Can my wife leave with my children?


#1

Until custody is agreed on or decided by the courts, each parent has equal access to the children. She can not force you to leave and she can not take the children without giving you access. She can take the children if you allow her to.
Did you sign a separation agreement? Did you agree in that to leave the home? There is no such thing in NC as “legal separation” or “filing for separation”. You can have a separation agreement drawn up and signed and filed at an attorney’s office if you both agree to the terms. Separation begins the day that one of you leave the marital home and begin living separate and apart. If you are both still living in the home, you didn’t sign a separation agreement then you are NOT separated.
In my opinion, she should be the one to leave since it sounds as though she is the one that wants the separation. I would suggest that regardless of who leaves, the children need to stay in the home for the time being. This situation is difficult and they need some stability. It is easier if they are in an environment that they are used to and that their routine is disrupted as little as possible. If you are the one that normally takes care of them daily, then it would seem to me that this would be easier if she were to leave. Also, when the custody issue comes up later, it will be better for you if the children already reside primarily with you.


#2

Since there is actually no such thing as “filing for separation” in NC, I am curious what, where and with whom your wife claims she “filed” said papers.


#3

I’m sorry. I said that wrong. She wants to file for separation. She said i can either make it messy or not and i can leave or she will with the kids. Another question for you… Is free legal aid not as good as paying a lawyer? I need to get a lawyer but i don’t see how i could possibly pay for one. Some people have told me that i should not use the legal aid and find a way to pay for a “real” lawyer. I’m just so confused about everything i need to do. I don’t even know who i should talk to for help. Thank you for your responses i really appreciate it.


#4

As far as the question for legal aid or a paid lawyer, I have no opinion on that. My husband had a high priced attorney but in the end he and the x ended up settling everything out of court…so that’s 10K for nothing. He and I did all the research and we only went to court once. It is ALWAYS better (and cheaper) if you can come to an agreement rather than go to court.
As I said, this is only my opinion, but I suggest telling her that when it comes to the children you are not simply going to agree to whatever she wants so that means that it will be ugly. I still say that you should tell her that if she wants to separate that she should leave and that she should plan on leaving the children with you.
Unless, of course, you don’t want the children with you. If that’s the case, then yes, to make things easier for everyone, you should leave the home, and leave the children with her. Go ahead and run the calculator to see how much you will owe her monthly in child support and make plans now to only see your children every other weekend.
What this boils down to is that YOU have to decide what you want out of this. You want the house? Then she is entitled to 1/2 the equity. You want the children? You are going to have to gather enough documentation to show that you are the primary care giver and that the courts should not change that. This is why it will be better for you during custody “battle” if the children are already living primarily with you. You could share custody with her if you would agree to that…it’s entirely up to you. You want to let her have the car? Then have it refinanced into her name alone. The problem is going to be that unless she has had an affair that you can prove, she may be entitled to alimony.
The way I see it is this. This is what she’s asking. She wants you to leave the home, continue paying all the household bills as you do now, the car payments as you do now, pay her alimony since she doesn’t work and child support. Give her 1/2 of the items in the home or pay her 1/2 of what it’s worth (furniture, appliances…) On top of all this, you will also be paying for your own place to live and your own vehicle and only seeing your children 4-6 days per month. Oh, and you’ll also essentially be paying for her lawyer too…
My opinion, tell her to leave since she wants to separate, leave the children with you and find employment. You give her the car and continue paying on it or pay it off and sign it over to her, offer her $x of money per month untill she can find employment and tell her that you will not ask for child support from her and you’ll carry insurance on the children. Offer to split custody 50/50 with equal time once she gets settled… It’s fair and the details can be hammered out in an agreement…


#5

My understanding is that legal aid is only available for defense in a criminal proceeding, not a civil one like divorce.


#6

Until there is an Agreement on Custody or an order, each party can take the children without the consent of the other party. However, if she removed them from the care of the primary custodian, which it sounds like you are, you could file an emergency order and have the children returned to you. I would suggest the two of you sit down and see if you can work out some agreeable terms. I would also schedule an initial consultation with an attorney so you can get some information regarding your legal rights. If you cannot afford an attorney I recommend attending one of our free seminars.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
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ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#7

My wife has recently filed for separation. She told me to leave or she will leave and take our three kids with her. Is this legal? Can she leave and take the three kids without my permission? I pay our rent and for everything our kids have. She does not work and does not even own the car she drives. I get the children ready for school in the morning and take them. I am often the one that picks them up and i get them ready for bed at night. On most occasions I am the one that feeds them dinner. I need to know if I can do anything to keep her from taking the kids. Thank you very much for your assistance.