Ask Me Help Desk - Would a separation before divorce be bad in court?

My friend has been married for about 6 years now. He and his wife have two children together. However, they are just miserable together and have decided to get divorced. Originally, they were doing mediation but that fell apart.

He wants to move out into another house but his lawyer has told him that if he does that it's child abandonment and will look VERY VERY bad in divorce court. But to me that makes no sense. If he still interacts with the children and has them over for sleep overs and is in their lives as much as he can be... I don't understand how that could be bad in court.

Is it a real concern that he shouldn't move out of the house even though everyone in it is miserable together? This is in NY if there is something important about NY.

His lawyer should help him file a separation agreement. Such an agreement would spell out visitation and support issues and allow him to move out.

Quote:

Originally Posted by ScottGem

His lawyer should help him file a separation agreement. Such an agreement would spell out visitation and support issues and allow him to move out.

Sad thing is his lawyer is the one who told him to stay in the house... and is now dragging his feet on the court stuff. Everything to me points that he's got a lawyer that is just milking him for fees. So I'm trying to put together more evidence to my friend to ditch the lawyer.

I hate to see him being sponged off for thousands of dollars for this.

I would ditch the lawyer. Most lawyers will give a free consult. Have him go to another lawyer and ask about a separation. If the second atty agrees with what I said, then he will know its time to ditch the other one.

I do agree, ditch the attorney and get a new one. Just remember, everything that is agreed to in the stipulation/separation agreement can and most likely will be put into the divorce decree. He should read it carefully.

He doesn't need a stipulation agreement per say but something needs to be entered with the courts because of the children (for support, visitation and custody) everything else can be handled in the divorce.

He doesn't need one to leave the home, I never had one but I did have a support order and about three months later we got a visitation order everything else was heard in the divorce.

Quote:

Originally Posted by cjonline

I do agree, ditch the attorney and get a new one. Just remember, everything that is agreed to in the stipulation/separation agreement can and most likely will be put into the divorce decree. He should read it carefully.

He doesn't need a stipulation agreement per say but something needs to be entered with the courts because of the children (for support, visitation and custody) everything else can be handled in the divorce.

He doesn't need one to leave the home, i never had one but i did have a support order and about three months later we got a visitation order everything else was heard in the divorce.

Ok, I'll harass him about this more. I really want to see him get out of the house with her. He's totally miserable and depressed at the Guys nights. He just wants out.

Any idea about how long a divorce should really take? He's been at this for nearly a year and they haven't even been to court yet.

In Virginia you have to separated (living in different homes) for a year with kids, 6mts without them, for a general no fault divorce. It may be different in each sate that I'm not sure of. You could call the court or have him call his attorney, its general information, maybe Google it?

I'm not sure there is a "normal" time frame. It all depends on how willing the parties are to settle. My ex didn't want something until I did. If I said I would give up X and Z but wanted Y, well... he had to have Y and nothing would stop him from getting it but the Judge telling him no. Do you know her? Does she sound like that? The more stuff they have together (house, cars, kids, money, etc) the longer it will take, unless he wants to just give it all up, well not the kids but you get the idea.

Personally, I don't suggest giving up anything -- he should fight for everything he can get.

Is he wanting custody of the children, if not then it is not deserting them, if he visits and pays child support. ( in general) and almost all couples separate prior to divorce. In fact I don't know that I know any couple that actually lived together while getting a divorce.

As for as divorce, if both parties agree to all terms, division of property, child support, child custody and the such, there is nothing to do but wait for the state required time frame and file and get a judge to sign it.

If they are not agreeing, it can take years to get a ruling.

Quote:

Originally Posted by Fr_Chuck

Is he wanting custody of the children, if not then it is not deserting them, if he visits and pays child support. ( in general) and almost all couples seperate prior to divorce. In fact I don't know that I know any couple that actually lived together while getting a divorce.

As for as divorce, if both parties agree to all terms, division of property, child support, child custody and the such, there is nothing to do but wait for the state required time frame and file and get a judge to sign it.

If they are not agreeing, it can take years to get a ruling.

He wants to split custody of the kids. Equal time all around. I think it's silly but it's something he's set on.

The really sad thing is she has agreed multiple times to the things and then as soon as her parents get ahold of her she's calling her lawyers and changing things. He is the one who wants the divorce and I think she does now after all the crap that I'm sure has happened.

They were originally trying for mediation but that collapsed. Now I just talked to him and apparently it's become a fault divorce which just sounds like a nightmare from my research.

*sigh* Some days I think he's a complete moron. But I hate to see my friends getting screwed in anyway.

Thanks for all the info. If anyone has any urls or direct information about pre finalized divorce separation stuff in NY I'd love to hear it. I'm afraid he's scared enough by what his lawyer said that he's not likely to listen to "I heard it on a forum." *grin*