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

• My divorce papers in one state order me to pay child support until my sons are 21. They now live in another state where emancipation is 18, so do I have to keep paying until they are 21?
• How long do I have or how do I go about forcing my wife to get the rest of her belongings out of my house so I can move on?
• Can my 17-year-old daughter refuse overnight visits with me?
• What can I do if my ex defaulted on a loan that is ruining my credit?
• What can I do if my child support was calculated incorrectly?
• My house is in the process of foreclosure. I have access to my 401k to stop the process and pay all our outstanding bills. Should I salvage the house and start fresh with zero debt just before we get a divorce?

Question:  

I live in Tennessee now, my boys live in New Jersey with their mother, and we got divorced in Mississippi. My divorce papers state that I must make payments until they turn 21, the age of emancipation within the state of Mississippi. Since they no longer live in Mississippi and reside in New Jersey, I am trying to find out if I am legally obligated to continue to send their mother child support payments after they turn 18 since they are living in New Jersey, and have been since they were 12.

At this point do I need to seek legal counsel in New Jersey, Mississippi or Tennessee?

Answer:

I do not know all the facts of your case so I cannot answer your question specifically.

Many states have enacted either the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or the Uniform Child Custody Jurisdiction Act (UCCJA).

Under the UCCJEA, the state with original jurisdiction has continuing and exclusive jurisdiction so long as one party still resides in that state. This means if Mississippi is a UCCJEA state, they would have jurisdiction as the original state of judgment if one party still lived there. In your case, however, none of the parties still live in the original state, therefore another state would be able to exercise jurisdiction.

If Mississippi is a UCCJA state, however, the test would be one of where the children's home state is, which would likely be New Jersey depending on how long the children have lived there and there contacts or connections there. Both of these would likely end up with the same result: New Jersey having jurisdiction over the case.

You would likely not be able to file in Tennessee because they would not have personal jurisdiction on your wife or sons, unless they lived there or had property in Tennessee. I would suggest speaking with an attorney in New Jersey as it is the state most likely to have jurisdiction in your case.

Keep in mind that I am a Missouri attorney and cannot give you detailed advice about the laws in Mississippi, New Jersey, or Tennessee. I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and should contact an attorney in your area for additional legal advice.

Question:

My wife has told me she wants to divorce and has moved out and living in the house she owned before she knew me. We both have our own houses. However, most of her belongings are in my house. How long do I have or how do I go about forcing her to get the rest of her belongings out of my house so I can move on? What can I do legally to force her to take the rest of her things?

Answer:

The simple solution would be to pack up all of her belongings and deliver them to her home. Obviously this has the down side of requiring you to do all the leg work while she gets her stuff back. There are other options though.

It sounds from your question like you are not yet divorced. If this is so, you can try to put a clause in your divorce decree that states each party is responsible for retrieving their property from the other’s residence within X number of days from the date of divorce. This gives you the option to use a contempt motion in the future if she does not comply with the court order.

There may also be other remedies which an attorney in your area can advise you on. Keep in mind that I am a Missouri attorney and cannot give you detailed advice about the laws in Florida. I can only give you general information in this answer.

You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in divorce actions do. Cordell and Cordell P.C. does have attorneys practicing in Florida who would be glad to give you further assistance.

William Halaz, III is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor's degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law.

Question:

My 17-year-old daughter is refusing to continue her overnight visits every other weekend. Instead of sleeping at my house, she wants to leave at 10 pm Saturday night and return at 10 am Sunday morning. I said no, but is she allowed to make this decision at 17 years old?

Answer:

Each state has different laws governing placement of children.  I do not practice in your state so I can only speak to general practice.  The laws in New Jersey may differ from what I reference below.

Therefore, it is important that you contact a domestic litigation licensed in New Jersey.

I think we are all surprised to learn later in life just how few of rights we had when we were under the age of 18 and “under our parents’ roof.”  You are still the parent and if the Court Order is that she stays with you overnight every other weekend, then you are within your parental rights to require her to stay at your home.  She isn’t “allowed” to make the decision over your objection without a Court Order stating she can choose.  With that being said, there may be a specific statute in your state that provides for an age when a child may determine or provide input as to the placement schedule if a parent seeks to change the court ordered placement schedule. When there is a placement dispute in my state, the court appoints a Guardian ad Litem regardless of the age of the minor child, to determine the best interests of the child.  Generally, a child can testify when they are of sufficient maturity to understand and take the oath to testify truthfully. However, the child's wishes are only one factor in my jurisdiction that the Guardian ad Litem and Judge use to determine the best interest of the child. Usually by 12 years old a child can testify.  As the child gets older, his or her wishes carry more weight. By fifteen or sixteen if the child is of general maturity and has logical reasons for changing the placement schedule, the court will often abide by the child's wishes.  The key is that the child has to have a logical reason for changing the present placement schedule. 

You should contact a domestic litigation attorney regarding your situation to confirm whether New Jersey has a law giving a 17 year old any rights to determine his/her own placement schedule.  I would be surprised if there were such a law—parents have a hard enough time as it is combating all of the claims of a 17 year old of their so-called rights.  Whatever you do you should be mindful of the conflict which may ensue by prohibiting your daughter from leaving your house.  I do not know if your local law enforcement would be of any assistance in the event your daughter decides to disobey your demand that she stay the night in your home.

Question:

I have been planning for a while to retire in the next year. My work week has been shortened due to physical problems and I right before my retirement, I plan to do three-day work weeks. Can a divorce proceeding stop me from my planned retirement date or my shortened work week?

Answer:

Part of your question was recently answered.  You added the additional fact that you are having physical problems which are causing you to reduce your workweek in the wake of your upcoming retirement.  Again, I have to instruct you to contact a domestic litigation attorney licensed in North Carolina PRIOR to shortening your work week or retiring.  As stated previously, Cordell & Cordell has attorneys licensed and located in North Carolina who may be able to assist you. 

If there are physical problems that are causing you to reduce your work week, make sure that you are obtaining medical documentation which would support your decision to reduce your work week.  You should be mindful that even if your doctor tells you that you are limited in your ability to work, the opposing party may be able to hire a physician which who would say you are able to work a full work week.

Therefore, it may be a question for the Judge to determine whether or not you are capable of working and should be working a full work week (assuming the Judge is considering ordering you to pay alimony---which is something you need to discuss with your attorney).  If your physical health has changed recently, you would have a better chance of proving that the reduction in hours is necessary rather than stating that the cause of the reduction is due to a condition which you have suffered from consistently over the past several years despite the fact that you worked a full time. 

Be sure to bring copies of your medical records with you to your appointment with your attorney so that he or she can best advise you as to whether you should reduce your work week and whether you should continue your plan for retirement.

Question:

I divorced in July 2008. My wife worked at a company that had a credit union which we had an open line of credit that I was a co-signer on. I myself could not close the account because it was in her name. She was supposed to close it on her own, according to our divorce decree. She took out a loan after our divorce date and has since defaulted on it. This has ruined my credit rating, and I am wondering what are my options?

Answer:

Each state has different laws governing charging upon the credit of another and enforcement of Court Orders.  I do not practice in your state so I can only speak to general practice.  You need to contact a domestic litigation attorney licensed in Texas IMMEDIATELY to discuss your options for addressing this situation.  Cordell & Cordell has many attorneys licensed and located in Texas who would be happy to assist you.

Charging upon the credit of another is often a crime and may be a violation of the divorce decree.  It should be no different than if she were to charge upon the credit of a complete stranger.  Since she worked for the credit union, she shouldn’t be able to claim she didn’t know you would be responsible for the loan as well.  Do you know if she signed your name?  You need to contact the credit union as soon as possible and dispute your liability to this loan.  You must act quickly! 

In addition, many divorce decrees have a provision which prohibits either party from charging upon the credit of another; or a provision which requires each party to hold the other party harmless for any debts incurred after a certain date (many times it’s the date the petition for divorce was filed).  If she is violating the terms of the divorce decree you may be able to ask the Court to find her in Contempt for the damage to your credit and reimbursement for any funds that you end up having to pay to the credit union.  When a party intentionally violates a Court Order, the Court can find the party in Contempt which is punishable by a fine, jail time, or both.  You need to contact an attorney immediately to address your exposure for a judgment from the credit union and to discuss your options for addressing her actions.

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

Question: 

I have been garnished for child support for 10 years and now my child is 18 years old and soon to be 19 and is graduating from high school in June. I have been on unemployment since September and no child support has been garnished even though they are aware of my situation. I have not recieved any word from them or my ex regarding this. I thought Pennsylvania required child support thru high school or is it age 18?

Answer:

I am not licensed to practice law in Pennsylvania and can’t give you specific information about your state laws. Most states require child support through the age of majority, which is usually 18 or 19. Some states will require you to continue paying child support beyond the age of majority for certain reasons, one of them being the child is still in high school.

You ask what you should do and I am not certain what you are asking about. If you want to start paying child support, there is nothing to stop you from doing that regardless of any garnishment that is supposed to take place. If you don’t want to pay child support, you aren’t, though as it accrues it is still payable, likely accruing interest, and someday you will probably have to pay the back amount.

You could attempt to modify your child support payments from now going forward to a lesser amount, since you are unemployed and your income is probably lower than what it was when the child support was established.

I would suggest you consult with a domestic litigation attorney licensed in Pennsylvania before taking any action. Cordell & Cordell maintains offices in your state and I would suggest you consult with one of our qualified attorneys before taking action.

Question:

The initial child support fee was set up incorrectly and it should have been 11% of my wages, not the 20% assigned. The mother said I had no other that I was paying child support for, which wasn't true. Also, I fell behind on support and the amount set up for back child support was calculated incorrectly as well. How can this be fixed?

Answer:

I am licensed to practice law in Nebraska and can give you general information about your situation. Cordell & Cordell maintains offices in Texas and I would suggest you consult with one of our qualified attorneys before taking action.

Did you not have an opportunity to testify in front of the court at the same time the mother did? If you did not have notice of the hearing, then I would try to have the order dismissed and request a new hearing. If you did have notice but did not appear, it will be much harder to get a new hearing, as they are usually only granted when new information comes to light that was not available to the parties at the time of the initial hearing.

As for the back child support being calculated incorrectly, it’s possible to solve this through a nunc pro tunc order. This allows the court to go back and fix mistakes in the order that did not get done correctly the first time. It can be applied to mathematical mistakes, but not substantive issues, and is used sparingly.

Question:

I'm currently stationed in Nebraska to be closer to my daughter. My wife and I are about to file for divorce in Nebraska, but I found out that you have to wait 6 months after the decree is signed to remarry. So since my residence is in Texas, can we file in Texas even if neither of us live there?

Answer:

I am licensed to practice law in Nebraska. Your research regarding Nebraska law and the 6 month waiting period is correct , and your question actually pertains to the specific state laws of Texas. I can give you some general information, but before taking action, I would suggest you consult with one of our qualified attorneys in the Texas offices of Cordell & Cordell.

Most states have requirements regarding an individual’s domicile and residence. A domicile is also called your ‘legal residence’ and is where you file your income taxes, register to vote, and in your case, where you plan to return to when you get out of the military. A residence is a place that you rent, own, lease etc…. You can have a residence in multiple states at the same time. While you can have multiple residences, you can only have one domicile.

The Servicemember’s Civil Relief Act allows you to maintain your domicile and residency requirements in Texas even though your current residence is Nebraska, as long as your service and status in the military qualify you to be protected by the Act.

Again, I would suggest you speak with a Cordell & Cordell attorney in Texas before taking action.

 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.

Question: 

I have reached a point where divorce is the only choice for us. Our house is in the process of foreclosure. I have access to my 401k to stop the process and pay all our outstanding bills. Should I salvage the house and start fresh with zero debt just before we get a divorce?

Answer:

Probably not, unless you want to forgo getting any of that money back from your wife during your divorce and risk having no retirement savings after your divorce.

As for the debt you pay, in general, debt acquired during the marriage is marital debt. Just as the divorce court will divide the assets you acquired during your marriage, the divorce court will divide the debt you acquired during the marriage.  The division standard in Michigan is “equitable division,” which our appellate courts define as “roughly congruent” or “as near equal as possible,” without regard to fault or need (absent special circumstances). If you pay the debt before you divorce, however, the divorce court will consider the money you use “consumed” during the marriage. That means, it is gone – and so is debt – and the court will not divide it. In other words, you cannot come back and ask for reimbursement from your wife.

As for your retirement, in general, the value of the vested retirement account that accrued during the marriage is also marital property subject to division. These are marital funds. You may feel better about paying your debt (if the alternative is to give half of the account to your wife), but think about this: you will have to give half of the remaining balance, if marital, to your wife. You could end up with pennies left for retirement.

I advise my clients to make a spreadsheet of their assets and debts and a monthly budget before or immediately after they file for divorce. I tell them to pay their debts reasonably during the divorce to maintain a good credit score but not to pay off an entire debt until we have divided it in a settlement agreement or have offset the debt with another debt the other spouse will assume. Any agreements you make with your wife during your divorce must be in writing and must state that the taking-spouse will hold the other spouse harmless for nonpayment and what will happen if the taking-spouse defaults in any payment. Until you know who is taking what, I suggest paying your debts reasonably and with the understanding that you will probably not get a reimbursement during your divorce.

Before you pay your debts or file for divorce, talk to a financial adviser. You may qualify for free or low-cost financial and housing advice from the Michigan State Housing and Development Authority based on your income and the status of your foreclosure. Go to www.michigan.gov/mshda to learn more and to locate the advisors for your county.

Keep in mind, although I am licensed to practice in Michigan, I cannot give you legal advice and case-specific information without reviewing your case in detail. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney in your area immediately for additional information and legal representation. Cordell & Cordell, P.C. does practice in Michigan. Thank you for submitting your question.