I paid an attorney to represent me in divorce. Upon his advice and that of his hired CPA, I accepted our home as settlement.

Our home was 5 years old 300,000 and had no mortgage. However, I told the attorney that the IRS was pursuing my husband for non payment of taxes and I thought there might be a lien on the home. They researched the matter and assured me there was not.

3-4 years later, I try to sale the house and the IRS tells me there is a lien and that it existed at the time of my divorce. I contacted my attorney and he the cpa, whom I had to pay 500 to accompany me to the IRS,to have them repeat the information. What recourse do I have?

Asked on June 27, 2017 under Family Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You unfortunately most likely do not have worthwhile recourse. Your recourse for legal malpractice is the amount the malpractice cost you. Since the attorney did not cause you to have the lien (that was due to your husband's nonpayment of taxes), there would be no recourse for the amount of the lien. You could potentially recover what you had paid the lawyer for useless services; and IF you prove that the fact that the lien was not addressed earlier caused you to incur some additional "carrying costs" or other expenses/losses due to the delay in dealing with the lien now, possibly some portion of said carrying costs, etc. However, to win a malpractice case, you probably need to hire a lawyer to bring it for you, and cannot necessarily recover that expense; and likewise may need some expert testimony (possibly a malpractice expert, to testify as to what a lawyer should have done in this case; possibly a real estate agent to establish the impact of any delays on your home sale) and again, may not be able to recover those costs, too. It is possible therefore that you could spend more on the case than it is worth, in terms of what you will recover vs. the expenditure of time and money.

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