Will custody change during divorce proceedings?

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Re: Will custody change during divorce proceedings?

Postby Fatheroffour » Wed May 23, 2012 6:39 pm

If she or her attorney is sandbagging, calling her won't help.
If she currently is agreeing to it, why talk to her? The best that could happen is she still agrees. The worst is that you somehow talk her into changing her mind.

I just don't see the value in calling her. You have a letter stating she agrees. I just don't see the value in calling.
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Re: Will custody change during divorce proceedings?

Postby cdavis » Thu May 24, 2012 10:40 am

Fatheroffour wrote:If you want to offer that temporary orders and status quo will not be a determining factor in your particular custody proceedings, i'm not going to argue with you but to advise other dads that those two factors are not important is both dangerous and completely wrong. It's not worthy of debate any more than whether the sun is going to come up tomorrow.

I'll add that if your attorney doesn't think it will be a factor in your particular case that there are several possibilities.
1) you misunderstand him
2) he is planning on arguing a completely different point (DV most likely) and arguing status quo is unnecessary
3) you are fixing to get hosed

Good luck to you. Stall the proceedings as long as you can. Prove the current situation is allowing the kids to thrive. Take away any arguments from the STBX that a change is warranted.

That is the heart of temoprary orders and status quo, which is a winning strategy.


I tried to do that by stating in my jurisdiction, in my case, etc. I had a limited time of full custody and restraining orders. The continuations have worked out where I had full legal and roughly a 60/40 split on physical/< parenting time > with restraining orders still in place, and conditions on where they could stay, etc during the < parenting time >. Specifically, because of what I read here I told my attorney I thought we should continue because it would continue the trend of me having the kids more I and read that would help my case. I was informed that temporary orders would not have a significant impact and that it was most likely that the judge would pick a primary parent. I would assume in most cases the status quo is kept not because that is routine that kids are settled into, but because whatever conditions that lead to a temporary order or agreement are in most cases still prevalent in the permanent order. Mine was a result of a ex-parte order, so nothing has really be proven. In my specific case I have only offered me being primary and spouse has offered 50/50. I'm willing to settle for current arrangement, which is basically 60/40. If my spouse is unwilling to flex on the 50/50 I would have to go to court knowing I will probably win primary, but take a big risk in the process.
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Re: Will custody change during divorce proceedings?

Postby blcprc » Fri May 25, 2012 9:56 am

What is the typical percentag of the division of assets that marital misconduct will play in a case? I have proof that my stbx was having a relationship with two other men at two seperate times over half of our marriage!
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Re: Will custody change during divorce proceedings?

Postby Fatheroffour » Fri May 25, 2012 10:13 am

Most states preclude fault from being a factor in division of assets.
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Re: Will custody change during divorce proceedings?

Postby blcprc » Fri May 25, 2012 11:54 am

My attorney told me that in mo, marital misconduct only has an affect in the division of assets.
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Re: Will custody change during divorce proceedings?

Postby Fatheroffour » Fri May 25, 2012 12:42 pm

Some appeals courts in Missouri, which expressly permits consideration of misconduct, have indicated that the fault factor comes into play only if the misconduct placed an undue burden on the other spouse or the marital partnership. In the most frequently cited case, Burtscher v. Burtscher , 563 S.W.2d 526 (Mo. Ct. App. 1978), the court said there should not be an inordinate focus upon a particular incident or even a series of incidents, particularly in a marriage of long duration. The conduct factor becomes important only when one spouse's misconduct changes the balance so that the other must assume a greater share of the partnership load. See, e.g., In re Marriage of Gustin , 861 S.W.2d 639 (Mo. Ct. App. 1993) (wife's act of chopping through door of marital residence after parties' separation did not place any burdens on the marital relationship); Divine v. Divine , 752 S.W.2d 76 (Mo. Ct. App. 1988) (husband's conduct - failing to communicate with wife, physically abusing her, harassing her over the telephone, and making false accusations against her-unquestionably placed undue stress on the marriage).


Moreover, even when authorized to consider marital fault, courts often refuse to give adultery much weight as a factor in equitable distribution. For example, in Barth v. Barth, supra , a Missouri appeals court declared that an inordinate focus on adultery is an inappropriate basis for a wholly disproportionate award. What is wholly disproportionate depends largely on the facts of each case, the court said, upholding a 55-45 split in the case before it. The court pointed out that in D'Aquila v. D'Aquila , 715 S.W.2d 318 (Mo. Ct. App. 1986), a 60-40 split was deemed disproportionate, but that in Schwarz v. Schwarz , 631 S.W.2d 694 (Mo. Ct. App. 1982), an 85-15 split was upheld. Adultery has been accorded substantial weight in Missouri cases involving repeated adultery, e.g., Cook v. Cook , 706 S.W.2d 606 (Mo. Ct. App. 1986) (where husband had been repeatedly unfaithful to the wife, appeals court upheld award to wife of 86% of the marital estate), or physical injury. Mastin v. Mastin , 709 S.W.2d 545 (Mo. Ct. App. 1986) (husband's misconduct burdened wife sufficiently to justify a property division heavily weighed in favor of wife, who contracted a venereal disease from him twice).


You may want to research if there is more current case law but I wouldn't get your hopes up that her affair will result in any sort of windfall for you. It looks like it will largely depend on which circuit you are in and which judge you get and no one could accurately give you an estimate on what the division would be other than 50/50.
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