SurvivingInfidelity.com^®

A brief update.

The background information...

xWW put the marital home on the market to sell about two weeks after the divorce was final. It sold within 2-4 days, as far as we can tell.

Her boyfriend's house sold last November and he's been living elsewhere since then. He listed his new address in the publicly-available tax records from the sale of his home. This house was on the market until late September.

According to my kids, he is currently renting the house that he and xWW plan to purchase in some sort of rent-for-awhile-then-purchase agreement.

Today, the house that they are renting was listed as "sale pending" on the internet. This is also consistent with something xWW mentioned last week, when she slipped that she has been working with a loan officer. My guess is that she is not buying this house on her own, so it'll be damn difficult to argue in court that she isn't living with a guy.

See if you can negotiate a flat fee for the appeal.

This is going to be impractical for a number of reasons.

First, according to my attorney, there is a really strong, court-appointed mediation process for appeals. Meaning, the mediator has way more power than a normal mediator. (I don't know any more than this). My attorney seems to think that my appeal won't go beyond this (because the judge's mistake is that obvious).

Second, if the appeal goes slowly, then we're likely to go an alternative route and simply go to the judge and let him know that she is living with a romantic partner and she should be disqualified from alimony for that reason. When I read the alimony statutes online, it says that we have to wait a year to file this motion. According to my attorney and to my girlfriend's attorney (she's going through a divorce also), they've never heard of this statute.

Third, I am not "all in" on this appeal so I am somewhat dipping my toes in the appeal waters.

My first hope was to simply get xWW to settle -- that doesn't look like it is going to happen. We've made xWW a settlement offer to avoid an appeal. So far, her counter offers have been ridiculous. The first offer was literally of greater value than what the judge decided. The second offer was slightly less than what the judge decided.

I am not sure that I can afford the appeal, both monetarily and emotionally. I've already told my attorney that I will need to be very much 'hands off' on the appeal because I need to start living my life again (I've been dealing with this infidelity crap for 4.5 years).

According to my attorney and to my girlfriend's attorney (she's going through a divorce also), they've never heard of this statute.

Well, either both attorneys are incompetent or that (the one year requirement) is simply not the law. The internet did not, in fact, make everyone with a laptop an expert in divorce law notwithstanding the expert’s own analysis.

It is not uncommon that statutes provide that the recipient of some types of alimony can forfeit that alimony upon cohabitation. I’ve not seen one that required a year before you could file.

The “strong mediation” situation makes sense. Might be faster and cheaper to go hourly to that point.

Good luck. Sounds like this case needs to end.

barcher, I can understand where you are coming from in regards to your appeal. From what you have described, I would think that being "hands off" would be fine, as you are only appealing two issuess; 1 - judges calculations were wrong and 2 - XWW is living with BF and no longer eligible for alimony. The appeals judge (or moderator) will either accept or reject. As you seem to be OK with current settlement, you appear to have nothing to lose. Yes, it will cost you some money, and I know that's tough right now, I was referring to mentally.

I would suggest to you that you could look at this as a positive, in that you are fighting for YOU. I think it's worth it, but I'm not in your shoes. I would suggest stop trying to negotiate. It seems like a waste of time and THAT would be stressful. From what you've described, you have the upper hand if you proceed. By walking away from the negotiating table, you show your XWW and her attorney that you believe that and won't waste time with silly offers. If they have any interest in stopping the appeal and saving themselves, they can make you a real offer, but if not, you don't need to stress over that.

Again, this is easy for me to say from my keyboard. I wish you luck and hope for the best for you whichever route you take.

TigersRule,

Point of clarification.

As I understand Barcher’s situation, he is appealing the judge’s award as to alimony and perhaps other issues.

The cohabiting with a boyfriend as a means to cancel alimony, however, would require, in all likelihood, a completely new petition. For that, it would be difficult for him to be “hands off” and let the lawyers handle it like an appeal.

I don’t know what jurisdiction all this is happening in, but as I read this thread, the “cohabitation” issue is a post trial, post judgment fact, not one that can be taken up in the pending appeal. I might be wrong, it’s been some time since I read this thread straight through.

Well, either both attorneys are incompetent or that (the one year requirement) is simply not the law.

Or... it is a relatively recent change in the law... and it's pretty rare for the recipient of alimony to move in with a romantic partner so quickly after the divorce is final (I'm guessing?).

Honestly, who goes to trial to get alimony like she did, while simultaneously planning to immediately move in with her new lover? She spent ~$15K on going to trial to get $400+ per month in alimony, which she loses with co-habitation.

Simply put, it takes a "special" person to do what she is doing.

The cohabiting with a boyfriend as a means to cancel alimony, however, would require, in all likelihood, a completely new petition. For that, it would be difficult for him to be “hands off” and let the lawyers handle it like an appeal.

Correct, but it's also relatively simple to do. I don't have to provide any of my records for this petition. The petition would be strictly about her information. I already have most of the information that I need, in fact. The biggest piece of information that I am lacking is her new address, which she is required to give me

When I say "hands off", I don't want to be spending 10-15 hours per week digging up documents related to my financial information... digging through 1000s of pages of documents to find pertinent information for trial.

I don’t know what jurisdiction all this is happening in, but as I read this thread, the “cohabitation” issue is a post trial, post judgment fact, not one that can be taken up in the pending appeal. I might be wrong, it’s been some time since I read this thread straight through.

This is pretty much correct. We are trying to eliminate the alimony two different ways. The first method is the appeal. The second method is via co-habitation.

The co-habitation route is going to be something of a challenge because the burden of proof is on me. We need to demonstrate that the financial benefit of living together exceeds alimony. There, I'm lucky. I'm paying less than $500 per month and BF's rent contribution (assuming they don't buy the house together -- which I am guessing is their plan) is easily worth $500 per month for him plus his 3 children.

In contrast, the appeal is going to be much more costly and much slower.

The person who does all that she did to get the alimony that she got and then move in with her boyfriend straight away is......wait for it........the same person who would do what she did in the first place to wind up in a divorce.

True, a laser beam focused post trial petition on the single issue of cohabitation is a much cleaner and less burdensome thing to do than a full divorce case with custody, alimony, property and other issues.

Is it possible that your state’s alimony statutes actually create a presumption of the fact that a cohabitant is supporting, at least in part, the alimony recipient? The alimony statutes with which I am familiar create a rebuttable presumption that an alimony recipient living with a third person is receiving at least some financial support from the third person that fundamentally changes the “need” element of alimony. Yes, the alimony payor retains the ultimate burden of proof, but the recipient bears the burden of rebutting that presumption or losing at least some of the alimony. This might be a good question for the lawyer.

Anyway, sounds like you’ve got the ex drawn into a two front war which seems like it will go your way. The question is, do you want to be in a war even long enough to win it?

The person who does all that she did to get the alimony that she got and then move in with her boyfriend straight away is......wait for it........the same person who would do what she did in the first place to wind up in a divorce.

100% correct.

The question is, do you want to be in a war even long enough to win it?

I am more willing to spend money on this war but not the time. I've made that clear to my attorney (whether it's #3 or #4). She assures me that my time commitment will be less than before. It's not like opposing counsel will be requesting documents from me. It's not like I will be trying to refute their crazy ass allegations and cost estimates.

To give you an idea of what I dealt with before, her proposed "reasonable monthly budget" to the court was $7,800. The judge's ruling (through my testimony and other sleuthing) brought that down to $5,600 per month. That's a lot of fact checking on my part.

Minor update. xWW's closing date for the sale of her (the marital) home is March 26.

Presumably, she's closing on the purchase of her new home on March 26th too.

As far as I can tell, it'll take about a week or so for the sale to show up on the government's website related to property taxes.

barcher144

I'm sorry to ask this (my memory is failing me) but why wasn't the marital home sold and the sale $ split in the D?

I'm sorry to ask this (my memory is failing me) but why wasn't the marital home sold and the sale $ split in the D?

The full answer gets into details that I don't want to provide publicly.

But, in vague terms... our divorce involved an equitable division of assets and debts such that she received 100% of the marital home. Basically, I received other stuff... including a cash pay out from her retirement account that covered maybe 80% of my legal bills.

To be clear, I'm not upset that she is selling the house or that she is moving in with her boyfriend. If anything, it's easier on me emotionally that I don't have to pick up my kids at that house ever again... and I kind of pity the new guy (she's cheated on him too, I'm certain).

Thank you.

Just seems you have been screwed through the entire process.

Agree with what DragnHeart said...

I’m glad you decided to appeal just because it would be nice to see you get a little bit of fairness/justice for once. I know there is something to be said for just having everything over with, and that you can’t really be a winner in this crappy situation, but dang it, it would sure be nice to see the appeal go your way and for you to get a fair shake on this one thing.

Just seems you have been screwed through the entire process.

I have tried not to think of all of this as "getting screwed" but I am starting to think that was a mistake. I think a little "woe is me" would have helped me deal with this some.

But, yes, I have gotten screwed throughout much of this. The worst part was that she got majority custody so that she could get more child support. I actually don't care about the child support, but I would like to have my kids more. This is particularly true given that I think that she is as emotionally abusive to them as she is to me (she routinely asks them to keep secrets from me, she never apologizes to them, etc).

The ironic part is that her fight for more child support will cost her financially in the long-run. Given the quirks of the legal system, she effectively traded child support for alimony (i.e., a large part of the reason why she doesn't qualify for alimony is that she is getting so much child support).

All of that said, there is a joke that applies here. Why are divorces so expensive? Because they're worth it!

Looking at it from this perspective, I spent a lot of money to get rid of her... and I am so much better off because of that.

p.s. I received an email from my attorney today that the appeal has been officially filed.

Let’s say you win the appeal and alimony drops down because the judge can’t do math (this blows my mind but it shouldn’t... math is apparently hard for a lot of people). Would this ruling be retroactive to the date of divorce or would it just reduce payment going forward?

Would this ruling be retroactive to the date of divorce or would it just reduce payment going forward?

I don't know, but I'm guessing that it'll reduce the payment going forward. I can't imagine that they will make her pay me back.

Let’s say you win the appeal and alimony drops down because the judge can’t do math (this blows my mind but it shouldn’t... math is apparently hard for a lot of people). Would this ruling be retroactive to the date of divorce or would it just reduce payment going forward?

If the appellate court rules in Barcher’s favor, there are a couple of possible outcomes. The appellate court could identify the mistake, fix the mistake, and remand to the trial court with specific instructions on fixing the mistake. This could include a specific instruction to reduce the alimony to a specific sum, retroactive to the date of the first mistaken payment. Many times the payor will then be allowed to pay a little less than the "new correct" amount until the overpayments are netted out. In other words, there’s not a lump sum returned to the payor immediately, it’s "recovered" over time. It is possible a recipient of a mistaken windfall could be ordered to forfeit the lump sum but generally not as they have already been identified as a person in need of financial assistance.
The alternate outcome is that the appellate court notes a mistake in the form of a factor the trial judge did not consider or some other error of law and the appellate court remands the matter with instructions to the trial court to "correct their homework." In this case, the appellate court generally doesn’t pick a new number, they identify the error as a matter of law and then direct the trial court to use their opinion to do the analysis and calculation again, which ironically sometimes allows the trial court to reach the same conclusion only with better defense of it.
Hope this helps.

[This message edited by Wiseoldfool at 7:47 PM, Thursday, March 18th]

In this case, the appellate court generally doesn’t pick a new number, they identify the error as a matter of law and then direct the trial court to use their opinion to do the analysis and calculation again, which ironically sometimes allows the trial court to reach the same conclusion only with better defense of it.

This is my understanding too.

And my biggest fear.

It seems that my judge *wants* to give xWW alimony and he'll do whatever he needs to do to make that happen.

Does your divorce decree specifically address the cohabiting or remarriage? Mine does. I get spousal support for life unless I remarry. The attorney told me that "living as married" could also be used to end my alimony. At the time, it was just a sentence in the boilerplate form they use as a starting point and I never thought about it but at this point, I wish I'd had it taken out. Because, while I have no intention of ever letting anyone into my life, the reason I got lifetime spousal support was in lieu of taking 1/2 his pensions and to make up for me collecting SS at age 62 at his request.

Anyway, I'm thinking that should have been part of your official divorce decree?

Josie, you cannot be denied drawing social security off him, especially if you were married 10 years, (I think it's 10 years.) If he out earned you, you're entitled to draw half whatever amount he gets, so if he draws $3000 a month, you're entitled to draw $1500. That's the law.

Does your divorce decree specifically address the cohabiting or remarriage?

Our divorce is actually in three parts because xWW and her attorney were so difficult. Part 1 is the major possessions (house, cars, retirement accounts, etc). Part 2 is the custody and parenting plan. Part 3 is alimony and child support.

Trial was for Part 3 only, although they tried like hell to bring the other two parts as "unfair" as much as they could. There were no specific complaints about their feelings of unfair, just that they were pissed about what they signed. I kind of get her perspective... in her initial petition, she "suggested" a bunch of valuations that were way off (in her way, go figure) and she got nowhere close to what she originally wanted (but half of the actual value, so: Wayward mindset for $1000, Alex?).

The judge has a line in his decision about alimony lasting until death or marriage. However, the law is clear (it's statute, not case law) that co-habitating with a non-family member can be a disqualifying factor for alimony but it is not iron-clad or guaranteed. For example, if I was paying xWW $3000 per month in alimony and her housing costs decreased from $2000 per month to $1000 per month. Then, she'd still get alimony, but the amount would be reduced.

In this case, the amount of alimony is so small ($425 per month) that pretty much any co-habitation will disqualify her completely from alimony. Meaning, the cost benefit of living with a new guy will easily exceed $425 per month pretty much for any situation.

In the specific situation, xWW's boyfriend is very similar to me. He's a single dad with three kids. I proposed $1500 per month in rent as a fair value at trial. xWW's opined that $1500 in rent for me was crazy-high and she had a different number, but even her number was still higher than $425 per month. For what it's worth, the judge agreed with my proposed rent value of $1500 per month.