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  • #1
    I don't believe you have to wait, but I might be wrong.

    As far as the selling of the house is conserned. Yes the other side can seek a motion. (Then they would be the applicant.)

    File first, negotate second.
    Applicant has a huge advantage at trial.

    Your motion might look like this.

    1. An order stating on a temporary without prejustice basis the De facto Joint custody and equal shared parenting status quo that has occured since seperation (your still in the same house).

    2. An order for the sale of the home.

    Before you do this, have a place already lined up, go out look at aparments and get costs and such. You need to prove to the court you have thought this threw and that you are ready, willing and able to move out immidately if the house is sold tomorrow.

    Comment


    • #2
      Originally posted by involveddad75 View Post
      File first, negotate second.
      Applicant has a huge advantage at trial.
      Apologies to the OP for jumping in with a question.

      id75,

      I notice you stated the above on another thread and I meant to ask when you originally posted......

      Is the above just a personal opinion or are there facts that actually back this up?

      Are there any specifics from your case, you'd care to share, where you feel you clearly benefited by being the applicant?

      Thanks

      Comment


      • #3
        It is my personal opinion, as I'm not a lawyer and trained on these issues.
        However given the following facts about what happens with regards to applicant and respondent.
        Let's call the Applicant the "moving party" for the case as a whole. They are the ones that started it.
        The respondent is then the "nonmving party"

        In motions and trials it is the "moving party" that speaks first, presents their arguments and witnesses and evidence. They also tend to testify first as well.
        The respondent "nonmoving party" then responds to the "moving parties" material and testimony. They can then bring any evidence themselves regarding what they are seeking.

        The "moving party" then gets a second chance to speak, but cannot bring any new evidence but can only respond to the "nonmoving party's" material.

        So here are the benefits as I a non-lawyer see them:

        1. In essence the "moving party" gets two chances to convince the Judge. I'd would call that an advantage.

        2. As the "moving party" you get first crack at the convincing the Judge. There are an few old saying. Early bird gets the worm, Nothing beats a first impression. I could go on but I think you get the point.

        There are other benifits but I think these are the major ones.

        Anyone else want to anything.

        The following is a summary of my interpration of what happened in my case, it is a fictional represenation of my memory of events.

        In my case I was arguing for the status quo to remain in place, that was equal shared parenting and Joint custody, but if the Judge decided joint custody wouldn't work then parallel parenting. So when trial start I was before a Judge who had read the material for trial and likely some of the continuing record. But for the most part hadn't met me. I presented myself as a calm reasonable parent focused on the children and what benefited them. My testimoney was after I brought 7 witnesses in who testified about my parenting. I spent 1 1/2 days on the stand. First I spent a good hour introducing the children to the judge talking about who they were what sort of personalities they had and what stage of developement they were at. I then talked about the things we did when they were with me. My involvement with the school, how I was already on the School council meeting for the school I wanted the children to go to, even though they weren't starting school for a year.
        My witnesses (I think seven into total that all stated that I was a good parent and they I looked after their children). The Judge is human he can't help but to form an opinion on my personality with that.
        Then my ex's lawyer went and start describing how bad a parent I was. How I intimidated her client. That my client felt that I should be involved but high conflict created by me prevented Joint custody from working. And that I shouldn't be involved as much, that I couldn't handle it, that I hadn't stepped up to the plate of parenting when the seperation had occured. As a result I was mistreating the children.
        Anyhow the judge had already gotten to know me as a person, he wasn't buying it. In the end he got the impression that it was my ex's father who had created all the conflict and there wasn't a lot but enough. So he agreed that the children should remain in my town. Mom had to move back inorder to remain a equal shared parent as when the children started school couldn't drive back and forth 45 minutes - 1 hour each way.

        Comment


        • #4
          File first, negotiate second....Applicant has the advantage????

          Filing first can well be interpreted in a different context by a judge. The applicant can well be viewed as the 'litigious' one who is incapable of working with the other party to come to an amicable settlement in the best interests of the children

          Oink: only you can be the one to decide whether or not to continue to mediate. There is no requirement though that you must wait a year before you can file. Where is that coming from?

          Comment


          • #5
            Originally posted by oink View Post
            other party showed up with no proposed parenting plan....I proposed my 2-2-5-5 and all I got was, you can just have weekends because it doesn't work for me. So much logical argument

            Mediator didn't help by saying interim order can be taken out to sell matrimonial home even if I don't agree to it. I get that considering am the one asking for separation / divorce, but if child custody / access hasn't been agreed on, what happens then?

            I don't intend to carry on with mediation because the mediator is allowing a lot of irrelevant items that is not helping. In order to avoid conflict, I should just wait for the 1yr sep anniversary and file?
            It doesn't sound like you have a very effective mediator. Are there others you can try instead? Mediation itself is very useful, if you have a good mediator. But you also have to have an ex who is willing to be flexible. The worse the ex, the better the mediator needs to be, but to a certain limit. Even the best mediator in the world can't help with an ex who sticks their fingers in their ears and goes "la la la la la I can't hear you."

            As for the sale of your house, try the argument that the children's home should not be sold out from under them until there is a parenting access agreement in place for them to transition smoothly into two new homes. It isn't that you don't agree that the house needs to be sold, it's just that the timing of it should have the least impact on the children.

            And you don't need to wait a year. Ideally, you'd like a signed separation agreement in place as soon as possible so you can both move on. You just can't get the divorce itself until a year has passed.

            Comment


            • #6
              In order to avoid conflict, I should just wait for the 1yr sep anniversary and file?
              lol Oink...I think I've told you 10 times now...you do NOT have to wait any length of time to file. You should do it immediately if you're going the contested route.

              The year timeline ONLY is regarding the actual divorce date itself which isn't going to be your issue.

              Your issue...and its going to take more than a year to resolve anyway due to the amount of time it takes to get a contested divorce through the court system...is going to be custody and support. You will spend more than a year trying to just work out a separation agreement.

              Please FORGET about the year timeline to an actual divorce decree date....it has zero to do with filing...and probably will be completely irrelevant in your case given the issues you have to get resolved.

              lol..and if you think that going the contested divorce route is going to "avoid conflict"...forgive me, but your belt isn't going through all the loops. I GUARANTEE you that hiring a lawyer, serving her with papers, her hiring a lawyer, going through the family court system, etc...is going to ramp up a lot more conflict than you're experiencing right now.

              Obviously, you're hell bent on playing hardball but be forewarned, its not going to be what you think. But if you're deadset on going that route, file immediately...for the 11th time, you do NOT wait a year to file...you will simply be wasting a year of time...file now.

              Applicant has a huge advantage at trial.
              I would take exception to this. My ex was the Applicant...didn't help him a bit. Especially since he's looked extremely aggressive all the way through. He refused mediation and filed...which was in my original affidavit..and that did not help him out at all.

              What really matters is how credible you and your evidence are.

              Comment


              • #7
                I totally agree with everything you said PH. Court is and will always be a last resort. It does ramp things up like you wouldn't believe, and that its far better to come up with a plan together than putting it in the hands of someone who doesn't know your children or yourselves.

                But if it's going there anyway, then it does have an advantage in my opinon.

                When my ex with held the children, I waited less than a day to file paper work. I tried to call her and talk to her, she didn't respond and I didn't agree with her building a new status quo of the children living in another town that I didn't think was in the best interests of the children.

                Becuase I acted so fast, she was unprepared, and I believe the courts also viewed my quick filing as genuin involvement and consern, which it was.
                That was why they accepted the paper work for an urgent motion to restore access and custody. Generallly access is not considered urgent.
                If a parent hasn't done anything in a couple of weeks or months they can't then claim there is an urgency or emergency.

                In my case and only my case, I believe filing when I did was the right decision. Ony the individual can decide for themselves what to do.

                Comment


                • #8
                  I don't believe you have to wait, but I might be wrong.
                  You can file at court before one year past separation. Your prayer for divorce will not have grounds until one year past separation, however.

                  Applicant has a huge advantage at trial.
                  Without getting into any supposed advantage to the applicant, the vast majority of family matters never progress to trial. If you have a trial, one or both parties are being unreasonable.

                  Comment


                  • #9
                    In my case and only my case, I believe filing when I did was the right decision. Ony the individual can decide for themselves what to do.
                    I'm actually glad my ex filed too. Mediation would never have worked for us as there was zero chance at negotiation. I personally would have wasted a lot of time and money had we attempted mediation.

                    To date, 3 years in...my ex is trying to find his 3rd lawyer since he refuses to accept that he isn't "winning."

                    I wasn't trying to suggest to the OP that he shouldn't file....if you're dealing with someone unreasonable and unmoveable, sometimes its the only way. I was just trying to say that going the contested route is often not what you expect. Its often more difficult, a lot lengthier, and a lot more expensive than even pessimists guess at.

                    I'm glad it worked out for you though involveddad.

                    Comment


                    • #10
                      Originally posted by oink View Post
                      other party showed up with no proposed parenting plan....
                      Nor are they expected to. Good that you did because you put forward a plan that can at least be the basis for mediating a resolution to the custody and access issues.

                      Originally posted by oink View Post
                      I proposed my 2-2-5-5 and all I got was, you can just have weekends because it doesn't work for me. So much logical argument
                      Just again identify to the mediator that a 2-2-5-5 or 2-2-3 based access schedule is grounded in current jurisprudence and often ordered by the court. It would be ill advised for either parent to try and "fight it out in court" on something that is reguarly recommended by the OCL / Section 30 assessors and ordered by the courts. This doesn't include the vast majority of parents who settle their matters either between themselves or with the assistance of a private mediator.

                      If the mediator doesn't know what a 2-2-5-5 or 2-2-3 access schedule is and needs explanation... You may not be working with a very good mediator who is current on Family Law matters. You shouldn't have to even explain these access schedules in joint custody and joint residential situations. The mediator should by default discuss them with both parties as options out of good practice.

                      Originally posted by oink View Post
                      Mediator didn't help by saying interim order can be taken out to sell matrimonial home even if I don't agree to it.
                      Wow, what a threat and the mediator if stated this is really not advising both parties properly.

                      Sure, you can bring forward an Applicaton to court for the sale and partition of the matrimonial home. But, the respondent can request that custody and access be determined prior to this action of equalization. The court generally and mostly deals with custody and access prior to equalization as the best interests of the children, not the parents are the most important thing to deal with.

                      So, you can take what the mediator said as a complete and utter threat and a stupid thing to say totally. I am surprised by this and why I am skeptical if a mediator presented in such a way to both parties.

                      Consider the process to getting to any point in a litigated process for any determination on the partition and sale.

                      1. Someone has to apply to court.

                      2. Both parties have to wait multiple months to get to a Case Conference.

                      3. No determination can be made on the sale and partition of the matrimonial home in accordance with the Rules as neither party can bring a motion prior to the hearing of a case conference unless an "urgent" matter.

                      4. Your situation is not "urgent" as you are both in mediation and in a negotiated settlement process that most judges prefer over a litigated matter. If one of the parties in your matter was stupid enough to try and go forward with an "urgent" motion, the evidence to the fact that you were engaged in a mediated process prior to the "urgency" would be more than enough to quash and have significant costs ordered against the Applicant in that matter.

                      5. The Respondent in the matter would probably apply to the court for a determination of custody and access anyway and this will generally take priority over "equalization" of net family property. So it turns it into a custody and access dispute automatically.

                      So, the mediator is doing NO ONE a service by making such comments without outlining the realities of the situation and in the manner you described.

                      Originally posted by oink View Post
                      I get that considering am the one asking for separation / divorce, but if child custody / access hasn't been agreed on, what happens then?
                      Despite what someone here thinks... There is no advantage to being the Applicant or the Respondent in the matters. In fact, being the Applicant often is taken as a negative inference as the unreasonable party if you come empty handed and left a negotiated and mediated process with nothing to show for it.

                      I have a VERY different perspective and more often than not, how you file, when you file and what you file as the Applicant can bring significant negative inference against the party if done improperly, at the wrong time and with malice intent.

                      Originally posted by oink View Post
                      I don't intend to carry on with mediation because the mediator is allowing a lot of irrelevant items that is not helping. In order to avoid conflict, I should just wait for the 1yr sep anniversary and file?
                      If you are leaving the mediated solution at this point and as a result of what occured then my recommendation to you is:

                      1. Retain counsel to advise you.
                      2. Retain counsel to advise you.
                      3. Retain counsel to advise you.

                      Good Luck!
                      Tayken

                      Comment


                      • #11
                        Originally posted by Pursuinghappiness View Post
                        I would take exception to this. My ex was the Applicant...didn't help him a bit. Especially since he's looked extremely aggressive all the way through. He refused mediation and filed...which was in my original affidavit..and that did not help him out at all.

                        What really matters is how credible you and your evidence are.
                        I agree 1000% with this very learned statement from PH. I would really seriously recommend everyone thinking there is an "advantage" to being first through the court room door.

                        Oink, you need to re-read "Tug of War" again.

                        Good Luck!
                        Tayken

                        Comment


                        • #12
                          Oink:

                          You were given the correct information....ex parte, emergency motions prior to a case conference are only granted for extreme cases...which you don't have grounds for. Judges don't really like them at all.

                          I'm pretty sure I gave you this timeline in another post...but here it goes again:

                          The process is that you will have to file, wait for responses and the time required to get your NFP's completed, get a court filing number....then wait for a case conference (that can take a few months...3-4).

                          After the case conference, you'll identify the outstanding issues and probably still not resolve any of them, then you can start to file motions. Including one to disposition the marital home. You can also ask at that time to begin the process for interim custody..but that could potentially hang out there until the actual moving date..since that's when it would have to be resolved. She will also probably attach interim support orders to those motions.

                          Remember that those custody and support orders are interim so they'll be a discussion on what evidence you'll need to finalize them..ie, a custody evaluation.

                          Depending on how things go...how contentious things get...how much she or you want to fight...etc etc...you can be looking at a significant amount of time to reach a separation agreement. That's why the 1-year timeline really doesn't matter...its most likely going to take longer than a year.

                          Again, no one can tell you what to do and no one knows your ex...but if there's any chance that you can get issues resolved without going the contested route..its definitely worth the try. If you feel its pointless and there's no way she's going to budge...its probably worth filing. It would benefit you both if the mediator explained the process (including how expensive it is) to her at your next session.

                          I am tempted to just go all out because am realistic that ex is not willing and able to agree to shared parenting
                          If you're of the opinion that you won't be doing some bending and that you're going to "win" going the contested route...I can assure you that both of those things are not true. You will have to accept a lot of things that you don't think are fair...and no one wins.

                          And get prepared...because you're gearing up for a nice long in-home separation while you wait to get the house dispositioned. Its not fun once you file and things get contentious. You might want to read up on the forum about how to protect yourself.

                          Comment


                          • #13
                            So, the mediator is doing NO ONE a service by making such comments without outlining the realities of the situation and in the manner you described.
                            Totally agree with this Tayken.

                            Oink: Both you and your ex need a very quick education on what's going to happen going the contested route, including the following:

                            1. A lengthy in-home separation because the reality is...with the initial filing and waiting for a CC...then having to file motions and get an interim custody order...you're looking anywhere from 8months to over 1yr to get out of your home.
                            2. The expense of lawyers. Its hard to estimate the cost here...but with retainers, case conferences, possible depositions, motions...you're looking at thousands of dollars.
                            3. A custody evaluation. Again, time consuming and very expensive. You'll probably not get OCL because you have one child and a fairly simple case (ie, no CAS involvement)...so you're looking at a private assessment. which will run anywhere from 8-12k (you'll have to pay half up-front)
                            4. A final divorce judgement which can literally take years. And I'm not exaggerating...YEARS!

                            You may be right in that there is no other way.

                            Just from an observers point of view...you seem a little cocky and hell-bent on playing hardball. And let me assure you, you will not win...you will compromise on things you don't want to compromise on (so will your ex)...and in the end, you'll end up spending a lot of time and money...LOTS!....and wishing you could have resolved things at mediation.

                            If I could impress anything upon you and your ex right now...its to at least get a really good understanding of what you're getting into before you start...because you don't have a good idea...and I'll bet she doesn't either.
                            Last edited by Pursuinghappiness; 01-25-2013, 12:58 PM.

                            Comment


                            • #14
                              You are right...my bad on that :-) I am not hll bent on going to court, but when you are dealing with a party not ready to listen? I realise there will be more conflict, but at least I provided a proposed plan that didn't get considered.
                              I could be wrong in my assessment...its hard to tell from posts. I guess you just come off that way a little...which is another thing you might want to calm down on when you go into court. Judges look for "reasonable."

                              Like I said, no one can tell you what to do because only you know your ex...however, since you're already in mediation...you might want to exhaust every option you have...including getting a better mediator. The one you have seems to be doing a disservice to both of you by not impressing upon you what happens in a contested divorce situation.

                              If you're not apprehensive and worried about going the contested route...trust me, you should be.

                              When you consider your options here...put your ego aside...and consider your finances, your kid, and your emotional and mental health. I would ask yourself if you've really exhausted all other options and if you're positively sure there's going to be zero resolution and you're completely wasting your time. Consult legal advice to help in this.

                              Again, I'm just cautioning you...in the end, you've got to decide..so I wish you the best of luck in doing so.

                              Comment


                              • #15
                                Originally posted by oink View Post
                                PH...you and Tayken are completely right, and this is really painful to me at times, with nearly tears running down my cheeks. I am not cocky, just passionate about my son.
                                There is "positive" passion and then there is "negative" passion. Focus on the positive and you will come out fine.

                                Positive parental passion/concern: Lorenzo's Oil - Wikipedia, the free encyclopedia

                                ...

                                Negative parental passion/concern: The Road - Wikipedia, the free encyclopedia

                                You need to start thinking you are NOT going down a post-apocalyptic tale of a journey of a father and his child through the courts against a gender biased system over a period of several years, across a landscape blasted by feminism and anti-father bias. There has been no unspecified cataclysm that has occurred before the court that has destroyed the principals of "maximum contact" with both parents making it "always the mother" that has destroyed your opportunity, as a father, to be an equal and joint custodial parent. (Re-worded from wikipedia.)

                                If there is a cataclysm before the court be sure you are not the parent who set the charge and pressed the button to make that event happen.

                                Read this:

                                Your Social Worker - Gary Direnfeld, MSW, RSW

                                If your situation appears high conflict, you may have to look at yourself to determine if there is anything in terms of your behaviour that contributes to mutual distress and aggravation. If indeed your behaviour plays a part in the conflict, then settlement may require some change on your part too. The challenge here is to not only project culpability on the other side for the demise of the relationship but to take responsibility for one’s own contribution too.

                                If settlement is the goal and you wish to be spared from the expense and upset of a drawn out and expensive court battle, the key then, is to focus on settlement and disengage from the name calling by concentrating on the outcome you seek and if not fully attainable, then seeking safeguards to mitigate concerns. Big challenge.
                                REALLY READ THAT ARTICLE.

                                Originally posted by oink View Post
                                To sit there and listen to lies and accusations, and have nothing done about them is unbearable. I have been told to bite my tongue, and have been doing that. In all honesty though, why would anyone have a problem with a parenting plan that is just like what we have now?
                                You don't know if there is a "problem" yet. You are projecting and stop right now. You admitted against interest to this very forum that the mediator asked the other party to read it and come back to the table with input to the agreement.

                                All is not lost.

                                Originally posted by oink View Post
                                Again..her argument, and I quote "I know friends that have tried the during the week and weekend thing and it hasn't worked for them". How is that relevant to our family or our situation?
                                It is not. You are absolutly correct and this is called "emotional reasoning". A judge will ignore such a baseless claim of hearsay and in fact, even uttering that into an affidavit would really bring a negative inference against the party stating it.

                                You may not be getting the automatic feedback from the mediator you are craving now but, if the mediator is even half witted they thought the same thing. They may not have addressed it because they are allowing the other "feelings" person to vent to see how you react possibly.

                                You can ask how the evidence presented is "relevant" to the "matters at hand" and even related to the custody and access of "our children".

                                Originally posted by oink View Post
                                I don't want to go to court, and I also don't want to agree to an interim agreement to custody that can be used against me in the future. Why delay the inevitable by having an interim parenting plan, when shared works now?
                                You don't know that this is what is happening. You are again projecting your feelings on what is happening but, may not be what is happening.

                                Originally posted by oink View Post
                                Who now needs to speak to the mediator and try to get them to see that the meetings are not balanced?
                                Are you 100% sure they are "not balanced"? The mediator asked the other party to consider your offer brought to the table. That is very balanced in my opinion. Patience is a virtue in these matters.

                                Custody and access is not a battle or war. I know you have been trained to react to situations but, you may have to put your combat training to the side when dealing with custody and access stuff like this. I know this is probably hard for you and goes against all the training you have had possibly in the military but, mediation is NOT a battle nor is it a war. The same rules do NOT apply.

                                Originally posted by oink View Post
                                Should I get my lawyer to send them a letter with my concerns and make it confidential not to be brought up in mediation? I would hate for the mediator to mention it to stbx
                                Actually, talk to your lawyer. I highly doubt your lawyer will do this as the mediator would see this possibly as an attempt to influence them.

                                Get a lawyer, talk to them about how to address your concerns. You are very emotional and you may be having an emotional reaction to what happened. You are seeking resolution, don't want to make this an emotional battle but, go back and read the "Math" vs "Feelings". Mediation takes time too. Give it time.

                                Also, there is really no wrong or right. You may have some patterns of thinking that are "black and white". What PH (I think) and I am trying to provide are better options and solutions to make sure that the only party to your matter who really matters, the child, truly *wins* and has both parents involved equally in their life.

                                Nothing you have posted to this site, even though at times a bit conflicted, should stop you from being a full joint custodial parent with equal residency. But, you really need to govern your conduct appropriately and not throw bombs, allegations and other nonsense like the other party may be doing.

                                It may be cathartic for them but, in the long run, if they do it too much, too often and they start to actually "believe", even in the face of cogent and relevant evidence, thy may make their own case for the courts to order sole custody and majority access to you.

                                Don't be the hot head who seeks cathartic emotional release before the court. Re-read the case law I posted from the very Honourable Madame Justice Mossip. Pay close attention to what she writes. Justice Mossip outlines in detail, and in a way I haven't seen a justice do before in a family law matter and gave up the goose on how they balance probabilities in "high conflict" disputes somewhat.

                                Good Luck!
                                Tayken
                                Last edited by Tayken; 01-25-2013, 01:58 PM.

                                Comment

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