Seeing New Lawyer Today, Probably Heading to Court

[Family Court Strategies: When Your Partner Has BPD OR NPD Traits.]

Well...
   I'm seeing a new attorney today, who does nothing but litigate divorce.
   We (primarily I) could not reach an agreement on the non-disparagement clause primarily because the settlement offer would require that I work in order to make ends meet, and I'm a writer. And the non-disparagement clause was so broad and applied to STBX's unnamed family members and required my agreeing to pay court costs should they decide I was in contempt.
  So... I don't want to go to court; however, I was given two bad choices. Of the two, going to court is preferable because the court has no authority to order a non-disparagement clause or a non-disclosure.
  Sigh...
TMD

[toomanydogs]

Well...
   I'm seeing a new attorney today, who does nothing but litigate divorce.
   We (primarily I) could not reach an agreement on the non-disparagement clause primarily because the settlement offer would require that I work in order to make ends meet, and I'm a writer. And the non-disparagement clause was so broad and applied to STBX's unnamed family members and required my agreeing to pay court costs should they decide I was in contempt.
  So... I don't want to go to court; however, I was given two bad choices. Of the two, going to court is preferable because the court has no authority to order a non-disparagement clause or a non-disclosure.
  Sigh...
TMD

[MeandThee29]

Living in that world too. There are several significant issues on the table that a judge wouldn't undoubtedly NOT handle that way.

Thankfully my lawyer is known for his negotiation skills and litigation, so I'm covered. I'm not happy that court may be the only way, but these aren't inconsequential.

[formflier]

A "specific" non-disparegment and NDA is normal. 

One that is so broad as to prevent you from fictionalizing you life...I wouldn't sign it either.

Or...I would require they pay me for the lost wages. 

Be prepared to settle at the last minute..literally on the steps.  Have a nda and non-disparagement clause ready to go that you are ok with. 

What's up with the new lawyer?

Best,

FF

[toomanydogs]

A "specific" non-disparegment and NDA is normal.  

Hey FF,
  What I keep reading and hearing is that a non-disparagement clause in a divorce is unusual except when there are kids involved, and then there would a non-disparagement clause to prevent one parent from bad mouthing the other to the kids.
  NDA I heard is normal in facilitation.
  Have you heard that non-disparagement is common in divorce? I've heard it's very common in employment contracts and personal injury settlement.

Or...I would require they pay me for the lost wages.

And they have said repeatedly, they will not bring their offer any higher. And it is barely more than the prenup. I am okay if they give me less than I think I should have, provided they not prevent my making a living.

What really bothers me about the non-disparagement: We went into facilitation the end of June. The facilitator brought up the NDA/non-disparagement, saying that he was sure my L had discussed it with me. She said it was the first she'd heard of it.

I told the facilitator that they would not get an NDA/non-disparagement for what they were offering. "Won't happen," I told him. The offers they have made would require my returning to work part-time.

What I remember that facilitator saying and what my daughter remembers (she was with me) was that he wanted to "dangle" it in order to keep my FIL in negotiations.

The "offer" my L put together as a result of settlement expired the beginning of July.

I then told my L that I would not enter into a non-disparagement because of its effect on my writing; she said she'd put into that offer language about our requiring more money if the language would be too restrictive.. She also, I remember, said she wanted to "dangle" it.

I told her (this was a phone call not email) she could go ahead and dangle, but it would never happen. I wasn't signing any non-disparagement because of  its adverse effect on my writing and because the "offer" they'd given me was so low, I'd need to get back to work. (Not the end of the world. I like working.)

Okay, so from the end of June until July 30, FIL and his lawyers do not forward this non-disparagement clause. On July 30, they finally send it. It includes my not disparaging FIL, my STBX, and their unnamed family members. It prevents me (not FIL or STBX) from using photographs, writing a memoir, a blog post, causing a memoir to be written, and writing at all about my marriage whatsoever, even fictionally.  Additionally, before I wrote anything I'd need to get written releases from those unnamed family members. And I'd agree to pay their legal fees should they decide they had an action against me.

I responded that I wouldn't defame anyone. FIL's lawyer didn't like that, said all I was agreeing to was to follow the law. Exactly.

Most recently, my L has been leaning pretty heavily on me to sign some non-disparagement clause. She has told me if we go to court, I'll get XX per month, which would actually be higher than what they have offered. Difference is that they would pay me a lump sum. She told me I need a lump sum and the court can't order that.

She now tells me she never said she'd "dangle" the non-disparagement to keep FIL in negotiations. She doesn't use language like that.

Yesterday, she asked if I'd agree just to the prenup and not to take anything from the house in exchange for no non-disparagement.

Her behavior is confusing to me. I know what I heard, and I know what I told her. As far as I'm concerned, any talk of non-disparagement stopped when that first offer expired.

A few weeks ago, she told me she had case fatigue and she wasn't the right lawyer to litigate.

Be prepared to settle at the last minute..literally on the steps.  Have a nda and non-disparagement clause ready to go that you are ok with.

I'll think about what I'd be okay with. One of the issues is that asking my STBX to sign a non-disparaging is unenforceable because he is so low-functioning, but I'll think about what kind of financial award I'd ask for in the event that he did start going online about me.

What's up with the new lawyer?

Ahh. Now I'm completely confused. Let's call him B, let's call my current lawyer J.

B does nothing but litigate. He asked why I was thinking of leaving J. I told him J said she had case fatigue and that she didn't think she was the right lawyer to litigate.

B is genuinely surprised and a little confused about this. He tells me he knows J, and she's a good lawyer, and that my case is just a case, pretty straightforward with the exception of my FIL being involved.

His advice to me is to stay with J. That said, if she really wants out, he'll represent me. And here's where it really gets confusing.

1) He tells me that getting discovery turned over at this point isn't even necessary. That the case is an alimony case only, and we'd be able to determine an alimony award based on what my STBX and I lived on when married (I have bank statements) and what STBX is living on currently.
2) He repeats what J told me originally: that no one would expect me to go back to work because of my age.
3) He strongly disagrees with the suggestion the facilitator made that if I were to go to court, I'd get XXXX per month. The figure he comes up with is nearly double that, and he cautions me that you don't always know what a judge will do, but he feels fairly confident that XXXX per month, which would be about 50% higher than the figure the facilitator quoted, would be likely.
4) He reinforces what J and the facilitator told me--that the judge doesn't give huge awards.
5) Judge doesn't have authority to give me the house.
6) He is amazed that FIL got involved, calls it a blunder for a couple reasons pertaining to statute.
7) Judge doesn't have authority to grant an NDA or non-disparagement, asks what FIL is afraid I'll say.
8) He also thinks that the case would settle before trial because I told him that the only thing my FIL wants is that non-disparagement. I know this because a) he brought it up only at settlement, which prevented J from knowing anything about it (when I hired J, I told her my FIL would want an NDA. I know the man.), and b) he didn't give us the language for the non-disparagement until exactly one day before he wanted the divorce to be settled. (For some reason, he wanted the divorce to wrap up the end of July).

Sorry this is so long. Writing everything down helps. To a certain extent. I'm still really confused why my lawyer seems to have backed down so dramatically. And I don't know what to make of her saying she's got case fatigue and B being so puzzled by it.

Thanks, FF.  

TMD

[formflier]

OK..so I get it FIL wants the non-disparagement...but did he offer more for it?

Is what you are likely to get at trial more or less than the pre-nup?

Even after (ask about this) you get an award from the judge, you can settle (accept) a lump sum.  That's the wonderful thing about civil.  If both parties agree...it can be done.

Let's dream a bit. 

You go to trial and it comes true.  You get a number from the judge.  No house...no nda...no non disparagement.

This will likely help both sides think more clearly because now each side actually "has something".

Now...you offer to accept the NDA (and whatever other agreements) in exchange for the house and a lump sum.

Here's an interesting thing. 

Have a clause ready that says you will seek their release to fictionalize your story.  Essentially you are offering them a first right of refusal. 

It's imperative that the agreement say where and how you will prove that you notify them (certified return receipt) and that they have XX days (lets say 30) to respond to XX address via provable methods (again ..likely certified return receipt). 

If no response, no response functions as their refusal.  If they respond they have an additional xx days to pay out your book contract.  Instead of you getting paid to write..you will get paid not to write. (about that)

As far as the lawyer...I tend to lean towards keeping your team intact.  If she bows out..she bows out.  You have someone ready.

Best,

FF

[GaGrl]

I'm going to disagree with FF -- and that rarely happens.

B sounds as if he has more clarity on the situation from a litigation standpoint. I would let him have at it.

J says she has case fatigue. I think she has FIL fatigue, which B says should not have happened in the first place.

[formflier]

Perhaps it's best to readdress things with J in a week or so.  

My CPA that I had used for many years had said that I would be better served with someone else for a long time.  (we were no longer co-located)  Still..I didn't want to change and he was capable so we continued.

Finally..an issue came up that he didn't really work with and he would have to refer me out to someone else anyway.  I found someone in my new area that could handle this new issue...and all my "normal" stuff.  

It's been a good fit and I'm still friendly with my old guy (was a deacon in the church I grew up in)...I knew him for years before I started using him.

Anyway...I'm loathe to change directions, especially "in the 4th quarter".  There would have to be "clear and convincing" evidence to do so.

If J continues to not want to do this...perhaps that's it.

Perhaps hire B to be lead litigator and retain B as co-counsel for continuity.  They can consult as needed.

Switching gears.

TMD..how well do you know FIL?  He's obviously a control guy...and/or is scared of "outing his son".  

So...how do you think he will respond "on the courthouse steps"?

Letting a judge have control over him is the ultimate loss of control...my guess is he will want to settle then.

However...if disorder is heavy in the family he may pick a couple things he "has to" win...and ignore other rational solutions.

Circling back to B (and J)

So..B thinks FIL involvement is bad..per statute.  Ask him explicitly..."how do we capitalize on this error?"

Best,

FF

[formflier]

In the past I've talked some about long term legal issues (outside BPDish stuff) that I've been working on.

I hired two different lawyers to work together (they were already colleagues).

One was a walking talking encyclopedia but was a bit "green" (young) arguing things in court.

The other guy was fabulous in court, but didn't have the ability to create written motions and have an encyclopedia brain the way the first one did.

It worked out well for me.

Best,

FF

[toomanydogs]

Perhaps it's best to readdress things with J in a week or so.

Anyway...I'm loathe to change directions, especially "in the 4th quarter".  There would have to be "clear and convincing" evidence to do so.

If J continues to not want to do this...perhaps that's it.

I am also reluctant to change this late in the game. I have emailed J asking her for clarification and asking if it might be advisable to have one of the other attorneys in her firm step in for her.

TMD..how well do you know FIL?  He's obviously a control guy...and/or is scared of "outing his son".  

The issue isn't his son. The issue is he and his wife have a public persona that would be damaged by my writing a memoir.
FIL & his wife are very big in philanthropy for all the "right causes" on the left, including female empowerment, an end to domestic violence, and easing stigma of mental illness.
The difference between their public persona and their private behavior would/could have a damaging effect on their reputations.
Additionally, FIL does investments. His behavior, including his being quite litigious, would be probably off-putting for future clients and possibly existing clients.

So...how do you think he will respond "on the courthouse steps"?

I think to get his non-disparagement clause he will push before the courthouse steps. Through his attorneys, he's been adamant about not giving me additional money.
J said he's betting on the court giving me no more than the prenup, but as I've already mentioned that is more than he's offering currently.
When he understands that I'm not simply playing chicken with him, and that I will not budge on the non-disparagement clause with the offer he's made, then I think he'd budge.

However...if disorder is heavy in the family he may pick a couple things he "has to" win...and ignore other rational solutions.

Additionally, there is mental illness--very public mental illness--throughout the family. That, too, could damage his standing.

So..B thinks FIL involvement is bad..per statute.  Ask him explicitly..."how do we capitalize on this error?"

 I did. The best way to capitalize, according to B, is for me hang tight to "no non-disparagement" without financial consideration.
There were some other areas regarding enforceability that benefit me.

 
TMD

[toomanydogs]

I'm going to disagree with FF -- and that rarely happens.

B sounds as if he has more clarity on the situation from a litigation standpoint. I would let him have at it.

J says she has case fatigue. I think she has FIL fatigue, which B says should not have happened in the first place.

Hi GaGrl,
   What I figure is that if J has case fatigue, for whatever reason, I'm better off with someone who is fresh. When J told me she had case fatigue, I told her if I could get out of this, I would. It's enervating, and has been going on for 2 years. I totally understand her fatigue.
TMD

[formflier]

  Through his attorneys, he's been adamant about not giving me additional money.

Most likely this is a negotiating stance or it's irrational.  The only way to find out is to proceed to trial and be ready for a last minute settlement.  (seriously..have one written out you are "more than ok" with).

Why "more than ok"?  You want to have room to "cave in" on the courthouse steps.  You know his personality...he will wan

t to whittle you down.

OK..I'm not familiar with what you would earn writing a book.  Make sure and talk to people and get an estimate (hopefully in writing) of your potential earnings.

Hey...the more I've been thinking about it...I don't think you should "dismiss" your attorney (the tired one)...but if she want's a break, let someone else take over lead.

If she doesn't want out..ask her about the downsides for you...of getting a new attorney so late in the game.

Best,

FF

[GaGrl]

I do like the idea of B and I as co-counsel. That way, whether it settles on the courthouse steps of goes to trial -- you're covered.

Is FIL' s lawyer a litigator? If it goes to trial, that could be an interesting scramble on his side.

[toomanydogs]

Is FIL' s lawyer a litigator? If it goes to trial, that could be an interesting scramble on his side.

Yeah, FIL's lawyer does nothing but litigate trusts. When FIL brought him on, I told a friend, who happens to be a lawyer, that I figured FIL was doing so to intimidate me. It didn't intimidate me but it did intimidate my lawyer J.

FIL's lawyer's strategy is to inundate with paper. He responded to the motion for advancement of attorney fees with  36 pages of, "oh my, J, why would you need extra fees? We haven't been doing anything for a while, and you should have saved those fees."

He's one of those kinds of lawyers. I think I'm just simply too tired of these people to be intimidated by anything they do. FIL is a bully. Bullies tend to be cowards at their core. And I've never been bullied, so none of this feels familiar, so I'm not reverting to old patterns.

I have a history of making nice with the men closest to me in my life, ie: STBX, but FIL isn't close to me, so his behavior and his bullying just seem peculiar.

I predict that the next thing he will do when he figures out i'm not giving him that non-disparaging clause is he'll try to kick me out of the home.  He can't evict, but he can say that he wants to take ownership of it. It will then have to be argued in court.

God, this is is exhausting. For the first time, I totally regret marrying my STBX. Nothing he gave me is worth this. Pretty certain I'll change my mind eventually but right now... God, help me, I pretty much hate them.

TMD

[formflier]

Pretty much what I thought.  

Your lawyer J is tired of all the paper.

That's what she means by fatigue.  Perfect for a co-counsel (someone else to handle paper in the background)

So...you have to be ready for legal tricks and you have to be ready to "pull them".  Only works if there is an opening.

So..courthouse steps you give him the non-disparagement clause he wants (lets assume you go for bigger settlement and "cave in" on the house.  

One trick is to put in a covenant not to sue.  You get your lump sum and then stay put in the house.

 

Think about it..how do they evict if they can't sue?

Best,

FF

[toomanydogs]

Hey all!
   Thank you for responding to this thread. I have an update. And I will put in my Happy Dance    
    I've been working on the story of my marriage--memoir? And this morning a portion of it was published online in a mental health journal.
    The publication couldn't have come at a better time. I needed to know there's interest in that story from someone who doesn't know me. Additionally, having the piece published (and not self-published) provides me with more ammunition regarding my needing to be compensated for any non-disparagement clause. I'm not just a self-published author. I'm an author someone who doesn't know me wants to publish.
     
  Thank you, everyone here. Thank you, God: when I stumble, when I am sure I can go no further, You lift me up. Thank you!
TMD

[formflier]

Nice!

[worriedStepmom]

What excellent timing for you!

Congratulations

[GaGrl]

Perfect! I am so happy for you!   

[MeandThee29]

Good news. What an encouragement to you.

[toomanydogs]

Nice!

Thank you, FF  

[toomanydogs]

What excellent timing for you!

Congratulations

Thank you, Worried!   

[toomanydogs]

Good news. What an encouragement to you.

Thank you, MeandThee!   

[ForeverDad]

Commenting on the statement that court would likely grant or order a monthly payment alimony (similar to annuity) rather than a lump sum...

Right now inflation is low, but in future years it very well could surge.  I suggest that you try to get any alimony's regular payments linked with some sort of COLA or inflation calculation.  Or a clause describing when there is basis to have court to raise the amount.  You might have to return to court to get a calculated change enforced but at least try to have a foundation for that.

[toomanydogs]

Right now inflation is low, but in future years it very well could surge.  I suggest that you try to get any alimony's regular payments linked with some sort of COLA or inflation calculation.  Or a clause describing when there is basis to have court to raise the amount.  You might have to return to court to get a calculated change enforced but at least try to have a foundation for that.

Thanks, ForeverDad
   A friend, who's a financial planner, told me the same thing. And an update to all this: My current lawyer, J, will no longer be representing me as of Thursday, provided the Court agrees.
  I have contacted the replacement lawyer, B, to let him know I don't have a retainer but that J will request a trial retainer to turn over to him.
  I really hope this doesn't go to court. What I've read about court is that litigation begets additional litigation.
  I feel that I've been beyond reasonable. And I cannot sign a non-disparagement when they refuse to compensate me for it.
  Happier news: I had another chapter in the memoir published. Getting published really helps me have hope in the future regardless of what kind of financial settlement I receive.
TMD