Need Some Answers, Please (Warning: LENGTHY)


#1

I do have an attorney but right now we’re in the 30-day waiting game and I would like some questions answered without padding my attorney’s bill any further than I already have.

Let me see if I can sum things up without boring everyone. Married 11 years with two little girls, age 8 and 9. I worked from home most of the time when I could in order to take care of the girls and raise them. I was and still am the primary care giver. Done all the volunteer work at school, took them to doctors, dentists, school, fed them, bathed them, etc. I was mommy and still am. Only now I’m working full time. However, my Mother lives right around the corner and picks them up from school and I get them when I get off work. They’re very much loved and very well cared for.

I asked my STBX for a divorce over a year ago. Unfortunately I have had difficulty finding full time work so neither of us could afford to separate so we’re still under the same roof for now. I cannot afford to leave and he has already threatened me and said if I try to leave and take the girls, he’ll have the police here and that I’m not allowed to (I know that’s not the case but I still don’t have anywhere to go). He has been emotionally, mentally and physically abusive. He has hit me on several occasions, called me names, plays mental mind games, etc. In the past year, I was able to catch SOME of these incidents on video / audio, including times where he’s blocked me from leaving a room, laughing at me when I told him he left bruises on my arms, etc. Last December, the night before my 40th birthday, I had to call the police due to the fact that he was starting another fight, kept grabbing me around my arms to try and take my phone (he knew it had video evidence of the argument) and my flip video phone. The girls woke up, heard a lot of what happened and they were screaming and crying. I told them to put their shoes on and tried to get them out of the house but he physically restrained them. I tried to call the police but he kept taking my telephones and taking the batteries out, breaking them, throwing them, etc. Twisted my arm at one point (which I’m still having trouble with but haven’t had the money nor time to go get it looked at). I finally got the police to come and they basically blew the whole thing off and said that they could take BOTH of us to jail because of domestic violence. WHAT!!?!? Of course I had no marks on my arms but two days later, I had bruises, which I took photographs of. Said that “one of us had to leave”. I told them that I wasn’t leaving my daughters so he played “hero” and left and “spent the night in his car”. Next day said he was moving out but he didn’t. He said we’d do mediation but instead he had his attorney send me a letter with a separation agreement stating that he keeps everything, including the girls and I pay him child support. I lost it. I threw the papers at him and told him it’d be a cold day in hell before he got anything. So my Mom and Dad are paying for an attorney right now, he’s been served with papers (separation) citing assault, abuse in front of the children and making life “unlivable” (I don’t have the paperwork in front of me at the moment). He has continually come up with excuses where I have had to pay certain bills and not save any money because if I didn’t pay them, he wouldn’t. Then we’d lose the electric, phone, etc. etc. I have to take care of my girls so I’ve paid bills that I can but haven’t been able to save a DIME to leave.

Now he’s not ENTIRELY at fault. I’ve been bad with money. I had a business that tanked and we had to declare bankruptcy. He didn’t know how far in debt we had become until it was too late in the game to do much to fix it. He scared me (and still does) and I was never able to discuss anything with him about it so basically I did hide the fact that we had that much debt. We also are about $8,000 behind in the mortgage because he left me in charge of the money AGAIN with no help from him and whenever I would tell him we didn’t have the money for something, he’d blow up and it would frighten me so I would skip paying the mortgage and then call the mortgage company and try to work out payment arrangements. I looked for full time work outside the home for over a year before I finally found a job. He had an affair, which I said ok to at first because it kept his anger at a manageable state. However, when it affected the girls, I told him it needed to end and he said “No, you’re not taking away the best thing that’s ever happened to me”. So I left. My daughters were with my parents in Myrtle beach for a week so I packed and went to a hotel. Told him he needed to make some decisions. He begged me back, promised things would be better but they weren’t. He has attempted to control me, bully me, etc. so a year ago I asked for a divorce and I haven’t looked back. Never wavered. It’s been hell and still is but we’re nearing the end.

I tried to negotiate. He has $35k in a 401K, the house is in both our names, he makes more money. My final offer was for him to give me $15,000, the girls, the chevy cavalier and all of my personal belongings and the girls’ items from their rooms and my dog and I would waive my right to alimony, PSS and sign away the rights to the house. He could have it all. I just want OUT and AWAY from him. So far, no agreement. I’ve undergone SOME counseling for domestic violence but haven’t been able to continue it due to working full time now. He smokes pot, has had a series of mini-strokes that has done some damage to his brain, clearly has anger issues and road rage to the enth degree. The girls have told me that they just want to move away with me. He has scared the girls more times than I can count, denies them snacks at night if they’re hungry (I refuse to let a daughter cry herself to sleep because she’s hungry). He has had NOTHING to do with the girls or their school or their friends until this past year and that’s only because I said “divorce”. He says he doesn’t want to lose his daughters. No, he doesn’t want to pay child support and I do NOT want him having a hand in decisions I make regarding the girls because I can’t trust that his judgement is sound.

I had him served with divorce from bed and board, citing abuse, unlivable conditions, etc. and the paperwork prays for distribution of marital property in my favor, custody of my daughters, child support, alimony and PSS, possession of the house, for him to vacate the home and for him to pay attorney fees. He has NINE days left to respond to being served.

So, what happens if he doesn’t respond? He DOES have an attorney but as I said … we’re down to nine days and nothing yet.

Does it look bad that I’ve remained in the house and not gone to say a battered women’s shelter? I can’t go there because I’ve been told by counseling and by legal aid that my “case isn’t strong enough to get an emergency custody order in my favor” even though I have video and audio of arguments, photos of bruises, a journal that I’ve kept from the past YEAR of EVERY LITTLE THING, every fight, every argument, every email, every problem I’ve had with him and it spans 40+ pages. So I basically have nowhere to go. Also the home is deeded to us both but the mortgage/financial obligation is in his name only.

If we go to court, what are the chances that I’ll be able to get sole legal and physical custody of the girls? I don’t care if he has visitation. I’ve even set up a visitation schedule in the separation agreement.

He keeps threatening me with “you should see my witness list”. Well I really don’t care because I haven’t done anything that he needs to have a witness for. He doesn’t even allow me to go to church or take the girls to church! But he says he knows all the “men I’ve been with”. Well I’d like to see 'em! I do have a singing partner who is my BEST friend and who has been my one MAJOR support through this whole thing and yes, he’s a man. I have not had an affair with him but I do love him very much. The STBX okayed me spending time with him because we had singing gigs and of course, because it brought money into the home. He even let the girls meet him and spend time with him but when I said “divorce”, all of a sudden I’m not allowed to see him (though we text all the time) and the girls are NOT to ever spend any time with him. What is the process for divorce “court” of this nature and how long does it normally take?

STBX admitted to stopping his anti-anxiety meds and going back to smoking pot (which I have NEVER EVER approved of). I do not smoke, do drugs nor drink alcohol. Can I have a drug test issued on him if we wind up going to court? What happens if it comes back negative (ie: he lied about smoking pot).

I’ve had about all I can take of all of this. I’m an emotional wreck (also stated in the papers served to him), I can’t sleep because I’ve slept on the couch for over a year now and he comes out and makes every kind of noise possible to wake me starting at like 4am and on (I don’t have to get up until 6am). I’m exhausted, I’m beaten down and I can’t take much more. I really just need some answers and my attorney, even though I have emailed him on several occasions recently, hasn’t gotten back to me. All I want is some money to move out, our things and to be away from him. I have a temp-to-perm position with an excellent company but he still makes more money and holds benefits on all of us for the time being.

I’m so sorry this is so long but thank you for taking the time to read this and I hope someone has some answers for me. Thanks again!!!


#2

I need to add one small thing. The woman he had an affair with … I was forced to participate with the both of them on several occasions and then the “other woman” didn’t want me involved any longer (which was fine with me!! I didn’t want to in the first place) but I was afraid of him and what he’d do if I didn’t comply. She is also married and her husband is an attorney … not a divorce atty and not either one of OUR attorneys but I did state in the paperwork that she would be named at trial. I also have photos of them in bed together, her tied up and both of them naked.


#3

Oh, also he has been fired from two jobs since we moved down here. One job he was fired from due to sexual harrassment regarding a subordinate (and further investigation showed that he harrassed more than one person). The other job he lost due to poor job performance (and blamed me because I told him I wanted a divorce). He said he had to wait 30 days before he could start applying for jobs because he smoked pot and he had to get it out of his system. Additionally, his first request for unemployment was denied due to the fact that he was fired so we had NO income for several months. He finally appealed and did receive unemployment but not until approximately 4-5 weeks after he was fired. He borrowed money from MY parents that he never paid back.


#4

I am so sorry to hear you are dealing with such a difficult situation. With respect to the domestic violence, I would suggest you consider filing for a restraining order against him and seek possession of the residence and temporary support. There are shelters available, but I do understand your reasons for not wanting to go there, especially with the children.

If he does not respond to the Complaint for divorce from bed and board, a hearing will be had regardless and the judge will make a decisions.

I cannot make a prediction as to the outcome of your custody case, however given the allegations you make I do not think judge would award him substantial time, or decision making power, if the allegations are proved. You may also seek a drug test.

The actual divorce cannot take place until you have been separated for over a year. Divorce from Bed and Board, (the separation you are seeking) will be determined on the date the hearing is set. All other issues, custody, support, and property issues can all be decided by the court before the actual divorce and various hearings will be scheduled over the next several months.


#5

Thank you. I’ve been informed that I don’t have a “strong enough case” to get a temporary restraining order (as I have lived this way for the past 10 years). The Divorce From Bed and Board papers that we have served him with outline custody (that’s the primary reason for this, so that I can move out WITH my children LEGALLY), support and ED. I do understand the actual divorce won’t take place until a year and a day after the initial date of separation but at this hearing, won’t ALL of those issues be addressed since they are outlined in the papers that were served to him?

I have found evidence that he may be filing for the 30 day extension, as I noted in a previous post and I believe that this will be done in an attempt to purge his system of the marijuana so a drug test may make me look incompetent.

In your experience, who are the best people to have as “witnesses” in such a trial?

Thank you again, so very much for all of your help and all your answers!!


#6

The first hearing will be for the divorce from bed and board and likely temporary custody. You are the best witness who can attest to the circumstances of your particular situation, along with close friends and family members who have personal knowledge of the situation.


#7

Right, I figured it would be temporary custody and from what I gather, provided the kids are in a stable environment, temporary custody rarely gets changed at the permanent custody hearing. Additionally, once the divorce from bed and board and temporary custody is finalized, will child support follow suit as I most likely will have custody? Honestly, this is my MAIN concern … getting my kids and getting away from him in some form or another. The ED, PSS, Alimony, etc. I could honestly care less about at this point. Also, I’ve seen in the separation agreements that it states something to the effect of “each may conduct business with whomever they wish, live with whomever they wish” etc. and that parties are to live “as if they were never married”. Does that mean if I choose to live with someone, I can?

Thank you so much for all your eye-opening answers Erin. A lot of this I knew simply from my extensive research but a lot of this I’ve learned from your help here so thank you!


#8

After temporary custody is determined child support will be set accordingly so long as you have a claim pending for the same. You will need to schedule a hearing to determine temporary support.

You may live with whom you chose one separated, however it if is a romantic partner you will be barred from alimony.


#9

Awesome. I’m not concerned about alimony so that’s not a problem.

One last question … if I get custody of the girls, most likely they’ll force him out of the home. The home is deeded in both of our names but ONLY HIS name is on the mortgage. Would I need to refinance the house? Additionally we are approximately $8k behind in mortgage payments. How would that affect retention of the marital home? My parents MAY be able to refinance the home in THEIR name and allow me to pay “rent” so to speak and then deed it back to me after the divorce is final. Is this a possibility? However, meanwhile, if they are unable to refinance for us, what would happen if I am unable to refinance on my own and he is forced from the home yet the mortgage is in his name only?

Thanks.


#10

If you are awarded the home as part of equitable distribution, you may very well be required to either refinance the home within a certain period of time, or sell it to extinguish the loan.

Your parents can certainly help you if they are willing.


#11

Alright. I guess this is where I’m getting a little confused.

I’m under the impression that at this first hearing (whenever it may be), temporary custody will be awarded as well as child support and the other spouse (he) is forced to vacate the marital home and I keep the girls there (this is ALL outlined in the Divorce From Bed And Board complaint). Does this mean “I get the home” or is that just a temporary situation? It seems to stand to reason that since most of the time, temporary custody turns into permanent and rarely gets changed, the home would remain with me. I guess I’m asking if it isn’t “awarded” to me at this hearing but he is forced to vacate the home, who is responsible for payments and I assume he has no rights to the home (ie: he is one who would just “show up”, stating that it’s his home and he can be there if he wants to, etc.).


#12

Temporary child support is often set at the temporary hearing, but your attorney must ensure your complaint included a claim for temporary support, and must notice the hearing for that claim as well.

The award (if any) of the house is for possession of the home. The final determination of who will ultimately receive the home comes later, at the final Equitable Distribution hearing.

Normally the person staying in the home pays the mortgage (this is why you also need support awarded).


#13

Ok, that certainly sheds a spotlight on a lot of things. Thank you.

Now, I called the Clerk of Court and found out that he did, indeed, request and was granted a 30-day extension (just to draaaagggg it out) and the clerk informed me that “I would be notified of a new court date.” Well I wasn’t notified of an OLD court date and I thought that the Plantiff was the one who set the court date (I’m in Union County).

Additionally, I have a misdemeanor shoplifting charge from three years ago (a very poor judgment call on my part and a desperate act to fix something that couldn’t be fixed and I had no one to turn to about). My youngest daughter was with me but she never saw any cuffs put on me, she didn’t really have a clue what was going on and my Mother came and got her before anything happened. The charge was dropped due to me taking responsibility for my actions and completing an “anti-shoplifting” course online. I have not had a problem since (and have no plans to). I’ve obtained full time work after being a stay-at-home-mom for 10 years and don’t make a whole lot less than my spouse does. How badly will this hurt me if he brings it up in court? I mean given my one lapse in judgment going against his on-going domestic abuse (many times in front of the children) and his actions towards the children as well (no violence but mental and emotional games that he plays and I AM, always have been, and continue to be the primary care giver even though I also work full time.) My job is within walking distance of the school, five minutes from my Mother’s house and five minutes from my CURRENT home. He works an hour away and normally is out of the house in the morning at 6:15 and doesn’t get home until 6:30 most nights if not later. He sometimes goes out after work during the week, I do not. I do not drink alcohol (have not in over 18 years) and have never done any kind of drug. He smokes pot and has been known to drink once in a while. He recently went to visit a friend (who also has two daughters) and the girls came back telling me that her (the friend’s) work friends showed up "and they were all drunk and stuff but Daddy said he wasn’t drunk - he had only had two beers he said). I have a journal that spans only just the past year and a half regarding his actions towards myself and the children plus audio and video of arguements and intimidating tactics, etc.

I am hoping this one very poor lapse in judgment that I am so ashamed of will not be a deciding factor.

Thank you!!


#14

You may obtain a new court date by contacting the clerk, and it will be set after the Defendant’s time to respond has expired.

Your shoplifting incident will not be a determinative factor in custody, the court must consider all factors in making a determination. Certainly we are all human and make mistakes. You can demonstrate that you have taken positive steps to overcome your mistake, while your soon to be ex seems to still be making his.