Justine Musk (moschus) wrote,
Justine Musk

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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