Several Unanswered Questions


#1

I have been going through a bitter divorce and trying financial times for over a year now and am a little frustrated with the answers I’m getting from my attorney. I’m hoping to get some advice on the following issues:

  1. Divorce is final but ED, post-separation support and alimony still issues. Have a new fiance but she won’t marry me until we know if ex can come after combined household money. Can the ex get her greedy paws on any of my new wife’s (when she’s my wife) income for support or child support??

  2. I am unemployed and have some medical issues - ex has a part-time job. House that ex lives in and that has been for sale for over a year is nearing foreclosure and ex is threatening to take kids to hometown out of state before the end of the school year. Can I stop her from doing this? Can I fight for custody since I have a relatively stable financial household (especially if the answer to question #1 is favorable)? Is there a chance in Hell of a father (especially an unemployed father) getting custody? The questions in my mind is (a) stability which I can supply and (b) opportunity - the hometown the ex will take the kids to is EXTREMELY poverty-stricken and has one of the lowest reputations for schools, whereas now they are in an affluent area and good schools.

I would like some opinions and thoughts. This is very difficult - I don’t want to lose my children to geography!


#2

I’m sorry to hear that you are going through this. I’m sure the attorney will respond to this but to set your mind at ease a little I can respond to this…

  1. A step parent’s income is not factored into child support or alimony calculations. Child support is based on both incomes, amount of insurance and daycare and the number of overnights spent with each parent.

  2. If custody has not been heard previously you can file for custody, and probably should. You can ask the court to order your ex to remain within a certain distance so that visitations will not be disruptive to the children’s lives. Once you file for custody you will go to mediation and then on to court if you and the ex can not work out an arrangement that is best for the children in mediation. You can always try for primary custody and then settle with the ex for joint custody with equal time.
    If you do go to court, you will need to show why it is in the children’s best interest to remain with you. Information about schools, neighborhoods, and your home will be useful. Your employment status could be an asset if seen in the right light, after all, you would be home to care for the children on a regular basis. Sit down with a calendar and figure out a schedule that would work with your new wife and the children’s schedule.
    The courts normally do award custody to the parent who has been the primary caregiver but there are more judges awarding custody to fathers than previous years. It may only be a matter of putting up enough of a fight that the ex determines it is not in her best interest not to give you equal time with the children.
    My husband had to do much this same thing. His ex threatened to take the children across the state so he filed for custody. They went to mediation, we went to a preliminary hearing in court with all the witnesses and evidence, and then they settled for joint custody with equal time much as they had before she threatened to take the children away. Took about 3 months and quite a bit of money on both sides to even take it that far…I can’t imagine what it would have cost if they had not settled.

My suggestion is to talk to the ex. You have children together and that is not going to change regardless of where everyone lives. It would benefit the children more to have both parents as involved in their lives as possible. Find out if the ex is willing to work with you to make things easier on the children or if she is determined to do whatever necessary to make you miserable…even to the point of hurting the children. Record the conversation if possible. In NC you can record telephone conversations that can be used in court as long as one party in the conversation knows that they are being recorded. Both parties must be in NC however. Once you have that information, you will know how far you have to go once you file for custody.


#3

Thank you. Yes, the ex has made it her mission to make my life miserable. The house I paid for after I left and for over 18 months is now nearing foreclosure. With my employment and medical condition, combined with the fact the ex has not helped in ANY way, forced me to stop paying back in late November. She is trying to get me to sell my half of the house to her for nothing so she can stay in the house. However, her proposal is clearly so she can make a sizable chunk of money when she sells it a couple years from now. The possibility of foreclosure and the threat of taking the kids out of state are her aces. Unfortunately, I think I’m screwed b/c if I let the house go to the bank, I look like a bad father and she has “no choice” but leave (what? leave a job and take the kids from stability and schools – she’s making $3K/month with her job and my child support). If I sell to her, she and the kids stay, but I get screwed out of the sale of the house (she’s already made sure the house didn’t sell) and she gets it as an investment for her future. Sucks. I hate to spend MORE money but I really feel like fighting her for custody since she’s put me in this situation!


#4

No, your new wife’s income is not included in any child support calculation. Only your income and that of your ex will be considered.
If you have a custody order in place and her move makes the current schedule impractical or impossible you can prevent the move. If not, you need to get a hearing scheduled to address her threats to move with the children.
Custody is based on what is in the best interests of the children, and father’s often get substantial time, the “50-50” arrangement is becoming more and more common. More often than not courts find that having both parents as active parties to the children’s lives is best. The socio economic status of the proposed new location and the school system are all factors which can be presented in court, and work in your favor, against the move.


#5

If your ex is capable of working then I suggest you speak to your attorney to protect what assets you have left. If you are not happy with this attorney, get a new one now before you file anything. Some of the others have suggested finding out the court schedule and sitting in on some cases to “choose” an attorney…family court is open to the public.
Since you have continued to pay on the marital home the equity built up in the home is divisible. Given the current situation your ex should be the one to buy YOU out of the home, not the other way around…
You would not look like a bad father because you stopped paying for the marital home. The financial situation is separate from the custody. Your ex remained in the marital home and since she is only working part time, I assume you have been paying the mortgage instead of her asking for alimony. Since she is capable of working and currently has a job then alimony may not be an issue…Gather all the financial records. This could also show the court that the ex has not been sharing the marital debt…


#6

Yes, the ex has NOT been sharing the marital debt and the finances show I have paid over $40K in support throughout the separation - with and WITHOUT employment! Now she is threatening (a) seeking post separation support/alimony and (b) taking the children from the state if I don’t agree to “sell” her my half of the house from which she will net a sizable profit in 2-3 yrs. I don’t like feeling like I was cornered - your comments are making me feel a little better! Thank you both.


#7

My attorney is filing a motion to keep the kids in NC and I am seriously considering trying for custody. What is the ex’s “best” defense for taking the children out of state permanently and how do I combat that?


#8

The best arguements for removing the children from the state would be for a increased financial or employment opportunity that she could not get in NC, a family network for support and/or an improvement in living conditions. This is why your evidence of the economic environment and schools would be to your advantage.
In other words, the courts could give consent for her to remove the children from the state if there was a high paying job that she was moving for, if she has a large family there that would be able to care for the children in her absence since the distance would make the other parent unable to care for them, or if the environment she was moving to would greatly improve the children’s living conditions.
Her failure to contribute to the marital debt (mortgage) should not have to impact the children so directly. She is moving for all the wrong reasons and that will come out in court.
Your job is to convince the courts that it is best for the children to remain in NC and if you decide to go for custody, to reside with you. Do not try to show that she is a bad mother, that’s the attorney’s job. You get together all the “dirt” and give it to the attorney. When it goes to court, you focus on your children and your desire to have them in your life. Focus on what’s good about your home, what you do for the children and what you can provide for them. The schools they would attend, the parks available for them to play in, the neighborhood with children their age, or family close by (even the new wife’s family) for them to spend time with, their rooms at your home, the homework you help them with…
The better father you are for them and show to the courts, the more difficult time your ex will have convincing the court that they should move away from you. The more difficult it will be for her to convince the courts that you should not have at least joint custody with equal time.