Question:
My wife and I have been married for 10 years. We have two boys, 3 and 5 years old. We moved to Hawaii 4 months ago with the intention of staying here no longer than 1-2 years because we had heard of how horrible the school system is here. After getting over here, she wants to stay forever. I absolutely do not want that and am planning on moving back to Oregon. She recently informed me that she would be divorcing me when we get back to the mainland because she thinks I am ripping her out of paradise.
If she files a motion to deny me leaving the state to go back home will it really hold since we have only been here 3-4 months? Should I file anything now or just wait until she tries to stop me? Also, once we are back in Oregon, what can I do to make sure I get at least 50/50 custody of our children?
Answer:
First I must preface my answer that I do not practice in Hawaii or Oregon. Each state has different laws governing dissolution of marriage. It is important that you contact a domestic litigation attorney licensed in Hawaii or Oregon prior to taking any action.
With that being said, most states have a minimum residency requirement that must be met in order for a person to file for divorce. This requirement is typically 6 months. Based on the facts you have given me, neither party is eligible to file in Hawaii at this time. If you or your wife have plans on returning to Oregon this may be the proper place for a divorce to be filed depending on the time line of your situation.
As far as her preventing you from leaving the state of Hawaii, based on what you have told me there is no basis for keeping you there. However, you should not under any circumstances take the kids with you without her knowledge and approval.
Once you return to Oregon and divorce proceedings are initiated by either party, you should do everything you can to be the best father possible. Parties can work out a settlement on their own regarding all aspects of the divorce including custody. If you and your wife cannot work things out during settlement negotiations, then a court will decide any unresolved issues for you. So, it is best to reach a settlement if possible because you will lose all control in the process if a court must step in to solve unresolved issues.
Steven “Lee” Akins, Jr. is a Staff Attorney in the Memphis, Tennessee office of Cordell & Cordell, P.C. Mr. Akins practices exclusively in the area of domestic relations. He received his BBA in Finance from Southern Methodist University and continued his education to receive his Juris Doctor from Texas Wesleyan University.
