Time to go to court?

[Everrgreen]

I'm frustrated. My stbx and I from the beginning have wanted to keep things out of court. We came up with a separation agreement that we both agree to (well, I wrote it up, he looked it over, changed a couple of things, I was okay with it, so we are both happy). I did want it to be officially done by a lawyer, so I retained a lawyer who drafted up the agreement and parenting plan with everything my stbx and I had agreed to. Now, it needs to be sent to my stbx's lawyer so that my stbx can sign it and make it official. Problem is, my stbx will not get a lawyer! I have been on his case about this since August. And everytime I talk to him he says 'oh I've been really busy, but I'll call around tomorrow', a week passes, I talk to him again, get the same line.

I am not getting any child support/spousal support, which he agreed to in the agreement but he hasn't been working at all so has no money to give. He is not following the visitation schedule (he wanted once a week, the last time he saw ds was mid August). So now I'm wondering if maybe doing this out of court is not going to work. But, I also am pretty sure that stbx is telling me the truth that he is still job hunting and has no money to give, so going to court could be a waste of money if I'm not going to get any support out of it anyway. And going to court is not going to force stbx to visit his son more often, so what's the point?

I just don't know. My lawyer thinks I need to go to court. But I'm worried about the cost. And I'm worried about the agreement getting changed, I like it the way it is and I keep thinking if I give stbx a bit more time he'll eventually sign it (afterall, he already agreed to it as well!)

I would just really like to get this thing done and put it behind me. But it is taking forever! And it frustrates me that stbx is the one who left *me*, yet I'm the one doing all the work for this and he's procrastinating. Ugh! Why won't he just pick a lawyer, it isn't really that hard!

[confustication]

I would go to court. Even if he isn't working, he still has a support obligation. Clearly, he doesn't want to do what is in the best interest of the child, so make it very clean and simple.

[MissLotus]

He actually doesn't need a lawyer to sign the papers - he just needs to do it in the presence of a Notary Public; one can be found at any bank, for example. Double-check with your lawyer about that but I do believe it to be the case.

I would have your lawyer send him a registered letter - so he can't say he didn't get it - saying that if he doesn't sign by X date, then court proceedings will begin. Do it this way so that he knows you mean business - don't just say it to him. And have it worded in such a way as to remind him that a court may not be as lenient as you are!

[Everrgreen]

My lawyer said that if he doesn't have his own lawyer to go over the agreement with him, then down the road he could take things to court claiming he didn't understand what he was signing.

I think I like the idea to have my lawyer send an official letter with a deadline. My 'deadlines' that I've given him don't seem to do anything

[Halfasianmomma]

I agree with your lawyer. Have your STBX served with a formal notice giving him X days to sign the parenting agreement. I'm not sure what consequences can be enforced should he not sign the agreement...I wonder if it would be legal for your lawyer to state that after a certain date, he will considered to have accepted the terms and conditions outlined in the agreement...

[MissLotus]

Originally Posted by Gillian28

My lawyer said that if he doesn't have his own lawyer to go over the agreement with him, then down the road he could take things to court claiming he didn't understand what he was signing.

I think I like the idea to have my lawyer send an official letter with a deadline. My 'deadlines' that I've given him don't seem to do anything

I see. I wonder if, to cover your bases, the ultimatum letter could also mention something like, "You are advised to seek legal counsel..." so, if it came to it, you could actually point out to the court that he was encouraged to do so - whether or not he actually chooses to.

[VocalMinority]

Going to court is almost certainly the wise option. If there's really not that much to argue over, and no money to get from him, why don't you represent yourself? If you have a modest income, you may even be able to petition for a waiver of the filing fee.

Here's the other side: My ex and I never went to court. He offered what money he could afford at the time - and paid it. We agreed on once/week visits, as well, because our kids (twins) were only 2 (isn't yours almost 2?). He was terribly irregular about showing up, for years. It infuriated me. Then they got older, he felt more competent to take care of them on his own and he has become a terrific, involved father. I just can't complain about him.

Looking back, I realize he felt like I was a natural and knew everything to do for the kids and he felt like he was floundering, with changing diapers, trying to decipher their limited verbal expressions and trying to figure out how to entertain kids that age, when he'd never even babysat. He avoided coming for visits because they made him feel awful, then he felt guilty and I made him feel worse, by shaming him about it, then he felt even MORE like avoiding them.

When he started making more money, he volunteered to pay more child support. Perhaps he felt grateful that I never made him waste money on attorneys, trying to see how much I could get out of him.

So, if the only aspect of your agreement that isn't working is him showing up for visits...that's not something the court can fix anyway. And maybe it will resolve itself on its own, given time.

[Super~Single~Mama]

So, here's the problem with your plan. Not going to court is fine, but do you understand the consequences of that?

You will be under CONTRACT law, NOT family law. Your only recourse to a violation of this contract will be through the civil contract methods - NOT family court. If he violates the contract, he will be in violaiton of the CONTRACT, not in contempt of court. Contract remedies are VERY different than family court remedies.

I would go to court, and explain to the judge that you have an agreement, but you want it to be officially recognized by the FAMILY court as a custody/visitation agreement.

It's not just him that needs better legal advice, its you too. Talk to a family law attorney about the pros and cons of avoiding court altogether.

[Everrgreen]

Hmmm, interesting. I'll have to look into that then. My lawyer has encouraged me to go to court, but I initially didn't want to. I have a meeting with her on Thursday so I'll discuss my concerns with her then, see what she says. She is supposed to be a very good lawyer though, my dad recommended I use her - she was my mom's lawyer And I had another good reference for her too.


Thanks everyone for the advice!

[Goodmom2008]

Go to court and get temporary support set up. That may motivate him to sign the agreement.

BTW, he's probably aware that as long as there is no court order and he doesn't sign the agreement, he doesn't have to pay anything. And there would be no arrears as there is no court order and nothing filed with the courts.

Once the agreement is signed, get it signed off by a judge. That way it will be enforceable with a contempt action.

[meemee]

i am not sure why you are going to court.

what are you hoping for?

1. Support? But he doesnt have a job and thus no money. You are pretty sure he is telling the truth. Then why are you pushing court? what is that going to achieve?

2. Visitation. You are aware of this.

So why go to court? Of course the lawyer is going to advice you to go to court. THAT makes sense to me as your lawyer makes the money. Or even if the money is not the motivation then I guess its just the rightness of the law.

I am thinking the moment the judge signs that paper your ex goes into arrears.

All I am asking is - is this what YOU want?

the only reason why i bring this up is because you seem to have a good relationship with ur ex. THAT is worth more than anything. You going to court seems to only get him into trouble. You right now have trust between you - at least from what you write.

that TRUST is far more important than anything else - even money.

my personal experience is something like jeannines. and yes my ex also struggled with dd till seh was 3. then he kicked in and started taking care of her even more. after 6 1/2 years - while ex and i dont speak and its still bad between the two of us - we both work it out to support each other and our dd. we have been able to work out so that dd doesnt have to be in afterschool program. if i have something on my day which i have this monday ex will keep dd. when he struggled financially we've worked it out. once he started splitting custody 50/50 he stopped paying CS. rather i stopped accepting as it put too much strain on our relationship. however he took over all financial responsibility for dd - buying all her clothes and supplies.

so i really want you to think about what YOU really want. if it was me i wouldnt be telling you to go to court because all it would do is get your ex into trouble. more than anything what i am worried about is your relationship with your ex getting changed. losing the trust you have now.

however if you have the teeniest of doubt that your ex is lying or not giving you the right picture then of course go ahead.

but in these hard times i think a little bit of understanding is necessary.

if anything you should have a sit down heart to heart talk with ex. if he will do it. about visitation.

so i dont understand if you guys agreed to keep things out of court why are you chasing with a lawyer? esp. now when he doesnt have the money. can you not wait for the agreement when he can pay for it?

we have kept things out of court. we have NOTHING in writing. its because we have always managed to work things out.

[Super~Single~Mama]

Originally Posted by meemee

i am not sure why you are going to court.

what are you hoping for?

1. Support? But he doesnt have a job and thus no money. You are pretty sure he is telling the truth. Then why are you pushing court? what is that going to achieve?

2. Visitation. You are aware of this.

So why go to court? Of course the lawyer is going to advice you to go to court. THAT makes sense to me as your lawyer makes the money. Or even if the money is not the motivation then I guess its just the rightness of the law.

I am thinking the moment the judge signs that paper your ex goes into arrears.

All I am asking is - is this what YOU want?

the only reason why i bring this up is because you seem to have a good relationship with ur ex. THAT is worth more than anything. You going to court seems to only get him into trouble. You right now have trust between you - at least from what you write.

that TRUST is far more important than anything else - even money.

my personal experience is something like jeannines. and yes my ex also struggled with dd till seh was 3. then he kicked in and started taking care of her even more. after 6 1/2 years - while ex and i dont speak and its still bad between the two of us - we both work it out to support each other and our dd. we have been able to work out so that dd doesnt have to be in afterschool program. if i have something on my day which i have this monday ex will keep dd. when he struggled financially we've worked it out. once he started splitting custody 50/50 he stopped paying CS. rather i stopped accepting as it put too much strain on our relationship. however he took over all financial responsibility for dd - buying all her clothes and supplies.

so i really want you to think about what YOU really want. if it was me i wouldnt be telling you to go to court because all it would do is get your ex into trouble. more than anything what i am worried about is your relationship with your ex getting changed. losing the trust you have now.

however if you have the teeniest of doubt that your ex is lying or not giving you the right picture then of course go ahead.

but in these hard times i think a little bit of understanding is necessary.

if anything you should have a sit down heart to heart talk with ex. if he will do it. about visitation.

so i dont understand if you guys agreed to keep things out of court why are you chasing with a lawyer? esp. now when he doesnt have the money. can you not wait for the agreement when he can pay for it?

we have kept things out of court. we have NOTHING in writing. its because we have always managed to work things out.

My problem with this is that everyone assumes that going to court means that people can't get along afterward. My ex and are very friendly towards each other when we are around each other. It's almost sickening - I can't stand the guy - but I'm able to put that aside for my son for a few minutes while we do the exchanges.

I got sole custody, and he's still nice to me (granted he has to be b/c I have sole custody...) when we do the exchanges.

But as to the bolded - if her ex doesn't have a job, and isn't looking for one - well, her child isn't going to wait to need food and new clothing until her dad gets a job and can pay. Children's needs don't wait for people to get jobs. The OP didn't say what her financial situation is, but child support is necessary for alot of people b/c children are expensive. Her stbx also isnt holding up his visitation - so it sounds like he just isn't interested.

[smeep]

Thyra made a VERY good point about contract vs. family law...I would see if that applies where you live.

As for why you would bother to get a court order for child support if he doesn't have a job...BECAUSE HE WILL NOT BE JOBLESS FOREVER! I simply don't understand the, "Well, he has no job to pay anyway," reasoning. The fact is, he WILL almost certainly get a job in the future, and he will owe ALL of that back pay. Let's say you don't go to court and he gets a job a year from now, do you really think he's going to pay all the back support? I doubt it. If you get a court order, when he DOES finally get a job, he will owe it. He will owe it for the rest of HIS life...so your son may turn 18, but your ex will still owe any child support in arrears. My son's biodad didn't have a job and thought he would have to pay nothing. The court ordered him to pay based on minimum wage at 40 hours a week (to my knowledge, he's jobless again, but I am probably going to petition it get changed simply based on the fact that minimum wage has gone up considerably in the past 5 years). More likely than not, he will eventually be forced to get a job and it will come out of his check then (this has happened in the past with ex, but they've not been serious jobs). Do I COUNT on the money? No way! But it's a nice surprise when it comes. My big sister, whose daughter's biodad is also not involved and rarely works, taught me that.

Visitation is pretty irrelevant, IMO. It'll be decided in court, and he'll probably flake out on them (DS's biodad and DN's biodad both have never met DS/DN, even though they technically have visitation). That's what he's doing now, so how would court make a difference? But the fact that it probably won't make a difference should NOT be your reasoning for not going to court. Your reasoning for going to court should be to get support ordered so when he eventually does get a job, he will have to pay it.

[Everrgreen]

Well I think one of the big reasons I'm hesitant to go to court is because I don't want to piss my stbx off and make things more difficult than they need to be. And because of the financial situation for both of us. The reason I do want to go to court is because I want some closure on all of this. We have absolutely no custody agreement in place, no support agreement in place, all we have is the details we both have agreed to but not signed. And I do mostly trust him (that he doesn't have any money - at the moment) but I wouldn't say I trust him without a doubt (afterall he did have an affair and has now run off with the other woman). It is very frustrating to have him never answer his phone or respond to emails. I don't know. I'm trying to take in all the advice everyone is giving me (here and irl) and make the best decisions, but it's hard, everyone is telling me different things. Having this stupid thing done would just be one less thing I have to worry about. And that would be nice.

[PoppyMama]

I would definitely go to court and get support ordered and a custody agreement in place. I didn't go and I seriously regret it now. I am getting weary of all the dad coddling I see around here. Keeping him happy should not be your priority and I don't care how difficult these guys find parenting. We aren't getting the breaks from them why are we constantly expected to prioritize their choices and issues. Lots of people do this without lawyers though so I don't see why his lack of one would make the order unenforceable. I would get it acknowledged by the courts for enforcement purposes.

[mommy_to_2angels]

I agree with PoppyMama. We have a 50/50 parenting plan in place, but not officiated by the court at the moment. And I am taking him back for sole custody because not only can he not follow through on his end of things, but I have to cater to him when he wants to see them? When he chose to move an hour away? I think not.

[StephandOwen]

Originally Posted by Gillian28

We have absolutely no custody agreement in place, no support agreement in place, all we have is the details we both have agreed to but not signed.

Then do you realize he can pick up the child from (daycare/school/babysitter/whatever) and not return? That is reason enough to march your butt into that court room and get everything signed by a Judge.

[smeep]

Originally Posted by Gillian28

And I do mostly trust him (that he doesn't have any money - at the moment)

But do you trust him to pay you for this whole time once he DOES get a job? I really doubt he will pay you retroactively, but the courts will most likely require him to pay retroactively. And IF he gets a job (or you find out he does have one) and he doesn't pay, what will you do then? I just really don't think it's worth it. I would get a court order now and when he does get a job they will take it out of his pay (and my ex was also ordered to pay an additional $40/mo to go towards the retroactive/back support).

[Everrgreen]

Thank you all for your advice and concerns!

So, I talked to my lawyer and she said a separation agreement has the same legal strength whether it's done with lawyers or in court. Court is just a last resort if nothing else works. She said if my stbx doesn't follow the agreement than I would be able to get the courts involved regardless.

She is going to be sending a letter to stbx to encourage him to hurry up. If we still don't hear from him than I will go to court just so I can get things done.

[Super~Single~Mama]

Originally Posted by StephandOwen

Then do you realize he can pick up the child from (daycare/school/babysitter/whatever) and not return? That is reason enough to march your butt into that court room and get everything signed by a Judge.

If he doesn't sign ASAP (like tomorrow) I would go get a temp order by a judge while you wait for a court date to finalize things.