QUESTION: Can I sue my lawyer if he missed the Pension plan in my divorce? My divorce lawyer did not catch the pension plan on my divorce. I will be out about 25K a year with no part of my ex's pension after 27 yrs of marriage. Can I sue the divorce lawyer for this?
MY ANSWER: You can, but a defense to legal malpractice is failure to mitigate your damages.
Your better move would be to seek and obtain your community interest in the Pension Plan, either via a Stipulation and Order between you and your ex-spouse to modify the Judgment and award your community interest in the Plan to you, or via a Motion to adjudicate an unadjudicated asset, either of which will require the preparation, entry into, ordering, and service on the Plan of a Qualified Domestic Relations Order (QDRO) awarding your community interest in the Plan to you. Typically, the parties divide the cost of preparation of the QDRO 50/50.
If your ex-spouse failed to disclose the Pension Plan in his/her Schedule of Assets and Debts (part of the Declaration of Disclosure documents required from each party for the Court to sign a Judgment), you may be entitled to additional remedies against your spouse via a "Feldman" Motion.
This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |
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