Despirate for good advice

[Justce07]

I live in VA and have been married just under 4 years.  My wife and daughter also reside in VA.  My daughter is just under 3 years old.

My wife is 29 and I am 32.  For the past year she has been going out and not returning home somtimes without a call.  2 years ago I believe she had an affair with a 19 year old no real proof other than 8 hour phone records and friends speculations. I found e-mails 2 months ago to a 22 year old she had been sleeping with.

After reading the e-mails I was pretty sure, but in denial I guess.  I tried to keep my family together got books, cousiling,....  She finally confessed, to me and others.  We drafted a SA together had my lawyer review. Requested her to bring it to a lawyer, but a month went by without action.  She moved out and was paying rent with her friends.

She finally went to see her lawyer and the next day I was served a protective order for domestic violence.  I was ordered to leave the house and have no contact with her or my daughter.  I couldn't believe the acusations "lies".

I've since been back to court with as much evideance against the alogations as possible.  Her lawyer is a pit bull, mine I hired to just type up what we agreed to.  The hearing was continued and I was granted visitation and the ability to text message my wife for visitation communication.

I don't have a place to live.  I was served a divorce complaint wanting everything.  I go back to court next friday.

1.  I have wtnesses and evidence for most acusations.  Should I contest the protective order?

2.  I have a Pende Lite hearing the same day.  How should I prepare and what should I expect?

3.  Should I get an apartment?  I can't have my daughter sleeping at friends houses.

4.  All my nieghbors, her friends, her family all know what a great husband and father I am and are disgusted with her actions.  She admitted to my neighbor she filled the order on advice from her lawyer to get back in the house.  Can or how can this be used?

5.  I Love my daughter more than anything in this world.  I've been the responsible parent while she's been out partying at bars.  What things can I do to ensure Joint legal and Physical custoday?

6.  My wife is a good mother when convienant.  I want my daughter to have a safe place when with her.  Should I agree to extra child support or temp spousal to ensure a safe place?  On principal I have a hard time with spousal, but this isn't about me

[socrateaser]

>1.  I have wtnesses and evidence for most acusations.  Should
>I contest the protective order?

Yes, but understand that depending upon the accusations, there are certain things in the order that simply cannot be disproven, except through the stupidity of your spouse.

That is, if your spouse says that she fears you, that's all she needs to have the order remain in place. Sometimes you can demonstrate that the other party does really fear you, because they met you at such and such place or allowed you to come into close proximity of them during the time between the issuance of the ex parte order and the hearing.

For instance, suppose you go into court and say, "My spouse called me on last Tuesday and told me to come by and talk, so I did, and she wasn't afraid at all." That statement is evidence that the court must weigh to assess the credibility of the other party. Of course your spouse can deny this, but it's just her word against yours -- which is all most of the protective order cases are anyway. But, the point is, that you've raised a question in the judge's mind as to the truth of the other party's allegations.

Obviously, I would want you to MAKE SOMETHING UP that wasn't true, because that would be PERJURY, which is a crime. But, if what I say were to have happened, then that would be a good thing.

My second bit of advice is that if you read your spouse's declaration/affidavit, and you believe that you can stand before God Almighty and say, "Each and every one of these statements is false," then I STRONGLY encourage you to voluntarily submit to a polygraph test and then offer it into evidence.

If your test shows that you are not lying, the judge will believe you, because most judges with any experience in this area know that NO ONE can beat a polygraph test, especially on emotional issues like this.

Ordinarily, a polygraph is inadmissible in court as evidence of truthfulness without all parties' consent. However, if you offer the polygraph and the other party refuses to admit it, then that offer, by itself, is proof that tends to impeach the credibility of your spouse's allegations, and that's worth almost as much as the results of the test, in evidence.

You can also, just offer to take the test when questioned at the hearing, like this:

Your attorney: Your wife has testified that you have been groping her to try to get her to have sex with you. Is that true?

You: No. And, may I expand on the question?

Judge: I'll allow it.

You: Your honor, each and every statement in my wife's affidavit is false, but I realize that there's no evidence beyond my words to disprove her claims, so I would be willing to submit to a polygraph exam from a court-appointed examiner on every allegation, if the court will allow it.

Judge: Well? Mr. Xattorney, are you willing to allow Mr. husband to take a polygraph on the allegations?

Opposing counsel: Your honor if I could have a moment with my client?

Judge: make it quick.

(quick chat with your spouse)

Opposing counsel: Your honor, we believe that polygraph evidence is unreliable and should not be admitted in this instance.

Your attorney: Maybe Opposing counsel should respond in kind and have his client submit to a polygraph also?

Judge: Ms. Spouse, are you willing to take a polygraph on these allegations?

Ms. Spouse: Uh, well.

Judge: Ms. Spouse, lots of women get very upset when they want a divorce and sometimes they stretch the circumstances out of proportion, because they think it will help get their husband to move on with his life. Is that what happend here?

Ms. Spouse: Uh, well, yes, I just want him gone.

Judge: OK, thank you. I suggest that Mr. Husband finds himself a new place to live, however I am dismissing this protective order, because I don't see any real threat to Ms. Spouse or the parties children.

Counselors, I suggest that you get together and agree on a temporary custody plan so Mr. Husband can see his child, so I'm ordering mediation between the parents and we will set a status hearing for 30 days from now. Anything further? No? We're ajourned! (bang) Next case, clerk?

END

Yes, it can happen just like the above, but it WON'T happen unless you explain to your attorney what you want, because most attorneys are too chicken to make a play like this. Only if you don't try what I'm suggesting, then you will never beat the protective order, so there's no reason to waste your money trying.

Once again, I strongly recommend that you fight the order as hard as possible, but without doing what I suggest, the best you will do is impress the judge that you "wish" you had evidence, and that isn't enough legally to kick the protective order.

Of course, this is all BULL!@#$, but that's how it works in family law, so you need to get used to it, right now, because it will destroy you mentally if you don't.

>
>2.  I have a Pende Lite hearing the same day.  How should I
>prepare and what should I expect?

See above.

>
>3.  Should I get an apartment?  I can't have my daughter
>sleeping at friends houses.

Your marriage is over, and your spouse is your enemy. However, you should ideally place yourself in the mental state where everything that happens going forward is just business, and you're just trying to save or make money. Whatever decisions you make should be made because you believe that the decision serves your child's interests first and foremost. This will impress the judge because it shows that you are not angry with your spouse. Then, if she gets angry, the judge will see you as the superior parent, because you are emotionally stable.

If you try to emphasize "your rights" over your spouse's, then you will be viewed as hostile and vindictive, and when a man and a woman both do this, the court almost always sides with the woman, because women are generally less physically violent, so the odds are that the woman's anger will not manifest itself in a physically dangerous manner.

Once again, this is all bull!@#$, but get over it now, because if you don't you'll be destroyed looking for "justice." There is NO justice in family law. There is only "the child's best interests," in the judge's opinion.

>4.  All my nieghbors, her friends, her family all know what a
>great husband and father I am and are disgusted with her
>actions.  She admitted to my neighbor she filled the order on
>advice from her lawyer to get back in the house.  Can or how
>can this be used?

If you can get someone from her side of the family to testify against her, that would be fantastic. I will bet you $1,000 right now, that you can't do it. Want to take the bet?

If you can get your neighbor to testify to what he/she heard, and, your neighbor will also testify that your relationship is nothing more than neighbor (i.e., you don't hang out together in any manner), then that would also be very good -- especially if it suggests that the attorney advised her to lie (that would be killer).

But, I'll bet you can't get the neighbor to testify, unless you and the neighbor are "buddies," in which case, the neighbor's testimony will be given little weight by the court.

You may find that people who promise to testify for you, are suddenly unwilling to do so when you tell them when and where they need to show up, or to sign an affidavit. Then if you serve a subpeona for their appearance, they tell you that if you drag them in, that they will tell a different story because they "really don't want to get involved."

Remember, "it's just business." Otherwise you will hate everyone in the world for suddenly not helping you in your darkest hour. This is how real people are in the real world. They don't want to be involved.

>5.  I Love my daughter more than anything in this world.  I've
>been the responsible parent while she's been out partying at
>bars.  What things can I do to ensure Joint legal and Physical
>custoday?

Frankly, if you don't beat this protective order, then you're probably on in a downward spiral already.

If you and your wife work full time, then that would work to your benefit, especially if you get a new residence very close to where the child is living right now. The closer, the better. That way the court can't use distance or time as an ecuse to give the other parent more custody time.

But, if you work and your wife has been staying at home caring for the kid, then my friend, unless you can show that your wife is a clear and present danger to the child, then your action is all over with except for the signatures and you may as well cut your losses right now, because after a long and expensive fight -- you will lose, exactly the same as if you never fought at all.

Once again, this would be true if your wife is seriously mentally ill such that a court evaluator would likely uncover this during the evaluation process. But, for the run o the mill divorce, a working man doesn't stand a chance in hell against a stay at home mom.

Remeber, "It's just business."

>
>6.  My wife is a good mother when convienant.  I want my
>daughter to have a safe place when with her.  Should I agree
>to extra child support or temp spousal to ensure a safe place?

Never offer to pay one penny more than you are forced to by the court. Not for ANYTHING, and NOT EVER!

This doesn't mean you can't give the kid $100 on her birthday when she's 15 and wants a new swimsuit. But, anything else is just an incentive for the other parent to not work and it makes it look like you have disposable income that can be put to use for the child's benefit.

So, don't do it, and if you can stop them, don't let the GRANDPARENTS DO IT EITHER. One of the worst things that can happen is grandpa thinks he can solve everyone's problems by offering daughter-in-law money to care for the kid. This just reinforces in the other parent's mind that your parents believe that you are the bad actor, and it provides your wife with a mental note for why to keep sticking it to you.

And, if the court finds out that grandparents are paying bills that should be your responsibility, the judge may view it similarly ("why is this guy's parent's giving dough to the guy's soon to be x? he must be a real prize.")

It's just business -- unfortunately, everyone around you will try to make it THEIR business, right up until the moment that you need them to help you out. Then they won't want to get involved, and you'll be wondering how the world coud be so frippin' two faced.

Answer: It's just business. In the real world, people think nothing of messing with others as long as they don't have to be involved.

> On principal I have a hard time with spousal, but this isn't
>about me

Spousal support is nothing less than involuntary servitude, in my view. It is pure punishment, which should not be permitted without clear and convincing proof that the support obligor has done something worthy of punishment. But, once again, it's just business, and the court may order it.

In many jurisdictions, you can offer to pay a lump sum up front in return for the other parent's irrevocable waiver of any future spousal support rights. I STRONGLY suggest that you attempt to do this, unless there's ome other legal rational in your jurisdiction under which you can prevent spousal support from being imposed.

My reasoning is that if your spouse is severely injured and becomes permanently disabled, then her spousal support award, which might currently be only for a few years based on the short length of your marriage, could instantly be converted into a LIFETIME OBLIGATION.

This, in fact, was the REAL deal with the Terri Shiavo case, only no one in the media had the testicles to report it. You see, if Shaivo's parents were appointed guardian or Michael divorced Terri while she was "living" on tubes, then Terri's parents would have been able to force Michael to pay lifetime permanent spousal support to keep her on the tubes.

And, that would have almost certainly cause Michael's present relationship, which for all practical purposes was a marriage with kids, to fall apart, if only because his girlfriend would need to protect the kids from being poorly provided for, by getting a child support order against Michael that would be superior to the spousal support order in favor of Terri.

So, the solution, of course, would be to try to get Terri's plug pulled, because that would also cut off the financial obligation.

Oh...what a tangled web...anyway, I'm off track.

If you can't get a waiver of spousal support, you want to pay for a disability insurance policy for your wife, because otherwise, if she's disabled, then you will be !@#$%^!

And, this scenario DOES happen in the real world, so try to dump the spousal support.

I think that about covers it. You have lots to think about, now.

Good luck.

[Justce07]

Thank you so much!  
Just a few more questions.

1. If she moved out, started paying rent to the freinds she moved in with (I have a bank statement showing payment).  Moved a lot of her furniture out.  E-mails for months stating she was leaving.  Then filled the protective order after seeing her lawyer.  Will I be allowed to move back into the house even if she is requesting to stay there until the house sells?

2.  Are letters from character witnesses good to have?

3.  She has admitted to commiting adultery, we decided to work the seperation agreement out between us, now she has filled a complaint for divorce against me for domestic violeance.  Does it matter if I file on adultery against her? If so when should I do it?

4. It is my understanding that she plans on dropping the protective order and trying to reach a settlement at the Pede Lite hearing scheduled on the same day.  Is there anything I should know or be concerned about?

5.  In your response to my first e-mail you said it is almost impossible to win the protective order, but you stated that if she were to call you to talk that would show she does not "have fear".  Well she did asked to meet me and we did.  My protective order says no contact other than text message.  I asked her if we had approval to meet and she said yes.  My lawyer said it doesn't matter that she wanted to meet the court order said text only.  would it be a bad thing to bring up that we met and she wasn't affraid if thats the case?

[socrateaser]

>Thank you so much!  
>Just a few more questions.
>
>1. If she moved out, started paying rent to the freinds she
>moved in with (I have a bank statement showing payment).
>Moved a lot of her furniture out.  E-mails for months stating
>she was leaving.  Then filled the protective order after
>seeing her lawyer.  Will I be allowed to move back into the
>house even if she is requesting to stay there until the house
>sells?

The question before the court is did you commit any act of abuse on your spouse? Whether she moved out first is irrelevant, unless you can show that she had run out of money and couldn't pay her bills. In order to move back into the home, you need to disprove the restraining order and show that you are the preferred day-to-day caretaker for the child.

If you were exercising custody over the child while in the home and she moved out without the child, then that would be proof of your fitness to parent. But, if she moved out with the child, and you didn't immediately go to court to try to have the child returned, then that would show that you are not a very good caretaker, because the child does not deserve to have her life upset by her parents' troubles.

>2.  Are letters from character witnesses good to have?

Evidence of character is inadmissible to prove present conformity with past behavior, except where character is directly at issue. Showing that you're generally a peaceful person does not prove that you didn't commit abuse on the date in question. So, character letters are worthless for the DV hearing.

>3.  She has admitted to commiting adultery, we decided to work
>the seperation agreement out between us, now she has filled a
>complaint for divorce against me for domestic violeance.  Does
>it matter if I file on adultery against her? If so when should
>I do it?

If VA is a state that considers the bad behavior of a spouse in determining the amount of spousal support to award, then yes, you want to allege your spouse' bad behavior, assuming you can prove it. Otherwise, it's irrelevant, except as a rationale to get to a settlement wherein neither party is found to have done a moral wrong to the other (which is nice for the public record, but otherwise worthless).

>4. It is my understanding that she plans on dropping the
>protective order and trying to reach a settlement at the Pede
>Lite hearing scheduled on the same day.  Is there anything I
>should know or be concerned about?

Don't count your chickens. I don't know where your understand comes from -- maybe she thinks that she can get you to agree to let her stay in the home with the child if she drops the DV charge. If so, and that's your only alternative, because you can't disprove her allegations, then you may have to settle on her terms.

However, if she's lying, then I would spare no expense to prove it, because if successful, she will be out and you will be in -- assuming that you were exercising custody with the kids in the house before she fabricated the DV allegations. If that's not the case, then it's likely that the judge will let her back in the house with the kids and keep you out, even if the DV order is dismissed.

[Justce07]

Thank you so much!  
Just a few more questions.

1. If she moved out, started paying rent to the freinds she moved in with (I have a bank statement showing payment).  Moved a lot of her furniture out.  E-mails for months stating she was leaving.  Then filled the protective order after seeing her lawyer.  Will I be allowed to move back into the house even if she is requesting to stay there until the house sells?

2.  Are letters from character witnesses good to have?

3.  She has admitted to commiting adultery, we decided to work the seperation agreement out between us, now she has filled a complaint for divorce against me for domestic violeance.  Does it matter if I file on adultery against her? If so when should I do it?

4. It is my understanding that she plans on dropping the protective order and trying to reach a settlement at the Pede Lite hearing scheduled on the same day.  Is there anything I should know or be concerned about?

5.  In your response to my first e-mail you said it is almost impossible to win the protective order, but you stated that if she were to call you to talk that would show she does not "have fear".  Well she did asked to meet me and we did.  My protective order says no contact other than text message.  I asked her if we had approval to meet and she said yes.  My lawyer said it doesn't matter that she wanted to meet the court order said text only.  would it be a bad thing to bring up that we met and she wasn't affraid if thats the case?

[socrateaser]

>Thank you so much!  
>Just a few more questions.
>
>1. If she moved out, started paying rent to the freinds she
>moved in with (I have a bank statement showing payment).
>Moved a lot of her furniture out.  E-mails for months stating
>she was leaving.  Then filled the protective order after
>seeing her lawyer.  Will I be allowed to move back into the
>house even if she is requesting to stay there until the house
>sells?

The question before the court is did you commit any act of abuse on your spouse? Whether she moved out first is irrelevant, unless you can show that she had run out of money and couldn't pay her bills. In order to move back into the home, you need to disprove the restraining order and show that you are the preferred day-to-day caretaker for the child.

If you were exercising custody over the child while in the home and she moved out without the child, then that would be proof of your fitness to parent. But, if she moved out with the child, and you didn't immediately go to court to try to have the child returned, then that would show that you are not a very good caretaker, because the child does not deserve to have her life upset by her parents' troubles.

>2.  Are letters from character witnesses good to have?

Evidence of character is inadmissible to prove present conformity with past behavior, except where character is directly at issue. Showing that you're generally a peaceful person does not prove that you didn't commit abuse on the date in question. So, character letters are worthless for the DV hearing.

>3.  She has admitted to commiting adultery, we decided to work
>the seperation agreement out between us, now she has filled a
>complaint for divorce against me for domestic violeance.  Does
>it matter if I file on adultery against her? If so when should
>I do it?

If VA is a state that considers the bad behavior of a spouse in determining the amount of spousal support to award, then yes, you want to allege your spouse' bad behavior, assuming you can prove it. Otherwise, it's irrelevant, except as a rationale to get to a settlement wherein neither party is found to have done a moral wrong to the other (which is nice for the public record, but otherwise worthless).

>4. It is my understanding that she plans on dropping the
>protective order and trying to reach a settlement at the Pede
>Lite hearing scheduled on the same day.  Is there anything I
>should know or be concerned about?

Don't count your chickens. I don't know where your understand comes from -- maybe she thinks that she can get you to agree to let her stay in the home with the child if she drops the DV charge. If so, and that's your only alternative, because you can't disprove her allegations, then you may have to settle on her terms.

However, if she's lying, then I would spare no expense to prove it, because if successful, she will be out and you will be in -- assuming that you were exercising custody with the kids in the house before she fabricated the DV allegations. If that's not the case, then it's likely that the judge will let her back in the house with the kids and keep you out, even if the DV order is dismissed.