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I have been living apart from my husband for 1 yr. We have

I have been living apart...
I have been living apart from my husband for 1 yr. We have 2 young children that live 2 weeks a month with him and 2 weeks with me. I have maintained my own residence for 1 yr. My boyfriend would like to move in with me. Can my husband stop my children from staying with me? What legal issues will I be facing concerning my children?
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Answered in 2 minutes by:
9/3/2013
Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified

Brandon M. :

Hello there.

Customer:

hello

Brandon M. :

Thank you for your question. You mentioned that the kids have been living with you for two weeks at at time.

Brandon M. :

Is the concern that your boyfriend moving in with you might be cause for a change in the custody/visitation schedule?

Customer:

yes we only live 4 miles apart and in the same school bus route, so we alternate weeks sun-sun

Brandon M. :

You said that neither of you have filed for legal separation or divorce. The court can order custody/visitation for minor children even if there is no legal separation or divorce pending. May I safely assume that there is no court order for custody or visitation in place?

Customer:

there is no order, it is an agreement between myself and husband

Brandon M. :

Thank you for that information.

Brandon M. :

I'm also assuming that there's no question in anyone's mind that these are your husband's kids, correct?

Brandon M. :

Is that a correct assumption, I mean?

Customer:

correct. My question is, can I move my boyfriend into my residence? Can my husband stop the children from coming to stay with me on our agreed visitation

Customer:

are you still there?

Brandon M. :

Thank you. XXXXX may be direct, you're probably not asking the question that your really want to ask. Unless a court has ordered otherwise, you can move your boyfriend into your residence. Unless a court has ordered otherwise, your husband can't stop your children from staying with you any more than you can stop your children from staying with him, regardless of whether you do or don't have a boyfriend. The reason why is in Tennessee, absent a court's order, neither parent has superior right to custody of their children. Neither parent can really stop the other from having custody, so the parents either have to work something out, or they end up in court.

What I think you want to ask is what can be done if one parent tries to stop the other from visitation, or breaks an informal custody agreement. It really doesn't matter why the parent wants...


Brandon M. :

Yes, I am still here. I do apologize. My fingers only allow me to type so fast :-) Thank you for your patience while I draft the answer. I am very glad to answer any follow-up questions you may have once the full answer has been provided. :-)

Customer:

Do you have to be living apart for 2years to get a legal separation? And is it costly?

Brandon M. :

It really doesn't matter why a parent wants to disrupt visitation with the other parent. It could be because of a live-in boyfriend, it could be because the home is too small, it could be because the street name reminds them of grape jelly. It really doesn't matter why because if there is no court order, it is a unilateral act. Under those circumstances, if a parent refuses to allow visitation, they have essentially decided to create a tug-of-war. You could create a tug-of-war with the kids by deciding to break the informal agreement, and he could create a tug-of-war by doing the same. It really doesn't matter what the justification is.

Brandon M. :

Plan A is the parents live together and raise the kids in the same household. Plan B is that the parents live separately, but they work together in the best interests of the children. By the time you get down to Plan C, the parents can't agree and the courts get involved. So when you ask if a parent can decide to break an informal agreement based on a new live-in boyfriend, the answer is "yes" because a parent can descend the situation into chaos at any time and for any reason. A court will consider those actions later because kids need stability and if one parent is cutting off the kids from the other parent, there had better be a great reason. Unlike ex-spouses, the courts understand and even expect parents to move on to new partners and spouses after separation or divorce. If the new boyfriend is a child abusing psychopath, then a court might agree with the parent who decided to disregard the prior agreement, but in most cases it would just illustrate jealousy and an inability to co-parent.

Brandon M. :

There is not a requirement that spouses have to be living separated for two years to be granted a legal separation in Tennessee. If the spouses have been legally separated for two years, that will qualify them for an absolute divorce. Maybe that's where the confusion is?

Customer:

Would it be in my best interest to file for legal separation? I work full time and as part of our informal agreement, no child support is paid by either side. He is living in the house that we own together and I have a 3 bedroom apartment. Neither one of us can afford a divorce/attorney fees at this time.

Brandon M. :

First, let me direct you to the underlying statute for Legal Separation in Tennessee. It is Tennessee Statute 36-4-101. You can follow this link to view all of the grounds: Link. You will see that one of the grounds involves living apart for two years, but there are 15 different bases for legal separation, and that's just one of them.

As for whether it would be in your best interest to file for legal separation, it is not my place to say. I wouldn't tell someone whether they should or shouldn't make the very personal decision to file for legal separation or divorce. It's just not my place.

Brandon M. :

You asked about the cost. The filing fee is less than $300. It gets expensive if you get lawyers involved. I would estimate that 80% of divorces transpire without either side getting an attorney. If you don't have money for an attorney, you probably don't have enough assets to justify hiring an attorney to fight over.

Brandon M. :

Have you ever heard of, or considered a conciliation service?

Customer:

no never heard of that...can u explain please?

Brandon M. :

Well, ,basically, it's for a separating or divorcing couple that needs legal assistance, but doesn't want to have a contentious divorce. The divorce is mediated by one attorney who works for both spouses and guides them toward resolution of their issues. Instead of two attorneys in a costly fight against each other that leaves both spouses broke and bitter, it is one attorney working with both toward the goal of a dignified resolution that minimizes the damage that the process of divorce itself can cause. It requires a commitment from both spouses to work toward an outcome that is fair under the law and in the best interests of the children.

Brandon M. :

Has all of this made sense?

Brandon M. :

Did you have any other question?

Customer:

one second I have 1 more question sorry

Customer:

are the conciliation services easy to find and what is the average cost?

Brandon M. :

It's not hard to find. Average cost is around $5,000 total ($2,500 per spouse), but the cost depends heavily on the number of issues that have to be resolved. As a general rule, the total will usually cost about 1/3 of the total if the spouses each hired an attorney and had a contested divorce.

Customer:

ok thank you so much for all your help and information.

Brandon M. :

It was my pleasure. I wish you and your kids the best.

Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified
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Brandon M.
Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
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Experience: Attorney experienced in all aspects of family law

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