Separation/Divorce... when mediation fails

itsovernow

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I'm due to attend Legal Aid Board mediation shortly. I initiated the separation process. My wife has refused to go to earlier mediation, refuses to discuss anything... (she had refused to attend marriage counselling, also). To be clear: I've left the door open to reconciliation, but she has chosen not to take me up on that. In short, I expect mediation to fail and I'm therefore thinking about the next step.


My legal questions:

1. Shared parenting not just "joint legal custody": I earn €67,000; my wife earns €77,000. We both work 4.5-day weeks in permanent, secure professional jobs. Everybody in my sector does the same weekday; my wife requested a half-day in recent years to do childminding (as I do on my half-day). She has the statutory number of holidays off per year; in my sector I have 4.5 months off (most of which I use to look after the kids). She also works longer hours per day. My job is a so-called "caring" profession dealing with children; her job is very much not. In this context, in Irish law, despite being the man would I have any shot at getting 50:50 shared parenting of my children? I realise "joint legal custody" is now common, but I want us both to share the childminding equally - e.g. 4 days (Parent 1) /3 days (Parent 2)/3 days (Parent 1)/ 4 days (Parent 2), etc. The distinction is very important. Shared parenting is very common on the continent, most especially in Belgium and Sweden, and the evidence is strongly supportive of it as the best option for the children. In Ireland both One Parent (2017) and Treoir advocate strongly for it. But how often do Irish courts actually give fathers 50:50 responsibility for parenting? (My youngest child is 5.)

2. Family home: Our house, which is in both our names and for which we each pay 50% of the mortgage, could be sold for c. €800,000. Over the years I have always paid my 50% share, but it has often been a few days late as it's a struggle (the mortgage itself has always been paid on time due to existing funds in the joint account). The outstanding mortgage is €460,000 and there's 21 years left on it. The equity could allow each of us to put a deposit on a new, albeit smaller, place in Dublin. My current monthly mortgage repayment constitutes 36% of my nett monthly income, but my real payment into the joint account (to cover mortgage, property tax, mortgage protection, utility bills only - i.e. monthly food, etc are separate and I pay most of that alone) constitutes 47% of my net monthly income. First, which figure would the court look at? Second, could a court rule that I have to leave the home and survive on 53% of my net income and also pay maintenance for my kids and rent for myself from that 53%? (the idea that I'd have equal rights to my kids while living in poor conditions compared to the comparative castle of our current home sounds risible). In this worst-case scenario, which I'm mulling over far, far too frequently, what would my options be? I'm conscious I need to get off this mortgage to have any shot at being able to offer my kids, and myself, any sort of comparable future.

3. Legal Aid: My application for Legal Aid was rejected. They said I needed a maximum nett income of €18,000. Essentially, the LAB only allow a maximum of €8,000 as an annual mortgage repayment, despite having a clear record of paying more than twice that. Is there any way I can go in front of a judge and point this out and ask him to grant legal aid (which I know is not free, but rather lower cost)? Do I approach a solicitor and ask her/him to do this or what exactly is the process? As I expect to have to progress towards separation/divorce when mediation fails, what are my options in terms of financing legal representation?

4. Circuit Court: I've been informed that in the event of mediation failing, the case would be heard in the circuit court in Dublin, not the district court, so costs will be significantly higher. My wife's family have much deeper pockets... so she has the resources to drag this out for much longer and in essence continue the power dynamic of our relationship which is what I need to end. Just how long could she drag this out, and how can I counter this and bring everything to as quick a conclusion as possible without losing what I feel should be a basic right: the ability to have an equal right to raise my children and an equal right to provide a comparable home for them?

5. Finding a good family law solicitor: In this sort of case, does it matter if I hire a female or male solicitor? As I don't know anybody who has gone through this process, would anybody who has have recommendations for capable solicitors? Are particular solicitors better known in particular court areas? How do I find out what court my case will be in, and then the family law solicitors who are familiar with the judges of the circuit court in that part of Dublin? I don't want to get somebody who has not got a sense of the moods and judgements of the judges in question. Thank you.
 

NoRegretsCoyote

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(My youngest child is 5.)
How old are the kids (roughly) and how many are there? My own knowledge is very limited but AFAIK older teenagers often get some kind of say in the arrangements.

could be sold for c. €800,000. Over the years I have always paid my 50% share, but it has often been a few days late as it's a struggle (the mortgage itself has always been paid on time due to existing funds in the joint account). The outstanding mortgage is €460,000 and there's 21 years left on it.

Assume you sell the house. You would have €340,000 after the sale. Say €300k after expenses including legal. Split half way you have €150k deposit and maybe 3.5x income as a second-time buyer. So you have nearly €400k to play with (her a little more) to buy a new house. It depends on where you live but that is going to mean a radical change in living conditions for both of you, especially as you will need to stay in the same housing market to retain access to schools, etc. I think at this point there is no harm talking informally to a mortgage broker as they will give you a rough idea of what is feasible and what is not.
 

itsovernow

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How old are the kids (roughly) and how many are there? My own knowledge is very limited but AFAIK older teenagers often get some kind of say in the arrangements.



Assume you sell the house. You would have €340,000 after the sale. Say €300k after expenses including legal. Split half way you have €150k deposit and maybe 3.5x income as a second-time buyer. So you have nearly €400k to play with (her a little more) to buy a new house. It depends on where you live but that is going to mean a radical change in living conditions for both of you, especially as you will need to stay in the same housing market to retain access to schools, etc. I think at this point there is no harm talking informally to a mortgage broker as they will give you a rough idea of what is feasible and what is not.
Thanks. There are two kids, between the ages of 5 and 8. Apparently, as the case would be going to the Circuit Court, a child psychologist's report called a Section 47 will be sought to give a voice to the child and it is usually longer and more detailed than in a District Court case (where the equivalent child psychologist report is termed a Section 32). However, the following source doesn't say is children below a certain age are excluded from such reports: https://www.orpenfranks.ie/children-and-divorce-separation/ .

Regarding the home, I did a search on the mortgages.ie app and it said that on my income, as a first-time buyer (under the 2021 Housing for All scheme, separated/divorced people will be considered 1st-time buyers: https://www.gov.ie/en/publication/ef5ec-housing-for-all-a-new-housing-plan-for-ireland/), I should get €262,000. Plus the deposit that should bring me close to €400,000. Currently, this would allow me to buy a 3-bed in South Dublin (https://www.myhome.ie/residential/dublin/property-for-sale-in-dublin-south?maxprice=400000&minbeds=3) or South County Dublin (https://www.myhome.ie/residential/d...dublin-south-county?maxprice=400000&minbeds=3), or perhaps go into Bray or north Wicklow for a bigger place. Admiteddly the choice isn't great but there are 3-bed houses in Cabinteely and other decent areas within my price range. I could also draw on building relatives to renovate an old house. Regarding schools, I've been told that because the kids are young, the role of the school may not yet be as important and that if I could buy along the DART line in a cheaper area I could argue I will have quick access to the school (which is near the DART) but a lot of my future would seem to depend on the disposition of the judge on that day. An alternative is that I could apply under the incoming Housing for All scheme for a local authority loan. However, the cut-off income for that is €65,000 so with my €67,000 I'd probably need advice on that (Finalised yesterday, 4 January: https://www.gov.ie/en/press-release...es-expanded-local-authority-home-loan-scheme/). That separated/divorced people will be treated as first-time buyers from yesterday, 4 January, is a new development so I need to make more enquiries about if I could be eligible.
 

Thirsty

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There's an awful lot to unpack from your post.

So couple of baselines first:

as always - IANAL

if you go into the mediation process expecting it to fail, then you will most certainly achieve that goal.
even with full co-operation from everyone the entire process can easily take 2 years; be prepared for a long haul.
only Irish law applies, regardless of what you might read or view on US/UK or other European sites, only Irish family law will apply.

The primary aim of any settlement is to best provide for children of the marriage.

Family Home
There are essentially three options:

1. House is sold now and net proceeds apportioned, it's not always 50/50 where there are younger children.
2. Resident primary carer and children remain in family home until youngest is 18 or 23 if in full time education and home is sold at that point.
3. One parent buys out the share from the other parent.

If you can't agree on which is your preferred option, a judge will decide for you. If your youngest is 5 years old, and assuming there are no special needs, my instinct is that option 2 would not be considered equitable.

Custody
Unless there are untoward circumstances (domestic violence, illegal drug use, criminal records); married parents are generally awarded joint custody. Sole custody is rare.

In practical terms, it is generally recognised that one parent is the primary carer and school-going children will live in one home during the week. If you feel that you would be better placed for this role, then say so.

Ideally you will come to agreements on parenting yourselves; if you can't then a judge who doesn't know you or your children will have to make decisions. Anyone can be a child-minder, you need to be parents, there's a difference.

Why would you want to go down the Section 32/47 route? You only want to head there if there are untoward circumstances (see earlier note).

there are other items that need to be included in the settlement terms, including any other assets, pensions, inheritance etc.,

I can't help with legal aid; I don't believe the gender of your Solicitor will make any difference; nor the 'mood' of any Judge allocated to the case.
My final bit of advice is to take a deep breath and hasten slowly, none of this will go fast.
 

NoRegretsCoyote

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Plus the deposit that should bring me close to €400,000. Currently, this would allow me to buy a 3-bed in South Dublin (https://www.myhome.ie/residential/dublin/property-for-sale-in-dublin-south?maxprice=400000&minbeds=3) or South County Dublin (https://www.myhome.ie/residential/d...dublin-south-county?maxprice=400000&minbeds=3), or perhaps go into Bray or north Wicklow for a bigger place. Admiteddly the choice isn't great but there are 3-bed houses in Cabinteely and other decent areas within my price range. I could also draw on building relatives to renovate an old house.
That's a very big area and your kids are already presumably in the same primary school. IANAL but I doubt that your spouse or a judge is going to agree to an arrangement where primary-aged kids have long commutes to school.

If this is to work you and your spouse will have to live nearby, probably near where you already live. Renting - even medium term - might be what works for one or both of you.
 

dubdub123

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Try get some agreement with your estranged spouse. They may wish to stay in the property and buy you out. That may be the least disruptive on the kids.

If i was you, I wouldnt be relying on the new scheme as apparently theres price caps of 320k purchase price Dublin.

Also, check property price register to get some idea of sale prices for houses. Homes may go for 10, 20% more than advertised. 400k house in south dublin / wicklow may not be what you are expecting. You may qualify for exemption, but being honest you're a long way off on that right now. If you can perform transfer of equity for current home (either you buy out or your ex buys you out), that would be huge milestone. It is extremely unlikely that a judge will force a sale, so you could end up having to wait til youngest finishes third level, to sell the house.

For access, You may end up with an access arrangement of something like every second w,e and time mid week as well as splitting holidays. However its very difficult to know how this will land. These arrangements can be changed over time by going back to court or just through arrangements with your ex.
 

Thirsty

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wait til youngest finishes third level, to sell the house
We've no way of predicting outcomes, but given that it could be 18 years away, and both parties are on a similar income, my inclination is that it would not be considered equitable to postpone sale for 18 years.

If the youngest child was say in senior cycle; then I'd agree that a sale order would be less likely.
 

dubdub123

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We've no way of predicting outcomes, but given that it could be 18 years away, and both parties are on a similar income, my inclination is that it would not be considered equitable to postpone sale for 18 years.

If the youngest child was say in senior cycle; then I'd agree that a sale order would be less likely.
Its gonna take some time to get to court for legal separation or divorce particularly as there may be backlogs in the family law courts, so OP could easily be waiting months or years for a hearing. If he can reach agreement via mediation or through solicitors that would probably be best.
The onus is on welfare of the children (or at least it should be) so a judge would be very unlikely to force a house sale.
The reality is that this could drag on years.. changing solicitors etc can drag proceedings out, even before getting into a court.
Also on the mortgage front, its unknown if OP will have to pay maintenance, childcare, other loans etc and all that will be taken into account for new mortgage application. He could probably have a chat with a broker to get some idea of whete things stand, but i doubt he would get AIP at this stage while his name is still on the existing house.
These situations are complex and normally drag on for some time but the more OP engages and the earlier he gets legal advice the better.
 

ClubMan

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FWIW (as a father who got sole custody of our son years ago, not least of all because of issues that his mother faces) courts will always endeavour to prioritise what's best for the children rather than what either parent thinks is their right. Best to bear that in mind going into any negotiations or court situation. My sympathies to anybody going through marriage/relationship breakup, especially non amicable, where there are children - and especially where there are other issues (as in my case). It's not easy!
 

Purple

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I read these threads with a knot in my stomach.

It is extremely difficult for all concerned but when fathers are in this situation it is hard to see a satisfactory outcome unless the mother is reasonable and puts her anger aside and the interests of the children first.

The Section 47 process is useful as it gives the children a voice but in my case it led to the breakdown in the relationship between two of my kids and their mother because they left she had manipulated them in the lead up to the meetings.
 

Thirsty

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It requires *both* parents to co-operate to put the children's needs first.

The issues that lead to a relationship ending, don't magically go away.
 

ClubMan

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It requires *both* parents to co-operate to put the children's needs first.

The issues that lead to a relationship ending, don't magically go away.
Yes, in an ideal world.
But unfortunately sometimes one or both parents, and others involved, don't always do that.
And sometimes one or both parents have issues that prevent them doing so (e.g. addiction/psychiatric issues etc.).
Often that's why input from others, up to and including the courts, is needed.
Like a lot of situations, it probably seems a lot simpler to some people looking from the outside in who have never experienced this stuff first hand...
 

dubdub123

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Yes, in an ideal world.
But unfortunately sometimes one or both parents, and others involved, don't always do that.
And sometimes one or both parents have issues that prevent them doing so (e.g. addiction/psychiatric issues etc.).
Often that's why input from others, up to and including the courts, is needed.
Like a lot of situations, it probably seems a lot simpler to some people looking from the outside in who have never experienced this stuff first
hand

If there is one person unwilling to engage it can add years to the process.. My ex changed solicitors numerous times .. private solicitor, legal aid, private solicitor, back to legal aid... took months to serve separation papers and when we did.. they were returned .. there was another solicitor to deal with...
We finally got papers served and got a court date and on the day at the court house, ex requested a postponement saying they wanted to call witnesses (like what?)... Judge agreed so that was a hefty expense for each of us.

There were days when I felt that we would be left with nothing and with two young children to raise it was extremely stressful.

If OP can make any progress during mediation or via solicitors in advance of court, take it. Be realistic. Don't expect fairness as you may be sorely disappointed but try make progress and agree on issues where you can.

Beware people that offer advice to you , when they have not gone through the court systems themselves. As Clubman states above it probably seems a lot simpler to some people. Take a breath, keep your finances clean, be flexible and stay calm is some of the best advice that I can give you for the coming weeks months.
 

Thirsty

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I will leave it to others to correct me if I'm wrong; but I believe most posters on this thread, myself included, have first hand experience in this area.

In one sense it *is* simple; you either agree terms or you ask a judge to do it for you.

What is less simple is dealing with the swathe of emotions and fall-out while all this is going on.

Separation / divorce gouges you; it takes five years out of your life between the emotional & legal costs, and the recovery afterwards.

Don't expect it to be fast, don't expect it to be easy; and ditch whatever notions you have about "what's fair".

None of this stuff is "fair" for anyone.
 

Ravima

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You are in the fortunate/unfortunate position to have assets. You will not get legal aid.

I cannot answer any other query, save to say that law is expensive and very expensive at that!
 

itsovernow

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OK. I appreciate all the answers so far, especially as I don't personally know anybody who has been through this process. There's an incredible lack of information or support online (Éamonn Quinn's USPI organisation has closed). That's really shocking, given how common separation/divorce is.

My immediate problem is that she is intent upon not discussing anything and stringing things out. I'm psychologically prepared for moving on now, and I've already started reimagining my life and reinventing myself. And it's good. If I can get 50% of the home and 50% of parenting I'd be much happier than the current situation. If I can't, I'm in huge trouble, will be much poorer and this will have long-term effects. The only downside of the marriage breakdown is the kids, and I genuinely fear long-term damage to them (they're between 5 and 8); if there were love, I'd be willing to reconcile but it's not there so I've been hugely inspired by this reflection: https://thoughtcatalog.com/brianna-...go-of-the-people-who-arent-ready-to-love-you/
So, that's where I am emotionally.

I'm acutely aware that mediation is the smartest way to resolve this, but stonewalling is her dominant tactic, as it has been for years now. I had been thinking that emotionally I'll just give her space, but I'm now of the view that this is naive, things are over and time to legally move on. On the other hand, I'm thinking should I continue to play cool? It seems so juvenile playing these silly games. Moreover, how does one deal with the stonewalling in a context where her agreement/mediation is the smartest option for me? I cannot let this go on indefinitely, as I strongly suspect she would prefer. What could focus her mind?

They say never move from the family home, but if I had to rent the rent would be more than the €1600 mortgage payment per month, which is almost 50% of my current nett income (I would have to rent more than one room so that I can accommodate my kids). In short, I couldn't afford both. Is there a way I can explain this to the bank, or to her? A solicitor suggested moving out based on mental health grounds and on the reality that I could not continue paying such a mortgage and rent for some other place on my own income and that, she reckoned, a judge would see that and order the house be sold and both people buy their own place simply on the finances. I'm not sure if this high-risk moving out is smart, though? Any views?

Are men in situations where they cannot live in the family home anymore punished by the courts when custody is being decided as they "abandoned the children" or some such? Or is that a myth? Is there any way I can legally move out without it undermining my rights to the children or family home?

It's now over two months since I proposed separation and she moved to the other room, but the marriage has been dead since, at least, summer 2018. How does one deal with such stonewalling? We, or rather I, am still waiting for LAB mediation as she refuses to go to earlier mediation. I would prefer to go straight to divorce, but for that we must be, under the Family Law Act 2019 separated for two of the past three years. This legislation "clarifies that ‘living apart’ includes couples who live in the same home as one another but are not living together as a couple in an intimate and committed relationship." I'd contend that, by this definition, we are more than two years separated. However, she sees it as a further opportunity to stonewall/prolong the situation. I can't fathom the thinking; she's the one who killed the relationship, and refuses to talk it out, but she doesn't want to legally wrap it up. What evidence would I need to show a judge to accept we are eligible for a divorce rather than separation?

I know I have no intention of living in the same home as her for almost two years more, so in a context of stonewalling, what options do I have that will not undermine my rights to my children and the home I own 50% of? Thanks again.
 

Lone Star

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What might be helpful is that she earns more than you. A judge may split costs 50:50 if you're lucky. It's a gamble, and not objective in the family courts in my opinion. District court deals with maintenance up to 150 per child per month afaik. if it goes to the higher courts...it just depends on who gets believed more and how colourful your wife is with her affidavit of means. You could perhaps be the one to make the first move* vis a vis the courts and seek to have the 'access' formalised. dreadful word that 'access' to your children. Family law is being reviewed at present....long overdue...my opinion is that it is currently very heavily in favour of the mother and who the judge subsequently believes notwithstanding that it's 'all about the children'.

Is it possible to split the house physically in two? God I do not envy you and I wish you the very best.

Do plenty of research - as you have started here. There are various fathers' groups - some would advocate representing yourself, which is not ideal or advisable for everyone (works for some) family law can be very much a cash enriching exercise for solicitors and barristers. *If you can sort this with her at all outside of court - it would save so much in terms of time, stress and finances.

Prices in Bray for example very much on the up, 450, 500 plus for any reasonable semi D.

Best of luck and keep your tenacity and be resilient.
 

itsovernow

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You are in the fortunate/unfortunate position to have assets. You will not get legal aid.

I cannot answer any other query, save to say that law is expensive and very expensive at that!
My nett income, before the massive mortgage, comes in at just under €40,000. The costs of going to the Circuit Court would essentially be a year of my nett income, or c. 3 years of it after the most basic living expenses have been met. Is there a smarter way to do this? Give up my job and apply for legal aid? Cut down my hours? (but I'm struggling financially already, depending upon my credit card and overdraft for living - something I can show evidence for going back years).


Has anybody brought their own family law case to the Circuit Court? How difficult would it be?
What might be helpful is that she earns more than you. A judge may split costs 50:50 if you're lucky. It's a gamble, and not objective in the family courts in my opinion. District court deals with maintenance up to 150 per child per month afaik. if it goes to the higher courts...it just depends on who gets believed more and how colourful your wife is with her affidavit of means. You could perhaps be the one to make the first move* vis a vis the courts and seek to have the 'access' formalised. dreadful word that 'access' to your children. Family law is being reviewed at present....long overdue...my opinion is that it is currently very heavily in favour of the mother and who the judge subsequently believes notwithstanding that it's 'all about the children'.

Is it possible to split the house physically in two? God I do not envy you and I wish you the very best.

Do plenty of research - as you have started here. There are various fathers' groups - some would advocate representing yourself, which is not ideal or advisable for everyone (works for some) family law can be very much a cash enriching exercise for solicitors and barristers. *If you can sort this with her at all outside of court - it would save so much in terms of time, stress and finances.

Prices in Bray for example very much on the up, 450, 500 plus for any reasonable semi D.

Best of luck and keep your tenacity and be resilient.
Thanks. I've been told it would definitely be going to the Circuit Court rather than the District Court as both incomes and the value of the house would make this so. Costs and the length of the case apparently increase as a result, although many cases are settled before reaching the court.

Why would I need to apply for "access"? Why wouldn't the children's mother have to do so? From day one, we have both shared everything and, if anything, I have spent more time with them as my job facilitates that (as mentioned in the op). The three times since the eldest was born that I have left home for work (for less than a week each time), I have paid the childminder. I have never spent time away from them outside that. Is there something in law which says the man must apply for access but the woman doesn't have to? (I'm their birth father, as recorded on their birth certs, we are legally married under Irish law, and I legally own half the house).

I've heard of people splitting the house but it's not possible here without great expense (we renovated the whole place in recent years). Moreover, for a wide range of psychological reasons I need to have as little to do with her as possible. Yes, I know I am "stuck" with her until the kids are adults, but I need to minimise that. Having equal parenting responsibilities and thus no maintenance, for instance, would therefore reduce her control over me. Similarly, having two separate homes at a distance from each other would reduce her involvement in my life. Also, if the children were to spend weekends/2 nights with their father as a common "solution", why can't courts allow them to spend 4/3/3/4 in rotation (4 nights with mother, 3 nights with father, 3 nights with mother; 4 nights with father)? How is having a fair distribution of parenting/homes less stable for the kids than having a 5/2/5/2 distribution of nights between each home?

The house is an enormous issue because if I have to continue paying a mortgage on it for the next 18 years (until the youngest is 23), I will never get a mortgage for my own place at a time when there is €300,000 plus in equity in the home. I will be condemned to paying more than a mortgage in rent in flatland, which in reality means poverty because the existing mortgage on a very nice property in a nice area is half my current net salary. The fact that I would need a three-bedroomed flat to accommodate the children adds to the financial suffocation. If that worst-case scenario were to happen, what are my options?

It's not a little ironic that in trying to get out of her control, she could be getting more control over my life than ever, sanctioned by the Irish State.
 

Thirsty

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Two bits of advice for you (or maybe three)

Internet forums are not really as private as you imagine; Dublin is a small place, be careful of what you publish.

Neither is an internet forum a substitute for counselling, which you really, really need to source for yourself, right now, today.

Forget trying to work out your spouses motivation, why does that matter at this point?

Finally, theres no material difference between a Judicial Separation and Divorce. All a divorce gives you in addition is the right to re-marry.
 
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