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Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 27011
Experience:  General practice of law with emphasis in family law.
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Sir or Madam, My wife and I are considering a divorce, we

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Sir or Madam,

My wife and I are considering a divorce, we have taken some step on that road and I have a question about the process:

We had recently begun discussing a separation agreement to find an amicable way to separate, but my wife has abandoned the negotiations. It is unclear to me what steps I can take to continue the divorce process.

It is my understanding that if I leave the family residence without taking the children with me, I jeopardize my position on child custody. I'm reluctant to do this, since this seems to cause an even greater amount of stress on the children than they will have to undergo anyway. The step of taking the children is also likely to poison the later negotiations.

What other (more gentle) options do I have to force a continuation of the divorce process?

Thank you

Customer:

Hi

Customer:

Unfortunately, you cannot force negoiations. The only thing you can do is file for the Divorce, request temporary use and possession of the home and custody of the children until she agrees to begin negoiations again to get all matters resolved. There is no way you can force her to talk about it or leave the home. But if you file the Divorce, and get the Temporary Use and Possession, then the court can order her to leave- that would cause her to seek legal counsel and then the talks can resume


 

Customer:

 

Customer :

Thank you for the prompt response. If I go ahead and file for the divorce and request the temporary use and possession of the home and custody of the children, I assume that a judge will make a ruling on that request. Is that correct? If so, I assume it is possible for her to make the same request, and the judge can decide either way both on children and use of home. Is that correct?

Customer:

Yes. That is all correct.

Customer:

And it will come down to what the judge feels is in the best interest of the children

Customer :

I am the father, and I assume with two children ages 6 and 10 there is at least a slight bias in favor of the mother. What factors would support me in both those requests or would weigh in a decision?

Customer:

But it is not always a situation where the Mother gets the use and possession or the children. Every case is different. But let's say the Court granted her the use and possession, etc - at least, you would not be considered abandoning your family and could not be used against you in a custody matter

Customer:

Factors would include Does you spouse have some where else to live for the time being? Is living in the same home hostile and unhealthy for the children? Which of you has been the primary care giver for the children. For examply

Customer:

*example

Customer:

Who has taken them to school, prepared meals, etc

Customer:

But those things are always considered even in custody matters. If the duties have been shared, then it comes down to situation where a court may order a temporary arrangement where one parent is in the home one week, and the other the next weel

Customer:

*week

Customer:

until a final resolution of the divorce proceedings.

Customer:

Getting divorced is never easy

Customer:

But the court will always try to make it easier on the children, with as less disruption to their lives as possible

Customer:

If you have further questions, you may post them here and i will continue to assist. Otherwise, even if you have a subscription with JA please remember to ACCEPT my answer as that is the only way I can get credit for my time and information in this matter. Thank you and Good luck

Customer :

ok. You said "Is living in the same home hostile and unhealthy for the children?". Does this mean that it's possible to have filed for divorce and neither has to leave the house? This would negate the need for the one yr separation.

Customer:

No. That is not what I am saying. I am saying that if each of you file for Temp Use and Possession, then a court may say you are there one week and the Mother is there another week. It is still separate and apart for purposes of the one year separation

Customer:

The only thing is the children never leave the home

Customer:

It is an option

Customer:

Under MD law, you have to live separate and apart. That means no cohabitation. But it does not mean you cannot share the home and custody temporarily until those issues are resolved.

Customer:

Each still contributes to the home, the care of the children, etc

Customer :

Ok, got it. Thank you for your comments.

Customer:

You're welcome. I am sorry you are experiencing this. I hope it all works out for you

Customer:
Customer :

Thank you.

Samuel II and 2 other Family Law Specialists are ready to help you
Customer: replied 5 years ago.
Hi Samuel,

Another question for you: during our marriage my mother has given me a loan of app. $200k. The money was used as a downpayment for our marital home. My mother has later forgiven the loan, and the loan forgiveness was declared to the IRS as requires as a cash gift to me.

Does this money count as marital property or is it my property? Is this clear cut or ambiguous, and if ambiguous what would the answer depend on.

Thanks so much again!

J

Hi

If it was declared as a cash gift to you, then it would be a gift and as such non marital property. The problem is if it was then comingled into the marital home and not kept separate and apart it would still be considered a marital asset.

For it to be considered a non marital asset, it would have to have been in a separate account and never co mingled into anything jointly held.

Customer: replied 5 years ago.
And if money was owned before the marriage and that money gets comingled it remains non-marital? Or does that also become joint?

Hi

Any money before the marriage only remains non marital as long as it is never co mingled. If it is invested into a joint marital asset or venture it becomes a marital asset.

So, say for instance, a party owns a home before marriage. Now, they have placed their spouse's name on the deed the property has become co mingled and is considered joint marital property.

Or say a party owns a rental property before marriage and they allow their spouse to place money into remodeling it, and they use the rents to go on a vacation that property is marital

Samuel II and 2 other Family Law Specialists are ready to help you