Q: What are my rights as primary caregiver of 2 infants during an impending "divorce" (common-law-marriage) from the dad?
The father has been in school & working P/T (he just graduated, so working more hours now) while I've been a stay-at-home mom for our boys, ages 6 mos & 32 mos.
Both names are on the lease for our condo, although he "moves out" for long periods at a time, then just "moves back in" when he feels like it (he says he doesn't care if I'm against it). I ask him not to stay here because he's incredibly verbally/emotionally abusive towards me- extremely degrading, screams at me in front of our children, threatens me, cuts off credit cards so I have no access to $$ (which I need to provide for his kids) etc.
Our lease is about to expire, at which point he's threatening to basically put me out on the streets- says he won't provide any financial assistance to me, even though our youngest is only 6 mos & I'm unable to work while caring for him. He also wants 50% custody (does NOT have his own place).
What rights do I have, in terms of financial support (until I can work), housing & custody?
A:
There are many issues here, so I will break these up into sections.
(1) Common law marriage. Colorado does recognize common law marriage, but this a judicial determination. This means that before a divorce (i.e. property division) can occur, the existence of a marriage must be shown. There is no hard rule for common law marriage, but the existence of two households is an area of concern for proving a marriage. Establishing the existence of a marriage is a requirement for alimony. Property can still be divided between unmarried couples, but the merger rule (whereby most individual property is automatically deemed to be part of the marital estate that can be divided) does not apply, so property divisions occur primarily on a possession/ownership basis (like roommates).
(2) custody/child support. Colorado does NOT require marriage (or provided special treatment) in relation to any child issues.
(3) Child support. Child support is required in most situations, but be aware that the calculation is based on the income (ability to pay) of the payor. This can be modified later, but if the father is only working part time the support award will be low. Also be aware that the award based on ability to pay will be divided between the two children. In other words, if the father can only pay $500 a month, each child will receive $250 a month (note: these numbers are NOT estimates). Finally, the custody division will also impact the general calculation for the award.
(4) Custody. Colorado favors a joint (50-50%) custody approach. It is possible to seek primary (more than 50%) custody, but this is an uphill battle and will require either (a) a lawyer, (b) acts by a parent that endanger the children, and/or (c) having supporting evidence from experts/witness to support non-involvement by a parent.
(5) Loss of home. Based on your facts, up to the lease not being renewed, you (and your children) would likely need to be evicted by either the landlord or the father to "force" you to leave your current residence. Also be aware you likely can prevent access to the home if the father is not currently living with you.
(6) Work. While Colorado does recognize the need to allow non-working parents time to re-enter the workforce, it does not generally consider it impossible for a parent to work (even with small children).
You should contact a family law attorney for more details.
--In short, you are currently in a rather vulnerable situation. It is recommended that you begin the process of seeking income and establishing increased financial independence.
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