Question: My wife has just told me that she wants to rent a town house for her and our 4 children to live in. She says that she has been on a waiting list for 2 years. She has told me that she will not be filing for a legal separation, nor will she be contacting the friend of the courts to pursue child support. Further more she also says she wants me to live in our house so the kids can also come "home." She says that she doesn't want the kids' lives to change.
To make a long story short, she wants to work out all means of child support between the two of us without any legal intervention to make this an amicable divorce. This sounds all well and good if we can keep the peace, but if she goes through with her new living arrangements, then decides to take legal action, how will that affect me? How would you recommend I jump on this favorable situation before it goes bad? Also, how can I gently get all of this in writing without triggering some defensive re-consideration on her part?
Answer: Your wife’s plan would appear to indicate she does not consider the marriage to be working for her. If you agree that the marriage is over, then you should consult with a qualified family law attorney about the issues and consequences of proceeding (and not proceeding) with a dissolution of marriage. Remaining married while living separate lives can create issues as to assets, debts, and entitlement to retirement or employment benefits, all of which continue to accrue, as well as issues as to raising the children. You may be faced with new or additional issues if divorce is postponed, such as her being involved with someone, changes in her health or employment requiring spousal support from you, or increases in the debts or assets.
Allowing her to remove the children will usually later be painted as you having abandoned them or at least having a lack of interest in your children. If you have the schedule and ability to care for the children, her wanting to move out should not include taking the children with her.
Should you decide to allow her to remove the children, you are obligated to continue to support your family although no specific amount of support is required until a court or administrative order sets a dollar amount. At any point she may seek state agency or court intervention to require specific child support even though you remain married. When she does pursue support or divorce, your alleged lack of support during the period of separation may be raised to claim retroactive support, a disproportionate property division, or asserted as evidence of neglecting the needs of your children, so you should keep records of whatever you provide in money or other forms of support to maintain your family.
A legal separation instead of a divorce is usually just a temporary step until the divorce. Unless there are issues for which remaining married outweigh being divorced, when the marriage appears over, proceeding with a divorce is generally advised. If you are able to reconcile while the divorce is pending, the divorce proceedings may be dismissed. Since your wife has been planning her move for two years, you should also review your finances and run your credit reports at www.annualcreditreport.com to ascertain if she has pursued another other actions that may impact your credit and debts.
Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.
Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses' Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.