A fair outcome would be for you and your spouse to agree to share custody with equal time. That is what would be in the best interest of the children and would be the most fair to you both. Joint legal and physical custody with equal time means that both of you basically have things as they are now. The children do not have to decide who they stay with and therefore do not feel like they are choosing one parent over the other, which they should never be made to do. Once you can agree to this, the details can be worked out between you about things like insurance and who buys school supplies and clothes.
Until custody is decided by either agreement or court order, both parents have equal rights to their children. If your wife refuses to sign an agreement of this type then it may need to be decided in court. Is it possible that you can persuade your spouse to sign an agreement like this rather than go to court, spend thousands of dollars on lawyers, a lot of time and emotional stress, trying to show each other who loves the children more? In the end, the children are the ones who lose. Could you make her understand that? The courts would look more favorably on the parent trying to share custody than the one trying to keep the children away from the other…but sharing custody means being able to work together and not let your personal feelings for the other parent to get in the way of the decisions you make for your child/children. It’s not easy regardless, but it IS easier on the children with shared custody.
We have my stepchildren every other week and though he still pays her child support due to the salary differences it is actually very fair an the boys know that they have a home with both parents. My husband is a very active father also but they do have to stay at a sitters after school on our weeks where his ex works nights so she can pick them up from school on her weeks. If something comes up we occasionally switch a day or weekend…but we try to even it out. We have the boys Christmas eve one year and Christmas day the next…they are always with their mother on Thanksgiving, and we have them the following Sunday every year.
In trying to work out those types of details, the thing to remember is that your children will go through the divorce along with you. But just because you are losing your spouse, does not mean that they should lose a parent. They will not understand. They will be angry and confused and sad. They have all the same emotions that we have but they do not have the experience to deal with them. They will need to be able to vent and you will need to be able to explain that this is NOT their fault and they have NO control over this.
My advice is not to stay in a bad situation for the sake of the children. Being a child of divorced parents, I can tell you that they know you are not happy even though they would not explain it that way. This is all they are used to and though it may be miserable for you and your spouse, it is comfortable. If you can work out your marriage and stay together, do it for your own sake. Children will adapt and if they begin to see that you are happier when you are not together, they eventually will understand. And just so you know…that may not be until they are a little older and have time to get used to it. Be patient with the children if you do decide this is how you want to proceed.