Should I leave my house?

[bluesky368]

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

I want to file a divorce. But there is a problem. So far we live in the same house with our kids. After I file a divorce, I don't want to live with my wife any more. Also, it's not convenience still living together after the divorce is filed. The house is under my name and I have been paying the mortgages payment every month by myself and she did not contribute any money for it from her paycheck. Also, I want to have primary custody for my kids. Actually, I want to leave the house and stayed in the apartment after the divorce is filed. I don't think my wife will allow me to leave the house with my kids and stay in the apartment either. But, some people tell me that this is not good to my case if I just voluntarily leave my primary home. So, I want to know if there is any way I can either let my wife leave the house, or I leave the house but not hurt my case?

 

[mistoffolees]

Your friends are right. Do not leave the house for any reason other than imminent physical danger (and even then, you must file appropriate police reports).

You need to file for divorce and ask for an emergency hearing granting you exclusive use of the home. You can request temporary custody of the children at the same time. Given the facts you've stated, the first one is likely to be granted. There are not enough details to determine whether the second is likely or not. Essentially, you have to prove that the kids are better off with you than with their mother.

 

[bluesky368]

If my request for exclusive use of the home is granted, does it mean my wife has to leave the house? How about the exclusive use of the home is not granted or partially granted? Does it mean I have to stay in the house with my wife until the case is done? Did you ever experience any cases like that -- the exclusive use of the home is partially granted? Is this happened?

 

[mistoffolees]

If my request for exclusive use of the home is granted, does it mean my wife has to leave the house? How about the exclusive use of the home is not granted or partially granted? Does it mean I have to stay in the house with my wife until the case is done? Did you ever experience any cases like that -- the exclusive use of the home is partially granted? Is this happened?

In general, it's either granted or not granted. It would be hard to partially grant that type of request. The most likely scenario would be if you had a house with a separate apartment, they could grant one spouse the main house and the other spouse the apartment, but that would be unusual even if the house were set up that way.

Basically, if granted, she would have a fairly short period of time to find a place to live and get her personal belongings out. If the two of you are able to work things out, it would not be out of the question for her to be able to stop by and see the kids on a very flexible schedule, for example.

Note that this is a key decision point. In general, if you get temporary possession of the home, you'll have a better chance of getting it permanently. In addition, if you get temporary custody of the kids, it helps with the permanent custody decision - so be prepared for a battle. AND, temporary possession of the home helps with the custody decision because it's generally better to upset the kids' lives as little as possible.

 

[LdiJ]

If my request for exclusive use of the home is granted, does it mean my wife has to leave the house? How about the exclusive use of the home is not granted or partially granted? Does it mean I have to stay in the house with my wife until the case is done? Did you ever experience any cases like that -- the exclusive use of the home is partially granted? Is this happened?

I have seen cases where a spouse was given a certain amount of time to vacate the marital residence, and I have seen cases where exclusive use was denied.

However, mostly judges recognize that its not necessarily a good idea for divorcing spouses to be sharing a home unless they agree to do so. So most of the time a judge is going to grant exclusive use to one party or the other.
And yes, if you are granted exclusive use of the marital residence she will have to vacate it within a given time frame.

However, she may be granted temporary custody of the children even if you are granted exclusive use of the marital residence. It all depends on the overall circumstances.

 

[bluesky368]

In your experience, what elements will the Judge consider to grant or not grant the request of the exclusive use of the home? I bought the house before marriage, the house is still under my name, I have been paying mortgage payments and utilities since then by myself. For temporary custody request, I have actively involved in taking care of my kids and I have been keeping an journal to document how I take care of the kids in the last 6 months. I don't know if the Judge will look into my journal and trust it. In your experience, what is my chance for getting both requests granted to me?

 

[LdiJ]

In your experience, what elements will the Judge consider to grant or not grant the request of the exclusive use of the home? I bought the house before marriage, the house is still under my name, I have been paying mortgage payments and utilities since then by myself. For temporary custody request, I have actively involved in taking care of my kids and I have keeping an journal to document how I take care of the kids in the last 6 months. I don't know if the Judge will look into my journal and trust it. In your experience, what is my chance for getting both requests granted to me?

I think that the odds are high that you will be granted exclusive use of the marital home...particularly because you bought it before marriage.

I am unwilling to make any predictions on custody. However, generally the parent who has been the primary caretaker to the children is the parent that ends up with primary custody. By primary caretaker I mean the parent who cooks the children's meals, does their laundry, takes them to the doctor, helps them with homework, changes their diapers, gives them their baths.

One way or another, you are going to be sharing the children with mom. Therefore you will be co-parenting with mom until your last child turns 18.

 

[bluesky368]

I am unwilling to make any predictions on custody. However, generally the parent who has been the primary caretaker to the children is the parent that ends up with primary custody. By primary caretaker I mean the parent who cooks the children's meals, does their laundry, takes them to the doctor, helps them with homework, changes their diapers, gives them their baths.

I have been doing these "cooks the children's meals, does their laundry, takes them to the doctor, helps them with homework, changes their diapers, gives them their baths" mostly in the last 6 months. I documented them in my journal. I believe my wife will say she is the primary caretaker. How will the Judge make decision if both say they are the primary caretaker. I want to know if my journal will be considered an important document or accessible to the court for decision making?

Also, for the exclusive use of the home, if granted to me, do I need to pay for my wife's apartment fee?

 

[LdiJ]

I have been doing these "cooks the children's meals, does their laundry, takes them to the doctor, helps them with homework, changes their diapers, gives them their baths" mostly in the last 6 months. I documented them in my journal. I believe my wife will say she is the primary caretaker. How will the Judge make decision? If both say they are the primary caretaker. I want to know if my journal will be considered an important document or accessible to the court for decision making?

So, before the last six months mom primarily did all of that? Or you are doing it some of the time now, but mom is also doing it some of the time? Or have you only started journalizing it now? If its the former, I think that you would be better off going for joint custody rather than primary.

Also, for the exclusive use of the home, if granted to me, do I need to pay for my wife's apartment fee?

No, but she might be given temporary alimony (and perhaps even alimony in the divorce, depending on the length of your marriage) so in effect, you might end up paying her rent. If she receives primary custody, or even if its joint custody, you will likely be paying some child support as well. (assuming that you are the higher wage earner in a joint custody situation).

 

[mistoffolees]

I want to know if my journal will be considered an important document or accessible to the court for decision making?

The journal is not, by itself, important evidence. It is, however, important in that you can use it to refresh your memory of past events. That is, you can't submit the journal to the court, but if your attorney says "who put the child to bed on June 14", you can consult your journal and say "according to the notes I took on that day, I did". It's a subtle difference.

 

[bluesky368]

So, before the last six months mom primarily did all of that? Or you are doing it some of the time now, but mom is also doing it some of the time? Or have you only started journalizing it now? If its the former, I think that you would be better off going for joint custody rather than primary.

My kids are a little over 3 years old, their first year my wife and her mother primarily took care of them. Her mother did most work. The second year, basically we shared responsibility. The third year up to now, I am the primary caretaker. But my journal started 6 months ago. What is your advice? still joint custody or primary custody? my journal is useful for me to battle primary custody?

No, but she might be given temporary alimony (and perhaps even alimony in the divorce, depending on the length of your marriage) so in effect, you might end up paying her rent. If she receives primary custody, or even if its joint custody, you will likely be paying some child support as well. (assuming that you are the higher wage earner in a joint custody situation).

We have been married 6 years, in your experience, about for how long will I probably pay alimony to my wife? Yes, my income is higher than my wife, about 2 times. If I receive primary custody, does it mean the kids will live with me? and do I still need to pay child support to my wife?

 

[bluesky368]

The journal is not, by itself, important evidence. It is, however, important in that you can use it to refresh your memory of past events. That is, you can't submit the journal to the court, but if your attorney says "who put the child to bed on June 14", you can consult your journal and say "according to the notes I took on that day, I did". It's a subtle difference.

Do you mean it's better to use my journal only to refresh my memory? not submit to the court, why? If I submit the journal to the court, the Judge will have a chance to look at it, right? also, can my wife's lawyer look at it? what's the negative impact or possible risk to hurt my case if I submit the journal to the court? What is positive impact? Please advice.

 

[mistoffolees]

Do you mean it's better to use my journal only to refresh my memory? not submit to the court, why? If I submit the journal to the court, the Judge will have a chance to look at it, right? also, can my wife's lawyer look at it? what's the negative impact or possible risk to hurt my case if I submit the journal to the court? What is positive impact? Please advice.

The court will probably not let you submit the journal. It's very easy to overemphasize the importance of many minor details that just don't matter.

Ask your attorney.

 

[LdiJ]

My kids are a little over 3 years old, their first year my wife and her mother primarily took care of them. Her mother did most work. The second year, basically we shared responsibility. The third year up to now, I am the primary caretaker. But my journal started 6 months ago. What is your advice? still joint custody or primary custody? my journal is useful for me to battle primary custody?

I am thinking joint at this point. Its going to be joint legal no matter what (because that is the absolute norm..joint decision making). However, I am thinking that your case sounds like one for joint physical custody as well, and your children are old enough to not be too confused by that. Also, your children are apparently twins. You will NEVER convince a court that grandma did most of the work with twins while they were infants...and if you do, it won't look good for you either. I am also a bit concerned about your "journal". To be honest, it comes across as if you only started trying to be the primary caretaker when you started contemplating divorce...and therefore started documenting. That won't look good for you with a saavy judge or GAL.

We have been married 6 years, in your experience, about for how long will I probably pay alimony to my wife? Yes, my income is higher than my wife, about 2 times. If I receive primary custody, does it mean the kids will live with me? and do I still need to pay child support to my wife?

A six year marriage would not result in much alimony. It might be as little as temporary alimony pending the divorce being final, or as much as 2 years of alimony. If you are providing the health insurance for the family, it might be only you paying for Cobra coverage for your wife for a period of time. By the way, if you are paying the health insurance DO NOT take her off the policy, or take her off your car insurance or cancel any other kind of insurance before the divorce is final.

Primary custody means that the children live primarily with you. Its pretty rare for someone to have to pay child support if they have primary custody, but some state calculations make that possible when there is a big difference in incomes. However, when it does happen its usually not a huge amount. With true joint custody, the parent making more money does pay child support, but not as much as they would pay if the other parent had primary custody.

If you end up with joint custody, you will want there to be something in the decree stating that one of your homes is primary for school purposes. That is not an issue for you now, but it will be soon, and if one of you isn't primary for school purposes you could end up back in a serious legal battle in a couple of years to determine where the children will be going to school.

Again dad, I am reminding you that you will be co-parenting with mom for the next 15 years, and maybe long beyond that. If you are imagining a scenario where the children will live with you and you can pretend that mom doesn't exist except every other weekend, you are going to be sadly disappointed. Even in a best case scenario for you, mom is going to have significant visitation with the children and probably daily contact via electronic means (phone or webcams etc.)

You need to go into this with the attitude that you and mom are going to be sharing the children from this point on. Whether that means you as primary, or mom as primary or whether the time is 50/50, you are going to need to get used to sharing and being without your children for significant periods of time.

 

[bluesky368]

First of all, thank you for all honesty advice and answer. I am seriously considering all your say.

I am thinking joint at this point. Its going to be joint legal no matter what (because that is the absolute norm..joint decision making). However, I am thinking that your case sounds like one for joint physical custody as well, and your children are old enough to not be too confused by that.

If we come up as joint legal and physical custody, do we both pay child support? or Do I still pay full amount child support and my wife doesn't pay at all?

I am also a bit concerned about your "journal". To be honest, it comes across as if you only started trying to be the primary caretaker when you started contemplating divorce...and therefore started documenting. That won't look good for you with a saavy judge or GAL.

Father usually will very difficult to have primary custody. There is a bias against men that women will do a better job than men taking good care of kids in the family court. I am so aware of that so that I prepared this journal 6 months ago to tell the Judge "I can do it and I am better and I am serious about taking good care of my kids". Also, without these evidence and no witnesses, what is supposed to let the Judge rely on what evidence if both sides says they do this or they do that. yes, I think I will consult with my lawyer how to best use this. Thank you for reminding me this weakness.

A six year marriage would not result in much alimony. It might be as little as temporary alimony pending the divorce being final, or as much as 2 years of alimony.

Just a knowledge base, at least how many years' marriage, people will pay much alimony?

If you end up with joint custody, you will want there to be something in the decree stating that one of your homes is primary for school purposes. That is not an issue for you now, but it will be soon, and if one of you isn't primary for school purposes you could end up back in a serious legal battle in a couple of years to determine where the children will be going to school.

This battle is starting. the school district of the house I bought and we are living is not so good. If my wife moves to a better school district after the exclusive use of my home granted to me, does it mean I will suffer disadvantages? what will be my defense strategy in your experience if so? Should I just sell my house and also move to a better school district or give up the house to her and I move out?

Again dad, I am reminding you that you will be co-parenting with mom for the next 15 years, and maybe long beyond that. Even in a best case scenario for you, mom is going to have significant visitation with the children and probably daily contact via electronic means (phone or webcams etc.)

I've known that. I believe I am a better cooperator than my wife to handle this.