The day of reckoning has finally come and a decree has been entered granting you the primary custody of your child and giving that no-good ex-spouse visitation every other weekend just like you had asked. As a big sigh or relief and calms sets in, you turn to your attorney and smile and give him/her a big hug for helping out. The case is complete, the attorney sends you a copy of your decree including but not limited to a certified copy of your decree for your records and a "paid in full" account ledger. As you file the items away, everything seems wonderful in the world.
(This is where the sound of a car braking and squealing occurs)
Speed forward to nine months later, your ex-spouse hasn't shown up for visitation for this two weeks and then... he/she shows up with an official looking court decree that says that the divorce decree has been modified and he now has full custody of the children. As you look at the clock, it is past 5:00 pm on a Friday and as you look back outside you notice that your ex-spouse's attorneys' Porsche is parked in your driveway and a police cruiser is behind it. What happened?
Attorneys in divorce actions must withdraw their representation on the record when their representation is complete. If the divorce attorney does not provide a notice to the Court and opposing counsel that all further documents are to be served on you then it is still, officially, good service for your ex's attorney to serve ONLY your former divorce counsel for what is considered "supplementary" proceedings. Supplementary proceedings are related issues to the divorce decree which was entered.
Take for example the case of State ex rel. Groves v. First Judicial Dist. Court, 61 Nev. 269, 125 P.2d 723, 1942 Nev. LEXIS 14 (1942), the former husbands attorney was served with documents for modification of custody AND for attorneys fees to be paid by the ex-husband. Unfortunately, the ex-husband's attorney did not get in touch with the ex-husband before the hearing. (oops). The attorney showed up for the husband nonetheless and explained to the Court that the ex-husband should have been personally served not only served through the attorney. The Judge disagreed, changed the custody AND ordered the ex-husband (who had no idea about the hearing) to pay for his ex-wife's attorneys fees for showing up.
This is still the law in Nevada. Whether you have a divorce attorney that you think is phenomenal or whether you think they stink, remember, what you don't know may hurt you when it comes to things filed after your divorce by your former spouse unless you make certain to (1) file a notice of appearance in the case as an in proper person and note that you have terminated your attorney's representation and that all matters should be served on you personally and list your address and phone number; (2) keep the address and phone number up to date at the family court; (3) ask your divorce attorney to withdraw at the end of their representation and make sure that you have an order signed by the Court and filed that states that they are no longer your "agent" for receiving documents so you get them directly.
Monday, August 31, 2009
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In CA, we're blessed with Family Code Section 215, providing that after judgment modifications cannot be made uneless service is effected on the party, that service on the attorney is not sufficient. It's secifically directed to proceedings involving custody, visitation or support of a child. As we have a multi-state practice, I've seen how various states handle post-judgment matters, and I certainly wish the CA method was adopted in more states!
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