Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:
- Do I still have to appear in court if I want to cancel a modification request?
- My ex is scheduled to deploy and offered me a family care plan giving part of her parenting time to a "designated person" while she is away. Can she do that?
- Do I have to pay for part of the her daycare expenses?
I had requested a modification in child support when I was first laid off a year ago, but now as we're about to go to court over it I have found another job. Do I still have to go to court? Will the original order from my divorce stay in effect if I just don't show?
I do not know all the facts of your case and therefore can’t answer your question specifically.
If you do not show up for a court date, you may be in default. This does not mean that things go back to how they were unless you are the one filing. If the filing party agrees to drop their motion, then the orders will remain as they currently are. If the other party has filed and you do not respond or show up for court, you may be in default and the other party may be able to receive all the relief they requested.
If you need additional legal advice or representation, you should speak with an attorney in your area immediately. Cordell & Cordell, P.C. has attorneys in Illinois who would be glad to review your case. This answer should not be construed as creating an attorney client relationship.
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.
I am divorced and have sole custody and a 50/50 parenting plan with my ex wife. She is scheduled to deploy with the National Guard and offered me a family care plan giving part of her parenting time to a "designated person" while she is away. Can she do that? What if I don't sign it? Should I have the child while she is away as I have sole custody?
No, she probably cannot unilaterally change your parenting plan to give her time to a designated person. In the majority of states with parenting plan laws, like Oregon, a parenting plan is a court order that the parties can only revise through (1) mutual agreement in writing, signed, submitted to the judge and entered as an order or (2) a court order, after notice and an opportunity to be heard except in exceptional circumstances. See, e.g., ORS 107.174.
In some states, by statute or common law parents can give a designated person their decision-making authority in a “power of attorney,” but you are the legal custodian with that authority and this does not appear to be what your ex seeks to accomplish.
Whatever you do, (1) do not sign the document without having a lawyer review it because a signed document can be admissible against you in court, even if you do not understand it, and (2) be sure to have your parenting plan revised to reflect your ex’s deployment (and who will have the time) before she leaves because federal laws like the SSCRA limit your ability to modify orders while she is on active duty. Federal law also limits the deployment information you seek, so you should request that information from your ex when modifying your parenting plan by agreement or though a court order.
You might try one or more of these options, too:
Research your resources. Research the resources in your area for parenting time and custody enforcement. Parents are often surprised to learn that many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators exist. You should consult with a lawyer in your state to learn about the resources available to you.
Show Cause Motion: If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with a new parenting time plan, and you will create a record of her non-compliance in the event you need to modify the plan later. The procedures for these motions vary by state, so be sure to contact a lawyer for assistance.
Motion to Modify Custody/Parenting Time: If your ex purposely denies your time, if your children are unhappy or if you suspect something about your current order just does not “work” and a change would be better, consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long- term benefits could be worth the effort, however, if you are legitimately unsatisfied. Be sure to consult a lawyer who practices family law in your state, and schedule an appointment to at least review your current order and the facts in your case as they apply to the law. Do not pinch pennies here. You need a realistic viewpoint if you are going to invest money, time and emotions for a custody motion.
This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws in your state, Oregon. Do not rely on this answer as establishing an attorney-client relationship. Thank you for submitting a question to Cordell & Cordell, P.C.
I currently have joint 50/50 custody of our two children. I do not have daycare expenses on my weeks. However my ex pays daycare for her 26 weeks. I was ordered to pay extra each month for my part of her daycare expenses. Do I have to pay for part of the her daycare expenses?
Yes, you do – unless you can show the amount is unjust or inappropriate.
In Michigan, childcare expenses are just another component of child support, much like food, clothing and shelter, under the Michigan Child Support Formula. So, just as you have to pay for a share of your children’s food, clothing and shelter during their time with your ex, you have to pay for a share of their childcare. The MCSF will calculate the percentage responsibility for each parent. The percentage is the presumptive amount. Unless the parent unhappy with the amount can show it is “unjust or inappropriate,” it is also the amount to order. What is “unjust or inappropriate” depends on the facts of the case, but just not being “happy” is not enough. Usually, the parent must show there is cheaper, good quality childcare elsewhere, the price is fabricated, the parent has too many other debts, etc. You might file a motion with the Friend of the Court to argue the amount is “unjust or inappropriate,” but be prepared to back your argument up with facts. These motions rarely succeed unless the parent selecting childcare truly is unreasonable (e.g., by paying for a Hilton Hotel style childcare on an EconoLodge budget).
Childcare for a child continues until August 31 following the child’s 12th birthday. The parties must keep each other and the Friend of the Court informed of any changes in childcare expenses. Most parties use the “Childcare Verification” form online at www.courts.michigan.gov. Therefore, you might also ask you ex to give you a verification of the amount, and you should be sure the amount terminates on August 31 after each child’s 12th birthday.
This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws as they apply to your case without meeting you. Do not rely on this answer as establishing an attorney-client relationship. We do practice law in Michigan and would be happy to meet you. 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.
I am representing myself in my child support case. My ex has a lawyer. Can I ask for all documentation from her lawyer that I had to provide for her to do these worksheets?
First I must preface my answer that I am licensed to practice law in Nebraska and can only give you general information. Cordell & Cordell maintains offices in Kansas and I would suggest you consult with one of our qualified attorneys before taking action.
Well, you can ask her for anything you want to, she might even provide you the information without there being any legal reason to force her to. However, if she doesn’t want to turn over certain documents, then you will have to use more formal channels. If there is no order yet, then you can serve her with Requests for Production (RFP’s). An RFP is a discovery tool that requires the opposing party to let you review the documents you request, within reason. An RFP which asks for all documents used in arriving at her calculation would certainly be relevant to the action. You might ask for the opposing parties’ W-2’s, tax returns and current pay stubs, also, so you can work on your own calculation.
In the future, before giving the opposing party any documents, you should make a copy for your own records.
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.