Failure to File Motion

When I handed my attorney the Motion for Protective Order I had drafted, I expected him to ask me questions.  I was prepared to explain my position in requesting this motion be filed, but he did not ask me any questions.  He made only a single statement to the effect that he was glad I was taking that route rather than trying to hide the fact that I had bought the old farmhouse I was trying to protect.  I took that to mean he was going to take my draft, clean it up and file  the motion with the Court.  Why I thought that, I have no idea...just seemed that was his indication when he voiced his approval.  That was April 20, 2010.

The protective order requested the address of the old farmhouse I had purchased and in which I have been living, post separation, be provided only to the Court as needed, but protected from disclosure to the Defendant and his counsel, for safety reasons.  After all, Defendant has repeatedly threatened to burn down the "marital" residence, and kill me.  When he was served with my complaint for divorce, his first order of business was to call me on the phone and threaten me....  So, I decided it best to move quickly to secure another place to live, leaving the "marital" home vacant.  The protective order was requested in time to have it in place when the Pendente Lite hearing was held on April 23, 2010.

As it turned out, my attorney did not file my motion, as requested.  Instead, he focused on ensuring I submitted my proffers and budget sheet so he could have them filed and available to the Court during the P/L hearing.  That was, in my opinion, a complete waste of time.  Apparently no surprise to my attorney, the judge refused to consider fault and refused to look at the budget when making his Pendente Lite ruling...he opted to simply go by the "guidelines." 

Back in my attorney's office two weeks later, I asked again about my motion for protective order.  I was being pressured to complete discovery questions demanding I disclose all purchases made since separation.  I had willingly supplied these records, carefully covering the address so it could not be seen in the photocopies.  I had read the Virginia Code and knew if I wanted to withhold that address, I MUST have requested, by motion, the protection of that information.  Again I asked my attorney to get that motion filed.

On May 27, with the motion STILL not filed, having received yet another phone threat, this time from Defendant's "girlfriend," I met again with my attorney.  I carried with me, again, the proposed motion.  This time he asked the questions I'd imagined he'd ask when I originally submitted the motion request to him.  "Why do you want to file this motion?"  I explained my need to protect the house and my location from the Defendant and his attorney, and as I read the Code, I must file this motion to be able to withhold that information.  He explained again about, "how things are done" in this court.  The more "procedurally correct" method was to simply answer the discovery requirement, but not give the address.  When Defendant's counsel squawked about it, and the judge asked why I was withholding it, we could then present our case, and need for the protective order. 

Trying to trust my attorney, willing to accept he was the expert and I am just some goofball with access to the Internet and full of energy to make certain I am not completely ripped off by this system, I promised to let him work the case the way he knew to be best.

As Murphy's Law would have predicted, my attorney's failure to act as requested has now come back to bite me.  On Saturday, June 5,  I was alerted by my neighbor there was a man with a red car looking for me....this, it turns out, was the processor, here to serve me papers.  He showed up here, at my "safe" location.  And I don't have any way, now, to protect my address from disclosure... it has already been compromised.  And my life is, once again, in jeopardy, because of my attorney's failure to file.

My attorney told me, when last we met, that he was concerned that we are operating in an adversarial manner, which would make his representation of me more difficult.  Wanting to ensure he was given every chance to win my case, I resolved myself to the notion I would let him show his talents, without interference.  

And so, tonight, as I started to send him an email asking for explanation on his failure to file, and in which I shared the fact that the processor served me HERE and that the motion, or request to protect the address is now made moot by the fact that they already have it and are using it, I decided there was really no point.  A bell cannot be "unrung" and he was never going to file my motion anyway, so I could point to it as my defense for not providing the address during discovery.  I will not send the letter.   I will await my attorney's next move.  Proactive it will not be, I am afraid....

Pendente Lite Spousal Support

Three short weeks after "the Honorable" declined to remove my former divorce attorney from representing my current husband, I was in court again, this time for the so-called "Pendente Lite" hearing. Now, I understand the purpose behind this hearing, and I understand that it is well within the 9th Circuit Court of Virginia's rules to allow either party in the divorce to request such a hearing. For those not already jaded by this process, I will assume you are not knowledgeable thereof and I will "educate" you....

The Pendente Lite hearing is to establish the interim financial obligations of each party in the divorce, so that, theoretically, the debtors can be paid timely and nobody is left living out in the street while the process trudges through to the final determination of equitable distribution and decree of divorce... as such, this is deemed a "temporary" order.

Now, according to those in this "court" there is no room for deviating from the 9th Circuit Court's guidelines....

Each party completes a "family debt sheet" -- wherein they indicate the amount of the mortgage or rent they pay, whether there are minor children they support and the amount of their car payments, and their gross monthly salary or income. From there the numbers are subjected to the following calculations:

Wife income + Husband income = Family income
a. Higher earning spouse's salary X 30% (when no children in the picture)
b. Lower earning spouse's salary X 50% (when no children in the picture)
c. Subtract the number in b. from the number in a. and that is the amount of income the higher earning spouse owes the lower earning spouse.

Now, we come to the debt reduction numbers:
Wife mortgage/rent/car payment + Husband mortgage/rent/car payment = Family debt.
d. Family debt X 70% = higher earning spouse's obligation
e. Family debt X 30% = lower earning spouse's obligation

Now, for the final numbers
Spousal support is determined by subtracting the amount of the family debt already being paid by the lower earning spouse from the amount of debt he/she is obligated to pay of the Family debt. The resulting number is then subtracted from the income owed to the lower earning spouse from the higher earning spouse.

Clear as mud? OK, example time.

Wife earns $1000 per month
Husband earns $6000 per month
Family Income = $7000 per month

a. 30% of $6000 = $1800
b. 50% 0f $1000 = $500
c. $1800 - $500 = $1300 income which higher earning spouse owes lower earning spouse.

Wife rents for $350 per month and has a $150 car payment
Husband pays mortgage of $1000 per month and has a $200 car payment
Family debt = $1700

d. 70% of $1700 = $1190 (Husband's share)
e. 30% of $1700 = $510 (Wife's share)

Wife is required to pay $510 of the Family debt and she is already paying $500 -- therefore, her spousal support of $1300 from c. above is reduced by $10 (the difference between her debt obligation and what she is actually paying).


Wife, as the lower earning spouse is entitled to $1300 - $10 - $1290 in monthly spousal support from the husband.

Now, in my case, the lower earning spouse is the deadbeat who refused to work, though he signed a contract to do so as condition of being allowed to return to the home after his conviction for spousal abuse on me. Instead of working, he chose to continue in his preferred activities of drug and alcohol abuse, and spousal abuse, of course, always blaming it on his addictions.... years of counseling, addiction in-patient treatment, education to help him return to the workforce, and he refused, saying he would not work unless he could earn more than I did....

Here we are now, I, not willing to live any longer with a man who wants only to kill me, and having lived separately and apart for 2 years, and he living with his mother in another state and STILL refusing to work -- (He can't leave his "comfort zone") and the judge is looking at the Pendente Lite request for spousal support.

My attorney argues this man does not deserve the support at all... "his honor" says, "I'm not going to hear fault... this is only temporary anyway..." My attorney asks that my budget worksheet, the one that shows that I am carrying the burden of ALL the family debt incurred throughout the marriage, and which demonstrates I am actually already operating at a monthly deficit, be considered when determining any amount of spousal support.... and old-white-haired says, 'I'm not going to consider that -- he hasn't worked throughout the marriage and I'm not going to impute income to him" and with that, the guidelines of the 9th Circuit Court were put into motion...

The result was obvious. I was ordered to pay the guy who cannot leave his comfort zone, $2300 per month....AND, I was ordered to continue to pay his health insurance, AND I was ordered to continue to pay all mortgages, taxes etc. for the "marital home" which I have possession of, AND I was ordered not to squander or further encumber ANY marital assets....

And from there, it should also be obvious, to even the casual reader, that this order is non-performable... I am already operating at a monthly deficit, I already work as many hours in a week as a human could expect another to work, AND if I DID earn more, I'd OWE more to him, AND, since the court has not yet ruled on the fault based complaint for divorce, not identified what is or isn't marital property, I can not secure any loans against assets, lest they be determined marital.... I am left, therefore, with only one option -- to be found in contempt, because I cannot perform on one part of the order without violating another.....

And that, kind reader, is the jaded view of the pendente lite process in the wonderful Commonwealth of Virginia, as interpreted and applied by the Gloucester Circuit Court.

That order was ruled (though yet unsigned) on 4-23-10....retroactive to 2-15-10...

Yesterday, 5-7-10, I received a notice the "SHOW CAUSE" as to why I have failed to pay the monthly support required by this order.....

Does ANYONE else think this is directly related to the BAR complaint I filed against my former attorney for failing to return to me my files when requested to do so in writing?

Well, I have another story about my Fun in Gloucester Virginia Court yesterday, but that will have to wait.

Suffice to say, I am shaking my head and simply counting the days before they find me in contempt, and throw me in jail, which will prevent me from earning the monies they would have me pay to the evil sloth....but we aren't allowed to consider fault at pendente lite..........