After the divorce was final, I signed papers that gave her $4,000/mo.I
was incompetent because of an overdose of prescription medication. My
lawyer was not present. There wasn't a place on the form for my lawyer
to sign.  Are there other legal cases that deal with this issue? Are
there other cases where the lawyer wasn't present during the signing? 
What was the end result?  What case law pertains to this?

---

Request for Question Clarification by tutuzdad-ga on 06 Nov 2005 13:50 PST

It might help to know what state/country we are talking about?

tutuzdad-ga

---

Request for Question Clarification by cynthia-ga on 06 Nov 2005 19:54 PST

Are there children involved (child support), or is this alimony?

---

Clarification of Question by gtarman-ga on 07 Nov 2005 03:21 PST

This is in colorado, USA.

All the children are out of their minority period.  The money was paid
to her as a property settlement.  That's how  the agreement was
written.  We went to court in 2001, and it was determined to be a
property settlement.  NOW, it is being treated as maintenance.  The
distinction is world's apart.

---

Clarification of Question by gtarman-ga on 07 Nov 2005 03:24 PST

Tutzdad-ga
This is in colorado, USA.

Cynthia-ga
All the children are out of their minority period.  The money was paid
to her as a property settlement.  That's how  the agreement was
written.  We went to court in 2001, and it was determined to be a
property settlement.  NOW, it is being treated as maintenance.  The
distinction is world's apart.

---

Request for Question Clarification by tutuzdad-ga on 08 Nov 2005 07:16 PST

I've done some cursory research on your question and while it is a
very difficult one to answer there may in fact be some defense
strategies with regard to your problem.

First of all, we cannot provide legal advice so what (if anything) you
get from us will be largely published discussion about the matter (or
similar matters). This is just the nature of this forum.

Secondly, there's no guarantee that anything you learn here will
absolutely solve your problem. There are always circumstances that
might prohibit you from claiming certain defenses, not the least of
which is the time span and any limitations that might exist.

Thirdly, your reference to "incompetence" is unclear. It would help to
know how and why you believe you were "incompetent" and if that
condition was temporary or permament. What were the circumstances
around the medication (type of medication? What it was intended for?
How did an "overdose" happen?, etc)

Next, was your ex aware that you were medicated or was she aware that
you were over-medicated at the time? Do you now believe that she used
your condition to her advantage or were you, in your debilitated
condition, unfairly coerced into signing an agreement? Was this
agreement an out-of-court settlement done in an office outside the
court or was it part of a finalization of hearings? In other words,
was the ultimate agreement that you consented to an effort to avoid
further court action or was it merely your acknowledgement of an
earlier hearing that found in your ex's  favor?

Finally, I think you may be misunderstanding some point that you have
come to believe that a agreement is not valid without your attorney
present. This is simply not the case. The law in Colorado does not
mandate that you have your attorney present to enter into an
agreement, nor does it require the other party to refrain from
entering into an agreement with you if you do not have adequate
representation. That point is moot and I'll tell you up front that
this argument will get you absolutely nowhere. It is not a defense in
any criminal or civil court that you acted without your attorney's
advice or even, perhaps, against your attorney's better judgement.
However, if you were directed by an attorney to enter into an
agreement and you felt that, through some incompetence or mishandling
of your case on the part of your attorney, that you recieved a raw
deal, you could, theoretically claim that you were not represented
properly and as such form a basis by which you might consider sueing
your attorney for lack of representation (essentially malpractice)

You might take these issues into account and explain them more clearly
(specifically where your "incompetence", "medication" and "overdose"
are concerned). Then (and give this some thought) CLELARLY identify
and explain SPECIFICALLY what you hope to recieve as an answer short
of us solving your problem entirely. With more details we might be
able to help you identify some defenses or alternative but keep in
mind that what you get here is not to be considered an absolute
solution to your problem, rather published discussion about simmilar
problems and approaches that other people have taken.

I am interested in researching this in greater depth but frankly there
are too many unanswered questions just yet to permit us to begin
looking into your problem.

Regards;
tutuzdad-ga

Dear gtarman-ga;

Thank you for allowing me to answer your interesting question. After
some thought I decided to proceed with what I have and try and read
between the lines and do my best to answer your question without
prying too deeply into your situation. In fact, I concluded that more
details might even complicate matters so a general approach might
allow me to search more possibilities. Again, I?d like to remind you
that, as our disclaimer says, we do not provide legal advice in this
forum. What you receive here is merely the result of research into
published law, opinion and discussion of matters ?similar to? the
situation you are experiencing or situations that may be relevant to a
case such as yours.

First, let me put this issue behind us so we can focus on other
matters. As I mentioned in my earlier clarification request,
unfortunately the fact you entered into an agreement ?pro se?
(?without an attorney?; aka, ?pro per?, Latin: ?in propria persona?,
or ?'in ones own proper person?; alone, representing ones self) is not
a valid defense that you ?got the shaft?, as it were. In a court of
law any person may represent his or her own interests without an
attorney present at his own peril, and any person may enter into an
agreement with another who chooses to do so without representation
without understood or implied obligation to the ?pro se? party. The
fact that you did not have your attorney at your side is an option
that you (presumably) chose to do of your own accord and the fact that
that other party solidified the agreement knowing that you did not
have an attorney present is a moot point. If, however your attorney
directed you, or misdirected you, to do something that was not in your
best interests or failed somehow to protect your interests as he or
she was enlisted to do, there may be issues of malpractice. I will
speak about that a bit more in a moment. A party with whom you enter
into an agreement is not required to insure that your interests are
protected if they believe in good faith that you are acting willfully
and intelligently. I will get back to that more in a moment too.

Initially, let me speak a moment about CONTRACT LAW vs RULES OF THE COURT.

In civil or chancery (family) court the rules of contract law may not
take precedence over agreements that are entered into in a court of
law. If, for example, the agreement that you tendered was a matter of
settlement or acknowledgement of a court?s decision, Contract Law is
not typically the jurisdictional law ? Rule of the Court, are.  Put
more simply perhaps, Contract Law is designed specifically to govern
the BUSINESS agreements between two or more parties whereas a
settlement or an acknowledgment of an agreement in civil court for
example are government by the rules of the court. For example; where
Contract Law might prohibit a person who is under the age of 18 from
entering into a contractual agreement, clearly, in a court of law, a
minor prosecuted as an adult, even though he is still a minor, CAN
agree to the terms of a guilty plea, plea bargain, probation,
restitution, etc. These terms are binding in the same way that a
contract is binding but the law that insures legality, compliance and
validity is established by procedural court rules as opposed to
Contract Law. Having said that, I don?t believe (and have found no
evidence in the course of my research) that Colorado Contract Law (or
Contract Laws of any state for that matter) has any jurisdiction
whatsoever relative to any agreements or acknowledgements entered into
in a court of law. To pursue a voidance of your
agreement/acknowledgment/settlement using this approach, in my
unlicensed opinion, is much like the approach you alluded to that your
agreement is somehow voided because your attorney wasn?t there to
approve it ? both of them are doomed efforts from the outset. If,
however, a licensed attorney advised you that Colorado Contract Law
does apply, this source indicates ?contracts are voidable in Colorado
and Connecticut if they are substantively unfair at the time of
enforcement.?
ISLAMIC ACADEMY
http://www.islamicacademy.org/html/Articles/English/Islamic_Mehr.htm

Now, let?s get back to this issue of your alleged ?incompetence??.

The Rules of Criminal Procedure may apply to courts in general. Let?s
review some definitions:

IMPAIRED MENTAL CONDITION - A disease or defect of mind that is
grossly abnormal and prevents a person from forming the culpable
mental state that is an element of the offense charged.

INCOMPETENCY - A person must be competent before the person can be
tried on criminal charges. A person is incompetent if the person if
the person suffers from a mental disease or defect that renders him or
he incapable of understanding the proceedings or of assisting in his
or her defense.

INTOXICATION - The state of being under the influence of alcohol or
drugs or both, that may be a defense to certain criminal charges is
limited situations.

DEFENSE IN CRIMINAL CASES
http://www.boulder-bar.org/bar_media/law/5.9.html

While these issues are certainly defenses in criminal cases, it would
take an attorney to research whether or not they specifically apply to
civil cases such as yours. The reason I bring this up is because there
is a highly publicized Colorado case (People v. Garcia) in which
Garcia argued as his defense that he was ?involuntarily intoxicated?
due to a medical condition and therefore could not be held accountable
for his actions:

No. 03SC675. People v. Garcia, Jr. - June 13, 2005 ? Colorado
http://www.cobar.org/opinions/opinion.cfm?OpinionID=5170

Although this case, as I said, pertains to criminal law, the argument
that you were somehow involuntarily intoxicated by virtue of the
medication you were taking, MAY be an issue of interest in a Colorado
civil case, since clearly it has become a viable claim in civil cases.
My point is this, while there appears to be no CIVIL case precedent in
Colorado for a claim like the one you are making ? that you were
mentally disabled or diminished by an overdose at the time you entered
into this agreement ? there DOES appear to be a precedent in a
CRIMINAL case. If Garcia could win a defense allegation that he should
not be held responsible an assault on innocent victims, it seems
clear, to me at least, that a court might also entertain the notion
that one who signs an agreement in court while similarly diminished
might also be relieved of his responsibilities as well. As I said, the
defense appears to be untested so yours may be the first.


What ?are? some valid defenses?

The first that comes to mind is UNDUE INFLUENCE. Undue influence is
essentially the unfair persuasion of a person who has diminished
mental abilities. A person with diminished mental abilities who is
unfairly coerced into entering into an agreement can claim that they
did so as a result of undue influence if they can establish that the
party with whom they are entering into the agreement knew, or should
have known, that by virtue of the defect the agreement would not be in
the diminished party?s best interests. In other words, the party
entering into the agreement took advantage of the diminished mental
abilities of the person with whom they enter into an agreement.

?The Colorado Supreme Court defined capacity in Columbia, 33 Colo.
App. at 367, 512 P.2d at 1303, as consisting:

. . . of mentality and memory sufficient to understand intelligently
the nature and purpose of the transaction, to comprehend generally the
nature and extent of the property to be disposed of, to remember who
are the natural objects of the [donor?s] bounty and to understand the
nature and effect of the desired disposition. Cunningham v. Stender,
127 Colo. 293, 255 P.2d 977 (1953).?
COLORADO JUDICIAL BRANCH DENVER PROBATE COURT
http://www.courts.state.co.us/district/02nd/probate/cases/96pr1362_4-29-97.htm

It is ?possible? (and I say ?possible? because you?ll need to consult
an attorney about this before putting all your eggs in this basket)
that you could claim you were unduly influenced, while in a diminished
mental state, to enter into an agreement with your ex;  a decision
that you would never have reasonably made in your normal state of
mind. It may be a viable defense that your medical condition rendered
you so incredibly vulnerable that, under the circumstances, your
actions were not consistent with your best interests and as such you
were intentionally (or maybe even indirectly) taken advantage of.
Plausible defense? Perhaps. As I said, it remains to be seen and it
would take a lawyer to weigh the facts of the matter against state
law.

Another possible claim is BREACH OF FIDUCIARY DUTY. 

?Breach of duty is part of a negligence lawsuit and the most important
aspect in proving such an issue. If no duty was ever breached then no
negligent damages are owed.

In a negligence lawsuit there are four elements to consider: duty,
breach of duty, causation and damages. For breach of duty, it must be
decided whether or not the defendant, the one being accused of
negligence, behaved in a way that a reasonable person would have under
similar circumstances. If no duty is owed then there is no negligence
lawsuit.

To determine breach of duty's existence, a determination is made as to
the standard of care and an evaluation of the defendant's conduct in
reflection of that determined standard. If duty of care by the
defendant can be proven, using the reasonable care standard, then
negligence can be an issue. The defendant needs to have recognized the
risks created by her or his actions and to understand what could
happen from those risks taken. The general standard of care is then
applied to the specific circumstances of the situation and the jury
must establish whether the defendant's conduct was negligent.?

DEFINING BREACH OF FIDUCIARY DUTY
http://ar.essortment.com/breachoffidu_rkwv.htm

In short, if you successfully allege that there is a breach of
fiduciary duty that substantially impacted the equitable distribution
of property, you may have a viable claim that such agreement is void.

The next thing that comes to mind is INADEQUATE REPRESENTATION. If,
for whatever reason, you can establish that you received inadequate
representation you MAY have a case for malpractice against your the
attorney. This of course would require you to prove that you
commissioned an attorney to represent your interests and he or she,
through some neglect, omission, error or other misrepresentation
caused you to enter into an agreement that directly or indirectly
compromised your best interests. Legal malpractice cases are hard to
win because everyone involved is well versed in the law. On the other
hand however, many attorneys carry malpractice insurance and while
winning a case against an attorney may not void your agreement with
your ex, it may result in a lucrative out-of-court settlement just to
put the matter to rest (off his or her official record) and get you to
shut up. Generally speaking legal malpractice is based on issues such
as ?failure to effectively communicate with a client? or ?conflict of
interest? rather than incompetence, but lawyer incompetence is not out
of the scope of potential allegations one might consider. The key
factor to remember in considering negligence is whether the duty of
care was owed to the plaintiff (you), by the defendant (your
attorney), and whether or not that duty was breached.

CHALAT HATTEN LAW OFFICES
http://www.chalatlaw.com/legalmal.html

The problem that may arise from such a malpractice claim is Colorado?s
STATUTE OF LIMITATIONS. In Colorado the statue of limitations (the
time frame one has to file a civil suit) for Professional Malpractice
is 2 years from the date the injury was or should have been
discovered. The challenge here is going to be the effort to establish
?when? the improprieties ?were or should have been discovered? in
relation to existing statutes of limitation.

COLORADO STATUTE OF LIMITATIONS FOR CIVIL AND PERSONAL INJURY ACTIONS - AN OVERVIEW
http://www.expertlaw.com/library/limitations_by_state/Colorado.html

As with the other possible scenarios you should consult with a
qualified lawyer, who can help determine which statute specifically
applies.

I should probably close my oversimplifying this: Opinions are like
bellybuttons ? everybody has one. If my experience with law related
question similar to this one has shown me anything it?s that other
opinions, both pro and con, will be forthcoming in the form of
unsolicited comments in response to this research.  Debate is the
natural of law; it?s why we have courts and attorneys who take
different sides on virtually every issue, interpretation and point of
law. In the coming days or weeks some people may offer support for
these defense strategies or even offer new ones, while others may
vehemently oppose them. Neither opinion holds any more authority in
this online forum than the other since a court will ultimately have to
determine if any allegations you might make have any relevance to your
case. At the very least, the intent is merely to educate you and
perhaps to some extent arm you with information so when you do consult
an attorney you may better understand some of the intricate matters in
cases similar to your own.

I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga ? Google Answers Researcher



INFORMATION SOURCES

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Voluntary intoxication

Involuntary intoxication

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Request for Answer Clarification by gtarman-ga on 09 Nov 2005 03:29 PST

I thank you for what you have done.  The WHOLE story is...I have
Parkinson's Disease, and have had two strokes. Prior to being disabled
I was a VP for CNA Insurance Co, and a Certified Financial Planner.  I
was listed as disabled in April of 1998.  I was a scuba instructor
with students in 30 ft. of water when I had my first stroke. It was
massive. But through hard work and perciverence, I worked my way out
of it. I am 55 years old now.  I was divorced in 2000. We were
seperated for 7 years prior to the divorce. It ws a 31 year marriage. 
I remarried in 2001.  As the result of a domestic violence charge and
subsequest violation of a restraining order. I was put in jail for 45
days, by my second wife.  To step back a minute, I had deep brain
surgery that put me right into the poor house.  I was making $9,700 /
monthly.  As the result of the surgery I had to declare bankruptcy.

---

Request for Answer Clarification by gtarman-ga on 09 Nov 2005 03:46 PST

I was represented by three attorneys at the time.  The jailers gave me
two 50/200 sinemet,.  I was to be taking 2, 25/100.  i told them what
I was to be taking, they said to take it anyway.  It caused dyskinisa
and I was out of it. my weight had dropped from 170+ lbs. to 134 lbs. 
My x-wife planned to see me in jail.  She had papers to sign. I would
have signed anything and I did.  The purpose was to defraud my current
wife, by giving everything to my x-wife.  It was totally and
unequivikly  her idea.  We have since reconcilled.  My xwife should
have been discharged as a debtor.  The legal case is an appeal.  I can
only deal with the facts at hand.  Sooo, I am trying to deal with the
fact of having an attorney, but, not having him present at the time of
the signature.  I have spent $64,000 on attorneys.  i will be
representing myself.

---

Request for Answer Clarification by gtarman-ga on 09 Nov 2005 03:56 PST

I can't talk well enough to be understood.  I feel that the judge
couldn't understand my testimony.  Even though I talked for half an
hour.  She said in her response, that "she was able to observe first
hand, how difficult it was to understand me".  Anything you can do to
would be appreciated.  If all the money has been used, I will gladly
pay another hundred.  At this point I am paying $4,000 a month and
$92,000 to my x for 10 years.  Any further clarrification you need,
just ask.  I've given you the story of my life.  What the heck, any
further info. would be just additional info.

Thanks,
Joseph R. Snyder

---

Clarification of Answer by tutuzdad-ga on 09 Nov 2005 08:43 PST

Well, it certainly appears that my ability to read between the lines
is farily good (in this case at least). Not being a licensed attorney
I don't know what I might offer you beyond what I have already posted.
It does seem that you may have been taken advantage of given your
mental state, physicial disability and potential overdose of
medication, and I can see where this could be construed as a valid
claim on your part. I think it is concerning that you would choose to
represent yourself considering the sizeable loss that you potentially
face if it al goes wrong. If you had trouble testifying you will
defintely have a challenge on your hands when it comes to representing
yourself in a court oif law against an able bodied young attorny (or,
by virtue of her newly acquired wealth perhas, a "team" of attorneys).

Moreover, undoutedly you have heard the old adadge that "one who is his
own lawyer has a fool for a client" (I mean that in all due respect of
course). The proverb has proven true on more than one occassion and I
strongly recommend you seek reliable counsel before taking what may
well prove to be your last shot at a lifetime of assets. If you have
filed bankruptcy you may qualify for legal aid. I highly recommend you
contact COLORADO LEGAL SERVICES at the very least to see what free or
discount services are available to you.

COLORADO LEGAL SERVICES
http://www.coloradolegalservices.org/co/homepage.html

I cannot stress enough how important adequate representation is and
even if you shoose not to consult legal aid there may in fact be
attorneys out there who offer free representation based on a no win/no
fee premise. Others offer free consultations, so you really have
nothing to lose by seeking the advice of one of these types of
attorneys.

I do want to leave you with some additional issues to inquire about
when you do speak to laywer (and as I said, you DO need to talk to a
lawyer about these things even though you intend to represent yourself
? there?s nothing to prevent you from having a lawyer accompany you to
court and ASSIST in your defense even though you plan to present your
own defense). The potential claim is called "FRAUD IN THE INDUCEMENT".

A claim of FRAUD IN THE INDUCEMENT arises when someone is induced by
another, through fraud or misrepresentation, to enter into an
agreement. The fraud relates to the facts underlying the actual
accomplishing the agreement, but not to the actual terms of the
agreement.
UNTITLED
http://www.atgpress.com/dtom/dt032.htm

FREE DICTIONARY
http://www.thefreedictionary.com/fraud%20in%20the%20inducement

LAW.COM
http://dictionary.law.com/default2.asp?selected=786&bold=%7C%7C%7C%7C


Another possible avenue has become known as the ?Prima Paint Rule?.
This was decided in a landmark US Supreme Court in 1967 (in Prima
Paint Corp. v. Flood & Conklin Mfg. Co.). In this case the court held
that Secco (the defendant) exploited Spahr?s (the plaintiff?s) mental
deficiencies and finagled him out of large sums of money and real
estate, thus rendering the agreement between them void ?ab initio?
(Latin: from the beginning).

SPAHR v SECCO
http://www.kscourts.org/ca10/cases/2003/06/00-1132.htm

Ironically, as it turns out, it may also be important to know that
this case was an appeal of an earlier case from the United States
District Court for the District of Colorado (D.C. No. 99-M-1646).

I know nothing about him personally nor can I recommend him, but if
you are interested, Spahr's attorney in his case was a Cornell
University educated Denver laywer who (evidenced by his successful
representation of Mr. Spahr)specializes in cases where one party is
disabled and taken advantage of. His name is DALE. A. GAAR

DALE. A. GAAR
1600 Stout Street, Suite 1000
Denver, Colorado 
80202 

Telephone: 303-446-9300 Fax: 303-446-9400 

LAWYERS.COM
http://www.lawyers.com/gaar/jsp2125819.jsp
http://www.lawyers.com/lawyers/Denver/Colorado/Dale%20A.%20Gaar/law%20firm.html?a=0901-LDS&co=&b=A1005072021390

Not to beat a dead horse, but you do need to see an attorney even if
you choose not to use one in court. Your assets most likely depend on
it. I cannot offer you legal advice as our disclaimer indicates nor
will you get the best advice about defenses in an online forum. Your
case is complex and the risks are considerable. In my opinion it will
require (at a minimum) the assistance of someone much more
knowledgeable about these subjects that anyone you will find here.
Until then, I hope your experience here has helped you to better arm
yourself with information.

Best of luck;
Tutuzdad-ga