Hi again - I'm seriously considering filing for divorce from my husband of 5 years (together for 6 years) and we have a 2.5 year old daughter. My daughter and I had to leave the marital residence because it was abusive and I did not want to subject her to the elements. We now live with my parents. I'm a working mother and I'm the Primary Caretaker for her - pay for all her needs and takes care of her. I allow her father sees/spends time with her 1-2 days a week (or whenever mutually convenient). I know he will fight for custody, but he works nights and cannot realistically take care of my daughter and will most likely leave her with his parents. I still want to keep things as amicable as possible, but I still want to look out for the welfare of my daughter and myself because my husband's ways are very unpredictable. What is the first step I need to take for filing for divorce and retaining my primary caretaker role.
State/Country relating to question: New York
I've asked to get the rest of my daughter's and my belongings from the apartment that my husband changed the locks without my knowledge, but he keeps postponing when I can get it. His parents also have my daughter's birth certificate and SS card and I have asked them for it and have not received the originals and just a copy. My suspicion is that my husband is not allowing them to give it to me.
Hi - my name is XXXXX XXXXX X'm a family law litigation attorney here to assist you.
You can file your petition for divorce and then immediately file a motion for a temporary order of custody and visitation. In that motion, you can ask the court to grant you Temporary Custody of the child until the divorce is final based on the fact that she is currently with you and that you have the most stable environment. You can also point out the fact that your husband cannot care for the child due to his job. The court should enter an order consistent with the findings at the hearing.
This is really the only way to handle the situation and get something in writing to outline each of your roles in this matter until the divorce is final (which will result in a permanent custody/visitation order).
If i file my petition for divorce and file a motion of temporary order of custody and visitation, can my husband file a "Motion to Dismiss" either of the divorce or custody? And if he does, what does that mean in terms of ending the marriage?
He's not prohibited by law from filing a motion to dismiss to either the divorce petition or the motion for custody. However, these aren't usual motions and it is unlikely that he would be successful with either.
NY recognized no-fault divorces as well as fault-based Grounds for Divorce, one of which is cruel and inhuman treatment by the other spouse, which so endangers the physical or mental well being of the petitioning spouse as to make it unsafe or improper for the couple to continue living together. Based on your post above, you can claim this as a ground for divorce.
Thus, as long as you have grounds, the case should not be dismissed. Further, the court is not going to dismiss a request for a temporary child custody and visitation order.
Instead of a motion to dismiss, your spouse should/will file a response to both the divorce petition and the request for a temporary order, and the judge will make a ruling based on the facts.
Thank you for your help. I live in the NYC area. How do I know how to find a reputable divorce attorney? Also what is a reasonable rate for them as well?
The best way to find a family law attorney in your area is to visit www.martindale.com and search for a lawyer by area of practice and location. Any attorney listed on this site with an AV or BV rating is preeminent in his/her filed as voted by peers and clients.
As for rates, these vary greatly from lawyer to lawyer. Some will take a divorce for a lump sum, some will charge by the hour, and much of the expense depends on how much fighting you expect you and your spouse to do throughout the process. That said, you can probably expect a simple divorce to run you a few thousand dollars.
BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Hi - I had one more question. My husband had claimed he would get Alimony from me. Since I've been paying his credit card bills/student loans/loaned him money for his business, etc. for the 5 years we've been together, am i still entitled to give him money? Also he has not provided any financial support for our daughter. If i file for child support, could he counter that with alimony?
Spousal support/alimony is a need-based award that the court can give to a spouse if there is proof that one spouse needs support to maintain his/her monthly obligations/current standard of living. Whether or not the judge awards this totally depends on whether he could prove that he needs the money and whether it can be shown that you can afford to pay. Just because you've been paying these things during the marriage doesn't mean you'll have to continue to pay.
Also, child support has nothing to do with alimony - they are two totally different things, and one is not contingent on the other.
If you are granted custody, the judge will order the father to pay child support in some amount. However, the fact that child support is ordered will not impact whether or not alimony is awarded.
Hi - if i file for divorce this year 2012, for tax purposes am i considered still married when i file taxes for 2012? If not, when am i considered still legally divorced?
I'm sorry, but I don't know the answer to the tax question. I'm not an accountant and don't profess to be knowledgeable about tax issues. However, you're not considered divorced until the final order for divorce is entered by the court. Given that this is July, it is not likely that you would receive your final order of divorce before the end of 2012. So, you will likely be considered married for the entire 2012 year.
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