&q

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

• My fiancee is still legally married. Can she even get a divorce while she is pregnant with my child? If she can't and she has the child while she is still legally married, would the child be considered mine?
• Regarding child support calculations, are there any ways around submitting tax returns for a closely held business?

Question:

My fiancee is pregnant with my child, but she is still legally married though she has filed for divorce. She has two children with her soon to be ex husband. Can she even get a divorce while she is pregnant? If she can't and she has the child while she is still legally married, would the child be considered mine?

Answer:

You are right to be concerned. In Michigan, fathers’ rights to claim paternity are limited by statute and caselaw, particularly when the mother is married. Here are some things you should consider:

*A woman can get a divorce while she is pregnant. However, a child conceived during the marriage is presumed to be a child of the marriage, i.e. the husband’s child (not yours).  The divorce court can make a finding that someone else is the father if the mother or husband presents clear and convincing evidence. This is usually done through a paternity test. However, if no party raises the issue and presents proof, then the divorce court will conclude that the child is a child of the marriage. This conclusion is binding unless one of the parties (but not a third party, like you) appeals or motions to set the conclusion aside within the times prescribed by Michigan law. Therefore, if the mother in the divorce wants to challenge paternity, she must raise the issue and present proof.

*Under the Michigan Paternity Act, a biological father lacks standing to claim a child born to a married women is his child unless another court has already concluded, in another action, that the child is not a child of the marriage.

*Under the Michigan Acknowledgment of Parentage Act, the biological mother and the biological father can sign a form available from the Department of Community Health and at most hospitals that states who are the biological parents. This does not require court action, and the parents may sign the form even if the mother is married to someone else.

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.

Question:

I have a successful family business that I partially own. The company is an S Corporation. I draw a salary, vehicle allowance, etc., and also participate in S Distributions for personal and to cover our large tax obligations. I have other partnership income for our real estate holdings. In Colorado, there is a form on the state Web site where you enter your income. However, it doesn't take into consideration S Corp income that is reinvested into the company or paid out to cover tax obligations of the company. This can have a huge impact on what the calculations are for my child support. We've been able to negotiate around me submitting tax returns in the past, but now she wants a copy. Are there ways around the S Distribution scenarios? Are there any ways around submitting tax returns for a closely held business?

Answer:

First, I must preface my answer that I licensed to practice law in Nebraska, and can only give you general information. Cordell & Cordell maintains offices in Colorado and I suggest you consult with one of our qualified attorneys before taking action.

Regarding ways around the S Distribution scenario, that is a very state specific question, as it deals with how Colorado deals with income. Each state has it’s own equations and rules regarding how child support is figured. They can vary widely from state to state, as can the exceptions and nuances. You really need to consult with an attorney licensed in Colorado regarding the subject.

It will probably be difficult to keep the tax returns out of  the mix. If she starts pursuing the issue through formal court channels, then she can request those documents during discovery. Discovery is a phase of litigation where each party tries to find out as much information as possible about the other party. One way to do this is a Request for Production (RFP). RFP’s require the other party to come up with copies of the requested documents, unless an objection can be made to the request. Some objections commonly made are unduly burdensome, asks for privileged information, or outside the scope of discovery.  Unfortunately, the scope of discovery is usually very broad, even more broad than what information could eventually be admitted at trial.

Question:

My son is getting a divorce. He is in the National Guard and will be deployed soon. Will he have to sign over full custody of his child to the mother when he leaves?

Answer:

First I must preface my answer that I am licensed to practice law in Nebraska only. Please consult a domestic litigation attorney licensed in your state before taking action. Cordell & Cordell maintains offices in Illinois and one of our qualified attorneys would be glad to consult further with you.

He will not have to sign over full custody of his daughter. However, his absence from his daughter’s life will factor into the custody decision by the judge. The judge will decide which parent gets custody based on the ‘best interest of the child’ standard. One factor will be the presence of the parents in the child’s life. Though he will be gone for a valid purpose, the stability of the child’s life and how the parent’s affect that stability will be considered.

He will have a challenge trying to defend a custody battle while being deployed. It’s possible the Servicemembers Civil Relief Act (SCRA) can provide him with some protection. He should consult with his commanding officer immediately, and before communicating with the court so as not to inadvertently waive any protection, to see if the SCRA will apply to him.

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.