UPDATE Re: gearing up for custody/support battle

[mt grl]

Well, we are several months into the custody modification process and here is where we stand. My DH filed for the modification due to UDBPDx having moved 5 times in one year to various random states, living with long lost relatives so she didn't have to pay rent. The current order states that Dh has kids during the school year with ex getting them alternating weekends and for the entire summer. We are trying to eliminate alternate weekends and limit summer visitation to 4 weeks. At the beginning of the school year she moved back to our state, but 2.5 hours away to be with her new boyfriend. The kids want to spend summers here with us and their friends, and they have too many sport events on weekends that she will not take them to on "her time".

This change would eliminate CS for her, and she would actually owe DH. She has not had a job since the divorce 5 years ago & was never capable of holding a job for more than 6 months when they were married. So she was livid at the court filing. Her attorney has advised her to exercise all visitation (normally she will cancel weekend visits at the last minute because of "illness" or whatever), so she has been taking them on her weekends.

We filed our discovery request after Thanksgiving. There are lots of uncomfortable questions in there that she will be required to answer because she lies about everything, so she will have to admit many truths that show what a bad parent she is. As soon as she received the request she asked my DH to make a settlement offer. He responded with pretty much what was in the motion, but offered to waive her CS requirement. She responded out of anger (because she felt this was unreasonable) to keep everything as is. So he didn't respond.

Her response to discovery is due Monday. She has called several times asking for a new settlement offer, which we have typed up but haven't sent. I think it's important to get her responses to discovery first so that they are part of the court record, because I don't think she will accept the settlement anyway. Then she called on New Year's Eve in tears because her boyfriend is moving to another state at least 10 hours away. Yes! She was supposed to have the kids this weekend but wants to go with her BF to help him move. She asked my DH if he was going to use this against her in court because he likes to make her look like a bad parent... . i always love that. She can't see that she is a bad parent for abandoning her kids for various men, rather it's my DH that is making her look bad.

So I think we should hold off on any settlement at this point. She won't be able to stay in her current town because there is nothing there for her, only her BF, so she will no doubt move with him. Our whole argument is that she is unstable and unable to provide a stable home for the boys, and she will only help our case by moving. he thinks he should take advantage of her wanting to settle. What do you guys think or what has your experience been? Am I wrong in wanting her instability documented in court?

[ForeverDad]

While courts prefer settlements, I don't know what she would settle for?  What was her counter-offer?  Likely your DH shouldn't bend too much on the settlement terms.  If she doesn't earn much, then her CS payment to him would be minimal anyway and it's okay for him to waive it.  Getting the majority time on the record and fixing the current issues is what's important.  She may be focusing on the financial issues, so let her sabotage herself.

While his ex may feel under pressure to either comply with the discovery request or settle, there may be few consequences from the court if she's late or ignores the discovery.  ( Of course, don't tell her that! )  Actually, a decent settlement is likely only when the disordered ex feels less entitled and feels there are no options left.

So don't settle unless it is mostly what he feels is right.  A minor improvement is not worth 'gifting' her a settlement.

Regarding discovery, my entitled ex - and her lawyer - ignored our discovery request.  Her lawyer had previously sent their discovery request which I complied with, sending some 600 pages.  Imagine that, 600 versus 0.  Boy, was my lawyer fuming about all that make-work!

[mt grl]

Her counter offer was to keep everything exactly as it currently is. Actually it would give her an extra week of visitation. My Dh's new offer is to give 6 weeks in summer instead of 4, and 1 weekend per month during schoo year instead of none. I agree that he shouldn't settle, especially with her about to move again. But I have to resist the urge to tell him how to handle it for the sake of our marriage. It is extremely difficult because it has a huge impact on my life.

She has already asked for a 2 week extension on her discovery. She should have turned it in before Christmas. If she ignores it, our attorney will file an intent to take default judgement so it is in her best interest to respond.

[ForeverDad]

Why 6 weeks in the summer?  Why not just 5 if he must give more?  In my area there's only 11 weeks for the summer break from school, so 6 would be giving her the majority of the summer.  (And others have said that we need to have our kids scheduled back at least a week before school begins again so that we have time for court action in case the kids don't come back when expected for school.)

If there are going to be scheduled monthly (or whatever) visits, then he needs to be sure she bears half the transportation expense or obligations.  He shouldn't do most/all driving or transportation costs, especially for the weekend visits.  If they're scheduled to meet halfway, then he needs prior confirmation at least X days in advance that she will be there so he doesn't drive out with kids for nothing.

I'm figuring that no matter what he offers next she'll still try to wrangle and hold out for more a few more times.  She expects him to be reasonable, she expects him to always offer something more.  Where does it end?  What would he lose if he just said, No, that's my last offer, do you take it or leave it?  (Sure sounds like Firm Boundary Setting, right?)  She might take it, she might not, won't know unless he tries it.)

She has already asked for a 2 week extension on her discovery. She should have turned it in before Christmas. If she ignores it, our attorney will file an intent to take default judgement so it is in her best interest to respond.

Good.  At some point you have to say enough is enough.  Which is good reason not to (1) counter your own offers or (2) make open-ended offers.

[Nope]

She will likely not seriously consider any offers until the 11th hour.Until then she will probably expect her silence to generate progressively better offers from your DH. If It were me I would just table any settlement discussions and let her L bring it up again the day before court. Otherwise you'll just be wasting money to argue yourselves out of your best position while all she has to do is sit back and do nothing.

[livednlearned]

Don't settle. I'm with you -- go for what is best for the kids, and stick with the original offer. Did you make a sweeter offer than you wanted to settle for? Or is the original offer what you want to negotiate down to?

N/BPDx husband was a trial attorney. He would talk about how people negotiate with themselves during stressful deals, and that made his job easy. All he would do is stonewall or not respond, and people would automatically start offering better deals. It's a strategy! I'm not saying your H's BPDex is doing it knowingly, (although who knows, maybe her L is coaching her) but it's having the same effect, exactly what Nope is saying about using silence to get the best deal from you.

Like FD said, this is boundary setting at its finest. If you want to hedge on anything, let it be CS or something you can live with, like transportation etc.

But I have to resist the urge to tell him how to handle it for the sake of our marriage. It is extremely difficult because it has a huge impact on my life.

This is really tough -- it's one of the hardest positions to be in. Can you point out the negotiation tactic in play, instead of focusing on the BPD dynamic? Meaning, instead of focusing on what she is doing, let him know that silence and deadlines are a way Ls get people to negotiate with themselves?

Also, keep in mind that HE can settle at the last minute too. That would not be my recommendation -- it seems like the two of you are in a fairly good negotiating position.

[mt grl]

This is what makes it so hard to be in the passenger seat on this legal battle, because I agree with all of you that he should not settle or at least not give up any ground at this point. He has serious issues with boundaries and this is what causes our fights, because I try to tell him that he has to set boundaries and as soon as she pushes back just a smidge he gives in. And his attorney, while competent, seems to steer him to giving in on a lot of points and my DH has told me that he will listen to his L. Ahhh!

Her L called our L on Friday and said she agrees to everything except the clause that says if she moves again, then my DH's initial filing which gives her only 4 weeks in summer and no weekends at all during school year will take over. She wanted it changed to read that if she relocates further away than she currently is because she wants to move an hour closer now. Our point is that it's not the distance, but the fact that these kids have a new :"home" every few months with her. We're pretty sure she is moving into her parents' basement, which means that the boys won't have a bedroom & all 3 of them will sleep together in the basement on a pullout couch. And that living arrangement will only last for a few months max.

Which reinforces my "don't settle" stance, because her moving just helps our case. But my DH wants it to be over, so I'm guessing he will settle. He is supposed to get her offer today. Her responses to our discovery are due tomorrow. I believe this is her 11th hour settlement because she doesn't want to file her responses. Hopefully he will run it by me before he signs anything.

[Nope]

If it were me, and the last sticking point was that one clause, I'd say that if she moves any further away than the hour closer she is moving then it kicks in. Unless you have lots of documentation and really believe that you can get a better deal from the judge, it can pay to settle. If you do end up back in court later, a judge may be more inclined to hold her to her own agreement than something that is ordered. I.e. "You agreed that your parenting time would automatically be reduced if you moved more than X miles from the children's primary residence. So now that is the new arrangement."