GAL for spouse in divorce?

[stolencrumbs]

So I met with my stbx and tried to figure out how to settle all of this. It more or less went fine, though there's nothing close to an agreement on alimony. But in the course of our conversation, she told me (so grain of salt, because who knows what's true) that her L has told her multiple times that he was close to petitioning the court to appoint her a guardian ad litem, and that he definitely doesn't think she is able to handle a trial. The vast majority of information I can find about a GAL is about children. Anybody have any experience with a GAL being appointed for an adult in a divorce case? My L is on vacation this week, so I haven't been able to talk with him about it. And who knows if it will happen, but I really don't know what it means for things going forward if it does. On the one hand, it seems like it could be good to have a rational person in the process. On the other hand, it would seem to strengthen her case for more support from me based on her mental illness.   

[formflier]

And potentially it would strengthen her case (your case) that she is NOT an independent fully functional adult and that she is in fact "disabled".

So...how did it come to pass that you guys decided to "meet" and hash things out?   

Was that recommended by your L?

Best,

FF

[formflier]

Major projection manipulation alert!   

I'm going to be blunt...

She doesn't "want" to go to trial and get less than she thinks she can con you into.  You and I both know that her L has told her she is in fantasy land

That ends at trial..with a judge.

She wants no part of that.

Sorry to say it so plainly...I'm very concerned you are being manipulated by her, although if this is part of your Ls strategy..I'll relax some.

Best,

FF

[ForeverDad]

A quick summary...  You've been married about 13 years, no children, she essentially drove you out of the house a few years ago, you've supported her and even returned to fix things around the house, you're finally starting divorce.  Right?

Does she work now?  If not, has she had income in years past?  How about before marriage?

Just because an adult person behaves as disordered (most of us never learned of a professional diagnosis) does not mean they deserve more support, you can always take the stance that she took advantage of your nice inclinations.  Most disordered people can go out and (gasp!) work.  Just because she feels entitled to mooch off you doesn't mean she can't support herself by working.

A perspective to keep in mind is this:  Many courts expect both spouses to separate their lives and Move On.  Alimony is generally viewed nowadays as an aid for the disadvantaged person to transition into post-marriage life.  It's not a freebie, though she may view it that way.

Another perspective is that if she doesn't currently work then you need to express the expectation that she needs to find gainful employment.  She may be very messed up, court may (or may not) ignore much of her messed up behaviors, but she is NOT disabled.

And formflier is right, you can never be sure what intent she has on sharing her version of what her lawyer tells her, but be assured it's not out of concern for your interests.

[stolencrumbs]

And potentially it would strengthen her case (your case) that she is NOT an independent fully functional adult and that she is in fact "disabled".

So...how did it come to pass that you guys decided to "meet" and hash things out?   

Was that recommended by your L?

Best,

FF

I don't think it helps me if she can make a case that she is not a fully functioning adult.

She asked to meet and I agreed--at a public place and only to talk about practical matters related to divorce. My L was fine with it, as it is pretty much the last option for getting anything done before this whole thing shifts to trial prep. 

[stolencrumbs]

A quick summary...  You've been married about 13 years, no children, she essentially drove you out of the house a few years ago, you've supported her and even returned to fix things around the house, you're finally starting divorce.  Right?

Does she work now?  If not, has she had income in years past?  How about before marriage?

Just because an adult person behaves as disordered (most of us never learned of a professional diagnosis) does not mean they deserve more support, you can always take the stance that she took advantage of your nice inclinations.  Most disordered people can go out and (gasp!) work.  Just because she feels entitled to mooch off you doesn't mean she can't support herself by working.

And formflier is right, you can never be sure what intent she has on sharing her version of what her lawyer tells her, but be assured it's not out of concern for your interests.

Been married 10 years, but more or less correct on the rest. She does not work now. She hasn't worked at all in four years. She worked part-time the two years prior to that, and she worked full time for seven years before that.

And yes, that is how the court here is likely to view alimony. The possible claims about any mental illness are going to be on top of claims she is going to make about her physical health. That will be the basis of her claim for extended alimony. Courts want the "disadvantaged spouse" to be able to attain self-sufficiency. She is going to claim that her health makes that unrealistic. I'm just not sure how that claim is helped or not by her own L petitioning for a GAL.

[GaGrl]

I've not encountered a GAL appointment for an adult. That being said, how quickly can you get your lawyer to confirm if this actually is what her L said? It could really affect strategy.

A couple of thoughts...

Having a GAL because she can't handle a trial could end up being a double bind. I agree with FF. If she needs a GAL to protect her interests (which her lawyer should be doing also) because she is so mentally/emotionally fragile, and her goal is to get the higher level of alimony -- then she opens up the argument that she is disabled and needs to apply for disability and Medicare not depend on unlimited alimony from you.

As to her lawyer, he/she is probably frustrated with her refusal to listen to the reality of a court trial. Her L could very well fear that she won't handle a trial very well, and her courtroom behavior would reflect negatively on the L. Better to have a GAL who could a) influence a reasonable settlement and avoid trial, or b) attend to STBX during trial so L doesn't look as if he/she can't control his client.

STBX can't be trusted when it comes to manipulations. If she is "quoting" her L, go to the source ASAP so your L can adjust strategy.

[stolencrumbs]

I've not encountered a GAL appointment for an adult. That being said, how quickly can you get your lawyer to confirm if this actually is what her L said? It could really affect strategy.

A couple of thoughts...

Having a GAL because she can't handle a trial could end up being a double bind. I agree with FF. If she needs a GAL to protect her interests (which her lawyer should be doing also) because she is so mentally/emotionally fragile, and her goal is to get the higher level of alimony -- then she opens up the argument that she is disabled and needs to apply for disability and Medicare not depend on unlimited alimony from you.

As to her lawyer, he/she is probably frustrated with her refusal to listen to the reality of a court trial. Her L could very well fear that she won't handle a trial very well, and her courtroom behavior would reflect negatively on the L. Better to have a GAL who could a) influence a reasonable settlement and avoid trial, or b) attend to STBX during trial so L doesn't look as if he/she can't control his client.

STBX can't be trusted when it comes to manipulations. If she is "quoting" her L, go to the source ASAP so your L can adjust strategy.

I don't understand all the ins and outs of it, but she does not qualify for SSDI based on her work history, and so wouldn't qualify for Medicare. And we are in one of those wonderful states that did not expand Medicaid, so she doesn't qualify for that. She would qualify if she was on SSI, but her assets will keep her from qualifying for that.

And not to rant or be political, but who in the world thought it was a good idea to include in the 2017 tax law a provision that makes alimony payments taxable for the payor? What lobbying group wanted that? It seriously screws both of us in our particular situation. Not only do I pay a higher tax rate on the money I give her, but it no longer counts as income for her for purposes of getting subsidies to buy health insurance in the marketplace. And if you're in one of the 13 great states that didn't expand Medicaid, you don't qualify for that either.

ETA: I think there were some good things to come out of talking with her, one of which was figuring out a creative way to avoid the problem above about health insurance. Basically, she takes a small bit of my retirement and doesn't put it in her own retirement account. That money will count as income for her and will qualify her for generous subsidies on the exchange. Without that, she (we) are looking at $700/mo premiums and an $8,000 out-of-pocket maximum that she will meet very quickly. Also, for complicated reasons that don't apply when we're divorced, we always filed taxes married-filing-separately. She also agreed to amend prior returns (you can only amend the past three years from MFS to MFJ) to MFJ and signed the forms, which will get us a good bit of money back. I don't think that would've happened without meeting with her. 

[formflier]

I wonder if you could "incentivize" her to pursue disability/work in "good faith"?

You offer her the alimony that she would be awarded at trial.

Your "sweetener" is that you offer her extra support for certain milestones.  

She gets extra for a few months and that stops unless her disability package is submitted to social security.

Then your support continues to the next milestone, if they deny it your support for this stops.

and/or

You will "match" what she earns in a job up to a certain amount..for a certain period of time.

Should she choose NOT to work and NOT to apply for disability, she gets what she would have been awarded at trial.

Near as I can figure...your money would incentivize her to get her to a healthy place and if she chooses to go another direction..it wouldn't be on you.

Best,

FF

[kells76]

She would qualify if she was on SSI, but her assets will keep her from qualifying for that.

Admittedly I don't know anything about the nuts and bolts of SSI/SSDI/etc.

Aren't her assets coming from you?

Am I missing something?

[stolencrumbs]

I wonder if you could "incentivize" her to pursue disability/work in "good faith"?

You offer her the alimony that she would be awarded at trial.

Your "sweetener" is that you offer her extra support for certain milestones.  

She gets extra for a few months and that stops unless her disability package is submitted to social security.

Then your support continues to the next milestone, if they deny it your support for this stops.

and/or

You will "match" what she earns in a job up to a certain amount..for a certain period of time.

Should she choose NOT to work and NOT to apply for disability, she gets what she would have been awarded at trial.

Near as I can figure...your money would incentivize her to get her to a healthy place and if she chooses to go another direction..it wouldn't be on you.

Best,

FF

This is essentially how "rehabilitative alimony" works in my state, and I'm fine with that. It's not actually clear that it is appropriate in her case. It is generally provided to give the disadvantaged spouse help going back to school, attaining new skills, etc. Stbx has a BA from a very fancy college and two Master's degrees from equally fancy places. She doesn't need more education or training, though I'd be happy for her to go get some. But rehabilitative alimony requires the recipient to make reasonable efforts to find work and be self-sufficient. Unlike "transitional alimony", rehabilitative alimony remains under the court's discretion and is modifiable, which means that if she genuinely tried to find work for some period of time and was unable to support herself, the court could, in theory, extend or modify alimony. I have very little doubt that if she actually made reasonable efforts to work, she could, and could do well and be self-sufficient.

As I said above, I don't know how disability factors into all of this. She is not currently eligible for SSDI because of her work history. But, at least right now, she is not claiming to be unable to work. She is claiming to be unable to work full time. But that is not based on anyone's assessment but hers. But with enough part-time work, she would qualify for SSDI, and then maybe any future claim she made to modify or extend alimony could be based on her disability status.
 

[stolencrumbs]

Admittedly I don't know anything about the nuts and bolts of SSI/SSDI/etc.

Aren't her assets coming from you?

Am I missing something?

Her assets come from the house, which is marital property.

[kells76]

I don't understand all the ins and outs of it, but she does not qualify for SSDI based on her work history, and so wouldn't qualify for Medicare. And we are in one of those wonderful states that did not expand Medicaid, so she doesn't qualify for that. She would qualify if she was on SSI, but her assets will keep her from qualifying for that.

Her assets come from the house, which is marital property.

If she got 0% of the house and you got 100% of the house before or in the divorce, would she then be eligible for one of those programs?

(Note, I'm asking this not because "I want your W to be punished" by not having the house; more trying to look at other angles -- even "weird" ones -- given that you would like her to get help/get on an assistance program. Sometimes the nicest thing we can do for someone else looks incredibly mean.)

...

I don't have the exact vocabulary for this type of professional, but I wonder if having some type of "disability law expert" assess your W and testify during the trial would be helpful. Or, have some other type of "disability assessment expert" do the assessment, then have another "expert professional" testify about the contents/meaning. Probably a question for your L.

[formflier]

This is essentially how "rehabilitative alimony" works in my state, and I'm fine with that.  

Good...then really this seems to be a good solution.

Are you fine with her choosing to reject your help, over and above what she would be awarded at trial?  

As in..you guys agree to this, she doesn't apply for disability and she doesn't work..thereby choosing to reject your extra help.  I'm sure that would be hard to watch...how do you think you would respond to her making that choice?

Best,

FF

[GaGrl]

I think you might benefit from a conversation with a lawyer who works with SSI Disability, Worker's Compensation, and rehabilitation plans. I once dated a fellow who had both a law degree and a master's in rehabilitative services -- he constructed the rehab programs presented to court for the firm's clients needing worker's comp.

That legal specialist could provide current info on SSI disability guidelines. I know several people who had three appearances before a judge cleared them for disability payments. There's a reason people use specialists -- they know the ends and outs.

Plus, if she buys a new house, those funds won't be cash assets anymore. I don't think SSI considers house and car as assets to support someone if they can't work.

[formflier]

And..don't believe she can't get SSDI unless she applies and is rejected.

I suppose if you have an actual lawyer that regularly does social security look at her file and he refuses to take the case because there is "no way"...that would probably do for me as well.

Best,

FF

[GaGrl]

So...there is a difference between SSDI and SSI Supplemental Income. SSI does have asset and income limitations. SSDI is for people who have had enough FICA contributions deducted over the years to qualify.

[stolencrumbs]

So...there is a difference between SSDI and SSI Supplemental Income. SSI does have asset and income limitations. SSDI is for people who have had enough FICA contributions deducted over the years to qualify.

Yes. By my quick calculations, she doesn't have enough work credits to qualify. I need to look at tax returns to figure it out, but essentially you need 20 credits in the last ten years. She worked full time for four of those and part time for another year or two. But it was very very part time for most of that. I'll look at it more.

ETA: She could tell me this easily by just logging into her SSA account and checking, but there is zero chance that she will do that.

[formflier]

So..why not just incentivize her to figure this out in the divorce settlement, rather than you doing it for her?

Best,

FF

[stolencrumbs]

So..why not just incentivize her to figure this out in the divorce settlement, rather than you doing it for her?

Best,

FF

Because any settlement requires her agreement, and she's not going to agree to anything that requires her to figure out what disability might look like. I actually don't think she will agree to anything that even hints at disability being an option. I would like to know because I'd like to know what the actual options are. But there's no way she is going to participate in those discussions.

[GaGrl]

If she doesn't choose to participate in those discussions now, she will find herself participating in depositions prior to trial.

[formflier]

Because any settlement requires her agreement, and she's not going to agree to anything that requires her to figure out what disability might look like. I actually don't think she will agree to anything that even hints at disability being an option. I would like to know because I'd like to know what the actual options are. But there's no way she is going to participate in those discussions.

Even easier.

Then offer what she would get at trial and no more for the "regular" part.

For anything more than what she would get it at trial...tie it to her earning.  So she earns 2 bucks, you kick in 1...up to some limit that is agreed on.

That still leaves the incentive in place.

The details almost don't matter...as long as the incentive is set up properly.

Best,

FF

[ForeverDad]

Incentive is one word.  Leverage is another.  Carrot and the stick.

Do not promise anything without your lawyer's assessment.  When talking of all these legal maneuvers such as refiling taxes, options like SSDI, SSI, whatever, you may need an expert beyond the lawyers to review the ideas so you don't overlook a vital detail.

Beware of another surprise... noncompliance.  For example, you agree to split the house's equity.  But she doesn't want to sell.  You come up with some way to make it work out where she gets the house but is of course legally required to refinance to get you off the house's mortgage liability.  You sign over the quit claim deed.  The house is hers.  You wait and wait but she keeps delaying the refinance.  Or maybe she doesn't qualify for refinance.  You're stuck, you no longer own the house but legally you're still a debtor obligated by the loan.  You go back to court seeking enforcement of the terms and the court ignores you or repeatedly just gives her more time.  (Family courts are known to be lax on enforcing their own decisions or settlements.)  How to avoid getting stuck?  Nearly all disordered people know what $$$ are.  Have your lawyer place in escrow most of the cash portion to be held in reserve until the rest of the terms of a settlement or order are complied with.  Also, include in the settlement terms whatever "consequences" for noncompliance.  Carrot and the stick.

In my own divorce, I kept the house.  Her signed quit claim deed was not handed over beforehand, it was not submitted until my refinance mortgage was signed and processed, all on the same day, a package deal.

[kells76]

Couple of overall 30,000 foot view things I think I'm seeing:

1, it seems to me that you'd like, for your own integrity and character, to have done as much as you can to get her to get help. Perhaps you want to feel like you did everything you could have. Not necessarily so you can feel like a "white knight" (maybe yes, maybe no, neither here nor there), maybe more for your own values.

2, it would be pointless to get to "final divorce" and have that just set in stone all the behaviors, interactions, and supports that you've already been doing for her. To expand: the point of divorcing her isn't to get paperwork that legitimizes exactly how things have gone. The point isn't "well, before the divorce, there wasn't anything legally binding about how I helped her, but now there is". The point should be -- get stolencrumbs out of the role of personally taking care of xW. The divorce should end all aspects of the relationship, not just the romantic or living together aspects. The divorce (I'm using that as shorthand for all the legal documentation/requirements) needs to leave no loopholes where she can say "but this means stolencrumbs has to personally send me money". Ideally, after the divorce, any kind of interaction left between you and her is through a third party at best. Does she need money from you? There's a trust administered by something else. Does she need to drive the car that you own? You've sold it to her and your name is off the title. How does she get alimony? It's doled out by a 3rd party agency. (I don't know how a ton of that works, just building examples). There need to be no reasons left for you to keep stepping in and helping. It should get all set up at the divorce.

Re #1:

Consider making a list of exactly what you still want to try. Cross things off with a date when you accomplish them. I.e., did you want to try "offer X, Y, and Z", as part of being committed to your core values? Did you do so by email on July 21st, and get a reply saying "No way"? Cross it off the list.

There shouldn't be an indefinite list of things you want to try to help her. I think it could be good for you to articulate exactly what it'd look like for you and your integrity to "do everything you could have". Otherwise you may be left in this gray area of "maybe I should've tried P, Q, and R", of still "adding things to the list". Curious what it'd be like if you made yourself sit down and write it all out. Be explicit. Exactly what do you want to say you've tried, and then do it before things are final.

Re #2:

You've probably already gone over this with your L, yet it might be worthwhile to re-emphasize -- when the divorce is final, you need to not be on the hook for any direct responsibilities to her. If there's $ to be dealt with, there needs to be a trust or estate or something. Your name is on NOTHING she owns or uses. You aren't responsible for monitoring her employment, SSI/SSDI eligibility, medical treatments, medical funding, anything. There is a new legal framework in place that is a clean break, no bleed over.

...

I am wondering if the longer you are involved in helping her, the more it pushes off her helping herself.

It would not be crazy if she was more able to start her healing process once there were no more interactions between you and her.

It might look "cruel" to disengage, yet that might be what she needs in order to actually get helpful help.

...

Just some food for thought. I know you're juggling a lot right now.

[Cat Familiar]

I echo kells suggestion of a clean break. Friends and attorneys told me I needed to do that when I divorced, but I was resistant, thinking I could continue to *help* him and that we could be *friends*.

To my surprise, the divorce process completely tore off the mask and any semblance of a bond and suddenly I was faced with an enemy who would say or do anything to undermine me, regardless of its validity.

I’ve kinda harped on you for wanting to continue your habit of looking out for her best interests and neglecting your own. For being too intent on that I apologize. I understand that is a deep seated value for you. However I want you to be prepared and not get blindsided in the legal process, which can come at you faster than you’d imagine.

[Notwendy]

On the other hand, it would seem to strengthen her case for more support from me based on her mental illness.   


I don't have experience with GAL but I think this is behind the consideration. If alimony is to help the person get back on their feet, then in the case of mental illness, it changes the situation. I don't know if you have to agree to the GAL or they can do this unilaterally. This is something I would discuss with your lawyer.

I am with Cat though, it's hard to not let sympathies and your desire to help get the better of your decisions in court and keep you from protecting yourself.

[ForeverDad]

My lawyer shared this story with me... He had a client, of my own faith he noted, who also faced allegations and protection orders.  This goof had previously obligated himself in an order to supply his wife or ex-wife with wood.  Well, the protection order required him to stay away from her.  He felt stuck.  How to comply with both?  Help her?  Both orders conflicted and both had consequences.  Rather than seek help from another to make the delivery, he personally brought the wood.  And ended up in jail.  Which is when my lawyer got the case.

THAT is why you do what you can to avoid Catch-22 situations.  Trying to please the ex or stbEx is of lesser importance or priority than protecting yourself from unintended consequences.

Meanwhile, print out the post from kells76 and post it somewhere your spouse can't discover it so you can remind yourself of your priorities, you come first, then the kids and maybe there is a little room left for the ex/stbEx.  Not what we wanted but that's "what is".