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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 27876
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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Even though my mother does not want to get tested for it we

Resolved Question:

Even though my mother does not want to get tested for it we think she has Borderline Personality Disorder (BPD). She has been emotionally and mentally abusing everyone especially my father for over 20 years. My father wants to divorce her and mentioned to their marriage therapist that if things do not improve that is the route he is heading. My mother then threatened that if he did divorce her she will call the FBI and tell them that he first came into the country illegally and they will deport him. My father is now a little worried and feels trapped in his situation.

Is it true that even though he has been a citizen for over 15 years they can deport him because he came in illegally? My mother loves to lie and defame people especially my father, what can he do to divorce my mother? My sister and I are both adults (25 and 20) who were physically and emotionally abused by my mother. My brother though is 10 and I am sure that she is going to want custody out of spite not love (since she has stated multiple occasions that she doesn't want or like my brother). What can we do so my father receives custody? Is my brother old enough to choose?
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Background story:

My father came into this country by using his cousins name but then when he became a citizen changed his name back to his actual name. My mom was brought in as his wife but kept her name.

Both my parents have federal records my mom pleaded non-contendre because she went to a federal mental institution.
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Submitted: 1 year ago.
Category: Family Law
Expert:  LawTalk replied 1 year ago.

Good morning Ruth,

I'm Doug, and I'm very sorry to hear of your situation.

Your mother sounds like she can be a real charmer at times. That is unfortunate for your father.

As your dad has been a citizen for more than 15 years---unless he was an ax murderer before he came to the US, neither the FBI or Immigration are going to be overly concerned that he may not have entered the US legally decades ago. No, he won't be deported.

In the even that your parents divorce, you can act as a witness for your father in his bid to be granted primary residential custody of your younger brother, and the fact that your mother constantly emotionally abused all of you will be a big factor in your father's favor and may well be the key to showing that the best interests of your younger brother will be for him to live with your father. I'm afraid that the age at which the court will generally give some consideration tot he wishes of a child in terms of which parent they will live with is 13 or 14. the wishes of a 10 year old likely will not be considered by the court. However, with all the other evidence you have---including your mother's multiple statements of not wanting the 10 year old---I don't think that your father will need his son's help in getting custody.

You father will need to file for divorce and get the process started. You can show him this information about the process:

In order to force your spouse to relocate from the marital home, or to pay support either for yourself or your children, it will be necessary for you to file for divorce. After doing that, you will want to ask the court to set what is known as a Temporary Hearing. A temporary hearing is a court proceeding held soon after the filing of a divorce action and allows the parties to ask the court to issue orders affecting the other party that will remain in effect, typically until at least the time of the divorce decree.


At that hearing you may ask the judge to order your spouse to move from the marital home, to grant you primary residential custody of your minor child, as well as for an order that your spouse pay you child support, until at least the entry of the divorce decree.


This is a very critical hearing to ask for. This hearing is not automatic, and if your do not request it, it may never be held. Another important thing to consider is having a local Family Law attorney assist you at this hearing. What occurs at the Temporary Hearing often signals what will happen after the divorce, both in terms of child custody and child support. It is important for your future that you do well at the Temporary Hearing.

Presuming that you are granted the role of the primary caretaker of your child, you can expect that the judge will make the temporary order such that you and the children will remain in the home and your wife move out.

In terms of child support, with 1, you can expect the court to award you approximately 18% to 20% of your spouse's monthly income for child support.


You may reply back to me using the Continue the Conversation or Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me.


Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time in assisting you.
Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and contact me with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to address your concerns to your satisfaction.

I wish you the best in 2012,

Doug

Customer: replied 1 year ago.

My mother is a stay at home mom and does not have a job. My dad is looking for child support just to leave in peace. Will he have to pay alimony if he has custody of my brother? Or do they just split the assets in half?

Expert:  LawTalk replied 1 year ago.
Hi Ruth,

Having custody of a child does not impact whether alimony is owed. Whether alimony, or spousal support, is to be paid depends on the length of the marriage and the income abilities of the spouses. If you mother can not work, or has not worked in 10 or 20 years, you father will likely have to pay spousal support---that is true.

Issues the court will generally look at in determining alimony include:

1.The present respective incomes of the parties;

2.The education levels and earning capacities of the parties;

3.The ages and the physical, mental and emotional conditions of the parties;

4.The duration of the marriage;

5. Whether either party will be caring for children of the marriage;

6. The standard of living established during the marriage.

While the amount of alimony you might be awarded can be virtually impossible to determine based on the facts you have provided, when alimony is awarded in similar situations it generally amounts to 15% to 25% of the higher earning spouse's income. The duration of alimony often runs approximately 50% the number of years of the marriage.

As for the marital assets accumulated, if your parents can not decide on their own, the court will divide the marital assets roughly in half and give half to each of them.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

Until you rate me highly for my service, I will not be credited with helping you. Would you please rate me now, based on my assistance to you in understanding the law.

I wish you the best in 2012,

Doug
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 27876
Experience: 30 years legal experience. I remain current in Family Law through regular continuing education.
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