lawyer erred in CS provisions...can I take it back to court?

[startingfromscratch]

I was divorced last year, but for unrelated reasons, had to review all numbers in my divorce papers this past fall, and discovered that the lawyer omitted some items that I didn't catch when I signed the divorce papers.  My ex-husband's lawyer prepared the papers, after we all met and agreed on the provisions (I didn't use a lawyer, it was amicable and his lawyer seemed sincere).  However, in the CS calculations, he omitted any mention of the health insurance premiums that I pay, so my ex does not pay any percentage of them now.  Yet in another section, it states that the ex is partially responsible for his portion of the premiums. 

My question revolves around the Alabama provision that CS provisions usually aren't reviewed unless there is at least a 10% difference in the end.  This would be less than 10%.  Does it make a difference that the papers are flawed in the first place, or do I have to wait until the 10% to get it reviewed, even though the papers are are incorrect?

[TC]

The problem is that you signed the originals....which is the same as saying you accept/agree with everything therein...including the mistakes.

I'm not from Bama but I doubt the Court would entertain an action to modify if that is the only problem.

See what others say...but I don't think they will differ much.

TC

[livealittle]

you could try a motion to amend a clerical error

but really, Lee will be the best to answer this question

[TC]

you could try a motion to amend a clerical error

but really, Lee will be the best to answer this question

After this much time, I serioiusly doubt if the Court would entertain this as a "clerical" error.

TC

[m_t]

I have to agree that the court is unlikely to entertain a modification or to consider this a clerical error at this point in time. You'd usually have 30/60/90 days... A year? Unlikely. Sorry.

[belle]

Here in Alabama, either side can request a review of CS every 3(use to be 3, might be 4 now) years or at anytime that there has been at least a 10% change in circumstance, ie., raise, job loss, etc.

Like startingfromscratch, my husband didn't retain his own attorney and allowed his ex's attorney to draw up the papers.  The divorce decree doesn't state a specific amount of CS he was to pay but states that CS is to be paid according to state guidelines.  Her attorney gave him the amount.  He never saw the CS form and how it was calculated.  Let me state....IGNORANCE IS NO EXCUSE!  Just sayin'.... 

Two years later, we obtained a copy of the original form filed with the courts.  He has been paying 5.2 times state guidelines and wasn't given credit for the horrendous insurance premiums that he pays.

He recently obtained an attorney to modify custody and his lawyer was shocked over the amount he is paying.  So along with the custody modification, he is also modifying the CS amount (based on the insurance premium thing) to include the insurance premiums and refigured according to state guidelines.

Court date is the 12th so we will see what happens.

I tend to agree with MT.  If you didn't catch it within an alloted amount of time, I would think you'd be SOL until the 3-4 year thing.  But like Liv said....Uncle Lee could better answer this for you.

[livealittle]

I said "you could try".

when I read the original post, I saw "last year," this is Jan of 2010, so I thought last year as in 2009. She didn't say the divorce was finalized in Jan 2009, she just said "last year". She did say she didn't review until fall 2009, but that could mean anywhere from Sep - Nov and the divorce could have been finalized anywhere previous to that, like it was final in Aug, she reviewed in Oct.

so, how TC and m_t got that the divorce had been final over a year ago, I'm not sure.

[TC]

Typically Courts allow 30 - 45 days to contest an order.  I'm fairly certain, since she found cause to review her decree last fall that it was issued by the court well prior to that and in any event the typical 30-45 days allowed for contest is well past.

Point is, OP signed/approved the Decree as written and the Court issued an order based on that consent.  Chances of getting the court to do anything at this particular point in time by stating there was an error are very very low. 

TC

[CollegeDad]

In Alabama you have 42 days from the day that the Judge's order enters the court house records as logged by the circuit court records division.  They put a stamp on the order with the official date.  Then the clock starts ticking.  Bare in mind that some judges sign things and have them sitting on their desks for a period of time before it gets logged into court house records.  The clock doesn't start ticking until it is logged into court house records. 

If this was truly an amicable divorce (and it was according to the post) then getting this kind of error changed should be no problem at all.  SFM should contact her ex-husband who apparently wants to be fair and point out the mistake without any fear that he is going to balk on the issue and try to hold her to an erroneous divorce decree.  She should propose the necessary changes that need to be made and with her ex-husband's concurrence have him pass these along to his attorney, since this is who filed it in the first place, and have him work the correction with the circuit court.  Worst case, they have to incur a filing fee for not handling this within the 42 day time frame.  If they do they can just split the cost on that.  There is nothing that prevents anyone from filing any time that they want that I'm aware of.  The best case, the judge just handles this as a change of record and requires no filing fee or anything.  When people agree, court is not a concern. 

[InDenial]

If the divorce is THAT amicable, then do they even need to get the court involved?  If the Ex agrees that he should pay $x more a month, can't he just start doing it?  He saves himself the expense of paying the lawyer plus the filing fee, and still does the right thing.

I suspect that if he won't pay more without a court order, then neither will he just agree to the court filing.

[startingfromscratch]

Thanks to all of you for your answers.  It gave me a lot to think about. 

The divorce was actually finalized Dec 08, so any time frame allowing for revision has passed.  But I sent off for the papers filed with the court showing the CS calculations (I don't know why these aren't automatically included with divorce papers).  When I looked at it, I found a couple of errors the lawyer made.  I sent all the info to my ex and opened up a discussion with him about it.  It was a little tense, but long story short--he agreed that the error was not what we agreed upon at the time of filing, and I agreed that it was not something he intentionally did, as he just following what the lawyer told both of us.  So I chose not to ask for backpay on what I should have been getting, and he has chosen to pay what the order should have been from here on out. 

We did the calculations separately, according to state guidelines and tables, and came up with the same number, so we are both comfortable with the outcome.

It was also a chance for us both to reaffirm to each other that we both want to do what is right for our child.  We have not gotten along at all once the divorce process was over, so it is good to know that despite our problems with each other, we can still find a way to work with each other, and compromise if possible, if it concerns what is best for the child that we share.

[livealittle]

that is good that you two worked it out. You may want to suggest a "joint petition to modify" which will require filing fees to make the correct cs calculations a part of the actual order. These normally go through without any hassle as both parties are "jointly modifying" the decree.

[m_t]

The divorce was actually finalized Dec 08

So I guess TC and I weren't totally off the wall with our assumption, liv.

[InDenial]

Thanks to all of you for your answers.  It gave me a lot to think about. 

The divorce was actually finalized Dec 08, so any time frame allowing for revision has passed.  But I sent off for the papers filed with the court showing the CS calculations (I don't know why these aren't automatically included with divorce papers).  When I looked at it, I found a couple of errors the lawyer made.  I sent all the info to my ex and opened up a discussion with him about it.  It was a little tense, but long story short--he agreed that the error was not what we agreed upon at the time of filing, and I agreed that it was not something he intentionally did, as he just following what the lawyer told both of us.  So I chose not to ask for backpay on what I should have been getting, and he has chosen to pay what the order should have been from here on out. 

We did the calculations separately, according to state guidelines and tables, and came up with the same number, so we are both comfortable with the outcome.

It was also a chance for us both to reaffirm to each other that we both want to do what is right for our child.  We have not gotten along at all once the divorce process was over, so it is good to know that despite our problems with each other, we can still find a way to work with each other, and compromise if possible, if it concerns what is best for the child that we share.

It's really nice to hear an ending like this!  Good for both of you.