When the lawyer forgets to file his conclusions in divorce proceedings

En matters of divorce, as in other cases, when a lawyer commits a procedural error, his client sees the hope of obtaining what he was asking for disappear – generally a compensatory benefit, capital intended to cushion the expected fall in its standard of living.

The client can certainly sue the lawyer, and ask that he be ordered to compensate him. But the compensation will only be partial, under the principle that “reparation for the loss of opportunity cannot be equal to the advantage that this opportunity would have provided if it had come true”. It can even be void if the lawyer demonstrates that the person for whom he previously had to plead with conviction had no chance of winning his case. This is illustrated by the following two examples.

In 2016, a family affairs judge in Amiens pronounced the divorce of the debts, non-contribution to the maintenance of children) constituted violations of the duties of the marriage and made it intolerable maintaining common life.

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There law of May 26, 2004 on divorce having removed the link between fault and compensatory benefit, Mr. X could nevertheless be allocated capital, taking into account the expected fall in his standard of living. But the judge, as he has the right to do, rejects his request (450,000 euros), in view of the special circumstances of the breakup » : departure from the marital home “secretly” organized before filing the divorce petition, and concomitant cessation of contribution to household expenses.

“Special circumstances”

Mr.e Z, does not file his conclusions with the court registry, so that his notice of appeal is void. He decides to pursue Me Z and first asks her whether an appeal to the Court of Cassation against the expiry order is appropriate, but she does not respond. So that the lawyer does not reproach him later for his inaction, he tries it. He lost 6,600 euros (lawyer’s fees and procedural compensation), because the appeal was rejected.

Mr.e Z before the Arras judicial court. He explains that, without his fault, he would necessarily have obtained the invalidation of the Amiens judgment: the notion of special circumstances of the breakup » must in fact only cover very serious facts, as specified a circular from the Ministry of Justice. However, those who are invoked are not.

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