When I got home, my family was gone | Part 2

[Radcliff]

DB,

Thank you for sharing your update.  I'll leave the strategy advice to your lawyer, but if she advises to go with counterclaims, don't hold back.  You are about to engage in combat, and half measures only prolong a war.  Good luck and Godspeed.

WW

[Turkish]

In regards to the custody piece, we talked about several strategies there as well. The option is on the table for me to file a counterclaim including extreme cruelty similar to hers. I would have to pull together dates and examples, which wouldn't be hard

Call the Bluff! You have the proof. What do you have to lose financially? Think custody is different. Don't mix the two. 

[Skip]

I can refer you out to some other attorneys who I know have back room, handshake relationships with this guy who might be able to get you a deal quickly at a lower cost. But none of them have the energy and the drive that I have, and I really care about you and your daughter.

Should you check this out a bit more. Get a second/third opinion?

That reconciliation agreement puts this out if the realm of a standard divorce.

[livednlearned]

I agree with Skip.

This is business.

All lawyers are ethically bound to represent their clients. It's rules of professional conduct. She is saying a nice version of that.

It's great that she cares about you and your daughter. And if that's true, she will understand why you have to do due diligence and at least meet with other attorneys. 

Not all family law attorneys will be familiar with some aspects of a case. In mine, I was referred to a real estate attorney, an attorney to handle the 401K, and an immigration lawyer.

[DreamGirl]

Is she trying to enforce the agreement?

I mean, I can see right off the bat ways to poke holes in that like your lawyer suggested. It has to be reasonable for a judge to enforce it and it doesn't sound very fair.

[ForeverDad]

You may not have to choose between parenting vs assets.  It will take time for custody issues so I'd recommend you defend yourself and even be proactive on both fronts.

So, the last piece is that we've put out one last request for their attorney to accept or respond to the proposal I made, and, if they don't respond, we're filing the motion on Monday. At that point, it's my understanding that we'll have a date in 28 days for the hearing. I guess this means let the games begin.

From now to Monday... .You are at high risk of some sort of allegation or ex parte (emergency) motion for custody.  She probably won't wait for the court, she will preemptively try to snatch control.  Making allegations, even unsubstantiated ones, while posing as victims or targets is typical in our cases.  And starts soon after separation when there are no orders and in expectation of blocking the other parent from getting a favorable temp order.

Be very careful with any contact you have with her during this sensitive next several weeks.  Focus any contact on only parenting matters or parent-child contact.  Nothing more.  Anything you say or do must be said or done as though the judge were looking over your shoulder.  Don't let her push your buttons to the point where you lose self-control, she will look for any excuse to claim you were aggressive or even abusive.  In addition, you probably should have a recorder running in the background whenever you are near her or communicating with her.  (Low key, don't wave it around to trigger her even more.)  As our member david states, his court told him not to record his ex so his stance is that he's recording himself and not her, and if she inserts herself or her voice into the recording, well, that's up to her.  Back in the day when I was facing repeated allegations, I called it having a unique form of 'insurance' to keep me out of jail.  And I hoped I slept a little less stressed.

Repeat, this next week — and even the weeks until your get a temp order for custody and parenting schedule — are higher risk for her to make preemptive moves to paint you much worse than her.  She and her lawyer will view it as valid strategy and they may get away with it if you're clueless about the risks and how to protect yourself.

One of our most helpful handbooks on the Family Law board is Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder by William Eddy & Randi Kreger.  It is a must-read.  If you don't have it, get it Now!

I have what's called a reconciliation agreement that I signed out of co-dependency. The agreement is horrible for me, and if I let the agreement go into effect, I will pay 100% of the debt, take 0% of the equity in the home, and pay my wife permanent alimony until I die.

Some weaknesses of this 'agreement'... .  It is so far out of the range of reasonableness, so one-sided and contrary to typical court outcomes, to fail just on the level of being too far out of normal outcomes.  Was it previously filed with a court?  (Courts are well known to ask both parties if they still agree to the terms, even if they had already signed it.)  Would it be viewed as a prenup or postnup?  Was it notarized?  Were you represented by an attorney?  How can you document that due to the pressures of the relationship you were negatively impacted by your "co-dependency"?  If you're a rich movie star or multi-millionaire with assets coming out everywhere then you may not get much leniency.

[flourdust]

Also, even if I win, taking resources and allocating it to the agreement takes money away from the custody piece, which is truly my priority.

Be careful here. You had a history in your marriage of giving up your rights and substantial assets to avoid conflict. Do you see that pattern repeating in this thinking?

[david]

My ex knew I was recording and brought it up every time we were in court. I got yelled at by the judge and nothing more. Eventually my attorney said I needed to stop because a judge might decide to do something about it. I couldn't think of another way to protect myself. It took a few days and then I decided to record myself. I have a video camera and I simply point it at me. I talked to my attorney and he said he could argue that in court. The camera keeps date and time on it too. I also have a small audio recorder. That can't be used in court but if the police get involved I can use it to not get arrested.

[Radcliff]

My ex knew I was recording and brought it up every time we were in court. I got yelled at by the judge and nothing more. Eventually my attorney said I needed to stop because a judge might decide to do something about it. I couldn't think of another way to protect myself. It took a few days and then I decided to record myself. I have a video camera and I simply point it at me. I talked to my attorney and he said he could argue that in court. The camera keeps date and time on it too. I also have a small audio recorder. That can't be used in court but if the police get involved I can use it to not get arrested.

What is legal and admissible will vary from state to state.  Google "two party consent states" to find out if recording without your pwBPD's permission is allowed in your state.  This typically refers to audio recordings.  If Daddybear77 lives in a one-party state he has considerable leeway with audio recordings (he should check with his attorney).  Video recordings are typically more admissible, especially if you are clearly pointing the video camera at someone (not hiding it or pointing it at the floor to use as an audio recorder).  Videoing someone openly is very escalating, and should only be considered if you are physically in danger, trapped, they are abusing someone else like a child, or the person is already verbally escalated to such a level that videoing's protective role outweighs potential escalation.  Videoing in the presence of a child can also be seen as aggressive, and is not liked by evaluators -- only consider it in clearly threatening situations.

WW

[DaddyBear77]

Hey everyone, lots of developments in the past couple of days. So many of the advice, predictions, and suggestions here are proven true and invaluable, so thank you so much.

My lawyer received the response to the 3-4-4-3 proposal from my STBX's firm and, of course, it was rejected. The reasons stated were that I have a "demanding work schedule" and that there are (claimed) issues with domestic violence. The counter proposal was the classic every-other weekend and dinner on Wednesdays. Further, the letter was very contentious with a very aggressive tone.

So... .

My attorney calls me that night. She said "Look, DB, I've been up late at night thinking about your case. I want whats best for you, not what's best for me. And I think the best thing for you would be to see this older established lawyer who I have a LOT of respect for. She's a named partner in a larger firm, and she has a LOT of experience dealing with your STBX's attorney. I took the liberty of calling her already, and she's waiting for your call. I am going to refund your retainer and I think you should give her a call now."

I was stunned. The way she put it, and the way she described it, I just felt so taken care of and put into better hands, it was such a great feeling.

Then, I called this other attorney, and she was also amazing and ready to fight.

Lots of really positive stuff.

So I had the consult with the new attorney and, wow, we came up with a very well thought out strategy. Instead of thinking "eh, maybe we need to file a counter claim for cruelty" it became "YES, of COURSE you're going to file a counter claim! We can't leave her claim sitting out there!" We did extensive analysis of the financial probabilities and determined exactly how bad off I'd be if the reconciliation agreement stood. It's not horrible. And it's not something we're going to fight directly. However, we're going to make it LOOK like we're fighting it, and use it as leverage later on with issues of custody and duration of alimony, etc.

This lawyer is the definition of problem solver, with an appropriate amount of aggression and proactivity. I'm really happy so far.

In related news, I've gotten really far in terms of collecting all my past notes and documentation. I found old checks and bank statements to counter any financial claims. I've found cards and love letters and things of that nature to counter a lot of the cruelty stuff. I have enough evidence to fight the agreement in multiple ways if it comes to that.

The things I don't have, though, are any interim custody or financial agreements, so the next move on our part is to file the motions along with the counter claim. In the mean time, I have about 3 full days with my daughter starting tomorrow and then nothing else agreed to yet. I know my STBX will have at least 8 consecutive days with her birthday and Mother's day coming up, but I'm hoping that after those are done I will get some extensive time the following week. We'll see.

Anyway, that's about it for the update. Oh, and to answer one of the frequent questions I haven't yet, yes, I have read Splitting a few times, and I'm re-reading it now. I'm also going to real through Don't Alienate the Kids after I'm done with Splitting. And yes, now that I'm actually going through it, Splitting makes a lot more sense and is really scary, but in a good way.

Thank you again for reading through this, and if I'm missing something or going off in some wild half-butted direction please tell me!

[Radcliff]

Hey, DB, what exactly does it mean for something to be "scary in a good way?" 

I'm impressed with how the lawyer transition went down as well.  That's integrity.

How is it that you get three days and your wife gets eight?  Just checkin' to see if you're being too nice.  How do you guys even figure it out?  (And then, I have to ask, just to say it into the wind, why if you are living in the same house you can't just share.  You may have asked the same question   )  Oy vey.

You sound upbeat.  You are doing all the right things.  It's impressive.  Keep us posted!

WW

[livednlearned]

if I'm missing something or going off in some wild half-butted direction please tell me!

 

It all sounds positive, DB! What is the relationship between your new L and the opposing L like?

What does your new L tell you about the judge you may end up with?

Does your new L recommend any kind of custody evaluation?

[ForeverDad]

One lesson I learned was that courts view so much as "just another day at the office/bench".  It doesn't get excited over clear wrongs.  So much negative is permitted in a divorce, presumably the court expects the emotional controversies to calm down eventually.  Sadly, that doesn't happen with our protracted cases.

My ex and I had claims against the other, hers was first, mine was reciprocal.  Once those temp orders were dismissed, there was a 3 month gap before I filed and eventually got the divorce temp order.  Both temp orders cast me as alternate weekend parent, a full 72 hour weekend, with a 3 hour evening in between.  That worked out to 22% time for me overall.

Well, the problem was that between the two temp orders stbEx demanded I agree to supervised time (which court hadn't required) and when I declined she blocked all father-preschooler time.  Even my phone calls to him were ignored.  (Later in her response to my divorce filing she countered that I was, among multiple claims, daily harassing her with phone calls, yes, the calls where I was simply trying to talk to my son.)  It's getting lengthy so my prior post will continue my experience.

Courts are very forgiving (or ignoring) of misbehaviors.  When we first separated, my ex had a Threat of DV case pending against her in one county court.  Once she got out she raced over to domestic (family) court and filed for her own protection order against me and included our preschooler, the one who 'saved' me from probably being carted off by the police on the day it all blew up.  Well, family court essentially ignored the other court's case and restrictions and ordered her temp custody and temp majority time, I got the crumbs of typical alternate weekend dad.  So there I was, with only alternate weekends, and I was protected by an order that assigned the house as my residence and she was not allowed to approach it without a police escort, not dismissed until 4 months later.  So ponder this, during those four months of that order she and our son had no choice but to live elsewhere.  She started out in the local DV shelter/home.

That in itself was not so strange, it got worse.  After a few months the temp protection orders were dismissed.  I recall the magistrate essentially staring at us that he didn't want to see us back in court again on similar ex parte complaints but only for long term solutions.  I took that to mean divorce actions.  Well, as soon as he walked out of the hearing room my then-separated spouse told me she would allow visits only if they were supervised.  Court had assigned me alternate weekends but when she got to decide it had to be supervised?  It was a case of, court is usually "less unfair" than the entitled obstructive parent.  I took almost a month to file the divorce papers and then court took almost two months to have a hearing.  When the same magistrate confirmed with her that she had blocked all father-child contact then he said, "I'll fix that."  He made a new temp order that was basically the same order as before, with me again as alternate weekend dad.  She did not get a lecture, finger wagging or any other consequence.  And I didn't get make-up time.

I get your frustration with court's inactions, I was blocked from my preschooler for over 3 months without basis beyond mother saying No and the court didn't blink an eye.

[Skip]

Further, the letter was very contentious with a very aggressive tone.

Don't give this a minutes thought to this and never react to it. Lawyers make a lot of money by triggering people... .

My lawyer received the response to the 3-4-4-3 proposal from my STBX's firm and, of course, it was rejected. The reasons stated were that I have a "demanding work schedule" and that there are (claimed) issues with domestic violence. The counter proposal was the classic every-other weekend and dinner on Wednesdays.

What you asked for was biased in your direction, what she has asked for is biased with hers.

There are two things here. The time split. You asked 50/50% with all weeks going to you. She asked for 80/20% with every other weekend thinking that best reflects her view of the situation. This is standard opening gambit, bidding.  What it does tell you is that until a temp order is set, she is going to hold out for every other weekend and if the logs enough time in this mod, the judge will just go with the way things are.

I would still get a second opinion on your case and strategy.

[DaddyBear77]

I would still get a second opinion on your case and strategy.

So I have two opinions now, one from my original lawyer and another from the new lawyer I saw yesterday.

Do you still think I should get yet another opinion? Is there some strategy or approach that maybe you aren't seeing happening which I should pursue?

[Skip]

I don't know much about the reconciliation contract, but that is serious complexity if I understand you... .does it have the teeth of a prenup? 

There is also temperament. You want a lawyer that will get you to resolution.  Not one that fights. Not one that is timid. You want an experienced lawyer who is an expediter... .many like to stoke the emotions as runs the bills or operate in a totally reactionary mode (which is not helpful).

You are betting a lot on this agent. Pick the right one.

[ForeverDad]

You were confident with your first attorney.  And your attorney recommended someone better for the task.  Actually, that's one of the questions we recommend to ask a prospective attorney, and she made a recommendation without you even asking!

Yes, get local legal advice.  Interview at least a few attorneys.  Ponder what their approaches would be, the strategies they would be inclined to use, etc.  You don't want form filers or hand holders.  This almost surely won't be a standard low conflict divorce.  You will probably need a problem solving lawyer with tested strategies.  You can even ask the lawyers, "If you were facing a case like mine, who would you use to represent you?"  After all, they know they're not going to get every person who walks in the door as a client.  And ethically if they're not up to the task then they should point you in the right direction.

I don't have major qualms with this change.  Amazing that your lawyer is refunding your retainer in full without dinging it for your consultations until now.  I think Skip wants you to be confident and informed with this choice before you leap, considering that the agreement-under-duress could be a sticky issue.

[Skip]

How hard would you shop for a $150,000 car?   

[Radcliff]

Going for a third opinion presents an interesting opportunity.  Assuming that you continue to feel confident in your second lawyer's ability to communicate with you, strategize, problem solve, negotiate, fight if necessary, etc., perhaps the third opinion need not come from someone who is a potential replacement as your main lawyer.  Perhaps it could be someone with more depth in contract law, especially around marriage contracts.  You might even ask your attorney, "If there were someone you would love to have on this case as a consulting attorney to help with the contractual aspect of this case, who would it be?"  There are not going to be that many attorneys out there who have argued complex family law contract cases.  If you find one, you might improve your situation with just a handful of added hours.

WW