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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89091
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My husband and I are currently living seperately in the same

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My husband and I are currently living seperately in the same house. In order for us to seperate legally I will have to be the one to move out because I do not own the house we live in. I signed a pre-nup agreeing that anything purchased by his company would not belong to me. I had no idea that he would include our home. My concern now is that he will be able to use this against me to keep me from gaining any kind of custody of our children. We have discussed arrangements in the past with regards XXXXX XXXXX house and how we would handle the children. He travels frequently, and has the luxury of deciding when and when not to go. We agreed that I could stay in the home with the kids while he is away and then when he returns that I would go to my place, once I get one. My concern is that once i do find a place that he will decide that he no longer needs to travel and prevent me from seeing my children by him simply staying in the house. What kind of agreement should I make sure I get to make sure I still have time with them? I do not want to juggle them around, but I also do not want to be kept from them. At the same time, I would prefer that we not have to fight over our children in court either.
Submitted: 3 years ago.
Category: Family Law
Expert:  Ely replied 3 years ago.
Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other customers or taking a break.

May I ask if your prenuptial agreement specifically mentions the house?
Customer: replied 3 years ago.
It does not specifically mention the house. What it does say is that any properties purchased by his company belong to his company. And he used company money to pay to build the house. I thought we were using personal money but he has never allowed me any access to the personal financial information.
Expert:  Ely replied 3 years ago.
Thank you. Just because you may not get the house does not mean that you will not get the children. While having a house is a plus, it is by no means the deciding factor (believe me).

In Louisiana, the court will keep the best interests of the children at the fore front of all custody decisions by considering:

(A) The love, affection, and other emotional ties between each party and the child.
(B) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(C) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(D) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(E) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(F) The moral fitness of each party, insofar as it affects the welfare of the child.
(G) The mental and physical health of each party.
(H) The home, school, and community history of the child.
(I) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(J) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(K) The distance between the respective residences of the parties.
(L) The responsibility for the care and rearing of the child previously exercised by each party.

Louisiana Code of Civil Procedure - Article: 131, 132, 133, 134

As you can see, they are very general. So, get an attorney you feel comfortable with, and aim to prove that you'd be a better parent under said elements, with or without the house.

As for the prenuptial agreement - it is not as set in stone as you may think. While generally enforced, if the court finds that the agreement is overly unfair and is 'against public policy,' it can void parts or all of it. Holliday v. Holliday, 358 So. 2d 618 - La: Supreme Court 1978. While this is not a guarantee, it is a possibility. Talk to your attorney about it.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you seek clarification or more information, I encourage you to use the REPLY button and I’d be more than happy to answer to your satisfaction! Really! There is no fee for follow up questions before or after accepting, should you wish to continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated.
Customer: replied 3 years ago.
While he is not a bad father, he is a bad husband. I do not wish to keep the kids from him, but i also want to make sure he cannot do the same to me. Would i need a certain type of agreement to make sure that does not happen? I obviously have limited knowledge on this and am just begining to gather information.
Expert:  Ely replied 3 years ago.
That's okay, this is what I am here for.

The courts generally do not like to split the custody 50/50 since this is hard on the child – imagine having to move every half a year.

One parent usually becomes the main custodian and the other parent becomes the "weekend" parent, which is one day a week, every other weekend, and alternating holidays. The small points of the custody can either be decided by the parties or the Court, if the parties cannot come to an agreement.

Even if a parent does not get managing custody, they are almost guaranteed visitation unless they have a drug problem, alcohol dependency, or an unsafe home environment. Abuse and or neglect of the child or previous children are an almost automatic bar for even visitation, although supervised visitation may be granted by the Court. If the Court feels that he needs to take parenting classes before visitation starts, or at your behest, it will order it so.

Of course, that is the standard order of possession. That order can be modified if both parties agree or if the Court finds that it is an extraordinary situation.

The visiting parent pays child support to the custodian, unless the custodian it. All states have a preset salary percentage calculation for child support, but this can be altered if both parties agree to a lesser or higher amount or do not put child support in the orders all-together - the Court will not care. For Louisiana, see here:

http://www.alllaw.com/calculators/childsupport/


Also, this link should prove helpful:
http://www.custodyxchange.com/louisiana/parenting-plan.php

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you seek clarification or more information, I encourage you to use the REPLY button and I’d be more than happy to answer to your satisfaction! Really! There is no fee for follow up questions before or after accepting, should you wish to continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89091
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 7 other Family Law Specialists are ready to help you

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