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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
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Experience:  I provide family and divorce law advice to my clients in my firm.
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My wife and I have 4 kids. After the last child, she got back into live music. She plays

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My wife and I have 4 kids. After the last child, she got back into live music. She plays for a cover band, and decided to start an affair with the drummer 4
months ago. I noticed the changes in her, & hired an investigator. Sometimes would be gone 3 days at a time, and i'd be at home denying work to be with the children. I want to file for divorce. She knows that I need it and understands why, however she will not agree w/out a guaranty that I will not enforce child support. Can a post nup stating that neither of us will enforce the child support when assigned by the judge. ( FL have to state) We have been separated for 2 months now. I live in the home, she 's in an apt. We have made a solid 50/50 child care schedule around our work. It's working great. We prefer to make decisions for our children together. She also wants no claim to the heir property we lived on. She wants to prove she can do it all on her own. We already split all other assets.
and are fine with everyt
Submitted: 3 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question.

What your wife is requesting is legally impossible. Here is why:

Even a post-nuptial agreement cannot limit the rights of the children rather than your own. You see, child support is deemed to be for the benefit of the children and not for the receiver of support (for example, alimony). Alimony CAN be waived, but child support can always be pursued, even if you agree to not pursue it. In essence, if you agree to her terms, such a promise would be unenforceable because such a limit of rights would not be permitted under law.

Hope that helps. I also see that your post may have been cut-off, and if you have any further follow-up questions, please let me know and I will do my best to answer them for you.

Edited by Dimitry Alexander Kaplun on 2/1/2011 at 5:48 AM EST
Customer: replied 3 years ago.
What do my chances look like in such a case, in light of she moving out, and the children telling me that she had her lover over on days that I would not be home?
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

Your chances for what exactly? What are you trying to accomplish?
Customer: replied 3 years ago.
Gaining primary home of the children, making her liable for the child support, in which I will not enforce. If it goes the other way, I know that she when desperate will break her word,
security issue. Everything else to me is just details. Thank you in advance.
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

Without knowing more facts I cannot give you your chances, but I can tell you what the courts look for in gaining or providing custody. First of all, they DO NOT look at adultery or extra-marital affairs. While in the past that would be deemed a possible claim to providing evidence that the other party is morally unfit to raise the children, today that is no longer looked upon. What the courts look at, instead, is what they deem to be "in the best interest" of the children as well as the fitness of parents. Fitness is looked upon as possible history of abuse, neglect, domestic violence, drug use, alcohol abuse, mental illness, criminal record/history/parole/probation, & moral turpitude. The courts also tend to favor parents who wish to reside in the current location, and those that have a proper home for child-rearing.

 

For you to prevail you must show the other parent as unfit. Possibly using her late-night trips and lack of attention towards the kids as "neglect", and claim that since the children have a stronger bond with you, you should be granted a bigger role in the raising of the child. The home, on the other hand, is usually granted to the party in whose name the home is listed. If in both, you can request it, but she does not have to comply.

 

Good luck.



Edited by Dimitry Alexander Kaplun on 2/1/2011 at 6:18 AM EST
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38793
Experience: I provide family and divorce law advice to my clients in my firm.
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Dimitry K., Esq.
Dimitry K., Esq.
Attorney at Law
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I provide family and divorce law advice to my clients in my firm.