Avoiding Family Law Malpractice: Recognition and Prevention-part Ii
| Publication year | 1985 |
| Pages | 991 |
| Citation | Vol. 14 No. 6 Pg. 991 |
1985, June, Pg. 991. Avoiding Family Law Malpractice: Recognition and Prevention-Part II
Part I of this article was published in the May issue. It described a number of potential hazards that can result in legal malpractice claims against family law practitioners. This second part discusses additional areas of concern. It should be noted that the authors do not attempt to provide guidance as to how to practice family law or how to litigate, but rather to inform practitioners of possible malpractice pitfalls based on their experience with actual cases they have tried or heard about, many of which were not subject to appeal.
A typical malpractice case concerning life insurance benefits is when the wife's attorney fails to receive an assurance or guarantee that the husband's policy has been irrevocably transferred to the wife as part of a divorce settlement. Thus, when the husband later dies and leaves the life insurance benefits to a new wife, the first wife has no recourse against the husband's estate, only against her attorney.
To prevent this problem, the attorney should ensure that the client receives title to the policy. Ownership of an insurance policy should be transferred in those situations where the attorney is securing a property settlement or maintenance for the use of the life insurance policy.
The typical malpractice claim in this area arises when a wife's former husband has financial problems subsequent to the divorce, is unable to fund the property settlement or maintenance agreement, and the attorney who had represented the wife failed to obtain security to protect against the ex-husband's default. The wife then seeks recourse against the attorney to recover for the default.
An example of this is Rhine v. Haley.(fn1) In this case, the lawyer obtained an agreement from Rhine for him to pay to his former wife a sum of money for a certain number of years. The only asset that Rhine had was several hundred acres of land. However, the lawyer representing the wife failed to obtain a lien on the property and failed to secure collateral for the performance of the property settlement.
Subsequent to the divorce, Rhine had financial difficulties, sold the land, left the state and defaulted on his property agreement to his former wife. Consequently, the former wife sought recourse against her lawyer for her exhusband's default, and she prevailed in the malpractice action. The former wife was successful in establishing that the standard of care in Arkansas required the attorney to secure the lien on the husband's property. If the lawyer had obtained a lien on the property or secured collateral for the performance of the property settlement, this malpractice claim could have been avoided.
Malpractice claims concerning continuing jurisdiction generally result from the attorney's failure to make clear to a client that the terms of the divorce either provide or do not provide for the court's continuing jurisdiction. Whether the court has continuing jurisdiction will determine if the divorce case may be reopened.
A former husband who is back in court because his ex-wife seeks to amend the terms of the settlement agreement due to a change in her circumstances may have a malpractice action against the attorney who represented him in the initial divorce action. The former husband's claim would be based on the attorney's failure to provide against the court's continuing jurisdiction in the original settlement agreement. Likewise the former wife, the recipient of maintenance...
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