Occasionally I am asked to take over a case where the client has been represented by another attorney and, for whatever reason, has grown unsatisfied with their counsel. I was recently contacted by a woman who was in the last phase of a dissolution; she was extremely unhappy with the representation she was receiving.

The main asset at issue was the family home. The parties had been unable to agree on how to divide the home between them. The husband had filed a motion for “interim partial distribution” of the home, which had been granted. The judge ordered that the home be listed for sale, that the realtor would set the listing price, and that the parties would divide the net sale proceeds equally. There were several problems immediately apparent.

First, the trial court had failed to follow the procedure for interim partial distribution. Second, the order failed to account for the fact that my new client’s contribution to acquiring the property included putting in a significant amount of her separate, non-marital property. This warranted what is called an unequal distribution of the marital asset because it was acquired in part with non-marital assets. Third, and perhaps most immediate, was that there was a strict deadline for listing the property for sale which was fast approaching. Immediate action was required.

First, regarding the procedure for interim equitable distribution. The trial court is required to find “good cause for an interim partial distribution. This requires the existence of “extraordinary circumstances” that require an interim partial distribution. The trial court failed to do so. The trial court was required to consider whether an equal or unequal distribution was warranted. One of the major points to be considered is whether one spouse contributed their separate property to the acquisition of the property. Again, the court failed to do so.

Rather than conducting an evidentiary hearing to determine whether extraordinary circumstances existed, the court granted the motion in a five-minute hearing where no testimony was taken and the parties were not even in attendance. As a result, if the order had stood my client would have been deprived of approximately $60,000.00 she was entitled to because of her separate property contribution.

We immediately filed a motion for reconsideration in the trial court. Because we only have thirty days to file an appeal, we also filed a notice of appeal to the court of appeals. As a result, the Husband and his attorney agreed to accept $200,000.00 cash as full payment of his interest in the marital property (which was worth approximately $600,000.00).

This case demonstrates several points. First, judges are just lawyers wearing robes; they are not infallible. Part of practicing law involves being willing to tell a judge that he or she made a mistake that needs correcting. Second, if the trial judge will correct the error, you must be willing to take the case up on appeal if it has merit. Third, you need an attorney who is willing to do (1) and (2). Many attorneys limit their practice to trial work and decline to do appeals. Not this office! Filing the appeal in this case brought opposing counsel back to the negotiating table because it was rather obvious that they were going to lose the appeal.