Daily Answer Desk with Jim Gross, Esq.

Question of the Day:

Is the wife entitled to half your assets when married for less than a year? – Patricia

Answer:

Patricia: In equitable distribution states, the divorce court can distribute assets acquired during the marriage in a manner that the judge thinks is fair, but each party keeps the assets that he or she brought into the marriage.

Question of the Day:

I am a retired city police officer with a pension of 43,000 per year tax exempt. Would i be able to get custody of my 17 month old son, or does he automatically go with his mother?  – Steve

Answer:

Steve:   Custody no longer automatically goes to the mother.  The judge will decide custody based on the best interest of the child.  In custody settlements, mothers get residential custody about 90% of the time.  Only about 10% of custody cases are actually tried.  In the cases that go to trial, fathers win about 50%.

Question of the Day:

My ex-wife, who is the custodial parent of our 9 and 3 year old, plans to move out of state to be with her (eventual) husband. We have joint legal custody. I am a good father and have met all of my commitments, financially and otherwise. Do I need to worry that she can take the kids with her? – Tom

Answer:

Tom: Yes, the custodial parent has the right to decide where the children live.  However, relocation out of state is a significant change in circumstances, so you can renegotiate with her. Failing that, you can petition the court for a change in custody and visitation.

Question of the Day:

Is my husband my ex or what, his mother filed the papers he went to court, the judge signed the papers, I signed the papers, but he has not that was in 1999 we are still together and staying away from his family. But are we divorced or since we are still together and have remained together does that void out the divorce or is it final since the judge signed the papers. – Katrina

Answer:

Katrina: Living together does not void the divorce.  If you want to do that you would have to get married again.

Question of the Day:

I am Petitioner, Have been separated nearly 1 year, both agreeing to not hire attorneys, seeking an uncontested divorce.  Less than 12 hours prior to final hearing, my spouse hired an attorney while I was in 6 hr transit to attend the final hearing. Judge's office previously stated he could not be represented by  an attorney without it being entered into court documents and I had to be notified in advance.  But at hearing, judge allows his attorney to represent the Respondent, and I find that the attorney was put on record with the court less than 12 hours prior to hearing. Is this legal? How much in advance am I to be notified?  – Cindy

Answer:

Cindy: An attorney may enter his or her appearance by signing a pleading or appearing in court.  You are not disadvantaged by this, since the divorce was uncontested.

Question of the Day:

My ex is just gave up her apartment is now living in her sister's 2 bedroom house. She has my 7yr old daughter who is sleeping on the sofabed. She's in 1st grade and I don't feel this is an ideal living situation. Anything I can do to make her get my daughter a bed???? The second room is an office and hasn't been cleaned up. She's been there four weeks now. – Tony

Answer:

Tony: If you hired a lawyer, the lawyer might file a motion for a change in custody, but it would probably be cheaper for you to buy a bed for your daughter and give it to your ex.

Question of the Day:

If the wife files for a divorce, does the husband have to sign it for it to be legal, or can she file it without the husband's signature? – Michael

Answer:

Michael: The husband does not have to sign, but he has to be served with a copy of the complaint for divorce, if he can be found.

Question of the Day:

How is health insurance handled after divorce? Does the spouse always have to apply for his/her own health insurance (or can they simply stay on the medical coverage held by the other spouse) What happens when COBRA runs out and they can't get insurance? – Robert

Answer:

Robert: Most private health insurance plans will not cover a former spouse after divorce, except for a few months under COBRA.  After that they are on their own.

Question of the Day:

I left my husband. He is accusing me of adultery during the divorce to make me pay him alimony amongst other things. I know laws are different in all states, but what constitutes HARD PROOF. He claims he has my cell phone records, but that doesn't prove I had a sexual relationship. And also, if he pulled my friends in to testify in court, would it not be hearsay unless they had pictures or video of us?  – Amanda

Answer:

Amanda: You can prove adultery by circumstantial evidence.  If you can show a disposition to commit adultery and an opportunity to do so, then the court can find adultery.

Question of the Day:

Is my understanding correct that we can get a separation agreement and still live together as we cannot afford separate residences till we can get a divorce as we won't be married 10 yrs until July 2005 and I need to collect on his Social Security? We are dividing everything equally. We just are not compatible.  – Sandy

Answer:

Sandy.  Your understanding is correct.  You can have a separation agreement and still live together.   The recession is making this more popular for many couples who cannot afford two households right now.

Question of the Day:

my soon to be ex-husband wants me to get a separate previously non-existent life insurance policy on myself for 50 grand naming him sole beneficiary..can he do this? – Dmatter

Answer:

Dmatter: He can’t force you to buy life insurance, but in negotiating a settlement, especially when there are minor children, parties sometimes agree to reciprocal life insurance policies in the unfortunate event of death of either one of them.

Question of the Day:

A friend of mine wants to divorce his wife of 25 years. They have 2 children. One is 23 and one is 21. They both still live at home. He is wanting to know how he can get out of this marriage without losing his shirt. The marriage has not been good for the past 7 or 8 years. And in the last 2 years, he has started to see another woman. Is it possible for him to get out and still keep 1/2 of everything? – Margaret

Answer:

Margaret: Yes, it is possible.  There are two ways out of a bad marriage:  a Separation Agreement or a Trial.  The former is usually the easiest if both parties can agree.  Self-help, mediation, collaborative law and negotiation are ways of reaching agreement.

Question of the Day:

she filed divorce papers and then we both decided not to divorce, what papers do we sign to stop these proceedings? – Glenn

Answer:

Glenn: In my jurisdiction, it is called a Notice of Dismissal.

Question of the Day:

The divorce decree on file is not signed by either party. Only the judge and respective attorneys signed the decree.  Does this mean that the parties did not agree to the judgment and it had to be ordered by the court? – Wildcherry

Answer:

Wildcherry: Attorneys sign as agents for and on behalf of their clients.

Question of the Day:

Can I change the locks on our home?  My husband of 36+ years due to an unfaithfulness, unremorseful and remains in affair with other woman? – Nash

Answer:

Nash: You can, but you run some risks.  First, your husband can change them back or break the lock if he owns the property, too.  He may claim in court that you have deserted him by locking him out.  And you may be waiving your right to a claim against him that he contribute to household expenses during the lockout.

Question of the Day:

If a husband leaves the marital home and sets up another residence, can he enter the marital home at will if his name is on the deed? – Lelani

Answer:

Lelani: Yes he has the right to enter the house, until an agreement or a court order provides one spouse with exclusive use and possession.

Question of the Day:

Can my husband divorce me without my knowledge or consent? – kbl

Answer:

kbl: The answer is yes.  If you fail to respond to the complaint or if your spouse cannot locate you to serve you, then he can obtain a divorce by default.  And lack of consent can slow down a divorce, but not stop it.

Question of the Day:

If my mother dies before I file, can my husband get my inheritance? - Debra

Answer:

Debra: An Inheritance is nonmarital  property and so it would be your separate property as long as you keep it in a separate account in your name only.

Question of the Day:

My husband and I have decided to divorce. I initiated it. We've been married for 16 years and have 2 children. He was recently disabled from an accident and is not working. We don't know where to start or how to start. I wanted to use a mediator but he was told they are too expensive. We want ths to be as simple and painless as possible and I'm not looking to get anything out of it. do you have any clues suggestions? – Laura

Answer:

Laura:   The cheapest way to get a divorce is to do it yourself.  That’s not always so easy so I think the next most inexpensive way is to hire a mediator to help you.  I charge a lower hourly rate as a mediator than I do as an attorney.  And in mediation the fee is split between the parties.  A lot of times, we are able to complete an agreement in two or three hours.

Question of the Day:

im clueless on how to start or get a divorce. everything is already separated and figured out. all i need is the name off and say that im legally divorce.   – Rebekah

Answer:

Rebekah: You start by filling out a Complaint for Divorce, sometimes called by other names in other jurisdictions.  Many jurisdictions have posted forms online.  You file it at the courthouse.  There is usually a filing fee.