Can't get him to suggest settlement - he filed 1st

[sad but wiser]

My soon to be x BPDh filed for a legal separation 5 months ago.  I responded with a request for a dissolution and named/valued the bulk of our property on my paperwork.  He insists my estimates are way off (I got the estimates from local newspapers, local sales magazines and the internet) but has failed to give his evaluation of what our property is worth in writing or to give me a written statement of what he wants by way of a settlement, even though he has agreed to do so numerous times.  We had a prelim hearing at the end of January and he seems perfectly content to just let things ride.  I am not so content.  I want to know what community property I am keeping and what property is being sold.  I need to know how much I will be paying in spousal support on a regular basis and be able to establish my personal property as mine in court.  The house needs maintenance, but I don't want to put money into it until the court has determined whether or not I'm keeping it.  There is negative equity, so it doesn't make much sense to sell it at this time.  How can I get him to stop dragging his feet?  My attorney makes 10 times the amount of money per hour that I do, so I don't call him unless I have specific questions and I never email him now - it costs too much!

[marbleloser]

I think for this step,you need to hire an appraiser,so that you and your X aren't placing the value on assets.

They'll come in and inventory the assets and assign the value to them.Then you split the assets.If he wants something,he'll have to pay you half of the value,and you'd do the same.

I would imagine that since the home has negative equity that the court may order the sale and you each split the debt if that can't be resolved between the two of you.Also,the court may order that the needed repairs be made to the home in order for it to be marketable.If you can get him to agree otherwise,I'd do it.

[ForeverDad]

Marbleloser wrote well.  Keep in mind that even with an appraiser, he still may not agree, it may still have to go to court.  Or better said, walking into court for the judge to decide.  Many of us find that settlements happen in the last hours and days beforehand, that is, "on the court house steps".  A realistic settlement doesn't happen until there are no more delay options left and no other choice.  My settlement (assets, debts and custody) happened as I walked into the court house on Trial Day after a divorce process that took 2 years.  For that reason, do all you can to move things along.  If he or his lawyer want delays to have time to make or consider an offer, tell them to do it but the hearing date won't budge.  Yes, they generally can get a few continuances from the judge, but not too many, and your lawyer doesn't have to agree to delay.

Since custody is not an issue, it's all about material assets and support if any.  Doesn't he work?  If he doesn't then your position ought to be that any support for him should be short term and he should find a job ASAP or at least immediately start with job training or career education.  Don't leave it open ended either, set firm limits, a couple years max, and not a 2 year course that morphs into extra years.

These days most states don't even ask who's at fault for the marriage's demise.  In most cases you don't want to claim or even hint he's 'handicapped' or 'disabled' by a mental illness or personality problem.  Maybe it's okay to call him a bum or whatever, but not ill or mentally ill or in any way incapable of work.  Even if his behaviors eventually caused the end of the marriage, that doesn't mean he can't work.  Besides a long marriage and you earning much more than him, mental illness or disability is just about the only way long term support is possibly ordered.

[sad but wiser]

 Thanks for your replies.  Yes, I live in a no-fault state.  No, he doesn't work and hasn't worked regularly since a few months after we were married.  He has a 4-year business degree and several other job skills that could have been making money for the family all along.  He likes training, but not working.  I think he is hoping for a few years more of no responsibility.  I don't make all that much, in spite of my degree, so paying an appraiser isn't very appealing. 

There is no equity or money to make the needed repairs on the home.  It would all by DYI.  If my ex had a "share" of the community debt, the court would just have to raise my spousal support payments to pay it.  A real lose, lose for me.  I want to stay in the family home.  Every payment was made through my work, and I could refinance the remainder of the mortgage in my name.  He could not do the same.  Besides, I paid off a second with inheritance money and I would lose that if the house sold because the equity has gone down below the purchase price.  My house payments are about the same as rent around here.  Why keep the house?  Because I would just have to spend the same money in rent if it were sold, and I would still be in debt.  Moving would also cost money, so this makes no sense to me.

[marbleloser]

If you want the home,agree to assume all of the negative equity,otherwise the court will probably force a sale.

As for spousal support,if he's able bodied and capable of working,there is NO reason you should have to support him.Barring mental illness or disability,he can work.He just chooses not to.You can present tax records of his past earning capabilites and at the least impute his income to minimum wage,but I'd have it imputed to what he is "capable" of making.Use his 4 year degree to establish what he could be making if he were working.What do others with a 4 year degree make in your area?

As far as the court is concerned,community debt and community assets are to be equally divided.I'm pretty sure they aren't going to make you pay more support in order to cover his debt.What might happen is they agree to you paying spousal support,but he has to turn around and give it back to cover his debt.Even IF you somehow are forced to provide spousal,get it set up to where he HAS to get a job.Agree to 2 years maximum and have it set it stone that that's IT! After that,he's on his own.

I'd fight the spousal though.Make him prove he is incapable of working.

[sad but wiser]

  Thanks marbleloser.  I see your point regarding taking on the negative equity and I would agree to that.  I'm primary on the loan, so I may be able to just have his name removed, but a refi would probably get me a much lower rate anyway. 

  The court has already awarded him temporary spousal support because he wasn't working.  He was supposed to be setting up a business, but some other barrier was always in the way... . on the other hand, there are quite a few assets that were purchased for this "business."  These assets present compelling evidence that he WAS setting up a business, or at least planning to, or saying he was planning to.

   He is trying to figure out what he can say that will get him supported forever by someone.  Preferably me, but government funding would work too.  Anything to not have to work.  I cannot get the court to cut spousal support in my state, because we were married for 20 years.  (Yes, I know, I was pretty crazy to put up with it that long, but we had two kids by the time I really understood that there was something seriously wrong, and when I said, "I do," I meant it.)   If he remarries or moves in with a new girlfriend, the spousal support stops - that is the law. 

  I can, however, get the court to order that he be actively seeking employment in order to get spousal support.   If I want to deal with the "capability" issue, I may find myself paying for retraining and I certainly would need to have a vocational evaluation done.  Neither of these appeal.  Since he can blow an interview in a heartbeat, I don't know that ordering him to actively seek employment will work.  Imputing his income at minimum wage wouldn't be too bad.  Then he would have no excuse or whining.  Surely a man with a 4 year degree could make minimum wage, right?   I believe that the financial pressure of not having as much money as he wants to spend would eventually make him decide to look for work.   If it is his decision, he is more likely to follow through.

[Matt]

There is no reason one party should make the proposal, or the other.  Either party can make a proposal.  So if you want things to move forward, you need to consider all the factors, as Marble and FD have suggested - and any others you can think of - and make a proposal which you think is fair and complete.

Get all the information you need, like an appraisal, etc., and figure out a way to divide things up that is "equitable" and practical.  Gather any supporting information you can, like if you value something at $100 because you found an identical one for sale at that price, include that documentation.

Show all your calculations and be prepared to explain them.  List each of the issues with your proposal.

Let your lawyer check it but do as much of it you can yourself, to save cost.  Then have him submit it to the other attorney as a formal proposal.  Make sure there is a time limit, like if you send it to them Friday 3/29 you could say it's valid through Friday 4/5 (one week) or so.

Then it's up to the other side to either accept your proposal, or reject it, or make a counter-offer.  If they are rational and want to settle, they will probably start with your proposal, and change some things, and send it back as a counter-proposal within your time-frame.  (Or they could always ask you for a couple more days if they need it.)  If they don't reply at all, or if they reject your proposal and don't make a helpful counter-proposal, then they aren't serious about settling and you need to proceed to trial.

Whatever you do, don't make the mistake lots of us do:  "countering your own proposal".  If the other side doesn't accept your offer, or make a helpful counter-offer, don't make a second offer that is more favorable to them.  That will only lead to them digging in their heels and expecting more and more.  Be prepared to set aside the negotiation, and put your effort into preparing for trial.  When the judge sees that you made a reasonable offer, and the other side didn't respond in kind, you'll be in a strong position to win at trial (and the other side will realize that, and they'll probably come to the table at some point).

[sad but wiser]

Thanks Matt!  My attorney says we will meet in a couple of weeks to see what proposal can be made.  I think I have something worked out, with a few things I don't really want as negotiating room.   I will have it all written out for the attorney.  I had my first paperwork about 80% of the way there for our response, so it really did save time and money.

   Since my ex feels he's entitled to all of the assets, including the inheritance my mom left me, I don't know what his attorney can do with him.  Most of the community assets went to buying tools he said he needed for the business and cars he said he needed.  I suppose that if he won't settle, those can all be sold and the proceeds split 50/50.  That would be a big loss for him, actually.  Then again, if he were smart about things, we wouldn't be getting divorced, right? 

Thanks again!

[Matt]

So the tools might be important to him - something he won't want to lose?

[sad but wiser]

Absolutely Matt.  They are worth about $30K, not that he uses half of them.  He has real hoarder tendencies.

[Matt]

So maybe you give him a proposal that allows him to keep the tools, but let the other side know that if they don't take that proposal, or use it as the basis for a reasonable counter-offer, you're prepared to go to court, and then the tools will have to be sold and the money split.

[sad but wiser]

Thanks Matt. 

That could certainly be a point of leverage.  The problem is, he expects a certain amount of preferential treatment by the court because he doesn't earn any money.  It is a kind of crazy logic.  Since he wouldn't work or do much, the court needs to give him more because he needs more.

  He has been talking to the kids about making me sell items I had before we were married, things I inherited and gifts bought with community property funds during the marriage, even though those are my personal property and not subject to the divorce.  All of these items together don't add up to much cash if they were sold, but they have sentimental value.  He is messing with my head through the kids.  It bothers me because I have to keep reassuring the kids that he cannot have these items and he cannot insist that they be sold as long as I am able to meet my court orders without doing so.

    It is an old trick of his to try to make me feel insecure to get his way.  "If you lose your job, we would be homeless.  Don't get too settled in here, we might have to move if we can't make the payments.  We need to buy an RV and some land in the middle of nowhere in case things go bad here... . "  The first 10 years of marriage, I took him at his word.  After that,  I started thinking, "You're just trying to make me feel insecure."   The more he pulls this stuff, the more I am inclined to say, "Let the court decide."  He would come out pretty badly. 

  I have armed myself with knowledge.

[Matt]

He makes no money:  Talk to your attorney about "imputed" wages.

Imputed wages are what he would be making, based on his education and experience, if he was working.  What education does he have?  How much did he make when he worked?  Are there similar jobs in your area?

When the economy is poor, courts don't always impute wages the same way.  The court may say, "We'll only impute minimum wage."  But you can make the case that he should be working and making $X per week, so alimony and child support should be calculated on that basis.

None of which has anything to do with division of assets.  In most states, assets are divided evenly, regardless of who makes how much.  And family stuff probably will stay with you - don't let that worry you, but carefully document which stuff is family stuff and which you bought during the marriage.

When your kids talk to you about what he's saying, don't go there, just say "Your father and I will work that stuff out.  You don't need to worry about it." or something like that.

[sad but wiser]

Great suggestion with the kids!  My youngest child will be 18 soon, so child support and custody issues are basically off the table. Yea!

   He has a BS in business and could make at least $30,000 to start as an accounting clerk, or he could substitute teach at high school level for $25 -30/hr, 180 days a year.  He has the needed certifications.  He could do tax preparation.  Actually, he could have been doing any number of things for the last 10 years, but he was going to "start a business."

   My attorney left an opening for items that I might not have written down.  It is a daunting task to enumerate every last thing!  Maybe I should just stick with the bigger ones.  He probably won't remember every dish and serving spoon either.

   Since his education and mine are comparable, it seems to me that any spousal support should be temporary or minimal.  Hopefully the court will see it this way too.  I asked how many jobs he has applied for in the 6 1/2 months since we split up.  He said, "I could tell you that... . "  I was thinking - "It's a number."  But actually, zero isn't a number, is it?

[Matt]

Where I live, there is a process called "interrogatories".  Each lawyer writes questions for the opposing party, and you have to answer those questions, and give the requested documents, under penalty of perjury.

So, for example, your lawyer could ask, "Please list companies where you have applied for work since January 1 of this year, and provide documentation including applications, letters, and other documents to support the list."  Then if he gives something back, theoretically those companies could be subpoenaed and asked if he really applied there.  His lawyer will tell him, "You better answer truthfully."  And you and your lawyer can look at what he sends back, and use it to support your case that he hasn't tried to find work and that he is capable of earning as much as you.

I would suggest your lawyer telling the other lawyer, "My client is not prepared to pay any alimony.  If we settle out of court, nobody will pay alimony to anybody.  But if we go to court, we will call him as a witness  and prove he hasn't looked for work, and then when we win, we'll ask the court to make your client pay my fees too, because the fight was unnecessary."

[sad but wiser]

Wow Matt, I like that reply!  You really play hardball.  It is funny, but all of his whining and complaining have really made me lose all sympathy for his situation.  My attorney would be more than happy to go after him that way.  I think I will suggest it.

[DivDad]

Borderlines like chaos.

As mentioned by another post, keep all your court dates.

Don't let YOUR lawyer change them.

Bordelines are timid of judges.

Keep moving forward and keep the judge on your schedule.

Borderlines will not commit to anything until the 11th hour.

It is up to you to keep pushing for the 11th hour.

Most attorney's don't understand Borderlines.

They think reason will win out.

Tell your attorney that you will keep offering information, date, appraisals etc... . no matter what

the 'other side' does.

Keep pushing to get everything in front of a judge.

Let the judge tell the Borderline to do it.

Then the Bline will listen.

Again, don't fall for all the delaying action.

The Bline will paint you as a villain.  The bad guy.

Keep pushing EVERYTHING that has a court date on it.

[sad but wiser]

Thanks DivDad.  Yes, I can tell my ex is going to keep pushing the hour away.  That is what he does and has been doing.

The judge seemed a bit surprised at the first court date when he learned that my ex had not even looked for work.  Poor him, it is hard to look for work when you are an emotional wreck.  (He should try going to work and maintaining your calm when you are an emotional wreck!) You would think he had been an angel and that his behavior wasn't the main issue in the break-up!

He already has tried to make me look evil;  the problem is that what he says doesn't quite match up with basic facts and reasonable behavior.  This is already confusing everyone, even his lawyer.

I know it isn't fair, but I think it is easier to be a woman who is responding to a divorcing husband than a man who is responding to a divorcing wife.  It seems to me that a working woman who has a good relationship with her children just appears to be more believable than a non-working man whose children are avoiding him.  If the situation were reversed, and I were the husband, I am pretty sure I wouldn't get the automatic benefit of the doubt.  What do you think guys?