How to separate?


#1

My wife and I have been having marital problems for many, many years. We have been seeing marriage counselors for at least two years with no improvement. In my mind, the only solution is to proceed with divorce. She refuses to leave the marital home to begin our one year separation because she says she still wants to work on the marriage. I feel there is no longer hope in fixing the problems we have.

We have two daughters (7 & 11). I have been told that if I leave the marital home, it will be considered abandonment of the family and I risk losing custody of my girls. My wife is not well and I don’t think she can manage the girls on her own. She has been a “stay-at-home mom” since the girls were born but she doesn’t really look after the girls or the house - she is too sick to do this without extensive help from me, supportive neighbors, friends and support workers.

I don’t want to lose custody of my girls, in fact. How can I separate from my wife and ensure that I don’t lose custody of my girls?


#2

It’s only abandonment if you leave the house and basically are never heard from again. You will need to find your own place to live as well as continue to pay for the old house. When you move out, take anything of personal value to you. Ex-spouses can get bitter quick and before you know your old family albums will be in the dumpster if you don’t get them first. Also get copies or originals of any important documents… kids birth certificates, ss cards, bank statements, deeds, etc.

To be perfectly honest, you are at a HUGE disadvantage. Because she doesn’t’ work, that makes her the dependent spouse. Unless she committed adultery then you will owe her post-separation support, alimony and child support. The mortgage of the house (that she continues to live in) will be a dominant factor in establishing alimony.

Moving out will not affect custody. Keep well documented records of everything you do for the kids (doctor’s appointments, homework, field trips). This will help bolster your claim if you want more than 50/50 custody. Do not take less time than you want, it’s very hard to get it back later. If you can successfully prove that she is incapable of taking care of the girls then you may get full custody (be prepared to show proof).

If you can afford an attorney I would highly recommend one, and consult with them prior to doing anything.


#3

Thank you for your response. I am curious though… you say that the mortgage on the house is a major factor in determining alimony. Once we divide our marital assets, it is likely the house will be need to be sold as it is our only major asset and neither of us could afford it separately. How will this be a factor?


#4

Basically put, alimony is determined by the standard of living set during marriage (mortgage, spending money, cars, etc), the ability for one spouse to pay and the reasonable needs of the dependent spouse. If you live in a house with a $3k mortgage you can expect even after the house is sold, for her to make a claim to that particular standard of living. That doesn’t mean she’ll get exactly $3k, only that standard is what she is used to.

Because your wife seems to be highly dependent on you, I would seek the consult and advice of an attorney before you do anything at all, that way you can lay out a “Game-plan”.