Divorce/Custody/Everything


#1

My brother was just left by his wife of 3 years. They have two children (4 yr old, and an 8 month old) and she has a 7 year old son from a previous marriage that she has primary custody for. Their marriage has been very up and down, and there has been physical abuse from her and mental anguish from him. Quite frankly they should have never been married to begin with. Everything began to end when he discovered she was cheating on him with an old boyfriend. He has the nude pictures she sent the old boyfriend and numerous emails / myspace messages between the two. She has admitted the affair and he forgave her. He wanted to keep the family together and move past it, but she never stopped her contact with the boyfriend even though she told my brother she did. A few days ago, he found a cell phone that he didn’t know she had and everything came to a head.

During the course of the marriage, my brother was the stay-at-home dad until she lost her high-paying job in early 2008, and he went to work in retail to make ends meet while she had the baby. She received unemployment during this time. At the beginning of 2009, he was laid off from his job and started receiving unemployment himself. She received a job offer in mid-January that was out of state and accepted the position. She has been working there a few weeks and has a high salary once again.

Yesterday, her best friend (who lived in the house with them, but didn’t pay rent) took the 8 month old for a “play date” and to take the family car for an oil change. (My brother doesn’t have a license.) It wasn’t unusual, so my brother didn’t think anything of it. At 3pm, the two oldest kids never got off the bus. My brother paniced and tried to call the cops and his wife- but the phone was shut off. They don’t have a home phone, and all the cell phones on their family plan were shut off when she closed the account at that exact same time. My brother went next door to call his wife and was told by her that the kids were on their way to her and that they were safe. Later on, he found out she took 80$ out of their joint account, leaving him with $20.

She has already filed for the temporary custody or whatever it is in Wisconsin (where her job is.) My brother receives unemployment, and has been told by Legal Aid that he qualifies for help, but that they don’t handle divorce cases. With his financial situation, he can’t pay for a lawyer and feels royally screwed over.

My brother doesn’t want to contest the divorce- if she wants out, then she’s entitled to go. I want to make sure he doesn’t get screwed over in custody issues.

Any advice?


#2

Your brother needs to meet with an attorney immediately. His wife’s actions constitute parental kidnapping and Wisconsin is not the proper state to determine custody. North Carolina is the home state of the children according to the law.
The best course of action is for your brother to file a motion for emergency custody immediately to have the children returned home. While legal aid does not handle divorce, they do help with custody issues.
As for the money, your brother will need to file an action for equitable distribution of property. This is something that legal aid will not help with, however many counties in North Carolina have self serve clinics that have step by step instructions as well as all the necessary forms he will need to proceed.


#3

My brother contacted legal aid this morning again and was told that they do not help with issues like this. Since he can’t file the emergency order by himself (from what I’ve been able to find out, he NEEDS a lawyer for this,) his only chance right now, is to find a lawyer who will accept a payment plan or something from him, since legal aid won’t help. Is it possible to file for some kind of support from her? If so, it may not arrive in time to help get the kids back, but it would help when she puts the house in the bankruptcy and leaves him homeless.
We also just found out that the kids did not even arrive in Wisc. until last night around 10:00 or so. He was told that the kids had flown to Wisc. and were safe with his wife and they were instead driving from NC, stopping in VA for the night (where her parents live) and continuing on to Wisc. She arranged for the children to speak with him last night when the kids arrived at the hotel where she’s been staying (she has no home up there; just a job…) When he tried to call the hotel this morning to talk with the kids she had already blocked all incoming calls so he couldn’t reach them.

She told my brother she was trying to get them away from a dangerous situation, but what I don’t understand is that she was alright with being out of state, except on the weekends, since late january, and leaving the children with my brother. She’d fly out sunday night and come back friday evening. There hasn’t been any change to the situation. I guess she could argue that the roommate (her bff) was there too, but during one of those weeks, that same roommate (incidentally the one that was responsible for getting the kids to Wisc.) tried to kill herself and was in the hospital for cutting her wrists.

Argh… I don’t know what to do anymore.


#4

Your brother may indeed file an action for emergency custody on his own, though I strongly recommend he retain a lawyer. Many lawyers do accept payment plans by way of changing an initial retainer and then billing for any additional time thereafter. Based on the facts you have listed your brother will likely be entitled to have his attorney’s fees reimbursed by his wife.


#5

To update:
The courtdate was today in Wisconsin (after one postponement for my brother not being served. She had filed for temporary emergency jurisdiction because she said my brother was mistreating the kids. My brother provided affidavits from family members and his son’s school teacher that affirm that my brother was not an abusive father, and he also provided police reports (from a recent botched suicide attempt) and custody documents and medical records that show that the mother’s bff (the roommate/new nanny to the children) was declared as unfit to her own child. Short of it- the judge dismissed their case, and said that jurisdiction is in North Carolina. He also ordered the mother to get a GAL for the kids and to pay the costs for that.

My brother is wanting to file for seperation and post seperation support, but doesn’t know how to go about that. He doesn’t know what in particular to file and at the moment he still can not afford a lawyer. His unemployment distribution only goes so far, and her does not have any other money coming in. We hope that he can get post seperation support and use that towards legal fees. In order for his wife to reimburse the fees, he’s got to be able to pay them first.

Also- the mother has contracted a moving company to take everything out of the marital home and move it to Wisconsin. My brother is willing for her to get her personal belongings, but until there can be property distribution by the courts, he doesn’t want anything else to be moved. Also- I’m not sure if he can do this- pending a formal custody arrangement, he doesn’t want to move all the children’s toys up there yet. My brother called the police and the sheriff told the moving company that they were not to enter the home without the homeowner’s approval or a court order. Now the mother will be flying down here to get a court order for the movers to move everything. Is there any way to keep the community property where it is, until there can be property distribution?

Thanks,

wllshl


#6

Your brother needs to file a complaint to initiate suit for Child Custody, Child Support, Post Separation Support, Alimony, Attorney’s Fees and Equitable Distribution. Based on the facts of this case, I also suggest he include a motion for emergency custody based on her fleeing the jurisdiction. Since his wife is the supporting spouse he is eligible to seek reimbursement of his attorney’s fees from her.
Many counties in NC have self serve clinics which provide forms, instruction and assistance in getting these documents in order.
As for the property, your brother is entitled to change the locks on the home and should do so immediately. Once she left the home, she lost the rights to return absent his express invitation, he was right to call the sheriff.
As for any order she may seek, it will be awhile before she can get in front of a judge on this matter, and even then I do not believe a judge will allow her to take everything out of the home, that is not the proper way for the personal property to be handled.


#7

She will not be able to get a court order to have everything moved. At the very most at this point, until ED is filed, she can get a court order to remove her personal belongings, such as clothes/shoes/toiletries. Normally people take everything with them when they leave and if she left and is residing somewhere else then he has the right to change the locks on the home and inform her that she is not to come to the home without his approval or invitation. If she shows up, contact the authorities and do not let her in until they arrive. That is his home and what she didn’t take with her, sadly, including the children’s toys are considered marital property and will be divided.
If she does retain this, he will be obligated to allow her to collect those items. I suggest having the police there when this happens so that only the items mentioned are removed. He really needs to consult with an attorney, for minimal costs, to get a separation agreement drawn up regarding ED, custody and support. Even if she does not agree to it, it will still help that it is being worked on.