I wanted to get everyone's opinion if the reason for divorce matters at all? For instance, the state of NY has a new no-fault divorce option which seems to be the easiest quickest way. In my situation Adultery and/or/combination of Abandonment is appropriate.

Besides it costing more, are there any other cons/pros in going the extra mile filing/proving Adultery or Abandonment? We do have a 2.5yr son who is with the WW and I'm just trying to educate/prepare myself as much as possible.

Thoughts and personal experiences would be much appreciated. Thank you for your time.

You need to consult an attorney. I filed under "Inappropriate Marital Conduct" and, umm, I think something else, too. But the actual divorce listed it as Irreconcilable Differences. That was the agreement under the terms of the Marital Dissolution Agreement.

The attorney seems to think it doesn't matter. Really wanted a second opinion, especially being a Father in NY.

I am divorcing in NY. A lot depends on your situation but in my case it has turned out to be relevant so I will give you my history in case this is useful.

I filed in October 2008 (before the no fault law) using his most recent adultery as grounds. He threatened to deny the relationship unless I allowed him to become the petitioner which I did because I wanted to spare my children the humiliation of hauling her fat ugly rear into the courtroom. He refiled as petitioner in February 2009 with constructive abandonment as grounds. Because he was the petitioner (this is the relevant part) he has been able to control the agenda ever since which means we are still not divorced.

In January 2010 I filed my own action under the new no fault law which went to trial in December (trial postponed to Jan because his lawyer was ahem not available). He tells me that no matter whether we get divorced under his original action or under my new action, he is going to appeal. He will not win an appeal but the important part here is that he is going to be more likely to get a stay under the new law as it is less tested which means I could wait yet another year for my divorce.

In June 2010 he tried to withdraw his petition using the statute of limitations on his adultery and the judge refused to allow it. He is now appealing that decision too.

He wants to make sure all the money is spent so that there are no assets left to divide.

So to summarise; fault or no fault will not change the financial settlement but you must be the petitioner if you want to control the agenda.

If you think your ex might try to prevent the divorce or spin things out till the money is spent, use the old law if you can.

The grounds didn't matter at all in my situation (no fault state). Since courts are already bogged down with too many cases, the less time it takes to adjudicate divorce cases, the better. If ur state still allows you to prove fault, I would def go in that direction, especially if there is a child involved.

@living_well thank you for sharing... It was helpful to learn how being the petitioner makes a huge difference. Although, my situation is a bit different, we don't have property or real assets to divide - it isn't about money. My main concern is my son and her uncontrollable lifestyle.

@JtotheC That is actually my main concern, my son. Assuming I will be able to afford it, I am leaning towards trying to prove fault.

Does anyone have any experience with proving fault in court and the effects it has with helping you with custody? Any pointers would be greatly appreciated..

In general, courts don't believe that adultery has anything to do with someone's ability to parent. Substance abuse, physical abuse, crime, or having a new SO who is a criminal affects parenting. Adultery just means they are a bad spouse.

@kirby Personally I would agree if its a single act/occurance. But what about if it's constant repetative behaviour, partying, on-going adultery... how can this not have anything to do with parenting, when she's more concerned about responding to an email or a txt, then spending a minute with our son?

rvm, I'm really, really sorry. I wish things were different. I agree with you that your WW's lifestyle is not good for your son and she's probably a terrible mother. But the court system doesn't care. It's not fair, but that's how it works.

If you want what's best for your son, don't worry about grounds for the divorce. Instead concentrate on the custody agreement. You need to seek 50/50 custody and then offer to take your son any time your WW needs a break. If she's in full-blown, selfish party girl mode, she'll be glad to dump him off regularly. In a year or two, when you can prove that you have him most of the time, you can go back to court for a custody modification.

You are absolutely right about her being happy to "dump" our son to me or the grandparents, without even blinking twice. You mentioned proving that I have him most of the time, how does one actually prove when a child is and with who? Is there a particular court mandate or some sort?

You write down in a journal whenever she has him or attempts to get him. Keep this journal WELL hidden.

Consistent logging carries a lot of weight in court!

Just write it all down. Get a notebook and keep a handwritten record of all the times you have your son. If your WXW brings him over dirty, sick, unfed, etc. make a note of it. It doesn't need to be anything fancy. When you have 12-18 months months of records showing that you've had your son 75% of the time and your WXW has no records of anything, you'll be believable in court and she'll look like an uncaring twit.

And if she dumps kiddos on grandma and grandpa you write that down too.

Totally Off Topic:

karmasrose, I LOVE Terry Pratchett!

As it stands right now, she probably spends 2 days with our son, more like morning through afternoon. She conviniently started working in a lounge, the 5pm-1am shift. If that's not bad enough, she usually shows up hours later, staying out partying. So the grand parents naturally stay with our son. Slowly, it turned into them having him stay at their home, probably so that he isn't subjected to her actions.

Should I be documenting all this? Is this relevant information for the court, or will they view this as her just working?

Document absolutely everything. Documenting that she went out "partying" probably won't help but documenting that he is repeatedly being left with g-parents would.

Try to document times like:

"W was with son from 9-5 on [insert date]"
"W dropped son off with g-parents, did not see him again until [insert date]"

If she is leaving YOUR son with his grandparents and there is no court order in place, then you have every right to him as she does. If there is an order in place then you should ask to have it revised where YOU have 1st right of refusal if she wants to dump your son so she can go partying. The best way to document is to use a spiral notebook and make notes in your own handwriting. Leave out any personal commentary and don't tear out any pages. Document the good AND the bad. If you've ever read a hospital record, that's a good example. use different colored pens, pencils. You are making a record that could be used later in court.

Examples:

01/01/12: WW worked until 9:00 pm. Did not pick up son until 2:00 am.
01/02/12: Got to care for son today, I took him to McDonalds as a treat. He is a happy kid.
01/03/12: MIL mentioned son is living with them because of Ww's work and social schedule.
01/04/12: WW picked up son this morning. Looked hung-over. Son did not want to go.

(BTW, is she drinking and driving with him??)

I guess it's worth explaining the current state of the situation. There currently is no court order. We have been seperated since last June. We had a mutual verbal agreement that I take our son Fri (evening) to Sun (Evening) every week and any days off or vacation I have. I generally work a 9-5, M-F otherwise. There were never any issues, as some of you previously stated, she was always happy to dump him on someone else.

We seperated due to wayward behavior, hidden phones, secret emails, etc.. (I have posted my story on another thread) and were suppose to be taking time and reconciling. I certainly kept putting off filing paperwork in hopes that everyting will turn around and she will come to it. Some time in November, she secretly started to have a full blown relationship with an old friend who I grew up with. (like a knife through my heart). This all came to light just a few weeks ago.

Her parents were barely on speaking terms with her during our seperation and now literally want nothing to do with her due to her behavior not even towards me, but most importantly our son. They mentioned wanting me to have full custody if possible, but I know it's a long stretch to prove in court. I'm planning for 50/50 for starters, but want to document and keep records of everything.

Thank you for all the suggestions regarding how to best document all of this. On a different note, does it matter if the journal is filled out in different hand writing, for instance by me and my parents? Or should it strictly be only one (my) hand writing?

(She was never a big drinker to begin with and to my knowledge, never has/d our son in the car after one of her nights. What does disturb me is that she has now been about 2 months without a car seat for him (He outgrew his old one). Granted she doesn't travel far, only a few blocks to her parents, but how insane!!!)

rvm, it's fine if you have family members assisting in your journaling as far as I know. Some judges might consider it to be a positive sign that you have significant family support as you care for your son.

Also, if your WW's parents are in favor of you having primary custody, and if they are willing to testify in your behalf, then you have a MUCH greater chance of getting it. Your wife's affair doesn't have much to do with her ability to parent, but the details that you are sharing now ARE about her poor parenting.

In some jurisdictions there is usually some kind of standard custody plan where one parent is designated as having primary custody and the other parent gets a short mid-week visit and every other weekend. The non-custodial parent pays child support. Usually the mother is designated as the custodial parent and the father gets the minimal visitation. However, the parents have shared legal custody and joint decision-making about important matters. It's very hard to get sole legal custody. You have to prove that she is unfit, which is very difficult (even when she is a danger to her child.) I have an online acquaintance who as a father was only able to get sole legal custody after a murder/suicide attempt.

I'd suggest that you try to get joint legal custody, but that you request to be the custodial parent. Try going for something like a 60/40 split on paper and make the offer so that she thinks you're trying to help her out because of her job situation. Also, the non-custodial parent usually pays child support to the custodial parent. For now, waive child support. Most women who go off the deep end like that freak out when they realize they might have to pay child support and THEN decide they want 50/50.

Finally, do not EVER allow her take your son in a car without a car seat. If you are aware of her doing that, you are just as much in the wrong as she is.