Regarding Child Custody in Separation Agreement?


#1

My husband and I have been separated since 10/12 and we have two children, 5 and 4. We signed a separation agreement but I feel like I was bullied somewhat into signing it. I have been a stay at home mom for five years basically. I have worked some but we moved a lot with his work so my work history is awful. I cheated not physically but emotionally through texts messages and with my manager and at restaurant I worked at in the evenings. They were never around him on a family setting and they only know him as mommy’s friend. Nothing more. He threatened that if I tried to get full custody that he would take me to court and that he would win because of all the evidence he has against me for cheating. I don’t have family here and I was overwhelmed with everything going on that I signed the agreement stating that we would have joint custody. He stayed in the house even though he has family he could stay with and I don’t. I am working as a waitress right now in the evening because I have the children during the day during the week and some nights.I have them 75% of the time. He was never involved with the kids day to day lives. He made the money and thats it. He doesn’t really pay child support, maybe 200 a month if I am lucky. He makes triple what I make.
My question is does he have a case of getting full custody if I were to try and get full custody.
Next question. Can we modify the separation agreement?


#2
  1. Child support is always modifiable.

  2. It’s unlikely he would get full custody. Extra-marital affairs usually have little to do with child custody unless the paramour is a threat to the children.

  3. Your affair only affects your ability to receive alimony. You are still owed 50% of all marital assets which can include the house, savings, retirement, cards, etc. However, if you signed these assets away I’m not sure what can be done about that.

If you haven’t already you should file for custody and child support. FYI – people seem to think filing for custody means you’re taking the children away which is not correct. It only means you want to issue of custody to be brought up and settled, whether that means joint/shared/sole custody is to be determined.


#3

Thank you for answering back Endoftheline. The kids are the most important thing for me. I don’t want alimony I just want help with the kids.


#4

Rosen.com has a great child support calculator which will fairly accurately predict what kind of child support obligation there would be.


#5

It is very difficult for either party to get full custody in the absence of egregious behavior by the other party. A contract is modifiable, but that requires consent of both parties. You should consider a consultation to discuss the specifics of the agreement and how it was entered to determine if you have an argument to set it aside.

Even though your question wasn’t specifically about child support, I must correct the previous poster’s misunderstanding of the law. Child support provisions in a separation agreement are not always modifiable. It depends on how the separation agreement is drafted and whether you are able to overcome the presumption that the obligation contained in the agreement meets the child’s reasonable needs.


#6

Thank you for answering me back. I have consulted with my attorney and I think the way the separation was written up it is not going to be modifiable. I have been to my husbands house, he does not clean it, does have food in the fridge ever for the kids, never puts their clothes away, doesn’t give them a bath half the time. It is nothing major but I provide a better home even though he make triple what I make. That is probably not grounds for more custody than him but I know they would rather live with me than him. So if my separation agreement won’t let me modify it, does that mean I can’t even get child support? I would rather have the kids more and not get child support. but I also want to be able to support my kids. I will never make as much money as my soon to be ex. I still want to provide for them.


#7

I’m glad you spoke with your attorney. Someone who is familiar with a situation is more equipped to give advice on how to proceed.