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Author Topic: What burden of proof is needed for a restraining order or an ex parte order  (Read 750 times)
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« on: February 12, 2020, 07:51:22 AM »

I can certainly see how that could happen in some circumstances....

What burden of proof is required to do such things. These things can happen irrespective of whether or not I have engaged a lawyer?

The money is a non-issue.
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« Reply #1 on: February 12, 2020, 09:28:43 AM »

Hi Enabler;

Popping in again from Family Law  Welcome new member (click to insert in post)

Excerpt
What burden of proof is required to do such things.

In the U.S.A., I've heard that the "burden of proof", if any, is very little. "I feel scared of him/her" is what I have heard (thirdhand, to be fair) used as enough to get a R.O. I do not know if there is a difference for an ex parte order, which, if I recall correctly, has to do with the speed at which something is done (and the "only one party need appear" aspect), rather than the content. Other members, please feel free to step in to elaborate or correct.

In the U.K., it may be different.

Excerpt
These things can happen irrespective of whether or not I have engaged a lawyer?

Sure. Someone could take out a R.O. against you regardless of your legal position or representation.

Excerpt
The money is a non-issue.

For whom?

...

Talk us through a bit what situation you're thinking about when you think about RO's and ex parte orders...

Cheers;

kells76
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« Reply #2 on: February 12, 2020, 10:01:50 AM »

Are you familiar with occupation orders?

Excerpt
The money is a non-issue.

For whom?

What percent of the joint cash (community property) does she have full access to (can withdraw)? What percent of the joint cash do you have access to (can withdraw)?



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« Reply #3 on: February 12, 2020, 10:35:44 AM »

Talk us through a bit what situation you're thinking about when you think about RO's and ex parte orders...

This was something that Skip mentioned TBH. My w has recently given me an ultimatum, I move out or she does. I responded with "okay, you move out and we'll go 50/50 on parenting schedule". She also alluded to getting lawyers (more) involved (currently behind the scenes as advisors as we're utilising a mediation service at the moment. The fear (from others.... and now me) is that my W's lawyer will instigate more aggressive tactics with immediate effects, taking me off guard evicting me from the family home with RO, draining bank accounts and generally taking control to seize assets.

Skip, My W has sole access to 36% of the cash assets, I have sole access to 64% of cash assets. The property is in both of our names as is the mortgage. There are no joint assets she can seize.

I found this online which is the Application for:
 a non-molestation order
 an occupation order

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/856365/fl401-eng.pdf

There seems to be a burden of proof required, I am not sure whether or not that burden of proof can be anecdotal and most other sources I have checked say that there need to be court quality evidence.

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« Reply #4 on: February 12, 2020, 11:04:14 AM »

This seems like a really good question for your lawyer. I will say that in my state, the evidence needs to be of court quality. However, for an ex-parte restraining order, the evidence does not need to be presented; that is part of the court hearing where the respondent is present -- all of that is in my state, though. The rules may be different in England, and you need to know what applies in your situation.

Again, talk with your lawyer about the situation ASAP. 
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« Reply #5 on: February 12, 2020, 11:08:22 AM »

Something to take into account, and I’m not saying that this would in any way meet the legal definition of proof, but she apparently has a history of telling her friends that you’re abusive.

I don’t know if you have a solicitor yet, but if you don’t, get one today.
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« Reply #6 on: February 12, 2020, 12:19:20 PM »

Skip, My W has sole access to 36% of the cash assets, I have sole access to 64% of cash assets. The property is in both of our names as is the mortgage. There are no joint assets she can seize.

Is this correct:

She has no access to joint/community assets - you have sole control of those.
She has access to funds that are non-joint/community assets.
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« Reply #7 on: February 12, 2020, 12:26:28 PM »

Is this correct:

She has no access to joint/community assets - you have sole control of those.
She has access to funds that are non-joint/community assets.

Res ipsa loquitur
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« Reply #8 on: February 12, 2020, 03:36:56 PM »

Incorrect Skip, all funds are “ours” however all funds are in individually held accounts. There are no joint accounts and never have been. All bills come out of my account, always have done. It all started when we went to the mortgage broker pre marriage when we were buying our first home. There was an awkward silence and I was the first to hand over my bank details, things just stayed like that.
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« Reply #9 on: February 12, 2020, 03:51:49 PM »

I might add that the proportion of savings has ebbed and flowed over the years. When I was unemployed for 20m in 2012 she had almost all the savings as mine were drained first. I’ve since rebuilt the war chest.
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« Reply #10 on: February 12, 2020, 03:57:21 PM »

Is there a joint savings account?
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« Reply #11 on: February 12, 2020, 05:28:17 PM »

Didn't she ask you to give her money for an attorney?
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« Reply #12 on: February 13, 2020, 12:58:32 AM »

Correct, she did. Which was odd since she has her own savings. I declined to give her money for her attorney and directed her to her own savings.

I am the primary income earner now, she has income but it isn’t sufficient (arguable) for her. So periodically she asks for funds. I have asked her numerous times over years (evidenced) to give me a number for a regular payment such that she can manage that money and maybe a set basket of responsibilities associated to that money.... she declined.
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« Reply #13 on: February 13, 2020, 01:00:08 AM »

There is no joint savings account. The only thing in joint names is the mortgage.
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« Reply #14 on: February 13, 2020, 07:32:15 AM »

The fact she won't share a monthly budget with you is another block to mediation. It may take a solicitor for her to disclose financials. Otherwise, you would be paying out support blindly.
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« Reply #15 on: February 13, 2020, 09:54:33 AM »

Well apparently asking for clarification of where ‘the money’ was going was abusive, and I shouldn’t need to know (in the past). Asking her to be accountable was considered abusive.

She has formulated a summary of what she spends her money on for the purposes of mediation.
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« Reply #16 on: February 13, 2020, 12:51:52 PM »

Have you spoken with your lawyer?
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« Reply #17 on: February 13, 2020, 07:24:19 PM »

Does her formulation resemble reality? Does it include her projected new housing and utility costs?
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« Reply #18 on: February 14, 2020, 06:31:51 AM »

As part of the UK process you have to submit an expense analysis.... current expense and future expense. The future bit is typically where people kitchen sink all their 'needs' such as a valet, butler and someone to polish the cat. Her first draft of expenses had plenty of eyebrow raisers but nothing ridiculous e.g. after school care costs for each of the kids where 2 of them take themselves home and have done for the last 5m. Petrol equiv of driving 1k miles a month when in reality she walks to work and kids school.

I am sure the second draft will have plenty of padding in it. Ultimately though, there is a finite amount of money so claiming you have needs of XYZ is a bit of a waste of time, especially if those costs are vastly uplifted from current.

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« Reply #19 on: February 14, 2020, 06:42:14 AM »

This is an extract of the mail my W sent to the mediator:

Excerpt
We recently went to see a Psychotherapist and independent social worker, to get support on working out how, what and when we talk to the children about our separation and divorce.  During our two meetings with her she observed that we are both at very different stages emotionally in the separation process, which made it very difficult for us to be in the right place to come up with a joint plan/agreement.  She inferred that if we are unable to keep our emotions out of this we will not be able to put the children’s best interests first; that we needed to get to the right place emotionally ourselves before being able to effectively communicate with them about our separation and properly support them.  She emphasised the importance of being ‘together’ in the way we deal with this, to always talking in the ‘we’, explaining it is something ‘we’ are doing together, to never putting the blame on either parent or denigrating them to the children.

The way I read it, it would seem that my W is suggesting that the T said that we shouldn't tell the kids when we can't keep our emotions out of the communication..... and to get to a place where we can keep emotions out of the communication we need to be physically separate.... so does that mean that she believes the T said that we should not communicate the reasons for the physical separation or aims to divorce to the kids at the time. To me that doesn't make any sense whatsoever.

What I believe was communicated by the T was that to CO-PARENT we (adults) have to be free from emotions of the marital breakdown, and to CO-PARENT there has to be a boundary (preferably physical distance). When referring to communication she said that we should be as honest as possible and OWN our decisions (looking at me directly).
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« Reply #20 on: February 14, 2020, 07:58:17 AM »

I think the main message is that the two of you are in a different place emotionally when it comes to processing the impending divorce.

And that emotions can influence how we think, speak and act, and how we interpret things ( generally true for everyone)

From what I can see, it isn't that you can not tell the kids, it is that the two of you need to get a handle on your emotions before you are able to speak to them about this in a way that isn't going to be damaging to them or the other parent.

That it is best for the children if you both can be aligned and own the decision so that one parent isn't being presented to them as the "bad guy" or the "one who wants it". While you have made it clear that you believe you are the one who doesn't want this and has not made efforts towards this, children handle this kind of information differently.

IE- the emotions on both your parts may be interfering with your ability to disclose this information to the children and make decisions in a way that puts their best interest first.
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« Reply #21 on: February 14, 2020, 08:14:14 AM »

I interpreted it as Notwendy did, also.
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« Reply #22 on: February 14, 2020, 09:13:56 AM »

I guess I am having a hard time with the "we" aspect of it.  It provides great cover for her.  I would rather say, "Mommy thinks I am abusive and has decided that she wants to live with another man," as opposed to saying, "We want a divorce."
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« Reply #23 on: February 14, 2020, 09:33:19 AM »

I would agree that you are at very different stages emotionally in the separation process. You still hold hope for reconciliation while your wife has moved on.

And I agree with Notwendy’s interpretation.

Nowhere do I see her advocating for being physically separate before you tell the kids, rather her advice is about being able to control one’s emotions.

I would rather say, "Mommy thinks I am abusive and has decided that she wants to live with another man," as opposed to saying, "We want a divorce."

This would be a disaster! Mommy would likely become explosive and the ugliness of that moment would be remembered by your children for a lifetime.

After a pronouncement like that, coparenting would be fraught.
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« Reply #24 on: February 14, 2020, 09:46:33 AM »

I would rather say, "Mommy thinks I am abusive and has decided that she wants to live with another man," as opposed to saying, "We want a divorce."

This is not going to set up the new situation for healthy do-parenting AT ALL. It might make one feel better, but it isn't going to help the daughters. What transpired down the road may require their mother to talk with them, but it doesn't place their father in a Blamer position or ignite their mother's anger due to being shamed.
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« Reply #25 on: February 14, 2020, 10:18:04 AM »

I start with the truth and let the chips fall where they may.  Now, if there is a truthful way that is less painful, I am all for that, but I would struggle with using the word "we" where there isn't any "we".  Of course, "we love you" should be a part of any divorce discussion.
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« Reply #26 on: February 14, 2020, 10:44:30 AM »

Developmentally we shield "truth" from children to protect them when necessary. Truth includes there is no Santa Clause or Easter Bunny and a detailed explanation about how people make babies among other things.

Also since when is blaming one parent for wanting a divorce complete "truth". Any relationship takes two people. There are also legitimate reasons for a spouse to want a divorce. So you blame them for wanting the divorce and remain blameless?

I know this isn't the case here but what if someone is drunk and beating their spouse and the spouse wants a divorce. So you tell the kids "Mommy wants a divorce". I can only imagine the reply from their mother" well I want a divorce because your father is an abusive jerk" . Whether or not E is abusive, if his wife perceives him as such, then this is going to be her reply to "mommy wants a divorce" and this starts a conversation the kids should not hear.

IMHO, the main thing that seems to be upheald at all costs is that E is the innocent victim of this process, his hands are clean, and he is the one upholding his Biblical vows while his wife is an adulterous sinner. Nowhere is there a discussion about grace, not presenting the children's mother in a compromised situation in front of them, and preserving what might be left of their innocence in childhood. Even divorced, you two are both the parents. I think the T is accurate that co parenting isn't achievable when the focus is not on what is best for the kids, but more on asserting who is the "guilty party".

« Last Edit: February 14, 2020, 11:08:00 AM by Harri » Logged
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« Reply #27 on: February 14, 2020, 06:45:07 PM »

Staff only

This thread reached the post limit and has been locked and split.  Part 2 is located here: https://bpdfamily.com/message_board/index.php?topic=343001.msg13100565#msg13100565

Thank you.
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