[WSBAPT] Contesting Divorce Settlement

Thu Nov 11 20:16:39 PST 2021

  Law Office of
F.ANDREKITA SILVA
____________________________________________  

                     November 11, 2021

Amy,

I’ve never had a situation like this. But, I think the first thing you  
have to do is pretend your PC is Mom.  If Mom were still alive, would  
she have a cause of action and if so, how would she prove it?  
Strategically, would Mom try to set aside the entire property  
distribution or would the likelihood of success be greater if she  
focused on a particular asset?

A divorce action is extinguished if a party dies prior to entry of a  
final decree. However, a decree CAN be set aside pursuant to CR60. I  
don’t think it matters that one of the parties has died.  It seems the  
estate could represent the deceased's interests and sue on their behalf.

If you wanted to set aside per CR60, which subsection would it be? For  
sections 1, 2, and 3, it has to be within one year.   I assume you are  
alleging fraud? But how would this situation be any different from all  
those clients who go into a mediation without a lawyer, enter into a  
settlement, and six months later say “not fair, I was coerced.”  Or,  
clients who don’t even bother to go to mediation, they just agree to  
whatever spouse puts in front of them?

I once had a parenting plan set aside almost a year after its entry.  
Husband was physically abusive and controlling, wife was  
unsophisticated and had moderate English language skills. She had  
never worked outside the home, had no issues of concern (like drugs,  
alcohol, mental health) but agreed decree gave Dad custody. The  
divorce decree wasn’t vacated but the parenting plan was. But, per  
washington law, abusive parties aren't usually awarded the primary  
care. 

So, you would need facts egregious enough to set it apart from  
litigants who sit on their rights and later regret having done so. I  
think you'd have to prove actual fraud.

In your case, the person whose rights are in question is deceased and  
not available to provide information. So, how and where will you get  
your evidence?

When a quitclaim deed is executed a week after purchase, it doesn’t  
look good and in a divorce case, I scrutinize the situation pretty  
carefully. However, this isn’t always the result of coercion, etc./  
L/E/NDERS/ require joinder. If the real property was purchased with  
stepDad’s separate funds,  the quitclaim deed may have reflected the   
agreement/ recognition that it was H's separate property.

Has PC asked to establish a probate?

How does PC know if there are or aren’t assets?

In regards to the money that may be owed, does PC have access to his  
Mom’s financial statements? Can he ASK the stepdad if he paid the  
money owed?

Was there valid service of process in the divorce matter?  If not,  
orders are void unless wife ratified.

When did this couple last live together and why wouldn’t son know  
where his mom was?

I think you also need ask enough questions that you can determine if  
PC doesn’t have the information needed to sue stepdad on behalf of the  
estate (for unpaid monies or for whatever PC thinks stepdad did or  
didn’t do) because he was an uninvolved son or because his mom really  
was a vulnerable adult whose communications were being restricted. Did  
PC regularly call or text Mom, but Mom was obtuse or unresponsive? If  
PC is really serious, PC should provide you all communications or  
other evidence PC has that support his version of the facts.

PC should be willing to pay you for your time to review whatever  
evidence he has.
PC also needs to let you have direct communications with those who  
might be able to shed light on the situation- like stepdad. You need  
to gather up enough reliable information so that you can evaluate to  
decide if there are facts to support a claim for relief /OR/ if Mom  
sat on her rights.  

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com

Quoting Amy Goertz <amyjgoertz at icloud.com>:

> Hello,
>    
>   Funny I have another marriage-related question in the same week.
>    
>   Potential client’s mother was in an abusive marriage since the early 80s.
>   In 2004, the couple moved from California to Washington and  
> purchased a beautiful lakefront home and five acres of land.
>   Client lives on the east coast and doesn’t have a lot of contact  
> due to stepfather being very controlling.
>    
>   From time to time, client had to call police to do a wellness  
> check when he was unable to reach his mother.
>   This past summer, he called adult protective services and let them  
> know his mother was a vulnerable adult and was being exploited.
>   An investigation is still ongoing.
>    
>   Stepdad recently informed Client that he had divorced his wife online. 
>    
>   Client located a divorce decree issued 7/20/20 from Wahkiakum  
> County. The decree states that the husband will pay the wife some  
> money, half the value of his business, and half of the checking  
> account. Client doesn’t know if these things were paid, but the  
> amounts described are significantly less than one-half of the home,  
> acreage, vehicles, and substantial wealth accumulated during the  
> marriage. Client also found a Quit Claim Deed signed by the mom  
> giving the stepdad their marital home the day after it was purchased  
> in 2004.
>    
>   Client ended up having to call the police to find out where his  
> mom was - stepdad had placed her in a nursing home in Spokane.
>    
>   Now mom has passed away and seems to have no assets in her name.  
> The nursing home says everything was given to the stepdad because  
> the lease was in his name.
>    
>   Any thoughts on how to approach this? Is there any way to contest  
> the division of marital assets a year after the decree was entered?
>    
>   Thanks in advance for any insights you may have -
>
>                     /Amy/
>  
>        
>       /Amy J. Goertz, J.D./
>       /Goertz & Lambrecht PLLC/
>              amyjgoertz at icloud.com
>         
>        1.888.926.2607 phone
> 1.877.684.1627 fax
>  
>        Address for correspondence:
>        2829 S. Grand Blvd., Suite 303
> Spokane, WA 99203 
>         
>        Additional office locations:
>        510 Bell Street
> Edmonds, WA 98020
>         
>        Goertz & Lambrecht PLLC
>        www.goertzlambrecht.com[1]
>
>        
>        
>
>  

Links:
------
[1] http://www.goertzlambrecht.com/

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