Daily Answer Desk with Jim Gross, Esq.

Question of the Day:

My husband and I agreed to separate three weeks ago. However, he is keeping his new residence a secret. Therefore, I have refused him being able to take off with our 8 year old daughter. I have made many attempts to let him see her but with his addiction history (which along with that comes a huge trust issue) I don't feel comfortable letting him take off with her. Could this be used against me in court? – Jeana

Answer:

Jeana: Almost everything can be used against you in court. Keep a diary of your attempts for access and your attempts to obtain his address. Show this to the judge if you end up in court.

Question of the Day:

My divorce was final in Dec., 2003.  Part of the settlement agreement was that my husband was to receive half of my stock and profit sharing.  He and his lawyer were supposed to submit a QDRO, but to date nothing has been submitted.  If he delays further - can he profit from gains on my stock and profit sharing accounts - or will they be valued as of Dec., 2003? – Brenda

Answer:

Brenda: It depends on the wording of your settlement agreement.  The agreement may provide for a division as of the date of the divorce, plus or minus any gains or losses to the date of distribution. Or it may provide that distribution be done without adding or subtracting gains or losses.  If the agreement is silent, then you may have to ask the court to decide.

Question of the Day:

What are my chances of getting primary residence of my children when I go back to court based on the past history of my ex husbands behavior? He has been refusing my visitation, trying to alienate me from my children and making nasty comments to my children about me while on the phone with them. – DA

Answer:

DA: Each case is unique so no one can tell you your chances. But one of the factors the court can consider, in deciding what is in the best interests of the children, is which parent would be more likely to foster a good relationship for the children with the other parent.

Question of the Day:

I have obtained a 10 count charges summon from the County Court for divorce from my husband and is being served physically in his hands by one of my relative in India. Now he is arguing if I could waive all the charges and ask for simple divorce on mutual grounds, he is ready to sign for divorce. He is not in US. Can I get another summons from court, is it wise to do so? - Sma

Answer:

Sma: You probably don’t need another summons.  Once you have a written and signed separation agreement, you will just amend your original complaint to ask for an uncontested divorce.

Question of the Day:

I have a custody/support hearing coming up in a week, and l don't have legal representation, will the case be adjourned? Or will the courts appoint a lawyer? If so will it still be adjourned? – RO

Answer:

RO: The court will not appoint a lawyer in a family law case. The hearing will not be continued automatically. You have to ask for it and then it is up to the judge. I wouldn’t take the chance.

Question of the Day:

My x-husband stopped paying my alimony r/t losing his job. His x-employer had a wage withholding order prior to the job loss. He currently stared working again and has not be paying. I do not know where he works or his current address. What should I do? – Annette

Answer:

Annette: You must find him and his new employer and ask the court for a new wage withholding order.  Ask his past friends, relatives, co-workers and neighbors.  You may have to hire a private investigator.

Question of the Day:

In the mediation agreement, my husband agreed to have some things done by a certain date. At this point in time the date to appear before the judge for the divorce has not been scheduled yet. It is past the (day) of agreement.  What do I need to do about this or will the judge order something done? – Linda

Answer:

Linda: You have several choices, but nothing happens unless you ask for it.  You can file a new law suit for breach of the agreement, you file a motion for summary judgment in your divorce case, or you can wait and ask the judge for a judgment at the divorce trial.  Note that getting a judgment is not the same as getting cash and you may still have to take further legal actions to collect.

My son is going through divorce mediation. He was told that he and his wife need to be the plaintiff and defendant in this matter. He wasn't sure what to do so he said he took the plaintiff roll. He does not want the divorce, the wife does. While my son was in Iraq, I was called by a private investigator stating that my son's wife was fooling around with her boss and that the bosses wife was bringing charges against her husband and my daughter in law. I DO Know that my daughter in law was supoenaed to go to court about this matter. What took place I don't know. My question to you is - should my son be the plaintiff in this matter as HE loves this woman and doesn't want the divorce but knows that this marriage is not going to work as SHE WANTS OUT? – Donna

Question of the Day:

I am the custodial parent of my child and am receiving child support. Am I obligated to provide my child with items needed while at his father's house? Is he obligated to provide his own carseat and diapers? I was under the impression that CS paid was to cover expenses for the times the child is not with the Non-Custodial Parent. Please help me understand this. – Lisa
 
Answer:

Lisa: In shared income states like mine, first you calculate the total cost of raising a child. Then that cost is apportioned between the parents according to their incomes and overnights with the child. The custodial parent is deemed to pay his or her share by paying for things like food, shelter and clothing. The other parent pays his or her share by paying it to the custodial parent. So the non-custodial parent may, but is not required to, pay for anything beyond the child support amount.

Question of the Day:

How do the courts find who the child (12 yrs) should live with? Her mother makes more $ than I, but I have been the primary care giver for the last 9 years, my schedule allows this. I want joint physical and legal, she wants full everything. – Tracy

Answer:

Tracy: The courts decide based on the best interest of the child. There are many factors that go into this and primary care giver is an important one. Another is the report of the custody evaluator. But it pretty much means whatever judge thinks.

Question of the Day:

When does the payment of child support end, on the child's 18th birthday or upon the end of the child's senior year in high school? – Steve

Answer:

Steve: It depends on your agreement and your state law, but most states say child support terminates on the child’s 18th birthday, unless the child is a full-time high school student living at home. In that case, child support terminates on graduation or the child’s 19th birthday, whichever is earlier.

Question of the Day:

can a judge rule on divorce without me present.I am saving for an atty,I have denied any paperwork and signed nothing.can the judge rule without me present.If so,can I reopen when I get an attorney. – Christine

Answer:

Christine: Yes, a judge can grant a default by divorce and you might not be able to reopen it later. Don’t sleep on your rights. Sometimes a judge will give extra time for a party to obtain an attorney.

Question of the Day:

My ex husband has recently informed me that the home we shared is up for foreclosure. Neither of us realized that I was still responsible for the debt, as the divorce papers stated it was all his responsibility. I've since learned that it was a binding contract and court orders cannot override it. Do I have the right to take him back to court? and if so what would it be going after or would it even be worth it? – Karen

Answer:

Karen: You have the right to take him back to court for a judgment for the amounts you have to pay. Then you would have to try to collect it from any income or assets he might have now or in the future.

Question of the Day:

In your experience, have you noticed anything that would cause you to advise people to wait (or not wait) until minor children are adults to begin divorce proceedings? – Matt

Answer:

Matt: That is such an individual question, I would not presume to give people advice because it is their life not mine. If they can live together and raise the children successfully, then it is probably better for the children that they stay together. But by the time they get to me, most people are so miserable in their marriage and in conflict as parents, that the children may be better off if their parents are separated.

Question of the Day:

My husband filed for divorce. He has a lawyer, I do not. I have received a separation agreement, I agree to all terms except I would like to have my maiden name restored, can I respond to his lawyer making this request by a handwritten note? – Tammy

Answer:

Tammy: Usually, we do not include restoring the maiden name in the agreement. You include it with your Answer to the Complaint for Divorce and ask the Judge for it at the Uncontested Divorce Hearing.

Question of the Day:

After being married for six months I found out my husband was not divorced from his previous wife. Is my marriage valid? Does she have any rights to anything of mine...money, house, etc.? Does he have responsibility of half of the debt that we have established together even if my name is solely on everything? – Heather

Answer:

Heather: Your marriage is not valid. She has no rights to your property. The debtors can collect the debt only from you. You will have to collect from him by way of settlement or by proving that he agreed to pay half.

Question of the Day:

I have been trying get a divorce now going on 2 years. I have been married 24 years now, stay at home mom looking for a job; he has had access to the money market fund which is only in his name using it to pay off his cc if full and his attorney fees while I have had no access even to pay my attorney except from funds I initially borrowed. My attorney quit due to fees I was not able to pay her since I have no access to funds. How come I have not had any access to those funds though they are considered a marital asset during this long two year period? – Deena

Answer:

Deena: You cannot access the money market because it is set up in his name and he owns it under property and contract law. Under divorce law, it is a marital asset, but that only helps you on the day of divorce. Between now and then, you will have to ask the court to order him to pay temporary support and attorney fees.

Question of the Day:

HE HAS RECENTLY HIRED AN ATTORNEY AND I AM REPRESENTING MYSELF. HE WANTS TO MODIFY TEMPORARY CHILD SUPPORT AND ALIMONY ORDERS BY CLAIMING I COHABIT WITH SOMEONE AND IS ALSO REQUESTING MORE TIME WITH OUR CHILDREN. I HAVE GONE TO A SECOND MEDIATION FOR CHILD VISITATION THAT ENDED WITH NO AGREEMENT (HE NOW WANTS 8 DAYS P/MONTH AS OPPOSED TO 4). DO I HAVE A FAIR CHANCE ON CONTINUING THIS CASE SOLO OR SHOULD I TAKE FURTHER ACTION AND DROWN IN DEBT HIRING AN ATTORNEY? – ANDREA

Answer:

ANDREA: That’s a question only you can answer. I think it is better to have an attorney if you can afford one. There are lots of benefits to having an attorney, but the downside is the cost.

Question of the Day:

my husband and i were divorced in february 2004 and i was wondering he never signed the divoce decree his lawyer signed on his behalf. is that legal or can i apeal that? does that mean we are still married since technically he didnt sign it? i would rather have his signature on the divorce degree since the marriage was between us. – Melissa

Answer:

Melissa: An attorney is the agent of the client and may sign on his behalf. And if the divorce decree is signed by the judge it is legal and, after a very short time, final and unappealable.