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Deciding between no fault and adultery grounds

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oddincline posted 6/21/2018 12:13 PM

I'm in the US, Maryland.

We have mutual agreement divorce (no waiting period if you have no minor children), but you have to have a separation agreement and WS counters my reasonable offers with off the wall ridiculous things.

One offer said he'd get half of my retirement but I got none of his (and no offset). Another offer said I should pay him $6,000 for my car, but I had it appraised and it's worth $7200.

I want to file for adultery and just get this over with. Are there stories of folks who filed for adultery? How did it turn out? How much did it cost? How long did it take?

(Links are fine if you've written your story elsewhere; I'm new to this forum and am having a hard time finding stuff).

Thanks!

squid posted 6/21/2018 12:18 PM

oddincline,

Welcome to SI, firstly.

I don't have any advice for you as I too am in the middle of trying to come to a divorce settlement agreement with my STBX. It's frustrating and crazy-making stuff, I know. I'm wondering about how adultery factors into alimony.

Strength to you.

Phoenix1 posted 6/21/2018 14:10 PM

Welcome oddincline. Sorry you are here, but glad you found us.

The best thing to do is consult with one (or several) attorneys to see what you can expect in your jurisdiction. Not only is each state different, but each judge can be different in terms of how they rule. Your local attorneys will know best how things "typically" go in your area.

In my state I had a couple of options. I could go uncontested divorce (dissolution, even with kids), contested divorce on no fault grounds (basically if you cannot reach a settlement agreement), and contested divorce with fault (adultery being an option).

We opted for dissolution and had it done in 45 days (there is a 30 day waiting period after filing) with no attorneys. But that is because we were able to come to an agreement in our division of assets/debts. Had Xhole not be agreeable, I was prepared to go the fullblown contested on grounds of adultery route. It would have been VERY costly and VERY time consuming (potentially years). The "possibility" of what I might have gained in the settlement would never have offset the legal costs involved, nor the assache of dealing with him for potentially years. I wanted it over with and him out of my life as quickly as possible, but I wasn't going to completely rollover to make it happen.

As we proceeded, Xhole started to get a little "difficult." The reality (which I found out after the fact) is that Twatbox OW was chirping in his ear to get more from me and give up less. When this started, I used the threat of going full blown contested on grounds of adultery and subpoenaing all his OW as leverage to get him back on track. I had an abundance of proof (including OCs), and he knew it. He also knew I was not just bluffing and would have gone through with it. Since he is very much into keeping his image of a pillar of the community intact, he settled down and gave me what I wanted. The outcome was "fair" because we are an equitable distribution state (must be fair, but not necessarily equal), but I was happy with it.

Even though our settlement turned out to be almost equal (bottom line net after all debts and assets accounted for), the goal was to ensure it would be seen as "fair" in the eyes of a judge. Even with an uncontested divorce it must be reviewed by a judge for the "fairness" component or they won't sign off. In our 15 minute hearing in front of a magistrate, he questioned why I was getting the marital home and all equity and not paying Xhole anything for his portion. I pointed out the fact that as an offset I was taking on more of the marital debt (which Xhole ran up behind my back) and he was getting all the recreational toys (which I had valuations for). Once the magistrate saw the bottom line net was actually almost equal he didn't bat an eye and approved it.

Now, had I gone the fault route, there is the "possibility" I could have recovered more in assets due to his marital dissipation of assets, including paying secret, under the table child support for 15 years (that he was never legally obligated to pay). I had to weigh that with the speed and low cost of no fault. In my mind, the speed and low cost still outweighed what "might" have happened (or not).

So, that is my story in a nutshell. Yes, it would have been nice to have "adultery" on the divorce decree, but it wasn't worth the time or money it would have cost to get it. Not when I could escape much cheaper and faster going the alternative path. Getting away from him in every respect was worth its weight in gold. All my family and friends know what he did so I didn't need a piece of paper to prove it to anyone.

Looking back in hindsight, I would do the same all over again. It was like playing a big game of strategy, and don't use the threat of adultery unless you are fully prepared to go through with it (and in many cases you practically need photos of them having sex to actually prove it as the burden of proof is on you).

There are a couple of folks here that did successfully D on grounds of adultery. Hopefully they will chime in.

Tigersrule77 posted 6/21/2018 15:33 PM

oddincline, I divorced in MD about 3 years ago. At that time there was a waiting period, unless in cases of adultery, abandonment, etc.

It is a no-fault state, so adultery makes almost no difference. I was not going to file for adultery, but my XWW wanted to speed up the process as she was already pregnant by another man (not AP).

I was told that alimony is calculated based on a formula from the state. Were you married long? If you have no kids and you are both working, he is probably entitled to very little.

My XWW waived alimony, but I pay CS because I make substantially more money.

I agree with Phoenix that you should talk to an attorney. Depending on what part of the state you are in, I could recommend someone by PM. The money is worth it, even if it is only for a consult so you have a better understanding of the law.

Simplicity posted 6/21/2018 15:58 PM

If filing fault helps, I see no reason not to. I filed fault with a side of irreconcilable differences. I don't know what the burden of proof is in MD, but I made my STBX accept the charge of adultery.

[This message edited by Simplicity at 3:58 PM, June 21st (Thursday)]

Simplicity posted 6/21/2018 15:59 PM

Oh and if filing for adultery, I heard he has to pay $10 fine. I would say make that fine happen!

Lazarus posted 6/21/2018 18:09 PM

Definitely talk to an attorney. The benefits of a fault-based divorce vary drastically, sometimes from judge to judge, but definitely from county to county.

oddincline posted 6/22/2018 08:34 AM

Thanks for the responses! A few more notes on my situation:

I do have a lawyer but she's on vacation right now. Before she left she passed on his "final" offer.... and it's ridiculous. But we haven't talked about it yet.

Obviously I'm going to take her advice, but I'm curious about how this sort of thing goes from people who have done it.

We were married for 10 years (10 year anniversary was 1 month after our separation). We are both employed and make within 10% of each other (I have the higher salary), so I don't expect alimony or anything.

I have much more in my 401k because I had a professional job before we got married. He was unemployed when we met, started working part time after 6 months, and got a full time job 2 months before the wedding. That job had awful hours (he worked basically from 2 am to somewhere between noon and 2pm; never less than 50 hours a week and near 80 during high volume periods (about 3 months/year).

After we had been married a year or two, he was disciplined at work for sexual harassment. I should have seen it as a red flag and left then, but to be honest divorce is pretty inconceivable to me. In my big Catholic extended family (I'm not religious) there are only 2 divorces.

A year or two later the hours were really becoming a problem. He couldn't advance in that company without a degree but did not have enough time in the day to get one. My parents own a small company working in a technology field he was interested in but had no experience. I begged them to hire him, and they did. If I had told them about the sexual harassment, they never would have hired him.

He's a good employee and very smart. And since he now had a 40 hr/wk regular hour job, he went to school and got a bachelors in this new field. He gets bored easily and changes jobs every 2-3 years (so he no longer works for my family), but since he now has a degree he gets paid well. He's more ambitious so I imagine in a few years he'll get paid more than me and his retirement accounts will grow faster.

And this is one of my frustrations with the situation. The rules about splitting retirements and stuff are based on the assumption that one person sacrificed their personal earnings potential for the other person's career (like the SAHM). But he is in a BETTER position as a result of our marriage.

I think part of my wanting to file for adultery is to put a misdemeanor on his record because misdemeanors relating to sex have to be disclosed during a security investigation (so close to DC, lots of jobs require clearances). It's the desire to take away that advantage me/my family gave him.

But if it costs a small fortune its not worth it. He's in tech and there are a ton of non-clearance jobs he could get, but he might have to move to another city.

[This message edited by oddincline at 8:36 AM, June 22nd (Friday)]

northeasternarea posted 6/22/2018 08:44 AM

If you had sex with him after learning of the adultery, you can't use that as grounds.

oddincline posted 6/22/2018 08:56 AM

We had sex after I learned of 1 AP, but not after I learned of the other 4.

northeasternarea posted 6/22/2018 09:03 AM

Would threat of exposing the AP's make him more reasonable regarding the settlement? Do you have independent proof of the adultery?

Ratpicker posted 6/22/2018 09:09 AM

While you are waiting to speak to attorney, look for old docs on your 401K. The company that administers the fund will have the info if you don't find it- not to worry. You wouldn't need to share with him 50% of your 401K (necessarily), it only applies to the funds that were earned and added during the 10 years of marriage. That might cover the entire life of the 401K contributions & earnings, especially in long term marriage but sounds like you had a 401K balance on wedding day.

If you do end up sharing a portion of your 401K, it is done with a QDRO and the company does all the math. So you want to have an idea of the figures when you are negotiating.

oddincline posted 6/22/2018 09:44 AM

Exposing the AP wouldn't faze him. He had been going to industry conferences telling everyone we had an open marriage (I'm relieved to be free of him because with that behavior I suspect he'll end up with another sexual harassment charge in 5 years).

Proof is definitely the sticking point. All of the people who could testify are his friends so that seems pretty unlikely.

To figure out how much of my 401k he would get I did the following calculation

Current401k - DayOfMarriage401k - His401k and divided that number by 2

My lawyer said here the QDRO is about $1500 and usually the recipient pays for it.

oddincline posted 6/22/2018 13:50 PM

Talked to my lawyer.

The two main assets that are in contention are my retirement and his inheritance. Lawyer says that if we went to court he would definitely get part of my retirement but I may not be awarded part of his inheritance.

She recommended that I take his offer (I pay him $11,800). I HATE HATE HATE HATE this idea. I hate that he cheated and he's getting rewarded for it. I hate that I gave him a career and he's getting money on top of that. I hate that I'm left with the additional costs of the cats and he's walking away with a ton of cash and no responsibilities.

I haven't accepted yet, I asked for the weekend to think it over.

oh and on the question of adultery vs no fault, she said adultery only goes to grounds. It doesn't affect the property division at all. And I would have a hard time proving it (going over the situation).

[This message edited by oddincline at 1:56 PM, June 22nd (Friday)]

Phoenix1 posted 6/22/2018 14:13 PM

With inheritance (at least in my state), it is excluded from the settlement UNLESS it was used to benefit the marriage IN ANY WAY. Check with your attorney and see if that is the case in MD. If so, see if you can find ANY way the inheritance was used to benefit both of you.

Xhole tried to use the "you owe me for my inheritance" and I owed him for half the value of mine route, but I quickly educated him on that. We used his for the down payment on the marital home. It was a definite benefit to the marriage. Thus, I didn't owe him squat and it was part of the settlement (and since I got the home, that pissed him off even more). My inheritance, on the other hand, consisted of several very valuable antiques. Those antiques have always been sitting in cabinets, unused in any way except to look at. Therefore, they were not used to benefit the marriage in any way and their value was legally excluded. Yeah, he was pissed about that turn of events as well.

As for the $11,800, yes, it would suck. But do the math in terms of legal fees, your time/sanity, and probable outcome (based on what your attorney says). You may find that as distasteful as the payment is, it is ultimately less than what you might face otherwise and becomes essentially a small price to pay for your freedom.

Bottom line, though, if you have an uphill climb to prove adultery, it is probably not going to be worth the very costly fight that you may likely lose in court.

It sucks. We all get that. We want our pound of flesh in some way. We want the WS to pay for what they have done. And we certainly don't want to pay THEM! Very normal and you have every right to be frustrated and angry. But at the end of the day, you have to work with the legal hand you are dealt in the most beneficial way to you.

Ratpicker posted 6/22/2018 14:32 PM

I sat in a Georgia courtroom- where it is equitable division -when an attorney argued that the inheritance (came into being after div was filed) was considered in asset division! That attorney argued that both parties should end up with equal-ish/ equitable amounts and the BS wife had the inheritance. The judge went along with it! Wife had proof of adultery, husband admitted it on stand but wife had filed no-fault to get it over with quicker. So judge wouldn't take fault into consideration. I researched the judge later- he was a cheater and had started the 2nd family before his divorce from 1st wife.

This is an example of a local attorney knowing the courts & judges when evaluating a strategy.

oddincline posted 6/22/2018 14:42 PM

His inheritance is real hard to figure out without bank statements from 2010.

He had an account with himself as the only owner. In order to not get charged a monthly fee, it needed a direct deposit. But, it was hard to move money from that bank to the credit union where we pay all of the bills from. My workplace's payroll system makes it very easy to distribute my paycheck to several different banks/accounts, so I put a small amount from my paycheck into that account. I also got the same amount into my sole account and we called those amounts our "allowances" and we could do whatever we wanted without interference from the other.

When he got his inheritance, he put it into that account. Then he paid off his credit card (which had marital expenses) and student loans (predating the marriage) and bought stocks with the remainder.

The stocks sat there for several years, then last year he sold 3/4th of it to build a deck for our house. I don't remember which account he had it deposited into.

Then last year he said he would sell the remaining stocks so we could take a nice trip for our 10 year anniversary. We decided to go early (February) to Iceland to see the northern lights. Except he didn't sell his stocks and we put the trip on credit.

Some time in March he finally sold them and didn't tell me (between March 7 and March 31 based on statements). The money went into that external account (the direct deposit got changed to his paycheck when he got a new job with the same flexible system mine uses, but it still had paychecks getting into it).

We separated on March 31.

From what I've been reading, it sounds like if he put it in an account with marital assets (paychecks) and then bought something to benefit the marriage, it's fair game.

What I think he did each time (except the last, which only got deposited) was get it deposited into his external account, then transfer it to the credit union. And it may be that if nothing else happened to the account between when the money was deposited and when it was transferred, it would be individual property. If he took a week to do it and a partial paycheck was deposited or he used his debt card, it's marital. If not.... it's hard to say.

The part to build the deck is definitely marital, but also it's gone. We have to sell the house as neither of us can afford it alone. We haven't lived in the house long enough to have equity (it's only been 2 years) and there's still a possibility we'll have to short sale (there's an open house this weekend, I have my fingers crossed for multiple competing offers, but I realistically know we might get none).

But the part that's still stocks and the part that he sold off in March... who knows?

What's clear is that he's willing to gamble that he would definitely get my retirement and might not have to give away his inheritance. If that happened, he'd have to give me $2200 cash and I'd have to give him $18k out of my 401k and some portion of my pension-ish thing (how much depends on how long I continue to work with my employer). AND pay lawyers.

[This message edited by oddincline at 2:45 PM, June 22nd (Friday)]

NoMercy posted 6/23/2018 08:27 AM

This guy is a real special kind of parasite, isn't he? What a repulsive piece of shit, trying to shake a woman down for money.

I'd do whatever it takes to nail this utter POS right to the wall.

Tigersrule77 posted 6/26/2018 08:17 AM

I too am not happy about the D laws in Maryland. They suck for BS's. But if your lawyer is giving you advice, you should strongly consider it.

You could offer to your WH that you will waive claims on inheritance to lower the amount and not prolong the process, if you think that will work. And if you are OK with things taking longer. Is it worth it to you? It may be in your best interest to just end it and move on with your life.

ChewedMeUp posted 6/26/2018 09:33 AM

I divorced on adultery grounds. However, I'd filed based on the waiting period (1 adult, and 1 minor child involved). When I got there, the magistrate told me that because I'd filed my paperwork based on the date we wrote on the agreement (Jan 1) rather than the date it was notarized, that I didn't meet the time limit yet. Thankfully, I'd brought the adult son as my witness (state requirement for final hearing), and she was kind enough to take us off the record and explain to me that if my son could swear to witnessing his dad in a relationship with this other woman, I'd meet the adultery requirements.

As for the agreement, I'd written it up mostly fairly, but in my favor in ways that he wouldn't really recognize. Since I'd done it all myself, and he only saw the benefits on his end (claiming the younger for taxes, no CS, keeping all his stuff and a few things I knew he wanted but didn't mean anything to me), he didn't argue about any of it. Conflict avoidant, he didn't even respond and it was processed as a default. All in all, it only cost <1k.

But I recognize that I'm a bit of a weird edge case.

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