Leave while she's deployed.

[SCFather]

What is the name of your state (only U.S. law)? South Carolina

My soon-to-be ex wife is currently deployed to Afghanistan. She decided while she was deployed that she does not want to be married anymore. While she's been gone, she goes up to 1 week without any form of contact, not even to inquire about our 1 year old son. I know that she's sleeping with someone out there (I have proof). She wanted the divorce, but I am planning on serving her with papers (since I also have proof that she is the one who wants it) as soon as she gets back. She's told me to leave the apartment that we have together. I am going to get a new place, but I'm going to take our son with me. Once we get the temporary hearing, I know she'll get some sort of visitation rights. I consulted a lawyer here in SC and he instructed me to not let her see him until the temporary hearing. Is it ok for me to do that and not let her see him? What will happen with the child if she gets full custody and gets relocated elsewhere?
Does it matter that she's avoided getting in contact to find out about our son, and will that play into me getting full custody?

 

[Just Blue]

What is the name of your state (only U.S. law)? South Carolina

My soon-to-be ex wife is currently deployed to Afghanistan. She decided while she was deployed that she does not want to be married anymore. While she's been gone, she goes up to 1 week without any form of contact, not even to inquire about our 1 year old son. I know that she's sleeping with someone out there (I have proof). She wanted the divorce, but I am planning on serving her with papers (since I also have proof that she is the one who wants it) as soon as she gets back. She's told me to leave the apartment that we have together. I am going to get a new place, but I'm going to take our son with me. Once we get the temporary hearing, I know she'll get some sort of visitation rights. I consulted a lawyer here in SC and he instructed me to not let her see him until the temporary hearing. Is it ok for me to do that and not let her see him? What will happen with the child if she gets full custody and gets relocated elsewhere?
Does it matter that she's avoided getting in contact to find out about our son, and will that play into me getting full custody?

Wow. A WHOLE WEEK??

Dude...She is in a flipping WAR ZONE!

 

[Proserpina]

I'm surprised an attorney said that.

Very surprised.

 

[InfantCustody]

She is in a WAR ZONE! Do you understand that? No on in their right mind is going to hold it against her that she didn't call home twice a day to check on the baby!!

I would not, in any way, think it is sound legal advice to not let her see the baby until after a temp hearing. When I spoke with an attorney, she made darn clear the judge will be FURIOUS if one parent is denying the other parent access to the child. FURIOUS. Additionally, she said she had seen plenty aparents lose custody for denying the other parent access to the child. Seriously - I would look for more sound legal advice if an attorney actually told you that. If you deny a parent returning from war the right to see HER baby until you get to court, I would not want to be present for what the judge would say or do.

How long has she been gone, and when will she be back?

While you have been the primary care-giver, it is unlikely you will retain permanent sole physical custody. Her absence is not by her own choice, and courts are not punishing parents who are deployed by stripping them of custody when they get back like they used to. I would not be surprised to see the end result in your case be something like 50/50.

ETA: If she gets full custody and were to be relocated elsewhere, you would either fight the relocation and try to get primary custody at that time OR you would get a long distance visitation plan and have your son during summer, 1/2 Christmas break, spring break, etc.

 

[mistoffolees]

She is in a WAR ZONE! Do you understand that? No on in their right mind is going to hold it against her that she didn't call home twice a day to check on the baby!!

I would not, in any way, think it is sound legal advice to not let her see the baby until after a temp hearing. When I spoke with an attorney, she made darn clear the judge will be FURIOUS if one parent is denying the other parent access to the child. FURIOUS. Additionally, she said she had seen plenty aparents lose custody for denying the other parent access to the child. Seriously - I would look for more sound legal advice if an attorney actually told you that. If you deny a parent returning from war the right to see HER baby until you get to court, I would not want to be present for what the judge would say or do.

How long has she been gone, and when will she be back?

While you have been the primary care-giver, it is unlikely you will retain permanent sole physical custody. Her absence is not by her own choice, and courts are not punishing parents who are deployed by stripping them of custody when they get back like they used to. I would not be surprised to see the end result in your case be something like 50/50.

While I agree with most of what you've said, I don't see 50/50 unless the parents agree to it.

First, judges don't like to order 50/50 without an agreement between the parents. Second, you have a very young child who will probably not even recognize Mom. There may well be some graduated visitation for a while after Mom returns leading to fairly liberal visitation, but I wouldn't be so sure that it would be 50/50.

SC statute specifically allows the moral behavior of the parents to be considered in determining child custody as well as who has been the primary caretaker. If OP really can prove that Mom is committing adultery (which is very difficult to do, btw), he might well have a strong case for primary physical custody.

 

[Proserpina]

Many deployed personnel have regular access to the phone AND the Internet. Even in Afghanistan.

Let's not jump on the bandwagon without knowing the details.

 

[LdiJ]

While I agree with most of what you've said, I don't see 50/50 unless the parents agree to it.

First, judges don't like to order 50/50 without an agreement between the parents. Second, you have a very young child who will probably not even recognize Mom. There may well be some graduated visitation for a while after Mom returns leading to fairly liberal visitation, but I wouldn't be so sure that it would be 50/50.

SC statute specifically allows the moral behavior of the parents to be considered in determining child custody as well as who has been the primary caretaker. If OP really can prove that Mom is committing adultery (which is very difficult to do, btw), he might well have a strong case for primary physical custody.

I agree with Misto on this, completely. In fact, I think its likely that dad's case for primary custody is strong even without proving that mom committed adultery.

Dad should also realize that he does NOT have to leave the marital residence.

 

[InfantCustody]

I learned something new today...thanks all!

 

[single317dad]

Dad should also realize that he does NOT have to leave the marital residence.

If Dad CAN prove adultery, he would even have a good shot at spousal support or having Ex contribute to the maintenance of the marital residence. This could be complicated by the fact that it's an apartment, as the lease will have been signed well in advance of any court order.

OP, I'm not big on the "you need to get an attorney" response, but if I were you I would at least get a consultation with a good divorce lawyer. South Carolina has some powerful divorce laws and you may be wise to take advantage of them.

 

[mistoffolees]

If Dad CAN prove adultery, he would even have a good shot at spousal support or having Ex contribute to the maintenance of the marital residence.

Spousal support? How do you know that? What if he's making $200,000 a year and she's making $30,000? Without knowing the facts, it is impossible to speculate on whether she'd have to pay spousal support. OTOH, the law is fairly clear - if OP can prove adultery, it would mean that HE would not have to pay spousal support.
In South Carolina, How Does Adultery Affect Alimony? | Gregory Forman, Attorney at Law - Charleston Divorce, Custody, Family Law, and Support

Contribution to the marital residence also depends on a lot of factors that aren't in evidence.

 

[single317dad]

Spousal support? How do you know that? What if he's making $200,000 a year and she's making $30,000? Without knowing the facts, it is impossible to speculate on whether she'd have to pay spousal support. OTOH, the law is fairly clear - if OP can prove adultery, it would mean that HE would not have to pay spousal support.
In South Carolina, How Does Adultery Affect Alimony? | Gregory Forman, Attorney at Law - Charleston Divorce, Custody, Family Law, and Support

Contribution to the marital residence also depends on a lot of factors that aren't in evidence.

ALL ELSE BEING EQUAL, Mom's adultery gives Dad a possible opening for spousal support and maintenance of the marital residence.

Better?

 

[mistoffolees]

ALL ELSE BEING EQUAL, Mom's adultery gives Dad a possible opening for spousal support and maintenance of the marital residence.

Better?

That's not the way the law reads.

The law says that a person who commits adultery should not be the RECIPIENT of spousal support, but it does not say that someone who commits adultery will have any greater risk of PAYING spousal support.

 

[cmb1975]

I am not a lawyer, but I can give you a commanding officers point of view.

If you are not in the military, she will be required to pay equal shares of her BAH for each of her dependents until the divorce is final. For example, you get 50% the child’s custodian gets 50%. If you have custody you will receive all of the BAH. If she has custody you will receive 50% of the BAH unless there are more dependents. This is not alimony which is determined by a judge after the divorce or child support. BAH is money that the military pays for dependents and it is their entitlement. This is enforceable under UCMJ. For that matter, so is adultery; however, before you pursue that think if her being kicked out of the military or reduced in rank is best for the child. To clarify, you may be entitled to your portion of BAH, yet still need to pay child support. Likewise a judge could count that as her support if you have custody and not make her pay any extra. The court will see the BAH, so it is not exactly free money.

If she has 50% custody or greater, she will need to submit a family care plan through her chain of command that ensures she can provide adequate care during deployments, training, or late nights. If she is unable to provide one she is subject to discharge from service. If she cannot provide one at that location, she can apply for a compassionate reassignment. State courts will determine if she is allowed to go with the child—not the military.

If she intends on staying in the military, she will quickly realize that she needs to work visitation out with you. It is unlikely that a court would allow the child to stay with a friend or relative while she is deployed if the father is available.

The military has a JAG office on every post, which you are entitled to use as a spouse. They will not represent you in a divorce; however, will let you know everything the military will provide you and require of her during separation. You need to go down to that office first thing on Monday and make an appointment. They will cover everything from support, medical entitlements, and your share of any pension/ retirements/ Thrift Savings Plan that you are entitled to. Remember, when you talk to the JAG they are there to help you through the process, not punish her. If you need to file grievances with her chain of command, they will tell you how to go about that, but they are not a forum for that.

 

[single317dad]

That's not the way the law reads.

The law says that a person who commits adultery should not be the RECIPIENT of spousal support, but it does not say that someone who commits adultery will have any greater risk of PAYING spousal support.

It also says that spousal support can be awarded, and that adultery is one of the grounds for divorce. You act like Dad has no advantage at all due to Mom's actions, and I respectfully disagree.

 

[mistoffolees]

It also says that spousal support can be awarded, and that adultery is one of the grounds for divorce. You act like Dad has no advantage at all due to Mom's actions, and I respectfully disagree.

Adultery is definitely grounds for divorce. And spousal support can be awarded. No one has contested those facts.

I also never said that Dad had no advantage due to Mom's actions. In fact, I specifically stated that statute said that he should not have to pay alimony if he can prove adultery - even if stbx would otherwise be eligible.

I simply objected to your conclusion from those facts that "If Dad CAN prove adultery, he would even have a good shot at spousal support". That conclusion is not supported by statute. But feel free to show a statute that supports your position.