Entering new, weird phase of divorce

[takingandsending]

I am off this afternoon for interview of a second litigation attorney for what is appearing to be inevitable departure from collaborative divorce case.

First lawyer said: 1) signed parent plan is admissible in court; 2) going to court will like result in a shorter duration of maintenance that I pay than collaborative agreement reached; 3) important thing is to define start of maintenance, which hasn't been done - I think and can document it should be when I moved out, but L did not think that would pan out for me; 4) custody evaluation and psych evals are appropriate and county CE is good/experienced with PD; 5) remove winter travel stipend; 6) xw has zero chance of moving kids out of area; 7) said not to fight the life insurance policy as long as xw pays for it but admitted that court would never mandate it - he said it will look like I am denying xw financial security should I die before maintenance is over. I asked if I could stipulate language that term is only until maintenance duration, but he was evasive on that; 8) play hardball in last collaborative session with mediator to try to extract signed agreement.

L had a lot of stories about BPD cases, but I don't want stories. He seemed thin on strategies, but completely agreed that courts look at parenting behaviors and knew the BPD playbook.

Xw has been very strange lately. She will not share her current address, which the litigation L said was unacceptable from safety stand point for kids. Before I took trip with kids to midwest 2 weeks ago, xw was to meet me to pick up S7's stuff for school cubby. I parked at school, was looking at phone inside car when kids walked up with their instruments and backpacks for the trip. She never pulled in and never picked up S7's stuff. I also had a check for her for kids' back to school jackets and boots. I texted her about the check, but she refused to come back to pick it up, so I went to the airport and took trip. Last week, she asked that I put check in S12's violin case for her; I did, she then forgot to retrieve it and demanded that I deposit it. I did not. She then texted S12 to place in his backpack and give her the check, which I only found out when I tried to retrieve it from his violin case.

On Thursday, she wanted money from me to purchase a new violin for S12 (finally grown into a full size!). I said that I would bring a check to the strings shop and bring S12 with me and asked what time to meet? I noted that I wanted to be there because this is a big milestone after 7 years of playing violin and practicing every day. She stated 3:30 p.m., which I said would not allow enough time to bring S12 home to eat before his 5 p.m. dance class. She offered to pick up S12 from school, bring him to shop, then feed him and take him to dance class - I could pick him up and take him home with me (he was on my custody time). I stupidly agreed. Got text from her saying they were running late - would 4:30 be okay? I agree. I show up at strings shop at 4:30 - they are not there. Proprietor tells me they came by at 3:30 p.m. and she paid her half. He assumed I was just coming to pay my half.

My gut tells me that she is creating some paranoid delusion that I am a threat to her and is preparing for a DV type claim, which would be odd since we have zero interactions. I think that I will definitely record myself if/when we do have to interact, just in case.

[ForeverDad]

And save those texts.   "They were running late - would 4:30 be okay?"... .  When was that late text?  I agree something's fishy.  Keep your recorder on standby.

Are your texts archived in the cloud or somewhere.  I recall that when my phone died a year ago that I lost all my texts, my new phone started with a clean slate, contacts were saved but not the phone call records or texts.

[DivDad]

My uexBPDw displayed the same violin “miscommunication” behavior scores of time.  It is typical BPD behavior.   Nothing unusual about what happened.  It will keep reoccurring.  It's part of the territory.

My first L wrote up the initial divorce settlement and drafted up a boilerplate parenting schedule.  It lasted a month.

I retained another L who was experienced in high impact/BPD cases.  In my case, my second L rejected outright a collaborative divorce agreement.  There is nothing “collaborative” when dealing with a BPD.  It usually works if both parents are nonBPD and are on the same child rearing page.  It’s a good legal parenting outline to follow that presumes normal day to day decision making and interaction will occur in the best interest of the children.

I went back to court.  Round #2 had a VERY detailed  pickup and drop-off stipulations which included not only vacations, holidays etc., but also Halloween, BD’s, Father’s Day, etc.  Nothing was assumed.  That lasted about 5-6 months.

 Round #3 was filing contempt motions on all the round #2 violations.  I won them all. My uexBPDw was ordered to pay my legal fees.  That finally got her attention.  (70% of all my legal fees weren’t about custody, but about parenting schedules.) 

When drafting up a solid parenting schedule…look down the road as to what is in the best interest of your children when it comes to school functions, vacations, drop offs/pick ups etc. etc.  The more detailed the better. 

Also, think about who has final decision making authority on health, education and welfare issues.  In the beginning, my uexBPDw and I had 50/50 decision making.  She was under the impression that no response negated any type of parental decision.  A series of documented texts and emails reflected her non-responses… and misconception that no answer was an answer.  This was corrected in round #3 where I was awarded total decision making authority. 
In short, try and focus on the parenting schedule.  It will benefit your children the most.   ‘Hope this is helpful.

[Torched]

What will be even more confusing is when her kooky communication oddities are followed by claims that you are the one inconveniencing her or even worse, that you are the problem.  I’ve experienced this a lot in the past two years coparenting with her.  I keep all of my “kooky” and “inappropriately acting out” text interactions with her in a file.  I did so initially because I thought that she had some angle, and I wanted to be able to prove that I was the reasonable, rational one.  It is interesting that while I have felt on edge about most of these text interactions, none of the things I suspected she was “up to” came to be.  I think the earlier poster has it right... .this kookiness is to be expected of the BPD coparent because they are living in a fairly different reality (their viewpoint) than you and I are.

[livednlearned]

It's unfortunate that this L was thin on strategy -- I found I had to really press my L to be more explicit about her short-term and long-term strategies.

You can still work out some ideas here and then run them by him.

For example, if this is true:

2) going to court will like result in a shorter duration of maintenance that I pay than collaborative agreement reached

Maybe this is the first part of your strategy, where her new L and your L spell out clearly how much money she will not be getting.

Is that likely to mean anything to her?

[takingandsending]

And save those texts.   "They were running late - would 4:30 be okay?"... .  When was that late text?  I agree something's fishy.  Keep your recorder on standby.

It felt odd. I am used to poor and inaccurate/incomplete communications with her, but she sent text to me at 2:44 p.m. (15 minutes before kids' release from school): "Timing has changed [from agreed 3:30]. Can you get to [shop] at 4:30? Thank you."

Then when I arrived at 4:25, got this one: "Be there in 5 or so min." and ultimately learned she had already been to shop at 3:30 and left. She lied about timing to prevent me being there when S12 got his violin. It's a control thing. She has been extremely evasive about meeting at any transfers and, as mentioned, refuses to provide her current home address and would provide none over the summer when she lived in about three different house sits or temporary situations.  I don't want contact with her, but there are a few instances like school starting up where it is helpful to pool which parent has things for school to go with the kids. I try to have most everything at my home for the boys, but in past we have shared coats, shoes and so forth. Seems her control mania is going into overdrive.

[takingandsending]

It's unfortunate that this L was thin on strategy -- I found I had to really press my L to be more explicit about her short-term and long-term strategies.

You can still work out some ideas here and then run them by him.

For example, if this is true:

Maybe this is the first part of your strategy, where her new L and your L spell out clearly how much money she will not be getting.

Is that likely to mean anything to her?

I interviewed a second L yesterday. He was more direct. He doesn't think I will get much reduction in support, simply because he believes that court will not acknowledge payments I have made since March 2017 as maintenance payments because there is no decree entered. Also, that I ended up with the lower end of the range monthly support (one of the few things I was successful at in collaborative) but for 1-2 year longer duration than normal (ultimately a big win for xw). He believes duration could go down, but payment may go up. Conversely, he recommended that I don't withhold payments at this time, even though she is not financially insolvent with the equity sale of the home because judge may order higher payments. He said court likes status quo. He thinks I have an uphill battle on custody as well because we have been at 50/50 since April and court likes status quo. Basically, he echoed this groups understanding of how courts worked. He did provide specific strategies for the likelihood that divorce will not finalize until 2019 after Trump tax laws switch burden of taxes to payer of maintenance v. receiver of maintenance. He basically noted that I should propose reduced maintenance payment based on increased tax burden on my household with new tax code change.

He also felt that the CE would be unlikely to change custody already established unless xw is really giving cause for concern. I will talk to my collab L about that to vet it. I think the only way a CE would have concerns are if they observe her behaviors over a long enough stretch, or she has a stress/dysregulation event. Starting to feel less certain/hopeful that I will end up with majority time. Thoughts?

I will contact the L from second L's firm that I had previously consulted with and probably put her on retainer over the first L I interviewed last week. The first L told me all the things I wanted to believe and hear, but the second L was much more practical and probably realistic. Both Ls agreed that I am so close in collaborative that I should make a big push to try to resolve case there first and foremost.

I feel like I am losing money every month by maintenance not having officially started. If the collab agreement is signed, it pegs the maintenance start date to March 2018 when we met and agreed on amount. If I go to court, maintenance likely won't start until possibly 6-9 months down the road, maybe even a year.

[livednlearned]

Does your ex have anything to lose (or know that she has nothing to lose... .) by not signing the collab agreement?

Is she stable/sharp enough to recognize that not signing it could mean paying for a new lawyer?

[takingandsending]

LnL, last I heard from mutual friends, she has been saying I am a narcissist and she doesn’t agree with signed parent plan - 50% custody for me. Projection and could be hot air but coupled with her odd behavior lately, she appears to be on a power trip which makes me think she is willing to go to court. Not sure but intend to find out in last collab meeting ... .if she will agree to attend

[ForeverDad]

I concluded that my ex was willing to stretch out the legal case in court since she could continue her favorable court order that much longer.

He did provide specific strategies for the likelihood that divorce will not finalize until 2019 after Trump tax laws switch burden of taxes to payer of maintenance v. receiver of maintenance. He basically noted that I should propose reduced maintenance payment based on increased tax burden on my household with new tax code change.

I bet this will cause an uproar when the general public gets wind of this change in law, so far it hasn't garnered much attention in the news.  I recall my own lawyer arranged things so that my ex would get alimony (she had the tax consequences) and less child support (I had the tax consequences).  She probably earned very little and so her taxes even with alimony were low or zero.  This is an issue of Uncle Sam wants as much in taxes as he can get and so didn't like that loophole.

[takingandsending]

ForeverDad, what you describe is how my collab L tried to arranger it. More maintenance which I could deduct, less support which I cannot deduct. But now it is moving to no deduction for either for me. I believe she thinks she is winning by getting this change, but as you surmised, her income would be zero or low taxes if she had to claim maintenance. However she believes she will be making loads of money from her business because she is that good and gifted at life coaching.

[worriedStepmom]

However she believes she will be making loads of money from her business because she is that good and gifted at life coaching.

There aren't enough laughing smilies here... .that's really really funny.

[takingandsending]

Thank you. My life sometimes really is a comic strip. Despite a career in engineering, I really love writing, but is bums me out sometimes that at my most creative, I could never make up half the crazy stuff that I actually live because of my xw. Her capacity to bend reality exceeds my own imagination or writing skills.

[40days_in_desert]

takingandsending - So sorry to hear about the shenaningans your experiencing from your ex. ForeverDad mentioned saving all of the text messages. I want to suggest an app called PhoneView. It saves all of your text messages by conversation to a PDF file. It shows the contact name, number and date/time stamps for each message. It helped me tremendously in my case that was finalized two months ago after three long and expensive three years!

[takingandsending]

Thank you, 40days. I will try that app today. It appears that I am heading in the direction of court litigation.

[40days_in_desert]

If you asked me four months ago, I would have sworn that I would have been part of the 5% that ended up in court in front of a judge to finalize our divorce. I was split white in the beginning of June so she agreed to most of the things I was asking for. Two days before a scheduled (required) judicial settlement conference. She has tried to retract/change things since but it's in writing, she can't.
 

[ForeverDad]

For those who are pondering divorce or whose divorces may not be final this year, 2019 is a game changer on how we strategize regarding alimony.  You may want to consult a tax law attorney for guidance.

I had heard references to a change in alimony tax liability, I've just looked it up.  Divorces after 2018 (I believe the key event is to "final decrees" or when the divorce is final) will be treated similar to child support where the payer also has the tax liability.  This is a reversal of existing laws in the USA.  This is on Kiplinger:

Under the New Tax Law, Is My Alimony Tax-Free?

For divorces after December 31, 2018, alimony payments are no longer deductible nor must the recipient declare the amount as taxable income.

The new policy goes into effect in 2019. Older divorces can be modified to follow the new rules—if both parties agree.

Essentially, alimony and child support will henceforth have the same behaviors, the payer can't deduct it anymore starting with divorces completed next year.  This is a huge change to us here.  Our divorces often drain our financial resources and reserves.  Having the generally lower-income recipient pay the tax liability reduced what was due in taxes and so the loser was generally the government who got less tax or none.  I figure that's why that alimony perk is ending, the tax man wants his money.  Not to worry, those with alimony already in force are grandfathered in to the prior policy.

I believe this will impact our strategies in divorce negotiations.  No longer will alimony be a way to negotiate an agreement to pay less child support in order to lessen the tax burden.

In the past, as in my case for example, we agreed to alimony rather than child support for the first 3 years post-divorce.  It reduced my tax liabilities and since my ex was earning next to nothing in those years she didn't get dinged on taxes either.  However, my lawyer warned me that at any time she could still ask for CS.  To address that risk, our settlement included a clause that if she sought CS during the span of alimony then the alimony would be reassessed lower.  Fortunately she didn't seek CS until alimony ended.

I looked at IRS Topic 452 for Alimony and it is not updated for the recent tax law change.

[takingandsending]

Another strange drop off last night.

Had a great mid-week visit with my S7 (S12 is on a school camping field trip ... .lucky duck). He was in  a really good mood, silly and having fun but also doing his chores and practicing his viola. Our visits extend from school pick up to 7:30 p.m. when we drop off with custodial parent.

Still, S7 said 50/50 schedule wasn't working, but he could not put words to why it is not working. I validated that it is hard to go back and forth between houses, and it can be confusing and upsetting and hard to keep the schedule straight. I let him know that we can keep looking for ways that make it easier. I think he is being coached by his mom.

Drop off occurred at a former neighbor's house near the home we just sold in June. The neighbor hadn't seen me since May, was civil but not as friendly as normal. Xw was not at the house. Hard to shake the feeling that xw is painting me as being some kind of a threat.

[worriedStepmom]

My S9 also tells me all the time that he doesn't like the schedule (that we've been using for years), but he can't verbalize why.

I think he just misses his dad when he's here and misses me when he's with his dad.  Could that be your son's problem, too?

[takingandsending]

worriedStepmom,

It is definitely possible. I have previously suggested a 2-2-3 ( with alternate long weekends) schedule to make that easier. We opted for mid-week visit. I think I may have introduced one source of stress for my sons. They have had little screen time growing up - no TV, occasional kids video, no video games.

When I moved out, my S12 had friends in school who were playing phone app games like Clash Royal or similar relatively benign stuff. I let him use my phone to play for about 20 minutes per day on non-school nights. Over time, S7 saw and wanted to do what big brother was doing. I used to set a timer and give them both 20 minutes. Eventually, due to fights over one device, who got to go first last time, sharing same games, I decided to buy them their own Kindle Fire for Kids, where I set the time limits and control content. So, their time is at 90 minutes per day on non-school nights, and I allow them 15 minutes on school nights after strings practice, chores and homework is done; also shut down has to be at least half an hour before we start bedtime routine. S7 is definitely obsessed with his game time on the device. I am worried that the screen time is having some effect on his patience, focus and awareness of his behavior even though I know both boys usage is quite low compared to peers their age. The bigger stress may come from one household where screen time is used under prescribed constraints and one where screen time is not allowed at all except by whim of their mom. I've told them they can talk about their screen time at their moms, and I am okay with that, but I think both boys don't because they're afraid of their mom's reaction. I think this is inherently stressful for them, especially S7.

Now add to that scenario the constraints mom is putting on the boys re. not saying ANYTHING about their living arrangements. I think they are feeling the burden of my xw and I not being able to speak at all lately about anything. Xw is often asking them to be go between for checks, conveying information that we could discuss between us and sometimes relaying unilateral decisions she has made about things that I have asked to be joint discussions. All in all, they are going through that pressure cooker, and I really am at a loss how I can help them beyond validating how crummy it is for them.

So, I don't think it's the schedule as much as all the baggage the kids carry for their parents' poor communications right now.

[worriedStepmom]

We also have screen time stress - dad allows it pretty much all the time, and I don't allow it on school nights for S9, because, like your son, his behavior is often impacted negatively. D12 earned some screen time on school nights because she's proven she won't abuse it.

I think listening and validating them is all that you can do, especially since mom seems unlikely to cooperate to take those burdens off them.  We have coached SD11 to tell her uBPDmom that SD is not to be the messenger for custody questions/answers - if mom wants to change the pickup time, mom needs to call dad, not SD.  Let's just say that did not go over well with uBPDmom, but SD is holding firm, so mom is tapering off some of that.