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The state-of-the-art in what is best for children of divorce. Every parent, judge and family law attorney must view this video to save their children from the ravages of divorce.
Click Here to Learn More.

 
 
 
When a Judge Orders You To Pay Spouse's Divorce Legal Fees - DON'T

 

This is a normal debt that you did not contract and for practical purposes it is not collectible! There is no statute to support on paying another's legal fees


(Also about discharging attorney's fees and child support in bankruptcy)

 

Do not fund your enemy's army. Do not ever pay these ordered amounts. It is a civil debt and they can go through normal collection processes. Even if you are held in contempt, which should not happen, you can not be jailed for this type of debt, like you can before child support due to this being treated differently than a civil debt by law.

Divorce is the #3 reason for bankruptcy due to the insane orders of courts that look only at the mothers financial to make determinations and often leave fathers unable to support themselves. With 40% of take-home pay (average with 2 children) going to the wife TAX FREE a man earning $50,000 per year takes home $357/month. Not even enough to rent an apartment, never mind a car, food and other living expenses.

Normal civil debt requires a "meeting of the minds", contract or agreement. None exists so collection is VERY difficult.

NEVER PAY YOUR SPOUSE'S LEGAL BILLS!
Every war is a war of attrition and funding your enemy is just plain stupid!!
You will be amazed at how quickly things move along, or how quick the spouse's attorney exits,
when they realize they will never collect from you.  :)
Lawyers are mercenaries! No cash no service!


Each person pays his own attorney fees.

 
  
Key Number graphic102 Costs
  Key Number graphic102VIII Attorney Fees
    Key Number graphic102k194.16 k. American Rule; Necessity of Contractual or Statutory Authorization or Grounds in Equity. Most Cited Cases

As a general rule, a litigant must bear his own expenses including attorney fees, except where a statute permits the award of costs, a valid contract or stipulation provides for costs, or rules concerning damages permit recovery.

Krock v. Krock  46 Mass.App.Ct. 528
46 Mass.App.Ct. 528, 707 N.E.2d 839

--------------
 

2. Attorney's fees. Aurora urges that the award of attorney's fees by the second judge in the amount of $2,000 must be vacated as there is no statutory basis for the award and no contractual provision for fees in the parties' separation agreement.
"As a general rule in Massachusetts, a litigant must bear his own expenses including attorney's fees, except where a statute permits the award of costs, a valid contract [or] stipulation provides for costs, or rules concerning damages permit[ ] recovery." Judge Rotenberg Educ. Center, Inc. v. Commissioner of Dept. of Mental Retardation (No. 1), 424 Mass. 430, 468 (1997); Krock v. Krock, 46 Mass.App.Ct. 528, 531 n. 2 (1999). See Police Commr. of Boston v. Gows, 429 Mass. 14, 17 (1999) ("Massachusetts generally follows the 'American Rule' and denies recovery of attorney's fees absent a contract or statute to the contrary.") Additional exceptions to the general rule have been created, where, for example, an insured under a homeowner's policy has successfully established an insurer's duty to defend, Preferred Mut. Ins. Co. v.. Gamache, 426 Mass. 93, 95-97 (1997), or a party has been forced to litigate to obtain what previously had been awarded by a court even though the opposing party's conduct did not constitute contempt. Police Commr. of Boston v. Gows, 429 Mass. at 17-19. See the case summaries in Krock v. Krock, 46 Mass.App.Ct. at 531-532 n 2.
 
Beato v. Beato 60 Mass.App.Ct. 110
60 Mass.App.Ct. 1102, 798 N.E.2d 1045 (Table), 2003 WL 22724007 (Mass.App.Ct.)
 
----------------------
 
The following case is the biggie which most lawyers cite on appeals to demand fees:  
 
YORKE MANAGEMENT
v.
ELIZABETH CASTRO & ANOTHER
 
546 N.E.2d 342, 406 Mass. 17
 
the relevant section is
 
[22]     We have recognized the explicit language of G. L. c. 186, 14, which provides for payment of attorney's fees, and this language is not limited to attorney's fees for trial proceedings. See Darmetko v. Boston Hous. Auth., 378 Mass. 758, 765 (1979). Similarly, we approved the award of attorney's fees under G. L. c. 186, 18, where the statutory language is equally clear and not limited to attorney's fees for trial proceedings. See Ianello v. Court Management Corp., 400 Mass. 321, 325 (1987). The language of G. L. c. 93A, 9 (4), leaves no doubt as to the right to recover attorney's fees without any suggestion that fees for the appeal are excluded. See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 801 (1976). The statutory provisions for a "reasonable attorney's fee" would ring hollow if it did not necessarily include a fee for the appeal. The right to appellate attorney's fees under these statutes is beyond dispute.
 
[23]     2. Procedure for the award of attorney's fees for appellate work. A more difficult question is whether the rule which we announced in Mellor v. Berman, 390 Mass. 275, 284 (1983), to the effect that "either appellate costs nor attorney's fees for the appeal can be imposed by a trial court absent authorization by an appellate court or by virtue of a rule or statute," applies to attorney's fees for appellate work under the statutes in the present case. We have treated as discretionary in the appellate court the award of attorney's fees on appeal where a statute provides for the payment of reasonable attorney's fees. Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985). Although, in Mellor, the court was deciding the issue under G. L. c. 186, 15B, a statute which does not figure in the present case, the rule has been extended to the award of appellate attorney's fees under the statutes in the present case. See Patry v. Liberty Mobilehome Sales, Inc., supra.
 
[24]     We are asked to abandon the Mellor rule in favor of a practice which would permit a trial Judge to award attorney's fees for appellate services without any authorization from an appellate court. Despite the force and diversity of the arguments for abandonment of the Mellor rule, we conclude that the rule is sound.
 
[25]     An appellate court is in a far better position to evaluate the worth of the appellate work than the trial Judge. The Justice of the appellate court who writes the opinion for the court develops nothing short of an intimacy with the record on appeal and the briefs. An appellate Justice on the quorum or panel which hears and decides the appeal develops a knowledge of the case and the value of the work of the attorney who seeks compensation. A trial Judge simply cannot bring to bear this familiarity with the appellate work.
 
[26]     3. The procedure under Mellor v. Berman. If Mellor has left the bar unclear as to the procedural requirements of an award of legal fees for appellate work, we set them forth.
 
[27]     A party who seeks an award of appellate attorney's fees should request them in his brief. If such party does not prevail, he is not entitled to fees, though no harm accrues from the request. If such party prevails, he may then submit his petition for fees together with the necessary back-up material and details as to hours spent, precise nature of the work, and fees requested. The other party should be given a reasonable time to respond. The appellate Justice who considers the petition may request more data and may set down the matter for hearing with notice to the other party. This procedure places no greater burden on the parties than the procedure requested before the trial Judge.
 
[28]     Judgment of the Superior Court affirmed.
 

Advice from fathers who have been through this:  (reverse chronological order so you might want to read from bottom up)

What the probate judges do and what is legal are almost certainly two different things. They will intimidate you to do their will without regard for the real law, knowing the 95% of people will not understand it is illegal or appeal.  I was found in contempt for not paying the mortgage when I did not have the money and wife was living in my house protected by my prenup - TOTALLY ILLEGAL by case law and prenup contract!!!!
He sentenced me to 30 days and never enforced, though wife moved out and kind of acquiesced making the order moot after the pretrial on the prenup where they admitted the prenup was valid (except for a small illegal carve out her attorney try to get). But the contempt finding still hangs there.
 
It is your responsibility to fight these. As a civil debt with no contract collection is difficult and I have heard most attorneys don't even try to collect these.
My appeals forced judge to take me more seriously - though this pisses them off a bit too. He now has 3 different appeals hanging over him from me, so if I file civil rights suit against him there is a clear history and pattern of judicial abuse there (if I fight and win, which is very likely).  If no appeal you are accepting his/her ruling.  I asked for a finding of facts on this, as you always should, and this was granted but never done by judge. As I understand it most judges will not enforce the sentence while under appeal. He is getting more and more irritated as I learn more and more and he knows I know he is doing illegal things. I count about 22 illegal things my judge has done now - averaging about 4 per hour in front of him or on illegal act each 15 minutes. He is just no realizing that I know these things are illegal and most people don't. Knowledge is power!! He will have to be more careful moving forward as I hint that a record of real abuse and prejudice is being built here.
 
You can also motion for a Stay of this sentence at both the probate and appeals court level (must do in that order) giving you 2 bites at the apple to hold it off during a LONG appeal process. By the time the appeal is done the order and sentence may be moot anyway or it may be dropped due to the expense and other progress.
 
LESSON I LEARNED: You should always appeal such an order (notice of appeal to reserve that right is just a letter within 30 days saying you will appeal X) and fight both the order itself and the contempt (2 chances to win). Most of us are so poor after this process it is easy to make the case you can not afford to pay it anyway.  Case law says you can not be found in contempt unless it is PROVEN that you have the ability to pay on the day of the contempt hearing. They would have to bring in a 3rd party financial statement showing you had all that cash hidden somewhere.  So in other words if you can not afford to pay it then you should be able to get out of it easy. The lawyer will forget it long before you recover financially from your divorce. BTW I think that pension money does not count so if the money is in a 401K, Roth IRA or other retirement fund I THINK you can still have lots of assets. So if this is coming put all your funds into retirement accounts. (not sure about Coverdell, but since you can put $250,000 in these if this is exempted too then you have lots of place to put funds that cannot be taken for these legal fees. Not paying legal fees is the best way to get the divorce resolved more quickly - it is amazing how these will go on and on for rich folk and poor folk get this resolved without any real legal costs!
 
From: The Fatherhood Coalition [mailto:FATHERS-L@HOME.EASE.LSOFT.COM] On Behalf Of George Mason
Sent: Friday, December 02, 2005 7:55 AM
To: FATHERS-L@HOME.EASE.LSOFT.COM
Subject: Re: anyone know if Plaintiff attorney bill protected like child support?

 
So while still in a temporary order, the marital estate would have to file bankruptcy, not just one of the individuals?

"Marasa, Fred" <Fred.Marasa@SPHS.COM> wrote:
Well now, that is interesting information that I didn't know. As a matter of fact, now that you mentioned that, I do recall something in the judgment that the judge ordered me to pay her attorney's fees amounting to something like $17,000.00. But I have not paid any of that myself. That was in N.Y. and I am in R.I.. Do you think that may play a role as to why I haven't been notified that I am in contempt?
-----Original Message-----
From: onlyadad [mailto:onlyadad@comcast.net]
Sent: Thursday, December 01, 2005 9:36 AM
To: Marasa, Fred; FATHERS-L@HOME.EASE.LSOFT.COM
Subject: Re: anyone know if Plaintiff attorney bill protected like child support?

 
In a contempt situation this is not true.  So you were lucky, I wasn't and he might not be so. All they have to do is find him in contempt and order him to pay.  I can show you a copy of such resulting in a deferred 7 day sentence if you don't believe me.
 
John

 

YOU DON'T HAVE TO WORRY ABOUT PLAINTIFF'S LAWYER'S BILL (UNLESS YOU'RE THE PLAINTIFF). HER ATTORNEY KNOWS THAT HE/SHE WILL NOT GET PAID (FROM YOU ANYWAY). THEY MAY BE SO BOLD AS TO SEND YOU A BILL OR EVEN SEND IT TO AN OFFICIAL BILL COLLECTING AGENCY, LIKE SOME OTHER ATTORNEY'S OFFICE. JUST IGNORE IT. THE SAME HAPPENED TO ME AND IF YOU ARE SO STUPID TO EVEN PAY A PORTION OF IT, THEN THEY'LL TREAT IT AS IF YOU MUST PAY IT. I IGNORED THE BILL AND I NEVER EVEN RECEIVED A SECOND BILL AND IT NEVER WENT TO A BILL COLLECTING AGENCY. THERE IS NOTHING THAT THEY CAN DO. PERIOD. YOU NEVER CONTRACTED THE PLAINTIFF'S ATTORNEY SO IT IS NOT YOUR RESPONSIBILITY.

File the lawyers invoice in the bankruptcy.  Also send him a notice denying any liability for that debt. Just write DEBT DENIED on the bill and send a copy back.

 
Unless the Judges orders you to pay her fees,  its not a legal debt.  Even if the Judge orders it, you can "bankrupt it." or just ignore it. It is a civil debt and should be treated as such.
 
It is my practice to just ignore these bills and claims of debt. I have never had a lawyer try to collect a court ordered fee from me.  They have better things to do with their time that will be MORE profitable. Should they ever decide to try to collect, I will run them through an unbelievable process taking hours and hours of billable time, and final result is they will still not collect. I would demand all their billings for all their clients for the last 5 years for a starter. I did this to Bank of America collectors last year and the lawyers retreated!!
 
I currently have over $20,000 in alleged attorney debts ordered by Judges over the last 10 years.  I have never determined if I owe the lawyer or the EX from the order. It 's unclear who to pay. The Judge just orders you to pay it. There can be no contempt from an unclear order. The above advice is based on real experience.
 
Bill From VA
 
----- Original Message -----
From: George Mason
Sent: Wednesday, November 30, 2005 8:27 AM
Subject: anyone know if Plaintiff attorney bill protected like child support?

 
Anyone know if filing bankruptcy the plaintiff's lawyers invoice is treated like taxes due or child support?
 
Posted at Krights:
Child support can NOT be bankrupted. Period. Neither can alimony, nor some other  things, like taxes, and even student loans (the last one is usually not, although there are exceptions for this under proven "undue hardship").
See the federal law itself:
http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000523----000-.html
specifically - 11 USC 523(a)(5)

Also, a person can get into SERIOUS trouble for even trying it:
http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000110----000-.html
11 USC 110, generally HOWEVER, there are ALSO laws that protect people against child support garnishments that are too high. If a judge ordered an amount of child
support that violates either 15 USC 1673, or your own state's mandatorily-same law, then that child order (1) may NOT even be made in the first place, (2) may NOT be executed [like via income withholding or other means], and (3) may NOT be enforced in any manner (like contempt or criminal charges for arrearages). Indiana's version is IC 24-4.5-104 & 105, specifically the latter's version's section (c)...

regards,
Torm

----- Original Message -----
From: "Dr. Amir H. Sanjari" <sels56@yahoo.com
To: <victimsoflaw@yahoogroups.com
Cc: "Indiana CRC" <IndianaCRC@yahoogroups.com;
<FRCMich@yahoogroups.com
Sent: Monday, November 28, 2005 4:06 PM
Subject: [IndianaCRC] RE: [victimsoflaw] Child Support


Hello Dorothy,

1-                 Lewko doesn't say explicitly that one can bankrupt child support. But as it is  a debt "Like any other debt", by implication, it would be subject to the Fair Debt Collection Practices Act, and other consumer credit laws because it has been declared to be a common, commercial debt (see below excerpts from Lewko).
Therefore, as such a debt, it maybe discharged in bankruptcy.
Any other relevant case laws in this regard addressing the bankruptcy issue
explicitly would be useful. Are there any case laws or statutes that explicitly state what categories of debt are dischargeable ?

2- That child support payment "enforced through civil remedies. "
could mean that the court can NOT use contempt against the non-custodial
parent for non-payment (unless non-payment arises out of fraud). So,
hopefully this should reign in the judges from their excesses.

3- Additionally, and maybe even more importantly, one should note
what it says about  accountability by the custodial parent that s/he must
"demonstrate that he or she is using that money for the care and
upbringing of the child. " Using this, a non-custodial parent could sue the custodial parent for accountability.


Best Regards
amir

--------------------- Excerpts from Lewko
------------------------------------------------
 Lewko case regards child support as  ' a "thing" in commerce.
Bongiorno,
106 F.3d at 1033. '.
...
"Although the non-custodial parent has a duty to provide financial
support, the custodial parent must also demonstrate that he or she is using
that money for the care and upbringing of the child. Regardless, a child
support obligation arising from a court order, whether family court or
another civil court, is a debt that may be enforced through civil remedies.

See Mussari, 95 F.3d at 790 ("True, the court order arises from the
family relation. Once in place, the order creates a debt. Like any other
debt, it is a thing of value, one of millions of obligations that make up the
stream of commerce subject to congressional control."); see also Bongiorno,
106 F.3d at 1032 (holding that state-court-imposed child support orders
are "functionally equivalent to interstate contracts" and rejecting idea
that child support payment obligations are somehow "different") (citing
Sage, 92 F.3d at 106).
Therefore, ......attempt to carve out child support payments from other
types of interstate monetary transfers in satisfaction of a financial
obligation fails."
..
"Just as we have previously determined that the payment is a "thing
in interstate commerce," we similarly have no trouble finding that the payment
must travel through "channels of interstate commerce" to reach the
deserving party, and therefore falls within the purview of Congress'
Commerce Clause authority. See Bailey, 115 F.3d at 1227. Whether
transmitted via wire transfer or through the mails, these payments
necessarily change hands as a result of travel through interstate
commercial channels. See also Mussari, 95 F.3d at 790. "

-------------------------------------------------------------------------------------------------------------------------

At 09:32 AM 11/25/05 Friday, you wrote:

I'm totally confused. Please cite the case and the ruling itself
related to child support being a 'commercial debt" and/or 'consumer credit
laws' i cannot locate it.
From: AHS <sels56@yahoo.com
Reply-To: victimsoflaw@yahoogroups.com
To: victimsoflaw@yahoogroups.com
Subject: RE: [victimsoflaw] You can get out of Child Support
Date: Fri, 25 Nov 2005 01:27:11 -0500

Dorothy,
           I realize that Lewko doesn't say one can bankrupt child
support, but by implication, if it is a commercial debt, as it has
been declared, it would be subject to the Fair Debt Collection Practices
Act, and other consumer credit laws, one may try arguing that as it is
declared to be a common, commercial debt, then it could be
dischargeable.
Wouldn't you agree ?

Best Regards
Amir



At 09:35 AM 11/24/05 Thursday, you wrote:

Amir,

It would be a lot easier for you to understand if you actually read
the
opinions. The First Circuit explained the situation.

See:

<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=1st&navby=case&no=011231http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=1st&navby=case&no=011231<?xml:namespace
prefix = o ns = "urn:schemas-microsoft-com:office:office" /

<?xml:namespace prefix = st1 ns =
"urn:schemas-microsoft-com:office:smarttags" /U.S. v. LEWKO, 269
F.3d 64
(1st Cir. 2001)

UNITED STATES, Appellee, v. RICHARD C. LEWKO, Defendant, Appellant.
No. 01-1231.

United States Court of Appeals, First Circuit.

October 25, 2001.

D.


From: "Dr. Amir H. Sanjari" <sels56@yahoo.com
Reply-To:
<mailto:victimsoflaw@yahoogroups.comvictimsoflaw@yahoogroups.com
To: "FRC-yahoogroups.com" <FRC@yahoogroups.com, Victims Of Law
<victimsoflaw@yahoogroups.com, Indiana CRC
<IndianaCRC@yahoogroups.com
Subject: [victimsoflaw] Fwd: [IndianaCRC] Re: [FRC] You can get out
of
Child Support
Date: Wed, 23 Nov 2005 01:11:34 -0500

Sorry, 1st circuit incorporates MA, NH, ME & RI (not the other ones I mentioned in my
earlier posting, below).
 My apologies.
Everything else in the email (below) stands.

Amir


Hello,
        a lawyer recently said if  the court awards attorney fees to the
custodial parent, then those expenses would be viewed as child     (<== I DON'T BELIEVE THIS - NO LAWYER FEE IS CS though they would LOVE to have you believe this!!)
support and therefore NOT dischargeable in bankruptcy here in 1st Circuit  (<== legal fess are definitely dischargeable in bankruptcy and they know this well)
(Massachusetts, N.Y., ...) . He also said that neither would child
support be dischargeable in bankruptcy (yes CS is not dischargeable). He relied on the authority that the
US Congress devised the child support laws, therefore, they take
precendent.
But the Congress can legislate laws that court could strike down as
unconstitutional, etc.

Yet, 1st circuit court of appeals (Lewko 2001) says that child support is
like a normal commercial debt, which, by implication, and under fair
credit act, would be dischargeable in bankruptcy.

So, which one is right ? Has anyone got a straight answer / case laws?

Best Regards
Amir
At 08:20 PM 11/22/05 Tuesday, BunsCatsDogsKids@aol.com wrote:
Hey Everyone,

I'm just a bit amazed right now, so forgive my sarcasm. This is
happening
to a custodial Dad right now in MI. Mom's arrears are approx.
$3200.
She's avoided paying in every way possible by giving the court incorrect
information, but this takes the cake. This is an update sorta to
my last post.

OK, Did you know that you can file bankruptcy in MI, get an automatic
stay from collections from your creditor's and get out of enforcement
of your CS arrears? Then post bankruptcy if you don't pay your weekly
support obligation for months, you can get out of enforcement of those
arrears??
Even if there is an Income withholding given to your employer, you can
manipulate that employer not to take out CS from your wages on certain
weeks, up to as many as you want until someone from the court says
Please send a payment. Then the employer can send as little or as much as
they want? Did you know you could do this?? Welcome to reality!
Now I'm not recommending this route, because I think both parents
shouldsupport their children. Good Lord, where is the justice?
Maybe I'm misunderstanding the laws?

Amir H. Sanjari

Amir H. Sanjari (Dr)

Member: American Nuclear Society
              American Association of Physicists in Medicine