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P. Simmons
P. Simmons, Lawyer
Category: Family Law
Satisfied Customers: 26647
Experience:  16 yrs. of experience including family law.
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I want to get a divorce from my abusive (possibly bipolar)

Customer Question

I want to get a divorce from my abusive (possibly bipolar) husband. I had a child while we were married by an agreement with another man and with my husband because my husband could not get me pregnant. I repeat, my husband agreed to this arrangement. Uncertain of what to do when the child was born, my husband was put on the child's birth certificate as the natural father. I would like to file the divorce papers myself to save money. However, I don't know what to do about the paternity of the child. Do I file with or without children. I want to have full control of any visitation that is allowed to my husband. He will probably say otherwise. I'm not interested in getting any child support from either my husband or the sperm donor.
Submitted: 1 year ago.
Category: Family Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Under TX law when a child is born during the marriage, the law presumes the husband to be the father.

This is a rebuttable presumption...the husband can file a motion with the court for a paternity test and if DNA evidence shows he is not the father, the court can order that the case.

So in your case, particularly with the birth certificate already in place, your spouse is also the father.

He can have a lawyer file a motion with the court to require testing to try and change this...it sounds like testing would show him not to be the father. But he has the burden at this point to ask the court to order the tests.

You can also take this action...you can have a lawyer ask the court to order the DNA test.

But unless you or he go to the court the birth certificate will continue to show your spouse as the father.

This is significant since as the father he has a legal right to custody of the child unless or until the court orders otherwise.

So you can agree on the terms of the divorce...but typically the court will assign joint custody and will assign support (based on relative incomes)

It is possible to get the court to vary from this...to give custody fully to one parent or the other, if there is evidence to show this is best for the child. But custody is always subject to modification...so you may agree now and a year from now he could go back and seek more time with the child.

SO if your goal is to remove his ability to seek custody, the first step should be to ask the court for a DNA test to show he is not the father. I would do this at the same time as you file for divorce. If the test shows he is not the father the court will remove him from the birth certificate and will not award him custody.

Customer: replied 1 year ago.


If I request the paternity test and he is proved to not be the father will the court try to seek out the donor for child support. I don't want this.


 


My husband has threatened to pick up the child at daycare and daycare says they cannot turn him down. Is there anything I can do about that?

Expert:  P. Simmons replied 1 year ago.
No...not on their own. You can ask or that..or the biological father can ask for it...but the court does not have the resources to seek out the father on their own.

As for your spouse taking the child? As I mention, he is the father (since he is on the birth cert)...so he can take the child if he likes.

Your best recourse is to file a motion with the court in conjunction with your divorce filing for a custody order...the court will issue a temporary order to ensure you both have access to the child as the court case unfolds

Customer: replied 1 year ago.


I have always been the financial support for this family. My husband has rarely held down a job or contributed financially. What would the court likely do as far as custody is concerned?

Expert:  P. Simmons replied 1 year ago.
The court presumes that it is best for both parents to be in the child's life. So typically they give 50/50 if the parents agree and geography works (the parents live close enough to allow it)

Once the child reaches school age it gets a bit more complex...since typically the court will want the child with one parent during the school week.

The court will listen to the desires of the parents. So could give you primary custody if dad agrees.

But if dad will not agree with you? Then you need a lawyer to assist you with the process

P. Simmons, Lawyer
Category: Family Law
Satisfied Customers: 26647
Experience: 16 yrs. of experience including family law.
P. Simmons and 4 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.


1. Husband is alcoholic and possibly bi-polar - has threatened to kill himself numerous times. Is there anyway the day care could refuse to let him have the child is his condition is proven to them.


 


2. Am I correct, that I can go ahead and file the divorce petition now and work out the custody questions later when the decree is filed, depending on whether the husband signs a waiver or does not answer within 21 days. In other words, if he signs the waiver or does not answer, does that remove him from any decision-making?

Expert:  P. Simmons replied 1 year ago.

Day care has no legal authority to refuse to allow a parent to pick up their child. Only a court can modify custody.


Your assumptions on the divorce process are not correct.

There are two ways to get a divorce. You can go the uncontested route...basically you both agree on everything. You file a marital settlement agreement with the court (both of you must sign this) and the divorce will work its way through the system. No lawyer needed

Otherwise, you are in a contested divorce. You can file a petition for divorce...but if he is not in agreement then you either need a lawyer to progress or will need to act as your own lawyer.

It is true that if you file this and he does not respond, you may win by default....but that is only after you address the court on the record...and for that you need a lawyer...or you need to learn the rules of evidence and procedure to act as your own lawyer.

BotXXXXX XXXXXne: if you can agree? Its easy. If you can not you need a lawyer.

Customer: replied 1 year ago.

 


1. As far as child support -- what does the court do if the father will not work, has not worked, and doesn't plan on working. Like I said, I'm not interested in child support.


 


2. Is child support a requirement in order for me to get financial aid?


 


3. Income taxes? We have been filing jointly, but have been separated for 6 months. Should we now file individually?



4. Is there such a thing as "legal separation" in Texas. If so, what does that mean?

Expert:  P. Simmons replied 1 year ago.
The court bases support on relative income and relative time with the child. The fact the dad has not worked is treated the same way as a mom who has not worked. If there is evidence the dad is not working to avoid support the court can impute income to the dad (basically credit him for income he can earn if he chooses to work)

I am not familiar with financial aid requirements, sorry

Income taxes? Sorry...I do not know enough about the tax code to answer tax questions

Texas does not recognize "legal separation" unlike many other states. It is possible, in theory, to hire a lawyer and file a case with the court for custody (since in TX, the custody is separate from the divorce, though accomplished at the same time). But this is typically not a good idea...you still need to hire a lawyer, and at the end of the day, you have a custody order but are still married.






Customer: replied 1 year ago.

I have filed the divorce petition and my husband was served yesterday. His response was "What if I tear up these papers?" and "I'm not paying child support for someone else's child" and "I want to see the child at least once a week for the whole day." I'm getting a lot of help from the website TexasLawHelp.org, but there are still some things that are not clear. For instance, the answer they provide is a General Denial. Should my husband use that form, assuming he answers at all? I understand that he will be in default if he does not answer in some way, either a waiver or an answer. If he agrees with getting a divorce, should he file an answer acknowledging that he is aware of the divorce and wants to be notified of any hearings. Is this correct? That doesn't sound like a General Denial.


 


Also, in order to get financial aid (a reduced rate) for my child care expenses, I needed to show that I had filed for child support. I did this online with the Attorney General's Office last night. I don't know how much this costs or how long it takes. I assume they will notify me?


 


The day care wants to see Temporary Custody Orders in order to keep my husband from picking up my daughter. How do I get these Orders?


 


Here is what I understand happens next. I need to call the court after 21 days to see if and how he answers. If he doesn't answer, he is in default. I need to prepare the Decree of Divorce. If he is in default, does he sign the Decree? What about the child support and visitation? Does he sign those also? After 61 days of my filing the petition, I am to call the court to get a hearing date. Do the Decree and child visitation and child support documents need to already be signed by both of us or is that done at the hearing?


 


Thank you.

Expert:  P. Simmons replied 1 year ago.
Ma'am

These are new questions and this website is not designed to allow the users to ask new questions in a new thread.

I would kindly ask you submit these new questions as new questions in a new thread.

Customer: replied 1 year ago.


Do I need to pay another $30 - or is this a continuation of my prior session?

Expert:  P. Simmons replied 1 year ago.
Exactly. Should raise this new question as a new question

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