Need advice from legal ****** *******s..

[Red October]

Edited title to read. Need advice from legal Knoooower aboooters.. :-)

Okay, here is the cliff notes version of the ordeal...

Ex wife and I divorced 5 years ago... got my name separated from hers on all credit cards, bills, etc...

Last year, got a call from Dillard’s saying I was late on payment. (I was like WTF? I haven’t had a Dillard’s card in... Well... since I was married to ex.. )

Turns out, ex wife went shopping and fell behind on payments. Now Dillard’s is sending me the bills saying I am responsible. Bill is $950 I called ex wife to let her know and she said no problem, she would take care of it. She was real nice about it.

I suspect Dillard’s is looking to me for the money because once we had a joint account. Side Note: She charged all her purses and shoes and crap with her MAIDEN NAME!!!

Basically, when they called me looking for $$$ I told their collection department to pound sand, and I have been writing letters to their corporate department asking that I be removed and to collect their money from the person who bought the goods.

I would assume next step is to hire an attorney, but that would cost more than paying the $900, right? Seems somewhat logical from a financial perspective to just pay it and move on. But out of principle, I just can t

What I want from them is very simple.
1) To stop calling me.
2) To have my name removed from this occurrence and have it disassociated from it ever being involved.
3) To have my credit rating restored as a result.

Any other advice? Dont know what else to do. Thanks a ton in advance.

[bonkuba]

No legal advice....but that really sucks. I hope it works out for you!!

[Frozen Sooner]

Edited title to read. Need advice from legal Knoooower aboooters.. :-)

Okay, here is the cliff notes version of the ordeal...

Ex wife and I divorced 5 years ago... got my name separated from hers on all credit cards, bills, etc...

Last year, got a call from Dillard’s saying I was late on payment. (I was like WTF? I haven’t had a Dillard’s card in... Well... since I was married to ex.. )

Turns out, ex wife went shopping and fell behind on payments. Now Dillard’s is sending me the bills saying I am responsible. Bill is $950 I called ex wife to let her know and she said no problem, she would take care of it. She was real nice about it.

I suspect Dillard’s is looking to me for the money because once we had a joint account. Side Note: She charged all her purses and shoes and crap with her MAIDEN NAME!!!

Basically, when they called me looking for $$$ I told their collection department to pound sand, and I have been writing letters to their corporate department asking that I be removed and to collect their money from the person who bought the goods.

I would assume next step is to hire an attorney, but that would cost more than paying the $900, right? Seems somewhat logical from a financial perspective to just pay it and move on. But out of principle, I just can t

What I want from them is very simple.
1) To stop calling me.
2) To have my name removed from this occurrence and have it disassociated from it ever being involved.
3) To have my credit rating restored as a result.

Any other advice? Dont know what else to do. Thanks a ton in advance.

The facts as I read them:

1. You entered into an open-ended credit plan as a joint signatory to your wife.
2. As part of the divorce decree, said open-ended credit plan was to be the responsibility of your ex-wife to pay.
3. The original open-ended credit plan has never been terminated.
4. Your ex-wife has made certain charges on said open-ended credit plan post-divorce.
5. The ex-wife has failed to make payments on said plan as per the divorce decree.

You are in default on the open-ended credit plan and are legally obligated to pay. It is not Dillard's responsibility to monitor the marital status of all of their cardholders, nor are they obligated to remove a signatory to an open-ended credit plan due to a divorce.

Sorry. This is something divorce lawyers do a really ****-poor job of explaining: no matter what the divorce decree says, if you signed it, you're still liable for it.

If I have misread the facts and your ex-wife has opened up a new credit plan to which you are not a signatory, you have certain rights under the Fair Credit Reporting Act as amended by the Fair and Accurate Credit Transactions Act. In a certified letter request to see the open-ended credit plan which you signed that authorizes your ex to make charges in your name. If they are unable to produce such, then pull a copy of your credit report at www.annualcreditreport.com. If you see any debt from Dillard's, file a dispute with all three credit reporting agencies. This starts a clock ticking where Dillard's has to prove up that you entered into the agreement.

There's also some weirdness that might come in if you happen to live in a community property state. Texas is community property, I believe.

[Okla-homey]

Yeah, you're on the hook, BUT, IMHO, your divorce lawyer can probably work something out with Dillards. Everything is negotiable. It's worth spending a hundred bucks to have him try.

[AlbqSooner]

Courts may not "impair the obligation of contract". A divorce court may order that she take the credit card, pay the same, and hold you harmless, but it can't force Dillard's to change the terms of their contract with you. Homey is right, your divorce lawyer should be able to work something out with Dillard's and should be willing to do so for a reasonable amount.

On the silver lining side, a friend of mine was divorced several years ago and agreed to pay the next 90 days of Visa card billings. He got a statement 2 months later showing charges of $78K. When he asked if she bought a house, she told him that it was none of his business, just pay the bill. You could have it MUCH worse.

[Frozen Sooner]

Courts may not "impair the obligation of contract".

And that's the key. The way I always explain it to people is that a legal proceeding between A and B cannot affect A or B's contracts with C.

Something to definitely do: go back through any open-ended credit you may have signed up with her, verify it has a 0 balance, and request that the line of credit be closed.

[Okla-homey]

While on the subject, remember, insurance policies are little more than contracts. Property divisions pursuant to divorce often involve determinations as to who must continue to carry whom on the health insurance; especially children of the marriage.

But not so on life insurance. Following divorce, if the life insured does not remember to change his or her beneficiaries, he or she could die, and make his or her ex-spouse very happy.

[Preservation Parcels]

While on the subject, remember, insurance policies are little more than contracts. Property divisions pursuant to divorce often involve determinations as to who must continue to carry whom on the health insurance; especially children of the marriage.

But not so on life insurance. Following divorce, if the life insured does not remember to change his or her beneficiaries, he or she could die, and make his or her ex-spouse very happy.

That exact thing happened to my boss. Her ex-husband died, and she was able to pay off all of her credit cards.

Within a month, she and Coldwater Creek had them all maxed out again. :rolleyes:

[Red October]

Thanks for the advice all. I appreciate it.

I know it could be a lot worse. Friends and colleauges of mine have been on the hook for tens of thousands of dollars. Maybe $900 isnt all that bad relativley. But still, $900 is $900, which could be spent on something I really want, like a trip to see an OU game, a trip to vegas, or an evening at night trips... haha

Yes, I got a copy of my credit report and closed any open accounts. Thankfully, this is the only hiccup.


Side Question, since when are we not allowed to say "****** *******s" :pop:

[TMcGee86]

While on the subject, remember, insurance policies are little more than contracts. Property divisions pursuant to divorce often involve determinations as to who must continue to carry whom on the health insurance; especially children of the marriage.

But not so on life insurance. Following divorce, if the life insured does not remember to change his or her beneficiaries, he or she could die, and make his or her ex-spouse very happy.

yeah, Texas just recently enacted a law to prevent that from happening.

Before that it was tough luck, hope the ex enjoys the money you wanted your family to have.

[Frozen Sooner]

Huh. That seems a bit odd that Texas would enact such a law. Maybe you WANTED the ex-spouse to collect on the life insurance, you know? I know that mom and dad kept each other as beneficiaries until they got remarried simply because they knew that if they died, the other would be taking care of the kids.

Similarly, if you have any financial accounts with named beneficiaries (such as POD bank accounts, IRAs, or QRPs) it's a good idea to remember to take the spouse off as beneficiaries there as well (if you don't want them to get the money, of course.)

[OUMallen]

Thanks for the advice all. I appreciate it.

I know it could be a lot worse. Friends and colleauges of mine have been on the hook for tens of thousands of dollars. Maybe $900 isnt all that bad relativley. But still, $900 is $900, which could be spent on something I really want, like a trip to see an OU game, a trip to vegas, or an evening at night trips... haha

Yes, I got a copy of my credit report and closed any open accounts. Thankfully, this is the only hiccup.


Side Question, since when are we not allowed to say "****** *******s" :pop:

BTW, your recourse, if Dillard's were to sue you, would be to join your wife in the proceeding. You'd "win" in the end due to the divorce decree, but Dillards would theoretically win against both of you and then you'd have ot have it adjudicated so that your wife is to more or less indemnify you.

[Frozen Sooner]

Something I've thought about is whether or not you might have a good cause of action for defamation of character against the ex if your credit report gets trashed due to an ex-spouse's failure to abide by a divorce decree-particularly if the ex-spouse makes a conscious effort to conceal that failure.

Probably not.

[Okla-homey]

Huh. That seems a bit odd that Texas would enact such a law. Maybe you WANTED the ex-spouse to collect on the life insurance, you know? I know that mom and dad kept each other as beneficiaries until they got remarried simply because they knew that if they died, the other would be taking care of the kids.



Just speculating mind you, but I would imagine the Texas statute referred to requires a post-divorce affirmation by the insured to permit insurance benefits contracted for pre-divorce to be paid to the ex-spouse. That's how I'd write that law, in order for folks to do what you describe.

A better way to do that, and a way to insure the policy proceeds benefit the kiddoes, is to establish a trust in their names and make the policy proceeds payable to that trust.

BTW, a will executed before the divorce is a nullity as to the ex-spouse on death of the testator. However, if, for some bizarre reason, the now divorced testator still wanted his ex to get something, he may execute a codicil (or new will) naming that spouse as a taker under the newly published will. Bottomline: it requires an post-divorce affirmative act by the testator for a bequest to a spouse to survive divorce.

[Okla-homey]

BTW, your recourse, if Dillard's were to sue you, would be to join your wife in the proceeding. You'd "win" in the end due to the divorce decree, but Dillards would theoretically win against both of you and then you'd have ot have it adjudicated so that your wife is to more or less indemnify you.

but, YOUR credit would still take a hit.

[Frozen Sooner]

Just speculating mind you, but I would imagine the Texas statute referred to requires a post-divorce affirmation by the insured to permit insurance benefits contracted for pre-divorce to be paid to the ex-spouse. That's how I'd write that law, in order for folks to do what you describe.

That's how I'd write it as well, but even then-absent such an affirmation, who then becomes beneficiary? Particularly if the insured has no next of kin, that'd become a bit of a thorny issue. At that point do the insurance proceeds become a probatable asset? That'd **** me right off from beyond the grave if I'd intended for my ex-wife to get the money (for whatever reason) and it turns out that I have a fifteenth cousin nine times removed who wound up with a claim on the benefit.


A better way to do that, and a way to insure the policy proceeds benefit the kiddoes, is to establish a trust in their names and make the policy proceeds payable to that trust.

Probably, yeah. Then again, if you're on good terms with the ex, why go to the expense?


BTW, a will executed before the divorce is a nullity as to the ex-spouse on death of the testator. However, if, for some bizarre reason, the now divorced testator still wanted his ex to get something, he may execute a codicil (or new will) naming that spouse as a taker under the newly published will. Bottomline: it requires an post-divorce affirmative act by the testator for a bequest to a spouse to survive divorce.

Good to know. If RAP hadn't already convinced me, that right there would be a good reason I don't want to go into estate planning.

[Frozen Sooner]

but, YOUR credit would still take a hit.

Which, when you think about it, it should.

People have an odd way of thinking about their credit report, I've noticed.

All a credit report answers is "Did this person pay this bill as spelled out in the contract?"

It does not answer "Did this person pay this bill as spelled out in the contract unless they had a really good excuse?"

You see that line of thinking with bankruptcies quite a bit. People think that if they filed bankruptcy, their credit report can't reflect late payment history or chargeoffs.

[Red October]

Frozen Sooner, thinking about this a little bit..



The facts as I read them:

1. You entered into an open-ended credit plan as a joint signatory to your wife..
Yes, we opened a joint account when we were married.


2. As part of the divorce decree, said open-ended credit plan was to be the responsibility of your ex-wife to pay..
there was no such statement in the decree.


3. The original open-ended credit plan has never been terminated...
I thought it was, in fact, I was so certian my name was removed, I would have bet a paycheck. Turns out, it apparently wasnt. I am suspecting some fishy stuff on Dillards part. First, because she called Dillards and had her married name changed back to her maiden name.


4. Your ex-wife has made certain charges on said open-ended credit plan post-divorce..
True; 4 friggin years after we split up.


5. The ex-wife has failed to make payments on said plan as per the divorce decree..
Again, this was never identified on the decree because I was certian it was a non-issue.


You are in default on the open-ended credit plan and are legally obligated to pay. It is not Dillard's responsibility to monitor the marital status of all of their cardholders, nor are they obligated to remove a signatory to an open-ended credit plan due to a divorce.
:(


Sorry. This is something divorce lawyers do a really ****-poor job of explaining: no matter what the divorce decree says, if you signed it, you're still liable for it.

To be honest, we never hired a divorce attorney. We had no kids and decided to split all assets 50/50.

[Frozen Sooner]

Gotcha. On points 3 and 5, if there was no provision made for who was responsible for what bill in the divorce decree, that makes your position even worse. Sorry. :( Doesn't affect your contractual obligation to Dillard's, but it does make it even more difficult to recover against her.

On point 4, the length of time since the divorce is irrelevant unless the open-ended credit plan had a named draw period that had expired prior to the charges. Since it's a Dillard's card, not likely.

Further on point 3-her changing her name on the account does not affect your contractual obligation. It's not even evidence that you desired to be removed as a guarantor.

[MojoRisen]

On the silver lining side, a friend of mine was divorced several years ago and agreed to pay the next 90 days of Visa card billings. He got a statement 2 months later showing charges of $78K. When he asked if she bought a house, she told him that it was none of his business, just pay the bill. You could have it MUCH worse.[/QUOTE]

I would have to see a man about a dog to take care of that one.. That is the kind of crap that scares the bigeebas out of me...

[Taxman71]

But not so on life insurance. Following divorce, if the life insured does not remember to change his or her beneficiaries, he or she could die, and make his or her ex-spouse very happy.

Actually, Oklahoma law automatically removes the ex-spouse as the named beneficiary on life insurance policies upon the divorce decree. 15 O.S. 178 (http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=66044) But, wait for it......

if the life insurance policy was obtained pursuant to an employer sponsored plan and, therefore, governed by ERISA, then Federal law trumps and says that the named beneficiary is the named beneficiary, regardless if a divorce occurred. This happens quite often.

[Red October]

On the silver lining side, a friend of mine was divorced several years ago and agreed to pay the next 90 days of Visa card billings. He got a statement 2 months later showing charges of $78K. When he asked if she bought a house, she told him that it was none of his business, just pay the bill. You could have it MUCH worse.



Pssst. See post #9

[Red October]

Frozen, I owe you a beer.

[C&CDean]

Actually, you could do like I did.

When I married my current wife (13 years ago) she was recently divorced from a dickhead who got a motor home in the divorce property settlement. Of course her name was on the title/contract too, but in the divorce decree, he was to be take possession and be responsible for payments.

Of course said dickhead didn't pay, and they came after her. They owed about $18K on it. I told her to refuse to pay it. She did, and her credit suffered. For about 5 years everything we purchased on credit was in my name only. I'd add her to my accounts, etc. later on. After maybe 6-7 years we decided to buy a house jointly. My good credit had become her good credit and we've lived happily ever after since. Almost. To this day, we still get a call maybe one every couple months from some lawyer type threatening legal action. They're willing to settle the $18K now for about $9K. I tell them to go **** themselves.

Of course if you can't afford to live without joint credit then this isn't such a good idea.

[Frozen Sooner]

Frozen, I owe you a beer.

No worries, man. I should throw in a caveat: I am NOT an attorney, nor am I licensed to practice law in any state. Any advice, commentary, or whatever I proffer should be taken with a LARGE grain of salt.

I DO have 12 years of experience in the banking, finance, and insurance world, so I can offer some advice from just seeing how this works out in the real world.

[Red October]

No worries, man. I should throw in a caveat: I am NOT an attorney, nor am I licensed to practice law in any state. Any advice, commentary, or whatever I proffer should be taken with a LARGE grain of salt.

I DO have 12 years of experience in the banking, finance, and insurance world, so I can offer some advice from just seeing how this works out in the real world.

Based on your location "6:00 on an ambulance" it sounds like you are a lawyer.. lol..

[Okla-homey]

Actually, Oklahoma law automatically removes the ex-spouse as the named beneficiary on life insurance policies upon the divorce decree. 15 O.S. 178 (http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=66044) But, wait for it......

if the life insurance policy was obtained pursuant to an employer sponsored plan and, therefore, governed by ERISA, then Federal law trumps and says that the named beneficiary is the named beneficiary, regardless if a divorce occurred. This happens quite often.

But here's a wrinkle, a lot of folks buy life insurance in other jurisdictions then move here. When its time for the insurance company to perform when the insured croaks, you can run into a big ol' choice of law mess as to the effect of state law on unchanged beneficiaries following divorce. I still say the safest thing to do is change life insurance beneficiaries when a spouse is jettisoned -- barring ERISA complications. That's pretty much bullet-proof.

[Okla-homey]

see below.


That's how I'd write it as well, but even then-absent such an affirmation, who then becomes beneficiary? Particularly if the insured has no next of kin, that'd become a bit of a thorny issue. At that point do the insurance proceeds become a probatable asset? That'd **** me right off from beyond the grave if I'd intended for my ex-wife to get the money (for whatever reason) and it turns out that I have a fifteenth cousin nine times removed who wound up with a claim on the benefit.

The ultimate unclaimed property black hole of course. The state.;)


Probably, yeah. Then again, if you're on good terms with the ex, why go to the expense?

Yepper, but, lots of folks remarry. The shiney-new spouse might not be so favorably disposed to do right by the former spouses kiddoes. A trust makes it much harder for the new spouse to get their mits on the kids' money to buy a bass boat or a mink coat. And what if the kids' parent dies? Cinderella? Hello?

Good to know. If RAP hadn't already convinced me, that right there would be a good reason I don't want to go into estate planning.

Other than law skool finals and the barzam, I'm told you can go your whole life without dealing with a Rule Against Perpetuities problem even if you practice in the area of Descedent's Estates and Trusts. In fact, it's so arcane and unfathomable, boofing the RAP isn't even grounds for a legal malpractice lawsuit.

[AlbqSooner]

Following divorce, if the life insured does not remember to change his or her beneficiaries, he or she could die, and make his or her ex-spouse very happy.

I changed all of my beneficiaries, but I could still die and make my ex-spouse very happy.:D

[AggieTool]

Want advice?

Never ask for legal, financial, or domestic advice on teh interwebs forums.:O

[Taxman71]

But here's a wrinkle, a lot of folks buy life insurance in other jurisdictions then move here. When its time for the insurance company to perform when the insured croaks, you can run into a big ol' choice of law mess as to the effect of state law on unchanged beneficiaries following divorce. I still say the safest thing to do is change life insurance beneficiaries when a spouse is jettisoned -- barring ERISA complications. That's pretty much bullet-proof.

Yeah, you are always better off to just take care of it in the first place, but these things often fall through the cracks in a divorce matter or the parties just don't want to deal with them.

As for choice of law, my 3 hour "Choice of Law" class in law school boiled down to 1 sentence, the law of the forum will be applied. The rest is B.S.

[jkjsooner]

So when I got divorced for a long time I had my ex as the beneficiary. I changed some things (401k) but forgot to change my company's life insurance.

A little over a year ago I got remarried. Same first name as the ex. Still forgot to change the beneficiary. Recently my new wife changed her last name to use mine so now the names match identically. Quite funny when I went on and updated the SSN and DOB only. :-)

[Frozen Sooner]

Based on your location "6:00 on an ambulance" it sounds like you are a lawyer.. lol..

Heh. I'm a wannabe lawyer. I'm heading off to law school in the Fall.

I'm like Homey's dog-I'm just chasing 'em for practice. Wouldn't know what to do with one if I caught it.

[TMcGee86]

see below.

Actually, in Texas, there is no such thing as "no next of kin".

A Texas decedent always has heirs. No matter how remote. Texas has no "laughing heir" statute. Such a law prevents heirs so remote from the decedent from inheriting that they would be laughing all the way to the bank as they had never heard of the guy.

In Texas at least, the state never gets it. It goes to the Estate and then it's the attorney ad litem's job to find the heirs.