Question:
My wife is leaving our home and taking the kids. She say’s she wants a one year separation and mitigation. What rights do I have to keeping the children in our home? And if not court-ordered, do I have implicit rights to visitation if she does leave?
Answer:
A spouse that wants a divorce over the protest of the other spouse will often try to "peel the band-aid off slowly". My observation is that one spouse will suggest an informal separation, maybe saying you both need space. My client then spends this separation hoping for a reconciliation while the other spouse is organizing the divorce. Being nice and avoiding waves probably won’t save your marriage and it will put your relationship with your children in jeopardy.
Depending on your jurisdictional requirements, you may be able to file for separation or divorce and then get temporary orders maintaining your status quo and keeping the children in your home. Generally you do not have any implicit rights when it comes to actual, enforceable schedules of visitation. If your wife leaves with your children, the pattern you establish during your separation will become a consideration when the Court determines a final order of custody, so now is the time to act.
Jill Best is the Litigation Manager for the Cordell & Cordell, P.C. office in Overland Park, Kansas. She practices exclusively in the area of domestic relations. She is licensed in the state of Missouri, the state of Kansas, the U.S. District Court for the Western District of Missouri, the U.S. District Court of Kansas and the United States Court of Appeals for the Eighth Circuit.
Ms. Best is a frequent guest on Dads Divorce Live and has presented at numerous family law seminars for the public and fellow attorneys.
