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Divorce/Separation :
Why you should consider getting a lawyer even if you're not sure

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 ThisIsSoLonely (original poster Member #64418) posted at 3:55 PM on Thursday, July 30th, 2020

I posted this in response to someone in JFO who has a WS that is considering moving out of state and taking some of the kids and I was messaged that this information is helpful generally so I am re-posting it here at their suggestion. Most of this info is helpful generally, but it was tailored to his specific situation. If this isn't appropriate I apologize in advance.

I KNOW this is really hard. Take a day or two to focus on what I am going to tell you, do what you need, and then get back to the emotional turmoil - unfortunately that isn't going anywhere so there will be plenty of time to deal with everything SI is telling you about the roller-coaster you just found yourself on. But do this legal stuff now - here's why, and note:

I am a lawyer - not a family lawyer and as such this is not my legal advice, but my personal opinion based on my own experience and having seen several divorces up front and personal. Please seek legal counsel ASAP to assist you with figuring out what does and does not apply in your jurisdiction and how you can best proceed as what everyone, including myself is telling you, that may or may not be applicable in one way or another depending on where you live.

Proceed right now as if you are 100% sure you are getting divorced AND proceed like it will be a nasty one. If that changes, so be it, you can always withdraw a divorce complaint and just because you take a very offensive stance does not mean you cannot lighten up later. By nasty I do NOT mean exchanging nasty words with your WS (in fact IMO all communications on your end should be as cordial and un-nasty as possible). I mean nasty in that you find yourself fighting over things you never imagined, and that you cannot resolve even the simplest thing without a long-drawn out battle AND nasty in that your WS is saying one thing to you and doing another.

You can do the vast majority of these things, with counsel, without things getting ugly. Best case scenario is that you and your STBX are civil and decent and don't need counsel...but there are countless stories of people who started that way and it got nasty/ugly. Getting counsel - or at least meeting with counsel for a free or low cost consultation where they can explain the specifics of your jurisdiction's divorce rules and processes will help YOU have some power over the situation.

Communication with your WS:

This is VERY important, especially if you have minor children, and VERY HARD. Try to keep all written communication (text, email, etc) as civil as possible, because, anything you say to your WS in writing can possibly be used in court. So proceed as though every single written word you said can be read aloud in family court (or given to the Judge in written form) to the Judge AND to your STBX's counsel to attack. You may have problems especially if your written words look like you are threatening violence, threatening to "take" the children or otherwise use them against your WS or hold them "hostage" for financial purposes or otherwise appear to be using your kids as a "weapon" against your WS (things like "you aren't seeing child X until you _______ (insert things like pay child support or anything financial or help you with something - or basically anything that appears you are withholding time with the children unless you get something from your WS - that is not in the best interest of the child in the view of most courts - discussed further below)). Do not say anything that can be interpreted as a threat. Don't name call. Don't say anything that would appear you are unstable in any way.

If you must say those things (and let's face it - during this time, sometimes you ARE mentally unstable and are upset and angry to say the least) then say them in person/over the phone as most places, even if the conversation is recorded, you cannot use unauthorized recordings as evidence in court. Don't rely on that as a rule - but basically, do not say or do anything you aren't willing to have used against you in a court proceeding. This includes berating the AP. You don't want to have called the AP a "whore" 50,000 times in a bunch of text messages when in reality the AP doesn't accept money for services and instead is the uber-Christian Sunday-School teacher - it can't help you and can only hurt you (in a myriad of ways - especially if your WS is still seeing the AP - you can sound or be portrayed as crazy, angry, and unhinged - all negatives in custody proceedings).

You have to look out for you (and your kids if applicable) in your communications. You want to step into court and have ascertainable proof that you are the sane, grounded one. That being said:

Conversely, you should keep all communications that you have between you and your WS for evidence of any/all of the things they may have said that are negatives I mentioned above, or agreements they have backed out on, or times when they flaked out on seeing the kids or rescheduled, etc.

Selecting counsel:

You may be wondering why people are telling you to talk to 3 lawyers instead of 1. The quick reason is if you have a meeting with a lawyer which is a "let's see if I want to hire you to represent me in my separation/divorce" then in most places your WS is precluded from hiring that attorney for this divorce. In some places, like big cities, this is no big deal as there are tons of lawyers, but in smaller jurisdictions, if you want to make things a little difficult for your WS (not something I advise personally) that is a way to do it. If there are only a handful of attorneys who specialize in divorce in your area, and you meet with all of them, your WS is going to have to travel to find one and it will likely cost him/her a bit more to do that. Again, not my cup of tea (and my WH has given me plenty of grounds to be pissed off and angry) but maybe it's yours.

Also, again if you are in a small area, while it may not be your cup of tea, it might be your WS's, and you don't want him/her going out there and meeting with tons of lawyers thus precluding YOU from hiring any of the lawyers he/she has met with, so at best, find counsel you are happy with NOW to avoid that scenario and to get you some jurisdiction-specific advice.

Money/financial issues:

In many states a legal separation is an option and in some states/jurisdictions at least a physical separation is a requirement before divorce. It sets the groundwork for how the divorce will proceed and starts to separate assets/liabilities up front so you stop taking on joint debt. The last thing you want is to be responsible financially for your share of you WS's moving costs etc if you can avoid it, and getting some sort of pre-divorce (or divorce) division of assets is the best way to help you stop taking on more debt as a result of your WS's actions - if they want to move, you don't want them charging the moving company, labor, van, etc to your credit card for two reasons: 1) you don't want to pay for that, and 2) you don't want to have to pay your lawyer later to review those records so you can fight about it in the divorce settlement. Taking advance measures is usually more cost-efficient.

Separate residences and/or "separation without reunification" as a pre-requisite to divorce:

If you live in a jurisdiction where physical separation is a pre-requisite to divorce (some states even have a counseling requirement before divorce, but those are rare - but do exist) so find out what the requirements are now. The last thing you want to do is be in "in house separation" (IHC) for a year only to find out that you can't file until you are living in separate residences for a period of time. Some states have a longer period if you have kids and others do not. Most states have done away with the residing separate and apart requirements but not all (and I have no idea about requirements outside the US/Canada) so finding out now is important.

Also of note in those jurisdictions, there can be no "reunification" during the separation period. This means that if you live in a jurisdiction where living separate and apart and/or being "separated" is a requirement for divorce, some things can re-set the clock on separation. Let's say that you have been living separate and apart for 6 months in a jurisdiction that requires a 1-year separation before a divorce can be final. Let's also say that at 6 months and 1 day, you go over to your WS's place and have sex, or let's say for about a week you try to reconcile and then go back to your decision to D. Either of those alone may be enough to reset the clock to 1 year again...it might not, and one of you would have to contest the 1 year separation provision in court, but but but, it's good to know these things upfront so you know what you are doing and the consequences of your actions.

Kids/Custody:

I highly recommend anyone who may be going through this to read up on the "best interest of the child" standard in your jurisdiction. There are a lot of websites that easily explain what courts in your area consider when determining custody, and you should know what they are.

Most jurisdictions put a lot of emphasis on where the kids reside the majority of the time and all of them that I am aware of look to the state the children were residing at the time the divorce (and sometimes separation) was filed as a baseline for determining where they "should" continue to reside. Here is why working NOW on getting this sorted out in your situation is key (note, this particular BS's spouse had indicated she wanted to move out of state in the near future - but this can also apply to out of town moves to a lesser extent):

Oftentimes after a divorce, a custodial parent cannot move and take the kids out of the state where they legally reside without an agreement from you or a court order, which would mean a modification of the support/custody order entered by the court in a legal separation or divorce. Alternatively, a non-custodial parent can move out of state w/out court permission BUT that will likely change the custodial/visitation arrangement if the move is too far to maintain current visitation schedules.

So, for simplicity's sake let's say that you have 2 kids at the time the legal separation/divorce was ordered by the court. In the Court's order the 2 kids were to reside with your spouse and you have them every other weekend, and you were to pay child support of $500 per month. Now, your EXWS decides to move out of state and take the kids. Let's also say that the place they are moving is too far for the every other weekend exchange to take place.

Clearly this move is going change some things: not only the time you get to spend with the kids, but what it will cost you because someone is going to have to pay for them to travel back and forth. Generally speaking (again this is very general and not state specific) if you have already gone to court, the kids state of residence has been determined, so most likely your WS would be on the hook for some, if not all, of those transportation related costs, because she is the one who took them out of their state of residence. Also, it gives you grounds to want the kids to remain in their state of residence as the burden will likely be on the party moving out of state (in this case, your WS) to establish that the move is in the "best interest of the child/children". Right now, the state of legal residence would be where you all live so your WS would have to prove that the move is in the best interest of the kids she seeks to move. Also, as the whole every other weekend thing won't work anymore (assuming that the kids are going to move with the WS), that needs to be changed and you will have some leverage.

If you have a custody/support/visitation court order, anything would have to be modified before the court unless you can agree separately. Without one, he/she could move the kids, AND later when (if) you do file, you might find YOU are on the hook for paying for their transportation to/from you + have to renegotiate your visitation schedule. Basically, without a court order, you are really hoping that your WS is reasonable with you about this (some are, and some are not).

There is a lot more, but this is just a baseline description so you can understand why, when you are in such pain and misery, is everyone telling you to talk to counsel now.

[This message edited by ThisIsSoLonely at 11:46 AM, July 31st (Friday)]

“Sometimes you're going to have to let one person go a thousand different times, a thousand different ways, and there’s nothing pathetic or abnormal about that. You are human.” - Heidi Priebe

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nomudnolotus ( Member #59431) posted at 9:14 PM on Thursday, July 30th, 2020

This is such a great post, I hope new people do read it. So many people think that the nice person they married is still there and it ends up they are not, and it's too late and things are already in motion. Getting in front of the legal matters is so important.

posts: 194   ·   registered: Jun. 30th, 2017
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fareast ( Member #61555) posted at 9:25 PM on Thursday, July 30th, 2020

Thank you for posting this. It is so important to at least be prepared with knowledge and not be caught off guard with limited options. This is excellent, excellent advice.

Never bother with things in your rearview mirror. Your best days are on the road in front of you.

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Phoenix1 ( Moderator #38928) posted at 9:52 PM on Thursday, July 30th, 2020

Good info. Knowledge is power!

fBS - Me
Xhole - Multiple LTAs/2 OCs over 20+yrs
Adult Kids
Happily divorced!

You can't go back and change the beginning, but you can start where you are and change the ending. ~C.S. Lewis~

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gonnabe2016 ( Member #34823) posted at 11:22 PM on Sunday, August 2nd, 2020

Information is always a good thing. My only quibble with the info you provided is this part:

Without one, he/she could move the kids, AND later when (if) you do file, you might find YOU are on the hook for paying for their transportation to/from you + have to renegotiate your visitation schedule. Basically, without a court order, you are really hoping that your WS is reasonable with you about this (some are, and some are not).

The consequence of allowing the kids to move states before there's a court order in place could be much worse than being on the hook for transportation costs. This scenario is (most likely) going to be governed by the UCCJEA and a crafty person may work the situation to her/his benefit (for example, if the new state's custody laws are more favorable to her/him, then the home state parent could be strung along until jx is established for the kids in the new state and then file there).

"Oh, what a tangled web we weave when first we practice to deceive." - Sir Walter Scott

In my effort to be *concise*, I often come off as blunt and harsh. Sorry, don't mean to be offensive.

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 ThisIsSoLonely (original poster Member #64418) posted at 5:06 AM on Monday, August 3rd, 2020

gonnabe2016 - there are actually a LOT more consequences than what I provided. That was just a simple example to help people think a little about a few things they may or may not have thought about. It certainly wasn't supposed to be a legal primer...not in the least. I had no intention of getting into the uniform acts, and potential state laws and forum shopping. I mean yeah, people will do that to try to lessen their child support burden too - not to mention spousal support issues. This was just an FYI - maybe taking to counsel would help so don't be afraid or think you know it all.

My experience in family law was only as pro bono counsel and almost always in the context of abuse and neglect/custody proceedings, so while we ran across some of the more common place issues that most people face in divorce, ours usually was much more complicated and focused primarily on custody and not much on money. So, again, I am no family law expert - not in the least.

I thought I made that clear at the beginning of my post - but perhaps I should try to make it more clear - that this is just a "you might run into these things" or "here are just a few things that could happen that you may or may not have ever considered"?

[This message edited by ThisIsSoLonely at 11:08 PM, August 2nd (Sunday)]

“Sometimes you're going to have to let one person go a thousand different times, a thousand different ways, and there’s nothing pathetic or abnormal about that. You are human.” - Heidi Priebe

posts: 1816   ·   registered: Jul. 11th, 2018
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gonnabe2016 ( Member #34823) posted at 7:44 PM on Monday, August 3rd, 2020

I completely support the idea that everyone should at least consult with an attorney because often the law works differently than how a layperson thinks (especially in regards to "fairness").

I just get twitchy when someone is in an uncertain situation and there's talk of kids moving states without a court order in place. A "hopeful" person can justify making all kinds of bad decisions and I was concerned that transportation costs could easily be minimized and the move allowed, much to the detriment of the not-moved parent.

I guess our discussion just highlights your overall point that talking to an attorney is always a good idea.

"Oh, what a tangled web we weave when first we practice to deceive." - Sir Walter Scott

In my effort to be *concise*, I often come off as blunt and harsh. Sorry, don't mean to be offensive.

posts: 9238   ·   registered: Feb. 15th, 2012   ·   location: Midwest
id 8569698
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