Separation


#1

Hi,
What I need to do to separate? I need a laywer? If so, How much will be?
We have a child (9 years old). If I leave the house and make the first step of separation, will affect me on my custody of my child?


#2

In order to separate you have to live separate and apart from your wife.

You do not need a lawyer to separate.

Who decides to separate does not usually have a bearing on child custody.


#3

Could you please explain this??

Who decides to separate does not usually have a bearing on child custody.


#4

NOT AN ATTORNEY

Until child custody is determined by either an agreement between the parties or until it is determined by the courts, both parents have equal rights to the children and for all intensive purposes have split custody. Who leaves the house or chooses to separate does not forfeit any rights to the children. Choosing to separate is not abandonment.

Having said that, IMHO, you should set a custody schedule as soon as possible for the children to have as much of a routine as possible. It also has the added effect that if you want joint custody of the children, you can set that expectation up front and demonstrate your intention to be a prominent presence in your children’s lives should custody decisions go to court.


#5

Ryan / Athos
Thank you for the info.
Now, If I move and she wants full custody just to make my life impossible. What I need to do? How I can spend my time with my son? She doesn’t wants to make an agreement and if she wants, she wants full custody, and want that I sign the house to her. I don’t care that she stays in the house, but I don’t want to sign the house to her. She had been an irresponsible person with the money.
I told her that we should sell the house. It is going to be difficult for me checking if she pays the monthly bill of mortgage.


#6

NOT AN ATTORNEY

You can use the sale of the house as a bargaining chip. If she wants to keep the house, insist that she refinance it in her name only, then you will remove your name from the deed and it is solely her responsibility. If she is unable to do that, I’d say that you insist on selling it and splitting the proceeds.

As far as moving goes, I’m not sure exactly what you are talking about here. Are you speaking of moving out of the area? If so, you will have to decide who gets primary physical/legal custody and who gets secondary. Chances are that since the children are already in your current area, whoever stays will have the upper hand whereas the mover will have to provide good arguments for moving the children out of the area.

If you are simply speaking about moving out of the house but are still staying within a 15-20 min drive, then no, both of you have equal rights to the children for custody and visitation purposes. You’ll need to set up a safe, healthy stable environment so that you can split custody with your STBX. She may still fight it, but unless given good reason otherwise, the courts usually want both parents to remain equally active in the children’s lives. Courts do tend to favor the more reasonable parent who wishes to keep the other parent actively involved in their children’s lives as much as is feasible.

FWIW, if she is already this divisive, make sure that you keep every item of communication between you two. Where possible, force it to recordable forms, such as email or voice mail. Failing that, keep a phone log, or in the case of text messages either forward them as email to an email account, or if you can’t do that, copy them verbatim into an email or document (with your responses) and put the time/date as to when each was sent/received. Never ever threaten, no matter how angry your STBX makes you. The rule now is document, document, document. It’s all evidence.


#7

So you are saying that she can refinance it in her name and pay my part of the house?? I don’t think she can do that but I will bring it to the table.

Yes, I am talking about moving out of the house and staying close by. I still don’t understand how I am going to spend time with my son that first year of separation. Who is going to tell her that we have equal rights of the child? I already talked with her but she said that I don’t have the rights and as I said before, she doesn’t want to make an equal or fair agreement. The court will be involve after the first year.

Sorry, but I have to ask this question
Are you a lawyer or law student?? What is your background?


#8

NOT AN ATTORNEY , means I’m not a lawyer, nor am I currently enrolled in law school. I don’t want to pretend to be, so I try to remember to put it on any of my posts so that it’s not misleading. Mostly, I just try to answer questions based upon information I’ve received from NC lawyers or case law I researched dealing with my own cases, or, cases/attorney responses I’ve read about on this forum. I am a divorcee, a stepmother, a child of divorce, and a grandchild of divorce, so I come from a lot of perspectives.

I was a law student of sorts, but not in NC law, nor have I trained to be a lawyer in any state. My educational background is so unusual that it would immediately identify me to those who I’d rather not know my online name.

As far as refinancing goes, you’d probably have to sign some sort of agreement to allow her to refinance in her name only, and have some proviso in case she is unable to due to her income or situation as to what would happen to the property. (You’d also want to set a time limit as to when refinance would be completed…an attorney can help you with that.)

As far as custody goes, she can “say” that you have no rights, but that won’t make them disappear. If you feel as those the courts will be involved anyway, why not just move out and file for joint custody of the children? Or, offer her a joint visitation schedule giving fairly equal time between you and her and if/when she refuses, then file for joint custody. She will have to make a case as to why not to grant you joint custody. Use the time before court (or for that matter before separation) to document any evidence that proves that a.) you are a good parent, b.) you are a strong presence in your children’s lives, c.) that the schedule you proposed is fair and wouldn’t be disruptive to your children’s lives too much more than their current life is (i.e. you’d keep them in their current schools and are willing to drive them to/from school), and that you are the parent most willing to work for an equal balance of parenting between yourself and your STBX.


#9

Married around 15 years. Our salaries right now are very similar. I make like 5 dollars per hour more than her. Do I have to pay her (Alimony, child support, etc.)??
I am asking this question because I have to do a budget and to see what apartment I can afford. I was unemployed for 2 years and I have to pay some credit cards.
Do you know what will happen, if I move out to an apartment, lease it for a year and before the year I have leave to that contract?


#10

NOT AN ATTORNEY

Child support you will owe no matter what until the child turns 18 or graduates from high school, whichever is latest. There is a calculator on this site that can help you determine how much you’d have to pay per month. Keep in mind that child support calculations are done off of gross income, not net. You will also probably be asked to maintain health insurance on the children.

There are a lot of variables for alimony and determining when it is owed, for how long, and what the amount is. Ability to pay is one of the considerations, however, and commonly alimony is determined after child support is figured. $5/hr difference can mean a lot depending upon the overall salary. If it’s a case of you make 52k and she makes 50k per year and there’s no marital misconduct, then you probably wouldn’t owe. However, if there’s marital misconduct and/or you make $28k and she makes $20k, then yes, there will probably be alimony owed.

Given the length of the marriage, if you owe alimony, I’d count on owing about 7-8 years.


#11

Do you pay child support even if you have join custody??


#12

*** NOT AN ATTORNEY ***

Yes you still pay for child support even if you have joint custody. They have a calculator on the main site to help you determine how much you will owe.

In the case of my wife and myself, I gave her more custody of our child in exchange for lower child support payments and no alimony owed. She was willing to accept it after I drafted the agreement to state that I would get him every other weekend, 6 weeks during the summer, and alternating holidays every 2 years. You may try doing something like this and see if she is willing to budge a little. Just make sure you spell everything out thoroughly in the separation agreement so it doesn’t come back to bite you later.

Sometimes it is better to know when to lose a battle in order to win a war.