Mediation - putting the kids last

[takingandsending]

Third mediation session highlights:
1. Temporary custody schedule reinstated. STBxw said I misunderstood her when she stated she didn't agree to the schedule, she was too accommodating, and had reservations about my parenting. She wants the schedule because she wants time away from the kids. WIN
2. Nesting is not the right thing to do for the kids because STBxw is finding it too stressful to locate another place to stay during my custodial periods. It means the parents are making the sacrifices, but the kids are more resilient. WIN (since it was getting to be too much effort for something I knew would never last)
3. She said her L told her she is the primary parent, which means she gets to choose what makes her happy, where she wants to live (again Maui), what is best for her. The kids are resilient and will adjust. NOT WIN and likely not really what he said. Contacting my L to address.
4. Logjam on living under same roof is breaking up. I proposed temporary solution to split income, direct deposit into joint checking, she will remain in home, I will rent, and immediately moving to two separate households with kids immediately going to temporary custody schedule, summarizing and freezing collective debt, and all future debt accrued is individual debt. Lots of loopholes to close but movement. WIN (if I can successfully negotiate getting out of the house and having my sons in my home on this schedule) I am very concerned that she is already feeling entitled to half my income. She has it in her head that that is what she is going to get. My L has advised that based on the custody arrangement, she will not be getting the full child support, and the maintenance will be a negotiation no matter how it is sliced.

Questions:
1. If we successfully get into separate households under this temporary plan, what safeguards do I need for her remaining in the residence we have joint equity? Copy of mortgage payment receipts, copy of homeowners insurance receipts, ?
2. She may choose to rent the spare room in the house to defray costs. Is it enough for me to provide a list of limitations, like no smoking, no drugs, no pets, no guns and how do I go about implementing those limitations?
3. Some things like staining the fence and porch, trimming trees and caring for garden - she doesn't do it. To be able to sell the property, these things need to be done. Ideas?
4. Timeline on selling house once we agree to parent plan, maintenance, child support - ideas of what is normal, reasonable?
5. What am I missing?

I decided to be much more outspoken and directed traffic to extent possible. We will see how it unravels this time.

[GaGrl]

 Quick thought on renting a room... .it's still joint property, so you could make the rental agreement in both your and wife's name, so as to get the restrictions you want.

[livednlearned]

She said her L told her she is the primary parent, which means she gets to choose what makes her happy, where she wants to live (again Maui), what is best for her.

Wow. 

I clearly missed that memo on maximizing the joys of being the primary parent.

I am very concerned that she is already feeling entitled to half my income. She has it in her head that that is what she is going to get. My L has advised that based on the custody arrangement, she will not be getting the full child support, and the maintenance will be a negotiation no matter how it is sliced.

I would want to double triple quadruple check that too. Temporary arrangements have an amazing way of becoming permanent, but maybe there is a clear distinction in your state between spousal support (financial amount paid before things are final) and alimony/child support.

1. If we successfully get into separate households under this temporary plan, what safeguards do I need for her remaining in the residence we have joint equity? Copy of mortgage payment receipts, copy of homeowners insurance receipts, ?

Sorry -- I'm not following. Do you mean how can you be certain that she is paying for the mortgage?

2. She may choose to rent the spare room in the house to defray costs. Is it enough for me to provide a list of limitations, like no smoking, no drugs, no pets, no guns and how do I go about implementing those limitations?

Not sure how things work where you live, but in my state, family law attorneys are not experts in real estate law. You may want to consult with a real estate attorney to make sure you get this nailed down.

In some ways, the fact she wants to move to Maui gives you leverage. It means she is motivated to sell the house and get the money invested. Can you make an agreement that you have final decision-making about the sale of the house if the asking price is within x amount? Your reasoning may be that you are the only one who can float the mortgage, therefore the final decision is yours.

Also, will she be expected to pay for any of the upgrades? You'll probably have someone come inspect the home, correct? Are you paying for that? Will any major repairs be needed? Maybe before you agree to anything, have the house appraised and an inspector come out and talk to a realtor about best time to sell, and get that in an agreement so everyone knows exactly what the plan is, and when to start staging the house in preparation. Can you have half the costs come out of the split income so you are both shouldering the costs? That's only fair if the equity is to be split down the middle.

If you are expecting her to do any of these things, and know she won't, then that will require hiring someone, too. If she offers to do it, then have a date for when it needs to be done, and contingencies for what will happen next if it doesn't so everything is clear.

4. Timeline on selling house once we agree to parent plan, maintenance, child support - ideas of what is normal, reasonable?

Maybe it makes sense to talk to a realtor about the best time to put the house on the market and work from there?

[takingandsending]

I clearly missed that memo on maximizing the joys of being the primary parent.

Thanks, lnl. That made my day. I know that the divorce coach has to be neutral, but I also think she should challenge statements that are at odds with how things will work. She did gently steer it back into whether or not we had discussed what would be best for the kids, i.e. staying in their school, community or moving. And my wife did eventually agree that staying would be best for them but not her. But I would like to see more of an assertive statement, like, in our state, you would have to show x, y and z to move the children without father's consent. You and I know from experience that when BPD invalid statements have no reality testing, they tend to accept them as fact. (Well, that is going to happen anyway, but I think the reality testing is a must).

I would want to double triple quadruple check that too. Temporary arrangements have an amazing way of becoming permanent, but maybe there is a clear distinction in your state between spousal support (financial amount paid before things are final) and alimony/child support.

This is my big fear. I am going to check with my L. I am terrified that this temporary arrangement be made permanent. My L initially advised me that 50% was too high for maintenance+child support, particularly as I was asserting 50/50 custody (in actuality, 53/47). But to get out of the house, for the interim, until assets divided, I thought this was reasonable. I just know that being reasonable with my wife becomes her expecting it, and then expecting more. She already told me after the meeting that she thought I was backing out of agreeing to pay her legal fees. What I had said at the time was, the money is all going to come out of the same pool of money that we jointly possess. After she stated her displeasure, I told her I could understand how that might make her feel, but as we are now dividing our income in half, she is responsible for her own costs.

Sorry -- I'm not following. Do you mean how can you be certain that she is paying for the mortgage?

Yes. Wondering if I should put into agreement that I will be provided copy of receipts? I currently reconcile our joint account every two weeks, so I see what is going out an where. But I don't really want to keep reconciling the account that will now be her account. I can see if I can gain on line access to the account. That would be easiest.

Re. sale of the house, I will talk to a realtor and gain the background information suggested. I guess my question was, if we settle everything out with agreement to sell the house, and she is living in it and will probably stall the process, what is a reasonable timeline after agreement has been signed and processed through court that sale has to happen? I would like to put that into the divorce decree. Property market is very hot right now where I live. In the past, when it has been like this, I'd state sale within 3 months of being listed is readily achievable. It's that time period between final decree and house being listed on market that I am asking about. I like the additions to require sale if within 5% of asking price, and having single appraisal from selected pool of appraisers. Agree that inspection costs, any fixes, realtor costs, should be written as 50/50 in decree.

I am going out to look for rentals this weekend. Will start boxing stuff up this week. Still a few steps to take with L before moving out, but at least seeing some light at the end of the tunnel. I really appreciate all of the help folks have given me thus far. Thanks! 

[livednlearned]

I just know that being reasonable with my wife becomes her expecting it, and then expecting more.

She is driven by her needs, so anything that inhibits her needs being met will be met with resistance. Divorcing her will not change this, unfortunately. That's why having contingencies for everything you agree to, or as much as you can, is really important. It won't necessarily stop her from testing or rolling over boundaries, but in the event you have to return to court, the action plan for non-compliance will ideally be in the agreement you both sign in the form of contingencies or consequences. These will most likely come from you because lawyers seem to think that divorced couples will become rational actors after the divorce. The contingency language dampens the tendency judges have to give the non-complying offender two and three and sometimes four bites from the apple. Which ends up costing you a lot of money and doesn't make things better for the kids, if the issues pertain to them.

Wondering if I should put into agreement that I will be provided copy of receipts?

Is there any way you can arrange this so that the money comes out of an account and goes directly to the mortgage? Maybe she is reliable with money and can be trusted with this task. But it exposes you to a big risk if she doesn't comply. Checking online is one way to keep an eye on things. Asking for confirmation of receipt is another. Neither of those really help you if she doesn't pay, though. How about adding some language that says if the mortgage is late or not paid, it will be handled by taking the late fee plus the amount owed out of her next payment? You need to protect yourself in the event she mismanages finances that could directly impact you and your credit.

if we settle everything out with agreement to sell the house, and she is living in it and will probably stall the process, what is a reasonable timeline after agreement has been signed and processed through court that sale has to happen?

What do you think about adding a contingency for this? Maybe the deal is that she moves out by day/date/year, motivating her to want the house to sell before that. Then work from there. So, if you want the house sold by July 2017, could you propose that she must move out by August 2017? Or, if you really want to motivate her to move out, offer some kind of incentive you know she will want, like a one-way ticket to Maui    

No really   what might motivate her? It's not fun to propose a financial incentive when you're already gifting her things. But the alternative is a bunch of trips to court that can add up. Could you propose that if the house is on the market by day/date, and sells before day/date, then xyz happens, in which she gets a bonus for being cooperative. Without phrasing it that way. "To take advantage of prime selling season and a seller's market, if house is on the market and staged to sell, and is sold by day/date, then __________." It might require some creativity on your part to come up with something to sweeten the pot. You could also conceivably take something out of what you plan to already gift her, and have it be a contingency for this. For example, paying 100 percent of closing costs or something you feel is reasonable to cover.

Who is writing up the final order for the two of you? Your L or hers?

If it's up for debate, offer to have your L write it up all fancy. That will give you some leverage to really close loopholes in the language, and she will think you are shouldering more of the cost (you typically have to cover the cost if it's your L writing it up).

[ForeverDad]

I recall one father here years ago reported that as soon as his ex became residential/primary parent and him paying school expenses (which he figured would be just a few hundred dollars per year) she then changed schools to a private school with thousands for annual tuition.  He took it to court, said him paying school expenses was intended for inexpensive public schooling only and his court ruled the order was that she handled schooling and he would pay school expenses and so he had to pay the costs no matter where mother enrolled his child.  Be aware.  Beware of the gotchas.

[takingandsending]

I sent a note to my L, asking for a meeting next week. I presented the basic frame of the arrangement and now need him to step up and help me close loopholes. Foreverdad, I did see your note on my other post about losing leverage for compliance. I don't really know what else to do at this point. I need money to find even a temporary second household. I have to leave money with her to take care of the kids while she has them. If I don't take this step, we remain stuck together under the same roof. Lnl, I like your contingencies to motivate her - I will ask if they can be put into the written agreement and if not, what can be done in a collaborative approach.

I have also asked my L for very specific information on primary custodial parent, requirements that must be met in my state for moving the kids intrastate and interstate. I advised the L that her intent to move or not needs to be discussed immediately as I will go for full custody if she has any intention to take the kids away.

At one point in mediation, the divorce coach directly asked me if I thought that our divorce would end up in litigation. I said "yes", at which point she told me it must be very stressful to feel that. What the heck? My wife just mentioned twice in different sessions with you that she wants to move to Maui and take the kids with her, and you are judging me for not sticking to collaborative guidelines? I was actually really pissed at her for putting me on the spot like that.

I will admit that I am beginning to feel constrained by the collaborative process. If I ask for agreements to be set in place, compliance actions, etc., I get told that I don't really need these in a collaborative divorce. So then, I am left to my own devices to figure out the best path forward. I will see how my L responds to my current request. Hopefully, I will start to see how he asserts himself in this process.

[livednlearned]

contingencies to motivate her - I will ask if they can be put into the written agreement and if not, what can be done in a collaborative approach.

One viable approach you can use is to point out inefficiencies that you want to smooth out. Something like: your income payment comes on x date, then the bank sends it to her on y date (she may not get it that day) then she sends it to the mortgage company on z date, which happens to be past the due date or close enough that it could present a problem. Explain your concern to your ex, that it might be best if there is only one payment transfer directly into the mortgage. You might want to present the problem and ask her if she has any suggestions for how to solve it, so that she gets to feel a sense of adequacy here.

If she is concerned about foul play on your part, maybe set up a joint account so she can check it to see that the funds went out to the mortgage company. Remember to hang onto your leverage wherever possible -- you are sending her money, and that is leverage.

This all sounds so uptight but it is remarkable how short-sighted a person with BPD when it comes to their own well-being, especially when dysregulated. A lot of this protects both of you in the event that she cannot (for whatever reason) do what's best for her.  

I advised the L that her intent to move or not needs to be discussed immediately as I will go for full custody if she has any intention to take the kids away.

Does this order give her primary physical custody of the kids?

If so, another approach is to discretely flag this potential issue and future proof it. Maybe you say something like, "Both parents agree that maintaining a stable environment for the kids is of paramount concern and both parents agree to avoid uprooting the kids as much as possible."

How fierce she is about having primary custody may determine how you handle this. In my state, moving is a serious challenge -- there are 9 criteria and being near the beach is not one of them   If it's like that in your state, it may allay your concerns that she can easily take the kids with her. No need to poke the bear if it's actually something that could work in your favor down the line. If you go for full custody right now it could set back all of these other negotiations over something that is, in reality, just a possibility at the moment.

Most of us here, even moms like me, did not get full custody right away. The magical mom bias that everyone refers to never materialized in my case, so I had to chip away at custody one small crisis at a time.

If I ask for agreements to be set in place, compliance actions, etc., I get told that I don't really need these in a collaborative divorce. So then, I am left to my own devices to figure out the best path forward. I will see how my L responds to my current request. Hopefully, I will start to see how he asserts himself in this process.

If it's any consolation, most lawyers in the regular divorce system seem motivated to not litigate, so in a sense both processes involve a bunch of deal-making that can be very glacial and exasperating. The difference is that the lawyers who litigate are sizing up how well their clients will present in court, if it comes to that.

For example, my ex and I were deposed, and ex's L realized I was a well-prepared, articulate, and credible witness. He realized that I had been documenting everything and became much more motivated to settle things out of court, and in a sense, he started to work for me  

I sometimes wonder if collaborative divorce attorneys are people who know they are not good litigators. They may be good at mediation, and they may be great for low-conflict couples. It's hard to say, though -- your lawyers understand BPD and they may be better than most. I suspect the L said what she said because she's trying to empathize with you. But the prospect of your ex taking the kids is so painful that it provokes intense emotions, and that makes it hard to hear comments that seem neutral about what you're going through. And, like I mentioned above, your Ls may know that in your state it's hard to move the kids, especially if there is a parent saying hell no.

This truly is a marathon, not a sprint. Let her believe she can go to Maui with the kids, especially if reality says otherwise.

[takingandsending]

I spoke with my L at length yesterday about laws in my state regarding relocating children in a divorce. There are 10 factors that get weighed in determination to allow relocation. My L said if I can start to establish separate household custody of 43% (transposed numbers - thought it was 53/47 but actually 57/43), then most factors move in my favor. He noted that it has been brought up by the mediator to both xw's L and my L, so it is out on the table. He agreed that it is worthwhile to discuss from general standpoint, but better to hold cards back until separate household custody can be established (so that my wife cannot change her mind on custody if she realizes it will undermine her ability to relocate the kids as she chooses). Turns out, I also have to be wary of how we structure any ROFR during the summertime schedule as me working and her taking up those hours will lower my residential time to under 40% overall, which would again possibly tip the scales on the factors for relocation. I know that my uBPDw has many wonderful plans and ideas and few that come to fruition, and it is possible that her relocating is just one of them. So, I don't want to worry excessively, but I also am really afraid for my sons if they were taken from me. Panic/fear is just something that is coming up right now. Ugh. It doesn't help that I know she tends to magically think that all her problems will be solved if ... .I move, I take this class, you believe in my ability to make millions, etc.

My L also stated that her L had high praise for me when they did their debrief and said that being married to my wife would make him crazy! So, in general, he is acknowledging that I have been reasonable, patient, and business-like, which my L said is a refreshing change from working across the table from an opposing L that is trashing his client. He advised that I do everything I can in mediation next Wednesday to finalize residential schedule and gain agreement on financial proposal.

We didn't have much time to discuss closing loopholes on financial stuff. He said that the 50/50 split of my paycheck with each responsible for own household and even split is pretty much what I would expect if we were litigating. I thought I would retain a bit more than 50% (55-58%) of my income, but he said it wasn't likely. Not what I want to hear, but I recognize I am going to be paying maintenance one way or the other. I will still try to see if some level of imputed income for her can be established, but it's not looking great.

I just want to get me and my sons to that crummy, beautiful apartment or house called freedom where I can hopefully breathe a little easier. My xw left this morning for "me" time and wasn't coming home until tomorrow. She walked in at 9:30 p.m. tonight unexpectedly. Crashed my small vacation too soon! I will go see a small, local orchestra concert tomorrow afternoon conducted by my community orchestra conductor and then my T in the evening. Should help put my head back on straight. It's a marathon, right?