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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 91845
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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Hello my husband is currently on restraining order for DV from

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Hello my husband is currently on restraining order for DV from me and my daughter of 5 month. I am the bread winner in the family with a high profile job but have no pre-nap. I am also not an American and may want and need to move to Europe for my job. What is my best course of action? His DV case is currently being tried.
Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

What is your best course of action for what? Would you please explain what you want to do?

Are you ready to divorce him because of the domestic violence?

What specific questions do you have?

What state are you in?
Customer: replied 1 year ago.

I am considering filing for divorce. I was not sure whether I should do it but given the situation with Domestic Violence is serious and I dont see him projecting remorse I want to make sure my baby and I are protected. I want to understand what are my chances of best preserving my assets and winning custody. If I wait and see how he handles DV case - I would love to preserve my family but only if my husband will take serious corrective actions. I was also trying to help him to avoid criminal record by talking to DA and his lawyer. His lawyer was very nice but when I told him that I will need to go on a business trip he called me back interrogating who the baby be with - I dont understand how is it relevant and got scared that he wants to try to take the baby... I would love to hear your perspective on the situation. Hope its clear enough.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your additional information.

What state are you in, since that determines how marital assets are divided?
Customer: replied 1 year ago.

New York, we have been married for 6m

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Since you are in NY and have been married less than a year, now is the time to get out and get your divorce. There would be no marital property to divide as you are not married long enough for any real marital property to accumulate. Also, because the marriage is less than 5 years, under the NY spousal support system there would be no spousal support due.

As the child is a baby and there is domestic violence involved, the chances of him getting physical custody would be slim and if the domestic violence occurred when the child was present, likely the most the court will give him is supervised visitation.

As far as you moving with the baby out of the country, as the child is small and you are a citizen of the other country (as is the child) the courts in these cases where violence was involved will almost always provide in the custody order that you can remove the child from the US and most times it is not a problem. He can try to fight for visitation and can even eventually (as the child gets older) get the court to order for you to pay for the child to visit him, but at this young age and with the DV issue the court will most times mandate only supervised visitation.



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Customer: replied 1 year ago.
This is great news! How shall I move forward? Do I need to look for a lawyer? Just one thing - the child is US citizen but can of course get my citizenship too
Expert:  Law Educator, Esq. replied 1 year ago.
You will need a family law attorney and will have to file for divorce and a motion for temporary sole custody of the child . Your biggest battle on your case is you will at some point have to make some type of arrangements for the child to have some contact or relationship with the father and this may just be as time goes on and it also depends on how much he fights in court with you over the visitation issue. You will also have to get the court to approve you returning to your country with the child, but again with the DV the chances are better for you they will.
Customer: replied 1 year ago.

So a better bet for me is to go into divorce right away vs. trying to see if the family is salvageable, correct? Also can you recommend any attorneys? Also in my case will the process be long?


 

Customer: replied 1 year ago.

also is there any way for me to limit his visitation? I dont want him to interfere with the baby as his lifestyle is bad news. After she grows up - I will let her choose, but not now.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Only you know how you feel deep down about staying with someone who has abused you. You have to evaluate your entire relationship and the fact you have been married only 6 months and abuse started so soon and consider that many times an abuser does not change, but only you can evaluate that and you have to be honest with yourself.

As far as an attorney, I must apologize but the site rules forbid us from making personal referrals and the only thing we are allowed to do is suggest to use the same sites used by other attorneys, http://www.martindale.com, http://www.lexmundi.com or http://www.hg.org to find a local family law attorney.

You would limit his visitation or even get supervised visitation based not just on his lifestyle but also based on the domestic violence. The court will have to balance that base on what they find to be the best interests of the child and you have to present enough evidence regarding his bad lifestyle to show that him having excessive physical time with her would not be in her best interests.
Customer: replied 1 year ago.

Ok - just one last question. If I decide to give it a shot - when is the latest I can file for divorce to still have minimal impact on the property and spousal support. I want to preserve all of the pre-marital property as it was all mine.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your follow up.

The sooner you file for the divorce is better, but generally at least if you file before your first year is up of marriage, you would not have much marital property to divide. You personal property you had before marriage remains your separate property not capable of division as marital property as long as you never mix it with marital property (such as by putting his name on it or moving it to joint accounts). Spousal support in NY is generally not awarded to a marriage less than 5 years.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 91845
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
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