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Is it truly better to be the petitioner than the respondent? I don't even want the divorce...

(15 Posts)
LegoMummy123 Tue 08-Dec-15 05:24:23

My DH and I have been separated for a bit under a year. I think I am still in disbelief as to how quickly it all unravelled. He has just told me that he will be filing for divorce if I don't. I think he's really sick of me as I fought hard to make him not leave me and our DCs, but I did what I had to do to save my family. It seems like he just wants it all finished as soon as possible so that he 'can move forward'. My friends are insisting that I file so that I have more control over the process. I don't quite understand how I have more control other than the timing of when the decree absolute is filed, and even then that is not by much. Am I really able to simply delay filing the decree nisi as long as I want? I'm afraid to do that as it will make him quite upset and also, could he then not simply withhold paying me the interim child maintenance he has been paying? I would personally prefer to delay the divorce as long as possible (and also to then let the joint assets grow as much as possible as he makes several times more than I do). Although, I don't even understand when we are to calculate the point at which things get divided. I have been avoiding all this, I know. It seems like too much to have to accept. I just don't see how I can delay completing the divorce, and if I really can't then he might as well file for divorce. I don't need the added insult to injury....
Thank you in advance for all your advice.

DancingDuck Tue 08-Dec-15 08:37:57

You really need professional advice on the pros and cons. If you can't afford a lawyer just for advice at this stage, google this issue, and there should be some sound info. Put the country you live in into the search definitions too, so you aren't misled.

Hope things get easier for you.

freida20 Sat 12-Dec-15 18:23:00

I've been advised by a solicitor, (and my Mum who works in a court and has experienced divorce a few years ago) that a starting point for separating finances is normally 50% - this obviously depends on what the 2 of you are willing to agree on and any other circumstances. so for example my Mum owned a house, sold it to buy a new marital home with my step-dad, financially supported him when he was out of work, paid her savings to pay off his business debts and personal debts paid the mortgage herself on the house after he left her for another woman ( a very rich lady) for the following 4/5 years and yet her solicitor advised her that he would still be entitled to half the assets from the house so that was what she agreed. And it was the value at the time of divorce - not at the time that he left - so you are right that it may work in your favour but who can tell!
On the other hand my solicitor has advised that 50% is the starting point so i may get my hubby to agree to less as I have the children to house and look after.
I'm a newbie at all of this - so please don't take any of my comments as fact - just what I've been told so far.

You may be able to get free initial advice from a solicitor about how to proceed or free advice from a CAB

Morganly Sat 12-Dec-15 23:43:45

No, if the children are living with you, you will get more than 50% because of their housing needs and because your income is lower. You need to see a solicitor at least once to find out what you can expect in a divorce settlement. For example, you will probably be entitled to a share of his pension scheme. If he has a high salary he will be accruing a good pension but as primary carer on a lower salary, you won't so you need to make sure that you will not be living in poverty in retirement whilst he has a generous pension. A solicitor will advise you how to go about making sure that all assets are declared and shared fairly.

I can't see what difference it makes about who starts the process. I think your friends are just talking about the psychological effect of you feeling like you are divorcing him rather than him divorcing you.

If he can't wait for 2 years separation, he will have to cite unreasonable behaviour. You will get to see what he is claiming and you can disagree if you want to. You can probably make him wait for the two years if you want. I think you might even be able to make him wait 5 years if you don't agree after 2 years. Check this with your solicitor because I'm not totally sure on that.

My advice is to let him file but get legal advice so that you make sure that both you and your children are financially secure. If he is so desperate to "move on" he needs to make sure his children and you are properly provided for.

Cassawooff Wed 16-Dec-15 10:28:35

I was in exactly your position. I didn't want the divorce and was given an ultimatum like you, if you don't file I will. I did file (for his adultery) rather than let him divorce me for my 'unreasonable behaviour'. It does put you in control of the timetable which is a small benefit. Like you he was a higher earner, and he is also getting frustrated as he is now waiting for me to provide finances etc. I'm unable as I'm struggling and have been signed off work and am in a mess and not coping with all this (but that's another story). Good luck

LegoMummy123 Thu 17-Dec-15 03:16:46

Thank you everyone for your feedback. Cassawooff, I am truly sorry for what you are going through, I feel the same. Is your DH at least still kind to you and do you think this can be done amicably? I know it sounds odd, but I had wished we could have done all this amicably. I suppose I am being naive. If it were so amicable between us, then we likely would not be splitting.
I am still distraught but I know I should focus and move forward, but I just don't know how. All my friends and family have said that I need to get this done and move forward and a quick resolution would be best. I just feel lost still. I am told that I couldn't still love him given how he has treated me, and it's just the fear of the unknown and the change that is holding me back and making me believe that the devil I know is better than the devil I don't. I just don't know. I feel like I don't trust my own judgement anymore. I am seeing a counsellor. It is helping a bit, but is coming along very slowly. I suppose there is no magic solution to all of this.
I did see a lawyer yesterday who said much of what Morganly said that it is mainly psychological. I think theoretically I may have more control of the process and timeline, but in reality I likely won't. My DH has already said that we need to get on with it and that he won't accept me delaying things once I file as he would simply make an application to the court for me to file my finances and/or have his lawyer keep pushing whatever lawyer I use to get on with this (thereby increasing my legal bills!!). It's getting a bit acrimonious between us as he blames me for not accepting it and 'dragging' it out so much and now he is no longer patient or kind. It's all so formal. I sometimes sit and wonder where my husband has gone. A part of me thinks that he is right, that we should just get on with the divorce as there is no reason to cling to a relationship that is now artificial that only I want. I should get a settlement quickly before it degenerates more so that we don't have to go to court. I feel like I know what I have to do, but I just have to get there now. MN helps a lot.

flipper88 Thu 07-Jan-16 21:34:15

Hi folks, unfortunately I'm in a similar situation to some of you and feeling v confused. My husband left my girls and I in June and a few months later said I could divorce him on grounds of his unreasonable behavior.....I refused saying I wasn't ready to. He has now said he is gong to divorce me on the same grounds! The reasons he has given me (in an email for me to check) I fundamentally don't agree with and don't feel comfortable signing a legal document which puts the blame for the failure of the marriage at my door when I did everything I could to save it. I don't understand why he has changed his mind about who is petitioner and who respondent and I don't contest the divorce but wonder if I should insist on being the petitioner? Will the reasons given for the divorce come to light when we sort out the financial settlement for example as they paint me in quite a bad light and I don't want to be at a disadvantage when he has literally made up the reasons??
Help!!

spankme Sun 10-Jan-16 21:05:16

Chill, the reasons for divorce count for nothing when the £ is div'd up. A judge only needs to see that the marriage has irretrievably broken down. My ex fought against all my stated 'unreasonable behaviours' of his but that is irrelevant when it comes to £. It's divided up on a 'needs' basis. Once the ball is rolling, the reasons for divorce are never mentioned again.

Lonecatwithkitten Sun 10-Jan-16 21:27:40

Lego the caution I would put in about delaying is assets can diminish as well as increase. My ExH was a company director earning over 70K driving an expensive car, two rental properties and living in another. Almost overnight he lost his job and has virtually no assets to speak off because he delayed our financial order I am potentially looking at having to give him cash as my assets are now more than his.
Often leaving is not the end of their foolishness.

Minime85 Mon 11-Jan-16 20:08:56

I would want to take the lead and control and file myself. If he has made it clear then why delay? I don't mean to be harsh but it will allow you to move on with your life. You have a new reality and it may not be what you want but it is and you need to accept it as hard as it is. I filed as I was not going to be married to my ex for any longer than necessary after he had chosen to give up on us and leave. Definitely get advice you can get the first 30mins free and it's so worth it. I then filed on my own for the divorce. It sounds like you need the advice re he finances too. Make sure you get what you are due. Good luck

icandothis64 Tue 12-Jan-16 22:05:08

I am currently in a messy divorce myself. Messy because my DH doesn't want to divorce even though he is an alcoholic and was unfaithful. He is refusing to cooperate with the process which is worse for the DCs. Once one partner wants out there is nothing the other party can do to stop it. By burying his head in the sand and not opening or responding to any of my lawyers letters he will ultimately end up worse off financially. The courts won't appreciate it. So don't make the same mistake. Please. Once he files he controls how quickly everything proceeds. Even if you don't sign the divorce acknowledgment, he can have the papers served in you and then continue with the process. This is what I am going through. So actually if you what to slow things downs, then you are better to actually be there petitioner. It may only buy you a few months extra but it will allow you that. So forgive me being so straightforward but I would say man up and do it before he does.
Lots of advice about free lawyer advice. Not all offer that so be careful. I have not used a lawyer for the divorce. It's pretty straight forward. I just got the lawyer to check it and the first consultation, before I filed it. You will need legal advise for the financial order which runs as a separate process parallel process. But the more you can agree directly with DH, there cheaper that will be for you. Again. You can use lawyer to guide you.

Interestingly. A friend told me recently that she has a number of divorced friends Inc herself. In every case, regardless whether they spend £50k or £5k on their legal process, they all ended up with roughly 65% of marital assets. All in same situation as you as the DH as the lower earner. So keep that in mind esp if a lawyer promises you lots more than that and then runs you up a huge legal bill. Of course your circumstances Amy be very different.

Good luck.

icandothis64 Tue 12-Jan-16 22:06:45

Sorry. THAT should have said the DH WAS THE HIGHER EARNER.

LegoMummy123 Thu 07-Jul-16 06:13:57

Update: thank you all who responded. I thought I would provide an update on my situation. I filed for divorce. Yes, it certainly felt better to be the petitioner (degrees of awful I suppose). I am trying to separate my anger and pain from the legal process. It does have to just get done. I went to see four lawyers as I couldn't decide who to select. In the beginning the said vastly different possibilities but when I asked more pointed questions and I gave them numbers to work with, then they were all within the same range of what I could expect. So it really may not matter how expensive your lawyer is as either you come to an agreement with your H (which I think depends more on the 2 of you than the lawyers) or you go to court, in which case you may also need a barrister and you will spend a fortune. All the lawyers said that our profile is not the type of case to go to court. They also said that I would not get as much now as I would have ten years ago and there is an expectation for me to be independent within a few years so I can't expect spousal maintenance for too long (it seems to range from 2 to 4 years, and I could potentially ask for an upfront payment to make up for a lesser amount). I would get between 50 to 55 percent of assets realistically (although in the initial discussions a couple of them said I could get 60 percent but seem to have retracted from that position). My H makes more than the maximum so the child maintenance calculator can be relied on but the monthly range doesn't differ between the lawyers by more than a few hundred. So a bit disappointing (in knowing that I won't get huge money and he won't be suffering too much) but also a bit of a relief as there does seem to be some predictability in the process. They also echoed what one MN post suggested that the courts don't look fondly on people who willfully delay the process (I asked what if I didn't deal with the financial order so that I could let his assets and savings increase so I have a bigger share). I was told that if the court believed that was my motivation to delay acting on the finances then they could simply adjust the division so that I didn't gain from the delay. I have come away thinking that it has not served me well in this to be equally well educated as my H, with a career (which did get compromised to have two children but I still make a good salary and apparently I am told I have good future earning potential even if I won't be able to match my H, which no longer seems to be the main test, it is no longer about future equalisation).
None of this has been what I had wanted and I feel my life and lifestyle and future are being destroyed without me being able to have a fair say in it. My friends are telling me there wasn't a marriage to save if my H really wanted out as a marriage takes two willing participants. I can't force him to love me. It's so hard to accept. That is the worst of it. Not really the money, but that he doesn't love me anymore. My counsellor says I have to separate my feelings of pain and rejection from the legal process of the divorce. I know she is correct but it is hard to manage. I will feel better when this is all over. H has been overly business-like about it all, which also bothers me, but I suppose it is to be expected. He's also helping with the children far more than he ever did when we lived together. He now (finally) cherishes the time he has with them. I am hoping to have all this sorted soon. He has his advice and I have mine and now we will have to negotiate the details ourselves and perhaps with our lawyers if things get ugly between us, but I know they can't as we are first and foremost parents to our children and they have to see that we can behave politely with each other. I may have been a shitty wife but I refuse to be a shitty mother. I suppose that is my new motto :-)

I suppose I was looking for some encouraging words, advice and opinions as I go through the last hurdle of this nightmare ordeal.

Hellothereitsme Mon 11-Jul-16 21:08:11

Well done on getting this far. I also have started the divorce as it was time and we had been apart 4 years. I also need financial security. My solicitors have said the same as yours. 50% to start with. I also have a good career and have been told that it isn't about equalisation but need. A judge would look at what I need. And as I could work full time and progress in my career my need in the future is less than it is immediately. Therefore any spousal mtmce will be limited if at all. His solicitor has told him to pay the CSM figures and no more. I will be glad when it is all over. We have had one mediation session but have agreed that it is better if we can talk as mediation is £400 a session and neither of us have that kind of money spare. The only consolation is that I'm glad I do have a decent job. It seems that women are now expected to have the children and then when their H leave them magically get a well paid job.

Don't worry about being sad. At the mediation I cried and the mediator expressed surprise that I was still upset 4 years later. I looked at her and said that I was upset as I never thought I would be in this situation negotiating with someone I loved for money. I felt like I had failed. She suggested I talk to someone about it.

Cassawooff Sun 17-Jul-16 03:14:32

Hi Lego thanks for the update.

We've still not sorted our divorce and it has got ugly. Everything you say sounds so familiar. I've stopped talking to people now as they are bored of it, but I'm still a mess. It is the betrayal and rejection that hurts most. We're arguing over child custody and he's refusing the return them tonight - so another fight ahead. sad
Thanks for setting out your advice, very helpful. I think you are doing very well. It's a good mantra.

As much as it is horrible, I suppose sorting the divorce will give closure. It's sounds like you've been really sensible and proactive there. Not sure I've got any advice, but happy to encourage and know there are others out there going through the same thing.

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