Saturday, March 17 , 2018, 11:02 pm | Fair 50º


Brian Burke: About Your Divorce (Letter 41)

Venomous letter from attorney accompanies petition for dissolution of marriage

Dear Pinky and Spike:

In the last letter, I described the meeting at which Ralph learned that Rebecca would seek reimbursement for “her half” of all the child and spousal support he paid from his income to his first family. If he had any questions about whether he needed help, they were all answered the next day, when he was called to the reception desk and confronted by a fully uniformed sheriff’s deputy.

The deputy “served” a summons issued by the court with the heading “You Have Been Sued.” It contained a petition for dissolution of marriage bearing the court’s stamp and a multipage letter from Rebecca’s lawyer, Eunice Heep. A summary cannot do justice to what Heep wrote, so the full letter follows:

Dear Sir:

1. This firm has been engaged to represent your wife, Rebecca, in an action by which the Superior Court of the State of California, County of Santa Barbara, is being petitioned to dissolve her marriage to you on grounds set forth in Family Code § 2310. We have reviewed the available information carefully and believe that no court would question the adequacy of the evidence that can be marshaled in support of the relief requested.

2. This letter, a Summons by the Court, and a Petition filed on Rebecca’s behalf with the Court will have been personally served on you by a Santa Barbara County Sheriff’s Deputy. It is usually more efficient to accomplish service made at a place of work. That’s what we’ve arranged in this instance, and it is what we will arrange in the future should further service of process become necessary. With concern for the safety of law enforcement officers forced to serve documents in domestic disputes, we always advise the Sheriff’s Office if we know whether or not you own a gun.

3. Because of the facts in your case, and my responsibilities to Rebecca, it is incumbent on me to establish the Court’s personal jurisdiction over you, so Orders made can be enforced with the Court’s power of Contempt. It is also my responsibility to activate the Automatic Temporary Restraining Orders as quickly as possible. Now that you have been served, you are specifically prohibited from taking any of the actions described in the list on the reverse side of the Summons.

4. Given the seriousness of the matters described above, it may be superfluous for me to emphatically urge you to interview, select, and engage your own matrimonial attorney as soon as possible.

5. You will be required to pay a retainer and, so far as we know, the only assets available to you are joint, meaning you and Rebecca each have a 50 percent “undivided interest” in every dollar or penny in the marital estate. You may take this letter as Rebecca’s consent to use as much joint property as you need to retain competent counsel on the condition that you simultaneously pay the same amount to this Firm.

6. For your information, and in the spirit of full disclosure, Rebecca has already paid our initial retainer with funds she withdrew from your joint checking account. But her legal expenses are likely to be considerably greater than yours because we will have the “laboring oar” in evaluating the various possible claims she might have against you for failure to manage the joint estate in accord with the fiduciary duty you owe to her under state law. We are particularly concerned by a report that you received community property income and immediately turned it over to a previous wife and her children without obtaining Rebecca’s explicit and written consent.

7. It is our client’s desire that the dissolution of her marriage to you, the division of the marital estate, and the establishment of spousal support be done in a businesslike, if not amicable, way. This firm will respect and honor her wishes.

8. It is our understanding that during the course of your fifty-month marriage, you were the primary provider for the family and you managed the joint estate. We further understand that during these fifty months there were numerous transactions involving the purchase and sale of stocks and bonds.

9. We assume you are aware of the fiduciary duty one party to a marriage owes the other in dealing with their property. This fiduciary duty has been described as a “confidential relationship imposing a duty of the highest good faith and fair dealing upon each spouse in his or her dealings with the other.” If this duty has been violated, ignorance of its requirements is not a defense to its violation – and claims of ignorance can serve as evidence of such violations.

10. With respect to the investments you made during the marriage, you should understand that while we assume for now that they were all done with the level of care required by statute, we have examined none of the documentation for those transactions and which, in the ordinary course of good business practice, would have been organized and preserved for future accounting.

11. That future is near and so that it will come as no surprise, we inform you with this letter that we will be making a formal demand for a list of each and every investment you made during the course of the marriage and the documentation for each. Of course, we will also insist that you produce records of the date and amount of every payment you made to your former spouse during and since your marriage to Rebecca.

12. When you retain counsel, we are confident you will be warned that the same fiduciary duty owed to Rebecca while the marriage was intact is also owed to her during the period between the date of separation and the Entry of Judgment. Formal notices are being prepared, but you are, by this letter, put on notice that we will demand you provide this firm with a comprehensive set of disclosure documents listing all assets and liabilities regardless of whether you consider them to be separate property or joint property, plus the disclosure of all income received or earned by you during the last five calendar years.

13. Because of the continuing fiduciary duty, Rebecca is entitled to be informed, in detail, of any changes affecting the nature or value of all marital property. In the event of such changes, the reports prepared for Rebecca are to be delivered to her in care of this office. In addition to detailed information concerning changes in the community estate, Rebecca is also entitled to a window into the day-to-day management of the estate, which will require occasional briefings or updates after the preliminary disclosure has been completed. We will insist that such updates be made on a monthly basis. Whether they are in writing or in person is a matter of indifference to us. In the absence of a different proposal, we demand a monthly meeting to review your books and records and to receive from you a candid report on the condition of the estate.

14. As you will see from a review of the Automatic Restraining Orders, Rebecca has not, at this time, sought an order prohibiting you from contacting her or requiring you to remain a certain distance from her person. She is confident that such an order will not be necessary. We do not know you, Sir, but we have had experience with thousands of divorcing spouses, and we know they can be unpredictable. We have no opinion and make no prediction about whether we will or will not seek a restraining order against you at some time in the future. For now, you can honor Rebecca’s trust by personally delivering or by mailing to this office your set of keys to Rebecca’s residence.

15. You should both be afforded a sense of privacy and safety during this difficult period. We assure you that Rebecca does not have and will not seek a set of keys to the apartment that you have just taken. If this office has not received keys to Rebecca’s residence within 48 hours, whether by post or otherwise, your failure to honor this request will be evidence of need for a Restraining Order, and we will actively consider the option of seeking one from the Court. Whether we obtain a Court Order or not, we will instruct Rebecca to have all locks changed. We will also have a security expert, with whom we work regularly, examine the property and recommend the proper system. Rebecca will be advised to have all the recommended devices installed on an emergency basis. At the appropriate time, we will seek to have you held entirely responsible for this expense.

16. I look forward to meeting you and the attorney you engage for the first of many meetings usually held in a case like this.


Eunice Heep,
Attorney & Counselor at Law

So far as I can tell, the content of this letter violates none of the California Bar Association’s Rules of Professional Conduct. If readers are able to point to one or more instances in which a rule is broken, it will come as a relief to me.

Whether this letter is technically ethical or not, it’s venomous. The 16 paragraphs are full of slurs, put-downs, misleading statements and threats. It is so dense that I’ve prepared a table that describes its vicious content, paragraph-by-paragraph. Click here if you wish to view this table.

Your friend,

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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