Blindsided. Would Welcome Advice, Thank You.

[skydock]

Hi All,

Someone recently recommended this site and I'm so glad they did. I've been reading around all weekend and wish you all well, I've already found great advice.

In brief, my wife recently requested separation. 2 days later she asked me to leave (to sleep on a friend's sofa). I'm still in the home. She had an affair a couple of years ago and didn't really attempt reconciliation. I discovered that she has been lying to some friends (and maybe some family members) about being in a coercive relationship (patently false). We went for a mediation session -- in which she lied (we were supposed to be discussing child arrangements but she insisted on talking finances) -- and she has since had her solicitor state she can no-longer go to mediation.

I'm not sure if my wife wants to start court proceedings (I expect I will soon know via my solicitor) or, perhaps, wants to attempt to negotiate via solicitors. Regardless, as soon as she learns I want to see my children an equal amount, I expect court will be inevitable. The court costs alone seem daunting and potentially life-changing but money is secondary to the children of course. That being said, I'm also contacting Fathers for Justice and The McKenzie Friends for advice.

Basically, I feel on the back foot and would welcome any advice I can get. I hope the above was/is coherent, I'm not really sleeping...

Thank you

 

[Ash]

Hi and welcome. Our advice tends to be - don't move out without a Child Arrangements order in place. So personally, I wouldn't follow your solicitor's advice. Once you leave, you have no control over seeing the children at all. Your ex can decide to keep them and not let you see them and it could take 9 months to get to see them via a court application. And she would not be punished for doing that. If you took them with you, you'd be acccused of abduction and coercive and controlling behaviour if you didn't let her see them and if you did let her see them, she could just keep them again and not return them. The system is biased towards Mothers - unless there is a clear and legal order in place that states who they live with and when.

So I would a) get signed off mediation (assuming you have it in writing that she won't do mediation now). The advantage of that is, she won't know you've had a MIAM and been signed off, so won't get wind of you applying to court. b) Put in a C100 application for the children to live with both parents on a 50/50 shared care basis. And stay put and try and keep things low key.

If your ex is going to accuse you of things or involve the police, she can do that regardless of whether you're still living in the house or have moved out.

When applying, you say that you will be making arrangements to move out once Child Arrangements are agreed and you hope the court process will help reach agreement. And if not you request an order commences from the time you move out. To achieve the best stability for the children at the time of separation.

The other thing is, if you move out, you're kind of seen as the "absent parent" then who abandoned the family! You can't win there!

So google family mediators in the area, phone round them and get the earliest appointment you can. Go along on your own for the MIAM (first appointment on your own) tell them your ex won't mediate and ask to be signed off. You need to sign off form to apply to court.

You've already sussed that she will be focused on finances rather than Child Arrangements, and that's par for the course and sadly it's common for a stbx to use the children as leverage to get you to agree to finances. If you have a child arrangements order in place first, she can't do that.

So already you're on very different sides with very different motivations. A financial settlement is more likely to be fair, if you already have Child Arrangements sorted and legalised.

 

[bujanin]

There are people better able to give technical recommendations on this site than me.

I am one year into a very similar scenario, I refused to leave the family home which was one of the key decisions. Generally things seem to have a habit of escalating quite quickly because emotions are likely running very high so you will have to make some very quick fire decisions in response to actions taken by your wife. You will possibly be on the back foot for a while because you are responding to circumstances but at some point because you will have controlled your emotions and been whiter than white your wife will run out of road and the balance will shift. Continue to be vital for your kids - keep a record of the homework that you do with them, the books that you read, the mathematics that you do with them. Keep a good photographic record of your activities together

This site and the search facility has a wealth of information and support. I went via ffJ and unnecessarily spent a couple hundred quid. And I didn't even get a free batman suit!

Always stay happy and positive for your kids - how old are they? There could well be many sleepless nights ahead. Start to prepare yourself for ways to relieve the possibly huge stress - walking, training, listening to music, working, friendships etc.

 

[Ash]

Just to add - the other reason for applying for 50/50 is so you have room to negotiate down to something slightly less possibly - if needed. But only do that as part of the legal court process. Unless your ex is willing to do a consent order (which sounds unlikely if she wants finances agreed first).

If you do both agree the child arrangements, a consent order can be drawn up by a solicitor. You'd both need your own solicitor, yours would draw up the order, hers would approve the wording, and it would just be sent to court for sealing. Then you have a Child Arrangements order without having to apply to court. But this is only an option if she is willing to agree child arrangements and commit to them by having a consent order.

 

[skydock]

Hi and welcome. Our advice tends to be - don't move out without a Child Arrangements order in place. So personally, I wouldn't follow your solicitor's advice. Once you leave, you have no control over seeing the children at all. Your ex can decide to keep them and not let you see them and it could take 9 months to get to see them via a court application. And she would not be punished for doing that. If you took them with you, you'd be acccused of abduction and coercive and controlling behaviour if you didn't let her see them and if you did let her see them, she could just keep them again and not return them. The system is biased towards Mothers - unless there is a clear and legal order in place that states who they live with and when.

So I would a) get signed off mediation (assuming you have it in writing that she won't do mediation now). The advantage of that is, she won't know you've had a MIAM and been signed off, so won't get wind of you applying to court. b) Put in a C100 application for the children to live with both parents on a 50/50 shared care basis. And stay put and try and keep things low key.

If your ex is going to accuse you of things or involve the police, she can do that regardless of whether you're still living in the house or have moved out.

When applying, you say that you will be making arrangements to move out once Child Arrangements are agreed and you hope the court process will help reach agreement. And if not you request an order commences from the time you move out. To achieve the best stability for the children at the time of separation.

The other thing is, if you move out, you're kind of seen as the "absent parent" then who abandoned the family! You can't win there!

So google family mediators in the area, phone round them and get the earliest appointment you can. Go along on your own for the MIAM (first appointment on your own) tell them your ex won't mediate and ask to be signed off. You need to sign off form to apply to court.

You've already sussed that she will be focused on finances rather than Child Arrangements, and that's par for the course and sadly it's common for a stbx to use the children as leverage to get you to agree to finances. If you have a child arrangements order in place first, she can't do that.

So already you're on very different sides with very different motivations. A financial settlement is more likely to be fair, if you already have Child Arrangements sorted and legalised.

Wow, thank you! That's a lot to assimilate (and I'm so very grateful). I'm wondering if I'm mad moving from 40/60 (something which may be agreed and resolve things quicker) to 50/50 (which is truly what I want and believe is best for the kids) - I want and need to challenge my own thoughts for the best of the children. This is the most important thing in my life.

I will stay put and not leave the home, thank you. Perhaps I need to get a new solicitor...

Sorry, what is a MIAM? And, if we've already been to one mediation session (perhaps I wasn't clear) do I need to go again/somewhere else to help evidence she won't go? (I don't have a clear message from her solicitor officially stating that mediation has ceased but it alludes to it - it says: "...my client no longer feels that she can proceed collaboratively". To maje things absolutely clear, should I book a mediation session and invite her? Then, when she doesn't attend, get a 'MIAM' from them?

Thank you again.

 

[Ash]

MIAM (Mediation Information Assessment Meeting). It's the first mediation appointment that you go to on your own. At that one the mediator explains mediation and then invites your stbx to the next session.

If you've already tried mediation, then no you won't need another MIAM - contact the mediator you went to before, and ask to be signed off. How long ago was that mediation? A Mediation sign off lasts for four months. On the other hand, if you don't want your stbx to know you're putting a court application in then it might be an idea to have another MIAM with a different mediator and just ask to be signed off straight away. The first mediator may feel obliged to inform your stbx that you've asked to be signed off. And it's fairly common knowledge that a sign off from mediation means someone is about to apply to court (and if your stbx has a solicitor she will know that).

Personally I don't think solicitors are necessary at this stage. They just run up a lot of bills and send a lot of letters arguing and getting nowhere. Things happen via courts, not solicitors. You can do a court application yourself (with some tips on here), the stage after that is Cafcass (no solicitor involvement) and the stage after that is a first hearing. For which it can be better to use a direct access barrister rather than a solicitor. They are experts in court hearings and will write up an order if there's no solicitor.

 

[skydock]

Just to add - the other reason for applying for 50/50 is so you have room to negotiate down to something slightly less possibly - if needed. But only do that as part of the legal court process. Unless your ex is willing to do a consent order (which sounds unlikely if she wants finances agreed first).

If you do both agree the child arrangements, a consent order can be drawn up by a solicitor. You'd both need your own solicitor, yours would draw up the order, hers would approve the wording, and it would just be sent to court for sealing. Then you have a Child Arrangements order without having to apply to court. But this is only an option if she is willing to agree child arrangements and commit to them by having a consent order.

If it's about negotiating from a starting point, should I recommend 60/40 in my favour? I say that since - in mediation - her starting point was 70/30, despite the fact I spend slightly more time with them weekly (in the past 3 years anyway). I took a contract that allowed me to predominantly WFH, so I do breakfasts every morning (while my wife gets ready for work or sleeps a little longer). I do slightly more drop-offs and pick-ups. I spend more quality time with them basically (despite my wife claiming she's the primary carer -- she was shocked when I showed the typical weekly schedule but used "I spend more time with them during holidays" as an argument).

I'm genuinely also worried about their physical wellbeing. My wife isn't a bad mother -- she's great at looking after their educational needs but isn't so touchy-feely (daily hugs she learned from me -- if she remembers or is so inclined) and, she's not so good at risk assessment. There are some concerns.

 

[Ash]

You won't get anywhere trying to say she's a bad or unsafe Mother unless she's arrested for something serious. Get the child arrangements order first and if you have any serious concerns after that, you'd need to go to social services. 50.50 is the maximum you'd get. That would be lives with both parents. Her proposal of 70/30 sounds like residency with her and every other week-end, a midweek overnight and half the holidays with you. (ie 4 nights a fortnight). If you accuse her of anything as part of trying to negotiate, it will just increase hostilities and she could play really dirty then.

You could try saying - well I think equal time with both of us is best - you proposed 70/30, how about we compromise on 60/40 in your favour? But IME they don't want to compromise! However you'd have more chance of her agreeing to 60/40 in her favour than 50/50 as there's no child maintenance to pay with 50/50 and she'll be wanting the money.

If she says no to 60/40, I'd suggest putting in the application for 50/50.

 

[Ash]

Sorry just added a bit to that last post.

 

[skydock]

You won't get anywhere trying to say she's a bad or unsafe Mother unless she's arrested for something serious. Get the child arrangements order first and if you have any serious concerns after that, you'd need to go to social services. 50.50 is the maximum you'd get. That would be lives with both parents. Her proposal of 70/30 sounds like residency with her and every other week-end, a midweek overnight and half the holidays with you. (ie 4 nights a fortnight). If you accuse her of anything as part of trying to negotiate, it will just increase hostilities and she could play really dirty then.

You could try saying - well I think equal time with both of us is best - you proposed 70/30, how about we compromise on 60/40 in your favour? But IME they don't want to compromise! However you'd have more chance of her agreeing to 60/40 in her favour than 50/50 as there's no child maintenance to pay with 50/50 and she'll be wanting the money.

If she says no to 60/40, put in the application for 50/50.

Thank you. I am serious in my concern and, having read up on things, yes, I was aware that social services was the way (and I really didn't want to do that). Yes, with 60/40 I think I'd still get good quality time with them but planning schedules around that looks terrible (and I know she wouldn't be reasonable). Would I be a fool to agree to 60/40 if she's open to it?

 

[Ash]

It might help to think in terms of schedules rather than 60/40 etc.

A 50/50 schedule would usually either be 2-2-5-5 over a fortnight or 7 on 7 off. 7 on 7 off is more for older children - how old are yours?

2-2-5-5 is quite common and works like this:

Two consecutive midweek nights with each parent, and every other week-end from Friday to Monday morning with each parent. So for example you would have every Monday and Tuesday nights and drop back at school Wednesday morning. She would have every Wednesday and Thursday nights. And every other week-end with each parent. So when it's your week-end, it's 5 nights - the two midweek nights with the week-end tacked on the end.

Eg

Week 1

Friday to Wednesday with Father, Wednesday to Monday with Mother.

Week 2

Monday to Wednesday 9am Father, Wednesday to Friday with Mother

And repeat.

Plus half school holidays each (there are various ways of splitting these and it takes some thinking about). A simple solution is to say all school holidays will commence from the time school finishes at the end of term, and end at the time school restarts at the beginning of the next term and each holiday will be divided into two equal halves. Then you can specify who has which half each year and alternate them. So Easter is on alternate years eg.

So a 50/50 schedule is 7 nights a fortnight each with that schedule.

Rather than think 60/40 think 6 nights a fortnight with you and 8 with her, or 5 nights a fortnight with you and 8 with her.

6 nights a fortnight would be the same schedule as above except one week you'd only get one midweek night instead of two.

5 nights a fortnight would be every other week-end from Friday through to Monday morning and 1 midweek overnight each week.

Normally it needs to be at least 5 nights a fortnight to be "lives with both parents". Less than that and it would be "lives with Mother, spends time with Father". That gives her the upper hand as the "parent with care" should she be so inclined to abuse that. "Lives with both parents" makes you more equal, despite the inequality of the time.

 

[skydock]

Ash, Sir, I'm so grateful. This is absolute gold. I've already burned thousands I didn't have frantically trying to find a solicitor to work with and paying for mediation prep, etc. I wish I could have given some -- if not all -- of that to you!

 

[skydock]

In answer to your question (Ash), all of my children are under 12.

I'm wondering how I actually attempt to negotiate with my wife when she won't even speak about these things with me. It seems I may have to propose 60/40 via my solicitor and see how that goes, then, in parallel go to mediation (I have already emailed a request -- thanks for the advice) with a view to getting a MIAM, then a C100.

Does that sound about right? Have I missed something?

 

[skydock]

I want to add: please don't judge me badly on the perceived 'bad mother' post -- I'm desperate and, was genuinely concerned about what may happen in the absence of my presence. My other half has many, many good qualities -- risk assessment just isn't one.

 

[Ash]

We're not judging you but Cafcass will. They would just see it as you slagging off the ex - they have no idea who is telling the truth. If your ex then accused you of various things as well (which is common) Cafcass see it as "conflict between parents" and they decide that is bad for children so they can just recommend giving them to the Mother then. So you have to negotiate the system and jump through hoops. The mantra here is - don't say anything negative about the ex. That's why I was saying - get your order first - then if you have safety concerns, go to Social Services. And order can be changed later if necessary but without that first order, your ex will have all the power and you'll have no control to protect your kids. With 50/50 you can keep an eye on things. So 2-2-5-5 might be better so they're not away too long.

To be honest I think the best way to negotiate now is via the courts. Get signed off and put a C100 in. The wording of that is quite important so you get off to a good start, and I'd be happy to look that over. We have sample wording in the resources section. Keep it child focused and rational. In that you can say that you hope the court process will help you both reach agreement. If agreement is reached at the first hearing, then a consent order can be made then. If not it goes to a final hearing/contested hearing and the court decides.

At the end of the application you set out what you want the court to order. Eg A defined order for 50/50 shared care with a 2-2-5-5 schedule and half the holidays with each parent.

The only other type of negotiation would be via solicitors - it's possible it might get somewhere but I suspect it would run up thousands and not reach clear agreements. Her solicitor will be acting in her interests and won't give way on Child Arrangements unless you give way on finances (possibly).

Whereas the Child Arrangements application is only about Child Arrangements - finances don't come into it at all. That is separate.

 

[Ash]

The other thing that can happen, if both parents accuse each other of things, is the court can decide to do a fact finding hearing. This can be time consuming and very expensive and delay a case by a long time and the outcome isn't always good. It's decided on the balance of probabilities and a lot of allegations have no real evidence so it's just who the Judge decides is most believable sometimes I believe.

It's all about evidence. No evidence? Don't accuse. Unless you had something in writing from social services or the police with concerns about your ex I wouldn't raise it. You can always raise it later once you have an order, if you have concerns. Family court isn't the place to crticise the other parent basically. And if you raised concerns to Cafcass they could say - well if you were really concerned about that, why didn't you go to social services?

Keep it straight and simple would be my advice. You just want to reach agreeement for arrangements for the children.

 

[skydock]

To be honest I think the best way to negotiate now is via the courts. Get signed off and put a C100 in. The wording of that is quite important so you get off to a good start, and I'd be happy to look that over. We have sample wording in the resources section. Keep it child focused and rational. In that you can say that you hope the court process will help you both reach agreement. If agreement is reached at the first hearing, then a consent order can be made then. If not it goes to a final hearing/contested hearing and the court decides.

At the end of the application you set out what you want the court to order. Eg A defined order for 50/50 shared care with a 2-2-5-5 schedule and half the holidays with each parent.

The only other type of negotiation would be via solicitors - it's possible it might get somewhere but I suspect it would run up thousands and not reach clear agreements. Her solicitor will be acting in her interests and won't give way on Child Arrangements unless you give way on finances (possibly).

Whereas the Child Arrangements application is only about Child Arrangements - finances don't come into it at all. That is separate.

Sigh, yes, given what's transpired so far -- and the money that's been burned, I feel you're right. I was hoping it wouldn't come to this (court). I believed court may result in a lengthier, more-stressful process, with an unpredictable outcome. However, in my situation, I think attempting to negotiate would be lengthier, costly, and more stressful (since it would most-likely result in court anyway). Into the trenches for the children...

 

[skydock]

There are people better able to give technical recommendations on this site than me.

I am one year into a very similar scenario, I refused to leave the family home which was one of the key decisions. Generally things seem to have a habit of escalating quite quickly because emotions are likely running very high so you will have to make some very quick fire decisions in response to actions taken by your wife. You will possibly be on the back foot for a while because you are responding to circumstances but at some point because you will have controlled your emotions and been whiter than white your wife will run out of road and the balance will shift. Continue to be vital for your kids - keep a record of the homework that you do with them, the books that you read, the mathematics that you do with them. Keep a good photographic record of your activities together

This site and the search facility has a wealth of information and support. I went via ffJ and unnecessarily spent a couple hundred quid. And I didn't even get a free batman suit!

Always stay happy and positive for your kids - how old are they? There could well be many sleepless nights ahead. Start to prepare yourself for ways to relieve the possibly huge stress - walking, training, listening to music, working, friendships etc.

Thanks bujanin. Sorry to hear you're in a similar situation. I hope you're close to a good resolution. Thanks for the sounds advice. Yes, I have been hitting the gym and trying to focus on some hobbies , planning, and quality time with the children (the latter being the highest priority).

 

[Ash]

My final order ended up costing 13k. 4k of that was for the barrister who was worth every penny. Another 3k was on the third solicitor who acted at final hearing with the barrister - who was a lot better than the first two but still made loads of mistakes and I ran up another 1.6k in legal fees to sort out the mistakes and the order. The rest was money down the drain. The first two solicitors charged for every letter, email and phone call, weren't efficient and didn't achieve anything at all apart from arguing on your behalf. But your ex's solicitor can just argue back on her behalf. Nothing they did made any difference at all to the outcome in court.

Court isn't always stressful, as long as you don't say anything negative about the ex And you're in a strong position if you're still living in the house as they're not likely to take much notice of any accusations she makes if you're still living there!

The process would be

1) Send the application in. It can take 2 to 4 weeks to be processed. Once processed they send you a copy back with some info and send a copy to your stbx. At this point she knows you've applied to court. You are the respondent as you applied, which puts you on the right foot.

2) Cafcass send you both an email asking you to confirm your identity. Then another email or letter with the date and time of a telephone appointment. You have a chat with Cafcass (we can give tips on that). They write a report and send it to both parents and the court. It will probably go straight to a first hearing then FHDRA which is quite informal. FHDRA is First Hearing Dispute Resolution Appointment. It's about trying to broker an agreement. If you both have a lawyer (it would be better to have a direct access barrister rather than a solicitor for this as they're experts at negotiation), then the lawyers will try and thrash at an agreement before the hearing - this can go on for a few hours sometimes. If agreement is reached, a consent order is drawn up, you go before a Judge (in an informal meeting type room usually - no wigs or gowns or anything) who approves it and it's all done. Your barrister writes up the order so you know it will be right! If no agreement is reached and both views are entrenched and refusing to budge, then it goes to a final hearing.

3) Final hearing, you both write a statement and attach any evidence (there might not be much). You're both cross examined on your evidence (the idea is to try and prove someone is lying). If your barrister proves your stbx has lied about something, you win the case and get the order you asked for. There is also time allowed for negotiations before the final hearing as well and sometimes it all gets agreed under that pressure of final hearing before the hearing itself goes ahead.

If it all goes straightforward like that it can take 6 to 9 months. But at the end of it you could have 50/50 legalised and be in a strong position to move out and negotiate finances without blackmail.

When it can get complicated is if both parents accuse each other of being unsafe etc. Then it can lead to fact finding hearings and Section 7 reports meaning it could take a year or more and become much more expensive.

So you need to look to the end goal. Legalising the child arrangements. Getting the best order you can and then dealing with the rest. Show you are child focused, positive about coparenting after separation etc and you;ll be seen as a good Dad. Cafcass might even recommend 50/50.

 

[skydock]

My final order ended up costing 13k. 4k of that was for the barrister who was worth every penny. Another 3k was on the third solicitor who acted at final hearing with the barrister - who was a lot better than the first two but still made loads of mistakes and I ran up another 1.6k in legal fees to sort out the mistakes and the order. The rest was money down the drain. The first two solicitors charged for every letter, email and phone call, weren't efficient and didn't achieve anything at all apart from arguing on your behalf. But your ex's solicitor can just argue back on her behalf. Nothing they did made any difference at all to the outcome in court.

Court isn't always stressful, as long as you don't say anything negative about the ex And you're in a strong position if you're still living in the house as they're not likely to take much notice of any accusations she makes if you're still living there!

The process would be

1) Send the application in. It can take 2 to 4 weeks to be processed. Once processed they send you a copy back with some info and send a copy to your stbx. At this point she knows you've applied to court. You are the respondent as you applied, which puts you on the right foot.

2) Cafcass send you both an email asking you to confirm your identity. Then another email or letter with the date and time of a telephone appointment. You have a chat with Cafcass (we can give tips on that). They write a report and send it to both parents and the court. It will probably go straight to a first hearing then FHDRA which is quite informal. FHDRA is First Hearing Dispute Resolution Appointment. It's about trying to broker an agreement. If you both have a lawyer (it would be better to have a direct access barrister rather than a solicitor for this as they're experts at negotiation), then the lawyers will try and thrash at an agreement before the hearing - this can go on for a few hours sometimes. If agreement is reached, a consent order is drawn up, you go before a Judge (in an informal meeting type room usually - no wigs or gowns or anything) who approves it and it's all done. Your barrister writes up the order so you know it will be right! If no agreement is reached and both views are entrenched and refusing to budge, then it goes to a final hearing.

3) Final hearing, you both write a statement and attach any evidence (there might not be much). You're both cross examined on your evidence (the idea is to try and prove someone is lying). If your barrister proves your stbx has lied about something, you win the case and get the order you asked for. There is also time allowed for negotiations before the final hearing as well and sometimes it all gets agreed under that pressure of final hearing before the hearing itself goes ahead.

If it all goes straightforward like that it can take 6 to 9 months. But at the end of it you could have 50/50 legalised and be in a strong position to move out and negotiate finances without blackmail.

When it can get complicated is if both parents accuse each other of being unsafe etc. Then it can lead to fact finding hearings and Section 7 reports meaning it could take a year or more and become much more expensive.

So you need to look to the end goal. Legalising the child arrangements. Getting the best order you can and then dealing with the rest. Show you are child focused, positive about coparenting after separation etc and you;ll be seen as a good Dad. Cafcass might even recommend 50/50.

This is all sage advice. I humbly thank you. I am sorry you have had to traverse through your own ordeal but hope you are now in a good place. I am in Scotland so there may be nuances, so I'll have to be mindful of that (please flag if you know). The barrister option is an excellent call. "Negotiate finances without blackmail". Wow, when you put it that way the, the rationale for doing things in a particular order is bleakly clear. I can't thank you enough for taking the time to articulate all this. I feel so much better than I did this morning (I try to remain positive and even 'game' my brain chemistry with exercise but, as you know, sometimes there are tough moments).