Daily Answer Desk with Jim Gross, Esq.

Question of the Day:

We have agreed to joint custody although our son will be with her more than 50% of the time because she is remaining in the marital home and I work longer hours than she does. Does this give her more rights than me as far as daycare decisions, medical issues, etc? – Tyler

Answer:

Tyler: Each parent can make day to day decisions when the child is in his or her control, like which babysitter to use or medical care in an emergency.  But joint custody means that the parents have to agree on long term parenting decisions that affect the health and well-being of the child, including those related to education, medical treatment and religion.

Question of the Day:

What length of time is a temporary court order good for in reference to family law and child custody?

Answer:

Sandi: Until the Court issues another order, usually a permanent order after a trial or hearing, or by consent if the parties settle.

Question of the Day:

I cannot locate my husband and would like to file for divorce. What do I do? – Veronic

Answer:

Veronic:   You can still file for divorce, but if you cannot find your spouse, or your spouse is avoiding service, you will have to ask the Court for alternative service.  Since this will slow your case down, you should make every effort to locate and serve your spouse first.  The Courts will require a good faith effort on your part, and records of your attempts to locate your spouse.  Each jurisdiction has different procedures and forms for Alternative Service of Process.

Question of the Day:

What does a divorce decree look like? – Avis

Answer:

Avis:  It looks like an Order of the Court with the case caption, signed by the judge and it reads more or less like this, depending upon the law and issues in your case: “WHEREFORE, it is by the Court this 3rd day of October, 2009,ADJUDGED, ORDERED AND DECREED:  That plaintiff, be and he hereby is granted an absolute divorce from defendant on the ground that the parties have lived separate and apart without cohabitation continuously for a period of more than six months.”

Question of the Day:

I filed for divorce from my husband 6 months ago on the grounds of cruel and unusual punishment. We have been physically separated since September 2008. I have a boyfriend for a few months. There was no dating of any kind prior to the separation. Can my husband accuse me of adultery? – Sherie

Answer:

Sherie: He can accuse you of it, because you are married until you are divorced.  In my jurisdiction, adultery can be a factor in alimony and property division, but only if the judge finds that it was one of the circumstances causing the estrangement of the parties.

Question of the Day:

My husband left on 9/23. He is coming back 11/2 and the Legal Separation papers will be signed then. He claims he has nowhere to stay and would like to stay in the guest room for a week. Would this reset the clock for separation? – RM

Answer:

RM: It depends on how your state defines separation.  For example, in MD, which requires the parties live under separate roofs, it would reset the clock.  In DC, it would not.

Question of the Day:

My ex has sole custody, I do have visitation and pay child support. Our child is in day care and the ex pays for it every week, when the child is in my possession the ex says I have to pay for the day care costs. In our final decree it states that I am liable for entertainment, food, clothing and shelter. It does not state anything about daycare. So is the ex right? – Phillip

Answer:

Phillip: In my jurisdictions, work related day care is part of child support by law, and it is prorated between the parties according to incomes and time spent with the child.

Question of the Day:

i got a legal divorce from my wife in 1995, and now i need an ANNULMENT from the catholic church to get married again, what i have to do? and how many time i should wait,and how much money i should spend? – Christopher

Answer:

Christopher: The church has the forms you need to fill out.  You can do it yourself.  You don’t need to wait.  It should not cost anything.

Question of the Day:

I have been in a relationship with the same man since 1998. We have two children together. We have never been married but have filed taxes as married. i purchased our home 2002 from his mother. My mother's name is first on the note then mine, his name is nowhere on the note. Does he have any rights to the home? – Shannon

Answer:

Shannon: Maybe not, but you left out a few facts that we need to know to make sure.  Do you live in one of those handful of jurisdictions that recognizes common law marriage?  Is there a written cohabitation or equity sharing agreement?  Is his name on the deed?

Question of the Day:

im getting divorced, my wife makes about as much as me, she is with someone else already... what are my chances that i will have to pay her alimony? – Rene

Answer:

Rene: When spouses are making about the same amount of money, an alimony award is not likely.

Question of the Day:

My ex-wife and I divorced in February of 2009. We have an existing tax liability from 2005 that was "split" in the divorce decree. She has stated that she cannot pay on her portion of the taxes, but since it was split the IRS will only pursue me for my portion. I suspect that they don't care and will pursue me for the total since she babysits and doesn't have an easily accessible income source for them to levy. Any advice? – Brian

Answer:

Brian: Your suspicions are correct.  The divorce decree is binding on you and your ex, but not the IRS.  If you have to pay the entire claim, the only recourse you have is to obtain a judgment against her for her share.

Question of the Day:

my wife of almost 24 yrs. can i go after him? he is a co-worker of hers. – Matthew

Answer:

Matthew: In my jurisdictions (DC and MD), the answer is no, but a handful of states still allow lawsuits for alienation of affection.

Question of the Day:

My husband of 24 yrs has asked for a divorce. We have not discussed anything (terms) yet. My 15 yr old son says he does not want to have to spend time with his father. I want to file for sole custody.  How does this work? – Victoria

Answer:

Victoria: The first step is to see if you can settle your case with a Separation Agreement or Marital Settlement Agreement.  You can hire a lawyer or a mediator to help you with the terms.  If you are unable to reach an agreement, you ask the court to award custody to you in your complaint or countercomplaint for divorce. 

Question of the Day:

I would like to know if I have investment properties, and everything is in my name only is he entitled to half of everything I own. Even though it was purchased it all with the money I solely earned. – Kelly

Answer:

Kelly: Property acquired during the marriage is marital property no matter who owns it.  Money earned during the marriage is also marital property no matter who earns it.  The court might not change title so you will keep the investment properties, but the court might award him a money judgment as an equitable adjustment. 

Question of the Day:

In order to explain the grounds for divorce, is it possible to ask the judge to order a psychological or medical test of the spouse seeking divorce? – Aisha

Answer:

Aisha: The rules permit you to ask the court to order a mental or physical health examination of the other party.  Be aware that sometimes results in the court ordering both parties to be examined.  But a divorce trial is not usually about explaining the grounds for divorce.  It is about proving or disproving them, based on the facts and the testimony.  So a defense of “I know my husband asked for a divorce but don’t listen to him because he’s crazy,” is not going to work.  Better to deny the allegations in the complaint and prove them not to be true.

Question of the Day:

I bought my house before I got married, and it's in my name only. Is my soon to be ex, entitled to the house? – Helen

Answer:

Helen: It depends on state law.  In my jurisdiction, the house might be part marital and part non-marital.  The part that would be marital is the increase in equity during the marriage that is attributable to principle reductions in the mortgage paid with marital funds, appreciation during the marriage, and repairs and improvements made during the marriage.

Question of the Day:

My wife is talking about a divorce. She just started going back to school this semester. She says that I'm going to be responsible for her tuition until she graduates regardless if we are married or not. I would think that upon divorce her school would become her responsibility, especially since I've already paid for college for her in the past. Any suggestions for figuring this one out?  – John

Answer:

John: It depends on a lot of factors, such as marital assets available, length of the marriage and incomes of the parties.  Some husbands are happy to pay for a spouse’s tuition because it means there is a defined end to the payments and a degree will decrease a spouse’s need for alimony.  You may need a financial planner or a mediator to work it out.

Question of the Day:

what can you do when the father refuses to take his visitation?  he just pays child support, but doesn't want to see them. – Julie

Answer:

Julie: The courts will not force a father to visit with his children if he is unwilling to do so, but they might increase child support and even change custody and visitation to reflect the facts.

Question of the Day:

What happens if I choose a Collaborative atty and my spouse chooses a Divorce Atty. Does this cancel out the option of working thru the collaborative process? – Fran

Answer:

Fran: In Collaborative Law, all four parties sign an agreement that if there is no settlement reached, the attorneys must withdraw and the parties will have to hire new attorneys to litigate their case.  Settlement negotiations between attorneys is one way to reach an agreement. Collaborative Law is another way.  It uses different techniques like scheduled four-way meetings and agendas.  If one lawyer has been trained in Collaborative Law techniques and the other has not, it is hard for me to see how they will be on the same page.

Question of the Day:

in my divorce papers it says i have joint legal custody of my child, me and my ex verbally came to terms on visitation. now she is changing everything around. what rights do i have without court papers? .i do pay support every two weeks. what kind of visitation should i have?  – Scott

Answer:

Scott: You and your ex can agree on a schedule and sign a written agreement or you can ask the court to establish a visitation schedule if you are unable to agree on one.  There is no standard visitation schedule.  Start by asking for the schedule that you want.