I have a few questions....

[changeisgood]

I have been looking on here for some answers, referred by a good friend, and I feel relieved that not all of the questions and/or answers have been given by "burnt" people, but by experienced people.

 

In saying that I need some help with some advice.

 

I have been given adivce that ranges from STAY in the marriage to LEAVE NOW! I have been told to protect myself, to not be proud and take what I am owed. I have been told to go through mediation and I have been told to seek out a lawyer. I have also been advised to seek a controlled separation...

 

What does that mean? "controlled separation"

how do I find a good lawyer and when do I know to get one?

What is the difference between mediation and using a lawyer?

How does anyone decide what they are "owed"?

 

I know this may seem very naive-- it totally is!

I am just scared right now because there are kids involved and I want to damage them as little as possible--that isn't naive....i hope.

Edited March 4, 2010 by changeisgood

[Mrs. Ambivalent]

I've looked into Mediation a little so I'll answer some of how I've been told that works.

 

Many mediators are attorneys. This could be different in your state. You and your soon to be ex (stbx) will meet together with the mediator (through several appointments probably) to come up with an agreement. The mediator can assist you in filing the paperwork with the courts, etc.

 

You'll need to agree on things like who will stay in the marital home, who has custody of the children, who pays child support, will any maintenance (alimony) be paid and how much, how will the holidays be shared with the kids, who pays medical expenses for the children, how will the assets (and/or debt) be split, how will the personal property be split. On and on.

 

Once you've come up with an agreement, you may want to take that agreement to an attorney and just have them review it. Or you may want to consult with an attorney so you know what kinds of things to ask for in the mediation appointments. This mediator does not work for you or with your best interests, or for your spouse and their best interests. They are suppose to be a neutral party. They don't represent either party. The mediator works to put the agreement together. So it may be good to hire an attorney for an hour or two to look over the agreement before you sign it.

 

Now from what I have found the mediator will know the calculations for child support, etc. You may find you don't have much say in that matter. It's more of a calculation.

 

The mediator (who is also an attorney) I met with for a consult came highly recommended. My friend who used her said that she's very matter of fact when it came down to the facts of something like child support and was good at doing what she does (mediate!)

 

Just as a hypothetical here! As an example if the child support calculator said you should receive $800 per month and you disagree with the amount (say you are feeling guilty and you know your ex doesn't make that much so you think it should be lower), the mediator will tell you that you don't make that choice, the courts do. That money is for your children not for you. So if you take issue with the $800 and think it should be lower, the courts could have a problem with you because you need that money for the kids. Now also notice that the ex will be told the same thing at the same time and then hopefully not place anger with you for the child support amount, since now he knows you don't have a say. So again, I have not been through this yet it's just the way I understand it works so anyone who has experience can chime in, it's just what I've heard.

 

A mediator should cost less. When you pay a mediator, their fees could be the same as an attorney ($150+ an hour) but you are just paying one attorney to help with the agreement.

 

If you hire an attorney and he hires an attorney you will both be paying them $150+ an hour to fight with each other and come to an agreement with each other.

 

The 2 attorneys fighting with each other with be more stressful for all involved. It could make it drag out longer than it needs to be depending on how much arguing there is. This costs more money and it's more stressful.

 

The mediator told me the divorce could take 4 months from start to finish in my state. Whereas a divorce where there's a lot of fighting between parties could take a minimum of 1 year.

 

I think mediation is not for everyone though. You have to be able to sit in the same room with someone and be able to have a conversation for it to work. There's a lot of hurt involved and some people probably can't do that.

 

If your ex hires an attorney then you need an attorney. That's how you'll know if you need an attorney. If you look into mediation and you think it might work for you and your spouse might be reasonable to deal with, then try it. If it doesn't work out you can still hire your own attorney.

 

Even if you've already spent a lot of time with a mediator if you find it's not working, you can stop and hire your own attorneys.

 

As far as controlled separation, I think that is when the H and W don't know if they want to divorce so they separate and try to decide what they want to do. Maybe this would be recommended if one person needs help (for substance abuse or something) and the other wants to get out of a crazy environment and get their head on straight and figure out what they want. I don't know. It seems once people separate they rarely live happily ever after.

 

You can google both of these topics (mediation and controlled separation) and find a ton of info I'm sure.

 

You haven't given any information on your marriage so we can't chime in and give any advice. If you want more specific advice maybe you should post more of your story.

 

Good luck

[Mrs. Ambivalent]

Hi again

 

Sorry I looked at your profile and didn't realize you already had a thread with some background story.

 

There are some great books out there about divorce. You seem really lost. Like me when I started thinking of divorce and not knowing where to go. I've tried to educate myself by reading books, reading online, and making a consultation appointment with an attorney who also does mediation.

 

Also you may want to think about getting your financials in some sort of order. Do you have a credit card in your own name for emergencies? I opened a checking and savings account in my own name at a bank where we usually don't do business. There's not a lot of money in either but it's there for when I need it. You might want to get a P.O Box where mail can come to you and only you. Check your credit report. Make copies of bank statements so you know balances in accounts as of the date you separated. If you can, schedule a counsultation with an attorney. I think it was $150 when I did this.

 

So not being sneaky but trying to protect myself. I figure some of these things were best done when my head was clearer than it would be once I told him I wanted a divorce.

 

Again, good luck.

[tnttim]

Do what you think is right then you have only one person to blame.

[mimidarlin]

I have retained an attorney but my husband hasn't. We plan to go to a mediator for the bulk of the settlement details. This will save us money in the long run and we're sharing costs. We can sit in the same room and discuss these things. I know that I am coming out on top already. However, I retained an attorney because the mediator can't advise either party. They help with the details but they won't show preference. An attorney will be in your corner. I don't want a fight but I don't want to be stupid either. The STBX will have to make a substantial payment to me and I am concerned about how this will be resolved. My attorney will make sure my interests are protected. What if the STBX has to declare bankruptcy? How can I insure that I won't be the loser in that deal?....lots of details that mediators can't advise you on. My advice retain an attorney to speak to before going to a mediator. They will attend the mediation as well. If the spouse chooses to not have then things may not go in their favor...that's their problem.

[tnttim]

I'm not 100% on this, and maybe your state dictates this, but you cannot include alimony or child support in a bankruptcy.

[mimidarlin]

Thanks tnttim. I'll remember to bring that up with my attorney. I don't want this situation to force him into bankruptcy. He worked hard for his business. Economically this is going to kill him for the next five years unless the economy takes as sudden upswing. I thank my lucky stars that with all of the s*** I have had to deal with this last year that I am financially comfortable. I am comfortable with my own finances but I won't be denied my part of the assets.

[ADF]

What does that mean? "controlled separation"

 

It probably refers to a formal seperation agreement; terminology varies a bit from state to state. A seperation agreement is a legal contract between seperated spouses that outlines their respective rights and obligations to each other during the course of the seperation. Seperation agreements are legally binding and enforceable.

 

 

how do I find a good lawyer and when do I know to get one?

 

If you have divorced friends who liked their lawyers, start there. If you are going to seperate, get a lawyer right away.

 

What is the difference between mediation and using a lawyer?

 

Lawyers can be involved in mediation. The important difference is between mediation and a court hearing. Decisions reached through mediation are mutual and usually not legally binding. Court decisions are made by judges (or juries), are imposed on the parties, and are legally binding.

 

 

How does anyone decide what they are "owed"?

 

In court, this will vary depending on whether you live in a community property state or an equity state. In community property states, martial assests are divided evenly between spouse; in equity states, judges have more leeway in deciding what is a "fair"--aka equitable--division.

 

Hope that helps some.