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my weird day in court

On Monday I was in court because of my divorce and an extremely harsh postnuptial document I signed shortly after my marriage. The case has to do with fraud, basically -- what was disclosed, what wasn't disclosed, what was misrepresented, and whether or not this misrepresentation is protected by mediation confidentiality.*

The judge did something so unusual that everyone was blindsided.

He basically instructed my ex-husband's side to motion for a nonsuit (so unusual in family court they hadn't thought of it themselves), then granted it and read a massive statement that he had prepared beforehand. In other words, there was no actual trial, and the judge came to court with his ruling already decided.

My ex-husband won the day due to a technicality.

The judge then made very clear that he would certify the case for immediate appeal and send it up to appeals court, which has a power that superior court (his court) does not: the power to change the law. He also admitted that he was "not certain" about some of his legal conclusions resulting in his decision.

(It was later explained to me that if there had been a factual trial, and my ex-husband had won because of those same procedural issues, then I would have had little chance for an appeal.

Instead, as my lawyer told me, "This is just beginning."

"You mean after two years," I said, "it's just beginning."

He said, "The law moves slowly.")


The immediate appeal means that my ex-husband's assets remain frozen (he has to get my permission to sell stock or move things around).

The judge also told my ex in no uncertain terms that he would have to continue paying my legal fees. My ex is not happy about this. The law states that both parties are entitled to adequate defense, and if one party can't pay (that would be me) -- and the other party can (that would be him) -- then the latter party is responsible for the fees. The case has already cost my ex-husband several million dollars (and my lawyer and his lawyer have been in court over this issue several times).

"This case is far from over," the judge declared. "Things might not have gone her way today, but the outcome of this case is still unpredictable....and there are" as he stared pointedly at my ex-husband "hundreds of millions of dollars at stake ."

(This part, by the way, happened after lunch. I suspect it was during lunch when "a source close to Mr Musk" contacted Venturebeat and told them that he had already won the case and an appeal was "unlikely".)

The judge also commended -- repeatedly -- the "excellent lawyering" that had taken place on both sides in the two years leading up to this trial, "the best that I have seen".

The irony of this whole thing is that I don't want hundreds of millions of dollars . I think my ex-husband is brilliant and works like a demon and deserves his success and his wealth. But I also think -- after eight years of marriage and six kids (five surviving) -- that I am entitled to a fair settlement, which does include a small piece of "community" property (other than the house, which is mine, and it is a lovely house, and I am so stupidly privileged that it's ridiculous, and this whole thing is surreal). My ex-husband and I remain in serious disagreement as to what "fair" is, and we also remain in serious disagreement about certain issues surrounding the postnup.

As always, I hope for resolution in near future.


* Mediation confidentiality also swallows up something called "undue influence". Because of the relationship between husband and wife -- and the highest standard of fiduciary duty that they owe each other -- a postnuptial agreement is regarded differently than a prenuptial agreement. If the agreement is extremely one-sided -- if one partner gives up as much as I did without getting something equal or nearly equal in return -- then the law decides that "undue influence" took place (ie: the less powerful partner was pressured or coerced) and renders the agreement invalid. Because of mediation confidentiality, however, "undue influence" can't be applied to my case.
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Comments

( 41 comments — Leave a comment )
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ayoub
May. 6th, 2010 06:54 pm (UTC)
I hope this ruling opens up his perspective on fairness...

If not the ruling, then at least the idea that this will take longer than he thought!
moschus
May. 6th, 2010 07:47 pm (UTC)
I think it's going to take longer than we all thought.

I was told months ago that because of the novelties and complexities of our case, it's a legal profession's dream -- the kind of case "that makes careers and makes new law." I'm just starting to realize what that means. There's a chance it could go all the way up to the Supreme Court (apparently they have taken up "every" case concerning mediation confidentiality in the last years) and I have to admit that the part of me that wanted to go to law school? is weirdly excited by that.
(no subject) - ayoub - May. 7th, 2010 10:53 am (UTC) - Expand
readingthedark
May. 6th, 2010 07:10 pm (UTC)
Zowie. Best wishes in what obviously remains on the yikky side of complexity.
moschus
May. 6th, 2010 07:49 pm (UTC)
Thanks. It's not a journey that I ever wanted to be on, but it's becoming a very interesting one, and it's a pleasure to watch great lawyers at work.

Plus one day I'll get a book out of this.
(no subject) - rhienelleth - May. 7th, 2010 12:45 am (UTC) - Expand
(no subject) - readingthedark - May. 11th, 2010 10:59 pm (UTC) - Expand
bmused
May. 6th, 2010 07:12 pm (UTC)
Wow, that's a mixed bag. Quite a blindside, but from a purely legal perspective, it sounds like the judge may have done you a favor -- perhaps out of anticipation that you wouldlikely lose unless he were instructed by the Court of Appeals to apply the law differently (or to apply different law) to your facts than he would currently be required to do.

Also legally, I'm unclear as to why mediation confidentiality would cancel out undue influence: the postnup was signed as a result of a mediation? Or there's evidence relating to the postnup that came out during your divorce-related mediation, which evidence can't be admitted due to the confidentiality of that mediation?

In other news, why in the name of all that is good and holy is E not just settling this already? *sigh*
moschus
May. 6th, 2010 07:50 pm (UTC)
Yes, well, there is enough murkiness around some of the mediation issues to keep this case in the court system for a while.

Elon did make a settlement offer, but it was too low, and instead of negotiating he said he would just keep lowering the offer every five days. Which he proceeded to do. And we ended up in court.

Edited at 2010-05-06 07:58 pm (UTC)
(no subject) - bmused - May. 6th, 2010 09:18 pm (UTC) - Expand
nihilistic_kid
May. 6th, 2010 07:19 pm (UTC)
So it'll end when the lawyer fees approach the settlement you ask for"?
moschus
May. 6th, 2010 07:51 pm (UTC)
It will end someday, but frankly? right now I can't imagine it.
blackaire
May. 6th, 2010 08:07 pm (UTC)
Best wishes to your side and the hope that it'll be resolved, if not quickly, then at least before the inevitable zombie apocalypse.
xjenavivex
May. 6th, 2010 08:21 pm (UTC)
Oh honey. I know you said this is interesting and tickles your law fance and also that you have good lawyers, but I also know that closure is a good thing too.
ext_233830
May. 6th, 2010 08:52 pm (UTC)
Hooray for the precedent setters!
I'm usually a big fan of mediation in family law situations because it gives the parties more control over the outcome at a more predictable (and usually lower) cost.

However, since your ex is negotiating like a bully and is getting stuck with the legal fees for both of you, I have to applaud your decision. It takes guts to stay with the legal process long enough to set precedents that matter.

I look forward to reading the book in any event!
(Anonymous)
May. 6th, 2010 09:05 pm (UTC)
catching up this whole debacle and am always so disheartened when love is lost and it comes to this, especially with children in mix. I had only followed your other blog recently and thought you were this wonderfully insightful sassy minx. hoping this journey results in the best possible outcome for your family - exhusband included and helps clear murky waters for future cases.

@sassymikita
moschus
May. 6th, 2010 09:07 pm (UTC)
thanks. i still have love for my ex and I really do hate this entire situation.
(no subject) - moschus - May. 6th, 2010 09:55 pm (UTC) - Expand
(no subject) - coppervale - May. 6th, 2010 11:27 pm (UTC) - Expand
(no subject) - moschus - May. 7th, 2010 12:54 am (UTC) - Expand
(Anonymous)
May. 7th, 2010 02:15 am (UTC)
sounds like your ex is scared of losing control of you. someone as wealthy as him, that has a woman that has mothered his FIVE children, that WON'T settle.... IS MAJORLY MESSED IN THE HEAD!!! Seriously though. Anyone who thinks this man is out to "save the world" needs a major reality check. This man CLEARLY lacks empathy and is a fraud. WTF is his new girl thinking???? Does she not read the news or is she THAT naive?
(Anonymous)
May. 7th, 2010 03:08 am (UTC)
divorce and fairness
There obviously was and is a power imbalance.
Furthermore, as you will share the kids, you will be entitled to a lot more because, he will have to pay for his children to live in a home and environment equal to what he offers.
He might be smart and work hard, he is also stupid to drag this case out for so long. he is wasting money better used to keep you and the children in the style you got used to. (aes)
no_bull_steve
May. 7th, 2010 03:43 am (UTC)
you never know...
Keep your undermind open. There may be a novel lurking somewhere in this ugly mess. Keep on keepin' on!
tezmillertm
May. 7th, 2010 04:18 am (UTC)
I'd never heard of a post-nup document before now. I have much to learn about the law...
kasmoie
May. 7th, 2010 10:26 am (UTC)
Obviously it's none of our business, but curiosity compels me: what was in the post-nuptual agreement?
moschus
May. 7th, 2010 01:19 pm (UTC)
I'm not sure I can go into that -- although it's in a public file with the other court documents -- but it's very very harsh.

He told me that if I challenged it -- and he told me again when I wouldn't accept his offer -- that he would never settle.
(no subject) - (Anonymous) - May. 7th, 2010 01:46 pm (UTC) - Expand
(no subject) - moschus - May. 7th, 2010 04:59 pm (UTC) - Expand
(no subject) - moschus - May. 7th, 2010 05:45 pm (UTC) - Expand
angel66morse
May. 8th, 2010 07:59 am (UTC)
Been There...
Best of luck.

Been there.

Made it.

Barely.
(Anonymous)
May. 14th, 2010 04:10 am (UTC)
This is sad to hear about....
My dad did this type of thing with his two ex-wives. Everything a battle. Everything. Someone clearly wants a "fight". I am glad my mom just said forget it. Money can ruin people. It usually ruins everyone. The only people happy about any of this will be your respective lawyers. Glad you are all trying to get along though. It will still be messy if all adults don't behave. I saw that first-hand. Your husband could have already paid you some of what you want by agreement considering the lawyer fees. Men, great in business - terrible in divorce court. From a lawyer's perspective, it sounds like the Judge helped you....no real record - just a nice long issue for appeal. Good luck with this. I hope your children are ok. I am the oldest and my other brothers and sisters (8 of them) remain a wreck to this day because of the divorces. Not the divorces themselves - how they were handled by divorcing parents. We were all happy about his divorces but not how he/she behaved or the process. Your husband should just settle. But, the lawyers will love the business. Lord.
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( 41 comments — Leave a comment )

About Me

I'm the author of three published novels: the dark fantasies BLOODANGEL and LORD OF BONES (Roc/Penguin) and the YA supernatural thriller UNINVITED (MTV/Simon&Schuster). I also have stories in the MAMMOTH BOOK OF VAMPIRE ROMANCE 2 and ZOMBIES: ENCOUNTERS WITH THE HUNGRY DEAD. I'm working on a psychological thriller called THE DECADENTS. I am divorced, with sons, and live in Bel Air.

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