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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11709
Experience:  19+ Years of Legal Practice in Family law matters.
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I am a wife and mother of two children, ages 14 and 9. I ha

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I am a wife and mother of two children, ages 14 and 9. I have been married 13 years to my husband. I got married after becoming pregnant with his child. I have never been happy in the marriage. We have been to counseling off and on for the past two years. The marriage simply does not work for me but does for him. I have shared with him that I am not in love with him anymore. He has been emotionally abusive through the years too. He is very controlling. His jealously and control suffocate me. He says he is changed now that he knows I am serious about leaving. I told him that it was too late for him to try (I cant stand for him to even touch me). I told him I wanted some space and that I didn't want to live under the same roof with him for awhile. He said that I would have to get out (I don't mind that), but that if I thought I was taking the children with me I was badly mistaken. He will not be adult like about the situation. Please advise...
Submitted: 4 years ago.
Category: Family Law
Expert:  AlexiaEsq. replied 4 years ago.

Dear trmart,

 

Thank you for your question and I look forward to working on your answer. Also, it is important to know that I can only respond to your post and the information contained in it, as I do not know what you know, unless you describe it fully. Also, because you are at this site, you are asking me the question because you want the legal facts, as I see them, even if unfavorable to your situation from a legal perspective. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if I ask a redundant question.

 

That being said, if you would like me to work on an answer for you, and in order to better assist you, could you please clarify for me, in numbered answers if I ask more than one question:

 

1. Are you asking if you can move out with the kids, pending divorce.

 

I look forward to getting to work on this for you. Hang in there!

 

 

Sincerely,

 

S. Joy, Legal Expert

 

Please note: I do not provide legal advice, only legal information; I do not legally represent any JA members, visitors or customers. We do not and will not enjoy an attorney/client relationship. Further communication with me here is an acceptance of this and any information provided by me is with the understanding that you comprehend this and agree.

 

At times there can be a delay of an hour or more in between my answers because I may be helping other customers or taking a break. In addition, if it is late at night, EST, and we are between postings, I may go get some shut eye, but I'll be back the next day, so never fear.

 

Customer: replied 4 years ago.
1) Yes, Can I move out with kids pending divorce?
2) He says if I leave he will bring me up in court for being unfit mother and abandonment? To prevent a traumatic experience for kids I have considered moving out until I can do something legally to get my kids.
3) He is trying to force me to stay by holding the kids over my head. Needing peace that if I leave I can legally be quickly reconciled with kids.
4) I am not romantically involved, but do have feelings for someone else and my husband knows that so can that be held over my head where my kids are concerned? Im scared.

Thank you for your help...I can't live like this anymore.

Customer: replied 4 years ago.
Is anyone working on my question?
Expert:  AlexiaEsq. replied 4 years ago.
Yes, I'm still here, my answer will be posted shortly. Thank you for your patience. Sometimes customers don't realize there are actual attorneys assisting throughout the regular practice day, not canned answers that are automated etc. I'll be right back!
Customer: replied 4 years ago.
Ok, Im sorry.
Expert:  AlexiaEsq. replied 4 years ago.

Hello again, and thanks for your patience. And don't apologize! I know this is a very trying and troublesome time for you.

 

With regard to your posted specific questions:

 

1) Yes, Can I move out with kids pending divorce? Yes, as could he. You both have equal rights here until the court establishes custody.

 

2) He says if I leave he will bring me up in court for being unfit mother and abandonment? This would not fly based solely on you leaving, either with or without your children. Unfit means abusive, neglectful, NOT if you leave your children at home with the other 'fit' parent. People separate and often it is better for the kids for one to move out, rather than have drama in front of the children.

 

To prevent a traumatic experience for kids I have considered moving out until I can do something legally to get my kids. You absolutely can - and you can actually take them with you. But, it is also possible that when you do and he comes to visit or get them for a night or two, he won't return them - when there is no court order, that is what happens. This is why I recommend an Emergent Motion for Temporary Custody pending final hearing.

 

3) He is trying to force me to stay by holding the kids over my head. Needing peace that if I leave I can legally be quickly reconciled with kids. Absolutely. Consider leaving with them if you have an appropriate place for you all to live (# XXXXX bedrooms, nice neighborhood, etc.), and just as you are leaving, having him served with papers you have already filed in court for Emergent Temporary Custody, Divorce, etc. If you have been the caretaker (primary) thus far in their lives, there is a good chance you will be the custodian.

 

4) I am not romantically involved, but do have feelings for someone else and my husband knows that so can that be held over my head where my kids are concerned? No, but I'd quit sharing with him the subjective breaking of the vows, and refrain from considering adultery at this time. If the other individual is worth it, that individual will be more than happy to wait.

 

Im scared. I know, kids complicated the split, so much.

 

Thank you for your help...I can't live like this anymore. Please feel free to follow up here, I know it is more complicated than it seems.

 

Hope this helps to clarify. If it does, please click ACCEPT and follow up if needed after you do so. If you need more detail, please click Reply, not ReList and I will gladly respond. Also, if you exceeded the one question one answer standard, and the expert provided you with answers to your additional questions, BONUS is an appreciated way of saying thank you! This expert's credit proceeds go towards providing volunteer provisions for the disabled. Thank you for helping!


 

I believe I have answered your question and I hope you a better understanding of your legal issue as a result. As you know, I am only the messenger, not your attorney, nor can I create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. ACCEPTING the Answer a so ensures I will be able to assist your with your future legal question. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of a new post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks

 

Sincerely,

 

 

S. Joy, Legal Expert

 

 

My Standard and Required Legal Disclaimer. The information given by me here is not legal advice. You should not and may not rely on anything on this website as legal advice and you agree that the nominal price you may voluntarily pay for information here clearly does not pay for any legal advice. I am neither establishing nor accepting an attorney-client relationship with you. You must hire an attorney in your state as a matter of law, in order to receive legal advice and attorney/client relationship and rights. I do not claim to be licensed to practice in the state where this information is being provided or whose law would apply, if any. My licensing credentials are noted in my profile, which you have full access to. As law is always changing, you are recommended to consult with the appropriate legal counsel in your jurisdiction for accurate and complete information. Thank you, XXXXX XXXXX a great day.

 

Customer: replied 4 years ago.
Thank you for the detailed answer. It is very helpful.

There are text messages to the person that I have feelings for that my husband may have acquired. I am well able to take care of myself and my kids financially so I am not concerned about the "monetary" support from my husband, but will this impact my ability to have primary custody of my children? The person that I care for is perfectly willing to wait, but much could be drawn from the text and emails that has not happened. Thanks for your reply in advance.
Expert:  AlexiaEsq. replied 4 years ago.

Hi tr,

 

First, unless your texts indicated adultery, it will likely not be a problem. Moreover, your husband would have to generally sue on grounds of adultery and prove the adultery specifically. He likely can't do that if it didn't happen.

 

Moreover, adultery generally does not equate with that parent then not being "in the best interests" of the child" - rather, it is who has the better home life for that child. While adultery may not have a direct effect on the custody decision, it may play an indirect role if, say, you were spending inordinate amount of time by choice, with the other person, which took away from reasonable time with the child, or, if sexual engagements were happening in the home, while the child was home - things like that. I doubt you will have a problem - and how is he to prove what was in your texts? He will likely be breaking laws by intercepting your texts on your cell phone, using your personal identity information to hack in, etc.

 

It is never easy when we have our custody of our kids at risk, but you do need to make a happier life for yourself too. Consider being willing to go 50/50 joint custody, if practicable, but get the details nailed down as to dates, holidays, times, exceptions, etc., working in the extra curriculars so as not to have the kids' lives suffer as a result. Consider fighting for physical custody while being willing, in reality, to settle for 50/50.

 

Also, keep in mind too that if you do leave with out the kids and they are de facto then in dad' s custody, and a year goes by, that will become the new statuts quo, which is one more nail in the best interests of the child being in you, because courts like stability so long as it is working favorably for the kids.

 

Good luck!

 

 

AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11709
Experience: 19+ Years of Legal Practice in Family law matters.
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