Re: Custody Question

You can certainly file for divorce on the basis of adultery and, if proven, this would limit her ability to obtain alimony. You can also demonstrate voluntarily impoverishment because if she can volunteer as firefighter, she can certainly work. Adultery is not, of itself, a basis for you to get custody but the presumption starts with shared custody and then the court weighs 14 factors to determine the "best interests" of the children. You would not be in a position anyway to seek custody of her oldest child, only your biological children. The courts WILL consider if separating the two younger from their elder sibling would be harmful. Her inability to gain employment will not be a factor against her, as you suggest, but would help her argue that she has been the primary caregiver. This could be a complicated situation, so you will want to be represented in the litigation. Often, a settlement for shared custody (which will reduce child support) can be worked out, especially if she does not want to have a trial on adultery, and the settlement can also address all marital property issues. You can file for divorce on the basis of adultery, without separating, as long as you have not "condoned" it (e.g., by resuming sex with her). Also, while you are living together custody and support will not be issues. I would urge you to be as involved as possible with the children's lives and document this (e.g., knowing any teachers/daycare providers, medical providers etc.). Please call to arrange a consultation with one of our four skilled domestic law practitioners.