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

• How do I get back overpayments of child support?
• Do child support obligations include medical and daycare expenses?
• Can my ex wife's new husband claim our son on his taxes?
• Can back child support that accrues ever be dismissed?
• Can I refuse to sign a separation agreement?
• How should verbal agreements be documented?
• When alimony stops, can I also stop paying for my ex wife's health insurance?

Question: 

My son dropped out of high school in March 2009, three months before his graduation. I was supposed to pay child support until he graduated, but since he dropped out the judge ruled to have the support stopped. But that was decided in October so 7 months after he dropped out. And it turns out I'm still paying child support out of my unemployment checks because my attorney didn't file it with the proper people. What do I do? Do I go after the attorney for his mistake, which will only cost me more money? Who is to blame? The courthouse says it's the attorney's fault, and my attorney says it's the courthouse's fault. And how do I get all the overpayments of child support back?

Answer:

I am not licensed to practice law in Illinois and can only give general information. Cordell & Cordell P.C. maintains offices in Illinois and has qualified attorneys who would be glad to assist you with more specific advice.

From the information you have provided it would seem that your attorney should have seen the child support order through to completion. Most state bar associations have an office or division in place to assist with grievances and complaints. You could also consider filing a civil complaint against your attorney. It is possible if you contact your attorney and let him or her know you are considering a course of action described above, he or she might become more inspired to help you.

Once child support is paid it is difficult to 'get it back'. However, it is more likely in this case when there is an order in place to stop it. Your first step has to be from stopping it from coming out of your paycheck. Contact the courthouse and ask them what exactly they need or are waiting for. Maybe it is simply a registered or certified order. If that is the case, you can likely request one from the clerk of the court for a fee. Then you can move on to getting the arrearages dismissed.

If your current attorney will not competently assist you, speak to one who will.

Question:

Our divorce decree states that you lose your rights to claim a child if you are not current on child support obligations. Does this include medical and daycare expenses that my ex is responsible for per the decree?

Answer:

First I must preface my response that I am not licensed to practice law in Utah and can only give a general response. I would encourage you to speak with a domestic litigation attorney licensed in Utah before taking action.

That question is going to vary from judge to judge, depending on the interpretation of the decree by the presiding judge. More than likely, a judge would expect the medical and day care obligations to be up-to-date, however, a strict interpretation of the decree would mean only the child support.

I would suggest you speak with an attorney who is familiar with the judges in your district.

Question: 

Can my ex wife's new husband claim our son on his taxes? They have relocated to Texas from New Jersey because her new husband is in the military and she is unemployed.

Answer:

Yes, your ex-wife's new husband can possibly claim your son as a dependent. According to IRS Publication 504, if your ex-wife re-marries the support provided by her spouse is treated as if provided by her. Additionally, a step-child can be considered as a 'qualifying child' for dependency eligibility purposes. The fact that your ex-wife is unemployed is not necessarily a factor.

Your decree, or modification order, might address the issue of who can claim the child as a dependent. I would suggest you contact a domestic litigation attorney licensed in New Jersey before you take action.

Question:

My daughter's ex-husband is collecting unemployment and was able to reduce his child support payments to nothing except for medical insurance for the child from unemployment benefits. However, he had owed back support for several months at the time of the hearing, but nothing was said about this. Does the unpaid support accrue with interest? Or is that amount just forgotten? 

Answer:

First I must preface my answer that I am not licensed to practice law in Pennsylvania. As family law is state specific, I would suggest you consult a domestic litigation attorney licensed in Pennsylvania before taking any action. C0rdell & Cordell has many attorneys located in your state.

Generally speaking, once child support accrues it is payable and won't be dismissed. There are exceptions to this, but usually in cases like this where the noncustodial parent is seeking a reduction in child support, that reduction doesn't apply to what has already accrued. As for the issue of interest accruing on the unpaid amount, that is a narrow issue governed by state law, and I don't know how Pennsylvania addresses it.

If the court did not specifically say that he does not owe any accrued child support, and only addressed the issue of child support going forward, your daughter is likely still owed on that accrued amount.

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 a question regarding separation agreements. I understand that my wife has no grounds for divorce and would need the separation agreement in place for 1 year in order to meet the standards in New York. Can I refuse to sign a separation agreement? If I do not sign and my wife then denies my right to see my child, do I have any recourse? 

Answer:

A marital separation agreement between spouses specifies their rights to and duties for marital property, spousal support and, sometimes, child custody, parenting time and child support. It is a contract and, therefore, must be consensual. Not all states recognize and enforce them. In Michigan, for example, marital agreements in contemplation of divorce are void as against public policy.

In New York, however, marital separation agreements are enforceable. If the spouses live under it for at least one year, they are also the fault-basis to obtain a divorce. New York is a rare fault-based divorce state, and living under a marital separation agreement for at least one year is one of the bases. However, cruel and inhuman treatment, abandonment, imprisonment for at least three years during the marriage, adultery, and conversion of certain judgments and agreements are also bases for divorce. See New York’s Domestic relations Law 170.1-.6.  

Therefore, it is not true that you have to sign a marital separation agreement and wait one year to obtain a divorce in New York. Indeed, if you do not like your wife’s proposed agreement, you should not sign it – you are bound by contract to property and support provisions, and the custody provisions will count against you later, if you do. You could commence a divorce for another basis, such as abandonment, and in that case procure temporary and protective orders to prevent your wife from alienating you and your children instead.

You should contact an attorney for a thorough case review immediately. You indicate that you need a response “ASAP” and that your wife intends to move from your home with your children – so, this is clearly an emergency. Your property and parental rights are at stake, and you need an advocate skilled in New York divorce law to help you.

Keep in mind that I am Michigan attorney. I cannot give you detailed advice about the laws in your state, New York. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney near you for additional information and representation. Thank you for submitting a 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 am representing myself in my divorce. We will have joint legal and physical custody. We have a verbal agreement for no child support other than 50/50 medical and summer camp expenses. My question is where and how should that agreement be documented? I received settlement papers from her lawyer today and it does not seem to reference the agreement. Relevant points: Form 14 has the presumed amount to be about $642 per month. 

By signing this form am I agreeing to paying $642? If not, where, when and how to I document are agreed to terms?

Answer:

I cannot fully answer this question because I do not have the document you are referring to in front of me. Missouri uses the Form 14 amount as the presumptive amount of child support a non-custodial parent will pay the custodial parent. If the parties agree that that amount is unjust or inappropriate the court can modify that amount in a separation agreement.

Often times, settlement agreements and parenting plans are difficult to read with experience in the domestic relations law practice, much less without any legal training. You should not rely on this answer as establishing an attorney-client relationship. If you are uncertain about the terms of your settlement agreement I advise you to contact a lawyer in your area immediately to help explain what your rights and duties are under such a document. 

Cordell & Cordell, P.C. has offices in St. Louis, Arnold, St. Charles, and Kansas City, Missouri, staffed with many attorneys who would be glad to assist you with your settlement.

Question: 

I am divorced and was ordered to pay child support to my ex wife. In 2001, she gave guardianship of our kids to her mom and dad. I've still been paying support to my ex even though she doesn't have the kids. I got a judge to issue an order temporary suspending my child support until the case is resolved, including withholdings from my employer, state and federal taxes. The state says they've removed my offset, but the IRS says they haven't heard anything from the state. Now the attorney general says the state will be damaged if this order is not overturned because my ex wife drew TANF (Temporary Asistance for Needy Families) and the state wants me to pay it back. What should I do?

Answer:

I cannot fully answer this question since I do not know all the facts of your case. An individual who does not have children living with them cannot receive TANF (Temporary Asistance for Needy Families; if there is no family as defined by the terms of this program, there is no assistance). Also any parent who receives TANF must assign their right to child support to FSD (Family Support Division). Any money distributed to an individual who is not in compliance with the TANF guidelines must be repaid to the State.

You should not rely on this answer as establishing an attorney-client relationship, and you should contact your attorney or seek out an attorney immediately if your previous attorney is no longer assisting you. Your case may have serious financial consequences for you. 

Cordell & Cordell, P.C. has offices in St. Louis, Arnold, St. Charles, and Kansas City, Missouri, staffed with many attorneys who would be glad to assist you with your case.

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 wife and I are getting a divorce and she is in the military. My kids and I are visiting my family in Oregon and we're supposed to all meet soon in South Dakota. After thinking about stability for my kids as she is in the military and is subject to deployments, I thought it would be best to enroll our son in school here in Oregon, and to begin looking for employment and residences. Does she have the right to come get the kids and take them to South Dakota? And because I enrolled my son into school does this look bad on me as far as custody goes? 

Answer:

First let me state that I am not licensed in South Dakota or Oregon and since custody case and divorces will vary depending upon the state in which the action takes place, it is always a good idea to seek specific advise from an attorney in your jurisdiction, who can properly evaluate your facts and the law. 

Custody and active military are always tough situations, especially when the country is at war, because of the possibility of deployment. It is honorable that you have the foresight to seek stability for your children.

Until a Court enters an Order regarding the custody of the children, both parents have equal rights to their children. If you wanted to prevent that from happening you will need to ask the Court for assistance and you should hire an attorney to assist with that. I don't think it looks bad that you are trying to provide stability for your children, although an attorney in your area can properly evaluate your case and give you proper advice.

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.

Question: 

My agreement states that I shall pay alimony to my ex for 10 years, and I shall maintain the present or similar health coverage for my wife and minor child. When alimony stops, can I also stop paying for my ex wife's health insurance? Of course, I'll keep paying for my child's.

Answer: 

First I must preface my answer that I do not practice in Massachusetts. Each state has different laws governing dissolution of marriage.  It is important that you contact a domestic litigation attorney licensed in Massachusetts prior to taking any action.

Based on the facts you have given me, the agreement that you signed to formalize your divorce will be binding in this case.  Perhaps, there is a clause that addresses how changes in this agreement can be made.  Sometimes, a clause in the agreement will allow the parties to attend mediation to resolve any changes to the agreement.  You will have to review the agreement to ascertain the proper method for making changes to the agreement.  Based on what you have stated in your question, the agreement contains no language about how long you must carry health insurance on your spouse.  Massachusetts statutes also do not state that health insurance is considered a form of alimony. 

To start the process of getting an answer on whether or not you have to maintain the health insurance once you stop paying alimony, you should consider filing a petition to modify alimony with the court which will express your desire to stop paying health insurance once your alimony payments stop.  The court will make a determination and perhaps allow you to stop providing health insurance or possibly set a deadline for your ex-wife to find health insurance.

Steven “Lee” Akins, Jr. is a Staff Attorney in the Memphis, Tennessee office of Cordell & Cordell, P.C. Mr. Akins practices exclusively in the area of domestic relations. He received his BBA in Finance from Southern Methodist University and continued his education to receive his Juris Doctor from Texas Wesleyan University.