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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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( 41 comments — Leave a comment )
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!
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.
May. 7th, 2010 10:53 am (UTC)
Yup, it's definitely exciting from a legal point of view, but at some point he'll have to look at the cost of pursuing it versus giving you what you're asking for (which is highly reasonable, in my opinion)...
May. 6th, 2010 07:10 pm (UTC)
Zowie. Best wishes in what obviously remains on the yikky side of complexity.
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.
May. 7th, 2010 12:45 am (UTC)
Plus one day I'll get a book out of this.

This made me laugh, because it is likely oh, so true. I've found part of the joy of writing is seeing opportunity for story where others only see...well, life happens.

And though you don't know me, I just want to say how sorry I am that you have to go through this. Divorce absolutely sucks when your personal business isn't being printed in newszines and blogs. I've been there as two of my best friends have gone through it, and I can't imagine the sheer emotional exhaustion of still dealing with these details two years later, and then finding it's 'only the beginning'.

May. 11th, 2010 10:59 pm (UTC)
All grist for the mill and such, it's true...

If you're serious about telling this kind of story in fiction, I'd recommend going extremely dark,

and calling it "Autopsies on the Living."
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*
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)
May. 6th, 2010 09:18 pm (UTC)
Ugh, I'm sorry. =c\ Divorce is such a cruddy thing to have to be dealing with for such a long time...
May. 6th, 2010 07:19 pm (UTC)
So it'll end when the lawyer fees approach the settlement you ask for"?
May. 6th, 2010 07:51 pm (UTC)
It will end someday, but frankly? right now I can't imagine it.
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.
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.
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!
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.

May. 6th, 2010 09:07 pm (UTC)
thanks. i still have love for my ex and I really do hate this entire situation.
May. 6th, 2010 09:55 pm (UTC)
and..."wonderfully insightful sassy minx". I think I want that on my tombstone!
May. 6th, 2010 11:27 pm (UTC)
I'll make you a t-shirt. ;)
May. 7th, 2010 12:54 am (UTC)
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?
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)
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!
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...
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?
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.
May. 7th, 2010 01:46 pm (UTC)
Without needing to know any details and without any understanding of California law, if you had signed the same agreement prenuptually rather than post, would you have been in a legally better or worse state than now?

And hang in there and know my thoughts are with you.

May. 7th, 2010 04:59 pm (UTC)
When someone hustles you into mediation, and you yourself are a loving trusting naif without any business or financial experience who has never heard the word 'mediation' before, they can basically rape and murder you (figuratively speaking, of course) and get away with it, because it's all confidential.

Which is the problem with how mediation often gets used -- it's meant to protect, but the powerful will often use it as a weapon against the powerless, because it takes away the one thing that will protect the powerless or that has the potential to *ever* hold the powerful party accountable for their actions -- which is the law itself.

May. 7th, 2010 05:45 pm (UTC)
What Elon's side did -- because they can't deny what's on (and not on) the postnuptial document itself -- is that they first argued that the mediation period (which was initially in question) extended all the way to the signing of the document -- then they argued that the evidence Elon needs to defend himself against the charge of "fraud" is contained within that same mediation period that they themselves established in the first place. (What my lawyer referred to as "phantom evidence"). So I have "no right" to challenge the agreement.

But marital fiduciary duty has never been pitted against mediation confidentiality before -- it's kind of like alien vs predator. As it stands now, a spouse can hook the other spouse into mediation, coerce and deceive her out of all her rights as a married person, and get away with it -- or can he (or she)? That, as they say, is the million-dollar question, and might be -- might be -- why a judge would want to see that question go up to the appellate court.

If the document said PRENUPTIAL instead of POSTNUPTIAL, it would be a different situation.
May. 8th, 2010 07:59 am (UTC)
Been There...
Best of luck.

Been there.

Made it.

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.
May. 15th, 2010 03:50 pm (UTC)
Post- vs. prenutual agreements
It would seem to me that there would be less undue influence after marriage. After all, the wife married in a community property state, and has the husband by the balls. She can just stall forever. With a prenup, the husband has the option of not going through with the marriage, so he has more influence.

At any rate, I don't see _that_ great a difference between the two situations. Certainly not enough to make a case that the contract was not entered into voluntarily. If the court wants to reach a result on an equity basis, and needs some sort of flimsy excuse to do so, fine, it can make up some sort of undue influence theory.
May. 15th, 2010 04:00 pm (UTC)
Re: Post- vs. prenutual agreements
If the relationship was abusive in some way, with a significant power imbalance, the wife would never have the husband "by the balls" at all (or else he would simply divorce her).

What is an issue in my case is something called "marital fiduciary duty", which is why postnups are held to a higher standard of honest financial disclosure than prenups.

Edited at 2010-05-15 04:11 pm (UTC)
May. 15th, 2010 06:43 pm (UTC)
Blind-sided in court
My fiance is in the seventh year of his divorce proceedings, and he and his ex-wife were not the Gettys by any means. "Regular" people don't believe our reports "from the front." I don't blame them. If I hadn't seen it all happen myself, I wouldn't believe it either. I would be very interested in knowing whose court you are in. I can understand why you may not wish to post that info, so I will offer my private e-mail address and my word of honor as a fellow combatant not to repeat or circulate it. ccmccall@gmail.com
Stay strong, prepare for a long haul, pay no attention to what other people think of your need not be bullied.
May. 17th, 2010 08:33 pm (UTC)
What about the kids?
While warring parents and their gold-digging lawyers are enjoying their fun battle, the innocent kids are suffering mightily.... All the money in the world can never compensate for that, nor heal their pain, which will last a lifetime... For shame...
May. 18th, 2010 01:59 am (UTC)
In the end , you will get what you need. Then you will make movies of all your books and become a well known director.

And the opening credit will read...
Directed by the ex-wife of Elon Musk!!!

May. 31st, 2010 10:00 am (UTC)
Thanks for sharing
I first saw your story in the Sunday Times last Sunday here in London. I am from the US and lived in CA so I understand the community property focus.

1. You can definitely write. A messy topic but very well shared. Thanks for being so open.

2. Do continue the 'fight' as you definitely deserve a better settlement than was offered. Your ex's drive is what created his success and also the reason he cannot recognize what it means to be fair/human.

Good luck.
Jul. 26th, 2010 03:45 am (UTC)
This stuff is funny
Alright this one has a gold digger written all over it.. lol
Jul. 27th, 2010 04:26 am (UTC)
You should have a nice talk with Janet Burkle, billionaire Ron Burkle's ex-wife. They were married for 28 years, and they have three children. She signed a post-nuptial agreement as well. She cried duress in court, and she lost. He actually is so powerful that he got a California legislator to write a law just for him that would seal the court records from the press and the public. He cited worries that his youngest son was at risk of being kidnapped. I think, but am not sure, that that law was eventually struck down. Although he's worth $3 billion, she ended up with a lump sum of $10 million and $1 million a year plus a small house. And she had a prominent lawyer, Hillel Chodos. In any case, she lives in Beverly Hills. Maybe you can find someone who knows her that can introduce you. As someone who went through a divorce myself when my children were young, 3 and 7, all I can say is, don't bad mouth the other parent to gain ground or sympathy. It will only backfire on you. Children need to love both parents. And your children's welfare is the most important concern after all. But I'm sure you know that. I appreciated your saying how ridiculously privileged you are. That shows that you have good perspective on the whole thing. Good luck. And don't worry. You're young, rich and beautiful. You'll do fine whatever happens. I'm not so sanguine about the rest of the folks in America right now.
Jul. 27th, 2010 06:36 am (UTC)
Re: advice
I'd be happy with that deal.
Jul. 27th, 2010 06:42 am (UTC)
Re: advice
And yes, I am familiar with the BUrkle case. She didn't cry duress; she claimed that she had no knowledge of the mergers that he was involved with that he knew would radically change his financial future (with a postnuptial you're supposed to make a full and complete disclosure of your finances because of "marital fiduciary duty", the duty of one spouse to look out for the interests of the other). His lawyers presented evidence -- memos, emails, letters -- that demonstrated that she did in fact know about the mergers.
( 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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