[quote=futureunknown][QUOTE] If we hated each other and had a bad vibe when we were around each other, then I could understand just wanting to end this, but it just doesn't make sense.
If anything our WAS did/said made any sense, then none of us would be posting here.
I wish I lived in a "fault" state. It is VERY frustrating to live in a "no fault" state. Funny, I live in Kansas where they want to teach creationism in the schools but divorce is a piece of cake. No fault. Everything is divided 50%-50%. There is not a lot of wiggle room. They actually encourage joint custody. It is so funny how different states can have different 'takes' on this. I'd almost like to litigate the "no fault" position. It seems that if you have kids, you shouldn't walk away "without fault" when you decide to jump into bed with someone because you can't control your lust.
Who is the "Harley" who researched affairs in happily married couples? Do you have his first name? Sounds interesting...
The difficulties with a "fault" state are the lack of definition and how difficult it is to prove fault.
If your spouse cheats on you (even if he/she admits it to you and you have evidence) in order for the ground to be recognized by the court you must have a third party witness willing to testify under oath they saw your spouse and OM/OW having sexual intercourse. Not kissing, not touching but full blown sex.
So, when one files for divorce using the grounds of adultery, the cheating spouse will always contest the grounds as they are nearly impossible to prove in court and they will get away with it.
The kicker is our state does not recognize the grounds of "irreconcilable differences". Most people file under "cruel and inhumane treatment" but again, all the cheating spouse has to do is contest the grounds and then burden of proof begins.
The GOOD thing about the laws here is a physical separation is not recognized by the courts. A married couple can live apart for years but in order for the court to recognize a separation they must have a legal separation document in place. Essentially that is the SAME procedure (aside from the grounds as the Separation Agreement serves as the grounds) as filing for a divorce.
Aside from the grounds that are filed the court ONLY takes the following into consideration... the age of both spouses, length of marriage, the health of both spouses and how many children you have. Nothing more, nothing less. There is no set formula for ANYTHING and all decisions are based on what the attnys can present and the above mentioned guidelines. It is sort of a free for all when you think about it.
If your spouse cheats on you (even if he/she admits it to you and you have evidence) in order for the ground to be recognized by the court you must have a third party witness willing to testify under oath they saw your spouse and OM/OW having sexual intercourse. Not kissing, not touching but full blown sex.
So, when one files for divorce using the grounds of adultery, the cheating spouse will always contest the grounds as they are nearly impossible to prove in court and they will get away with it.
I've been wondering about this. Can you have them asked in court, under oath, whether they've had sex with someone else? Sure, they can lie, but they would be risking contempt of court. Judges don't much like being lied to.
I've been wondering about this. Can you have them asked in court, under oath, whether they've had sex with someone else? Sure, they can lie, but they would be risking contempt of court. Judges don't much like being lied to.
no disrespect but LMAO. We live in SCREW PORK STATE Future.
"I invoke my rights under the Fifth ammendment"
The fifth amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal conduct punished by fines, penalties or forfeiture.
Adultery is a misdermeanor in NYS. Good Luck using that as a grounds for divorce. Your lawyer has probably recommended using cruel and inhumane treatment. As the evidence required to show that an affair was occuring is not as strict. kissing someone else is justification.
There are many, many steps that have to be taken before your case went to trial.
And who knows, if your W accepts the grounds and doesn't contest the grounds and accepts your settlement offer all of this will be a non issue for you. I simply shared all this with you as something like 82% of all divorces in NY are contested. While mentally it bites that is also why 90% of ALL divorces are initiated via a Separation Agreement rather than divorce filings.
Before you went to trial you would have a RJI Hearing (Request for Judicial Intervention). Then several Pre-Trial Conferences. All of these proceedings take place in a little room (not a courtroom) and they are overseen by an officer of the court and not a judge.
There are MANY steps before it would go to trial.
My H was hellbent on getting a divorce and rushed, rushed,rushed the process (he did this to avoid being sued by me before I found out about OW but little did he know I knew!). He also told his attny that he and I BOTH wanted a divorce and we planned to use one attny, this was before I even knew he planned to leave. Once he saw I was not fooling around and our divorce case went to all the steps (this took 1.5 years) just short of trial he backed down and asked for a Separation Agreement. He knew he was screwed.
Professionally your W might simply agree to the grounds and your settlement offer as all of this will be public record. It would not bode well for her career to be sued for adultery for all her current and potential clients (patients?) to see.
That was my H's biggest fear - the info that would be on public record. His family had NO clue about OW until recently and the label of cheater via the legal system will never go away.
You have a LONG way to go before court. If you play it smart you won't ever go to trial but chances are you will have several pre-trial (RJI's and so on) to attend before *something* happens.
I also wanted to add that I am not blind to how terribly hard this process is. I know I seem very cold about this process and it took me a long time to get to that point. For many months I was a crying heap every time I had to talk to my attny about this. I was terrified. The worst "trouble" I had ever been in was a parking ticket! All of a sudden motions were being filed against me and I (or my attny) was filing motions and I just felt like my head was spinning.
I can remember sitting on my living room floor sobbing thinking F*ck It - I just wanted this to be over. It wasn't that I wanted to reconcile or I was even *that* sad about the marriage ending anymore I simply could not handle the legal stress anymore.
I sometimes wonder if I have become desensitized to the legal process in our state because once you are in the thick of it you kind of have to be. It took me a LONG time to view it as policy and procedure.
I apologize if I come across like the emotional side of it is not a big deal because IT IS! It is the BIGGEST part but after close to two years of it I sort of had to refocus how I viewed it for my own sanity.
My own experience is one of the reasons I am going back to school to study law. I want to be able to help people like my attny and his staff did for me. Not "help" as in rake somebody over the coals but to really *be* there for a person in every way during such a difficult time. I WANT to be able to say to a shattered and terrified person I will fight for you but I will also give you tissues and hugs.
I had to become tough as nails for my own sanity. I realize it is easier for me as I am done with my process and you are not.
I sometimes wonder if I should just post my entire ordeal for all to read just so it is easier to understand why I *had* to take the stance I did. Then I think it is part of my past but maybe it would help somebody else.
Anyhow, I know this is horrible and I am so sorry you have to even deal with it.
no disrespect but LMAO. We live in SCREW PORK STATE Future.
"I invoke my rights under the Fifth ammendment"
The fifth amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal conduct punished by fines, penalties or forfeiture.
Adultery is a misdermeanor in NYS. Good Luck using that as a grounds for divorce. Your lawyer has probably recommended using cruel and inhumane treatment. As the evidence required to show that an affair was occuring is not as strict. kissing someone else is justification.
I didn't realize it was a crime. I was wondering if the fifth amendment would give protection against a question asked for the purposes of establishing fault in a divorce, but you're right, if it's also a crime, then the fifth amendment protections apply.
I think what maybe you are not understanding is it is not as cut and dry as "asking and telling" because the divorce laws of this state are not conducive to "yes or no". It sucks but it is what we have to work with.
That is why I am saying if you do want to get divorced then file under "cruel and inhumane" treatment as it won't be "yes or no - did you do this" with the same level of burden adultery would be.
