Question #28: Hi. My brother is in the process of a divorce. He has served his soon to be ex wife with papers and she has sent them back. Currently the two lawyers are hashing it out. His wife has been a stay at home mom for the past 3 years and he has been working in NYC making a VERY decent income. My brother is filing for joint custody of the kids. The problem is – they are living in the same home, since his lawyer told him that if he were to move out of the home, it would be considered abandonment – and this would affect his chances of custody. Although he sleeps in the basement, they share kitchen, bathroom, and living space. The two are constantly arguing – especially over petty things. All of this is causing problems with the children. They are upset, they don’t understand and it is affecting them. My brother agrees that the best thing would be to move out of the house – this way his visits with the children would be pleasant and he and his soon-to-be-ex could start to work out a cordial and friendly relationship for the kids. He is afraid that he will be penalized. Is there anyway he could establish a separate residence without being penalized? Thanks for your help. (By the way he lives in Long Island, NY)


I cannot overemphasize the benefits of a mediated as opposed to litigated divorce. This is a prime example where the issue of living in the same premises could have been easily resolved through mediation and not force the family to go through such difficult emotional pain, especially for the children. The parties may enter into a stipulated agreement that they have agreed that the best interests of the children lie in the father moving out of the marital home and that such moving will not detrimentally interfere with his claim for joint custody and will not be deemed an abandonment since it is by consent of both parties.

Is still not too late to mediate this divorce. I strongly suggest that they call me at 212-370-1660 to arrange for an appointment to discuss mediation. It is the civilized way to deal with a difficult and emotionally stressful situation. It will save them time ,money ,and much aggravation. If not for their sake, for the children ‘s sake.

Leonard M. Weiner, Esq./Divorce Solutions