Without Prejudice versus the Status Quo

In divorce and custody cases, temporary resolutions are often arrived at “without prejudice.”  In theory, that means, for example, moving out of the marital residence and leaving the children behind with the other parent is without prejudice to your claims to the marital residence and child custody or increased visitations schedule.  This makes the person moving out think he or she will remain on equal legal footing for child custody and/or possession of the marital residence.

But in reality the courts looks to the status quo, whether consciously or subconsciously.  Once you enter an agreement, even on a temporary basis without prejudice, it is stating the other parent is a fit custodial parent for the children to be left with in the marital home.  Thus, you create a status quo of the living circumstances of the children.  The longer this arrangement lasts, the more prejudice it has against the parent who moved out and the more difficult it will be to substantially alter it at trial.

Do not move out unless there is a very compelling reason to do so.  If you are ordered out of the house by the court, you have no choice.  But, maintain a daily diary of where you are and who you are with so that if you are falsely accused of committing a family offense, you can prove your whereabouts and have witnesses.  Bite your tongue and do not fight or argue or assert yourself.  You may even want to install hidden nanny cams (visual not audio, but in not areas of privacy, i.e., bathroom) that record to the cloud so that you can prove what really happened after you are arrested and put out of the house by a court order that is enforced by the police or sheriff.  By recording to the cloud, you can access it from anywhere later.  You may even want to wear a wire to record audio as well. Check with an attorney before installing/using these devises to ensure compliance with local laws.

By staying in the house and/or being able to successfully fight an order of protection and reenter the house, you ensure fair and equal footing throughout your case.  And should the recordings prove the other parent has committed a family offense, you will be able to seek the Court to order the other parent out giving you the leg up.  And should the recordings prove the other parent lied, you will be able to seek the Court to find the other parent to have lied, filed a false instrument and to have no credibility moving forward.