Divorcing a stay at home mother

[webguy1024]

What is the name of your state? SD

I'd like to start planning what I hope to be a rather quick and easy divorce, but I'd like to know where I stand on a few topics before I do. I have concerns about child custody, spousal support, and the whole procedure of divorce as a whole. Both my wife and I are good communicators when we're not overloaded with stress. We have 2 boys, a 8 months and 24 months. We had the first boy within the first year of marriage so we didn't exactly establish a solid foundation early on. (no more kids after #2, we've made sure of that.)

Here's all there is to know about us. Please see questions at bottom.

Married in 2004, 2 kids since then (2005/2006). We just can't seem to get our stuff together as a couple since the 2 boys arrived. We met in 1998 and were great friends until 2005 when we had our first son. Wife quit her longtime job in Oct 2006 to become stay at home mother.

She has a bachelor's degree, I have none but am 1 semester away (night classes) then hopefully business grad school for MBA.

We have both held long-term jobs, hers from 2000 until becoming a stay at home mother in 2006. Mine from 2001-2005. I do have continuous employment since 2000, with only a few weeks in between jobs as a 'mini vacation'.

I've worked in high-paying jobs (for this area anyway) since 2000, she's steadily climbed the payscale at her government agency, quitting when she was making $20/hour. We cashed out a $18K state retirement account when she quit, so we could pay off some large credit card debt that she'd been carrying for years. She quit making $34K a year. I started in 2000 making $35K and now make $52K W-2 and $10K self employed. I currently cover all expenses with the income from my job and side business (see below).

There is a negative family net worth, with me owing about 4K in credit cards, 7K in student loans, and 9K on a truck loan. She owes $9K in student loans still, and 8K on a car loan. We have 1 year left in our lease at $925 a month. (signed a 2-year at 33% reduction in rent principal.)

The only assets are 2 trucks, valued at exactly the loan amounts, and a $1K 401K I had when i worked for a company in 2006.

I've operated a side consulting company since 2002. I've only ever brought in about $10K a year from the business and there is no cash in the bank so to speak, just $60 sitting in a bank account covering monthly bank fees. No assets of the company, everything is 100% depreciated and basically obsolete. Wife has never participated in company.

BOTTOM LINE: neither has cheated, hit the other, called the cops, been on COPS, or has financially ruined the family. We're as vanilla as they come, I just choose to no longer be married.

Question 1: Since she's a stay at home mother, do judges see that as a "child's best interest" reason to grant mother custody?

Question 2: If I avoided filing, and had the wife get a full time job with the kids in daycare, would I be able to bypass the problem from question 1? After about how long should she be working full time if I wait?

Question 3: Is a 50/50 custody arrangement possible or does one parent simply get the 'weekends'. I know judges have discretion, but in your experience, is a 50/50 possible and how does it work?

Thank you so much for taking the time. I know a lot of people are in this position and would like your input on the matter!

 

[Ohiogal]

Question 1: Since she's a stay at home mother, do judges see that as a "child's best interest" reason to grant mother custody?

She is the children's primary caregiver so she would most likely get primary physical custody with both of you getting joint legal custody.

Question 2: If I avoided filing, and had the wife get a full time job with the kids in daycare, would I be able to bypass the problem from question 1? After about how long should she be working full time if I wait?

No you wouldn't necessarily bypass the problem. Who takes the children to their doctor's appointments. Who makes the doctor appointments? Who tends more to their day to day needs? Avoiding filing would NOT change the issue.

Question 3: Is a 50/50 custody arrangement possible or does one parent simply get the 'weekends'. I know judges have discretion, but in your experience, is a 50/50 possible and how does it work?

How far away are you going to live from one another? Are you going to put the kids in day care while you work rather than letting mom watch them if they are home? A 50/50 is possible. Especially if you can agree upon it. How does it work? Depends on how you set it up. I have seen odd 50/50 schedules that differ from one week on and one week off. But you need to take in to consideration the best interest of the children and not of the parents.

 

[webguy1024]

She is the children's primary caregiver so she would most likely get primary physical custody with both of you getting joint legal custody.

Just throwing this out, would I be favored for primary physical custody if she were to go to work full time and I quit my full time job and went to school full time? She'd work the 7am-3pm shift (juvenile detention center, she was a supervisor there and would easily regain her job as they've offered it back to her numerous times.). I'd go to school evenings as I currently am. Would that scenario change things at all? What do I need to 'not' do in order to be considered a stay at home father? Is simply working out of the home for 8 hours while the other partner is home with the children considered 'stay at home'? What if the shift was 3p-11p and she was home with the boys in the mornings and afternoons while I was at school, does it matter if 'being home' time is when the child is awake or not?

That's where I get hung up, I am home as many hours as she would be even if we worked opposite shifts, but if she's home while they're awake, why is that considered 'primary caregiver'?

No you wouldn't necessarily bypass the problem. Who takes the children to their doctor's appointments. Who makes the doctor appointments? Who tends more to their day to day needs? Avoiding filing would NOT change the issue.

Are the specifics of those types of details usually relevant? Does a Judge consider that I take my boys to all Dr. appointments and she doesn't, or she is the only one that ever feeds them supper? Are those details sustainable when one party disagrees with the other's opinion on who does what?

How far away are you going to live from one another? Are you going to put the kids in day care while you work rather than letting mom watch them if they are home? A 50/50 is possible. Especially if you can agree upon it. How does it work? Depends on how you set it up. I have seen odd 50/50 schedules that differ from one week on and one week off. But you need to take in to consideration the best interest of the children and not of the parents.

Same town, likely in the same neighborhood by a few blocks. We rent a really really nice 2-unit townhome (2000sqft) and there are tons around in every size/price range.

If we prepare a separation/custody agreement beforehand, do the judges see that as a positive or do they prefer the courts help the couple navigate through the procedure?

Side note Ohio, thank you so much for your detailed response, you're A+.

 

[Ohiogal]

Just throwing this out, would I be favored for primary physical custody if she were to go to work full time and I quit my full time job and went to school full time?

You cannot force someone to go to work full time.

She'd work the 7am-3pm shift (juvenile detention center, she was a supervisor there and would easily regain her job as they've offered it back to her numerous times.). I'd go to school evenings as I currently am. Would that scenario change things at all? What do I need to 'not' do in order to be considered a stay at home father? Is simply working out of the home for 8 hours while the other partner is home with the children considered 'stay at home'? What if the shift was 3p-11p and she was home with the boys in the mornings and afternoons while I was at school, does it matter if 'being home' time is when the child is awake or not?

You threw in a bunch of stuff that is not relevant. If she went back to work and you went back to school then there is no reason why you two could not have shared custody where you have the children while she is working. Though she would be working while the kids are in school. You can work out a 50/50 plan based on what you have said. Why is it important to you to be considered a stay-at-home father? In order to receive primary residential parent (which is possible in a JOINT physical custody situation) you would need to show how you were/are the primary caregiver.

That's where I get hung up, I am home as many hours as she would be even if we worked opposite shifts, but if she's home while they're awake, why is that considered 'primary caregiver'?

Because children need more care while they are awake and not as much while they are asleep. When they sleep they are sleeping. And unless they have severe medical problems or something of the sort they do not need care during their sleep.

Are the specifics of those types of details usually relevant? Does a Judge consider that I take my boys to all Dr. appointments and she doesn't, or she is the only one that ever feeds them supper? Are those details sustainable when one party disagrees with the other's opinion on who does what?

Primary caregiver is composed of a variety of different things -- who takes them to doctor's appointments, who feeds them, changes them, cares for them when they are sick, shuttles them to all their activities, goes to their activities and does the 1001 things for them that a parent does. Who does the most is normally the primary caregiver. Those details when proven can help show a judge who the primary caregiver is.

Same town, likely in the same neighborhood by a few blocks. We rent a really really nice 2-unit townhome (2000sqft) and there are tons around in every size/price range.

Then 50/50 is very possible.

If we prepare a separation/custody agreement beforehand, do the judges see that as a positive or do they prefer the courts help the couple navigate through the procedure?

The more you can agree upon the better.

Just to let you know though, just because you have 50/50 parenting does not mean child support will not be paid. Just because you are considering quitting work to go back to school does not mean you will not be imputed an income -- and most likely the income on your last tax return (w2s and self employed). She would also be imputed an income based on what she has shown she is able to earn. Then child support will be calculated. So even with 50/50 it does not mean that someone will not be paying CS or receiving it. Now you two can agree to it. But you quitting to go back to school and wanting 50/50 or primary to receive CS (if that is why you are asking these questions -- yes I am being cynical) may backfire in your face. Courts can see through that as will a GAL -- which if you have a custody battle a GAL will most likely be appointed to determine what is in the children's best interest.

 

[kimberlywrites]

I live in Texas.
I commend you for wanting a 50-50, and realizing that to pull it off you need to live fairly close to each other. You also have to be able to get along.

I have a 50-50 with my ex. In our experience: There is no legal separation in Texas, meaning we didn't file anything at all until we filed for actual divorce. We had been separated for more than two years, and during that two years we were doing a 50-50.
We did our divorce pro se, so when we stood together in front of the judge we were able to explain how 50-50 had been working so far, and point out the things we were doing to make it work (living close to each other, not changing the kids' school or doctor or anything like that, both of us attending school functions and conferences, etc.)
I had heard that a judge is unlikely to change an arrangement you've been living by for the last however long. seemed to be the case.
So, I think, if you're in a state that requires legal separation papers be filed prior to divorce, you oughta make sure you put the 50-50 in those papers.
Does the wife know you want a divorce? Are you anticipating she will be cooperative on 50-50?
Also, as a sidenote, we put in our divorce papers a Plan B: Namely, that if either parent moves out of a 20 mile boundary, we revert to Standard Posession Orders for visitation (meaning 1,3,5 weekends for him.) Also, you might still be required to pay child support even if you have 50-50. My ex would have had to, but I agreed to not take any. He is generous with the kids and if I have a problem I just ask him for a few bucks.
It really all boils down to how you see this divorce unfolding. Amicable or will she be pissed and out for vengeance.

 

[Ohiogal]

Why would standard visitation be for HIM? Courts do not make such decisions based on gender so why was the assumption based on him receiving 1,3,5 weekends.

 

[Bali Hai]

Why would standard visitation be for HIM? Courts do not make such decisions based on gender so why was the assumption based on him receiving 1,3,5 weekends.

Ohhhhh pleaseeeee!!

 

[kimberlywrites]

To be more specific, in our case we figure whichever parent is the one to move away will be the parent who gets SPO.