Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:
- If she gets an equity loan on her gifted property, will that debt also be my debt in divorce?
- Do I and my ex wife have to file bankruptcy together or apart?
- In order to keep the house, can we settle on a child support payment amount that is less than the Friend of Court would determine?
- Is infidelity ever taken into account when awarding parenting time or child support?
- Is it considered kidnapping if the father does not consent to his children moving?
- Can grandparents seek custody?
- Can I ask to be my niece's legal guardian even if I'm stationed overseas?
- Where should I file the modification if I don't live where the divorce took place?
Question:
I am considering a divorce. My wife just had a house gifted to her. She is seeking an equity loan to pay off her 10 to 15 credit cards. If she gets an equity loan on her gifted property, will that debt also be my debt in divorce?
Answer:
First, let me preface my answer that I am licensed in Nebraska, not North Carolina, and can only provide you general information. Be fore taking action please consult with a domestic litigation attorney licensed in your state.
It is likely the equity debt will be considered marital debt. Your issue isn't where the debt came from (the house), but what the debt was used for (the credit cards). The situation is the same as if she had used a vehicle to secure the loan.
What you can do is try to show the credit card debt was not marital debt and, thus, should not be included in the property split. The burden will be on you to show she used the cards for her own use, as opposed to using them for a purpose that would benefit the marriage.
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:
Do I and my ex wife have to file bankruptcy together or apart? Is one way better than the other?
Answer:
When, if at all, to file for bankruptcy is a critical question that you can only answer after a thorough review of your finances, your spouse’s finances, your debts (particularly which ones are joint debts with your spouse), and the likelihood that either of you will default in paying a debt and subject the other to liability. You must consider these issues with a bankruptcy attorney. One filing method is not necessarily “better” than the other, but the method (and Chapter) you file, if at all, could be “better” than another based on the circumstances at the time you file.
Bankruptcy law is separate from divorce law. They do intertwine, somewhat. First, the divorce court cannot divide property that is in a bankruptcy estate. Second, under the Bankruptcy Reform Act, ex-spouses cannot discharge their spousal support (i.e., alimony or maintenance) or property settlement obligations to each other. Therefore, for example, do not expect to get divorced, then file for bankruptcy to “get out” of paying your spouse support.
Keep in mind, I am licensed to practice in Michigan. I cannot give you advice about the laws in your home state, Utah, and I cannot give you case-specific information. Please contact an attorney immediately for additional information and legal representation – particularly before you file for bankruptcy, if you do. Thank you for submitting your question to Cordell & Cordell, P.C.
Question:
I am going to file for divorce, but want to know how the breakdown of the issues could affect the outcome of my case. I believe that she is cheating on me, but don't have any proof. I can prove financial abuse caused by her bouncing hundreds of checks. I can also prove identity theft since she applied for credit in my 8-year-old's name and asked another child to lie for her when she used a stranger's credit card. She collects unemployment and I'm the one who works and makes a good living. How can I protect my kids without taking them away from my wife (who they love) and also keep my income and what I've worked so hard for while she does nothing but spend everything?
Answer:
You raise several issues here (fraud, identity theft, infidelity), and, as a result, I gather you are (1) disappointed about the breakdown in your marriage but (2) confused about how the breakdown affects, if at all, the outcome of your divorce in no-fault divorce states like Michigan. Let’s make them simpler for you.
First, fault-based issues rarely, if ever, have a substantial impact on the outcome of a child custody case unless they also affect the child’s best interests. For example, mere allegations of abuse or fraud, absent more, are not enough to deprive a parent of physical or legal custody of her child. Rather, the standard to apply for any custody decision is the “best interests of the child” standard. State statutes and case law define this standard differently, but there are certain factors and/or themes that appear in the majority of states. For example, in Michigan, family division courts must consider the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
See MCL 722.23. One common factor is “moral fitness.” This is an amorphous factor that only impacts the decision if it affects the child. For example, a moody mother who is an excellent mother nonetheless will still receive custodial time, whereas a moody mother who lies to the court to alienate her child from the father will probably receive less. If the parents are equal on all other factors, this may be the dispositive one. But, courts must also analyze each parent’s proposed homes for the child, each parent’s willingness to foster and encourage a relationship between the child and the other parent, the child’s affection with each parent, any domestic violence, any physical, mental or moral impediments to parenting, and “any other factor” relevant to the particular family.
Second, fault rarely affects property distribution. Michigan family division courts do not consider who is at fault for the breakdown in the marriage when dividing property or “reward” the innocent spouse with a greater share of the property – except in limited circumstances. These limited circumstances include “unclean hands” (e.g., attempting to murder the spouse to retain all of the property), fault “tied to” property (e.g., the gambling addict who gambled away the parties’ savings) and “need” (e.g., one spouse has cancer and needs more money to pay for treatment than the other, healthy spouse). Just being the spouse who fell out of love is insufficient. Therefore, the “equitable distribution” rule applies. The “equitable distribution” rules means, according to our appellate courts, the court will divide all property (assets and debts) so that each spouse’ share is “roughly congruent, i.e., as near equal as possible.” Marital property includes all income, real estate, personal property, and investments obtained during the marriage, “commingled” separate property with this marital property, and any active appreciation from each spouse’s property acquired prior to the marriage. Therefore, the most the spouse “loses” in divorce is, usually, one-half of the property acquired between the date of the marriage and the date of divorce.
Keep in mind, although I am licensed to practice law in Michigan, I cannot give you legal advice or 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 immediately for additional information. Cordell & Cordell, P.C. does practice in Michigan. Thank you for submitting your question to Cordell & Cordell, P.C.
Question:
In order to keep the house, can we settle on a child support payment amount that is less than the Friend of Court would determine?
Answer:
Yes, you can. In Michigan, the Child Support Guidelines are encouraged and presumptively correct, but they are not mandatory. If parents agree to deviate from the support the Guidelines recommend, they may. By Act in Michigan, the parents must still reduce their agreement to writing in a Uniform Child Support Order (UCSO). However, rather than use the Guidelines recommendation, they add a paragraph to the UCSO that states (1) what the recommendation is, (2) what the agreement is and (3) why the agreement is in the child’s best interest. So long as the parents agree and the agreement is not egregiously lopsided, most courts will accept it. Your proposed agreement to make house payments in lieu of money support according to the Guidelines is common, and this altered UCSO is the way we make it enforceable.
Keep in mind, although I am licensed to practice law in Michigan, I cannot give you legal advice or 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 immediately for additional information. Cordell & Cordell, P.C. does practice in Michigan. Thank you for submitting your question to Cordell & Cordell, P.C.
Question:
My wife of 19 years is having an ongoing affair and now wants a divorce. Is infidelity ever taken into account when awarding parenting time or child support?
Answer:
Sometimes – if the affair affects the child’s best interest. In Michigan, the family division court must consider the following factors when deciding who should have custody and what amount:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
See MCL 722.23. One common factor is “moral fitness.” This is an amorphous factor that only impacts the decision if it affects the child. For example, a cheating mother who is an excellent mother nonetheless will still receive custodial time, whereas a mother who left her children at the mall (no food, no money, no way home) for five hours while she went on a date with her boyfriend will probably receive less. If the parents are equal on all other factors, this may be the dispositive one.
However, the law in Michigan requires family division courts to presume that each child is entitled to an equal relationship with both parents. In fact, by statute, courts must inform parents of the options for joint custody, both joint physical and joint legal custody. See, e.g., MCL 722.27 and MCL 722.27a.
Therefore, infidelity may play a part, but only a part, in the analysis. The court must also analyze each parent’s proposed homes for the child, each parent’s willingness to foster and encourage a relationship between the child and the other parent, the child’s affection with each parent, any domestic violence, any physical, mental or moral impediments to parenting, and “any other factor” relevant to the particular family.
Keep in mind, although I am licensed to practice law in Michigan, I cannot give you legal advice or 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 immediately for additional information. Cordell & Cordell, P.C. does practice in Michigan. Thank you for submitting 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 currently live in New York. My son and his ex girlfriend just had a baby this month. She tells him out of the blue she is moving to North Carolina. When she gave birth, there were drugs found in her system as well as the babys system. She has an open ACS case and she has been assigned to do a drug program both in New York. My questions are can she just move with notifying anyone dealing with her case? Is it considered kidnapping if the father does not consent to his children moving? Can grandparents seek custody?
Answer:
First let me preface my answer by stating that I am not licensed in the State of New York and it is important that you speak to an attorney licensed in that jurisdiction to receive specific advice related to your questions.
Generally a parent has an absolute right to relocate with their children unless there is a Court Order or state law that specifically limits their ability to do so. As I stated earlier, I am not licensed in New York, so I am unaware if there is a state law that would prohibit her moving although there might be a Court Order or other restriction if their is an open ACS case against her.
As I stated earlier a parent is free to move with their child and is not usually considered kidnapping if the do so, however, if there is the presence of a court order, then they may change the situation. With regards to the rights of your son, you will need to make sure that paternity has been established. In some jurisdictions, a father of a child born out-of-wedlock does not have any rights to the child unless paternity has been established, so you may want to talk to an attorney in your jurisdiction, quickly to see if this needs to be established.
With regard to grandparent custody, some jurisdictions allow grandparents to seek custody of their grandchildren if it is in the best interests of the children and the grandparents can show that the parents are unfit to be the child's caregivers. This is obviously a huge burden of proof and an attorney licensed in your jurisdiction can sit down with you and let you know what statutory factors that you must meet and if your case is one that may proceed for grandparent custody.
Question:
I am soldier in the Army, married and station in Germany. I have a stable family and home. However, my sister has a 6-year-old daughter, but she is involved with drugs and the father of her child is in prison. My niece is repeatedly bounced around from home to home. I want to step up and take care of my niece and provide her with a much better life. Can I ask to be her legal guardian even if I'm stationed in Germany? Her life would certainly be improved here.
Answer:
First let me preface my answer by stating that I am not licensed in California and that you should seek the advice of an attorney who is licensed in your jurisdiction for specific advice relating to your questions.
Generally in situations like the one you have described, the Court would like to find the most stable environment for the child and wants to act in the best interests of the child when placing the child in temporary custody. You would need to petition the Court for temporary custody of your niece and show the Court how her life would be improved and how you would be able to provide that stable environment that you believe is lacking in her life.
An attorney licensed in the state of California would be able to help you with this and provide advice on how you can show the Court that your home would be best suited for your niece.
Question:
Though I still live in California, the state our divorce was filed and finalized, I no longer live in the same county. I need to file a modification to the decree. Can I hire an attorney in my local area to work do this, or do I have to use an attorney located in the county where the divorce was filed?
Answer:
First let me preface my answer by stating that I am not licensed in the state of California and have no specific knowledge as to the statutes or rules in that particular state. It would be important for you to speak to an attorney licensed in that state for specific advise relating to your question.
Generally, any attorney with a California license would be able to help you with your modification. You will need to weigh the ultimate cost because most attorneys will charge you for travel to and from the Court that they will practice. If you live only one county away this may not be an issue, however, if the original Court is in Northern California and you live in Southern California, you may want to hire an attorney in the original county to save costs.
Question:
My husband and I live in Florida, but he needs to file a child support modification. His divorce took place in Indiana. Where should he file for the modification? He is 100% disabled and lives off SSI benefits. His ex wife is getting one-third of his disability check leaving us with no money at all.
Answer:
First, let me preface my answer by stating that I am not licensed in the state of Florida, although Cordell & Cordell, P.C. does have attorneys located in Florida and Indiana who would be happy to discuss your case with you.
Usually a party wishing to modify child support needs to file the modification in the original Court, which in this case would be located in the state of Indiana. However, if the mother and children no longer reside in the state of Indiana, it may be possible to register the child support obligation in Florida and seek a modification there, although, you should be aware that if the mother and children have left the state of Indiana, then the mother of the child could do the same thing and seek modification of the obligation in her new home state. Either way, the party seeking the modification would have to request their new state to assume jurisdiction over the case and show why the state needs to assume jurisdiction.
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.
