Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:

• Do I have to appear for a show cause hearing?
• Do military spouses receive benefits? Can you get a divorce while overseas?
• Will the court will impute my former income amount to me even though I'm no longer earning that amount?

Question: 

I had switched jobs and in between the time I started and the time the friend of court received my information, my case worker is pulling a show cause and wants me to pay $500 or she will not pull the show cause and it is in the time frame that I will be out of the state for job training. I gave a letter to the friend of court to just put the order in for wage or just change the date. 

Will that hold water if I am not at the court date for show cause due to the fact of work? Or will it just be a bench warrant when I get back?

Answer:

No, a letter to the Friend of the Court to “just put the order in for wages or change the date” will not work for your show cause hearing. You need to appear at the hearing or secure a new hearing date now.

In Michigan, a child support show cause hearing is a hearing for you to appear and literally “show cause” (give a good reason) for not paying child support. Therefore, you need to appear at the hearing or ask that the hearing be adjourned to a new date when you can appear before the hearing. The Friend of the Court usually will not consider a written letter in lieu of your appearance because the letter is hearsay – an out of court statement offered for the truth of the matter asserted – and no one will be present to vouch for your veracity. Do not rely on oral statements from Friend of the Court staff members that the date has been changed or that you no longer need to appear. The Friend of the Court, while helpful, is always busy, and new hearing dates often get missed. You could think you have a new hearing date – indeed, someone could tell you that you do – but the Friend of the Court calendar could still show the old date. If you fail to appear, you will be held in contempt. Contempt sanctions include bench warrants for arrest and financial penalties. Be sure to get any date change in writing on a Notice of Hearing form. Also be sure that the Friend of the Court provides a copy of the Notice of Hearing form to your ex and the Clerk of the Court.

In some counties, you can only request a new hearing date on a Motion form. That means, neither your letter nor a phone call to your Friend of the Court caseworker will suffice. You can obtain the Motion form at the Friend of the Court office or online at www.courts.michigan.gov.

If you cannot appear but you would like to keep the hearing date, consider hiring an attorney for a “limited appearance.” A limited appearance allows the attorney to appear on your behalf at the hearing and only for that hearing (or the hearings you specify in your retaining agreement).

If you think the Friend of the Court’s child support calculations are erroneous, be sure to file an Objection form immediately. This is because, with limited exceptions, under the Parenting Time and Support Enforcement Act, the Court will only modify your support retroactively to the date you file your Objection form and give a copy to your ex. The sooner you file and give notice of your Objection, the further back you can go.

Keep in mind that, although I am a Michigan-licensed attorney, I cannot give you legal advice without a thorough review of your case and time to speak to you. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for additional information and legal representation. Cordell & Cordell, P.C. does practice in Michigan. Thank you for submitted your question to Cordell & Cordell, P.C.

Question: 

I’m not a U.S. citizen and currently live outside of the U.S. I married a man in New York in 2005, but we have been separated since 2007. He is in the military, and I understand while we’re separated he’s still getting certain benefits from the Army, especially while he’s deployed, because he is married. Am I entitled to any of those benefits? I feel he’s just delaying the divorce because he’s getting benefits from us still being legally married. Is it possible for me to initiate divorce proceedings without being in the U.S.?

Answer:

Yes, you may obtain certain types of military benefits as a military spouse or an ex-spouse of a military member.

While you are a military spouse, you and/or your spouse may qualify for certain pay increases and benefits. There are over 70 forms of military pay and many more military benefits. Family benefits include, for example, deployment and mobilization support; family advocacy programs; parenting programs; personal financial management programs; spouse employment assistance; spouse tuition assistance; transition assistance; relocation assistance; child development programs; youth enrichment programs; and housing and family support allowances– to name just a few! You have not specified which of these, or other, benefits your spouse receives. Therefore, I cannot tell you whether you are entitled to a share. You should consult an attorney in the state where your spouse resides to learn what benefits are available to you. Try calling your spouse’s base first because you may qualify for low or no-cost legal services as a military spouse benefit.

If you want to divorce, you should file your complaint or petition for divorce in the state where your spouse resides because jurisdiction (the “power” to grant a divorce) depends on residency. In Michigan, for example, one of the parties must have resided in the State of Michigan for at least 180 days and the county where the courthouse is located at least 10 days before filing for divorce. Usually, one party’s residency will suffice.

However, your spouse may seek a stay of certain family law cases filed against him while he is in active duty overseas under the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA). The SSCRA protects defendants from certain civil judgments and liabilities, including custody cases, during periods of active duty. Among other things, the SSCRA requires creditors to cap interest rates, tolls statutes of limitations for certain legal actions, and protects from eviction and repossession. To take advantage of the SSCRA, the active service member must notify the court, usually in the first responsive pleading or as soon thereafter as possible, of active status and request a stay of proceedings under the SSCRA.

When you divorce, you may receive a share of your spouse’s military retirement. In 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). This Act allows state courts to divide military retirement benefits upon divorce, legal separation or annulment. See, e.g., 10 USC 1408. State courts may, but are not required to, divide the retirement benefits. Whether your court will depends on state law.

Keep in mind that I am a Michigan-licensed attorney, I cannot give you legal advice about the laws in your state, New York. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for additional information and legal representation. Thank you for submitted your question to Cordell & Cordell, P.C.

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

Question: 

I lost my license to practice medicine last year due to a felony conviction. I finally landed the only job I have been able to find since June and it pays 1/6 of my previous income. My ex has challenged my motion to modify, which I keep telling her is only temporary to protect myself from contempt for not being able to pay the amount in the decree. I liquidated my retirement account to keep her and the kids afloat while I went into debt, now $60,000, and am facing bankruptcy in 2-3 months. I cannot afford an attorney, even got a paupers affidavit for the court fees. My question is this: what do I do?

Answer: 

I am licensed to practice law in Nebraska and can give you only general information about your situation, as you are in Oklahoma.

You are on the right track to modify your child support by filing a petition with the court. You will need to show the court proof of your current income in the form of tax returns and/or W-2’s. I would be concerned that the court will impute your former income amount to you even though you are no longer earning that amount. Preparing for that argument in court will be important. Research state law as it applies to income and child support. Also, research case law as it applies to the subject. If you are unable to research case law, you might be able to find an attorney who would advise you on that narrow subject for a reduced fee.

My advice would be not to go into court without an attorney. It puts you at a great disadvantage. I understand you are in a tight spot, but if there is any way to borrow funds from friends or family, or find a second job to pay for the attorney, do it.

Question: 

Temporary orders were delivered to me yesterday in regard to custody of my son. Among all of the other requests, the order states I am to start paying child support in three days! By law, do I have to make that payment before I even get the opportunity to contact a lawyer and go to court?

Answer:

I am licensed to practice law in Nebraska, because you are in Kansas I can only give you general advice. Before taking action, I would suggest you consult with one of our qualified attorneys in the Kansas offices of Cordell & Cordell.

It is strange that a child support hearing was held without notice to you. You can certainly go back and attempt to modify or nullify the order, but I question the wisdom of ignoring an order from the court. At the very least, you should put the ordered child support funds in a trust account until you have a chance to get in front of the court, though, if are the noncustodial parent, paying the funds to the custodial parent would show the court good will on your part. 

Also, if the court-ordered child support is due in a certain month, that might give you until the end of the month to pay it. In Nebraska, child support that is due on Feb 1st, wouldn’t be considered late until March 1st.

Nancy R. Shannon, a Nebraska native, is an Associate Attorney in the Omaha, Nebraska office of Cordell & Cordell, P.C. She is licensed in the state of Nebraska where her primary practice is exclusively in the area of domestic relations. Ms. Shannon received her Bachelor of Arts degree from Doane College and her Juris Doctor from University of Nebraska – Lincoln, where she was a finalist in a Moot court competition and active in Client Counseling activities.