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Divorce Attorney Angela FoyQuestion:

I just found out my soon-to-be-ex has opened my mail and kept my refund check. Now her attorney is holding on to the check and won't release it. I'm guessing she's trying to use that as a retainer fee or something.

What can I do to get my check back? Would the check be considered marital property since we aren't divorced yet and thus she thinks she's entitled to a portion of it?

Answer:

It is difficult for me to answer because I do not know what type of refund check you are referring to and what other property or debt issues may be present in your case.  Additionally, I do not practice in your jurisdiction, so I can only speak in generalities based on my experience.  However, it is common that one attorney will hold sums of money in trust while the case and a decision on what to do with the money is pending. 

While intercepting mail is not legal, the judge is not likely to deal with the action in the context of the divorce.  Any criminal charges would have to be filed by a district attorney in a separate case.

It sounds from the timing that you are probably talking about a tax return check.  If that is the case, that check is very likely marital and it will need to be addressed in the divorce action.  In most jurisdictions, the timing of when the check is received does not matter unless the check is received after the divorce is finalized and the allocation was not made in the divorce.

In most jurisdictions, the property division is final as of the date of the divorce.  While the case is pending, you or your spouse can seek temporary orders to govern until the case is finalized, either by agreement or by court order.  This temporary order usually addresses which party is responsible for which obligation.  If you do not have a temporary order, you may be able to file a motion and request one to address the disbursement of the check.  If you have a temporary order already and it does not address the check, you can seek to have it modified. 

At that hearing, I would expect to propose how that check should be spent and why its disbursement is needed now based on your financial circumstances.  Conversely, I would also try to anticipate what argument your spouse’s attorney might make about why it should be held or accounted for differently. 

Regardless of what a court does, if anything, on a temporary basis, the final judgment should address the sum of money and allocate it to one of you.  If it is not assigned to you, it will likely be assigned to your spouse to offset another marital asset that you are receiving. 

You are also entitled to information, should you seek to inquire in the form of formal discovery.  Some questions you may wish to pose is what her proposal is for the money, why she took it from the mail, and by what date it must be cashed.

I do not practice in Arizona, so I cannot inform you as to the state’s specific laws. You should discuss your case with a domestic litigation attorney in your jurisdiction.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.


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