Is an error on the divorce decree the responsibility of my attorney or me?
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Is an error on the divorce decree the responsibility of my attorney or me?
My ex-husband informed me that I owe him for overpayment of child support over the last year. Neither his attorney or mine caught this error before the decree was signed. I paid my attorney 10k. My attorney says I have to pay my ex-husbanc back for the overpayment. If we paid both our attorneys to do a job and neither caught the error, why am I responsible for the overpayment?
thank you,
KB
Asked on June 14, 2016 under Family Law, Oklahoma
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 8 years ago | Contributor
For the sake of this answer, I will assume that there was an overpayment (though obviously let your new attorney confirm if there was in fact one).
If you were overpaid, then *you* received money to which you were not entitled. If you received money to which you are not entitled, you must repay it--an error does not, in the law, entitle you to keep someone else's money, and if your ex-husband paid more money than he was required to under the divorce decree or settlement, then that surplus money was really his; he did not have to give it to you. That is why you have to repay it.
That said, you may have a malpractice claim against your former lawyer, for his error: lawyers do owe their clients a duty of care, diligence, and professionalism. Not all errors are malpractice: the law accepts that attorneys could sometimes be wrong without being liable, especially if the issue was very technical or complex or susceptible to more than one answer; however, an attorney practicing family or divorce law should understand how child support works and how to read a divorce decree or support agreement, so there is reasonably good chance that the attorney's error was malpractice. Therefore, you may be able to recover compensation from the former lawyer via malpractice suit, and may wish to discuss this with your new attorney. But even if the prior lawyer owes you money, that does not change your obligation to repay an overpayment, though it may provide you reimbursement.
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