Legal maneuvers in divorce case ... fighting over who gets the home

[VIDEO: "What is parental alienation?"]

Well, for the first time in 15 months, there has been movement, albeit pretty darn tiny, on the divorce.

1) FIL wants to evict me from the marital home by bypassing family court and filing with local magistrate. Good for our side: My L, my friends, and I are friends with the magistrate, and it's not that the magistrate would bend the law, rather the law would be upheld. There can be no action outside the family law court when there is a divorce pending. I'm thinking FIL had hoped to file with someone who didn't know about the divorce, and the thing is, eviction can happen in 30 days, and the family court is backed up 60 to 90 days.

2) FIL wants the marriage annulled, maintaining my STBX was not of sound mind when he married me. Good for our side: I have emails one year into the marriage in which my FIL tells STBX that there is nothing wrong with him except emotional upheaval as a result of childhood issues. In addition, I have emails 2 years into the marriage attesting to his state of mind from doctors.

3) Best thing ever? I am so much better when I know what people (FIL) are saying about me because that way I know how to fight.

4) Not so good. I won't be getting the marital home. Okay stuff: I'm taking the doors and all the rest that were gifts to me.

Movement!

TMD

[toomanydogs]

Well, for the first time in 15 months, there has been movement, albeit pretty darn tiny, on the divorce.

1) FIL wants to evict me from the marital home by bypassing family court and filing with local magistrate. Good for our side: My L, my friends, and I are friends with the magistrate, and it's not that the magistrate would bend the law, rather the law would be upheld. There can be no action outside the family law court when there is a divorce pending. I'm thinking FIL had hoped to file with someone who didn't know about the divorce, and the thing is, eviction can happen in 30 days, and the family court is backed up 60 to 90 days.

2) FIL wants the marriage annulled, maintaining my STBX was not of sound mind when he married me. Good for our side: I have emails one year into the marriage in which my FIL tells STBX that there is nothing wrong with him except emotional upheaval as a result of childhood issues. In addition, I have emails 2 years into the marriage attesting to his state of mind from doctors.

3) Best thing ever? I am so much better when I know what people (FIL) are saying about me because that way I know how to fight.

4) Not so good. I won't be getting the marital home. Okay stuff: I'm taking the doors and all the rest that were gifts to me.

Movement!

TMD

[CryWolf]

Hey how are things going since last posting?

[toomanydogs]

Hi CW,
   It's been about a week since I posted about the legal maneuvers. What's been going on since is my L and I have been bandying dollar figures back and forth.
    I saw a financial advisor this past week, and I now have a better idea of what kind of settlement I need to maintain a standard of living relatively close to what I'd been living. The advisor explained annuities and investing in the stock market, neither of which I knew anything about.
  One area that's been a point of contention concerns the animals I have. My L has told me on 3 separate occasions that I should consider giving them to a no-kill shelter (including my chickens) and then asking my FIL for a donation to the shelter.
  Finally, my mind cleared, and I told her that the animals are a nonissue. What is the issue is whether or not I should be able to stay in the village where I've lived the past 12 years. I am in my 60s. I don't make close friends easily; it took me 6 years to establish a life here, and if I'm forced to move from here because I don't get the marital home, and my STBX and FIL don't provide the funds with which I can buy a new residence here, it would take me another 6 years to establish myself elsewhere.
  We have a one-acre minimum where I life, and with funding, I'd buy here, and the animals cease to be an issue.
  So that's where I'm at. I'm guessing there will be movement this week. My FIL doesn't want to go through discovery, so I'm guessing he'll make an offer.
  My L gave me a range of what FIL's lawyers think FIL will settle for. Won't be enough to buy a house, so I wouldn't settle for that. At this point, after all I've been through the past 15 months, I need a fair settlement. And I don't think forcing me out of my home and my village, with my social support, is fair. I'm willing to fight for that.
  Thanks for asking,
TMD

[flourdust]

Thanks for the update! You should certainly be assertive to try to get the best settlement you can. My experience with divorce court is that they believe both sides should end up with a survivable standard of living, but not the one they were used to before the divorce. Having to move as a result of the change in living standards is pretty typical. Sorry to be the bearer of bad news!

[formflier]

Well... .you still "may" end up with the home in a final settlement.

I would say your L can handle the "eviction" issue... .it's a tactic.  I can't imagine you can be evicted without a settlement in divorce.

I'm glad you saw the advisor... .yes to annuities... .!

Listen... .just because FIL doesn't want to do discovery... .you  can force it.  That should help you get a better offer.

Didn't the temp settlement cover you being in the home?

FF

[toomanydogs]

Hey FF,
  Good to hear from you. How are you?
   Yes, the eviction thing is to rattle me, in my opinion.
   And I also agree that I may very well end up with the house. Pretty certain the pool is now broken. My opinion? They should have believed me back in May when I told them that the pool needed help, and they should have given me money to fix it. It's below freezing, and the thing hasn't been closed for winter, and the pump isn't working, so the water isn't moving through the pipes.
  Seeing the advisor was awesome because I now know how much I need in a settlement to maintain a standard of living close to what I had when I was married.
  Interesting side note (at least to me): Maybe 5 months ago, my L told me FIL was eager to hurry up and get everything moving and signed because STBX wasn't doing well. Last week, L told me STBX was "all better," which was why he wanted the marriage annulled--because he hadn't been of sound mind when he married. Two days later, L told me that STBX's L is having a lot of difficulty working with STBX as he isn't cooperating.
  I keep looking at this, FF, and shaking my head. My FIL could have prevented this divorce if he'd only believed me when I told him my STBX thought I was stealing from him. All FIL had to do was reallocate the money. Still shaking my head.
  Now, it's been so long, and FIL has been so horrible that I just want to be as far away as possible from all of them.
  Yes, an annuity sounds like it might be a good idea. I will check with my other advisor as she had cautioned against them.
Hope you're good,   
TMD

[formflier]

I'm not saying that all or even most of your $$ should be in annuities... .but they should be part of your plan.

There may be tax benefits of them getting you an annuity... .vice giving you the money and YOU buying  it.

You need an tax CPA involved in this to look at all angles... before the settlement.

Hopefully this can come to you as marital property and be tax free.  You don't want to get a massive settlement and then have it taxed.

Big... big differences here.

FF

[GaGrl]

Absolutely... .you need a tax expert in addition to a financial advisor.

Keep in mind that a financial advisor makes a hefty commission off an annuity (versus other instruments), so take that into consideration.

[formflier]

Absolutely... .you need a tax expert in addition to a financial advisor.

Keep in mind that a financial advisor makes a hefty commission off an annuity (versus other instruments), so take that into consideration.

Oh... .yeah... .I'm hoping you are paying your advisor separately... and not buying from that person.

You need an advisor... .not a salesperson.

FF

[toomanydogs]

Thanks for the update! You should certainly be assertive to try to get the best settlement you can. My experience with divorce court is that they believe both sides should end up with a survivable standard of living, but not the one they were used to before the divorce. Having to move as a result of the change in living standards is pretty typical. Sorry to be the bearer of bad news!

If I have to move out of the marital home, I get it. My FIL is a 

Even if I were to end up with my original dollar figure that I requested, my STBX's standard of living would have absolutely no change. I requested 15% of what he's worth. That's why I keep coming back to what seems reasonable. You know?
It doesn't seem reasonable that I should have to have such a drastic fall from my standard of living and my STBX nothing.
I'll post as I receive new info.
TMD

[toomanydogs]

Hi gagrl & FF,
  The financial advisor was through my bank--no charge to talk with him. I have a friend out of state, whose wife does financial management for friends & family. I'd ask her.
  And I do have a CPA, who has told me not to sign the divorce decree until after January 1. Tax laws change making alimony not taxable.
Thanks   
TMD

[formflier]

Hi gagrl & FF,
  The financial advisor was through my bank--no charge to talk with him. I have a friend out of state, whose wife does financial management for friends & family. I'd ask her.
  And I do have a CPA, who has told me not to sign the divorce decree until after January 1. Tax laws change making alimony not taxable.
Thanks   
TMD

OK... .this is pretty good. 

Make sure that your CPA is part of your "posse of professionals" that will review and advise on a settlement before any agreement (and certainly before signing) is agreed upon.

Ask your CPA for help with a "fee based financial planner" (someone that can educate you without selling you something)

Banks are ok... .but they still want to make money.

FF

[flourdust]

It doesn't seem reasonable that I should have to have such a drastic fall from my standard of living and my STBX nothing.

I hope you're right ... .but it's valuable to remember that the standard of the law is what applies, not what seems reasonable to a layperson. It sounds like you're STBX has a lot of assets from inheritance or family trust or something similar ... .if so, those aren't typically considered marital property and they are not on the table when you are dividing up assets. So, you both might get 50% of what is jointly yours ... .but he still has a lot more than you because his family's property stays with him.

[formflier]

It really depends on the state. 

Part of discovery should be the value of these things prior to the marriage and the change in value over the course of the marriage. 

The change in value over the course of the marriage is clearly a "marital assert"... .I can't imagine any state denying that.

There is also the issue of the prenup that appears to be fraudulent due to state law and perhaps some ethical issues.  I would consider that a separate issue, even though it might be settled in the same settlement.

They clearly want this to remain a private matter... .use that to your advantage.

FF

[ForeverDad]

Timing is also a factor.  Imagine if this had been occurring in 2007, you thought you were well situated and then 2008 came and there was this yearlong downturn, things didn't start to turn around until March 2009 (stock market bottomed) and later.

Right now we're a little off the top of a decade long bull market.  Does it have legs to continue, did it already hit its peak or is there maybe another year to go?  No one can say for sure.  But most do think there will be a Day of Reckoning (sooner than later) before it rises again.  Will annuities be best?  It might depend on whether we get inflation or deflation.  The market?  Something else?  What I'm saying is that 'standard' investments may or may not work better than others.  I'm of a mind not to commit myself to putting all my eggs in one basket.  Ponder a bit of diversification.

I do encourage you to ensure that any settlement, when completed, has all strings to ex's family cut and ended.  You don't want them in your lives longer than necessary.

[toomanydogs]

I do encourage you to ensure that any settlement, when completed, has all strings to ex's family cut and ended.  You don't want them in your lives longer than necessary.

Totally agree. What I've told my L is that in order of importance, I need: 1) to be as far away from my STBX and his family as possible; 2) a place for my animals and me; 3) enough to live on.

I had at one time thought a life estate would be okay. It wouldn't. I don't trust my FIL do behave honorably.

TMD

[toomanydogs]

It really depends on the state. 

There is also the issue of the prenup that appears to be fraudulent due to state law and perhaps some ethical issues.  I would consider that a separate issue, even though it might be settled in the same settlement.

They clearly want this to remain a private matter... .use that to your advantage.

FF

Hey FF,
  According to my L, I'm on pretty solid ground regarding some sort of relatively generous settlement.
  And I agree, I do think my FIL would prefer this to be kept quiet, and I will use that to my advantage.
 It's afternoon here, and I'm kind of tired. When I get tired, I start obsessing, and between you and me, I just wish my FIL would make a counter offer. It's been 16 months. I've made an offer, but nobody ever got back to me. I know my FIL and his negotiating style, and this is definitely his style. I suspect he's waiting for me to make another offer that he can respond to, but I'm not doing that. It is his turn.
TMD

[ForeverDad]

I just wish my FIL would make a counter offer. It's been 16 months. I've made an offer, but nobody ever got back to me. I know my FIL and his negotiating style, and this is definitely his style. I suspect he's waiting for me to make another offer that he can respond to, but I'm not doing that. It is his turn.

Countering your own offer is counterproductive.  Good that you recognize that.

[formflier]

Countering your own offer is counterproductive.  Good that you recognize that.

Unless you make it worse.  Which you should discuss with your L.

Example numbers

Let's say you asking for $100 a long time ago.  Now you have time and expense rolled into this.

So you ask for $120 and attorney expenses.  Send this at same time you send your demand for discovery... especially if it's for stuff you know they don't want.  

Basically... they are trying to evict you... they are pouring fuel in.  Show them you have a bigger gas can.  Remember... .they are the Billy Goat.  You are the troll under the bridge.  Show them you have big teeth... .and are ready to prove it to them!

The closer you get to actually going to court... .the "cost" of settlement should go up.  This assumes your case gets better and better through discovery.

FF  

[flourdust]

The change in value over the course of the marriage is clearly a "marital assert"... .I can't imagine any state denying that.

Off the top of my head, Florida and Minnesota. I'm sure there are others. Remind me ... .have you been through a divorce?

[formflier]

Off the top of my head, Florida and Minnesota. I'm sure there are others. Remind me ... .have you been through a divorce?

No... but I have prepped for them in many different states and had to understand how moving from state to state would affect a case... .should it appear.  It's shocking the differences... .or I should likely say it's shocking how each state "interprets" the same principle.

Also had several buddies go through this in other states. 

FF

[flourdust]

You've prepped for your own divorce in several different states?

[formflier]

You've prepped for your own divorce in several different states?

Yes... .so that I could understand what threats were "real" and what threats were not. 

Once I understood the reality of the situation... .it was one of the things that helped me relax, since I knew exactly what I would do if (fill in the blank threat) actually happened.

One of the downsides of my last move is the laws are somewhat less favorable to me (males).  It is what it is and there were upsides to the move.

FF

[toomanydogs]

So you ask for $120 and attorney expenses.  Send this at same time you send your demand for discovery... especially if it's for stuff you know they don't want.  

Basically... they are trying to evict you... they are pouring fuel in.  Show them you have a bigger gas can.  Remember... .they are the Billy Goat.  You are the troll under the bridge.  Show them you have big teeth... .and are ready to prove it to them!

The closer you get to actually going to court... .the "cost" of settlement should go up. 

FF  

I had been thinking of revising my last offer because I need to be sure I ask for 1. All legal fees. 2. Moving expenses. (I'm too old and my stuff to move by myself.) 3. A reasonable time to move out. 4. My car, which is titled to my STBX OR me.

I love that I'm a troll. Thanks for that image.
 
TMD

[toomanydogs]

Yes... .so that I could understand what threats were "real" and what threats were not. 

Once I understood the reality of the situation... .it was one of the things that helped me relax, since I knew exactly what I would do if (fill in the blank threat) actually happened.

One of the downsides of my last move is the laws are somewhat less favorable to me (males).  It is what it is and there were upsides to the move.

FF

I've familiarized myself with the rules in my state, and they tend to be favorable to the spouse with less money. The legal justification is that the state does not want one of the spouses becoming a ward of the state.

In addition, there is wording in the statute that the marital standard of living is to be maintained as close as possible, provided it does not have a negative impact on the spouse paying support

Now if I can just get through day by day, I'll be all right. Between you and me, however, sometimes that's hard. That admission aside, I think I'm doing all I can to hunker down and just simply wait FIL out. I know his negotiation style and this is it. Make no offer, make no attempt to counter offer. I saw it when we bought the house.

I'm pretty happy today.  

Thanks again for the troll image. God knows I'm short enough.
 
TMD

[ForeverDad]

Typically there is a huge difference between court costs (generally low and comparatively reasonable) and legal fees (to pay the pricey lawyers, evaluators, forensic accountants aka Special Masters, etc).  You may need to have your terms "all legal fees" to list some of the obvious high bills to ensure they don't try to weasel out of them afterward.

[toomanydogs]

Typically there is a huge difference between court costs (generally low and comparatively reasonable) and legal fees (to pay the pricey lawyers, evaluators, forensic accountants aka Special Masters, etc).  You may need to have your terms "all legal fees" to list some of the obvious high bills to ensure they don't try to weasel out of them afterward.

Thanks, ForeverDad,
  I was just thinking of legal fees. My L copied me on a letter she sent FIL's lawyers regarding getting paid. They haven't paid my L in a few months. My L gave them a date that the fees needed to be paid or we'd need to file a motion with the court and that would mean settlement would be delayed.
  The other thing I was thinking about was that I need to specify that I'm taking the furnishings here--couches, tables, and the like.
  Finally, I'm really happy I saw a financial advisor because I realize that it's beneficial to opt for a lump sum settlement as opposed to lifelong alimony. I kept taking the dollar figure L mentioned and divided it into 30 years, and it wasn't enough. Now I realize that I would invest it, so I'd be living more on the return.
  This has been an emotional day for me. I guess it's to be expected. I feel sad. Mostly because none of this--the divorce, the acrimony--never needed to happen. Thirteen months ago, I contacted my FIL told him I was too old and too exhausted to fight, and I'd try to keep everything as amicable as possible. In response, he cut me totally off. No funds at all for six months.
  It didn't have to be like this.
TMD

[Harri]

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