I need to be assertive with L, but how

[whirlpoollife]

Good news , I sent an email to both my L ,  and his secretary. A motion has been filed for a divorce master.

Separately, at the  same time h was granted by the judge for another 120 days to respond so he and his L can investigate my assets and get the house appraised by their own appraiser. I had it appraised already.   I pay the mortgage. There is nothing hiding , everything was presented in detail.

My L got the 120 days down to 90 on account they have not responded at all when my information was given to them some time ago.

Also h is taking me back to support court for a modification in child support / alimony.   I currently get 400 in c/s and 175 in alimony and my L had said the 175 would end when divorce is final.

My L said we will still keep the appointment for the master.  What date that is , is to be determined.

All this , I say really?

[whirlpoollife]

Im using my topic here to continue... .

So after receiving the request for modification in support we received a settlement proposal.

Some of the highlights include but not all ,

he wants the house and appliances free and clear.

(I am currently in the house, I have been paying the mortgage , I paid for the down payment , appliances (old) improvements.

He wants both tax exemptions for kids.

He wants $$k of my inheritance referring it as equitable distribution.

He wants any alimony to either spouse to be waived , meaning he owes me nothing.

I "receive" the contents of the safe deposit box. ( stuff that was mine long before marriage that i hid from him) and other items that were mine to begin with.

I receive the marital portion of my share of my family's business that sold. *

We did not counter the offer yet.

The modification for support got delayed by h as he added on to it that he not only wants a modification in support but he wants support from me.

*he plans to use the capital gain from the sale of my family's business as an increase in income for me.

That is why he so graciously said I can "receive" it.

H had filed for modification in support , but no hearing at that time ,  a year ago, so he plans to have the support changes retroactive.

This capital gain is a one time deal from last year taxes.  There is no increase in my actual income.

Kind of hard to follow but the entitlement is all thru it. To be expected. 

Stressful for sure.

From another thread of mine , on the phone call issue, I emailed h asking him not to leave voicemails for the kids, that they (voicemails) are not necessary. He reply was a question mark plus that he keeps them short.

He continues to leave voicemails.

[Matt]

It sounds unlikely that there can be a settlement, but if you make a good proposal that can have a few advantages.  First, it will show the court that you are trying to settle.  And second, it may be the basis for the court's decision.

Also, if there is a good proposal on the table, it's fairly likely that the other side will come to the table very shortly before trial.  (My wife decided to settle the day before our trial was scheduled.)

My suggestion would be:

If you want to stay in the house, put that in your proposal.  Come up with a way to split net assets so you keep the house but net assets (assets acquired during the marriage minus debts accumulated during the marriage) are split evenly.

Your inheritance is yours by law (at least in my state - check to make sure).

Alimony should be determined by your state's guidelines.

No reason to offer him a better deal than that.  Do the work to put a sensible, balanced proposal on the table, and let the other side respond, but if they don't respond in a constructive way within a week or so, prepare for trial.

[whirlpoollife]

I am getting pushed from both sides to settle prior to the support hearing.

My L is out of the office for a couple days but I did leave a message asking what is his reasoning for this.

Any thoughts as to why?

Of course , if I give a counter proposal , it doesn't mean it will be accepted by h.

[david]

So make a counter agreeing with everything he wants that you also agree with. Then figure out a way to turn the other thiongs to your advantage.

Can you agree to receive the marital portion of your share of the family business and also state that is excluded as an increase in income and it is to be considered a one time thing or something similar ? 

[Matt]

I am getting pushed from both sides to settle prior to the support hearing.

My L is out of the office for a couple days but I did leave a message asking what is his reasoning for this.

Any thoughts as to why?

Of course , if I give a counter proposal , it doesn't mean it will be accepted by h.

Lots of attorneys have never taken any class, or even a one-day seminar, in how to negotiate.  And they don't have to live with the settlement - you do - so they can view any settlement as a good thing and every day without a settlement as a bad day.

I think you are right to ask your attorney what his reasoning is;  maybe he has a good reason to want to settle before the hearing.

A couple of questions you might discuss with him:

* If you settle before the hearing, what will the agreement say?  Is it based on a proposal made by the other side, or will you and your attorney draft the proposal?

* Maybe make a little chart (or at least in your head) showing what the advantages and disadvantages are for settling before the hearing or after.  See which looks better, or if they look the same.

* What is the outcome of the hearing that your attorney expects?  What is the worst outcome that is at least somewhat likely, and the best outcome that is somewhat likely?

Sometimes we ask an attorney questions like these, and we don't get straight answers - lots of talking but no information.  Be persistent - ask the same questions again and again if you need to, to get clear answers.  Then state those answers back in plain English - "So what you're telling me is that ... .- is that right?", until he says, "Yes, that's what I'm saying."

His job is to explain his thinking and the law to you - present you with options and advise you which option is best.  Your job is to work with him til your understanding is good enough, and then decide which option is best, and give him clear instructions accordingly.  "OK, I understand now.  Based on what you have told me, the best option for me is X.  Please proceed accordingly."

[ForeverDad]

Most cases, even some high conflict ones, do result in settlements.

In my case... .

• 2008 Final decree was a settlement - but not until 5 minutes before trial!



• 2011 Change of Circumstances was a settlement - I became Legal Guardian but ex got child support



• 2013 Majority time motion ended with a decision, NOT settlement - I got majority time during the school year and therefore ex lost child support - I wouldn't settle since ex offered next to nothing and basically nothing was negotiable

It's very likely a settlement (1) where your ex would be the least bit reasonable and (2) with terms you could live with won't be possible until the last possible moment.  Or maybe not even then.

Lots of attorneys have never taken any class, or even a one-day seminar, in how to negotiate.  And they don't have to live with the settlement - you do - so they can view any settlement as a good thing and every day without a settlement as a bad day.

I think you are right to ask your attorney what his reasoning is;  maybe he has a good reason to want to settle before the hearing.

A couple of questions you might discuss with him:

* If you settle before the hearing, what will the agreement say?  Is it based on a proposal made by the other side, or will you and your attorney draft the proposal?

* Maybe make a little chart (or at least in your head) showing what the advantages and disadvantages are for settling before the hearing or after.  See which looks better, or if they look the same.

* What is the outcome of the hearing that your attorney expects?  What is the worst outcome that is at least somewhat likely, and the best outcome that is somewhat likely?

Sometimes we ask an attorney questions like these, and we don't get straight answers - lots of talking but no information.  Be persistent - ask the same questions again and again if you need to, to get clear answers.  Then state those answers back in plain English - "So what you're telling me is that ... .- is that right?", until he says, "Yes, that's what I'm saying."

His job is to explain his thinking and the law to you - present you with options and advise you which option is best.  Your job is to work with him til your understanding is good enough, and then decide which option is best, and give him clear instructions accordingly.  "OK, I understand now.  Based on what you have told me, the best option for me is X.  Please proceed accordingly."

Understand that there is always pressure to settle, lawyers are used to settling cases, they expect it.  However, does this mean your lawyer isn't prepared for a trial, that it is outside his/her comfort zone?  Mine put me under pressure... .He was worried the magistrate could decide to keep the order roughly as is, with ex having custody and me as alternate weekend parent, despite the custody evaluator's recommendation.  He put me under pressure, settle or risk either gaining all or losing all.  So we settled for Shared Parenting but I told ex my #1 condition was that I be Residential Parent, I told ex it was that or else let's start the trial.  Both lawyers insisted it meant nothing other than which school son attended but I knew otherwise and within a couple months - 5 weeks before the school year ended - son's school kicked mother out and I had one day to register him in my school.

The second time the GAL recommended what she saw as the fix.  I knew it wouldn't work but my lawyer said it was a partial win and if we didn't settle then likely the judge would go with the GAL's recommendation anyway.

The third time GAL was even more favorable for me and ex's offer was entirely ridiculous so we let the magistrate decide after a 2 day hearing.  It was mostly a win and I really think it is workable.

So don't fret over having to learn how to say "No!"  After the first few times it does become (a little) easier.  Keep firm boundaries, if a clause violates or pushes one of your boundaries, it's okay to push back or say No.  (Remember, ex knows very well how to say No and even make you feel guilty while doing so.  So don't feel guilted or obligated.

Beware the F.O.G. = Fear, Obligation, Guilt.

[Matt]

FD makes a really good point:  Many of our cases settle "on the courthouse steps" - mine settled less than 24 hours before the trial was scheduled.

This is not true for "regular" divorces, only for "high-conflict" divorces.  William A. Eddy writes about it in ":)ivorce Poison", by the way.

The reason this is important is that if you try to settle sooner - which is what two reasonable people with reasonable attorneys would do! - you probably won't be successful - no matter what you propose, the other party won't agree, because people with BPD like to fight.  And by trying to get a settlement, you may weaken your case - you'll make concession after concession, and the other side won't respond in kind, or will make concessions and then take them back.  As a result, the settlement will be less and less favorable for you, and it still won't get done soon, because the other party needs or wants to fight some more.

When the fight is over, and both parties can disengage, you will be happier, with less conflict in your life.  But the other party will probably be less happy, because people with BPD thrive on chaos and conflict.

As the trial (or some other event that the person with BPD fears) gets closer, the person with BPD is likely to want to settle, and his lawyer will be advising him to settle rather than face the cost and risk of a trial.  That's why so many of our exes settle very late in the game - when the only alternative to settling is a trial very soon.

So... .that means your ability to get a good settlement is likely to be better as the trial gets closer.  Trying too hard to settle too soon is likely to result in a bad settlement for you.

I'm not saying that you should be unwilling to negotiate in good faith;  your husband and/or his lawyer may be an exception, and they may be willing to come to a fair agreement today, or next week, or the day before the hearing, or the day after the hearing.  It would be interesting to know what your lawyer thinks about this, but if he has no experience with opposing parties who have BPD, be careful - he may not understand this "settle on the courthouse steps" dynamic... .

[whirlpoollife]

I appreciate all the input and advice, its just what I need to study, think and write out.

The support hearing was separate from the settlement . A master had been appointed for the division of property but no date set.   They wanted more time for discovery, got it then to my surprise a proposal came in. At the same time, or just before, h set a hearing for modification in support.  Then I got a notice , that was filed with the courthouse, from the support office that h wants support from me. Also, he added his first file of wanting modification , from Aug. 2013.  He was pushing it to be retroactive to that date.

My L did call back, he said h's L wants to settle everything now... .ok what is everything? ... .h wants to

settle, not only division of assets but child support , spousal support, and division of assets. All at once and before the scheduled support hearing. 

I asked L about c/s. that I thought that was clear cut calculations . He said no there are many that come up with a plan that does not involve the support dept. I liked going through support dept because they hold consequences if h doesn't pay.

I asked my L too that after all this stalling , on h's part, then asking for more time before a master ,

then taking me to support dept, why the rush for all now.  My gut feeling, or  , I question why.

L had no answers, he said there can be a settlement that is fair. Maybe not what I want but fair. 

(I 'm done being fair to h) . It's my L that I have to watch out for.  Overall he is good, and has been in the business for awhile, but he doesn't know h like we do.

I have about a week to work on this myself, before meeting with L .

[ForeverDad]

I recall shopping for a camera flash many years ago.  I didn't have much money and went from store to store.  Finally I found one that was powerful and the price was tempting but it was clearly an older model.  Then haggling kicked in, I still wasn't convinced and was about to leave and the guy said, Take it or leave it, I won't do a deal if you leave.  Yes, I bought it, it worked for years, but I felt bad about from that day forward.  I learned a lesson that day, don't buy under pressure or ultimatums, you may come to regret it, if only for the pressure.

So, you feel under pressure now.  It doesn't feel right and rightly so, you don't know the details, too many variables are in play.  There is generally no harm in saying, once you've got the data, "Let me ponder your final offer and I'll get back to you."

If you walk into negotiations thinking you have to say yes, then you have the wrong outlook and are at a distinct disadvantage.  You always have the right to say, "Sorry, I can't accept that" and walk.  Never forget.

[Matt]

One way to analyze this stuff is to make a list of the key issues - not every little thing but the issues you care most about.

You might write, for example:

Issue - child support.

Dad says - None.

Mom says - Same as now.

Issue - custody.

Dad says - 50/50.

Mom says - Mom primary, Dad every-other-weekend.

Etc.

Once you have identified the key issues, you can group them according to which issues are closely related;  in some cases, two or more issues should be decided as a package so the agreement will make sense.

Then you can think about which of the issues are most important to you - there might even be some where you just aren't willing to budge, even if it means going to trial.  Others might be more flexible - maybe you're willing to split the difference.

You and your attorney need to be on the same sheet of music on this.  You can discuss the issues and explain to your attorney why you think each of the items is best for you and for the kids.  The better your attorney understands your underlying reasons for each item, the better you can work together to negotiate a good settlement.

Along the way, if you can include some stuff that would be nice to get, but you don't really care much, that can be useful, because it gives you some concessions you can make so the other party will feel like he is winning.

I would not suggest you make any effort to negotiate an agreement - don't even bother scheduling a meeting - til there is an offer on the table which will serve as a starting point for the discussion - a written offer which addresses most of the key issues.  Doesn't matter who presents it to the other side since it's just a starting point - a framework for the discussion.  But without that framework, a lot of talking (which is expensive when attorneys are involved) can produce nothing.

[ForeverDad]

I asked my L too that after all this stalling, on h's part, then asking for more time before a master,

then taking me to support dept, why the rush for all now

He might be triggered by something.  Did he get an extension on filing his tax forms and he has to pay up in mid-October?  Was he told it's now heading back to court?  Some other event?

Understand the vast difference between you.  You are hesitant to ask for more than what is reasonable and fair, in fact probably you're tripping over yourself trying to be overly fair.  Maybe peer support has enabled you to ask for the moon but still you're ready to settle for a slice of the cheese.  He, on the other hand, has no qualms about asking for the moon, sun, stars and every galaxy within 10 million light years - and expect to get it.

So although you're overwhelmed by his extensive list where literally everything is twisted to his benefit, that's his entitlement speaking.  Also, even if you chip away at the list, he still expects to strut away as the huge winner.

Quick question, he's working right?  Is his earning potential greater, lesser or equal to yours?  If you have the minor children the majority of the time then he would pay child support.  If it is equal time and your incomes are roughly similar then child support might be iffy, it all depends what the CS calculators include.

As for him seeking reversal of CS and retroactive as well, then, besides his entitlement shouting, it depends on various factors.  I had to pay 2 months retroactive CS back to when I filed for divorce but that was in part because there was no prior order.  If you now get CS and he wants it repaid and you pay instead retroactively, I would expect the order now would not to be modified retroactively.  (However, I am not a lawyer of course and don't even know your state, state laws vary.)

I'm figuring all these demands stem from the trigger that you got an inheritance - is he contesting the inheritance aspect? - and he feels entitled to demand and grab as much as he can.  Most (but not all) states have ruled that inheritances are not marital assets, though any portions that are mixed with marital assets might be deemed to have morphed into marital money status.  I presume you've been smart and kept most or all of it in accounts separate from any joint accounts with him?  Then the outcome largely depends on your state's view of inheritances.  You need legal advice about whether he can do that snatch-n-grab or not.  If that's an unanswered question then you're going to be weak going into negotiations.

Did I already state this is his entitlement shouting?   Conversely, if you're now seen as rich and him seen as poor, then you may not get much of a gender preference/deference from the court.

Demanding house free and clear?  Only if your equity is adjusted to your benefit elsewhere in any settlement.

Demanding children as deductions every year?  No, either alternate years or split the kids (with you taking the youngest ones so you get deductions longer  ).  Be very sure to use proper IRS forms, I think it is Form 8332.  If you have a settlement or court order that might or might not be acceptable to indicate the details have to be spelled out and the SSNs listed.  Apparently the IRS is very unwilling to be nice and bend their rules.  For example, it has ruled that stating the years when non-custodial/majority parent DOES NOT get to use child exemptions is not enough, it has to state when non-custodial/majority parent DOES get to use child exemptions.

Demanding inheritance in any way, shape or form?  No, unless state law allows it.  The capital gains from the inheritance?  I don't know the legal status but I bet he tries to 'Guilt' you into doing it.

Can he use one-time capital gains as basis for modification of support?  I don't know but if it is possible, then you must include verbiage that it can be modified from year to year for significant changes, probably include that the minimum figures for each of you are what you are capable of earning (so that he doesn't quit working and demand a recalc).

Be aware that any rules you may agree to probably apply to you as much as to him.  So ponder whether any clauses to your benefit now could later come back to bite you in the years to come.

[Matt]

Yeah, I think this has been said before, but to be very clear:  There are structures in place to decide lots of this stuff, and it's probably best to use them, and not to wander off into arbitrary negotiations.

Child support - in many states there is a worksheet provided by the courts - their guidelines, based on how many days the kids are with each parent, and what each parent makes.  No reason to negotiate, just do the math and that's who will pay how much.

Alimony - similar but it's only about the length of the marriage and who makes how much.  Fill out the worksheet, do the math, and that's who pays how much for how long.

Division of assets - in most states, the guideline is that you add up all the assets accumulated during the marriage (excluding what either of you brought into the marriage - you each keep that) and subtract the debts accumulated during the marriage (again, each party keeping the debt they brought).  Divide by 2, and that's how much value each party should get.  If some of the assets are things that can't easily be cut in half - like a home - you move things from one column to the other, til the columns add up to about the same.  Or you sell something and split the money up to make the totals come out equal.  Mostly math, not negotiation.

If the other side is proposing things that aren't more-or-less in line with the guidelines, you should probably just say, "Your proposal regarding child support is not OK.  We'll stick with the state guidelines - see attached." and end it - no need to pay two attorneys to spend hours debating it - just use the guidelines.

[whirlpoollife]

Can you agree to receive the marital portion of your share of the family business and also state that is excluded as an increase in income and it is to be considered a one time thing or something similar ? 

I think his entitlement in this backed him in a corner.

I don't like mixing the child support in with division of property. I'd prefer the state guidelines but he is unpredictable with payments. So I added up the c/s for both kids till they come of age , excluding medical, then out of the marital assets that would be due to h, subtract the c/s. That way I would have it up front, and he "wouldn't have the monthly burden of paying it. "   

FD it might be the taxes. We filed separately, but i remember his accountant sending a formality letter stating that they filed an extension on his behalf.

He is working and makes more than I do. I got the imputed income, which is about half of his. I am working but I didn't reach that limit yet.

Thanks for the info on the kid exemptions and taxes.

I kept the money separate , except for what went in to the house . I have the paper trail , though , on where the money stemmed from. Which was one of the questions in the interrogatories. 

I was ready to show the divorce master that information, if that was where this was going.

I think he asked for so much as to try to scare me to make me compromise , which would end up to where he wanted to be in the first place.  I would like to have it  of what is, what is not marital asset, offer a percentage of marital and stick with it. But I am in an equitable state... .