Moving out and her criminal behavior....

What is the name of your state (only U.S. law)? California
Question:
Hi! Thank you for any advice you might have...
I'll try to make this short and sweet. I filed for divorce about a month ago and my wife filed a response with a lawyer (I filed pro per). We currently still live together and I pay all the bills even though she has a part time job (but her income would barely cover the rent alone if she did pay). We have an 11 year old son that wants to live with me and we initially agreed that he would live with me and she would have visitation (but now in her response she's saying she wants custody). My question is can I move out of the house into an apartment in the same county with my son (who wants to move too and live with me) and not have to pay for her place too? I know I'll end up owing Alimony and such but I cannot stand living under the same roof with her anymore and neither can my son.
Background:
She has numerous actions she's made that might help my case. First, she was arrested last year for oral copulation with a minor and contributing (alcohol) to a minor, she has these charges and the case is still in process (DA gathering evidence). The minor involved has even had restraining orders placed against her. She has been emotionally abusive towards my son by abandoning him for up to 5 days without a call/contact (I have been there though) and when she does see him the 1-2 days out of the week she fights with him or involves him with her "boyfriend" (doesn't spend time with him without the other guy around & even had our child sleep over at this guys house on the couch with her in the other room with the guy). She says she wants me to fix up the house to sell (even though its upside down right now) and then wait for what she gets for alimony before I can move out with my son. She's now also saying "I want 50/50 custody because I don't think its right I should have to pay child support" her only concern is money.
So can I just pack and leave to an apartment within the same county with my son - who wants to live with me, and not worry about her place's expenses until the alimony order is reached? Would this screw me up in the case? Thank you!What is the name of your state (only U.S. law)?

BlueSunshine9 said:

What is the name of your state (only U.S. law)? California
Question:
Hi! Thank you for any advice you might have...
I'll try to make this short and sweet. I filed for divorce about a month ago and my wife filed a response with a lawyer (I filed pro per). We currently still live together and I pay all the bills even though she has a part time job (but her income would barely cover the rent alone if she did pay). We have an 11 year old son that wants to live with me and we initially agreed that he would live with me and she would have visitation (but now in her response she's saying she wants custody).

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(just adding white space)

My question is can I move out of the house into an apartment in the same county with my son (who wants to move too and live with me) and not have to pay for her place too? I know I'll end up owing Alimony and such but I cannot stand living under the same roof with her anymore and neither can my son.

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Hold it right there. How long have you been married?

(Don't assume you have to pay alimony - while it's possible you can, and probably should, at the very least fight it until mediation)

She has numerous actions she's made that might help my case. First, she was arrested last year for oral copulation with a minor and contributing (alcohol) to a minor, she has these charges and the case is still in process (DA gathering evidence). The minor involved has even had restraining orders placed against her. She has been emotionally abusive towards my son by abandoning him for up to 5 days without a call/contact (I have been there though) and when she does see him the 1-2 days out of the week she fights with him or involves him with her "boyfriend" (doesn't spend time with him without the other guy around & even had our child sleep over at this guys house on the couch with her in the other room with the guy). She says she wants me to fix up the house to sell (even though its upside down right now) and then wait for what she gets for alimony before I can move out with my son. She's now also saying "I want 50/50 custody because I don't think its right I should have to pay child support" her only concern is money.
So can I just pack and leave to an apartment within the same county with my son - who wants to live with me, and not worry about her place's expenses until the alimony order is reached? Would this screw me up in the case? Thank you!What is the name of your state (only U.S. law)?

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Have you filed for temporary custody? Do so. Now. Get OFF the computer and do it.

Thank you - We've been married 10 1/2 years... and she just got a part time recently (03/09) and I've been paying the bills the whole time

File for temporary custody?? I'll do that ASAP - Do I just go to the courthouse, give them my court # and do I have to see a judge?? Would temp custody give me the right to move out with him?? Would moving out without covering her expenses hurt my case??
Thank you so much!

BlueSunshine9 said:

Thank you - We've been married 10 1/2 years... and she just got a part time recently (03/09) and I've been paying the bills the whole time

File for temporary custody?? I'll do that ASAP - Do I just go to the courthouse, give them my court # and do I have to see a judge?? Would temp custody give me the right to move out with him?? Would moving out without covering her expenses hurt my case??
Thank you so much!

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You can already move out with him - but a temp custody order will give you more than a little bit of an advantage should Mom wish to make a fuss about it (and she can do that).

Go here : California Courts: Self-Help Center: Families & Children: Custody & Visitation: Forms & Instructions for Custody & Visitation Cases

ETA: can you see an attorney today at all? Even one meeting might be advantageous

BlueSunshine9 said:

Thank you - We've been married 10 1/2 years... and she just got a part time recently (03/09) and I've been paying the bills the whole time

File for temporary custody?? I'll do that ASAP - Do I just go to the courthouse, give them my court # and do I have to see a judge?? Would temp custody give me the right to move out with him?? Would moving out without covering her expenses hurt my case??
Thank you so much!

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Do you have a hearing date yet?

(And unfortunately I didn't take into account your state - you may end up paying at least 5 years of alimony; negotiate with her if you can).

Great - thank you for your advice! Will the court look at me "abandoning" her financially and not paying her way until its ordered as a detriment to my case? Will they make me reimburse her for past expenses? How will it look in the overall custody determination? I have lots of proof/evidence of her being an unfit mother (and my son's own opinions) but I'm affraid to leave if its going to hurt my case even though that's what my son and I both want is to leave.

No hearing dat yet... I filed the petition and her lawyer filed a response only 3 days ago.. thats it so far

BlueSunshine9 said:

Great - thank you for your advice! Will the court look at me "abandoning" her financially and not paying her way until its ordered as a detriment to my case? Will they make me reimburse her for past expenses? How will it look in the overall custody determination? I have lots of proof/evidence of her being an unfit mother (and my son's own opinions) but I'm affraid to leave if its going to hurt my case even though that's what my son and I both want is to leave.

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PLEASE keep your son out of it - don't even discuss Mom's faults with him. Your job is to facilitate their relationship.

Mom is going to be expected to support herself and while there's no law saying you have to to support her California can be a little tricky and I'm honestly not sure whether your leaving would be seen as a bad thing or not; what I am sure about is that you should not leave unless your son does come with you.

I wouldn't usually advise this but since it seems to be a plausible option...you could always offer to pay for an apartment for MOM (on a very temporary basis), while you and your son stay in the house with you. That way you already have him with you.

Yes definitely trying to keep him out of it but she involves him in her tiraids. I'm the one consoling him and trying to keep him focused on scholling and being a kid but he has mentioned to me numerous times he wants to live with me, and doesn't trust her and feels neglected. I just a make a not of everything that goes on into a journal.

I've tried offering to help her move out but she refused and syas she wants to move too but not until the place is sold. Either way, I can only afford to pay for one place and thats my dilemma. Her behavior is harmful for my son to be around but I cannot pay for two places. I just don't want to make the mistake of moving out with him (with the temp custody of course) and still having it look bad on my case. I guess it might have to be a risk i take... Thank you for your help!!!

BlueSunshine9 said:

Yes definitely trying to keep him out of it but she involves him in her tiraids. I'm the one consoling him and trying to keep him focused on scholling and being a kid but he has mentioned to me numerous times he wants to live with me, and doesn't trust her and feels neglected. I just a make a not of everything that goes on into a journal.

I've tried offering to help her move out but she refused and syas she wants to move too but not until the place is sold. Either way, I can only afford to pay for one place and thats my dilemma. Her behavior is harmful for my son to be around but I cannot pay for two places. I just don't want to make the mistake of moving out with him (with the temp custody of course) and still having it look bad on my case. I guess it might have to be a risk i take... Thank you for your help!!!

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You do realize that if you don't pay the mortgage you will tank your own credit? Same with the utilities? You need to ask for temporary custody (which should be a slam dunk considering that she has been charged with sexual indecency/statutory rape of a minor) and temporary possession of the marital home. Once you have those orders, she would have to move out.

thanks for your reply - yes i know that is a factor, it gets a little more deep. Her father is the one who did a personal loan on the house so the money we owe is to him (aside from the rent space - its a mobile home) the home is now only worth about 35k and we paid 55k. As far as utilites, couldn't I just take my name off them?
What do you think I should do? I def dont want to screw up my credit or mess up my case but my son and I are stuck in house we hate (My son cannot stand the place and his school). His mother is neglectful and when she is around makes life really hard on both of us. What would you do??? Thank you for the advice!!!

WHATEVER you do, don't delay. You need to get your son out of that situation as soon as possible. File for divorce and ask for an emergency hearing on custody.

Since the home purchase price was loaned to her by her father, you may be in better shape as far as the mortgage is concerned. You could, for example, agree to move out and leave your wife there if they release you of any liability on the mortgage. However, you might not want to do so without being given credit for your share of the equity that might exist.

I would strongly suggest that you consult with an attorney. The initial consultation probably won't be very expensive and in the end, the attorney can save you a great deal of grief and expense.

So:
- consult an attorney
- file for divorce
- ask for an emergency hearing on custody based on the charges against your wife
- if at all possible, see if her father will give you a release on the remaining mortgage if you let her stay there undisturbed
- as for utilities, there are differences of opinion, but I would not personally disconnect them without discussing it with the attorney. You could ask for them to be put in her name, but that will generally require her approval.

Thankfully OP did file for divorce (I think he filed first actually) but yes he absolutely needs to get going with everything else.