Divorce Solutions

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 three 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 house, it would be considered abandonment – and this would affect his chances of custody. Although he sleeps in the basement, they share the kitchen, bathroom, and living space. The two are continually 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 a litigated divorce. This is a prime example where the issue of living in the same premises could have been quickly resolved through mediation and not force the family to go through such severe emotional pain, especially for the children. The parties may enter into a stipulated agreement stating that the best interests of the children lie in the father moving out of the marital home. But 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.

It 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 delicate 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