Hello I am considering a divorce at this point. What are my options with little cost. My wife has been drinking heavily the past three weeks and is leaving the house on a daily basis. We have two kids and the way she has been acting is starting to scare me. She refuses help from anyone who can. I do not trust her with my children. I come home and she is drunk whle my kids are still awake.
Country relating to Question: United States
Thank you for posting your question to JA/Pearl. Legal questions often take time for research or I may be offline so please be patient, I will reply.What is your state. Do you have any other witnesses to her behavior
We live in NYS. Yes her mother and father this past weekend. once she finally returned home. Along with my brother and father as she has called them late to complain vent whatever. Her cousin recently as well. Her cousin could not even approach my wife, she called her mother who in return called her sister, my wifes mother. I did call the police Saturday as she left the home in our vehicle after drinking. No report was filed.
You need to obtain as many different witnesses to her behavior as possible and then need to be someone beside relatives if at all possible. Here are the grounds for a divorce in NY.(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant. (2) The abandonment of the plaintiff by the defendant for a period of one or more years. (3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant. (4) The commission of an act of adultery, provided that adultery for the purposes of Articles Ten, Eleven, and Eleven-A of this Chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in Subdivision Two of Section 130.00 and Subdivision Three of Section 130.20 of the penal law. (5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment. (6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) The names and addresses of each of the parties, (b) The date of marriage of the parties, (c) The date of the agreement of separation and (d) The date of this subscription and acknowledgment or proof of such agreement of separation. (7) Irretrievable breakdown in relationship for a least six months. While you probably think that you have grounds under (1), that is difficult to prove so (7) is the normal grounds. The next issue is the division of the marital property. NY is an equitable division state so usually the assets and the debts of the marriage are equally divided. She will probably want spousal support or alimony. Here are those factors(1) The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part; (2) The duration of the marriage and the age and health of both parties; (3) The present and future earning capacity of both parties; (4) The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor; (5) Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) The presence of children of the marriage in the respective homes of the parties; (7) The tax consequences to each party; (8) Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) The wasteful dissipation of marital property by either spouse; (10) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and (11) Any other factor which the court shall expressly find to be just and proper.The two most important factors are the length of the marriage and the relative salaries of the parties. If it is a long term marriage (over ten years) and you have been the primary breadwinner, then she is probably going to get alimony in spite of her drinking problem. Child custody is usually the most contentious of the issues since she will be wanting the child support. Here are some factors that the judge will consider in deciding custody. You need to start building your case now by keeping a diary of everything that happens so you can testify to date, time and witnesses present. This could be drawn out and 6 months from now you will have trouble remembering details.
Primary caregiver. There is a presumption that the party that has been the primary caregiver of the child should be awarded primary physical custody.
Drug Abuse. It is fairly standard for the judge to order that both parties take a hair strand drug test and submit it to the court. Parents who abuse drugs or alcohol will not be awarded custody.
Wishes of the child. The judge may take the wishes of the child into consideration. While this is just one element, the older the child the more weight the judge is likley to give to the child's wishes.
Past custody. Who has historically had custody of the child and has that party provided a safe and stable environment for the child.
Parental behavior. Has there been domestic violence, excessive use of alcohol, criminal convictions, parental kidnapping, or any behavior that endangered the child
Encourages a relationship with other parent. Which parent will best foster a relationship between the child and the other parent. Has one parent withheld visitation to “punish” the other parent or made derogatory comments about the other parent.
Home Environment. Which parent offers the child the best stable home environment. This includes who can best supervise the child at home, the living conditions, what other adults and children, especially siblings, are in the home, the neighborhood where the home is located, which parent will be able to better continue the same school and friends.
Employment. Which parent is better able to financially provide for the child. If the parent works, what arrangements are there for babysitters, day care, etc. Does one parent travel.
Relatives. Does one parent have relatives that have a close relationship with the child.
Health. Does the child or a parent have any health issues that would impact the decision on custody. Which parent normally makes doctor appointments and accompanies the child to those appointments.
Religion. Which parent will expose the child to spiritual guidance and growth.
Relationship with child: The love, affection and emotional ties between the parent and child. With which parent does the child bond more, spends more time with the child, bathes and puts a young child to bed, prepares the child's meals and to which parent does the child openly show signs of affection.
Character. The judge will have to evaluate in a short period of time the character of the parties and whether one parents morality and credibility makes them the best parent to award custody.
Actively practicing trial attorney
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