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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88187
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Im in Indian River County, florida. I want a divorce but have

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I'm in Indian River County, florida. I want a divorce but have no money. I'm unemployed & have 300 to my name. I spoke to a lawyer who said I needed to stay in the marital home (don't move to my mom's) because my husband could then say I abandoned our son & deny me access to him - even if I only live 1/10 mile away. So like it or not I will move back home.

My question: If I move back home and later pursue an affair, and don't hide it, can he kick me out or deny visiting from my son?

I've been living in the spare room for 1 year now & have not had relations with him for 3 years. I did have an affair but hid it... It's bad enough I did that but I don't want to lie and sneak around anymore, but I can't stand living in one room of the house and not talking to him unless we scream and yell. Bad for my son to see so I have kept my mouth shut.

What can I do?
I have tried to contact florida rural legal services... they said "Are you a domestic violence case? No? I'm sorry we only do domestic violence." >click< My only option is to file on my own but the forms are so confusing I have no idea what to do.

So I'm faced with this: stay in the marital home, have an affair if I want affection and someone who gives a darn about me, and when nick is 18 leave.

I don't have a job now but Im looking. I probably won't get one in this area.

QUESTION: If I have to move out of the area for work, can I do so and not get divorced..then come back to see my son and stay in that house or at least stay at my mom's 1/10 mile away and have my son come to me... then once I have money I'll file for visiting/sharing and divorce. Can my husband deny me access to my son?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

My question: If I move back home and later pursue an affair, and don't hide it, can he kick me out or deny visiting from my son?

The answer is no. This is because regardless of what happens in the divorce - custody is a separate issue. Custody is decided based "in the best interest of the child." Beagle v. Beagle, 678 So. 2d 1271 - Fla: Supreme Court 1996. This includes, but is not limited to, general stability of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc. The courts generally do not like to split the custody 50/50 since this is hard on the child unless both parents agree and as for this.

One parent usually becomes the custodian and the other parent becomes the "visiting" parent which is generally one day a week, every other weekend, and alternating holidays. The nuanced points of the custody can either be decided by the parties or the Court, if the parties cannot come to an agreement.

Even if a parent does not get managing custody, they are almost guaranteed visitation unless they have a drug problem, alcohol dependency, or an unsafe home environment. Abuse and or neglect of the child or previous children are an almost automatic bar for even visitation, although supervised visitation may be granted by the Court.

Of course, that is the standard order of possession. That order can be modified if both parties agree or if the Court finds that it is an extraordinary situation.

So regardless of whether or not a parent has an affair, this has basically little/no effect when it comes to custody. Now, if you leave the home without the child and spend a long time away, the Court may grant custody of the child to your ex if the Judge feels that there is no reason to "switch" custody and the ex has been doing a good job.

But at the same time, nothing says that you cannot take the child with you if you go.

Also, while the divorce is pending, it is not uncommon for parties to have temporary orders in place that put down orders for custody, division of property, alimony, etc.

Finally, if finances are an issue, I can recommend three resources. First, here is a list of all pro bono work in the state...

http://www.abanet.org/legalservices/probono/directory/florida.html

…and another list:

http://www.lawhelp.org

Finally, you may call your local law school and see if they have a legal clinic place available. The legal clinic is a free service the school(s) provide to the community. While they are often overbooked, they have openings sometimes. Here is the list law schools in your state:

http://www.hg.org/law-schools-florida.asp

Good luck!

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Thank you for this. I still had the other part of my question though, which is


QUESTION: If I have to move out of the area for work, can I do so and not get divorced..then come back to see my son and stay in that house or at least stay at my mom's 1/10 mile away and have my son come to me... then once I have money I'll file for visiting/sharing and divorce. Can my husband deny me access to my son?

Expert:  Ely replied 1 year ago.
C,

Ah, my apologies - I would be glad to answer that as well.

If I have to move out of the area for work, can I do so and not get divorced..

Yes. You are free to relocate if you wish to. No one says that you must remain in the home.

then come back to see my son and stay in that house or at least stay at my mom's 1/10 mile away and have my son come to me...

Yes, you can. Until/unless there are orders in place, both you and him can have custody to the child. So he can have custody, but so can you. You are expected to "peacefully" share. Of course this does not often work out and one of you may file in court to get a custody order into place.

then once I have money I'll file for visiting/sharing and divorce. Can my husband deny me access to my son?

The answer is no - see above. You have the right to custody but so does he, provided that everything is peacefully done. If not, then you may have to file in court to force the issue.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

What do I do when he tells me that I can't come into the house or "You can't take Nick with you now because he has other obligations?" (I was told that in October when I left the first time. Later Nick told me the other obligations were playing with the kids across the street.)


 


What do I do when he won't answer the telephone so I can speak to my son, or interrupts the call to say it's time to do something else? (The last time I was in PA he did that 4 times in the 7 days I was gone, even though I said I will call daily between 7:30 & 8pm to speak with Nick.)

Expert:  Ely replied 1 year ago.
Hello friend,

Can you please tell me if your name is XXXXX XXXXX deed to the home?

Also, was the home purchase before or after marriage?
Customer: replied 1 year ago.

Yes sir. My name is XXXXX XXXXX deed to the home but not on the mortgage. We purchased the home 1 1/2 years before we were married, when I was pregnant with our first child. We lost that child during childbirth (very premature). 12 months later had Nicholas. We got married a year later. So, the house was purchased about 1 1/2 - 2 years prior to our marriage.


 


The house is currently underwater financially. I don't want the house I can't afford the 900/mo mortgage. Let him have it. He'll need it to raise Nicky in. I want to move into my Mom's house, about 1/10 mile away.

Expert:  Ely replied 1 year ago.
C,

Thank you.

What do I do when he tells me that I can't come into the house

He cannot stop you. Your name is XXXXX XXXXX deed of the home, which makes you a lawful owner. He cannot keep you out. If he tries, you can literally "break in" if you wanted to - it is your property. It is best to call the police non-emergency to ask them to help you ensure that there are no issues when you attempt to enter but he disallows you.

This is true until/unless the court has orders that keeps one of you away from the property.

or "You can't take Nick with you now because he has other obligations?" (I was told that in October when I left the first time. Later Nick told me the other obligations were playing with the kids across the street.)

You and he have equal custody to the child. You can take him. He cannot physically stop you, and if he tries, then I am afraid you may have no choice but to seek a custody order that gives you the right per the court, and which may be enforced.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Thank you for your assistance. I spoke with Mr. Steve Tanner with National Family Solutions and I have retained their services. I am probably going to have more questions but I think I now need to bring them through my case manager, Tara Nickson. Thank you so much for your help and for referring me to Steve.


 


Have a good day!

Expert:  Ely replied 1 year ago.
Great!

You are very welcome. Good luck, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please REPLY to keep on chatting – I want you to be satisfied.
Customer: replied 1 year ago.

My only other question would be is it better to remain in the home at this point or stay with Mom around the corner at this point? Mom does still need my help mainly for emotional reasons... since Dad died 2 weeks ago she's on an emotional roller coaster and the evenings are hard for her - the house is now so quiet and she falls apart then. That's why I am there to help, and that is the excuse I am using with my husband.


 


I still have 99% of my things at the house... only enough clothes for about 3 days at mom's. So, technically I have not moved out yet. I can continue this way or I can return to his house and stay over a few days here a few days there... I can deal with that. Once he gets served it's going to be hell there though.

Expert:  Ely replied 1 year ago.
Hello,

At this point, you would not "lose" any rights to the home by leaving it because your name is XXXXX XXXXX deed and it is considered community property. So this really does not matter.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Ok. Thank you very much for everything, Because of the discussions I have had with you and Steve Tanner I am feeling SO much better!


 


Have a wonderful day and thank you so much for referring me to National Family Solutions. I hope everything works out well.

Expert:  Ely replied 1 year ago.
Again, my sincere pleasure - I am glad you are feeling better and best of luck in this and all your endeavors!

Please do not forget to rate as well - thanks!
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88187
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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