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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 11823
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I would like to ask your advice about my divorce. The

Customer Question

I would like to ask your advice about my divorce.
The circumstances are the following:
a. I am an Italian citizen (born in 1953) married to an American citizen (born in 1973, in Dominican R.)
b. November the 2nd 2012 I have got my green card (my wife signed the Affidavit);
c. My wife and I met each other in Italy in 1999;
d. On April 2007 we got married in NYC, then the marriage has been registered in Italy too;
e. We have 2 children: a boy, born in NYC 5/7/2007 and a little girl, born in Italy 6/29/2010;
f. After the birth of our son in 2007 my wife, in leave of absence, moved with the baby to Italy, where we lived until August 2011. During this period she came to NYC with our son once a year, their longest stay lasted 5 months;
g. Not to lose her job, on August 16th 2011 my wife got back to NYC with both children;
h. Between Dec 2011 and June 2012 I came to NYC two times -2 months each time- when my wife told me many times that our relationship was definitely over;
i. June 5th 2012 I came back to Italy with our son;
j. From July 2nd until August 23rd 2012 my wife with the baby girl came back to Italy;
k. In November 2012 I moved from Italy to NYC and it was immediately clear that our marriage was definitively over, due to a lot of reasons. As a matter of fact we had no more sexual intercourses at all after conceiving our daughter in 2009;
l. Regarding the financial aspects, my wife works as a teacher of special E in the public school and she earns $ 5,000 per month, while I am unemployed. We do not own any house, living in a rented apartment, here or there. Since November 2012 she gives me a pocket money of about $ 100 per month, me using the most of it for the children;
m. Last but not least, I discovered (January 2012) that my wife was having an affair with another man (coming back late from work or continuosly texting on her mobile). Since I was suspicious I checked her mobile and her emails and I had confirmation about my doubts. I confessed to her my intrusion but she said that she was not interested in that man. I only managed to make a copy of the very first 2 emails from him. After my return to Italy, my last intrusion in her email -afterwards she changed her password- allowed me reading one email from him making clear sexual references. Unfortunately, being so shocked, that time I didn’t copy it. When back to NYC I told her I read that explicit email but she has always denied any evidence. I suppose she’s still having a relationship -I cannot know if with the same man or not- because few weeks ago, Valentine’s day, she spent a 5 days vacation in a resort in Dominican Republic and she was not alone.
My questions:
- In order to introduce a divorce am I obliged to proof that I have been separated from my spouse and, in case, for how long? (We still share the same apartment but we do not have any contact).
- According to the law of NYC, if I can introduce a divorce, could I claim alimony on the base of our economical situation? (Alimony to be used mainly to come to visit the children).
- Could I base my divorce on fault grounds (see her affair) considering that the only proofs I have are two emails of courtship from the man and not the sexual explicit one? And if so which are the pro and con, referring also to the children and their custody?
- My main demands are: I do not want to lose my children therefore - even if I understand that considering the children’s age she will probably have the custody - I ask for a joint-custody and as alternative I want to see my children on regular basis according to the circumstances.
- May I run the risk to lose my children and/or the possible alimony if I come back to Italy? Now, for instance, I would like to go with my son by the end of this month (march 2013) in order to enable him to finish the school in Rome and my wife totally agrees with this.
Stated the above mentioned circumstances and considered the fact that until now we never spoke of divorce:
- Is it wise to introduce this month our divorce or would you suggest me to wait?
- Would you suggest me to speak to my wife to see if we could agree and proceed for an uncontested or collaborative divorce?
- Would be an uncontested divorce preferable to an unilateral introduction and what would be the differences between the two referring to children, time, alimony and costs?
One more important question, how much would cost your assisting me in this divorce? I am aware of the fact that forms are available at the local Court but I want a professional assistance.
I trust I have covered all the important points. If you have any questions or would like to add anything please reply to me preferably via email or give me a call at +1(###) ###-####
Thank you so much, even for considering my need of your reply asap, due to my intention to leave to Italy by the end of this month.
Ermanno G.M. De Biagi
Submitted: 4 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 4 years ago.
Thank you for your question.

If I may ask, do you wish to file for divorce in the US or in Italy? My answers to you would change depending on what you are seeking as the venue. Also, do you currently reside in NYC or are you back in Italy at this time?
Customer: replied 4 years ago.


I already replied to you but I'm not sure if you have received my reply.

Yes I wish to file my divorce in US, NYC.

Yes, Im actually residing in NYC, since November 2nd 2012 but I'm planning to go back to Italy by the end of this month -March- with my son and my wife agrees with this.

Looking forward to hearing from you soon,

Thank you