Heading towards divorce in a civil war – need advice please!
Hi folks,
Divorce is inevitable and she is out for revenge. There is no case of domestic violence or infidelity or any form of abuse or deny access to fund, no reasons are given. I am the sole bread winner and been supporting and providing for the last 2 decades. we have 2 children 16 and 7 and assets worth over 1.0M.
I read the divorce kit provided by this wonderful website and quite frankly what I could be facing scared the hell out of me. She is after the money as she doesn’t work and her family are asking for money. She is making my life an epic hell at the moment.
If we divorce now I will end up paying the child care and spousal maintenance.
I contacted two male lawyers trying to get a legal advice and they both advised against initiating a divorce.
My main concern is the welfare of the children as the money is theirs. I was even thinking of putting some fund away or send it overseas to to cater for the children. Is that reliable to do or it might backfire on me?
We both are migrants here without any families in New Zealand, so we don’t have the option of living with family.
One thing to add: I have been very careful in my communication with her, avoiding her as much as possible also she is trying to provoke me. I never sweared or threatened her. I know she does voice record all of our conversations.
I also have a written evidence from her social media showing she is literally planning a war against me and waiting for the right moment to struck and leave the country. Will that be of use in the court?
What you guys can advice based on your experience.
Thanks and Regards,
Marion
I am not a lawyer but from my own disastrous de facto experience, I would definitely have a backup plan if your ex ever tried to freeze bank accounts. Remember money can be easily traced, but would definitely transfer some money into a bank account in case. Also court will look into any funds transferred after your ex says she left you.
The one book I recommended is “Relationship Dissolution” 2nd Edition 2014 From Lexis Nexis. If in Auckland Ph (09)368 9536. I recall about $80-$90 They at Lv 12, 57-59 Fort St, CBD Auckland
Court cases in family Court
http://www.nzlii.org/nz/cases/NZFC/
Family Court cases appealed to higher Court.
https://forms.justice.govt.nz/jdo/Search.jsp
Family Court Rules
http://www.legislation.govt.nz/regulation/public/2002/0261/latest/DLM142995.html
https://www.justice.govt.nz/family/about/file-and-serve-documents/
Good info, doesn’t appear to have been updated since around 2006, but good info. Sub $45 for 3 mths
http://www.netlaw.co.nz/
Also remember every email /ph call to your ex could be used against you in court, so structure your emails accordingly..
AND REMEMBER IT APPEARS IT IS NOT A CRIME FOR PEOPLE TO LIE IN THE FAMILY COURT, AS YOU ARE GOING TO FIND OUT.
I haven’t gone down this path, but trying court mediation to try and resolve matters might be worth a try.
If kids are with you and inhouse, go for without notice for interim occupation and furniture order….
You will need to file a assets and liability schedule..
Will write more later. Just taking my daughter to watch fireworks display
Comment by Kiwi Wonderboy — Sat 31st December 2016 @ 10:21 pm
quit your job and be a stay-at-home dad , don’t give up any less than 50% of your children even if it costs you your job as CS will be the killer. any relationship property and debt will have to be shared so don’t be scared to make life choices and be prepared. If DV comes up she has no proof or evidence and sometimes its easier to say nothing then to get into any arguments and firstly insist she leaves the family home, stand your home ground with your home and your children.
Don’t initiate lawyers unless you can’t agree, there are numerous steps to take before then as lawyers are costly and can make things worse before they get better. Insist on mediation and counselling and do your part a.s.a.p.
Lastly, don’t give her any ‘good will’ settlements and the less communication the best once you start your separation. If you happen seperate an either you or her moves out ensure you have someone with you like a friend that can witness any conversations or arguments going on.
Any valuable assets I would start doing a stock take, this could include even stuff in your kitchen, bedroom, etc, assume the worst, but keep and open mind. Don’t ever show weakness or be nice, hold your ground.
Remember, only one parent can apply for the single parent benefit, so the day you agree to move on – quit your job, apply for the SPB, you can apply for an emergency benefit on the basis your relationship has ended, there will be a stand down period maybe of a month but contact your bank and let them know asap and if you have any joint bank accounts, stop them immediately – the banks will assist with this, if she leaves then so does your bank account.
Comment by goose — Sat 31st December 2016 @ 10:41 pm
Spousal Support? Which country are you from?
Keep 50/50 care of the kids, or go for sole custody. the 16yo can decide where to live so if they stay with you the courts might look at not splitting up the siblings.
You can’t do much but go through the process.
Comment by too tired — Sat 31st December 2016 @ 11:16 pm
Hi, I see your post from a different vantage point. You say there is no violence and or abuse – etc. Well in my experience the lack of those things can in itself be portrayed as if violence and abuse, not to mention manipulative, controlling etc. You see the definition of the whole dictionary becomes fluid when it comes to these matters. DO NOT TAKE ANYTHING FOR GRANTED, JUST BECAUSE YOU KNOW IT TO BE TRUE. One good thing arising from these matters is you find out who your true friends are – the rest will take to the hills at the first sniff of you being in any bother. Celebrate their departure. But as for the nuts and bolts of this, I have nothing to recommend. The possibilities against you are as may and varied as the human imagination is capable of dreaming up. Yes dreaming – No! there needs not be the slightest credibility to it, yet it will be believed.
Comment by Jerry — Sun 1st January 2017 @ 2:34 pm
Thank “Kiwi Wonderboy” for your replay.
I am in Auckland and I tried that number but it seems out of order.
I didn’t quite get “interim occupation and furniture order” and what would that do for me? We both don’t have family here. we both are migrants. We didn’t even register our marriage in NZ court and the our original marriage from our native country has totally different rules and conditions, but I know it’s not applicable here.
Are you saying I should initiate the divorce by going through court mediation? What that mediation will do?
I have been very careful in my communication with her, avoiding her as much as possible also she is trying to provoke me. I never sweared or threatened her. I know she does voice record all of our conversation. I have written evidence from her social media showing she is literally planning a war against me and waiting for the right moment to struck and leave the country. Will that be of use in the court?
Also, if I transfer funds now to overseas will that be used traced and used to offset my share from the property? I am hugely worried about the children and what they will to go through.
Thanks heaps for your time.
Marion
Comment by Marion — Sun 1st January 2017 @ 4:06 pm
Thanks “goose” for your reply.
I am quite overwhelmed with what you said and I like the tone of it. I just need to understand how quitting my job will help here?
I am self-employed with around $160K/annul, her name is in my solo business (for tax benefit, she is passive partner). Is that a tactic I should use for a limited time, like 1 year for example? I honestly thought about quitting my job and go back to uni to get a post graduate degree to avoid CS, will that help? I still need to get working again.
The trouble is that we both have no family here we could live with if one of us leaves, so anyone leaves the house should rent a place.
I have a rental property, if she files for divorce and I insist on staying at home woulddn’t she be able to ask the court to sell up both properties to get her 50%? In this case what would I benefit?
Sorry I am trying to see all possible course of actions.
Thanks you for your time.
Marion
Comment by Marion — Sun 1st January 2017 @ 6:20 pm
Thanks ‘too tired” for your reply.
Isn’t “Spousal maintenance” real here NZ? We both are immigrants.
The 16yo is not favoring the mother because they see her hostile attitude every day. On what ground I can ask for 50% custody?
Thanks for your time.
Marion
Comment by Marion — Sun 1st January 2017 @ 6:24 pm
Thanks “Jerry” for your reply,
I am afraid I could really understand your comment. There is no case of violence or any form of abuse. Her main reasons is different personalities.
Thanks for your time.
Marion
Comment by Marion — Sun 1st January 2017 @ 6:27 pm
Marion. If you are in Auckland, click the link at the top right hand side of this page “Support for Men”. There is a meeting at the Hillsborough Bowling Club on Thursday evenings at 7-00pm. There is a phone number and contact there. Call it and find out when the meetings start again as we have taken a bit of a Christmas break.
Comment by golfa — Sun 1st January 2017 @ 7:02 pm
Her lawyer (when she gets one) and she aint recording everything for nothing will want money.
They may want to get on the legal aid gravey train so a “with out notice application” will most likely be made against you. Alleged violence of some sort will be the way to go for her. It’s ok if she lies in court – she is mummy. Be aware that is most likely coming.
Shared care is the way to go here and the 16 year old will do his/her own thing and tell the C4c parasite who may well pervert the course of justice (as it appears our one did) because there are no rules as such because the judges have their juducial conduct commissioner overseeing them and you can’t have faith in that office.
Lawyers have the Law Society (buddy brigade) to cover their arse.
The 7 year old child is the concern.
She ,may take the child overseas later when she gets money.
You must apply for shared care at least, perhaps full time care.
The assets/ the money that is, prepare to loose your shirt but try to keep your socks.
Stay at home for the children.
Resign from the business
Give her your shares or sell them but stop working if you can (at least for a while) go on a benefit so you can parent the children properly.
Perhaps someone you know and trust big time can start a company (doing the same thing) and you can work for it essentially doing the same thing as before.
Do your best for the children with at least shared care and thank your lucky stars you have two children and you can do a little jig as she leaves for the last time to go and find another camel to get her through the dessert of life and rejoice because it’s no longer you.
Good luck
Regards
Comment by Simon grant — Mon 2nd January 2017 @ 6:59 am
Thanks “Simon” for your thoughts, really appreciate it. You are right, the 7th is my main concern and she is very attached to me.
I am still pondering on how quitting my job will be better in this case? Is it to avoid CS or to gain shared custody?
I was thinking of going to Autralia, sell the properties and buy her a house to stay with the children. I don’t want the children to suffer because of this.
I am trying to think straight but the situation is very overwhelming.
Thanks for your time,
Marion,
Comment by Marion — Mon 2nd January 2017 @ 7:44 am
Thanks “golfa”, I contacted the group.
– Marion
Comment by Marion — Mon 2nd January 2017 @ 7:44 am
Hi “Simon grant”, can you please elaborate on “Give her your shares or sell them” ?What do you mean by that?
Thanks,
Marion
Comment by Marion — Mon 2nd January 2017 @ 6:42 pm
Marion, the court very rarely forces a property sale, only in extreme cases (just like care arrangements for children) and normally the lawyers assist with settlement of any property matters, but this won’t happen until your care arrangements are agreed to, If you can’t agree on the care arrangements via any counselling programs like fair way resolution or other domestic resolution services is when it gets pushed back to courts, however normally the unreasonable parent gets what they deserve in front of a family court judge. I think you need to make a list of potential issues from this thread and be prepared, even maybe make an appointment with a family law lawyer and discuss potential issues that arise from a situation like this.
just remember, you will see the nasty side of your wife once this all starts and record, document everything and if you can have someone to witness any contact because you may think DV is not in the mix, but it only takes one small argument for her to serve you PSO (police safety order) and she will get the house, the kids to herself for 28 days, by that time possession is 9/10ths of the law and it will be much harder.
Plan Plan Plan.
Comment by goose — Mon 2nd January 2017 @ 7:57 pm
Marion, if your at all concerned about her leaving the country with the kids you can apply for a without notice prevention removal order for the kids, you just need proof that they are enrolled at school. She then can’t leave the country with the kids legally, however if she does, the hague convention can bring the children back.
Please remember, first in, best dressed and this applies to solo parent benefits, child support, etc.
(only one parent can get the solo parent benefit, so if you apply and get it first – she can’t get it)
Comment by goose — Mon 2nd January 2017 @ 8:04 pm
Hi Marion.
I reply as follows and remember I am not a lawyer and this is free advice.
Download the following and study them 🙂
Family Court Rules 2002
http://www.legislation.govt.nz/regulation/public/2002/0261/latest/DLM142995.html
Family Proceedings Act 1980
http://www.legislation.govt.nz/act/public/1980/0094/latest/DLM39723.html
Worth a read
http://www.netlaw.co.nz/family.cfm?PageID=239
http://www.nzlii.org/nz/cases/NZFC/
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I am in Auckland and I tried that number but it seems out of order.
Reply…
Try Lexis Nexis on main line ph 368-9512.
website is lexisnexis.co.nz but I think only 0800#.
Also main Auckland public library in CBD has good references, also might have Relationship Dissolution 2nd edition (B Aitkin & Ors) 2014 available, or an earlier version (2009) which will get you up to speed for the war you appear to be heading for.)
If you go into the main Auck library, a good source of info I found is located Lv 1 far left hand cnr up by the window desks, also there are a few books in main isles under law (I think)
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I didn’t quite get “interim occupation and furniture order” and what would that do for me? We both don’t have family here. we both are migrants. We didn’t even register our marriage in NZ court and your original marriage from our native country has totally different rules and conditions, but I know it’s not applicable here.
Reply…..
If you want to remain in your family home with both your kids to give them some sort of normality ie schooling, close to their friends etc I suggest applying for;
(A) ” Without Notice Application For An Occupation Order And Ancillary Furniture Order under Sections 8, 27 28A and 28B of the Property (Relationships) Act 1976 ….. (“PRA”)
You will also file at the same time in Court;
(B) “Affidavit of Marion ???? In Support of Without Notice Application For An Order For An Occupation Order And Ancillary Furniture Order”. The affidavit is your side of events why you should be granted order.
Also in your affidavit you might like to say, you are applying “In the best interest of our children because I would like to continue to provide them with a stable home environment and protection from avoidable emotional and psychological harm” ….
You might also might want to think about putting in your affidavit” that you are more than willing for your ex-wife to remain living in the family home and have her own room, in an attempt to reconcile.
Keep it mind…. it will come up in Court who paid the mortgage, outgoings after separation. Also, the question of “occupational rent” you might be liable for. Remember you living in the house, not your wife (I presume)…
Also, your wife could easily claim you emotionally forced her out, feared for her safety and she had nowhere to live and left her destitute and begging you for money….. you don’t believe me….. wait and see. Reality as you know it doesn’t count.
How much have you offered her…. The court could see she had no other alternative except to apply to WINZ and get legal aid, because your a nasty individual who was a smart man who never hit his wife but emotionally destroyed her… what you say does not count remember … Print and keep your emails.
Note.
1.
The Without Notice application is heard by the Judge or Registrar and is only an interim/temporary measure. The Court will set a time for main hearing and you can ask for 7 days for Respondent (your wife) to file a notice of defence & affidavit in support of her defence. (You are the Applicant)…
2. You will need file copy of your marriage cert as an exhibit in affidavit also
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Are you saying I should initiate the divorce by going through court mediation? What that mediation will do?
Reply….
You might want to show the Court you are a sane, calm and rational person and let the court know you are applying to use the Courts mediation service “to resolve as inexpensively, simply, and speedily as is consistent with justice and are available for an urgent round-table meeting as an alternative to settling your matrimonial relationship affairs”.
refer https://www.google.co.nz/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=family%20court%20mediation%20nz
I don’t know whether being the Applicant or Respondent is best… If you file first you are the Applicant. All I know if you are the Respondent you are fighting a rear guard action. The Applicant gets to respond to the Respondents affidavit, and if you leave out or can’t correlate all your evidence in time, it’s hard to get new evidence admitted in Court and need to file application to do so. I have always been the Applicant…. You need to decide, and recall why the lawyers you spoke to said not to file first. On 3 occassions 🙂 my lawyers always filed first.
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I have been very careful in my communication with her, avoiding her as much as possible also she is trying to provoke me. I never swore or threatened her. I know she does voice record all of our conversation. I have written evidence from her social media showing she is literally planning a war against me and waiting for the right moment to struck and leave the country. Will that be of use in the court?
Reply…. You say you never provoked her, swore at her or threatened her. Wait till you get the first affidavit from her…. You will be shell shocked… From what you’ve already said you in for the ride of your life and it not going to be nice, I presume your ex will already be getting advice on basically how to shaft you in broad daylight and the truth and lies are the same. She can swear in her affidavit whatever your ex wants to say.
Download this ph app TapeACall… and record every call. Get the paid ver about $12 for unlimited call record time. Free ver records only about 2 min.
https://www.google.co.nz/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=tapeacall%20review
It is not a crime to record ph calls between 2 people even if otherperson not aware.
Plus there are High, Supreme Court decisions where they been admissible.
Get from LexisNexis or Auckland library “Cross on Evidence” 9th Edition (Don Mathieson QC)2013
Also read the Evidence Act.
http://legislation.govt.nz/act/public/2006/0069/40.0/DLM393463.html
Leaving the Country….
You need to take steps to stop your children being removed from NZ, even if you or your ex ends up with custody of the kids, or she changes her strategy and says she wants to remarry you and blames your mother-in-law for the path she went down 🙂
If you got proof or someone told you or you understand this may occur file in Court
“Without Notice Application For Prevention Of Removal Of Child From New Zealand And The (insert your suburb). Under Section 77, Care of Children Act 2004.
You will also need file affidavit for same and say why in your words.
http://www.legislation.govt.nz/act/public/2004/0090/55.0/DLM317233.html
https://www.google.co.nz/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=removing%20children%20from%20new%20zealand
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Also, if I transfer funds now to overseas will that be used traced and used to offset my share from the property? I am hugely worried about the children and what they will to go through.
Thanks heaps for your time.
Reply
Yes funds easily traced, and you will likely have to provide court with bank statements, especially after your separation as to why / where you have spent money…. Having cash is better than in the bank especially if bank accounts get frozen. Just keep every receipt.
50/50 rule regarding assets….. It is not always that and could even be 70/30 like has happened in court cases…. If your wife gave up a promising career to stay at home and raise the children while you furthered your career, you might find you join the 70/30 club with you being in the 30% club.
If you lent money to your family or they did work for you, now might be a good time to repay them, but naturally you would need the paperwork to show the Court.
The best advice I can give is click on the links I’ve provided previously and now and read read read and read. You know your marriage/circumstances better than any lawyer and remember a lawyer is not your friend… its another job for them…. they just know the law better, so you need try level the playing field…. If you talk to a family court lawyer, ask them how many cases they had in the last 2 yrs… then how many they won… then email them and confirm what they told you.
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Besides the Occupation/Furniture Application and Non-removal of children Application you need to file “Without Notice Application For Parenting Orders Section 47 & 48 Of Care of Children Act 2004 and also affidavit. Every Application for Court Orders needs an affidavit. You can combine I recall up to 3 applications for order, but I always been told keep separate so you stay focused and the enemy doesn’t confuse you. you simply refer to your other affidavit paragraphs when required instead of retyping everything 🙂
Care of Children Act http://www.legislation.govt.nz/act/public/2004/0090/latest/whole.html
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Google is your best friend and the various justice depts and family court web site has all the info you need… It just hrs and hrs of reading to quickly get up to speed, but I would file first and read up on the law after filing.. Just remember your friends might console you, but can’t help unless they been down the same path you being dragged. The road ahead for you is lonely, I’m sad to say
All the best….
Comment by Kiwi Wonderboy — Mon 2nd January 2017 @ 9:33 pm
Thanks “Andy” for taking the time to reply to me, really appreciate it. I will go through it few times to absorb it and take notes. You probably realize that the more I know about these issues the more questions will arise, thank you so much for all your help.
– Marion
Comment by Marion — Tue 3rd January 2017 @ 3:09 pm
Hi all, I am still pondering on how quitting my job and risking my career will benefit my position for the property and children?
Thanks to any explanation.
– Marion
Comment by Marion — Tue 3rd January 2017 @ 9:57 pm
Hi Marion… Food for thought
The situation you facing is that your ex can claim she has been a stay at home mum all the kids life and is better suited to raising the kids, and with you paying spousal support she will not be a burden on the state.
There are that many variables and nothing is guaranteed. Hence if you quit your job beforehand to raise the kids you might find the Court gives the day to day care of your children to your ex, plus you have to pay her maintenance, and if you quit your job beforehand you could end up very stressed out….
I wouldn’t quit your job until you get day to day care of your kids. Maybe you have a sympathetic boss who will let you work part time from home…. but I still wouldn’t explore that option until you find out if you get day to day care of your kids.
Plus your kids will be asked who they want to live with and why and it going to get really nasty….. that’s why applying to Court for mediation might be worth a try as if you go to court all hell is going to break loose.
As for your property, kiss goodbye to half, less mortgages/loan repayments. Also make an appointment with your bank manager / home mort financer and explain the situation. Remember if your home is in your and ex name she owns half and can lead to problems.
Although you both might have signed the mort docs, your ex could claim that you are abusive and she feels threatened by you, but needs to borrow against her half share of the equity in your home…. and a sympathetic bank officer will allow her to borrow and your not told….If people/lawyers tell you that BS, take a bet against them and I’ll give you the proof of that situation actually happening.
Good luck
Comment by Andy — Tue 3rd January 2017 @ 10:47 pm
Thanks Andy,
It’s already stressful as hell. Both properties (rental and home) are in my name only. We don’t have joint account but she has access to my cash flow card and Visa card to spend at her will. I monitor the transactions and could block them if I see anything suspecious.
She contributed nothing to the bills, although she had part time job she kept her wages for herself. She turned down a very good job offer few months ago for no good reason (because she has nothing to lose).
Quitting my job will deliver a is davistating blow to my career at this stage. Will affect the education of my eldest and it won’t have that negative effect on her.
Even if I end up paying half of my wages as CS and SM I am better off keeping my job until late the little one reaches 18.
All my hard work for the last 20 years building future nest for the kids will vanish, and that what is burning me from inside. It’s a reality situation I have to deal with.
She is not reasonable or sensible. I have been trying to normalize the relationship with her for months but she wouldn’t resign her attitude, all of her friends here are disagreeing with her, but she wouldn’t fudge with all the daily poison doses she gets from her family.
I am trying to gather as much information and ideas as possible to be prepared and decide the course of action.
Thanks for your time,
– Marion
Comment by Marion — Wed 4th January 2017 @ 7:21 am
Hey there Marion. Looks like great advice from all the boys.
She is going to lie in Court and accuse you of DV be sure of that. She is likely filing a trespass notice as we speak. Once she has that, the Court will have no problem giving her the protection order, you then are unlikely to see your children for a couple of months in which time she will have taken children wherever she decides. The courts can only tell her to bring the children back to NZ despite the Hague convention. I personally would do as suggested, apply for emergency benefit, find a home where you can receive mail and then get a trespass notice against her at this address. Take your children there and once there do not communicate with her. File a without notice protection order and then you are in a much better position than her. The police can enforce orders and notices if you have them. Do not communicate with her on text,emails, letters. This will be difficult for you, however the alternative is much worse. Yes you have to leave your job for a few weeks but you can go back to it. Do it tomorrow morning
Comment by cam — Wed 11th January 2017 @ 10:30 pm