AboutDan Bachert Expertise I can respond to questions pertaining to Florida Family Law within the specific areas of Divorce, Child Custody, Child Timesharing, Alimony and Child Support Enforcement/Modification, Equitable distribution, and Inter Family Adoptions.
Experience Actively practicing Family law in the Palm Beach, Martin and St. Lucie Counties for the past nine years.
Organizations Florida Bar, Family Law Section of Florida Bar, Palm Beach County Bar Association, BNI
Education/Credentials Bachelor of Science in Political Science from Florida Atlantic University; Juris Doctorate from St. Thomas School of Law
Expert: Dan Bachert Date: 7/17/2008 Subject: Ex-Wife trying to amend decree
Question QUESTION: Hello Mr. Bachert,
My ex-wife is trying to get the final decree amended only TWO months after it was signed off by the judge. I just received a summons and must respond within 20 days. I have already contacted my attorney but I haven’t heard from her yet. The final decree states “The Husband shall use all due diligence and good faith to refinance the mortgage so as to remove the Wife’s liability for the same. The Husband shall attempt to refinance it within 90 days and, if not successful, shall continue to attempt to do so on every one year anniversary of this judgment thereafter until accomplished.”
Let me give you a quick background about the house; because WE decided to consolidate all our debt into the house during our three year marriage it caused us to be “upside down” on the mortgage…in other words there’s negative equity on the house. The mediator was aware of this which is why I would assume the language is the way it is. I did attempt to refinance the house and it was declined due to the obvious. I think that she thinks I’m intentionally trying to keep her name on for spite which is ridiculous since a re-fi would actually bring the payment down. She now wants the language to be modified to read “Husband shall finalize the refinancing of the mortgage by 12/31/2008” (we were officially divorced 4/9/2008)
She also wants to amend another clause that states she must pay within 90 days of the judgment a contribution to our joint credit line of $1,800 to instead read “(which has already been paid by Former Husband) This contribution shall take the form of 18 monthly installments until paid in full.”
My question is: will a judge grant this? In any case I believe that SHE should have to pay my attorney’s fee for having to defend this. Can she be found in contempt since she has not made the $1800 payment? Can I now try and revise a couple of things as well? If she didn’t like the language of the order she could have said something when we were in mediation while her attorney & mother (the “wanna be” attorney) were there. Now it appears she’s not using an attorney because I can see that her mother signed the section on the summons that a “non-lawyer” helped her.
Any advice would be helpful. Thank you
ANSWER: Hi Dennis, to modify the language of the Final Judgment she will be required to show some substantial change in circumstances which does not appear to be the case here. With regard to the other requested change I believe the court would be without power to make the requested change as the change has nothing to do with support and appears to be a provision regarding equitable distribution. Once an order of equitable distribution is made and finalized the family court loses jurisdiction over the issue and any further litigation regarding that claim must be brought in the civil court with proper jurisdiction.
I hope this information was helpful to you.
This answer is based solely on the information you have provided in your question and as always, I would advise that you arrange for an in person consultation with an attorney from my firm or another Family Law attorney familiar with Florida Family Law who can analyze the specific facts and circumstances of the case more closely to better advise you.
Sincerely,
Daniel Bachert, Esq.
The Bachert Law Firm, P.A.
330 Clematis Street, Suite 222
West Palm Beach, Florida 33401
(561) 653-3951
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QUESTION: Thanks for the quick & helpful response. With regard to attorney's fees; it sounds like that would also fall under a civil court, correct? If so can or would a family court judge "recommend" that she pay my attorney's fee? With that I could then take the $1800 matter along with the attorney's fee issue to small claims court.
Answer Civil court does not usually allow for an award of attorneys fees unless the same is provided for in the contract between the parties that is the subject of the suit and the family court could not and would not make recommendation to the civil court regarding such a matter.
