Daily Answer Desk

Question of the Day:

Do It Yourself case...now going to court...is there anything specific I need to say or do? – Brian

Answer:

Brian: I tell people that’s like asking the doctor if there is anything specific you need to do to perform your own appendectomy.  Even in an uncontested case, you have to prove all the elements of your case unless your wife is going to do that.  In a contested case, you will also have to defend yourself against your wife’s case.  And you have to do it all following the rules of evidence.  To see what it is like, go to the courthouse and watch some other divorces.

Question of the Day:

My husband got a contract position in another state last year, he worked and lived there alone since September 2008 and returned back to our house in February 2009 after the job was completed.  During that time period, I have been living in the house.  I visited him in November 2008 and asked for a divorce.  I moved out after he returned back home.  In May 2009, I moved back to our home tried to work out our marriage.  However, things didn’t turn out to be what we expected, although we kept living in the same house but he lived in this part of it and I lived in the other part of the house. I officially moved out again on 9/19/09.  Now we are talking about divorce again.  My question is, how to determine our separation date? – Mimi

Answer:

Mimi: It depends on your state laws.  For example, in Maryland you have to live under separate roof to be separated.  In DC or Virginia, you can be separated while living in the same house.

Question of the Day:

My husband's ex-wife will get half of his pension from the year of their divorce. At the time of divorce she stated she couldn't work full time because she had hypertension and rheumatic heart. Since that time she has worked 40-50 hours, lives with her boyfriend, and has inherited her dead mothers stocks and money. Is there a way to go back to court and see if his pension to her could be taken away? He has not retired yet but is able to. He says it was stated this was a done deal and could not be challenged. – Kris

Answer:

Kris: I think it would be next to impossible to reopen the case on these facts for a few reasons.  You can’t reopen a case for facts that you could have discovered during the case.  The pension division was a distribution of marital property and the court retains jurisdiction over child custody and support but not property division. 

Question of the Day:

I have a separation agreement we have both agreed on and had notarized.  what is the next step? – Lia

Answer:

Lia: Since everything is now resolved, you can stop.  Put the Agreement in a desk drawer and live your life as if you were single.  But if you want to get remarried, you will have to file a complaint for divorce with the court, once you have grounds for divorce.

Question of the Day:

I am looking for advice on how to start a divorce proceeding. I am not sure how to get started with this. I am not currently living with my wife and would like to know what the next steps are that I need to take to get the legal separation and to get the divorce.  – Kairi

Answer:

Kairi: You do not need a legal separation to obtain a divorce.  I recommend that you do your research on the Internet, organize all the financial facts and documents and then negotiate a Separation Agreement.  You start the divorce proceeding by filing a Complaint for Divorce with the clerk of the court.

Question of the Day:

how can i change our divorce to decree to me claiming the children all the time? I have them full time now. – banc

Answer:

banc: You file a motion to modify child custody and support, hopefully with the consent of the other parent. 

Question of the Day:

My son is a LCPL in the Marines. He married one year ago and now regrets it. He wants a divorce. Does he have to get a military divorce or a regular divorce?  – CM

Answer:

CM: There is only one type of divorce.  You may hear the term “military divorce” which means that there are special provisions for members of the military in dealing with certain issues such as hearing dates, custody, retirement and defaults, but it is still what you might call a regular divorce.

Question of the Day:

My wife of 5 years has filed for divorce out of the blue, I have just been served my initial paperwork and she is planning on moving out prior to our court date (five weeks from now). In the mean time she wants to take our daughter to stay with her at a friend’s home three nights a week. There has been no separation order or agreement of child care.(I most likely will be getting primary custody after court)and I do not feel she should go sleep at a strangers home especially on school nights. Is my wife allowed to just take her? The home is safe and there is no danger to the child or any other occupant. My wife just does not feel like being there. – Adam

Answer:

Adam: You are in that no man’s land where there is no clear answer.  Under the common law, both parents have joint legal and physical custody of their children until a court orders otherwise.  So the mother can take them someplace and the father can bring them back and vice versa.  It is something the two of you have to work out until the judge decides.

Question of the Day:

During our marriage my husband and I borrowed about $30,000 on invitro to have our beautiful son. Now my soon-to-be ex-husband wants to pay only 50% of the debt we still owe on the fertility costs even though he makes (and always has made) about 6 times more than I do. Should I take his "generous" 50% offer and run or am I entitled to more of the fertility costs since he makes so much more than I do? We have agreed to 50/50 custody.   – LeeAnn

Answer:

LeeAnn: It is a matter for negotiation which depends on all the other terms of your settlement. But it seems to me it would make sense to at least counterpropose that the debt be apportioned according to incomes.

Question of the Day:

My ex-husband says that we're divorced. We have one child together, I have never seen paper work, but I would like to get re-married. We have been separated for 4 years. I guess we're divorced.  I don't know what to do. I want to get re-married, but how bad are the consequences if we aren't really divorced like he says? – Elizabeth

Answer:

Elizabeth: Bigamy is a crime and it would make your remarriage void.  Go to the courthouse in the county where you live and get a copy of your divorce decree.

Question of the Day:

Want a divorce but I cannot locate my estranged spouse we have been apart for over 10 years. What do I do? – Ron

Answer:

Ron: First, take all actions you can to locate your spouses. You can search the Internet for name, military records and social security death records. Call friends, relatives, neighbors and co-workers. If this fails you can ask the court to permit you to serve her by alternative means such as posting on the court bulletin board or whatever your local court requires. You will need to file an affidavit showing your attempts to locate.

Question of the Day:

Eight years after the divorce from my ex, my two daughter's ages 12 and 15 are asking if they could now, live with my wife (of four years)and I.  Something we have been wanting for a very long time. We want to be sure that we do everything in the proper order to make this happen, for them and for us. So not to disappoint them with some legal torpedo my ex may launch and have the whole thing blow up in our face. What are the first steps necessary to make this whole ordeal(one the ex will not be happy with)happen as smooth as possible? – John

Answer:

John: The easiest and smoothest way is to reach an agreement with your ex on a change in custody.  If that is impossible, then your next step is to ask the court to order it.  Be aware, though, that preference of the children is only one of the factors the court will consider.

Question of the Day:

I am a divorced father of a 15 yr old and 12 yr old. My ex spouse an i have a respectful post divorce relationship-however she intends to move our children to a city 3 hrs away from my town. And subsequently making it more difficult for me to see them. Our relationship spanned 20 yrs. and I am worried this would not be in the children’s best interest. Is there any legal action i may take - to prevent this relocation from occurring. – Concerned Dad

Answer:

Concerned Dad: In my jurisdiction, you would ask the court to change residential custody to you by filing a motion for modification of custody based on a material change in circumstances.

Question of the Day:

I am a retired military E-6, and do not have a degree, but I do have a job that pays me about middle income range. My stbx has a Bachelors degree. I caught her in an adulterous relationship, and have "clear and compelling" evidence to prove that. She quit her job 4 months ago to be closer to her paramour, and took another position where she now lives. About a month after she took the new job, she was fired. Now, stbx and her attorney are claiming that no spousal support would cause undue hardship because of her employment status, and that the courts would award spousal support if this were to go to trial. My question is, shouldn't my stbx's imputed income be considered when determining spousal support? – PT

Answer:

PT: The judge will consider whatever the parties put before him or her. For alimony, one of the considerations is earning abilities of the parties. You can hire a vocational rehabilitation expert to testify about a party’s earning capacity and the availability of jobs in your area.

Question of the Day:

My kids don't want to go to their dad's house. He is trying to alienate them from me and they are tired of hearing him talk negatively about me. We do not have a separation agreement and I do not receive any child support. Do I have to make them go? - Karenan

Answer:

Karenan: You do not have to make them go, if you are willing to risk the consequences.  The father can claim you are denying him access to the children and he can ask the court for a custody and an access schedule.  It would be better to try to agree on a parenting plan, either by yourselves, or with the help of a mediator or lawyers.

Question of the Day:

Are there provisions for the spouses of people that have completed difficult schooling to be a high paying professional, such as a doctor? I stayed with my husband and helped raise his children and run the household all during medical school and now in his residency he is divorcing me. – Melissa

Answer:

Melissa: Some states say a medical degree or license has value as marital property. Others do not, but make it a consideration for determining alimony.

Question of the Day:

My husband is 60% owner of a construction company we are currently still buying over the next 4 years. We also have title to the building and land that will someday be for rent money to us. If I file for divorce, Do I get any of the business or building? – Sara

Answer:

Sara: In Maryland and DC where I practice, if the business was acquired during marriage, then it is marital property. At a divorce trial, the business would stay with the husband, but it would be valued. Then judge can make a marital award to the other spouse to adjust the equities in the division of property.

Question of the Day:

I intend to divorce my husband of 20 years. He claims to not want the divorce and I fear he may disagree on all issues although we cannot afford exorbitant legal fees. I am considering mediation, however splitting our assets is a problem. He owns a small business that is very difficult to value primarily because he is a horrendous record keeper. Can we privately agree on our asset split without him fully disclosing his financials? I would be agreeable because I want to divorce him. I am so afraid that he can maintain the marriage by withholding information or that he would intentionally ruin us both out of spite. – Leslie

Answer:

Leslie: Parties are free to settle a case any way they want. But be sure that you won’t regret it later if the business turns out to be worth more or there are assets like pension plans that are not divided fairly. Once you sign a settlement agreement, you cannot go back and undo what you have done.

Question of the Day:

How do you dissolve a common law marriage? – Debbie

Answer:

Debbie: The same way you dissolve any other marriage, that is with a divorce.

Question of the Day:

My ex-husband and I have joint custody of two children with me being the residential parent of the children. Am I allowed to move out of state with the children? Can he stop me from relocating? Our divorce decree reads "Either party who intends to relocate his or her residence shall give a thirty-day advance notice of any such intended relocation and of any intended change of address, said notice being given to both the other party and to this Court." – Becca

Answer:

Becca: You can move and he cannot stop you from relocating. However, the notice provision is for the purpose of allowing him, if he wants to, to go to court and try to change the residential parent. Then the judge will decide if the children stay or go, based on what is in their best interest.