The Hill I Die On

[How to communicate after a contentious divorce...]

okay, i am grumpy. i am mega mega mega grumpy.

my STBX filed for divorce 8.31.2017. and i'm not divorced. worse, i am now on my second lawyer, my idiot father-in-law is involved, and i can't seem to make myself understood to my lawyer, my f-i-l's lawyer or my estranged husband's lawyer:

I AM NOT SIGNING A NON-DISPARAGEMENT CLAUSE. I AM NOT AGREEING NEVER TO CRITICIZE MY FIL OR MY STBX OR THEIR FAMILY. I AM NOT SIGNING ANYTHING THAT SAYS MY FAMILY WILL NOT DISPARAGE, CRITICIZE, OR DEFAME.

I'M NOT DOING IT. NOT FOR ANY AMOUNT OF MONEY BECAUSE MY FIL IS LITIGIOUS. HE IS ANGRY WITH ME, AND HE HAS AT LEAST $50 MILLION.

I'm sorry. I just needed to vent. I'm also disappointed in my lawyer because she told me (and i'm guessing this is from my FIL's attorney) that the judge is going to require some non-disparagement agreement.

and i told her no that no court can require a non-disparagement agreement because it takes away your First Amendment rights. why do i know that and she doesn't? sigh.

i will be fine. i'm writing. i'm reading. i'm hanging with friends. and i'm watching my home disintegrate around me. (that was a bit of irish humor. the house isn't really disintegrating.)

anyway, i also told my lawyer months ago that this the hill i die on. there's more, but that's enough. i'm gonna go get grumpy with my dogs.

TMD

[toomanydogs]

okay, i am grumpy. i am mega mega mega grumpy.

my STBX filed for divorce 8.31.2017. and i'm not divorced. worse, i am now on my second lawyer, my idiot father-in-law is involved, and i can't seem to make myself understood to my lawyer, my f-i-l's lawyer or my estranged husband's lawyer:

I AM NOT SIGNING A NON-DISPARAGEMENT CLAUSE. I AM NOT AGREEING NEVER TO CRITICIZE MY FIL OR MY STBX OR THEIR FAMILY. I AM NOT SIGNING ANYTHING THAT SAYS MY FAMILY WILL NOT DISPARAGE, CRITICIZE, OR DEFAME.

I'M NOT DOING IT. NOT FOR ANY AMOUNT OF MONEY BECAUSE MY FIL IS LITIGIOUS. HE IS ANGRY WITH ME, AND HE HAS AT LEAST $50 MILLION.

I'm sorry. I just needed to vent. I'm also disappointed in my lawyer because she told me (and i'm guessing this is from my FIL's attorney) that the judge is going to require some non-disparagement agreement.

and i told her no that no court can require a non-disparagement agreement because it takes away your First Amendment rights. why do i know that and she doesn't? sigh.

i will be fine. i'm writing. i'm reading. i'm hanging with friends. and i'm watching my home disintegrate around me. (that was a bit of irish humor. the house isn't really disintegrating.)

anyway, i also told my lawyer months ago that this the hill i die on. there's more, but that's enough. i'm gonna go get grumpy with my dogs.

TMD

[ForeverDad]

Disparagement may have wide implications.  Have they defined what "disparagement" is defined in the framework of a post-divorce scenario?  Which aspects of "disparagement" would be unacceptable to you?  Are there any aspects which could be real-life acceptable to you?

I believe the problem is that it's nearly impossible to categorize which actions are applicable - or not.

For example, if lies are forbidden, how do you prove something is or is not a lie?  If some truths are forbidden then which are or are not applicable?

[toomanydogs]

Disparagement may have wide implications.  Have they defined what "disparagement" is defined in the framework of a post-divorce scenario?  Which aspects of "disparagement" would be unacceptable to you?  Are there any aspects which could be real-life acceptable to you?

the problem with the term disparagement is that it's too slippery. my FIL has a modest public profile. modest meaning not grand profile like a warren buffett, but less well known. he is however well known among certain wall street people, and he doesn't me to write anything that could be considered critical of him. anything that would shed him in a negative light.

so if i were to write about the divorce and how i lost my trash pickup, how they haven't fixed the pool, he could consider to be disparaging him even though it's true.

i have agreed not to defame, which means i agree not to lie.

what i need more than money from this divorce is a clean and final break. and any kind of agreement that he suggests means that someone will need to occasionally check to see what i'm writing. it's not an acceptable scenario.

but i'm not as grumpy as i was. i saw little women with a bunch of friends and it was fun.

thank you, foreverDad for getting back to me. tomorrow i will send my last settlement offer regarding my willingness to negotiate on items that they don't want me to write about. she's scheduled to talk with the other 2 lawyers this week, and she once again thought my father in law and i would be able to work out language that's acceptable to us both. we're too far apart and have been too far apart for 7 months.

good night

TMD

[worriedStepmom]

That's a shame that your lawyer isn't on the same page with you.

There *is* a non-disparagement clause in my divorce decree as part of the standard package in my state, but it is specifically related to children (can't disparage the other parent if the kids will hear it).  Since you don't have children together, that shouldn't be an issue for you.

I hope you get some closure to this soon.

[formflier]

Hey TMD! 

It's been a bit.  Sorry this legal stuff is dragging on.

I'm wondering if you can get their attention with an offer of.  I will sign a non-disparagement clause for a settlement of $xx, or I will take a settlement of $xx without a clause.

I'm wondering if a properly worded clause...perhaps something that says he must be explicitly named for their to be disparagement (so you can use pseudonyms).

What if the clause came with a covenant not to sue (on his part).  And perhaps a further clause that he must post a bond of some sort to be able to challenge any of this in the future and that the bond can be used for your legal counsel.  (basically you don't want him draining you with suit after suit)

I completely understand the desire to not sign one.  I hope you realize they are very common.

Best,

FF

[livednlearned]

With court stuff, I found you have to be the architect of your own solution...the opposing counsel will always counter offer. That's to be expected.

Is there a reasonable amount you are willing to accept in order to not write or publish anything about him?

Honestly, it seems reasonable that he would not want to be disparaged (especially knowing that you are a writer). It's not fair given what you've been through that this is what he wants ... it's also one of those "do you want to be right or do you want to get along (e.g. reach a settlement)" kind of things.

Why not calculate a reasonable amount you might make if you were to publish something and ask for that to be included in the offer.

Moving on feels great. I hope you are able to achieve some peace and resolution in this.

[toomanydogs]

Hey all, it’s been a bad day,  so I’ll get back to you all tomorrow. Thanks for your responses.

TMD

[formflier]

Hey all, it’s been a bad day,  so I’ll get back to you all tomorrow. Thanks for your responses.

TMD

If you want to vent and tell us about your bad day...we are here for you.  

Hoping you can look at these ideas we are pitching at you and use that to "shake up" your offers.  It may well be that you need to go to trial to get a settlement/decision.  

Here is the thing, trial is a "known unknown".  A settlement is a known thing.  

Ask your L if at trial a non-disparagement clause can be imposed on you?  (I doubt it)

Here is the thing.

Let's say you get a trial decision and write your book and then get sued by FIL.  

compare that to getting a non-disparagement clause WITH A COVENANT NOT TO SUE.  That defines disparagement as the use of his name and protects pseudonyms.

Which place would you rather be?

Best,

FF

[MeandThee29]

I'm sorry that you're still going through this.

My settlement was loud-and-wild near the end, but got signed. So I got my year end divorce. Still can't believe it!

[toomanydogs]

 

Ask your L if at trial a non-disparagement clause can be imposed on you?  (I doubt it)

Here is the thing.

Let's say you get a trial decision and write your book and then get sued by FIL.  

compare that to getting a non-disparagement clause WITH A COVENANT NOT TO SUE.  That defines disparagement as the use of his name and protects pseudonyms.

Which place would you rather be?

Best,

FF

Hey FF,
  My bad day yesterday was in direct response to my lawyer not understanding that the non-disparagement needs to be off the table.
  I think signing a non-disparagement agreement with a covenant would be ideal. I doubt that my FIL would go for that.
  A bit of background, according to my Lawyer2 (my Lawyer1) withdrew. Back in July I had an argument with Lawyer1 regarding the non-disparagement. I also took issue with language that stated my FIL and STBX agreed to hold me harmless for any action that occurred in the marriage including mismanagement of trust disbursements.
  I told her to take the language out. she said it protected me, i said it made me sound guilty. we went around & around. i finally said, 'look at it this way. suppose i were to write i agree to hold FIL harmless for anything that happened in the marriage including sexual impropriety. that makes him sound guilty.' she then said she'd include the phrase.
  i never knew (probably because i'm a bit naive about legal proceedings.) never knew that my FIL ever saw that language. didn't occur to me because Lawyer1 got back to me within the hour, saying that the other lawyers said it was too big a bomb and couldn't be included.
  now, according to my FIL's lawyer, my FIL thinks i'm litigious. in this time of #MeToo, i totally get it, but i explained to Lawyer2 that it was only using that as an analogy.
  this has really turned into a cluster. i'm going away for the weekend, and i'll think about telling my lawyer that if there's a covenant not to sue then i agree not to disparage. not sure i'll go there because truly my FIL is litigious with incredibly deep pockets.
  i have looked into anti-SLAPP legislation here in my state and will research attaching myself to the newspaper out here and argue from that perspective. possibly. haven't really made a final decision.
  most definitely, the court cannot require i sign a non-disparagement because it limits my first amendment rights.
  right now, i'm feeling good. i'm going away for the weekend to celebrate a friend's birthday--she'll be 60. i'm really looking forward to it.
  thanks, FF. i'll think about what people are suggesting. it's just discouraging because i thought lawyer2 understood, and i had submitted a counter offer to the request for a non disparagement, which identified what i wouldn't write about and invited my FIL and his lawyer to respond. they never did.
thanks again!
TMD

 

[toomanydogs]

I'm sorry that you're still going through this.

My settlement was loud-and-wild near the end, but got signed. So I got my year end divorce. Still can't believe it!
[/quote
  CONGRATULATIONS!

[toomanydogs]

With court stuff, I found you have to be the architect of your own solution...the opposing counsel will always counter offer. That's to be expected.

that's the frustrating thing; they have not counter offered to my offer; they just keep repeating themselves. i only describe them in four-letter words these days.

Is there a reasonable amount you are willing to accept in order to not write or publish anything about him?

my reasonable doesn't match their reasonable. they offered me what they said a book like that would be worth, which was laughable because it was in the six figures.
i am an unknown writer. if i were to get an advance of $10,000 it would be incredible.
the issue--and what they need to pay me for--is my willingness to let my FIL breathe down my neck for the rest of my life. and that would cost them more than they seem willing to pay.

Honestly, it seems reasonable that he would not want to be disparaged (especially knowing that you are a writer). It's not fair given what you've been through that this is what he wants ... it's also one of those "do you want to be right or do you want to get along (e.g. reach a settlement)" kind of things.

i need a clean and definite break from these people. agreeing to what he's asked me to do would mean he would be breathing down my neck for the rest of my life.

in 2010, he went after my website, sent security firms that help protect business's interests all over my posts, so much that i had to block those firms.

my position here is my FIL is a bully, and you don't stop a bully by acquiescing.

I have a prenup that should protect me.
[/quote]

Moving on feels great. I hope you are able to achieve some peace and resolution in this.

I'm hoping i get divorced at least by the time i'm 80, so i can find some spry 90-year-old i might want to marry. (that is a joke. a bit of gallows humor.) 

Thanks for getting back to me,
TMD

[ForeverDad]

... and i had submitted a counter offer to the request for a non disparagement, which identified what I wouldn't write about and invited my FIL and his lawyer to respond. they never did.

When the other side doesn't respond, we're tempted to sweeten the deal in hopes some tweaking will sufficiently sweeten the deal.  The problem with that is their lack of response is essentially a strategy, and we're bidding against ourselves, so to speak.

[formflier]

Covenant not to sue would take "the worry" off the table about being litigious. 

Listen TMD, I've been thinking about this and when I came back and read Forever Dad's thoughts (which were close to my own), I think dragging feed is THE strategy.

They probably think they have a bigger "gas tank" than you and will outlast you. 

So, I would support you going to your L "one more time" and accepting the clause as long as they promise not to sue AND, with specific language in there that if they do sue, they pay all your L fees.  A promise to not sue isn't any good unless there are consequences.

I would also authorize your L to let them know the offer is on the table AND you will be pressing to get to trial ASAP. 

Do I remember right they have not turned over discovery.  Can you press for trial and press for penalties for no discovery?

I think it might be interesting to take a poll.  Let's assume the strategy for them is to wait you out.

Should you

1.  Continue negotiating against yourself.

or

2.  Press forward to trial/limit delay.

What other options are there?


Best,

FF

[scraps66]

This is a very common caveat to put into a divorce decree.  It means nothing and would be supremely difficult to enforce.  Play the game a little, I'm sure there are other significant things to resolve.  However, if the judge is making these statements as if this is some kind of monumental idea to resolve differences, watch out.  This judge could be a real gem. 

[toomanydogs]

Covenant not to sue would take "the worry" off the table about being litigious. 

I want to be sure I understand. So, I should strike the clause in the last "agreement" they sent, which indicates in the event of litigation prevailing party can collect legal fees from non-prevailing party? (An aside: My L thought this clause protected me from a frivolous lawsuit. I thought the exact opposite. Thought FIL was preparing to sue. I took it as more threats.)

Listen TMD, I've been thinking about this and when I came back and read Forever Dad's thoughts (which were close to my own), I think dragging feed is THE strategy.

They probably think they have a bigger "gas tank" than you and will outlast you. 

I think they are counting on outlasting me.

So, I would support you going to your L "one more time" and accepting the clause as long as they promise not to sue AND, with specific language in there that if they do sue, they pay all your L fees.  A promise to not sue isn't any good unless there are consequences.

I would also authorize your L to let them know the offer is on the table AND you will be pressing to get to trial ASAP. 

Isn't this "bidding against myself" in that they have yet to make a legitimate offer, meaning one that is reasonable for me to accept?

Do I remember right they have not turned over discovery.  Can you press for trial and press for penalties for no discovery?

the Hearing Officer ruled in August that my FIL is not part of the divorce and does not need to turn over discovery. The rub is that my STBX does not have access to any of the financial documents.

Should you

1.  Continue negotiating against yourself.

or

2.  Press forward to trial/limit delay.

What other options are there?

Best,

FF

I agree I shouldn't negotiate against myself, which is why I re-sent the offer I made in October. I didn't change anything.

If I go back to my L and tell her I will accept a non-disparagement but they are prohibited from suing (I'd add a putative clause in addition to paying legal fees) is that not negotiating against myself?

I have mentioned to my L (since October) that I think we should press forward with a summary judgment and get this over & done with.

One more item clogging up the works: my STBX has stopped cooperating with his lawyer, and she now may withdraw.

Thanks, FF!
TMD

[toomanydogs]

This is a very common caveat to put into a divorce decree.  It means nothing and would be supremely difficult to enforce. 

A non-disparagement agreement in a divorce decree when there are no children is extremely uncommon in my state. Such agreements are common in employment contracts and some civil suits, not in family law.

And while a non-disparagement agreement might possibly be difficult to prove, my FIL has an incredible amount of money to spend/waste on a lawsuit. His estimated worth is somewhere over $100 million. And he has a track record of being litigious.

Thanks,
TMD

[scraps66]

And while a non-disparagement agreement might possibly be difficult to prove, my FIL has an incredible amount of money to spend/waste on a lawsuit. His estimated worth is somewhere over $100 million. And he has a track record of being litigious.

Then perhaps there is an opportunity.  If FIL was so arrogant and affluent to march into court with claims of subjective and undefined disparagement, I'd like to think even a slightly skilled attorney could make that look petty and frivalous.  He's a narcissist?

Another way to look at this, if you're fighting against this disparagement clause it could be a logical perception that you have designs expectations to disparage in the future. 

And is this the last straw?  Last thing to argue over?  BPs do that, mine did.  She had moved out of the marital residence, bought her own house, but would still not agree to a settlement.  The last thing she was holding onto was getting her name off the deed to the house.  I had to go to trial to resolve.  I had no alternative to compromise.  On this topic, if you were to agree, that is one less thing and perhaps the last thing to resolve on the list?

Also, if he's having issues with his attorney, be careful if he loses representation.  That then means that there would be no way of communicating.  My ex did that too, was pro se for a period of time.  During that period she responded to nothing and in fact my attorney took advantage of that dragging my case out.

[MeandThee29]

And while a non-disparagement agreement might possibly be difficult to prove, my FIL has an incredible amount of money to spend/waste on a lawsuit. His estimated worth is somewhere over $100 million. And he has a track record of being litigious.

My agreement has a few pages of what my lawyer called "spurious and unenforceable nonsense" that my ex apparently put in against his lawyer's advice. We let it go in order to get it signed, but there is seriously no way my ex would know if I was complying or not. No monitoring, no penalties.

Thankfully his resources do have limits though.

Crazy stuff.  

[MeandThee29]

And is this the last straw?  Last thing to argue over?  BPs do that, mine did.  She had moved out of the marital residence, bought her own house, but would still not agree to a settlement.  The last thing she was holding onto was getting her name off the deed to the house.  I had to go to trial to resolve.  I had no alternative to compromise.  On this topic, if you were to agree, that is one less thing and perhaps the last thing to resolve on the list?

Also, if he's having issues with his attorney, be careful if he loses representation.  That then means that there would be no way of communicating.  My ex did that too, was pro se for a period of time.  During that period she responded to nothing and in fact my attorney took advantage of that dragging my case out.

My settlement is done, but I have similar concerns on the post-divorce court orders. I hope court isn't necessary for something that mirrors the settlement. Should be simple, but it isn't.

[toomanydogs]

He's a narcissist?

I suspect he is.

Another way to look at this, if you're fighting against this disparagement clause it could be a logical perception that you have designs expectations to disparage in the future. 

I am fictionalizing my marriage & my interaction with FIL and MIL.

I have so many issues with these people including the latest non-disparagement agreement that once again includes FIL, STBX and their spouses & family members. The way this thing is written I'd be signing on behalf of my family, that they would all agree not to disparage, criticize, or defame the in-laws & their family members.

When I mentioned it to my lawyer, first thing she asked is whether my family had an axe to grind, and i said 'yes, my family all hates them, but whether they'd write anything, who knows?'

she then said we should list the family members, and then i said, i'd still be agreeing that they wouldn't write anything. how can i possibly control 5 sisters, 1 brother, 1 son, 1 daughter, 2 grandkids, and more cousins than i can count?

And is this the last straw?  Last thing to argue over? 
 On this topic, if you were to agree, that is one less thing and perhaps the last thing to resolve on the list?

no. that is what is so frustrating. they have not agreed to anything i've requested; they just keep coming back with this idiotic non-disparagement.

i have said, i will enter into a separate contract with my FIL. no answer.

i have asked that the marital home, owned by my stbx's trust administered by FIL, be given to me. no answer.

i have asked for money over and above the prenup. they offered to "pay" for the non-disparagement.

so in a way, this isn't the final thing to resolve, it is the first. no movement on their part.

if we go to court, they cannot get a non-disparagement or a non-disclosure as family court in my state is completely public.

Also, if he's having issues with his attorney, be careful if he loses representation. 

what will happen if he loses representation is that he will have to have a guardian and a conservator appointed. he will lose all access to his money.

thanks, scrapps!

TMD

[toomanydogs]

My settlement is done, but I have similar concerns on the post-divorce court orders. I hope court isn't necessary for something that mirrors the settlement. Should be simple, but it isn't.

none of this is simple when the parties are so disordered.

TMD

[MeandThee29]

none of this is simple when the parties are so disordered.

Plus past behavior is the best predictor of future behavior.

You know it's bad when your therapist says that at nearly every appointment, and then so does your divorce lawyer.

[scraps66]

Didn't dawn on me - this is projection.  They are fighting over this disparagement clause, insinuating that it is of grave concern that you would be the disparate party when in fact it is your FIL that has the make up and history to maintain a campaign of distortion.

My ex did this to her first husband.  I had found some e-mails between the two of them, hardcopies, when I was collecting documents for her second divorce.  Without question the e-mails I found proved that she was cheating on her first husband.  I would later learn that he was either incapable or wouldn't get her pregnant.  She wasn't getting her way, so, she started to abuse by sleeping around town.  The e-mails went back and forth about who would file for the divorce, there were many.  I didn't find an agreement, seemed like the discussions went dead.  Then I found the divorce petition. She went ahead and filed a fault divorce stating the reasons for the divorce included that the hubby was an adulterer.  Simple form of projection.

[MeandThee29]

Didn't dawn on me - this is projection. 

Definitely a factor. Mine doesn't trust anyone and has told me -- not the legal system, not his lawyer, not me. And yet how can someone so unpredictable and vindictive be at all trustworthy?

Also shame is often at play. If the shame over what happened is great, they see certain actions as being a way to cover it up, even if it doesn't make sense and costs a lot. Even if it really doesn't work.