POSSIBLE DIVORCE AND CHILD CUSTODY

Aug 8, 2012 by

Question: 

MY WIFE AND I HAVE BEEN MARRIED FOR 17 YEARS AND SHE DECIDED SHE NO LONGER WANTS OUR MARRIED FOR MANY REASONS. WE WERE MARRIED IN FLORIDA AND HAVE BEEN LIVING IN NEW YORK CITY. WE HAVE A HOME, CAR AND TWO CHILDREN ONE FROM HER FIRST MARRIAGE AND THE OTHER IS OURS. SHE HAD CONTROL OF ALL THE INCOME OF THE HOME AND I JUST FOUND OUT SHE WAS NOT PAYING THE MONTHLY PAYMENTS OF THE HOME. WHAT CAN I DO? IF IT COMES DOWN TO A DIVORCE I DON’T WANT TO LOSE CUSTODY OF MY 12 YEAR OLD SON.

State: 
New York

Answer: 

If divorce is the only avenue left, and if you and your wife have been living in New York for at least a year, you will have to file for divorce in the state of New York.  Under New York law, grounds for divorce are limited to cruel and inhuman treatment, adultery, abandonment for a continuous period of one year or more, and imprisonment for more than three years.  Also, a couple can separate for more than one year and either have a separation agreement or judgment.  New York does not recognize no-fault grounds such as irreconcilable differences.  Unless you or your wife alleges one of the fault grounds, you two will probably have to separate for a year in order to divorce. 

 

The easiest way to resolve the issues of your house and car would be for you and your wife to come to an agreement on the division of property.  If you are unable to reach an agreement, then the court will settle the issues of property distribution.  New York is an equitable distribution state, which means that when dividing up marital property the court will determine what is “fair.”  The court will look at various factors when determining what is fair, such as the income and assets of each party at the time of marriage and at the time of commencing divorce, duration of the marriage, the health and age of each party, and the probable future circumstances of each party.  The court can consider the wasteful dissipation of assets by either spouse ““ which means that if your wife has been spending your shared assets in a wasteful or irresponsible way, the court may hold that against her while dividing up your marital property. 

 

In regards to your child, the law in New York does not favor either parent over the other (so there is no preference for mothers over fathers), but rather considers what is in the “best interests” of the child.  In determining what is in the best interests of the child, the court may consider the following: mental and physical health of the parents, any domestic violence, work schedules and child care plans of each parent, ability of each parent to cooperate with the other, which parent has been the main care giver for the child, parenting skills and ability to provide for any special needs, and what the child prefers (which becomes more important if the child is older).  Courts generally want both parents involved in the child’s life.  The ideal situation is for you and your wife, if you decide to divorce, to come to an agreement on child custody issues.  Then the courts will not have to make these decisions, which means less stress and expense for you. 

Wendy Jaffe and Divorce.com can only provide general information about divorce. DO NOT RELY ON MS. JAFFE’S ADVICE ALONE. Before acting on information provided by Ms. Jaffe or by Divorce.com, talk to an attorney first about your particular facts and the law of your state. By submitting your question to Divorce.com, you are not creating an attorney/client relationship with Ms. Jaffe or with any of the other attorneys listed on this site.

 

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