Attorney malpractice in divorce trial

These are the basics,

My husband and I were married for 12 years and we have two children. We got along together pretty well although the last several were not quite the same as when we first got married. There hasn't been anything that we have realy disagreed on and we have done good in all respects. The children have been raised as we both though best for them, attend church, involved in sports, etc. This is what puzzles me because last November he filed for divorce just out of the blue and he won't give me any real answer as to why. I says that he just needs the change or something like that.

I had got an attorney and said that I didn't want the divorce because of the way we both felt about it being against our faith and because of the children and what the effect would be on them. It all sounds kind of funny since the things we talked about early on have all been forgotten.

My attorney is telling me that divorce is going to happen no matter what wich never did sound right to me. after reading a couple of the opinions on this forum, I don't know what to believe but it sounds like my lawyer isn't telling me everything.

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?

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?

Thanks to all of you who might be able to help in this.

ThelmaGlo:

My attorney is telling me that divorce is going to happen no matter what

Your lawyer is correct.

Texas Family Code Chapter 6:

"6.001.  INSUPPORTABILITY.  On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation."

That means if your husband wants out, he gets out. http://caselaw.lp.find...

ThelmaGlo:

can the court grant a divorce if there isn't any reason to?

But there is a reason to grant it. Your husband wants out. That's all the reason that's needed.

ThelmaGlo:

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?

I don't know where you got that idea but you are attributing something to the law that isn't in it.

ThelmaGlo:

Can the court favor the husband without him having any reason?

The court isn't "favoring" anybody. The whole idea behind no fault divorce is that the states don't want to be in the position of forcing somebody to stay with somebody else if somebody doesn't want to.

You might think there's no reason, but your husband certainly has one even if it's not readily apparent to you.

ThelmaGlo:

The other thing that is worring me is that my lawyer says that the judge gets to decide what is best for my kids.

That pretty much only happens if the two of you can't reach your own agreement on who does what with the kids. Then the judge steps in.

ThelmaGlo:

The judge doesn't even know them. How can someone know what is best for them if he has never even met them.

If you and your husband can't agree, and you force the judge into the decision making process, he WILL get to know you, your husband, and the children before making a decision.

ThelmaGlo:

My lawyer tells me that the judge will ask them who they want to live with.

That could happen. The younger the children the less their opinion will matter. Even with older teenagers, their opinion doesn't matter much.

ThelmaGlo:

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?

No.

Again, the statute is clear. When one spouse wants out, it's over.

By the way, if you have trouble accepting all this, feel free to read the following:

http://community.lawye...

It'll save us all a lot of time.

ThelmaGlo:

My attorney is telling me that divorce is going to happen no matter what wich never did sound right to me.

However you think it "sounds," it's absolutely correct.  You cannot force someone to remain married to you.  If he wants a divorce, the court will grant it whether you agree or not.

ThelmaGlo:

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.

If the two of you cannot agree on custody, the court WILL decide.  It *can* ask the children their views but the court will be the decider. 

ThelmaGlo:

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?

It's not up to the kids to decide whether or not either of their parents seek a divorce.  They're minors.  They aren't parties to the divorce and don't get to decide if mommy & daddy stay together.  If dad wants out of the marriage, the court will grant it. PERIOD.

ThelmaGlo:

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?

So far, you haven't posted anything that indicates your attorney isn't telling you absolutely how it is.  You're just not wanting to hear it.  There are two sides to every lawsuit, including a divorce.  Very, very rarely do both parties walk away happy.  That doesn't mean the lawyers did anything wrong.  If your whole focus and reason for retaining counsel is trying to stop the inevitable, you're wasting money. No attorney can make the divorce go away.  Your husband wants out and nobody, not your attorney nor the court can or will make your husband stay married to you.  Get that through your head and then decide how to make the best of it.  Good luck.  

 

First, I don't respond to private posts. Second, as to your malpractice threat, no attorney-client relationship is formed on these boards.  They are for general legal information only.  Third, I didn't say you couldn't contest the divorce.  What I said was if your husband wants a divorce, he will get it and you can't stop him.  You can certainly, however, waste a lot of money trying.  See In re Marriage of Beach (2003) 97 S.W.3d 706, 708 [there is no legal duty to reconcile] and In re Marriage of Wellington, No. 10-07-00181-CV (Tex.App. Dist.10 08/27/2008)  "a decree of divorce mandatory when a party to the marriage alleges insupportability and the conditions of the statute are met."

Your attorney is not committing malpractice. What he has told you is true. You cannot force your husband to stay married. The court can grant a 'no-fault' divorce simply because your husband wants to end the marriage.

And the judge has the final say on what is best for the children if you two cannot agree.

You are trying to combine religious beliefs with a legal proceeding. One has nothing to do with the other.  LEGALLY, the statutes and laws are clear.  You cannot stop the proceeding.  Your take on it is there is no reason for the divorce, clearly, he feels otherwise.

If you are unhappy with what your attorney is telling you, FIRE them, but wait to see how it plays out (which is VERY clear legally), then want to claim malpractice is ridiculous. You have many choices for other attorneys. Consult with some and I am confident you would consistently be told the same thing, but if you choose to stay with that attorney, you have been told what will happen.

You have choices.  Keep your attorney, don't keep your attorney.  But you don't get to play a game of my attorney represented me, told me what would happen, but I don't like that outcome despite the laws being very clear, so they committed malpractice. That is wrong on many levels. 

Do yourself a huge favor. Get yourself and your children in counseling. Children have no say who they get to live with, they have no say in what happens in their parents marriage, and even asking them their thoughts on it is wrong. 

If you and your spouse can work things out such as custody, support, time sharing, the judge won't have to make decisions regarding that.  But, if you can't agree, the judge will absolutely make the decision for you.

I understand this is very difficult for you, but you are placing your anger in the wrong place. Your attorney didn't cause this situation and neither did Gemini.

I am having a difficult time understanding what is happening with the replies to the post that I had submitted here. What it looks like to me is that there are replys that are missing. I have been trying to get infomation but it is dissapearing faster than I can get to it.

Can somebody explain. I have noticed the replies that are still here are the ones that tell me I am wrong for thinking what I think. The ones that are missing are the ones that explain what I have been looking for. Why is only one viewpoint allowed? The people here have been very helpfull by telling me what the law is all about and where to look for help. I would trust them because they are from Texas and it seems as they have a good undetstanding of what the law says.

The replys that are still here seem more like someones opinion and they don't give good reasons for what they are telling me. They are not from Texas so my question is how they know more about Texas law than the rest of us. This does not seem right.

Texas is in America last time I checked and Americans value their freedom to marry  (and stay married to) whom they like without interference from the govt.

So give us ONE example of divorce denied in Texas.  And why would you want to cling so tightly to someone who clearly doesn't love you anymore?  Sometimes you just have to buck up and go on with some pride rather than force your husband to stay with you.

Let us know of ANY recent divorce cases denied in Tx.

I can't help it by noticing that there is a certain hostility in the way you answer posts. Was there something that I may have said to upset you? Perhaps you don't understand the problem. You have made the comment that Americans value freedom and don't like interference from the Govt.

kath21:

Texas is in America last time I checked and Americans value their freedom to marry (and stay married to) whom they like without interference from the govt.

I am not understanding how you get this. When someone looks to get a divorce, they are asking for the government to interfere. My post is all about how to keep the government from interfering. I think that maybe you are looking at it from the viewpoint of the person who wants the divorce and not considering the problem this creates for everyone else who is involved. When you say things like

kath21:

And why would you want to cling so tightly to someone who clearly doesn't love you anymore? Sometimes you just have to buck up and go on with some pride rather than force your husband to stay with you.

it makes me cringe to think of what must have happened in your life to make you so sour about keeping a marriage intact. Believe me when I say that I know the rough times too. I really do empathize with what you must have gone through. If things got that bad in my marriage, there is a possibility that I would agree to the divorce as well but it hasn't got to that point yet. The difference between what I am talking about and what you are saying is the difference between wanting a divorce and needing a divorce. The purpose in keeping my marriage together far outweighs anything that can be gained by destroying it.

adjuster jack, you make an interesting point and it is something different from the other postings for the fact that you show an interest in basing your argument directly on the statute as it is written. I haven't seen anyone doing that here at lawyers.com before. Please understand that my responding to your post is not to argue on a personal level but only to give legal argument where I thing the issue needs to be clarified. It seems from the postings in this forum that people are taking the issues much too personally and discussions become a little too heated. kath 21 for example, seems to get much too involved with other people's viewpoint. Please take this in the friendliest manner as it was intended.

I believe that the fundamental error that is being made when trying to define sec. 6.001 as being incontestable is the premise that it was intended to provide relief for the spouse who no longer wishes to be married. By saying,   "This result, if correct, is not surprising, since the law in most other states is basically results in a granting of divorce should one spouse want out."   you are assuming that the statute of insupportability was intended to serve the interest of the spouse who no longer wished to remain married. This would also be an argumentum ad populum, a fallacious argument that concludes a proposition to be true because many or all people believe it.   If you where to look back at what was being discussed at the time, the legislature was doing nothing more than providing a means for two people who mutually decided to end the marriage a means of doing so without the need to assign fault. The meaning of this statute cannot be interpreted by the statutory intent of any other state's laws and disregarding the laws and polices of Texas as they pertain.     You have stated an error when you wrote, "The short answer is that the petitioner does not need a "strong reason." Your focus remains strictly on the text of the statute and disregards the policy of the State as has been mentioned before. Please reread the marital presumption of sec.1.101 where it clearly states "..,it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable."
This is not me trying to twist the argument, this is clearly the intent of the legislature.   I contend that the case law that you cite does not hep your argument but to the contrary, works against it.   This ground, also known as no-fault divorce, has three elements.  1) that the marriage has become insupportable because of discord or conflict, 2) that discord or conflict destroys the legitimate ends of the marriage, and 3) there is no reasonable expectation of reconciliation. The party petitioning for a divorce on these grounds has a duty to establish the statutory elements with adequate evidence. Cusack v. Cusack, 491 S.W.2d 714, 716. This by the way, is not the opinion of the various courts or their interpretation of the statute but only their recognition of what the law holds. Please recognize the Standards of Review that the appellate courts use in regards to a sufficiency of the evidence. No Finding of Facts to support the verdict ( or insufficiency of facts) means that the claimant has not carried the burden of proof as necessary.   The reason that your interpretation cannot be logically concluded is because by reducing the statute to mean nothing more than the claim prevails merely on the request of the claimant and solely on the basis of discord or conflict means that there is no need to prove that the legitimate ends have been destroyed. There would be no material issues of fact for the trier of fact to decide on and leaving it only for the claimant to decide. Please read In re Marriage of Richards over again. This would be in direct conflict with In re Marriage of Richards and Cusack v. Cusack.  &nb... .    Note that the court says it has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship.   &am... meaning that the legitimate ends of the marital relationship is the basis for a determination that the marriage is insupportable. Di... this important part of the statute is to take away from legislative enactment. The trial court cannot add to or take away from what was enacted by the legislature. It is not within the trial court's discretion to decide what the law is or in applying the law to to the facts.

If the claimant fails to provide evidence as to what the legitimate ends of the marital relationship are or that they have been destroyed, then there is no ability to prove any other elements of the statute. Discord or conflict of personalities that does not destroy those legitimate ends would be irrelevant to the pleadings and therefor inadmissible. Such testimony of discord or conflict that did not destroy the legitimate ends would be objected to for preservation of error by opposing counsel as being prejudicial to the respondent. 

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.

As the Texas Fifth Circuit Court of Appeals stated "In a divorce case, the petitioner's opinion that it would not be feasible to continue the marriage relationship satisfies the Texas Family Code requirement to establish a prima facie case of divorce." Sullivan v. Sullivan, NO. 05-86-00297-CV (1987)(unpublished).   The first and least important point is that the 5th circuit would not be controlling but merely advisory. The notable error is where it states that the petitioner's opinion satisfies the requirement to establish a prima facie case of divorce. I could not accept that in a divorce based on adultery, confinement, abandonment or commitment so it should not hold true to Insupportability either. But assuming arguendo that this was true, a prime facie case does not meet the evidentiary level required when the standard is "clear and convincing evidence". All that is really being said by "In a divorce case, the petitioner's opinion that it would not be feasible to continue the marriage relationship satisfies the Texas Family Code requirement to establish a prima facie case of divorce."  is that the plaintiff's opinion shifts the burden of proof onto the respondent at which the respondent gives testimony of his opinion that the marriage is viable. It would be at this point that the petitioner's and respondent's testimony being equally credible, the petitioner would have failed to meet the lowest level of "beyond the preponderance" and the claim would not have been established.   I would like to go further with your take on covenant marriages as this is highly interesting and there is much to say. I would appreciate a continuation on the topic in the future.

P.S. If you would consider another topic that relates directly, Please give some thought to what the legislative intent is behind the term; "legitimate ends of the marriage". I have a good amount of info concerning this and it woulth be an interesting subject to discuss.

You wrote " My post is all about how to keep the government from interfering...." No, your post wasn't about that. Your original post was can I sue my lawyer for malpractice if he can't prevent this. 

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.  You are citing religious reasons.  That is a religious belief, not a legal statute and as such, you can't sue  your lawyer for not preventing something he can't prevent. Well, you can sue, but what do you really expect to gain. Your husband will still no longer be your husband, you will be out alot of money, and for what to show for it.

It is very simple, if you don't like your attorney, why don't you drop him/her and find someone who represents what you want.

That is your choice and your right.  You would quickly lose a malpractice case in which you were told what was going to happen, it happens and you are upset.

Find a lawyer who will take your money and fight for what you want.