Divorce, custody and (fast) distribution of marital property


#1

Do you think I will be able to get primary custody of my child based upon her mother’s lack of supervision?

  • Yes
  • Not likely
  • No way

0 voters

Thank you in advance for taking the time to read and comment on my situation.

I have been a resident of NC for several years, have been separated for well over a year. I would like to file for divorce, primary custody of my child, and distribution of marital property.

There is one child, age 11, who has been living with her mother for the past year. The child does not receive proper adult supervision, is failing most classes in school, and the money I have paid monthly for child care has not been used for that purpose.

The martial residence is located in Guilford County, and is sitting vacant. I reside in Wake County, and the mother lives in Forsyth County.

There is no separation agreement in place outlining custody or child support. All current financial and custody arrangements have been the result of informal discussions and email.

My questions are as follows:

  1. Can I file in Wake County? I meet the 6-month guideline for the state, but have not been a resident of Wake County for that period of time.

  2. The marital house is now vacant and creating a financial hardship. The mortgage and deed are in both names, but my ex refuses to share the expense of preparing the house for sale, is not contributing to the mortgage or utilities, and will not sign a contract to list the house for sale. I cannot continue to make payments indefinitely. I would like to avoid foreclosure if at all possible. What does it mean to file an interim distribution? What complaints, motions, or other documents need to be filed to allow me to list and sell the house without interference from my ex? How quickly could I potentially get an order to list and sell the house? Can this be done pre-trial?

  3. The only other marital property we have is my retirement account. There has been a HUGE drop in the overall value of my retirement fund. If my ex receives a distribution from my account, will the value be at the time of separation, or the day of the order?

  4. I have been paying monthly child support based upon the standard worksheet. The dollar amount calculated and paid monthly based upon salary information, and the expense of child care and health insurance. Despite my requests, my child has not been in child care for over a year. The child does not have adult supervision from the time school lets out (approximately 2pm) until 5-5:30pm. The child is left in the home unattended all day long during school breaks. Since the money allocated for child care is not being used for this purpose, can I recalculate and remove the line item for child care? Is there a reason that I should continue to pay for it, even if the mother is not using the money for child care?

  5. My ex used a store credit card with my name on it to purchase items, knowing full well that I would receive the bill. We have been separate and apart for well over a year, and it was a spiteful act. I am being held responsible for this bill by the store. What repercussions could there be if I deduct the amount from my monthly support payment?

Thank you SO, SO, SO, much!


#2

With respect to the custody of your daughter, I will say that you are facing an uphill battle. While the environment she is in now does not seem to be ideal, you will have to explain why her living with you will be in her best interests, and why, if that is the case, you have not filed a claim for custody for a year.
North Carolina requires that you be a resident of the state for one year before filing for divorce. You may file in Wake County, however if your wife files a for a change of venue the action will likely be transferred to Forsyth County, as venue is a “defendant’s right”.
There is no separation agreement in place outlining custody or child support. All current financial and custody arrangements have been the result of informal discussions and email.
A motion for interim distribution can be filed at any time once a claim for Equitable Distribution is pending. You simply file a request (there is a sample in one of my previous posts) and schedule the matter on the court’s calendar, usually within a few weeks of filing the motion. The court will very likely order that your spouse co-operate and list the home for sale immediately.
Retirement accounts are divided based on the date of separation value, minus any passive (market forces) losses from that time until the account is divided. Essentially this means she will get half of the martial portion at the time the account is divided (so long as you did not take any loans, or cash out any portion.)
If your child is not in day care, child support should be calculated without an inclusion for that expense.
As for the credit card, that should be handled in the property distribution portion of the case. You spouse should be held accountable for those charges, but you SHOULD NOT deduct that amount from child support.


#3

The following is based on my limited experience. I was a typical single breadwinner with a stay at home spouse. When she left, my attorney strongly advised me to establish a record as a competent primary parent to my kids before any judge got involved. So, we signed a separation agreement that got her what she wanted $$$, and got me 40% custody. Now it looks like I’ll succeed in getting 50%, but my STBXW is dead set against that.

I would suggest that you immediately start involving yourself in your child’s life as much as possible if you really want some custody. In my case, the Judge looked very closely at the efforts I put into transitioning from a primary breadwinner/SAHM situation to becoming a full-time parent. I had 4 months of success behind me when he made his ruling.

If you really want to be part of your kid’s life, you have got to pull out the stops to get the best chance. I would consider moving near to your STBXW’s residence and informally getting 1/2 the time with the child if she will agree to it. Once you establish that pattern, you will be in better shape. All the money issues will have to take back seat.

As for getting primary custody when Mom has been there as primary caregiver- forget it unless she’s got an awful criminal record and is a drug user- and then it is maybe.

Again, this is based on my limited experience.
Money is just money.


#4

I am with Quixote…

I feel that when a spouse leaves the home WITHOUT the kids…he/she is in the disadvantage when it comes to custody unless he/she can show just cause. KEEP DILIGENT RECORDS! Fight for your children. You will be the one fighting harder…even if it’s in the best interest. Keep records, keep involved in your child’s life…be close…be there…call, visit…keep visitation up no matter WHAT…Be the Dad you are and want to be.