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Divorce Advice for Men | Fathers Rights Divorce | Child Custody

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divorce lawyer adviceAmong the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:

  • Can I sell the marital home under temporary orders? If I can't sell the home under temporary orders, then how soon could I sell the home? Finally, should/can I file for bankruptcy under temporary orders?
  • Can we receive both child support and the auxiliary child benefit?
  • I have primary physical and joint legal custody of our child. During vacation time that I have this year (spring break, summer) the decree states my ex has first right of refusal if a babysitter is necessary. Does this apply even during my holiday time?
  • If I get laid off from my job, can I get alimony and health insurance from my ex even if she has remarried?
  • If my pregnant wife gives birth before our divorce is finally, are the children legally mine even if paternity hasn't been determined?

Question:

Can I sell the marital home under temporary orders? If I can't sell the home under temporary orders, then how soon could I sell the home? Finally, should/can I file for bankruptcy under temporary orders?

Answer:

In a divorce proceeding, several options may be available to you under temporary orders from a Court in regard to a necessary sale of real property.  It is within the discretion of the Court to require the sale of real property in a divorce proceeding.  In determining the order in which particular property is subject to execution and sale, the judge is required to consider the facts surrounding the transaction or occurrence on which the suit is based and designate the order in which the property is subject to execution in a manner the Court deems just and equitable. 

You and your attorney may petition the Court to allow you to force sale property if necessary under temporary orders if good cause can be shown as to why the immediate sale is necessary.  Two things to keep in mind are whether or not she has the financial ability to maintain the costs associated with the property after initial orders of support are entered.  This is important establish an immediate need to sale via a short or quick sale method (basically a lower listing than the actual value to allow quick sale) or other similar options that may be available under the Court’s direction.  If the Court finds that sufficient funds are not available even after an order of support, then the Court can appoint a receivership to fast track the movement of the property as well. 

A receivership typically will include an appointment of a very experienced realtor and/or appraiser that understands the nature of short sale properties to enhance the opportunity to sale or auction property to minimize the reduction of any potential community assets which may exist as a result of a forced sale.  The proceeds are typically available for division by agreement or order of the Court if a sale is obtained.  If the Court will not approve a short or quick sale, disposal of that obligation may not occur until a final order is rendered by the Court or until a final agreement is obtained. 

As different Courts dockets have different timelines for reaching a final date, and a variety of complexities may exist or occur that can extend a divorce beyond anticipated timelines, I am unable to predict with any certainty a concrete timeline as to when a sale of your property might occur if a Court does not approve the request to sell on Temporary Orders. 

While bankruptcy may be an option, keep in mind that if you decide to file while the divorce is pending, no final order can be obtained until the bankruptcy is complete.  The bankruptcy court assumes control over the proceeding and they typically will not allow any order for divorce to occur unless special permission is given by the bankruptcy trustee assigned to manage the bankruptcy to conclusion.  While I have seen this type of process address the concerns you raise, I would be aware the process is typically much more complicated and cost intensive.  The best direction would be to make the Court aware of the situation and present prepared alternatives so that the Court might make a fair and informed decision.

Keep in mind that although I am a Texas attorney, I cannot give you detailed advice without reviewing the facts of your case. You should contact an attorney in your jurisdiction. Cordell & Cordell, P.C. has attorneys in your state.

 

Samuel M. Sanchez is a domestic relations attorney in the Fort Worth, Texas, office of Cordell & Cordell, P.C.

 

 

Question: 

My husband and I have custody of his child. The mother receives disability benefits and we believe she is also receiving an auxiliary child benefit (ACB) through Social Security. Since the judge told us we can file for CS, can the ACB cease? We are in hopes to receive both the ACB and CS. We're just unclear if this is completely separate and can be filed at the same time. 

Answer:

First let me preface my answer by stating that I am not licensed in the state of Kansas, although Cordell & Cordell, P.C. does have attorneys who are licensed in the state of Kansas who would be willing to discuss your case with you.

In most states you would continue to receive the ACB in addition to child support. However, it is possible that the Court would credit the ACB against any child support obligation of the mother. For example, if the ACB is $300 and the child support obligation should be $500, then a Court may order that the mother pay $200 in child support. You should consult an attorney in your jursidiction to see if your jurisdiction credits social security against the child support obligation.

 

Question:

I have primary physical and joint legal custody of our child. During vacation time that I have this year (spring break, summer) the decree states my ex has first right of refusal if a babysitter is necessary. Does this apply even during my vacation years since I have primary physical and joint legal custody of the child?

Answer:

First let me preface my answer by stating that I am not licensed to practice in the state of Massachusetts, so I am unable to provide you with specific advice as I am unfamiliar with your states statutes and case law. 

In most states the parenting schedule is set up in two categories: (1) the general every day schedule or week to week schedule and; (2) the holiday schedule. Depending upon the wording in the decree, usually the holiday schedule will always trump the general schedule. That is the reason why you would not have to exchange the child during this uninterrupted week on your holiday schedule. You should consult with local counsel in your jurisdiction, to see if your jurisdiction treats the holiday schedule, as I have described.

 

 

Question:

If I get laid off from my job, can I get alimony support and health insurance from my ex even if she has remarried?

Answer

First let me preface that I am not licensed in the state of Massachusetts, so I am unable to provide specific advice to your question as I am unaware of specific statutes and case law in your jurisdiction.

Generally, you would not be entitled to any additional property or alimony from your ex-spouse after a divorce. The decree is designed to finalize all issues that came up during divorce or that existed by virture of your marriage. Unless the decree or settlement agreement states otherwise, generally, you would not be entitled to anything further.

 

 

Question:

My wife and I are in the process of getting a divorce. We are all set and in the 120-day waiting period then it will all be final. She is also pregnant with twins and I am questioning paternity. I was told not to sign the birth certificate until I find out if I'm the father. I was also told because we are still technically married the children are legally mine whether I sign or not. Is that true?

Answer:

First let me preface that I am not licensed in the state of Massachusetts, so I am unable to provide specific advice to your question as I am unaware of specific statutes and case law in your jurisdiction.

In most states, when a child is born during the marriage, then you would be presumed to be the father by virtue of the marriage. If the twins are born prior to the decree being entered then you would might be presumed to be the father, however, that does not mean that you should sign anything if you have your doubts. If the twins are born after the decree, then you should not sign anything if you have your doubts. Acknowledging paternity can have serious long-term affects that may be hard to overcome if you are not actually the father. You should consult an attorney in your jurisdiction for specific advice to your question.

 

Jason Bowman is an attorney in the Louisville, Kentucky office of Cordell & Cordell, P.C. He is licensed in the states of Kentucky and Texas. He received his Bachelor of Science in Business from the University of Louisville, and received his Juris Doctor from Texas Wesleyan University.

 


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