Daily Answer Desk

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.

Question of the Day:

I am preparing to move to a new state for temporary work but possibly up to one year. My wife and I were married 20 years ago. We have been separated for 3 years. We want to get a simple divorce through a paralegal service but I am leaving the state where I live in 2 weeks. Can I still get this divorce after I move?  – John

Answer:

John: Each state has a residency requirement.  That means you have to live in that state for a certain period before you can file a complaint for divorce.  For example, it is one year in Maryland and six months in Maryland and Virginia.  You may be able to file in the state where you live now and complete the divorce after you move but you might have to return for a trial.  Remember, a Separation Agreement can give you almost everything a divorce can give you, except the right to remarry.  And there is no waiting period for a Separation Agreement.

Question of the Day:

My "wife" has gone through the trouble of getting a lawyer to file a separation agreement...She also used the courts to get an ex parte against me. I have since been diagnosed as being bipolar, and am trying to fix my life through medication and treatment. Unfortunately, she is pressuring me with a huge settlement agreement. One of the things that hits me hardest is that she wants to maintain the house for 3 years and then have a chance to buy out my share. I want to put it on the market, but I have heard that a house cannot be sold as a result of separation if there is an infant. Is there a law like this? How old would the children have to be before the house could be sold? – Wanting

Answer:

Wanting: In Maryland, where I practice there is a “use and possession” law that provides a judge may, but does not have to, grant use and possession of the marital residence to the custodian of a minor child for up to three years from the date of divorce.  Since the purpose of the law is to provide a stable environment for a child, it has been successfully argued that an infant hasn’t grown accustomed to the marital residence and therefore no use and possession should be granted.  Other jurisdictions, like DC, have no use and possession statute.

Question of the Day:

is a marriage from a foreign person and in a foreign country is recognized in the US.  If not can i remarry without filling a divorce to that person? – Tess

Answer:

Tess: The state courts in the US recognize marriages in foreign countries so you will have to get a divorce before you can remarry.

Question of the Day:

I am separated from my husband and will be starting divorce proceedings shortly.  My mother died and has left me a substantial amount of money around the time of my break up.  Is my ex husband entitled to half? – Jackie

Answer:

Jackie: An inheritance is a spouse’s separate property, and not marital property to be divided by the divorce court, as long as you keep it in your name alone.

Question of the Day:

is it legally accepted as grounds for divorce " the marriage is troubled" without a detailed explanation? - RH

Answer:

RH: Probably not.  The lawmakers and courts want to make sure you are about divorce and so the grounds are usually set out with some detail in the state code.

Question of the Day:

If my husband has his daughter for half of the month (ex: June 1-15), does he have to pay child support for that month? – Gwen

Answer:

Gwen: Yes.  Child support is determined on an annual basis taking into account the time the child spends with each parent throughout the year.

Question of the Day:

I have been married 11 years. When my husband came into my life i owned a house fully paid in Australia where we lived for two years before he decided we should move to his country USA. We r now going to divorce and i am wondering if i could get the money for my house which i sold and bought another house here then sold again and kept the money in the bank in a joint account. He says he wants half of everything even though i made until recently more than what he made, almost double. I want to know if there is a law that protects me from him getting half of my money. – Amira

Answer:

Amira: Some states will permit you to trace money back to premarital assets and keep that as your separate property in a divorce.  Placing money in a joint account may prevent you from being able to trace it.  Most states allow the court to consider both monetary and non-monetary contributions to the marriage.

Question of the Day:

My husband and I have filed for a dissolution and have a shared parenting plan. We have a five year old daughter. We are supposed to make decision together about her but what happens if we cannot agree on something affecting her? Who make a final decision about the matter?  – Deb

Answer:

Deb: The court makes the final decision, but before you go to that time and expense, you should try to find a compromise or try a mediator or parenting coordinator.  You might also mutually agree to follow the advice of a doctor if the issue is medical, a therapist if it is an emotional issue, an educator if it is a schooling question, and the like.

Question of the Day:

My wife and sister-in-law have started a small business as co-owners. It is an S corporation. Is this a part of marital property or how does a S corp factor in a divorce? – Bernie

Answer:

Bernie: Your wife’s stock in the corporation is marital property which is in her name.  The value of the stock will have to be determined.  Then the court will look at marital property that you hold and that your wife holds and make a marital award to balance the equities.

Question of the Day:

in order to get a divorce does my husband have to file personally at the court house or can the attorney do it for him? – Ria

Answer:

Ria: The attorney can file the complaint but both the attorney and the plaintiff have to sign it.