I will answer this in the context of the way this issue is treated in my jurisdiction (Utah).
First, understand that to prevail on a claim in court, you must have sufficient evidence to meet the standard of proof to persuade the court that you deserve relief.
Second, there are differences between claims, evidence, and proof. Merely claiming “I was betrayed” or “I was defrauded” is not enough to prevail on a claim of malpractice or fraud.
Third, evidence is that which supports or refutes a claim. Proof is what confirms or verifies support or refutation of a claim. Many people believe that if they tell a plausible/believable story, they win. Not true. It is possible to win with a plausible/believable story, but simply telling a plausible/believable story does not guarantee victory, especially if the opposing party also tells a plausible/believable story that is more persuasive than yours.
So, do you have sufficient evidence to meet your burden of proof? If so, is the cost of preparing for and taking your case(s) to court equal to or greater than what you would gain by prevailing in court (and that requires you to determine whether the people you want to sue have money to pay the judgments you hope to obtain)?
To determine whether it is worth suing your divorce attorney for malpractice, you will need to gather the evidence you will need to show a malpractice attorney (you can sue your attorney for malpractice without hiring a malpractice attorney, but that would be an extremely difficult DIY project for most people). Consult a legal malpractice attorney to evaluate your specific case circumstances. If you have a good cause of action against your divorce attorney, a malpractice attorney can help you develop and pursue that claim.
Before you meet with a malpractice attorney, document evidence of your divorce attorney’s malpractice. Compile records of all communications with the divorce attorney. Gather the documents showing potential conflicts of interest or false representations. Identify specific instances of misrepresentation, incompetence, and breach of fiduciary duty. Document what financial harm you suffered. You will review these records and documents with the malpractice attorney to determine whether you have a case worth pursuing.
Documentation of Collusion
- emails and text messages between your divorce attorney and opposing counsel, the opposing party, and others evidence misconduct on your attorney’s part
Other Documentation of Misconduct
- evidence of your attorney failing to request key discovery documents
- proof of your attorney ignoring your questions and requests
- proof of your attorney ignoring and failing to act on red flags
- records showing your attorney failed to investigate obvious discrepancies
- documentation of your attorney advising against reasonable discovery requests
- evidence of private meetings between your attorney and opposing counsel without your knowledge
Setting aside a settlement agreement or a decree of divorce requires meeting specific criteria. Courts will not set aside a settlement agreement or decree of divorce simply because you claim your ex-spouse lied in settlement negotiations. There are limited grounds for setting aside a settlement agreement or decree that must be met to obtain relief, and in some situations, there are deadlines in which you must file for relief before you lose the opportunity to seek relief.
Consult a good (a good) attorney (one who is skilled, responsible, and responsive) to determine whether you can meet the criteria for having your settlement agreement or decree of divorce set aside (“set aside” is a term for overturning or rescinding a court’s order). Before you meet with the attorney, gather all documentation you can in support of your claims that your ex-spouse (and his/her attorney, if your ex-spouse was represented by an attorney) defrauded you.
Financial Documents
- hidden bank statements or accounts
- undisclosed investment portfolios
- falsified business valuations
- manipulated income statements
- backdated financial transfers
- concealed cryptocurrency holdings
- shell company documentation
Property Evidence
- secret real estate holdings
- undisclosed property transfers to family/friends before divorce
- hidden vehicle ownership
- deliberately undervalued art or collectibles
- concealed inheritance or trust funds
Electronic/Communication Evidence
- emails, text messages, and social media posts contradicting financial claims
- bank records showing suspicious transfers
- electronic fund transfers to hidden accounts
- communications between your ex-spouse and your former attorney
Business Related
- false profit/loss statements
- understated business revenues
- hidden business assets
- artificially inflated business expenses
- undisclosed business partnerships
- fake vendor contracts to hide income
Witness Testimony
- statements from business partners
- testimony from financial professionals
- accounts from family members aware of hidden assets
- employee statements about business practices
- banking professionals who observed suspicious activity
You will review with the attorney the evidence you compiled to help the attorney determine whether you have a cause of action, and whether you have a cause of action worth pursuing.
The key is establishing that these misrepresentations were material to the settlement terms and that you relied on them when agreeing to the settlement. Time is critical – evidence should be gathered quickly before it can be altered or destroyed. Motions or petitions need to be filed before the time in which you are allowed to file them expires.
Utah Family Law, LC | divorceutah.com | 801-466-9277