Unholy Mediation: A Legal Nightmare for the Victim of Domestic Abuse
Post 2 of three-part series by our reader ‘Still Reforming’
The first thing I did when I set about looking for a lawyer was to do a simple on-line search for ‘divorce attorney in (my area).’ Oodles of names came up. So I called a friend who had recently gone through divorcing an abusive spouse, and she recommended one name, saying that although she hadn’t retained him, she liked him. I met with this attorney, and initially retained him based on two things he said.
(1) If I filed for divorce, he could file a ‘motion for temporary relief’ to ask a judge to consider removing my husband from the house. At that point, my husband hadn’t yet left us and things were intenstifying at home to a degree I wasn’t getting much sleep.
(2) Based on what I had told him about my husband’s behaviors, the attorney thought my child and I might like to speak with a psychiatrist.
I jumped on that last one, because I desperately wanted to talk with someone who would say, “Yes! He’s a narcissist! Oh my! You’ve been through so much! Of course, I’ll testify in court for you. This is absolutely horrible what he’s put you and your child through.”
Again, my thoughts of what justice should be and what they actually are were not in sync. While the suggestion of talking with a professional psychiatrist wasn’t necessarily a bad one, that too eventually ended up with a lot of money being spent without reimbursement (as this attorney and the subsequent firm I hired had suggested it would be). The counseling also proved generally to be unhelpful (not unlike the three marriage counselors we went to).
The reason I decided to retain another attorney was something the first attorney brought up as his general modus operandi: “collaborative divorce.” This is a relatively new concept that bears resemblance to mediation in some regards. Essentially, the idea is that both parties work with their lawyers and other professionals (counselors, psychiatrists, etc.) with the goal of reaching an agreement and not going to court.
When I considered that there can be no collaboration with an abuser, I asked for my retainer back from the first attorney (which I got, minus some expense for his time) and started inquiring around again. The second firm recommended to me was a higher-priced firm. When I called, the legal assistant to one of the firm’s partners took such an interest in the details of my case and said it was so involved (with an abusive spouse, a special needs child, etc.) that the head of the firm would likely need to hear the details. So we set up an appointment to meet, with the head of the firm (at $400 an hour) and the main attorney with whom I would work (at $200 an hour) present. I spent more time sharing details of the abuse, in which they were both interested, than I did asking questions of them. This was the first of several mistakes I made.
In hindsight, I wish I had spent more time interviewing them than sharing the details of my case. Every detail I gave of my then husband shouting in my face within earshot of my daughter, or spinning the car around yelling at me as we both were in the car at his mercy — were met only by questions from my attorneys about what exactly he said. When I explained the terms he used were from Scripture, such as “nagging wife, dripping faucet, unloving, unmerciful, judgmental,” etc., I received deer-in-the-headlight looks back with only an “Oh” in response. Nothing crossed a legal line, not even spinning the car around.
The first red flag that should have stopped me in my tracks with this particular firm was that moments after I retained them — Mr. $200-an-Hour walked me to my car and said, “Men explode sometimes.” I sent him an email as soon as I got home that stated “it’s unacceptable behavior and indicative of suppressed anger that if left unchecked could put (child’s name) in a dangerous place someday if left alone with her dad.” After six days, he emailed back, ““I can assure you that I do not take angry outbursts lightly.” In hindsight, I should have left the firm then.
Don’t be afraid to jump ship from any attorney you hire if dissatisfied or if red flags arise. I wish I had. In my case, I had spent so much time emailing and calling with information that I thought would be relevant (and was never told otherwise by my attorneys) that I was emotionally and financially depleted by journey’s end, and I just decided to cut my losses and stay with the firm I’d hired (and with whom I’d already been before the judge once). But if I had it to do over again, I would have started all over again with interviewing attorneys until I was as confident as possible that I had someone I trusted.
As it turned out in my case, our first appearance before a judge in chambers was one week following the non-settlement meeting. My attorneys not only spent several hours of my time on the phone and in person trying to prepare me for the judge I would be facing — quite literally putting the fear of God in me because even though my husband had left us, not seeing our child by his own choice for months, I was told that this judge could very well decide to throw me out of the marital home and allow my husband to move back in at a moment’s notice — all to allow my husband time with the child he abandoned and for whom he no longer was paying a dime to support. It basically shut me up before the judge. At the end of the first preparatory meeting regarding time in court, as they placed this fear in me, I asked (as I always had to do — because they never brought it up) how much they’d seek in the way of child support. The head of the law firm casually remarked as he walked out of the room, “As little as possible.”
I was already wiped out after more than an hour of prep time in his office related to my case, while my mind was still going over details related to our child’s schooling, would I still be allowed to stay in my house, what about reimbursements for all the expenses I was paying for her and me since I had been totally dependent on his salary prior to that time, etc. And I had just spent at least $400 that hour to be told they’d be seeking “as little as possible” in return for me. His later justification to me was that he was trying to be expedient in getting this case closed sooner rather than later, i.e., getting my husband to agree rather than fight on.
I thought that by paying more that I’d be getting more. Not so. They took one look at an inheritance I received from my father that I put into a trust fund for our child (a trust now greatly depleted) and cha-ching. It was my husband who had the bulldog attorney, possibly paid for by my husband’s employer since one day about four months into the process his attorney called mine irate that the employer was going to fire the attorney if my husband and our child didn’t get together immediately. I told my attorneys that I didn’t care if his attorney was fired by my husband’s employer. My attorneys told me that it would look like I was preventing my husband from seeing our child, and the judge might not look favorable on me if that’s the impression. So. . . in spite of the fact that he left us and didn’t make an effort to see her, it was suddenly my responsibility to hop-to and get them together.
It was my husband who landed the bulldog attorney. The only way I could have known that I wasn’t getting such an attorney would be had I either (a) interviewed more doggedly (so to speak) at the outset and/or (b) dropped the attorneys I had at the first red flag I noticed. I wish I had done both.
One week post-non-settlement, we met before the judge to discuss two motions my husband had filed against me. One motion was for “timesharing” (previously known as “visitation”). “Timeshare” to me smacks of a condominium rental in Bermuda, and when it comes to actual benefit to the child involved, time in Bermuda might be a better option than how courts currently divvy up the children equally between abuser parent and target parent.
The second motion was for a psychiatric exam, even going so far as listing among the reasons he was seeking it were that I homeschooled our child, something he had never contested — but also voluntarily never participated in — as well as the fact that I eventually put up curtains to prevent his sudden appearances at windows in the dark. The judge dismissed that motion as unnecessary, which was a bit of a disappointment to me as I had hoped that a psychiatric exam might be done on the entire family and reveal narcissism in my husband. Even then, however, the judge we had on the bench wasn’t inclined to take that to heart. I suspect that unless the narcissim crosses a legal line, many judges wouldn’t take that diagnosis into great consideration.
Prior to the first appearance in front of the judge, I ended up answering the motions for my attorneys, typing up very short replies to each point (some as simple as “1. False.”) and sending them back to my attorney. Sometimes motions have to be answered on paper; other times I was told they’d just be handled in court, such as motions three and four that were filed against me, which included a “Husband/Father’s Motion to Temporary Change Time Sharing Schedule” and “Husband/Father’s Motion to Enforce and Clarify the Terms of the Mediated Agreement.”
Much content in the third and fourth motions was redundant and frivolous, to the point I began to look for an email with an attached fifth motion to enforce and clarify if and when I’d have the right to breathe the same air as he breathes.
To be fair to the legal system, this experience did clue me in to what judges and attorneys must have to deal with on a daily basis with the number of motions my husband filed against me. Before the divorce was finalized in May 2015, he had filed four motions (along with several interrogatories and “requests to produce” — all financial disclosure ). All motions have to be handled by the attorneys, being read (at great expense to the target of abuse) and dealt with by the judge.
Since then I have heard of other cases where frivolous motions are likewise filed against targets, choking up the system of justice and causing endless pointless paperwork.
All of this is highly emotionally charged, and if I had it to do all over again I would handle it as I’m learning to handle my now ex-‘s ongoing emails to me. That is, to take a deep breath, sleep on it, pray, and recognize the source. I have learned that many of these things are just hot air. Although the issues themselves may be worthy, the substance of what the abuser throws out there is not. I wish I had just let those things go until my attorneys brought them up for discussion first, then I wouldn’t have ended up taking up so much time with things that in the end just blew away without consequence, except for my holding a hefty legal bill.
So if you receive motions filed against you, recognize the source. Your soon-to-be-ex- is untrustworthy, and unless he can substantively prove that you have crossed a legal line, it is likely that the courts won’t waste time on frivolous motions. They see too many of them these days.
Instead, put the motion aside until you’re ready for it (as I do with emails from the now ex-husband), and address them after you’ve had a full night’s sleep first. When I first read the motions filed against me, it was late on a Friday evening, which was when my attorney sent them. Bad timing. They were sent without any explanation from my attorney — just a cursory note from a legal aide, “Here are communications from (husband’s attorney).”
In addition to four motions, I had some other legal paperwork to handle, again filed by the husband — such as interrogatories to see exactly what finances I had where (which was ridiculous because he knew all this already, but it was a way of making me have to dig up papers for our child’s trust from my father’s inheritance left to me, get all credit card bills for the past year, tax records — which he had removed from the attic of our house the day after he didn’t come home, when he secretly entered the house knowing I’d be at church that weekday — so I had to pay $250 to retrieve tax records, for which my attorneys never asked for reimbursement).
It’s not that I didn’t hound my attorney about these things, but at a certain point it dawned on me that I’m paying an attorney $200 an hour to convince him to track down my husband’s attorney to get back $250. I was trying to focus more on our child’s future such as where she’d go to school and where we’d live, and therefore I ended up letting a lot get away from me financially.
I just didn’t have the presence of mind or emotional stamina to remember every financial detail, even though I managed to send all of the credit card bills to the attorneys and to prepare everything I thought should be reimbursed in a spreadsheet. Things ended up getting away from me, such as having my husband pay half of the property tax bill or reimburse me for the tax records I had to get from the Internal Revenue Service.
We were assigned by the judge into mediation, for which we both had to pay, even though I came to the settlement meeting with options and fully prepared to settle. That didn’t matter to the Court because my attorney never addressed it with the judge, likely because he knew from experience that this judge wouldn’t grant it anyway. Each of our two appearances before the judge lasted only 25 minutes. The issues were handled pretty quickly without time for details.
When we reached mediation, it was fully five months after my husband had abandoned us. My husband and his attorney chose to sit in the next room and have the mediator waltz back and forth between rooms. The mediator brought her own forms used to develop the mediation agreement, and later my attorney told me that he preferred the forms their firm uses, which separates child support financials from the rest of the issues to be discussed.
What I didn’t appreciate was that my attorney just let this all play out that way — accepting the mediator’s forms — without taking the bull(dog) by the horns and fighting my corner. Instead, I’d get apologies after the fact or lamentations that “We should have gone with our own firm’s forms.” And for all of this, I paid dearly — as did our child.
Part of that mediation process that niggles at me to this day is that the mediator (a woman) admonished me at one point that men need our help to participate in the parenting. She gave the example of how men should be shown how to change diapers so they can do it more often. I don’t think she caught the glaze in my eyes that must have rivaled anything Dunkin Donuts puts on their shelves because I waited for her to finish before I uttered, “I would have welcomed that,” which effectively shut her up on that subject.
I learned that not only were my attorneys not interested in gaining much in way of child support for me (forget about alimony), but they also never brought up my expenditures over the months of abandonment. In addition to not receiving reimbursements for those months he was gone (as if we didn’t need to eat or have heat during the winter), I was imputed a minimum wage which I wasn’t earning (and still have yet to). Again I was told by the mediator and my attorney that it is standard practice. Never mind the fact that I remain unemployed to this day because finding a job that allows one to pick up one’s special needs child at 3 p.m. two to three days a week from public school in a highly agricultural county at least an hour’s drive from the nearest city isn’t that easy, even (perhaps especially) if one has a good resume.
The point of all that detail is that until you know how your attorney is going to handle things, it’s cost-efficient for you to try to discern or flesh out up front exactly what your attorney intends to seek for your benefit and how he or she proposes to go about it. I wish I had asked more questions up front before retaining the law firm that I did.
In the last post in this series, we’ll consider some possible questions you could ask if in the process of considering hiring an attorney for a divorce. These are based solely on my own experience, so the questions you ask may be specifically tailored to your situation. As they say, your mileage may vary.
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[Go to Part 1 of this series]