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mafia007 09-26-2016 12:16 PM

EN ROUTE toward TRIAL
 
Hello ODF Community,

This is it, trial is scheduled for next January 2017.

I'm now self rep as I realized after hiring three lawyers, they were mostly working on her side than mine. Also, instead of following my instruction, they were taking there own causing me to spend more time on pending issues and billing me for nothing.

Now my question, we need to fill in and file a form call " Trial Scheduling Endorsement Form" before the end of this week. My STBX lawyer ask me to fill my part and provide with my list of witnesses and timelines and that he could file it at the Court. I'm the applicant, I should be the one to file in Court no?

It sounds to early for me to fill this form with my list of witnesses. Can I provide an accurate list later on? Can it be changed? What I understood, is that we provide that form only to reserve the space in January and that we could bring some changes at a later date.

Any advice on the process?

Thanks

mafia007 09-27-2016 05:02 PM

I have compiled the list of witnesses on the Trial Endorsement Form. If I need to change (add/remove) a name, can it be done later?

Tayken 09-28-2016 03:48 PM

Quote:

Originally Posted by mafia007 (Post 211943)
I'm now self rep as I realized after hiring three lawyers, they were mostly working on her side than mine. Also, instead of following my instruction, they were taking there own causing me to spend more time on pending issues and billing me for nothing.

Ice Cube would advise you to check yourself before you wreck yourself. Having 3 different lawyers on a file and a statement they were working for the other party points to a problem with the litigant rather than the lawyer in my humble opinion.

I suspect, based on your posts to this forum, that you may be a "math" person. You may be focusing on technical details that are not relevant to the resolution of your matter. This is where "math" people have issues with family law. They are not able to identify their feelings and often miss use "logic" to over argue a matter causing them a lot of unnecessary costs and problems.

When Math People and Feelings People Negotiate - High Conflict Institute

Quote:

Originally Posted by mafia007 (Post 211943)
Now my question, we need to fill in and file a form call " Trial Scheduling Endorsement Form" before the end of this week. My STBX lawyer ask me to fill my part and provide with my list of witnesses and timelines and that he could file it at the Court. I'm the applicant, I should be the one to file in Court no?

It sounds to early for me to fill this form with my list of witnesses. Can I provide an accurate list later on? Can it be changed? What I understood, is that we provide that form only to reserve the space in January and that we could bring some changes at a later date.

Any advice on the process?

It is never too early to complete a TSEF. They can be updated if new information or witnesses need to be added. They are not a sworn statement to "the truth" and are not commissioned. It is a technical detail to help schedule and plan for the upcoming trial.

If the other party's lawyer is going to do the form why do you care? Just provide the information and move on. A lawyer is more capable of properly completing the form and submitting it. It doesn't cost you anything for them to do it.

Everything will be sorted out at the TMC blitz right before the sittings.

I suggest you seriously consider getting legal representation. If you are asking questions like these you are going to get eaten alive by the court process.

Good Luck!
Tayken

mafia007 10-18-2016 02:59 PM

Trial was postponed to May 2017 list as the January list was all booked.

Since my pension has a value exceeding 50% of my total assets, I was forced to transfer the matrimonial home in her name alone until trial. It was not in the BIOC to have the home listed for sale at this time. The equity will be debated during the equalization process. I find it unfair that my former spouse will receive the assets that can be liquidated now while I can not touch my assets until I retire. Like everyone else, including my STBX, I have accumulated a lot of debts since separation and it is only with the matrimonial home (from the equity) that I can get the funds to repay. The judge sympathize with my position and truly believe that I have good arguments for at least get part of my equity at the trial in May to help me financially. He said he would add it in the order to be considered by the trial judge. Bla bla bla it's still a case by case scenario and it's hard to predict the outcome.

Really, it's nice to have a good pension but when it comes to divorce, it becomes a financial issue that causes more pain in the ass. The way I look at it now is 1- if I get my equity, I would be able to repay my debts and move forward but 2- if they order not to split my pension at source, I will live on Kraft Dinner for the next 10-15 years but will have a nice retirement in +/- 18 years. The hic... what if I don't make it there? hummmmmmmmm. But me and my gf are trying the best we can with the little we have. We know it's hard to predict the future but we try to manage it day by day. But geeees, I never had to pay that much interest on my credit cards every month!

The other issue; Access.

Trial is postponed until May. How can I get more access until then? It will be another Christmas without the kids... grrrrr! I guest this is how I will need to work this out.
- will try to start the reunification therapy ASAP with D14 and D8.
- will encourage S16 to come more often and increase his journey with me to include the Friday nights in the weekend.
- will ask for Holiday share time with her lawyer and see what are the answers (will be negative for sure)
- will ask for more time after weeks of therapy and see what are the answers (will be negative for sure)
- will document everything (even if my demands are being ignored)

She keeps on saying that the kids do not want more time with me but according to the CL, she's behind this and this is why I need therapy with my girls.

I've requested to have access to CAS investigation reports and was granted with such at my last appeal. yeah! I cannot go against D14 and S16 wishes but will keep on fighting for D8 for sure because the same thing might happen.

Financial Disclosure
I went to all the files that I retrieved from my lawyer as I am now self rep and noticed that financial is still pending. The other party shows a Financial certificate in the Table of Contents but when I look in my Continuous Record, the Tab is empty and is not misplaced either as I went through the 4 volumes. I will need to verify with the one at Court and request financial disclosure from the other party. Most of her items she had indicated on her financial statement are not supported. Mine are since the very beginning. I will work to have this disclosure done and will proceed with offers according with the numbers I can rely in front of me until trial.

Your tips are always welcome!

Tayken 10-18-2016 03:45 PM

Quote:

Originally Posted by mafia007 (Post 212828)
Trial was postponed to May 2017 list as the January list was all booked.

You may be bumped up to that as matters that are scheduled are settled. So be ready for January sittings.

Quote:

Originally Posted by mafia007 (Post 212828)
Since my pension has a value exceeding 50% of my total assets, I was forced to transfer the matrimonial home in her name alone until trial.

Now, transferring title is very different from an awarded of sole possession of the matrimonial home. Which is it? Generally a court won't order the transfer of an asset at this stage int he game.

Quote:

Originally Posted by mafia007 (Post 212828)
It was not in the BIOC to have the home listed for sale at this time.

Who is residing in the residence? The other parent and the children? If that is the case, then they would order SPMH to the other parent residing there generally. This is not the same as transferring title.

Quote:

Originally Posted by mafia007 (Post 212828)
The equity will be debated during the equalization process.

That is because they likely want to secure your portion of the equity against any costs and the other parent's as well. The only "liquid asset" is the home. (Although it is not very fluid.)

Quote:

Originally Posted by mafia007 (Post 212828)
I find it unfair that my former spouse will receive the assets that can be liquidated now while I can not touch my assets until I retire.

I doubt that the order resulting from motion allows for this. It sounds like an order for sole possession of the matrimonial home and not a title transfer.

Quote:

Originally Posted by mafia007 (Post 212828)
Like everyone else, including my STBX, I have accumulated a lot of debts since separation and it is only with the matrimonial home (from the equity) that I can get the funds to repay.

There is also your employment opportunities to pay back debt.

Quote:

Originally Posted by mafia007 (Post 212828)
The judge sympathize with my position and truly believe that I have good arguments for at least get part of my equity at the trial in May to help me financially.

Again, it sounds like a SPMH order which prevents you both from doing anything with the asset generally. The asset is locked up now and the trial judge will have to determine the equalization of assets against costs and other debts.

Quote:

Originally Posted by mafia007 (Post 212828)
He said he would add it in the order to be considered by the trial judge. Bla bla bla it's still a case by case scenario and it's hard to predict the outcome.

Again, it doesn't sound like a title transfer and it would be very rare for a judge to order the title transfer on motion where the funds are not secured with a third party real estate lawyer if sold.

Quote:

Originally Posted by mafia007 (Post 212828)
Really, it's nice to have a good pension but when it comes to divorce, it becomes a financial issue that causes more pain in the ass.

How so? They could equalize the pension so that the other parent gets the equity in the home and you keep your pension. Pay now or pay later. Half your pension is gone anyways. It would be better to be cash strapped now as pensions are protected from bankruptcy.

So you could technically file bankruptcy after everything and still keep your pension if they equalize it so that you get 100% of the pension in return for your share in the equity of the matrimonial home. The judge may be protecting the asset from bankruptcy from you.

Quote:

Originally Posted by mafia007 (Post 212828)
The way I look at it now is 1- if I get my equity, I would be able to repay my debts and move forward but 2- if they order not to split my pension at source, I will live on Kraft Dinner for the next 10-15 years but will have a nice retirement in +/- 18 years.

Or you could upgrade your skills and earn a larger income and pay off your debts. 10-15 years of not working is very long. Many disabled people choose alternative employment. You could get a degree in IT and write javascript and make a lot of coin. More coin than sitting at home waiting for a pension to execute.

Quote:

Originally Posted by mafia007 (Post 212828)
The hic... what if I don't make it there?hummmmmmmmm.

Then your pension becomes the property of the children. Are you planning to have a stroke in the next 10-15 years? Honestly, you need to pull up your socks and find real sustainable employment and stop digging yourself into debt.

Quote:

Originally Posted by mafia007 (Post 212828)
But me and my gf are trying the best we can with the little we have.

Then upgrade your skills and get jobs in IT or another field where you can earn a good income. You are able to use a computer. You post to this forum. So IT isn't that far of a reach for you.

Quote:

Originally Posted by mafia007 (Post 212828)
We know it's hard to predict the future but we try to manage it day by day. But geeees, I never had to pay that much interest on my credit cards every month!

Upgrade your skills and move on. No magic Family Law wizard is going to come and wipe away your debt. You need to do that yourself. If you are not working to your full capabilities now is the time to get on that.

Quote:

Originally Posted by mafia007 (Post 212828)
The other issue; Access.

Trial is postponed until May. How can I get more access until then? It will be another Christmas without the kids... grrrrr! I guest this is how I will need to work this out.

Make a polite request. If it gets turned down then you use that rejection in your trial. That is the best you can do for now.

Quote:

Originally Posted by mafia007 (Post 212828)
- will try to start the reunification therapy ASAP with D14 and D8.

Was it ordered?

Quote:

Originally Posted by mafia007 (Post 212828)
- will encourage S16 to come more often and increase his journey with me to include the Friday nights in the weekend.
- will ask for Holiday share time with her lawyer and see what are the answers (will be negative for sure)

That is about all you can do.

Quote:

Originally Posted by mafia007 (Post 212828)
- will ask for more time after weeks of therapy and see what are the answers (will be negative for sure)
- will document everything (even if my demands are being ignored)

Not much else you can do. Remember to be polite. To "kindly ask" etc...

Quote:

Originally Posted by mafia007 (Post 212828)
She keeps on saying that the kids do not want more time with me but according to the CL, she's behind this and this is why I need therapy with my girls.

Then go and let the therapist testify to the reasons given by the children.

Quote:

Originally Posted by mafia007 (Post 212828)
I've requested to have access to CAS investigation reports and was granted with such at my last appeal. yeah! I cannot go against D14 and S16 wishes but will keep on fighting for D8 for sure because the same thing might happen.

Well, you are somewhat out of luck with the 14 and 16 year old. But, the 8 year old doesn't get to choose.

My advice... No more motions.

Good Luck!
Tayken

trinton 10-18-2016 04:55 PM

Sounds like I may be headed towards the same route as you

as per access - you could bring a motion or just don't do anything. If you've already asked and she's said no to your requests for access, don't keep asking, you've already got solid evidence that she will say no - don't ask again.

mafia007 10-18-2016 05:55 PM

@ Taiken,

To make it clear concerning the matrimonial home, my STBX wanted the house from the beginning. I did my calculs based on the worst scenario and decided that I couldn't keep the house so I let it be. My lawyer's advice was to show that I was very reasonable by allowing her to keep the house. So before asking the house to be sold, I waited to see if she could buy my share of interest. Both of our lawyers wrote an agreement and it was so ambiguous at the end it was decided that the house be transferred into her name alone. Was screwed with the wording despite I was mostly relying on my counsel but in the end, it all falls to the same results;
- because of the children (3), it is not the time to sell the home for stability purposes
- equity is at dispute: I want to split my pension, she wants to keep the house. She can't buy my interest so the house would need to be sold. This is a trial issue and can only be addressed at the equalization process. So no matter what, the issue won't be resolved until trial or settlement.

The pros and cons from this are;
- I am no longer on the title. As per the Partition ACT, I can no longer force the sell of the home but I do have my rights on the equity.
- My STBX was over 3 months in arrears on the Mortgage and the 2016 taxes were still not paid when we appealed last week. I told the judge who ordered her to pay everything up to date and make sure I am not responsible of any of those arrears. Following this, the house is to be transferred to her without my signature.

Basically, in a way or the other, everything will be settled only at the very end, when the judge will look at the statements from each party and proceed with the equalization. Too many issues are immerging on her side as she has yet disclosed everything to conclude this step.

mafia007 10-18-2016 06:18 PM

Quote:

Originally Posted by trinton (Post 212845)
Sounds like I may be headed towards the same route as you

as per access - you could bring a motion or just don't do anything. If you've already asked and she's said no to your requests for access, don't keep asking, you've already got solid evidence that she will say no - don't ask again.

Fair enough, I will make one request for the Holidays when the time comes allowing her enough time to plan and think of her denying reply and probably up to two requests for normal access depending on the Therapist recommendations and will leave it like this until trial. There is also March Break before trial but I won't ask to many as I already know the response. I won't bring any more Motions, they are useless in my case.

She told the judge she was very scared of me :eek: at the last appeal but she keeps on arguing that I stop at her place to pick up the kids instead of school and she comes here on Saturdays to pick D8 as S16 stays for overnights. This is really not consistent with a person who insinuate to be scared that much. I've could have act dangerously a long time ago if I wanted to. :p

LovingFather32 10-19-2016 09:25 AM

Quote:

Originally Posted by mafia007 (Post 212849)
Fair enough, I will make one request for the Holidays when the time comes allowing her enough time to plan and think of her denying reply and probably up to two requests for normal access depending on the Therapist recommendations and will leave it like this until trial. There is also March Break before trial but I won't ask to many as I already know the response. I won't bring any more Motions, they are useless in my case.

She told the judge she was very scared of me :eek: at the last appeal but she keeps on arguing that I stop at her place to pick up the kids instead of school and she comes here on Saturdays to pick D8 as S16 stays for overnights. This is really not consistent with a person who insinuate to be scared that much. I've could have act dangerously a long time ago if I wanted to. :p

I disagree. Don't stop asking for access. I sent a blitz e-mail weekly which included:

a) Request to use "ourfamilywizard.com" for more effective communication
b) Exchange Parenting Plans
c) Request to go over Separation Agreements
d) Request access and/or send a graduated access schedule leading to overnights and 50/50.
e) Always be reasonable and find ways to avoid court, which is the primary objective.

Remember to include an offer to settle at least once or twice/month.

Let her keep saying "No" in writing. Dont stop asking.

I made a color coded "Access Denial" calendar and the judge LOVED it. The last thing you want is any kind of acquiescence or to show you're accepting of this in any way. Never stop asking .. keep collecting documented denials....they'll come in handy later.

Tayken 10-19-2016 11:56 AM

Quote:

Originally Posted by mafia007 (Post 212848)
- because of the children (3), it is not the time to sell the home for stability purposes

If they are living in it now and a party demonstrates they want the home they will order sole possession to that party.

Quote:

Originally Posted by mafia007 (Post 212848)
- equity is at dispute: I want to split my pension, she wants to keep the house. She can't buy my interest so the house would need to be sold. This is a trial issue and can only be addressed at the equalization process. So no matter what, the issue won't be resolved until trial or settlement.

This is correct. Having the title means nothing as the equity in the home is what is key. So, what do you care about the title. She is still subject to the equalization. Also, no real estate lawyer would take this file on at sale because they wouldn't want to deal with it. Or if one does they will require that they hold funds until such time a court orders the equalization and distribution of this asset. Remember, all home sales need 2 lawyers to act on both sides. Real estate lawyers are not idiots. They will see the title transfer when they pull the records and ask questions. They will be more worried about protecting themselves than they are about closing the deal.

Quote:

Originally Posted by mafia007 (Post 212848)
The pros and cons from this are;
- I am no longer on the title. As per the Partition ACT, I can no longer force the sell of the home but I do have my rights on the equity.

If she is ordered to make an equalization payment to you it will force the sale if she does not have the funds to buy your portion of the equity. Remember, the mortgage company can pull the mortgage at this current title transfer. So, they may force the sale on transfer. Assuming you are both on the mortgage. They just violated the terms of the mortgage BTW. (Guessing not sure what your mortgage contract looks like.)

Quote:

Originally Posted by mafia007 (Post 212848)
- My STBX was over 3 months in arrears on the Mortgage and the 2016 taxes were still not paid when we appealed last week. I told the judge who ordered her to pay everything up to date and make sure I am not responsible of any of those arrears. Following this, the house is to be transferred to her without my signature.

The other party is on the hook for everything. What is the concern? She will still owe the equalization on the property. She does something stupid she will still owe you the money. Good luck trying to bankrupt out of those costs thanks to WD. :)

Quote:

Originally Posted by mafia007 (Post 212848)
Basically, in a way or the other, everything will be settled only at the very end, when the judge will look at the statements from each party and proceed with the equalization. Too many issues are immerging on her side as she has yet disclosed everything to conclude this step.

Either way your equity in the home is still secured. If she screws it up then to trial you will have to go.

Good Luck!
Tayken


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