Rushed Divorce proceedings; Custody, etc


#1

My wife had an affair two years ago. After initially attempting to work it out, she decided to give up and move on with separation. Recently she came out as a lesbian. We have four minor children together.

She said at first that she wouldn’t be “parading women” around the kids, but after a recent disagreement, said that they’d be meeting her new girlfriend real soon. She then skated back on that statement and said she doesn’t have a girlfriend- she’s just talking to someone (whatever that means).

She said she’ll be moving out within two months and she had been talking with some divorced friends who advised her that the courts “don’t have to know” that it hasn’t been a full 12 months of separation and we can speed up the process. Tempting- but I feel funny about playing around with the law like that.

I know NC does the 50/50 default thing, but I believe I should be the primary custodian. I stepped down from a salaried position to allow her to receive all the promotions she’s received, plus even when I was the main breadwinner, I was the main parent doing the pick up/drop offs, appointments, parent/teacher meetings, church, etc. I provide more structure and order for my kids, while she tends to be more absorbed in her phone and texting whomever when she’s supposed to be watching them. Just today, my daughter called me at work to ask me about using the microwave, because her mom wouldn’t answer her (she was on the phone). Kids should have lunch by around 12ish, but there’s been several times I get off of work after 1, and found out that all they had were a bunch of snacks. In other words- she may not be abusive, a junkie, drunk, or the like, but she’s still not a good mom. Too many things go over her head as a parent that I nip in the bud as best I can.

She has openly contradicted me in front of the kids, and they know that they can sneak and ask her for things that I’d likely say no to for reasons of trying to teach responsibility (rather than spoiling them).

I printed out a subpoena form to obtain copies of text messages (both cellphone lines including the one she uses is in my name) to see if I can get further evidence of her “talking to someone” as she put it. Other than that, I’m not really sure what other moves to make. I just want my kids to be secure.


#2

North Carolina requires spouses to live continuously separate and apart for one year before one spouse can file for an absolute divorce. The person filing the complaint must sign a verification that the information in the complaint (including date of marriage and date of separation) are true and accurate to the best of their knowledge. By intentionally misstating the date of separation to make it look like one year has passed when it has not, that person would be perjuring themselves, which is a crime. The person filing the complaint may also have to testify in front of the judge in order to have the absolute divorce granted. Testifying to a fact that the person knows to not be true is perjury.

Your can hire a private investigator to see if she is indeed dating someone. An act of illicit sexual behavior on her part during the marriage can affect alimony.

You are correct that 50/50 custody is the “norm” in North Carolina. You may want to consider mediation as you and your wife negotiate a custody schedule if you want to reach a settlement out of court. Otherwise, you will need to file a custody lawsuit against your wife. The facts you state likely do not warrant your wife receiving less than 50/50 custody.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#3

Thank you for your response.

I would like to hire a lawyer, but I just don’t have the funds right now.
However, I want to be proactive, seeing as how my spouse says she plans to
move out next month. I want to have a separation agreement ready.

  1. What is a good website to use for having a proper separation agreement?

  2. What are my options if I come up with an agreement but she refused?

  3. How much would it cost for someone from your law firm to review my
    agreement for me?

  4. The $199/mo advertisement: what exactly does that include?

  5. During a consultation with another firm, the attorney warned me that my
    spouse can run off with my children to her home town of Savannah, GA. Until
    that conversation, I was under the impression that she wouldn’t be allowed
    to do so without my consent. The attorney said she in fact could do so, and
    I would have to file a lawsuit to try and get them back. Is this true? He
    recommended that upon her moving out that I refuse to allow her to take the
    kids until she signs an agreement.


#4

Another question: if I wished to be represented by your firm and finances
are an issue, can a payment plan be arranged? Would it be prudent to add
attorney fees to the potential suit and/or agreement?


#5

(1) Our website has Sample Separation Agreement for you to use as a guide.

(2) If your wife does not agree to your first offer, then you could make another offer, schedule the contested issues for mediation, or file a lawsuit against your wife.

(3 & 4) Our Rosen Online Service could be a great option for you to get help in drafting your own separation agreement. With Rosen Online ($199/mo.), you get access to a library of legal forms and contact with one of our attorneys. It can be a great resource without having to spend thousands retaining an attorney.

(5) Yes, your wife could leave out-of-state with the children. If she did however, or there was a substantial risk that she was going to, you could file an emergency ex parte custody action against her in order to quickly obtain a court order to stop her from leaving the State of NC with the children or to get the children back into NC.

(6) Our firm does not accept payment plans. Yes, you can ask for attorney’s fees in a lawsuit against your wife if you are an interested party acting in good faith without sufficient means to defray the attorney’s fees, costs and expenses of the lawsuit.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#6

Good afternoon,

I’ve been looking up divorce from bed and bath. I know that infidelity is
one thing that applies to my situation. I also think I have a case pursuing
it on grounds of making life difficult/unbearable. If I wished to file,
what should I make sure I have in order, and what steps should I take?


#7

If you are considering filing an action for divorce from bed and board, you will need to make sure at least one fault ground applies and that you can prove each fault ground that you are alleging. You will need to prove each fault ground by a preponderance of the evidence (more likely than not).

Check out our article What is a Divorce from Bed and Board? for a detailed explanation of this claim and each of the fault grounds.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#8

I am about to file for custody and alimony pro se because I am unable to
afford a lawyer at the moment, but I need to get things going legally and I
can’t waste time. I am carefully filling out the paperwork. My question is
should I type up the things that I have been documenting about my spouse to
hand in along with the legal papers, or do I save those things for court?


#9

You can include some of these things in the complaint to generally support your claims for child custody and alimony, however, any details will be best saved for trial and the discovery process.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#10

Good morning,

My spouse and I have officially separated back in November. The children
are primarily with me during the week, as I take them to school and
daycare. My spouse usually gets them on the weekend (Friday evening to
either Saturday night or Sunday morning). I’m not receiving any support
from her at the moment (not buying food, help paying for child care, etc).

I’ve begun the process of getting legal custody, and thus far we’ve been to
orientation and are scheduled for mediation.

I’m thinking that as tax filing season rolls around, my spouse will attempt
to file and claim the children as dependants on her own return. She is in
possession of their birth certificates and social security cards and won’t
allow me to have copies.

What should I do with regards to filing a return?


#11

Good morning,

As mentioned earlier, the custody process is underway, and nothing is on
paper at the moment. All we have is the weekend agreement where my spouse
picks up the kids on Friday. This week, we had two consecutive school
closings due to snow, so she came to get them a day earlier. No problem
there. The issue is this: she is scheduled to work today (Friday), and
rather than drop my kids off with me, she is leaving them in the care of
her live-in girlfriend. I don’t know or trust this girlfriend, and I hate
idea that my spouse is allowing this woman so much bonding and alone time
with the kids when they don’t need this in their delicate lives right now.
I know I’ll be able to fight this legally soon, but what can I do today to
retrieve my children without police involvement?


#12

Without a court order or separation agreement addressing who claims the children as their dependents on their income tax returns and when, the exemption will go to whoever files first with the appropriate documentation. If your wife claims them for 2017, then likely you will want to claim them in 2018 and all even-numbered years after that.

You can go pick up your children since you don’t have a court order directing otherwise. It would be best to have an agreement or understanding with your wife that this is what you will do. You could run the risk of trespassing if the girlfriend demands that you leave the property and you refuse.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#13

I’m currently awaiting my mediation date (it was postponed due to inclement
weather). In the meantime, I have mounting childcare expenses due to my
spouse not providing any support. Now I’ve already filed for custody, but
is there something else I can do in the present to get her to pay her fair
share? Or am I stuck until I have papers to prove custody? Would I be able
to sue for the things that I’ve been forced to pay for on my own?


#14

You will need to save receipts for your expenses and wait until a child support court order is put into place or until an agreement can be reached in mediation. There is nothing more you can do while a mediation date and/or court date are pending.

You would not be able to sue for the expenses that you have already had to pay but you could be awarded retroactive child support.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#15

First off, I greatly appreciate this forum and you taking the time to
provide answers free of charge.

My spouse said she does have a lawyer, but someone who I know in the legal
field (not a family lawyer unfortunately) said that I should have been
contacted by the attorney by now, which I have not been. Is there supposed
to be communication between myself and her attorney, or are they waiting
until after the mediation?

Speaking of the mediation- the orientation told us what to expect and how
the mediation will have no bearing on the case should it go to court. I’m
curious though: based on your experience, is this true? What exactly should
we be expecting from the mediator?


#16

If your spouse actually hired a lawyer then the lawyer would reach out to you fairly quickly. It’s possible that your spouse has not paid the lawyer their retainer in full so that lawyer can’t begin on the case.

It is correct that anything discussed in mediation cannot be and won’t be brought up in a custody trial or a custody court date. The mediator is trained in dispute resolute and he/she will help you and your spouse reach a custody schedule that you can both agree to. The mediator does not make any decisions.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#17

We didn’t come to an agreement in mediation, so we are awaiting a hearing.
Up to this point, I’ve had possession of the kids throughout the week,
while my spouse got them on the weekend. That’s just how things fell into
place before I filed for custody. Now that I’ve filed, it appears my spouse
is scrambling to make things look 50/50- a trick that I’m sure is done to
get out of paying support. The problem is that she is trying to get the
kids more nights out the week, which not only messes with the status quo,
but will cut into my quality time with the kids (I am the one who picks up
and drops off at school- which is also where I work- but car rides don’t
make up a lot of quality time). Plus this has the potential to simply wear
the kids out with all this traveling back and forth from Raleigh to Wake
Forest to Cary every day, and it’s all just to try and make herself look
good for the coming hearing. Should I file a temporary custody order to
block her from disrupting the schedule that was already in place?


#18

It sounds like you have already filed for child custody and temporary child custody claims since you attended custody mediation. You won’t be eligible for an emergency ex parte custody order based on these facts, so you would have to wait until a hearing date in order to have a set schedule in a court order.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#19

The best way for me to ask this question is to come up with the scenario: while we are still awaiting trial and have no paperwork drawn up yet, my spouse is in possession of the children. She leaves the children in the care of her significant other to go to work, and I’ve made it clear on a number of occasions that I don’t want the person left alone with the kids.

I go to retrieve the children from the person (who has no legal claim whatsoever to guardianship over my children). I don’t go into my spouse’s apartment or even set foot in front of her door. Would I be able to call the police on the significant other to get her to hand over my children?

My other question (no scenario necessary this time) is as follows: Seeing as how we’re still legally married, and my spouse is clearly living with someone else, isn’t that enough to prove adultery without having to get phone records and other things?


#20

Since you have no custody order yet and are awaiting a court date, any custodial arrangement has to be by agreement of the parents. In the scenario that you give, the police will be unable to help you because this is a civil matter. However, the facts that you provide will likely give you a strong argument at your custody court date.

Living with someone else, by itself, is not enough to prove illicit sexual behavior. You must prove illicit sexual behavior occurred during the marriage (between date of marriage and date of separation). This is generally done by phone records, hotel receipts, emails, text/Facebook messages, etc.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.