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Ihave a question about custody. My wife and 2 young children (a 4 years old andan 8 month old) moved to Arizona about 3 months ago with the original intent ofme moving out there with them at the end of the summer. Now, my wife isconsidering us separated from and is contemplating divorce. Currently I amtrying to work it out with her but have stated to her that I have no intentionof moving to Arizona if I cannot reconcile. Should I do something about thecustody of my children before she establises residancy there (I am assuming ittakes 6 months in Arizona)?
Response 1: At this time, both of you have equalcustody of the children. If you manage to get the children from Arizona back toIllinois, you can keep the children until the Court decides. If your marriageis irretrievably broken and you are still in Illinois, you have to be livingseparate and apart for more than two years in order to file for divorce inIllinois and then file Motion for custody of your children.
Also, My wife has been talking about "working it out in therapy" however Ijust found out evidence today that she may not be taking it seriously. Is theresome sort of waiver that I can have her sign to not allow her to establish residancyin Arizona with the kids. Please any advice would be appreciated.
Response 2: Unfortunately, you cannot ask to signsomething to waive residency with the children in Arizona. If she stays inArizona for 90 days, she can file for divorce there for irretrievable breakdownof the marriage. See Title 25, Sections 25-312, 25-316, and25-329:
A few follow up questions:
Why do I have to wait 2 years but she can file for divorce after only 90 days? I was under the assumotion that the person who files first can use his/or her states laws as the grounds for any legal proceedings.
Is residancy only established after she has her own place in Arizona (she has been staying at her mothers but she is looking to get a place this weekend)? She has an IL Drivers licence, the car is still registered in IL, and she did start a new job about 6 weeks ago in Arizona.
What would be the best course of action legally so I can be with my children? I dont want to have to travel 1800 miles just to see them for a few days at a time. It was my assumption that untill my wife established residancy, they boys are still residents of Illinois and thus I have the higher legal claim to them. My wife has started denying me access to them on the phone and I fear it will get worse.
Afew follow up questions:
Whydo I have to wait 2 years but she can file for divorce after only 90 days? Iwas under the assumotion that the person who files first can use his/or herstates laws as the grounds for any legal proceedings.
Response 1: Different states, different laws. There is norequirement to wait for two years after irretrievable breakdown of marriage inorder to file for divorce in Arizona. However, this is a requirement inIllinois. If you file for divorce in Illinois, you have to comply with Illinoisdivorce laws. If she files for divorce in Arizona, she has to comply with Arizonadivorce laws. If you file for divorce in Arizona, you have to comply with Arizonadivorce laws.
Isresidancy only established after she has her own place in Arizona (shehas been staying at her mothers but she is looking to get a place thisweekend)? She has an IL Drivers licence, the car is still registered in IL, andshe did start a new job about 6 weeks ago in Arizona.
Response 2: No. She started to accrue residency when shemoved to Arizona with the children regardless of where she is staying.
Whatwould be the best course of action legally so I can be with my children? I dontwant to have to travel 1800 miles just to see them for a few days at a time. Itwas my assumption that untill my wife established residancy, they boys arestill residents of Illinois and thus I have the higher legal claim to them. Mywife has started denying me access to them on the phone and I fear it will getworse.
Response 3: As stated previously, divorce is not asolution at this point if you want to file for divorce in Illinois because youdo not meet the requirements to file for divorce in Illinois underirretrievable breakdown of the marriage. However, you can file fordivorce in Arizona and then file Motion for Temporary Custody of the childrenif your wife has resided in Arizona for 90 days. At this time, both of you haveequal custody of the children until the Court decides custody. You can go andpick up the children if you can and if your spouse does not put up a fight. If she does, and thePolice is called, the Police cannot do anything except tell you to take yourmatter to the Court.
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