Pros and cons to filing first?

[Freedom]

I said I wanted out, but I haven't filed any papers or hired an attorney.  To my knowledge STBX also has not hired an attorney.  (The whole mediation thing again.)  I'm not particularly fond of drawing "first-blood" considering we're still living together - amicably in front of our child, but I'm afraid if I don't file first and he requests temporary custody, it may be granted until we have a resolution.  Is this fear unfounded?  What are the pros and cons of filing first - or does it matter at all?

[TC]

That is a rather tough question.

Do you intend to remain living under the same roof?  If so, filing will likely increase the animonsity from the stbx.

On the other hand, I personally tend to be a bit of a control freak and don't like surprises....I'd be inclined to file just so I knew what was coming.

Realistically, it might be a good idea to go to the first mediation meeting and see how things look after that.

As for custody...will probably depend on your state and the local courts.  At this point, theoretically, both parents have equal rights to the child....court will more than likely lean in favor of the one that routinely gives the most consistent care and has demonstrated an ability to care for said child.  Based on your previous posts, I would think you would have the upper hand, but I am not the judge.

TC

[Freedom]

That is a rather tough question.

Do you intend to remain living under the same roof?  If so, filing will likely increase the animonsity from the stbx.

On the other hand, I personally tend to be a bit of a control freak and don't like surprises....I'd be inclined to file just so I knew what was coming.

Realistically, it might be a good idea to go to the first mediation meeting and see how things look after that.

As for custody...will probably depend on your state and the local courts.  At this point, theoretically, both parents have equal rights to the child....court will more than likely lean in favor of the one that routinely gives the most consistent care and has demonstrated an ability to care for said child.  Based on your previous posts, I would think you would have the upper hand, but I am not the judge.

TC

I DEFINITELY do NOT intend to stay under the same roof any longer than necessary, but funds are an issue at the moment.  Animosity is the exact reason for my hesitation tfor first blood.  Wouldn't hurt me a bit (even though I also am a control freak) if it were the other way around.  But doubt that will happen since he's trying to play the good soldier - Well, I tried, I tried.  (Oh, the flexibility he has all of a sudden!)  Would actually be a relief as long as custody is not in jeopardy ... even temporarily.

[CollegeDad]

Listen, about the only advantage that you have when you file first as opposed to waiting for your ex to file first is that whoever files first will be first to present their case to the judge from now on to infiinity any time something about your divorce comes up.  That is the first time you ever appear before the judge and any subsequent modification made to your decree regardless of who initiates the action or when. 

Now some people think there is an advantage to always presenting first and some people think its better to go second.  Either way, I'm sure the judge is going to look all the facts of your case no matter who talks first. 

Also, filing first gives you some sort of control over the amount of time this whole divorce is going to take.  You will have started the ball rolling on the whole process.  You will no longer have to worry about when is everything going to get moving.  You'll just need to be concerned about putting together the best case necessary for what ever you are trying to accomplish. 

I also feel that if you have a fault divorce it is best for you to go ahead and file.  I feel it strengthens your case for fault to be the plaintiff as opposed to the defendant.

[pp13]

http://divorceinfo.com/blog/?p=93

Who Should File First?
March 6th, 2005
A guest on Alabama Divorce Questions asked me a great question yesterday, whether there?s an advantage or a disadvantage to being the first one who files for divorce. I thought it might be helpful to lay out the principles as I understand how they work in Alabama. I don?t know for sure the extent to which these same principles apply in other states, but I think they apply pretty generally.

First, the person who files gets to decide where to file. For example, when the spouses live in two different states and both spouses have minimum contacts in both states, the first one to file (and get service of process) gets to choose which state will have jurisdiction over the divorce case. Depending on the states, this can be a powerful tool. Here are just a few of the factors that might change depending on which state?s law governs:

States treat property division differently, particularly when it comes to dividing retirement plans
Different states have different methodologies for calculating child support
Different states have different standards for alimony
Different states have different approaches to child custody, to visitation, and to relocation with children
Second, the one who files is the plaintiff, and in Alabama divorce trials the plaintiff presents his or her case first. I?ll let you decide whether that?s an advantage or a disadvantage. I?ve heard reasons for both.

Third, spouses in a troubled marriage often get locked into a waiting cycle, where neither wants to be the one who files, so both warily glare at each other and wait for the other to make the first move. I?ve never argued against this ?guns drawn and cocked? waiting period, because it usually gives one or both spouses extra grieving time. And the more time spouses have to grieve before they get people like me involved, the less money they spend on people like me.

Fourth (and this may be the dynamic driving the ?guns drawn and cocked? waiting period), lawyers and judges know there?s simply no correlation between which spouse files and which spouse is the leaver in a marriage. However, the culture doesn?t get this yet. So, wrong though it may be, the culture sometimes assumes that the one who filed for divorce is the one who wanted the marriage to end.

[Freedom]

The hostility has begun, so I guess I will be filing as soon as possible.  C'mon tax return!!

Will part of that get him out of my house??  (I'm not making assumptions here.  I say "mine" because he agreed to allow me to re-fi it in my name and sign off on a quitclaim.  Of course, now he says he won't sign - even though the re-fi is complete.) Right now, his intention is to stay in the house until he can get a mortgage and find a house of his own.  God only knows how long that will take! 

[CollegeDad]

Well I don't know who he may have gotten as his attorney but if his attorney is an expert in family law and custody cases especially, the first thing that his attorney is going to tell him is do not under any circumstances leave the house unless ordered out by a judge.  That is the first rule in seeking custody.  A parent seeking custody of the kids weaken their case if they voluntarily walk out of the home where the children reside.  Their case is not as affected if they are ordered out of the house by a judge.  But, unless you can prove that they are a threat to you, a judge is probably not going to order them out of the house.  Also, be careful about trying to stage something to make it look like they are a threat to you.  I'm not saying that you are the type person that would do something like that at all.  I'm just warning you to be careful if that thought did occur to you.  It could back fire on you and reflect very badly on you. 

I can tell you that trying to work things out with your husband is a much less stressful road to go down than an all out custody battle that can wind its way through the court system for many months possibly years. 

Also, it does not matter whose name is on the house.  Whatever equity is in the house will be divided 50/50 as long as you have each behaved in the judges eyes and have not gotten caught trying to lie to him.   

You see when you are involved in a contested divorce you have turned your life over to a judge to decide instead of you and your husband.  This may work out well for you.  It may not work out well.  That will all depend now on what you bring before the judge.  If you want to take the judge out of your business, then try to soothe the hostility with your husband and work it out and keep it out of court.  I know how it may feel like you are taking charge by filing but the judge is really in charge and not either one of you from that point forward.  I wish you the best of luck. 

[InDenial]

I dumped on my Ex in my last post, but now I will compliment him and say here's how he filed first without causing animosity:

He told me that he was doing it. He told me he was doing it at the advice of his lawyer, to get a timestamp. In my state, like many, you must wait at least XX days after filing before you can be granted a divorce. He told me that his laywer convinced him to go ahead and file so that we could start the clock.

The second thing he did that I thought was especially classy: he chose not to have me served in person. As you know, being served is potentially embarrassing if it's done at work or in front of neighbors. He explained to me that his lawyer would be sending me two copies of the filing. The first was by regular mail, so I could read it and see that there was nothing in it to fear. The second would come by registered mail, and the act of picking it up at the post office would be sufficient proof that I had been served.

In general, openess will help keep down levels of animosity.

[quiltingbee]

I have a question.

We went to mediation and then my husband refused to file the mediation agreement.  Then he turned around and filed for divorce because he says if he did that, I couldn't file using his adultery as grounds.  Can't I countersue for divorce on adultery?

This is all so confusing.

[CollegeDad]

Mediation is out of my experience. But, I'll try to offer what I can.  Wasn't your mediation binding?  Also, hasn't one of you already filed for divorce to be in mediation in the first place?  I thought that mediation was only available after one party in a married couple filed for divorce.  I didn't think mediation was even possible if you weren't in the process of divorce.  So, I guess I'm very confused about what is going on with your case.  Also, I thought that today in Alabama if your husband files for divorce that you could ask for your divorce to be settled via mediation. 

Anyway, I have a lot of questions about mediation.  It sounded like yours might have been voluntary mediation prior to filing for divorce.  I may be wrong but I think you can now ask for this to be settiled in something called "binding" mediation after your husband files for divorce.  If so, he won't be allowed to step outside of the mediation process and sue you I don't believe.  Someone other than me probably knows the answer to these questions.

But, if no divorce has been filed except what your husband is in the process of filing and you are not in "binding" mediation, then I say of course you can countersue your husband on the grounds of adultery.  Your husband is feeding you a lot of bull if he is telling you that because he filed for it you can't.  That is absolute hog wash.  You are free to sue him for anything you want in a divorce case whether he has already filed for it or not.  And it doesn't matter what order either one of you file your claims. 

The tough part is proving your claims.  You can file anything you want against your spouse.  A lot of spouses try to intimidate each other by starting the divorce process with a lot of heinous accusations that end up having little bearing on the final divorce decree.  Don't let what he files scare you too much.  Get a good attorney that specializes in family law and has court room experience handling contested divorces and go after him.  He may wish he'd stayed with the mediation process when he finds out what a full divorce battle costs. 

[Freedom]

Mediation is out of my experience. But, I'll try to offer what I can.  Wasn't your mediation binding?  Also, hasn't one of you already filed for divorce to be in mediation in the first place?  I thought that mediation was only available after one party in a married couple filed for divorce.  I didn't think mediation was even possible if you weren't in the process of divorce.  So, I guess I'm very confused about what is going on with your case.  Also, I thought that today in Alabama if your husband files for divorce that you could ask for your divorce to be settled via mediation. 

Anyway, I have a lot of questions about mediation.  It sounded like yours might have been voluntary mediation prior to filing for divorce.  I may be wrong but I think you can now ask for this to be settiled in something called "binding" mediation after your husband files for divorce.  If so, he won't be allowed to step outside of the mediation process and sue you I don't believe.  Someone other than me probably knows the answer to these questions.

But, if no divorce has been filed except what your husband is in the process of filing and you are not in "binding" mediation, then I say of course you can countersue your husband on the grounds of adultery.  Your husband is feeding you a lot of bull if he is telling you that because he filed for it you can't.  That is absolute hog wash.  You are free to sue him for anything you want in a divorce case whether he has already filed for it or not.  And it doesn't matter what order either one of you file your claims. 

The tough part is proving your claims.  You can file anything you want against your spouse.  A lot of spouses try to intimidate each other by starting the divorce process with a lot of heinous accusations that end up having little bearing on the final divorce decree.  Don't let what he files scare you too much.  Get a good attorney that specializes in family law and has court room experience handling contested divorces and go after him.  He may wish he'd stayed with the mediation process when he finds out what a full divorce battle costs. 

Mediation is available prior to filing for divorce in Alabama.  That's what we're TRYING to do.  Saves time, money, and (supposedly) bitterness.  Both parties must agree on EVERYTHING.  Then the mediator takes their wishes and translates them into legal jargon.  At that time, the mediator files all of the papers and the divorce process is initiated and completed.  However, I do STRONGLY suggest hiring personal legal counsel to make sure you're understanding correctly, you're not unknowingly being run over, AND to verify the legal documents actually say what you intended.  Hiring for counsel should not cost as much as hiring for the divorce process because it should not take as many hours.  Even w/ a personal lawyer, mediation probably saves you each at least $3K, plus time away from work, driving expenses, etc.  But I'm finding that it's a whole lot easier said than done - especially if there are kids involved or one spouse feels "injured".   

(Is there a difference between a lawyer and an attorney?  I just find it easier to say lawyer.)

[m_t]

(Is there a difference between a lawyer and an attorney?  I just find it easier to say lawyer.)

Same thing.

[InDenial]

I have done voluntary mediation in my state (not AL). Both parties agree on a mediator and pay him/her directly. The mediated agreement is not binding on either party.   I believe most mediators are themselves divorce lawyers, but I've heard there are some who come from a counseling background.

Mediators are happy for you to ask a lawyer of your own for advice before, during or after mediation. (When I say "during", I mean between mediation sessions, not in the session itself.) As Freedom said, "counsulting" your own lawyer can be much less expensive than "retaining" one.

This type of mediation can be done before or after filing for divorce.

In my case, my Ex filed just before we started mediation. His filing did not propose any custody schedule or division of property. It simply said that he wanted to divorce me on ground of irreconcilable differences, and that he hoped to reach an amicable settlement with me. The purpose was to start the 90 day clock.

In a friend's case, the mediator is supposed to take care of the filing AFTER they reach an agreement in mediation. Presumably that mediator's filing will include the agreed to division of property.

The mediators I'm familiar with do not make any decisions, they simply try to help the two parties come to an agreement. I've heard of binding arbitration in divorce, where the person you consult makes decisions, but I don't know anyone who has done that. I'm not sure what the purpose of that would be, given that going to court accomplishes the same thing. Maybe an arbitrator doesn't allow lawyers to be present, so that keeps the cost down?

[Freedom]

(When I say "during", I mean between mediation sessions, not in the session itself.)

My STBX has set up a mediation "meeting" for tomorrow.  But this is not a "session", it's for four hours.  We haven't really decided on anything - especially the most important part - our daughter.  So it seems like this one meeting is supposed to wrap up everything.  Is that a bad thing?

(It was my understanding that this meeting was just for us to get info on how things work legally since it's the first go-around for both of us.)

Also seems to me that decisions regarding daughter s/b paramount to "stuff", especially considering we'll end up in court anyway if we can't agree on that.  I don't really see the point of going through/organizing/inventory of all the "stuff" for mediation and then doing it again for the lawyers.  But can the lawyers accept our "stuff" agreement and then just work on the custody thing?  Or is it an all or nothing thing?

[CollegeDad]

I am enlightened!  So, the mediator sounds sort of like a divorce negotiation referee in a sense.  I would think that their job is to make sure that everything that each party in the negotiation wants is put out in clear view on the table so that the negotiation process can begin.  I would expect that a fair mediator would not take sides in the negotiation process.  But, if the mediator was found by the husband or the wife, it would seem they would naturally lean in favor of whoever solicited them in the first place.  Also, I don't see how a husband or a wife that is a poor negotiator would be assured of getting a fair deal in mediation unless the mediator knows what each party would be awarded should a particular issue have to go before a judge for decision and they are vigilant about preventing any decision that would be more than one or the other party would get in court.  On top of all of this, realistically, what one can or cannot be awarded in court is pure speculation.  So, I don't know how a mediator can really use that as a basis for what is fair or unfair for one party or the other in a negotiation process.  

I guess that would be the biggest question for me.  Who is informing either party what they can or cannot expect to get if they took something to court?  Also, why would I agree to forfeit something that I know I'll get if I take it to court?  For example, she may want all of the money in the bank accounts but I know a judge is not going to give her that if we take this thing to court.  I would hope that the mediator would step in and say what is reasonable and unreasonable to ask for in the negotiation process.  Otherwise, I don't see how mediation is really of much benefit at all.  But I'm not sure how a mediator can really say what is reasonable or unreasonable.  That all depends on the merits of the husband's or wife's case and the cirumstances specific to that marriage.  

I suppose that mediation does serve the purpose of allowing divorcing couples to sort things out with a third party without tying up expensive court time.  I would imagine that it is most beneficial for couples that pretty much agree on most everything to begin with.  

I'm sure that it will save money over going to a full blown trial.  If mediation is entered into after a contested divorce is filed, I don't believe that it necessarily saves money over a typical divorce because I dare say that most divorces that start out as contested divorces end up getting settled before they ever make it before a judge.  I think what triggers a settlement in most contested divorces is the mounting costs of getting ready for a full blown trial.  I think when opposing attorneys start to call witnesses in for deposition prior to trial, people sort of wake up to how much it is really going to cost to fight and they decide to settle.  

Now I do believe that if going through the mediation process means that a couple files as an uncontested divorce, mediation will definitely save some money.  Filing as an uncontested divorce is the least expensive route to divorce of anything. I wonder, when you file after mediation, who is listed as the wife's attorney and who is listed as the husband's attorney.  Also, if the mediator files for the divorce, who is the plaintiff and who is the defendant and who is the mediator filing on behalf of?  Finally, I would insist that the mediator be an attorney (and a good one) if they are going to draft any legal document for me and file on my behalf.  

I would still be careful to make sure that you are getting a fair deal through the mediation process.  And I don't see how you can do that unless you have a reasonable idea of what you would have gotten if you'd taken it to court.  And of course the cost of going to court has to be factored in to that as well.  

So, I don't see any way of avoiding hiring your own attorney to consult with if nothing else.  But I would not pay them for anything more than the time that I spent consulting with them.  

I guess you split the cost of the mediator with your soon to be ex-husband.