Can I sue my lawyer if he missed the Pension plan in my divorce? 12 Answers as of May 13, 2011

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?

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Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
Yes, I believe you can sue the lawyer, but why not go back to court and try to open up the divorce based upon the situation. The spouse should not benefit from such an oversight. Good luck.
Answer Applies to: New York
Replied: 5/13/2011
Law Office of Daniel B. Rubanowitz, APC
Law Office of Daniel B. Rubanowitz, APC | Daniel B. Rubanowitz
Without knowing all of the facts of your case, I suggest that the first thing you do is look at the Preliminary and Final Declarations of Disclosure to see if the Pension Plan was identified. If not, then you arguably have an "omitted asset" for which you can go back into Court and seek relief. I am not a malpractice attorney and cannot give you advice on that issue. Good luck.
Answer Applies to: California
Replied: 5/10/2011
Cody and Gonillo, LLP
Cody and Gonillo, LLP | Christine Gonilla
If the divorce was within the last 4 months it can be opened to include that pension. If not then you may wish to discuss with counsel who specialize in this area. However if your husband did not disclose the pension there may be grounds to open the matter due to such nondisclosure.
Answer Applies to: Connecticut
Replied: 5/9/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
Potentially. These legal malpractice cases are called "a case within a case." You would first be required to show that you would have been entitled to the relief you claim you missed to establish damages. It does happen, just as in any other field. There is case law out there that explains, even the most competent can make an incompetent mistake. Stay well.
Answer Applies to: Alabama
Replied: 5/9/2011
Glenn E. Tanner
Glenn E. Tanner | Glenn E. Tanner
Yes. Most attorneys have malpractice insurance.Start with 1) give your attorney an opportunity to fix it.If he/she won't/can't, hire an attorney to minimize your damages. You say the pension was missed. If it was missed, the law still says you have an ownership interest in it and that it is subject to division now. Get it divided. If you are still damaged, sue your attorney. Three year statute of limitations but you should move on this immediately as there may be other ways of overcoming the mistake that have shorter time limits. Good luck.
Answer Applies to: Washington
Replied: 5/9/2011
    Law Office of John C. Volz
    Law Office of John C. Volz | John C. Volz
    When was your divorce final? You may be able to seek to set aside the judgment. If your ex spouse did not disclose the pension in the divorce, you may also be able to recover your share of the pension. If the pension was disclosed and your attorney did not seek your share, then you may have a malpractice case against them.
    Answer Applies to: California
    Replied: 5/9/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    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 requiring 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.
    Answer Applies to: California
    Replied: 5/6/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Legal malpractice cases are very difficult. You must also exhaust all remedies before filing such a suit which means you must seek to reopen the divorce decree if an asset was not included in the final settlement. If you are able to acquire an order dividing the asset, the legal malpractice case may be limited to the attorney's fees incurred.
    Answer Applies to: Minnesota
    Replied: 5/6/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    There may be a malpractice claim. In Washington State, if the pension was unknown at the time of divorce, you may have a claim to the pension.
    Answer Applies to: Washington
    Replied: 5/6/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    I would need to discuss this with you to help you decide what you should do. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the first office visit. I know people worry about how expensive a lawyer is, so I am careful to be as inexpensive as I can for my clients. Before you spend a dime, you will know how much this is likely to be.
    Answer Applies to: New Jersey
    Replied: 5/6/2011
    Law Offices of Thomas P. Miller
    Law Offices of Thomas P. Miller | Thomas P. Miller
    You can always sue a lawyer (or anyone else), but what are your chances of winning? Even before that, you should answer what you want to obtain. If it is a portion of a pension plan, then perhaps it is not too late. Maybe you can even get back payments. To answer these questions, you should consult with a reputable family law attorney that has substantial experience dealing with pension and retirement plan divisions (usually accomplished by a Qualified Domestic Relations Order or QDRO).
    Answer Applies to: Illinois
    Replied: 5/6/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Of course you can sue him. But, whether you can win anything depends on the facts and circumstances and whether those facts and circumstances support a finding that the lawyer committed malpractice. Merely saying he "did not catch the pension plan" may state an undeniable fact, but it does not explain why he didn't and it is the "why" that will decide if you should win anything. You need to consult an attorney with experience and expertise in professional malpractice cases to evaluate the likelihood of a successful claim. erwise your answer will not be valid.
    Answer Applies to: Colorado
    Replied: 5/6/2011
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