# Separation strategy



## spagoo (May 15, 2012)

STBXW and I have attorneys and they are trying to arrange a meeting between all of us, which is taking weeks, to discuss a separation agreement. She is looking to move to an apartment.
We have one child in an equitable distribution state.

I'm to believe she's expecting half of all marital assets and primary custody. Most assets are in my name alone, except house equity and an account I temporarily froze are jointly titled. So she has little cash available to her compared to me.
I also have a larger 401k and future pension. I've spent more time with our child the past year, and have been getting even more involved in their school, health care, keeping a journal, etc. She has also been committing adultery. We recently started making approx. the same in salaries.

I could file for divorce on adultery grounds, which I assume she's not expecting based on what her lawyer has told her, and 
I assume she wouldn't want this exposed. I could also file for primary custody of our child. I'm very sure she would fight this as much as she could to not let me get sole. My research has shown that would be very difficult for me to get where I live, and even split custody is rarely awarded here in court.

My question is, what could I reasonably expect if we reach a settlement without litigation? I could ask retirement accounts not be divided? for split custody and co-parenting? split joint accounts and house equity, but retain sole accounts? 

I guess I could ask for anything but I'm trying to gauge how much leverage I have and how and when my attorney would use it and how open she and her attorney would be?


----------



## keko (Mar 21, 2012)

Use exposing her affair as a leverage for a "fair" settlement.

Did you bring in much more $$ into the marriage then your wife?


----------



## arbitrator (Feb 13, 2012)

keko said:


> Use exposing her affair as a leverage for a "fair" settlement.
> 
> Did you bring in much more $$ into the marriage then your wife?


That's largely contingent upon whether your particular state stringently adheres to "at fault" or "no fault" divorce laws. What state do you reside in?


----------



## spagoo (May 15, 2012)

arbitrator said:


> That's largely contingent upon whether your particular state stringently adheres to "at fault" or "no fault" divorce laws. What state do you reside in?


I'm not sure I want to divulge my state, but it allows both fault and no-fault. 

I realize I'd have to prove adultery if I used that as fault grounds, and I know the costs involved for trial, collecting evidence, etc. I don't have rock solid court admissible evidence that would be needed, but she doesn't know that either. It would seem to play more into a negotiated agreement than if I were to use it as grounds, where it would have little or no impact on a judge's decision for asset distribution and custody.

This is only my speculation, I don't know the true value of knowledge of her misbehavior in a settlement negotiation, and was wondering if others had found themselves in a similar situation.


----------



## Married in VA (Jan 6, 2012)

We would need to know the state. Most states are strcitly no fault states and don't care about your wife's alleged adultery. Even here in VA, unless you caught them having sex on video the adultery won't hold up. The standard is clear and convincing evidence. The real questions you need to be asking are:
1. Do you want primary custody of your child and are you prepared to fight for it? ALL states are presumed joint custody states unless one of you is unfit. NEVER assume custody always goes to the mother. That is a defeatist attitude. Under law you have just as much right to custody as your wife but you MUST ASK the court for it or it will be assumed your wife will have primary custody. 
2. What is your definintion of a "fair" settlement. Divorce is a horse trade where you give some and take some. It should NEVER be one sided. 

Once you figure out what fair looks like then propose that at your settlement hearing. Your wife will counter with her version of fair and then you work toward a compromise from there. The key is flexiblity and a willingness to put the emotion aside. Divorce is a business transaction and should be handled that way. Good luck.


----------



## keko (Mar 21, 2012)

spagoo said:


> I'm not sure I want to divulge my state, but it allows both fault and no-fault.
> 
> I realize I'd have to prove adultery if I used that as fault grounds, and I know the costs involved for trial, collecting evidence, etc. I don't have rock solid court admissible evidence that would be needed, but she doesn't know that either. It would seem to play more into a negotiated agreement than if I were to use it as grounds, where it would have little or no impact on a judge's decision for asset distribution and custody.
> 
> This is only my speculation, I don't know the true value of knowledge of her misbehavior in a settlement negotiation, and was wondering if others had found themselves in a similar situation.


I meant use it before going to court, between you and her. Tell her you have enough evidence to prove it in court but in return for you keeping it under wraps you want x,y,z.


----------



## arbitrator (Feb 13, 2012)

Keko's correct. Negotiation is your first line of defense, no matter what state you reside in.

Now I know that in my state, Texas, it is primarily a "no-fault" state, and the only real way to get it moved to "at fault" is if both parties agree to do so, or if one party can adequately prove that the other party was either fraudulent, or was acting in bad faith. Now, if it should entail the custody of children, the state will extend a little more leniency toward going the "at-fault" route.

My case involves the presence of a prenuptual agreement, and I'm told with that being the case, we will be litigating strictly as "no-fault." With that being said, even if my STBXW became a proud prostitute and richly peddled her wares all over the county, or had a boyfriend that she was habitually cavorting out in public with, et. al., it would have absolutely no bearing on the proceedings since the state already has the primary presumption of "no-fault divorce law."


----------



## spagoo (May 15, 2012)

But when is it negotiation and when is it blackmail?

Either you agree to a separation agreement with a lower share of assets and shared parenting (which I'd want) or I take you to divorce court on grounds of adultery and seek sole custody (which she wouldn't want)?


----------



## arbitrator (Feb 13, 2012)

spagoo said:


> But when is it negotiation and when is it blackmail?
> 
> Either you agree to a separation agreement with a lower share of assets and shared parenting (which I'd want) or I take you to divorce court on grounds of adultery and seek sole custody (which she wouldn't want)?


I couldn't really answer that since Texas is one of those states that does not legally recognize separation agreements, _per se_.


----------



## Married in VA (Jan 6, 2012)

It's all negotiation. Ending your marriage is no different then disolving an LLC or business partnership. You go for what you want, you give and take a little and then reach an agreement. It's that simple. The problems come when you put emotion into it and make it personal. This does not mean that you settle for getting ripped off. Don't get steamrolled, but don't be a chump either and back down simply because you believe the law is on her side which is nonsense.


----------

