from. If you disagree with what I have to say, please explain why but you need not be combative about this.

As stated in earlier postings, there is a difference in legal argumentation and being personally argumentative. Please give me a little to go on here. I would like very much to turn this around and get to discussing very interesting topics like this one with you. Please let me know if you are willing to talk about what the rest of us have been saying in the matter?.., and yes, I still think that you are a good person.

Personal, no,  Very presumptuous on your part.

The poster orignally stated she wanted to file a malpractice suit if her husband is allowed to file and is successful in obtaining a divorce.

The attorney she apparently retained has suggested she would not be able to prevent the divorce.  If that attorney does not meet her needs or she feels does not represent her desires, she should fire him/her and obtain another attorney.

It really is that simple. It has nothing to do with anything else. If a client is not happy with the legal advice an attorney provides, he/she is 100% free to move on from that attorney and find one that they feel do represent what they want.

Please stop hijacking the posts.  If the poster is unhappy with her attorney, she needs to move on from that attorney and find one who can prevent the divorce.  Good luck to her.

Bluetone, this all is getting rather surreal, isn't it? Being polite or being direct, neither is getting the point across.

Can anyone rationalize such a comment as: "Please stop hijacking the posts." after you had explained: "If there is a private conversation going on, please submit it to the member's personal page and that way, none of us can interrupt."?

No, ThelmaGlo did not state this: " The poster originally stated she wanted to file a malpractice suit if her husband is allowed to file and is successful in obtaining a divorce."

What Thelma asked was: "If my lawyer is telling me things that aren't true and this makes me lose the case, can I have a claim of malpractice against him?"

If retained counsel knowingly misinforms his client and does not act in accordance with those objectives of the client as is required, this may be pursued under the rules found in TDRPC and elsewhere, attorney malpractice does in fact become an issue. I will be most happy to look into the specific rules that apply to retained counsel's fiduciary responsibility towards the client.

"What makes you think your right to not getting divorced supercedes your husbands right to get a divorce.  No where does it state someone has to remain in a marriage they do not wish to be in...hmm life liberty and the pursuit of happiness."  This has been explained ad nauseam and trying to explain it again would only be repeating one's self. Basically, its a balancing of interests.., agreed?

All in all, there is enough being said in this thread to give ThelmaGlo or anyone else a good start.

"All in all, there is enough being said in this thread to give ThelmaGlo or anyone else a good start."  Hardly.

"I, for one, take allot of pleasure from reading and contributing."

Uh, that's very apparent, but "contributing" means nothing without evidence of your assertions.  Opinions mean nothing; give us a REAL case to back up your statements. 

Call every Texas attorney (every lawyer in the union if you'd like) and prove that Texas or any state denied a resident a divorce in recent history!  

It should be extremely easy if true.

 

argumentum ad ignorantiam

ad nauseum is more like it;  seems like the same person responding and making inane "argument" under different names.

If the original poster was actually legitimate , find an attorney who will take your money and argue on your behalf and what you want them to argue and lose.

Jo, I'm starting to get just a bit ad nauseumated too!

JoBraver:

seems like the same person responding and making inane "argument" under different names.

You beat me to the punch on this one. I was going to suggest that this might be going on but didn't want to ruffle their feathers. It seems like the responses that they make get pretty heated when someone disagrees with them.

I agree with you on the inane part but I don't think that they intend it to be that way. If you have notice, they are mostly coming from Ca. not Tx. Its probably just because they don't have any experience with the laws of Texas.

I think that if a person has to be told by more than one member to cool down a bit, that's a sign of taking it a bit too personal. I have noticed this going on in other replies by other members as well. I'm all about politeness (at least I try to be).

Your friend, bluetone

Ad nauseum would be descriptive, I cannot argue there.   I can do nothing more than agree with you and bluetone. There are allot of replies that seem to sidestep the original issue. As a lawyer, you can recognize the need of supporting your argument at trial with relevant case law. Therefore, it would seem to be a frivolous argument to make when precedent has already decided the issue. There would actually be no reason to provide a single case as suggested to prove that divorce is contestable when it has already been deliberated on in the appellate courts. This is why I use the expression "Argumentum Ad Ignorantium"   "so just give us just ONE divorce denied in recent history and we'll take your assertions more seriously"  is a logical fallacy in which it is claimed that the premise is true only because it has not been proven false.   Assuming arguendo, that all petitions for divorce have been decided in favor of the petitioner, the conclusions of law would not necessarily support the belief that divorce is mandatory. Having a familiarity with the statutory scheme and how the courts operate here in Texas, the majority are being granted in what has the appearance of agreed decrees in which the issue of contestability never surfaces.   I can only conclude that divorce on the grounds of insupportability is misunderstood by the majority. Having the respondent believe that divorce under this statute is not contestable relieves trial counsel of any burden of having to effectively argue the case.   It is not so much an issue of being a fact of law as it is being custom with the force of law.  Wouldn't you agree that custom cannot obtain the force of law, so as to abolish the law?

You all seem to be the same person posting under several names (all of the new Texas members - Bluestone, Lup, Sabina)...

If you are so knowledgeable ...then you can represent the poster and everyone's problems are solved.

No arguing, poster has what she wants and you get to show what  you think you can do.  It's a win win.