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

• My visitation case keeps being delayed. What can I do in the meantime to be with the children?
• Is there a law that says I can get an uncashed support check returned to me?
• How feasible is getting the spousal support reduced and is it possible to get the arrears amount reduced or wiped out?
• Can a divorce case that has already been filed be moved from one county to another due to the parties moving?
• How do I correct the unintended and incorrect filings, which the court signed and ordered?

Question: 

My boyfriend's court case for visitation with his kids has been pushed back another three months. He doesn't want to go another three months without seeing his kids. What can he do in the meantime to be with the children?

Answer:

He does have options, but until the court issues a child custody and parenting time order, those options are limited. From the information provided, it sounds like this was a paternity case. Fathers are surprised (often shocked) to learn that simply acknowledging they are the father, getting a court order that they are the father, or paying child support as if they are the father does not give them parenting time rights with their children.  They have to file a “counterclaim” in the paternity support case or a separate lawsuit under the Child Custody Act of 1970 to receive parenting time. Otherwise, the children’s mother has sole physical custody and discretion to allow the children time, when she pleases.

The first and most important thing, once paternity is established, is to file the request for parenting time. This may be a motion in the paternity case or a separate lawsuit. The court will schedule a hearing for it. Between the date of filing and the date of the hearing, try these options:

Keep calling! It is common for hearings to get cancelled or rescheduled (“adjourned”) when parents settle or their or their attorneys’ schedules conflict. This means, hearing dates become available regularly. Keep calling the Friend of the Court clerk of the judge’s clerk, depending on who is assigned to hear the case (which depends on the county), to ask for a new hearing date when one becomes available.

File a motion for a timely decision. By Michigan court rule, courts must decide child custody cases within 56 days of a request for a decision or 56 days after the court orders the decision. File a motion (a request in writing) to demand that the Friend of the Court or the court (again, depending on the county) follows this rule.

File a motion for interim parenting time.  Under the Child Custody Act, the court assigned to the case may take “any action” necessary to the child custody dispute, so long as the decision is in the child’s best interests. This is a broad power. Try filing a motion to request parenting time pending the later child custody hearing. Schedule the motion for the court’s regular motion day, which is every week or every two weeks depending on the county.

Ask for cooperation, and document everything. Ask for parenting time with the children. When their mother denies time, document it (Who was there? What was her reason? Was she rude? Did she seem concerned about the children? Was your request reasonable?)  Offer to take the children to a public, safe place. Offer to spend time with her and the children. Use her responses in the later child custody dispute. One of the most influential factors in the child custody analysis is the “friendly parent” factor – the friendlier, the more likely to receive custody or significant parenting time. Be that parent, and show how she is not.

Please, have an attorney. I cannot emphasize this enough. Our rights to our children are constitutional rights. The procedures in the family division of the circuit court may seem simple and children-oriented, but they are complicated. The mistakes you make can have lasting, non-modifiable consequences.

Although I am licensed to practice law in Michigan, I cannot give you legal advice without reviewing your case in person. I have only given general information. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for legal advice. Cordell & Cordell, P.C. does practice in Michigan. Thank you for submitting your question to Cordell & Cordell, P.C.

Question:

I've been informed my ex has not cashed a support withholding that was held from my paycheck from last summer. Is there a law that says I can get that uncashed support check returned to me?

Answer:

Usually, no.

Child support owed is owed to the child, and it does not revert to the parent once due.  In fact, in most states child support is also not modifiable retroactively, unless the parties agree or the court orders because one party had a motion or petition for support pending, and then only to the date of notice of the motion or petition. As a matter of law for negotiable instruments (checks), the child support check that remains uncashed may be expired, but that does not mean the support is no longer due. The administrator that issued the check on your behalf will have to cancel it and issue a new one.

If you have trouble paying child support, or if you think this failure to cash the check shows a decreased need for child support, do not wait! Consider these options:

Motion to Reduce Child Support: If you cannot pay the current amount, consider filing a motion to reduce it. The standards and procedural requirements vary by state, but, in general, parents who genuinely cannot afford to pay (e.g., have lost a job) will receive a reduced amount or a long-term payment plan. Contact an attorney in your area for information about the rules applicable to you.

Three Year Support Review: By federal law since 1996, states receiving federal assistance must review child support orders every three years. In Michigan, where I practice, support payors and payees have a “one time pass” every three years to ask the Friend of the Court to review their current child support order. All they need to do is send a letter to the Friend of the Court to request it. Contact the court or child support administrator for your case to find out how your jurisdiction conducts the reviews Be cautious, however, because incremental differences may not be enough to modify the current order (in Michigan, we need at least $50 deviation), and you could end up paying more support if the other parent’s income has deceased more than yours.

Pay the Right Person: Most states require payors to pay support through the state, along with a processing fee. Some parents pay their children’s custodial parent directly to avoid paying the fee. That is a mistake. Unless and until your order states that you can pay your ex directly, you must pay child support through the state. In most states, the money you pay directly to the other parent will be treated as a “gift,” not child support. Since the appropriate entity (the state) did not receive the money, you would still owe child support. You could even end up paying the full amount twice. If you would rather pay the parent directly, contact your attorney to learn what the local requirements are for opting out of the state payment system. Most states do allow you to opt out, but generally you cannot have arrears and both parents must agree and/or the court must determine a revised support order is appropriate. When you are allowed to pay the other parent directly, if ever, be sure to make the payments by check so that you have a record of when you wrote the check and whether it cleared your checking account.

Be advised, I am licensed to practice law in Michigan. I cannot give you legal advice or recommend a course of action in your state, New Jersey. I have only given general information. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for legal advice. Thank you for submitting your question to Cordell & Cordell, P.C.

Question:

My salary was cut last year and I'm in arrears for spousal support. How feasible is getting the spousal support reduced and is it possible to get the arrears amount reduced or wiped out?

Answer:

It is possible to reduce spousal support based on loss of income. However, you must ignore what the Friend of the Court told you about your likely success. The Friend of the Court clerks cannot give you legal advice, but it sounds like they did. Nor can they predict the outcome of a case because spousal support cases depend on many factors, income being only one of them.

To modify support, the payor must show a change in circumstances. The change is from the date of the last order (so, that means no attacking an amount you think was excessive at the time the court ordered it, absent fraud or mistake or undue influence). The change may be a change in need, a change in income, or another change in the eleven factors considered to award support, which are, in addition to equity, the parties’ past conduct; marriage length; ability to work; source and amount of property; age; ability to pay; present situation; needs; health; and standard of living. Modification or termination is within the trial court’s sound discretion, which the appellate courts will not overturn even if the order is recent so long as the moving party offers a preponderance of evidence.

To discharge arrears, consider filing a motion under the Support and Parenting Time Enforcement Act (SPTEA) to request that the state discharge your arrears after you complete a certain amount of payments in an order called a “Payment Plan and Order.” Whether to discharge the arrears is left to the discretion of the court, however, so do not expect a sure-win here, as the Friend of the Court implied. In my experience. Payors must show a significant period of timely payments under the payment plan and the arrears must be below a certain threshold set by the support enforcement agency.

Although I am licensed to practice law in Michigan, I cannot give you legal advice without reviewing your case in person. I have only given general information. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for legal advice. 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:

Can a divorce case that has already been filed be moved from one county to another due to the parties moving?

Answer:

Often Courts will not transfer the venue, or location of a divorce once it has begun. One reason why the Court may transfer the case would include if both parties moved and the original Court is now an inconvenient forum. If both parties agree that the second court is a more convenient forum and that second Court has Jurisdiction over the subject matter, then the Court is much more likely to allow the change of venue. If the second Court does not have Jurisdiction over the divorce, though, it will not be able to hear the case at all.

This answer should not be construed as creating an attorney-client relationship. If you need additional legal advice or representation you should speak with an attorney in your area immediately. Cordell & Cordell has many attorneys in Missouri who would be glad to review your case if you so choose.

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: 

The attorney for respondent failed to file the dissolution before he filed the modification for child support. How does one correct the unintended and incorrect filings, which the court signed and ordered?

Answer:

First let me preface my answer by stating that I am not licensed to practice law in the state of California and you should seek the advice of an attorney in your jurisdiction for specific advice relating to your question.

Every state has its own Rules of Civil Procedure and usually every Court has its own local rules. The California Rules of Civil Procedure should provide guidance on the proper procedure and/or filing that apply to your question. You should consult an attorney in your jurisdiction to get specific advice regarding your question.

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.