Daily Answer Desk

Question of the Day:

Parents share 50/50 time w/ 15 year old 12 months a year with mom having primary custody.

Dad wants the change primary custody to himself (mom wants it to remain as it).  What are the chances it would be changed and what would have to be done to change it?  – Beth

Answer:

Beth: If there has been a change in circumstances since custody was established, you can file a motion to modify custody with the court.  Then you have to prove to the judge that a change in custody is in the best interest of the child.

Question of the Day:

if the parent who is paying child support volunteered the amount of support because at the time they could afford the amount, but cannot now, can they have the amount lessened?  -- Amy

Answer:

Amy: Child support can always be modified if circumstances, like income, change through no fault of the person paying child support.  It can be changed by a Consent Order agreed to by the parties or by the Court if the parties do not agree.  At my law firm, we are seeing more and more requests for modification on alimony and child support , with the economy down and unemployment up.

Question of the Day:

What happens after you have served the party papers for a dissolution of marriage, and she is trying to get the case dismissed or the divorce not granted?  A divorce is what I want! Not to save the marriage! – Ani

Answer:

Ani: Then you have a contested divorce and the court will schedule a hearing.  You will have to prove to the judge that you have grounds for divorce.

Question of the Day:

I have been separated from my spouse for nearly two years.  My spouse does not want to divorce til our youngest child is in school so she can go back to work full time. I agree with that, but I want at minimum a legal separation.  Can I file for a legal separation without her approval?  Does it have to have all the specifics in it that a decree does, or can I just file a document that says we are legally separated? – Troy

Answer:

Troy: You can file for a legal separation without your spouse’s approval and it will have some specifics, but not all of those covered in a final divorce decree.  But you don’t really need a legal separation.  You need a separation agreement, which is a private contract, and not a legal proceeding.

Question of the Day:

If my wife has filed for divorce and she agreed to have the divorce converted to a dissolution and she continues to make excuses in meeting me to sign the paper work, what can I do? also if everything worked out and a date is set for the dissolution hearing and my wife fails to show, I understand that the law states that it would be dismissed, but since she didn't show up would she be responsible for the legal fees of the proceeding? and would I still be awarded the dissolution? – Lewis

Answer:

Lewis: In cases like this, we file a countercomplaint so our client can go forward with the divorce if their spouse does not.

Question of the Day:

When my husband and I bought our home 17 years ago, we took out a life insurance policy on him since he was the sole provider of support for our family. If we divorce, can I keep that policy since it's in my name and I am the beneficiary? – Tracey

Answer:

Tracey: If you are the owner of the policy (note this is not the same thing as the beneficiary), then you will probably keep the policy after the divorce.  If it has a cash value, then you may have to give up something to adjust for that.

Question of the Day: 

Is the marital separation agreement *only* about division of marital property? Or does it (should it) include details about other things like who is moving out and who's staying, and where, and at whose expense? What about child visitation, paying for the children's expenses, restrictions on either spouse taking on new debt, yadda yadda yadda? – Frank

Answer:

Frank: A marital separation agreement is about all the things you mention and more.  It will take the place of a decision by the divorce trial judge, it should cover everything a divorce decree would cover and all issues arising from your marriage.  Sometimes, in difficult cases, I have divided it into two agreements, a Parenting Plan for the children and a Property Settlement Agreement for everything else.

Question of the Day:

If a wife leaves her husband and moves to a different state, can she nine months later, try to reclaim some of the personal property she left behind? Example-Computers, electronics etc. – Carrie

Answer:

Carrie:  She still owns the property that is in her name, but joint property is owned by both parties.  Unless an agreement is reached, the court may order the joint property sold and the proceeds divided between the parties.

Question of the Day: 

I am 55, my husband is divorcing me after 31 yrs. I was the homemaker but have worked 20 hrs/wk for 9 yrs. He makes 400K+/yr. I will have no health insurance after 3 yrs of cobra from his employer. How likely is it that I can have him pay for my individual medical until I am 65? – Marcia

Answer:

Marcia: In my jurisdiction, you would have a good claim for indefinite alimony, and the cost of private health insurance should be included in the amount of alimony you ask for.

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.