Saturday, February 5, 2011

What Can I Expect?

Divorcing someone who has Borderline Personality Disorder presents some unique challenges.  But there are some common patterns too.

In this post, common steps along this path are listed, and some terms are defined in layman’s words.



I'll write in more detail soon about each of these topics.


The divorce process varies from place to place and situation to situation – the sequence isn’t always the same – so it’s usually best to consult a local attorney.

1  The straw that breaks the camel’s back

Something happens that causes one party to decide to file for divorce.  Pretty often, when one party has BPD or a similar disorder, this may involve violence, threats, or accusations.  Criminal charges may be filed, or one party may get a restraining order or order of protection against the other.

Who files for divorce may or may not matter.  But sometimes one party may file because they think it will put them in a stronger position, or because they think the other party will be “taught a lesson” if they file.



  DV = Domestic Violence


  OP or OOP = Order Of Protection


  RO or PO = Restraining Order or Protection Order


  TRO or TPO = Temporary Restraining Order or Temporary Protection Order


2  Getting a lawyer

You don’t have to get a lawyer.  If there are no children involved, and not much money, and if both parties are reasonable, it may be best to use no lawyers, or in some US states you can find a single lawyer who can help you work out a settlement.  That approach can save many thousands of dollars, and lots of stress.

In high-conflict divorces, if you have a child together and don’t agree about custody, or if there is a lot of money at stake, you will probably need a lawyer’s help.



Most divorces involving a BPD sufferer fall into the "high-conflict" category, so if your spouse has BPD, you will probably need a lawyer before it's over.


  Pro se =  Without a lawyer;  representing yourself

3  Filing for divorce

This can be done with or without a lawyer.  The forms may be available from the courthouse or online, and if you have questions someone at the courthouse can probably answer them (but they can't give you legal advice).



Filing for divorce usually involves a document that includes complaints against the other party, and a requested settlement, addressing financial issues and custody issues if there are minor children (usually under 18).  The document is often called a "petition", such as "Petition For Dissolution Of Marriage".

4  Service

Once the papers have been filed by one party, copies are delivered to the other party formally, so they can't say they didn't get them.

They may be served by a process server or by the police.  Or the receiving party may come get them in order to avoid the embarrassment of being served at work or in public.

In some US states filing automatically sets in motion the process of court involvement.  In others the filing just sits there until the party who filed for divorce arranges to have them served.



Some lawyers do it the easy way - FAX or mail the papers to the other party.  That may be OK, but there is a risk the other party may say "I never got those papers!".  To make sure the process moves forward, it is best to have the papers served.


5  Response

This is similar to Petition For Dissolution, and also often contains complaints or accusations against the party who filed first.



If your spouse files for divorce, and you don’t file your response in time, you can lose the case by default, and the party who filed gets what they asked for.

6  Temporary orders

Not all divorcing couples get temporary orders.  Either party can file a motion for temporary orders, with requests as to financial and custody issues. The other party can respond in writing, and there may be a hearing so the judge can decide.

In high-conflict divorces, it is usually best to get temporary orders set soon, so conflict will be reduced, and if there are children involved, both parents can see them regularly.



Later in the process, the judge may use the Temporary Orders as the basis for a permanent court order, thinking, "Well it's worked OK so far...".  So it is best to make sure the temporary orders are acceptable for you in every way.


  TO = Temporary Order


7  Discovery

Both sides can demand information from the other side, like bank records, and usually it has to be given.



If you don’t have the information requested, you can say that, but if you have a way to get it you are usually required to provide it.

The discovery process may include "interrogatories" - questions each party must answer in writing and truthfully.  Interrogatories may include financial questions and questions about your past that may reflect on your ability to be a good parent.

8  Depositions

Most divorces don’t include depositions, but they can help get information out in the open.  Either party can file a motion, and if the judge approves it, both parties may be required to answer questions under oath.

The questions are asked by the other party’s lawyer.  You may be under oath for two to four hours, with breaks.  The judge is probably not present, but a record is kept, and your answers can be checked out before the trial.

If there are serious disagreements – like accusations that either party has broken the law or is unfit as a parent – these issues can be brought to light in depositions.

9  Mediation

This might be voluntary – a way the parties try to keep things simple and cheap – or it might be ordered by the court.  In some US states it’s a requirement in every divorce.

“Mediation” usually means that a court-appointed mediator tries to get the parties to agree to at least some things.  The mediator may have no authority to make you agree to anything, but if you agree and sign a document, and the judge approves it, it is binding.

Lots of things may be said during the mediation process, but the mediator and her notes may not be available to use in court.  It may not be possible to subpoena the mediator, so anything said in mediation may remain secret



The mediation process varies a lot from state to state.  It is best to find out exactly how it works where you live, so you will know the best way to participate.


10  Arbitration

In most US states “arbitration” means a binding decision made by the court-appointed arbitrator after talking with both parties.  The parties may agree to this process or it may be ordered by the court.

11  Custody evaluation

Only if you have kids together of course.

Either party might request a Custody Evaluation, and the other party can agree, or the judge can decide.  A Custody Evaluator is appointed – usually a psychologist known to the court.

A Custody Evaluation can cost about $5,000US or more.  There may be additional costs if the evaluation takes a long time.  One of the parties may pay for it or the judge may order them to split the cost.  It usually takes from a few weeks to several months, and involves interviews with both parents and with the kids, and maybe with other people who know the family well.

The Custody Evaluation generally writes a report summarizing the findings, with a recommendation as to custody.  The recommendation will probably have a lot of influence on the judge’s decision if the case goes to court, so the parties may use it as the basis for a settlement if they want to save the cost of a trial.

  CE = Custody Evaluation or Custody Evaluator


12  Psych evals

The court or the CE can ask both parties to submit to a psychological evaluation – a formal test like the MMPI-2 (Minnesota Multiphasic Personality Index) – about 500 either/or questions that take about two hours to finish.

The results are usually not perfect for either party.  They can indicate serious problems like BPD or another personality disorder, or smaller issues.

13  Parenting plan

Either party can propose a Parenting Plan.  You can find examples online.  It usually includes a schedule for where the kids will be during the week (Monday through Friday) and on the weekends;  on holidays;  and vacation times.  Plus issues related to religion, health care, etc.

Usually the courts prefer that a young child not be away from either parent for more than a few days, so common schedules in the US include 5-2-2-5 (with Dad for 5 days, then with Mom for 2, then with Dad for 2 days, then with Mom for 5).  Older kids might have a 7-7 schedule (with Dad for a week, then with Mom for a week).  Or one parent may be given primary custody, with the other parent caring for the child only on alternate weekends and possibly an evening or overnight in between.

Again, this is only needed if you have kids in common.

  EOW = Every Other Weekend

14  Guardian ad litem

The judge may appoint an attorney to represent the best interests of the child.  The GAL can spend time with the child and with both parents, and may strongly influence the judge’s decisions.

  CA = Child Advocate (similar to GAL)

  GAL = Guardian Ad Litem

  LG = Law Guardian (similar to a GAL)


15  Property division

In most US states the law calls for an “equitable” division of property.  That doesn’t always mean “equal” because a number of factors, such as the income of the parties, can influence the judge to split the property differently.

Usually the couple’s “net assets” are calculated by subtracting debts, like credit card bills, from assets, like the equity in the house.  Assets and debts accumulated during the marriage are included, but assets and debts brought into the marriage by the parties are usually not included.

Inheritance is usually considered the property of just one party, not "marital" property.

  DP = Division of Property

16  Negotiation

In a divorce, almost everything is negotiable, and in the US more than 90% of divorces are settled by negotiation, so there is no need for a trial.  That can save a lot of money and stress.  When you are divorcing someone with BPD, it may be hard to negotiate at first, but as the trial approaches they often become willing to negotiate.

17  Pre-trial conference

The judge may require a conference to try to settle without a trial.  She may indicate how she is likely to rule on the issues, so the parties can decide if they want to accept that or go to trial.  Some issues may be settled in the conference, and the scope of the trial could be reduced to the issues not decided.

The pre-trial conference may involve a “magistrate” not the judge.  The parties may get an indication as to how the judge will rule, or at least good guidance from a neutral party with knowledge of the law.

Sometimes the conference will only involve the lawyers and the judge or magistrate - not the parties themselves.

18  Expert witnesses

This may be an expensive option, but might be the best way to establish some things so the court can't ignore them, like the impact of a parent's untreated personality disorder on the child, or to refute or "impeach" a biased, incompetent or incomplete CE report.

19  Trial

Both parties can call witnesses and submit evidence, but where I live all the evidence has to be shown to the other side in advance, so there are no big surprises like on TV.

20  Final order

The order will include the Parenting Plan, and financial issues.

In some US states, once the court has ruled, you can’t ask the order to be changed for one or two years, unless you can show that something big has changed.

If one party doesn't follow the orders, you can file a Motion For Contempt, and they may be ruled in contempt of court.  That can mean jail or a fine, but jail is rare.  Courts may issue a fine, with the money going to the kids' education fund, so neither party benefits directly.

  CO = Court Order

21  Resources

Most US states have information available online, including the divorce process and the forms you will need.

Many law firms also have good information online.

Here are some sites with further information on these topics:

http://divorcesupport.about.com/od/thedivorceprocess/p/stepstodivorce.htm

http://www.divorcenet.com/states/new_york/anatomy_of_a_divorce

http://www.divorce-law-illinois.com/tellme.html

http://www.divorcesource.com/GA/ARTICLES/cates12.html

http://www.divorcecentral.com/legal/legal_answers_2.html

http://www.illinoislegalaid.org/index.cfm?fuseaction=home.printvideotranscript&webcastxmlfile=archive1870.xml&contentID=1870

http://bpdfamily.com/message_board/index.php?topic=90775.0

An essential book for both you and your lawyer is William A. Eddy's Splitting:  Protecting Yourself While Divorcing A Borderline Or A Narcissist.








I am not a lawyer, and I can't give you legal advice.  This information is based on my personal experience in one US state, and what I understand from reading and talking with others who have been through a divorce with a BPD sufferer.

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