I am not familiar with constructive abandonment. I only spoke (at length) to my legal counsel about "regular" abandonment.
See, the thing about an affair is you have to find the best grounds to use it with.
The state doesn't require you to tolerate anything. But it is hard to prove what you are claiming (even if it is true) because a certain level of proof is required. If you knew she was having an affair why did you not file for divorce ASAP? (playing your W's attny here) That question will come up.
If you had not had relations for one year why wait some more to file? (again, playing opposing counsel).
You can ask for legal fees and for me it was a deal breaker. My H's attny knew he was locked in. That's why it is VERY important to play your cards right and now show them too early. IMO mediation forces you to show your cards and that is not to your benefit.
The question will be.. if you felt SO strongly about her affair and no sex AND your W refused to work on the marriage then why did you wait so long to file?
In our state - if your spouse has an affair and you sleep with them after that you have consented to the affair. After infidelity happens it is wiped clean after 7 years (another fun fact) if nothing is filed.
Future - I am not trying to be unkind because I get how horrifying this is but you MUST start thinking the other way.
You are thinking about things from YOUR end and you need to start thinking of things from HER end.
You thought you were being a good guy and doing all you could to save your marriage and protect your children. I get that. But the reality of it is you consented to all kinds of things despite your desire to save your marriage.
Future... we would all have liked to save our marriages. I know.
My attny said something to me early on and it made LOTS of sense. He said (obviously) the legal side of divorce is not the same of the emotional side of divorce. And sometimes they do spill over and that is why you need an attny. He told me that you need to handle the legal side as if there is no way in hell your marriage will be saved. PERIOD. He wasn't implying to be ugly or mean or nasty but his point was to let him handle the "dirty work" so my time/energy/mindset is free to focus on other things.
Divorce, legal separation and the divisions of assets is a major pain in the ass BUT it's all just paperwork and can easily be reversed should things turn around for you. If they don't turn around for you then you aren't walking away with nothing because your W decided she wasn't "in love".
I know this kind of talk is not welcomed on this board but the reality of it all is not many marriages are saved. My attny told me every so often he will have a client and they do call off the divorce/separation during legal proceedings. And sadly he says within a year or two those same people are back in his office ready for round 2.
My attny is also a mediator (but he can't do both if he reps one spouse) and he won't even take on clients to mediate unless they both have their own legal counsel. I hate to say you made mistakes because I understand why you did what you did and I know you have children. But you have to start thinking in a legal sense and stop thinking about "saving the marriage".
If you still want to work on saving the marriage then get yourself a good attny to deal with the legal stuff and bow out of mediation. In this state it is really hard to do both (work on marriage and legal stuff) because EVERY damn thing you do is examined in the LEGAL sense even if it *was* to save the marriage.
My attny said something to me early on and it made LOTS of sense. He said (obviously) the legal side of divorce is not the same as the emotional side of divorce. He told me that you need to handle the legal side as if there is no way in hell your marriage will be saved. PERIOD. But you have to start thinking in a legal sense and stop thinking about "saving the marriage".
I think this is outstanding advice. Thanks.
"Always go straight forward, and if you meet the devil, cut him in two and go between the pieces." - William Sturgis, clipper ship captain, 1830's.
It was great advice but it is not easy to follow. Because I don't know anybody that goes through a divorce and does not feel *something*. And when you are feeling that *something* at the same time you are sitting across from an attny who is telling that the *something* while important to you is not important to the process, well, it's tough.
I did it because I was SO PISSED but I would not let my H in my house after he left as long as he was in his A. This was long before I even spoke to an attny. This was sheer emotion and to avoid ME going to jail (lol!) because if I got him behind closed doors a murder might have taken place. And it my attny said it was wise. I cut my H out of my life therefore giving NO indication I was "on board" w/the divorce or his affair.
Oh, I get it. I hate it, but I get. I have implicity "agreed" to many things now.
I let this go waaaayyyyy too long. I haven't filed because we're doing mediation. We've been trying to see if we can get it done that way. If we can't, then I have to file. Our first mediation meeting was a couple months after she moved out. All the advice I was getting told me to do mediation. Suing for divorce in our state is a nightmare, so 90% of people go through mediation.
I think mediation is still the way we're going to go, but I want to know what my options are if we reach an impasse.
Yes, divorce is nothing short of a nightmare here. So why not file for the separation under "cruel and inhumane treatment" and after one year the Separation Agreement can be used as the grounds for divorce if you choose to file?
It is something like 85 or 90% of divorces in our state are initiated through a Legal Separation to avoid the horrible divorce proceedings.
And really, if you file for Separation using two attnys and use the collaborative law process its not much different than mediation EXCEPT you have an attny looking out for you. A mediator is not looking out for you as they don't rep you.
I want more than anything for this to work out for you in the best way possible. I don't know the stat about 90% going through mediation but its not much different than having 2 attnys other than PROTECTION.
Honestly, I wish I knew nothing about this. I really do. But I do so I am just sharing what I learned.
I was confused between Legal Separation and mediation. That's where the 90% came from.
As far as protection is concerned, I get some amount of protection from keeping lawyers OUT of the process as well. I don't necessarily want a laywer filling my W's head with all sorts of entitlements, and promising her he or she can deliver them.
And you really can't control what an attny says to your W, can you?
My H's attny painted him a lovely picture. No court, 50/50 split, no support, no insurance... an attny can paint all they want, it doesn't usually pan out that way.
If you don't want attnys then why are you even THINKING about filing for divorce? You lost me there.
W: I have reached my limit on mediation and the amount of time that has passed. Attached please find my final offer for the settlement. If it is not to your liking I will proceed with legal counsel.
She is either going to freak out and run to the first attny she can find and chances are, like my H did, leave out all the facts concerning his affair. Or, she will bend and you get the settlement you want.
Worse case she gets a good attny. Well, then you get a good one too!
I mean, with all due respect how much longer are you going to frig around w/mediation and wondering what will go wrong and how awful a divorce will be. Yes, it is horrible. BIG FAT SUCK but it won't suck less the more you try and play nice.
