Pushing spouse to next stage in seperation. Please help.

September 29, 2013 6:36 PM

My spouse won't move with me to the next step in our separation and I don't know what to do.

I prepared spouse that I was ready to separate for years, we did therapy, it didn't help. We're still in the same house for financial and parenting reasons. Moving towards an actual separation got stronger over the last year. I was firm 6 months ago that we would need to start preparing legally, financially. And I mentioned it all the time like - "Johnny will be in public school next year because we won't be able to afford private after we're in two houses." Spouse has been in guest bedroom for 4 months. 2 months ago I said, by the end of the year, we're separating. For the last 2 months I've been working with attorney/mediators and started the paperwork - parenting agreement (and the financial aspect), asset/property division.

But spouse won't go to mediation. They won't look at the asset/property spreadsheet. They won't look at the parenting agreement.

They want us to stay together. Every time I ask them to look at some paperwork, the reply is about how I am such a jerk for destroying our family. And sometimes replies are angry reactions that aren't based in the legal truth "I paid for that couch, so you have no rights to it." I've been using calm lines from divorce books like "I don't have the feelings to keep us together" to the emotional replies and "I'm not sure that's the case, but I'd like us to talk to a mediator or legal advisor to determine if the buyer of an item has more rights to it."

I don't want to just go get an apartment and take my things because my name is on the house too and paying for both the mortgage and rent wouldn't be possible. I am also the primary parent, so up and leaving the family house would probably seem to the other parent as if I was "taking the children away." I also need the financial support that is written into the parenting agreement draft that I worked on with an attorney or else I can't swing it financially caring for the kids.

So what do I do to force spouse to come to mediation and move on with things - agreements, selling the house, etc.? I feel like I have given them enough time. Maybe going to couples counseling again would make them feel initially like we're working on things even though I am just trying to get us to be good co-parents?

Note that our union is not legal, but we are both legally parents. Thus, asset/property division is something that the courts have nothing to do with (according to my lawyer), and this is really about us.

posted by anonymous to Human Relations (22 answers total)

I don't think you can really force your spouse to "agree" on things. I recommend you ask your attorney what next steps he or she would recommend, and then follow them.
posted by Juffo-Wup at 6:40 PM on September 29, 2013 [15 favorites]

The person who wants to leave needs to be the one who leaves. Why should your spouse cooperate with something they don't want? It's unreasonable for you to expect that, even though in the long run it might seem more sensible to you.
posted by St. Alia of the Bunnies at 6:42 PM on September 29, 2013 [31 favorites]

I think you're going to have to get with your lawyer and talk about legally forcing next steps.

You can't make them *want* to do what you want them to do. And at this point, it is unlikely that tricks will a) work b) not backfire hugely in your face.
posted by Lyn Never at 6:47 PM on September 29, 2013 [2 favorites]

It sounds like you've been planning for your partner's cooperation, but now you have to tell your lawyer that it's an adversarial situation, and figure out how to protect your and your child's interests.
posted by in278s at 6:51 PM on September 29, 2013 [11 favorites]

The person who wants to leave needs to be the one who leaves.

And pay both rent and mortgage, with the responsibility of being Johnny's primary parent? Without an agreement for child support? I'd ask a lawyer about who needs to be the one who leaves.
posted by in278s at 6:54 PM on September 29, 2013 [26 favorites]

Yeah, you can't force your spouse to want to work with you on this. All you can do is talk to your lawyer about how to force a resolution. I don't know the legalities of two non-married people separating when they co-own a house. But I don't have to and neither do you! That's what your attorney is for.
posted by Justinian at 7:00 PM on September 29, 2013 [1 favorite]

Asset and property division may not be a court thing, but what about child support? I am not a lawyer, so you should ask yours, but given that you are both legally parents it seems child support would be a court issue, regardless of the legal status of any other relationship you have.
If so, maybe that could be enough for you to make ends meet?
posted by nat at 7:07 PM on September 29, 2013

You need to do this legally. Why would they help you do something that they don't want? Use your lawyer.
posted by spaltavian at 7:07 PM on September 29, 2013 [1 favorite]

The first thing you should do is start to get real. Things like calling a "spouse" someone to who you aren't married is just sloppy thinking. This also makes me wonder about your observation that your lawyer says the courts would have nothing to do with your asset division is quite curious. Cohabiting couples with children who break up litigate over property they bought together or used together, especially for the kids, all the time. You need to get clarification -- and you need to make sure your lawyer regularly represents clients with assets who are terminating relationships with children. It is a distinctly different practice area from divorce.

Also, please don't jump to follow the advice that you should just leave. In cohabiting couples a biological mother of the children has huge leverage in custody; if that's not you and it is your "spouse," leaving could be a fatal error.
posted by MattD at 7:23 PM on September 29, 2013 [9 favorites]

I am not a lawyer, so you should ask yours, but given that you are both legally parents it seems child support would be a court issue, regardless of the legal status of any other relationship you have.

My partner went through a legal child support/custody situation somewhat recently. If you have a partner (spouse is really legally specific, you do not have a spouse) who is not in agreement with you over what happens to the children after you guys separate then you have to work this out legally. Optimally, they come to the table with their lawyer and you do too and you work out a thing that is not awful for either of you (concerning legal and physical custody and child support as well as smaller issues like who gets to make decisions about the child's spiritual paths, etc). Suboptimally you go to court and a judge will decide those things whether they have a lawyer or not.

I assume you guys don't have a dissolution plan for your house/mortgage? This chapter from Nolo (which you've likely read) will give you some of the vocabulary to talk to your lawyer about it. Ultimately it may be that you have to leave the house (though not without your lawyer's specific suggestion, this is just some anecdata from situations I have known) with the kids in order to force the issue of what happens to the house. Unless you think your partner will be vindictive and do something to the family home to spite you, this may be the easiest way to force the issue. This can turn into a weird ugly situation where you can force them to go to court and that's not really that great for future family harmony (assuming this is mostly just about your relationship and they are a fit parent otherwise) and that might be a decent angle to start working on this on. Your partner no longer has the option of continuing to live with you and the children. What is their second favorite option and is it possible to work towards that?
posted by jessamyn at 7:37 PM on September 29, 2013 [1 favorite]

You can't mediate a situation in which one person is not interested in coming to a resolution. You need to tell your attorney that your partner is not going to participate in coming up with a voluntary division of assets, and so you need your attorney to advise you on how to get a division of assets over your partner's objection. You are allowed, both legally and morally, to leave your relationship even if your partner objects. But you cannot, either legally or morally, make your partner stop objecting, and you need to proceed accordingly. You need to ask your lawyer how to begin the process of separating without your partner's consent or agreement.
posted by decathecting at 7:41 PM on September 29, 2013 [7 favorites]

This is clearly something you need to work with your lawyer on. Your best next move is dependent, not only on jurisdiction, but on how things actually work at the particular courthouse. Hire a lawyer and follow his/her advice. Don't do anything drastic (i.e. moving out) on your own. That could make things better, or that could make things much worse.
posted by tyllwin at 7:44 PM on September 29, 2013

Lawyer, but also: an objective of couple's counseling is often to help the couple get to and then go through the separation process in a way that doesn't wreck everyone's lives/spirits/etc.
posted by SMPA at 8:13 PM on September 29, 2013

This is what lawyers are for. You may not be able to sue for divorce, and you can sue for child support. When someone doesn't cooperate, you have to file a lawsuit.

I have no idea how you would (or if you could) sue someone for eviction on a property they also own. I'm sure there is a way.

Splitting up is a sacrifice. You are asking a lot of your partner; what are you offering them?
posted by gjc at 8:17 PM on September 29, 2013

You need a lawyer. My lawyer explained to me (in Canada) how to get my spouse out of the house and how to ensure I remained primary caregiver and had primary residence of the home. This may be unique to my circumstances. But you should talk to a lawyer as they will know more than we do and will protect you from doing something that may not be legal.
posted by Chaussette and the Pussy Cats at 10:12 PM on September 29, 2013 [1 favorite]

I want to note that there are plenty of countries with de-facto or common-law legislation, where two people can be "spouses" in the eyes of the law without being married. However, I understand that separation in most of those places can involve the court once common law or de-facto status applies.

If your lawyer is telling you that the courts aren't a part of the process for you, then they should also be able to tell you what your options are, and how to proceed in the face of obstruction. This is what you're paying your team for. (I might probably also seek a second opinion at this point, just for peace of mind about the whole court thing.)

It only takes one person to end a relationship; there will be ways of moving forward even if your spouse refuses to come to the table. Unfortunately though, these vary enough between states and countries that I think you'll need local advice.
posted by Someone Else's Story at 10:19 PM on September 29, 2013

If your spouse's primary concern is the well-being of your children, I think you should focus your communication on that topic. For example, you could consider an arrangement in which the kids \stay in their current house and the parents rotate in and out. To a parent who is concerned about the impact of separation/divorce on their children, that kind of arrangement might be more tolerable, and you suggesting it might make that person feel that your priorities are aligned and then he/she will become more cooperative and engaged.
posted by Dansaman at 11:17 PM on September 29, 2013 [1 favorite]

You have tried to get your partner to cooperate. That's fair enough. But you cannot insist that your partner agree. The same goes for his hard feelings toward you. Your partner will do what he decides to do.

It seems to me that this is where you ask your lawyer to take whatever legal steps are necessary for you to move forward without your partner's cooperation. Your lawyer can explain how that can be done. I realize that you aren't married, but it seems to me that partnership issues, not to mention parenting issues, are in play here.

Courts love mediation, but when mediation fails the court will take steps to resolve all outstanding issues without the cooperation of the litigants. This to me is a dagger with two cutting edges, and at the same time it's the cutting of the Gordian Knot. You get what you get, and you may bleed a bit, but at least it gets done, and you can move on.

I'm sorry you are having to do this. I realize that it's painful. My sympathy, mostly, goes to your child.

My last divorce was made nearly tolerable by me remembering to avoid doing anything I wouldn't want to explain to my son when he got old enough to ask me about why his mother and I decided to split up.

I wish you the best.
posted by mule98J at 12:28 AM on September 30, 2013 [1 favorite]

You're not going to be able to do this with mediation and therapy. Your soon-to-be-ex husband won't allow it.

So find a good lawyer and be prepared to spend a shit-ton of money to make this come about.

You might give it one last try with your Ex. "Simon, I'm divorcing you. That's the end of it. Now, as Tina Turner said, we can do this nice and easy, or we can do this nice and rough. I'm interested in preserving our money and a civil relationship for the sake of our family. Because although you and I will no longer be together, because of the children, we'll always be a family. If you don't come to mediation and we don't sell the house and split the proceeds, all that's going to happen is that I'll still move out, I'll get a court order to take the children and I'll request court ordered support. If I do it this way, I'll stop paying on the mortgage, so we'll both go into default. It will cost tens of thousands of dollars that neither of us really has, our credit and our savings will suffer. If the kids and I have to sleep on the floor in sleeping bags, in a one-bedroom apartment, then that's what's going to happen because I don't want to be in a romantic relationship with you any more. So what's it going to be, an orderly and respectful dissolusion of our marriage, or an expensive, knock-down, drag-out fight over the damn couch?"

The other option is that you can move to a one-bedroom, and send him support for the kids. It is said that the party who ends up with primary custody of the children ends up on the financial short end of the stick.

No matter what, divorce sucks, stop giving him all the power, and lawyer up.
posted by Ruthless Bunny at 6:02 AM on September 30, 2013 [4 favorites]

Forcing mediation down someone's throat is the exact opposite of what mediation is supposed to be all about.

You're going to have to force your spouse's hand and do a real legal proceeding where your STBX is legally bound to comply.

In other words, you're doing it wrong and mediation is not the option you thought it was.

Contact your attorney for your next step.
posted by PsuDab93 at 7:57 AM on September 30, 2013 [2 favorites]

I don't know what jurisdiction you are in, but years ago, I knew of two brothers that inherited a house together. One brother wanted to keep it, the other wanted to sell it. The one who wanted to sell sued the other brother to force the sale. These two people were (obviously) not married or divorcing, just co-owners.

In short, look into getting a New Lawyer, one that better suits your situation.

Your current lawyer is not helping you, for whatever reason, so find someone who can help you.
posted by jbenben at 9:01 AM on September 30, 2013 [3 favorites]

If you are same sex, you'll need a lawyer who has expertise. Child support and custody vary from state to state.

The house probably going to have to be sold if there's any equity to be split. If there's no equity, it might be able to be re-financed to get 1 person off the mortgage, and the person who leaves may be able to be taken off the deed. I did this when my ex- and I separated because I wanted to re-fi for better rates, and it made sense to get him off the mortgage and deed at that time.

If you are still on the mortgage, and you leave, why continue to pay? Say to partner. I am moving forward with severing our relationship. I plan to move by date. I wish to sell the house, but if you prefer to stay and pay alone, that's fine. The current assessed value is X. I will agree to making a reasonable settlement if/when you choose to sell, as long as you agree to continue paying the mortgage.

Listen carefully to your lawyer, and make sure you are following the advice you're paying for.
posted by Mom at 12:24 PM on October 1, 2013