Question #129: I live in a suburb of NYC. I have been married for 5 years and have one child (1 year). I am completely miserable in my marriage. My husband and I do not love or even like each other; however, I know I do not have legal grounds for divorce in NY. When I bring up the topic of divorce/seperation he tells me to leave but to leave our son with him. He says he would never separate without full custody of our son. I would be willing to share custody (if I was the primary custodial parent). I would not even want spousal support-just child support. My question(s) is/are am I stuck in this marriage due to lack of legal grounds and refusal of my husband AND if divorce is possible could he really get custody of my son? I am currently a part time NYC school teacher. I stopped working full time when my son was born. I could go back full time whenever I want; however, even if I worked full time he earns more than double what I do-would this impact custody? Also, I would have to reside with my parent’s (more than enough room for my son and I) for about a year to get on my feet. My husband could afford to live on his own.

I live in a suburb of NYC. I have been married for 5 years and have one child (1 year). I am completely miserable in my marriage. My husband and I do not love or even like each other; however, I know I do not have legal grounds for divorce in NY.
When I bring up the topic of divorce/seperation he tells me to leave but to leave our son with him. He says he would never separate without full custody of our son. I would be willing to share custody (if I was the primary custodial parent). I would not even want spousal support-just child support.
My question(s) is/are am I stuck in this marriage due to lack of legal grounds and refusal of my husband AND if divorce is possible could he really get custody of my son? I am currently a part time NYC school teacher. I stopped working full time when my son was born. I could go back full time whenever I want; however, even if I worked full time he earns more than double what I do-would this impact custody? Also, I would have to reside with my parent’s (more than enough room for my son and I) for about a year to get on my feet. My husband could afford to live on his own.

ANSWER:

How are you so sure that you do not have grounds? If you are so miserable in your marriage there must be something that your spouse has done to make you miserable and that maybe sufficient grounds for you to file for divorce. In any case, it takes two to maintain a marriage and if you are so unhappy and want so desperately to get out of the marriage, I cannot believe that your spouse will remain despite your antagonistic feelings. You can make life miserable for him if he insists on keeping you in this marriage.

The fact that he makes more money than you is not sufficient for him to be awarded sole custody of the child; especially since the child is an infant, the courts generally will award resident custody to the mother.

You will also be entitled to spousal support to allow you to get on your feet and also attorney’s fees from him, and you can negotiate with that.

I suggest you speak to him directly in a moment of calm and explain that the marriage is not working , and that the divorce will take place with or without his consent , and he will ultimately be forced to pay for your attorney as well as his if he insists on litigating the matter.

Consider mediating this divorce instead of litigating it and if you are living in the New York City metropolitan area, please call me at 212-370-1660 to discuss arranging for a meeting for the three of us to meet and discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions