Future, Even if you lose on the atty fees, it might be worth it as a tactic to bring the suit. She will see that you mean business and that it could cost her not to play fair. I'm an attorney--I don't do divorces (thankfully), but sometimes its worth it to file something even if you have only a slim chance of winning. Ask the attorney if he thinks it would be helpful--or if it could backfire and make the judge think you are unreasonable. But CityGirl's language in a motion, that she breached a verbal agreement that was working well, could also give background to the judge that might help you in the long run. Future, I've worried about my H doing this (actually, just asking for shared custody--I've got the kids most of the time), but I think he doesn't WANT them any more than he has them. My impression of your W was that she liked the freedom of having time to date and time to herself. I'm surprised she pulled this...maybe its a financial thing.
The two of you had a verbal agreement to work through ALL issues (custody, asset allocation, support) through mediation. In NY a verbal agreement is binding. Now that she has breached the verbal agreement what are your options?
It is my understanding that when one spouse presents another spouse with a custody request or asset allocation request it must also include a petition for divorce or separation.
Since you and your W had a verbally binding agreement to pursue mediation, I would ask your attny about filing a petition to request immediate reimbursement to YOU from your W for your legal fees. And, be sure the reimbursement is not drawn on joint funds.
She has breached an agreement and therefore set the tone for this next phase. You both agreed mediation, she walked away without even letting you know, served you with papers and now you are forced to retain counsel when that wasn't the verbally binding agreement the two of you had. Think about that.
Thanks CityGirl-
We certainly were working through mediation, and I was intending to continue. In fact, I had just prepared a new draft proposal to send her two days before I got served. I had been stalling over the last couple months, because I was feeling better about myself, and was avoiding dealing with all this. Can she use my stalling as an argument that I broke the verbal agreement?
We have no joint funds, so not worried about that.
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It is my understanding that when one spouse presents another spouse with a custody request or asset allocation request it must also include a petition for divorce or separation.
I was shocked that the papers only dealt with custody, not divorce, not separation, not support. She has absolutely no grounds to sue me for divorce, so I guess she's leaving the door open for me to sue her.
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Even if you lose on the atty fees, it might be worth it as a tactic to bring the suit. She will see that you mean business and that it could cost her not to play fair. I'm an attorney--I don't do divorces (thankfully), but sometimes its worth it to file something even if you have only a slim chance of winning. Ask the attorney if he thinks it would be helpful--or if it could backfire and make the judge think you are unreasonable. But CityGirl's language in a motion, that she breached a verbal agreement that was working well, could also give background to the judge that might help you in the long run. Future, I've worried about my H doing this (actually, just asking for shared custody--I've got the kids most of the time), but I think he doesn't WANT them any more than he has them. My impression of your W was that she liked the freedom of having time to date and time to herself. I'm surprised she pulled this...maybe its a financial thing.
Hi musclegal-
I'll discuss it with my atty and see what he says. He's not available to meet until next Tuesday. He said I don't even need to attend the initial hearing. It'll only take 10 minutes, and is just a formality. He said the court will appoint atty's to represent my kids, and then adjourn until a later date.
You're a lawyer, so you certainly don't need my advice, but make sure you proactively protect yourself against whatever your H might pull. Don't know what state you're in, but if he wants partial custody, he very well might get it, unless you can show him to be unfit.
Everyone is shocked my W did this, as they think the same as you, that she likes having time to herself. There is something else going on here. A friend of mine here thinks she is insanely jealous over my moving on and getting "strangers" involved in the kids lives, including someone she thinks I'm involved with romantically.
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I think it is all about her getting back at him because of the teenage baby sitter. She thinks that the baby sitters mom is Future's girlfriend right?
Hi v1olin-
Exactly. She's lost her control over me, and therefore over the kids while they're with me, and she can't handle it. Truly hilarious part is, I am kind of dating someone, but it has nothing to do with the teenage girl's mom!
Of course your attny can advise you best. I guess I am just curious if custody (I assume so) was a topic in mediation? If so, had the two of you began to discuss it with the mediator yet or was it still on a "to do" list? Did the two of you have a set scheduled with the mediator? If there was no set schedule for mediation (IOW you or your W didn't blow of appts) then I don't see how you OR her could be at fault for not following a mediation schedule when there was NO set schedule!
I guess what I would ask the attny if I was in your shoes would be why you were fit for 50/50 custody when it suited her (when she was going to see OM in another country) but now that you have also moved forward you are no longer fit for 50/50 parenting. It certainly does not seem like an unreasonable question to ask and have answered.
The thing about NY is even though the two of you have not lived together for some time it doesn't matter. A physical separation without legal documentation is not recognized by the courts. The two of you could live apart for 50 years and still not be legally separated unless you have a Separation Agreement (filed with the courts) in place. My H moved out in March of 2008 yet as far as NY is concerned we only separated on Nov. 19, 2009.
I don't mean to speak ill about your W but she has proven time and time again she is one manipulative woman. I would be VERY proactive in doing what you need to do legally, not to be nasty, but to protect yourself and your children. I would think her request for full custody would also mean an increase in child support. I also would let your attny know everything that has already been decided in mediation is off the table due to the recent turn of events. IMO it is either ALL mediation or ALL attnys. She chose now you must do what you have to do.
Custody was completely settled in mediation, as was virtually everything else. We just had a few minor points to go before we got the formal agreement drafted. I guess it's my fault, as I stalled it for the last couple months. I didn't "blow off" any appointments. She sent me a proposal via e-mail a couple months ago, I said I'd respond with my comments, and just hadn't done it yet. She wanted us to meet with our MC, to "finalize things", we picked a date and time, the MC had to reschedule, and we never settled on a new time. That was last month.
In the mean time, this summer child care issue came up, and she apparently disapproves of my decision.
My atty did say yesterday that we've clearly had a verbal agreement of 50/50 custody for the last 15 months, neither of us has objected to it, so without any good reason to change it, the court will likely choose to keep it in place.
One interesting thing is that due to my W's trips to see OM, I have had custody of the kids about 53% of the time since she moved out, and I have a very good case that I should be custodial parent. If the court agrees, SHE would have to pay ME child support. The law is pretty clear on it. If one parent can show they've had custody more than half the time due to the others voluntary absense, that trumps income discrepency for deciding who custodial parent is. She has left the kids in my care for six weeks over the last 15 months, while I have only left the kids in her care for two weeks. She will make the case that her trips were for her job and career, but I have clear evidence showing otherwise.
Yes, my eyes have been opened as to my W's true nature. I don't think she's an evil person or anything, but she is instinctively manipulative, and very self absorbed.
The law is pretty clear on it. If one parent can show they've had custody more than half the time due to the others voluntary absense, that trumps income discrepency for deciding who custodial parent is. She has left the kids in my care for six weeks over the last 15 months, while I have only left the kids in her care for two weeks. She will make the case that her trips were for her job and career, but I have clear evidence showing otherwise.
Ahhh, the value of good intel. Nicely done, Future.
