My wife and I have separated. I was unfaithful and had admitted to it. Before I moved out, she then had sex with someone else. A few days later, after coming home drunk, she assaulted me after I went to pick up her phone when a text message came in at 2:15am. My face and neck were very badly scratched by her fingernails, and all I could do was attempt to restrain her. There are photos of how I looked within 5 minutes of the attack being over, and she walked away without a mark. (although she claims that she had some bruising. I suspect it was probably on her wrists or shoulders - places where I was trying to hold her by while she was scratching and punching me). I did not contact the authorities as we have two small children, and I did not want this to interfere with the custody arrangements. While what she did wasn't right, and I know it would have been 100% unacceptable had I done the same thing, I understand how she was feeling about me and what the effect of the alcohol was. I did not want to add any additional pain (or financial burden), to what is going to be a painful and expensive process.
I left that night and began staying elsewhere. That became the date of our official separation. We have both seen attorney's, yet no suits have been filed by either of us.
Since moving out, we have had sex in our bed in that house more than once, and I have slept over in that bed a few times.
So my questions are these:
- did her having sex with someone that time negate my infidelity, in the eyes of the court, even though mine had occurred more than once?
- did our sleeping together and me sleeping in the house, in our bed, technically change the date of the start of our separation, or does it still count as 'condoning' (considered forgiveness of your partners infidelity in the state of NC if you have sexual relations - the insertion of anything at all into the vagina) my actions, although the separation had already begun?
- although she initially asked me to move out saying she wanted the divorce, since no suits have been filed, do I now have the opportunity to be the one to actually file for divorce, making me the plaintiff and her the defendant?
- is there anything else important here that I'm not thinking of that I need to deal with immediately?
Thank you for taking the time to read and help!
Answers & Comments
1. No, it doesn't matter who did what or when, the divorce is because of infidelity on both sides.
2. No, you were no longer living in the house, so you were living separately--just because you "visit" doesn't mean you are officially together again.
3. Yes, bring the divorce to the courts and be the plaintiff instead of the defendant--in the court of law, it is always easier to be on the offense than on the defense.
4. Seems like it might be a mutual divorce, but if things start getting ugly, keep those photos of the abuse--whether you were drinking, she was drinking, whatever, you have proof of abuse and this abuse could turn on your children at any time if she gets angry enough. Bring this to the courts attention if she starts slinging dirt in court.
You need to check your state statutes, in SC if you sleep over just ONE night you are back to square ONE!
If you were married and has sex with another person it is adultery, and it doesn't matter who did it first.
If I were you I would stop giving her the alcohol excuse, it does not matter WHY she hit you, it only matters that she hit you. Not calling the police is a problem as it would have cemented your case.
My recommendation would be for you to go and file for divorce and get an emergency hearing. In that hearing i would claim spousal adultery and spousal abuse and that you need to have custody of the children due tot he spousal abuse and because you have the children you need to have the marital home.
You need to get a custody arangement done immediatly, that is IF you want to see your children for more than 4 days out of the month. this is also going to come down to her paying you child suport and possibly alimony if she makes significantly more.
I'm not going to lie, this is a long shot, but any good lawyer will tell you that she would do the same to you in a heart beat and if she claims abuse and adultery having you claim it afterwards just looks like you are coming up with a defense. In adultry and abuse cases it is important to strike first or you get screwed! Don't try and be a gentleman, this is divorce and this is your children....strike with everything you have!
If you are interested in custody advice please join our group:
http://groups.yahoo.com/group/DadsHouse/