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

• Do I have to travel to another state to appear in court?
• Is my son considered an emancipated minor since he has signed up for the Marines?
• If my name is on the deed to the house, can she make plans to sell the house?
• Our agreement on the updated child support was verbal so can she sue me for the difference at some future point if she decides to?
• Does her marriage and subsequent move out of town provide me any leverage if she decides to pursue the child support in arrears?
• Does her marriage and move provide any leverage should I decide to petition for a permanent reduction in child support?

Question:

My license was suspended in Illinois for failing to appear. I recently found out that I might be able to get my license back by agreeing to pay the back support. Is there a way to do this without traveling to Illinois?

Answer:

First I must preface my answer that I am licensed to practice law in Nebraska and can only give you a general reply. I suggest you speak with  a domestic litigation attorney licensed in Illinois before taking action. Cordell & Cordell maintains offices in Illinois and one of our qualified attorneys would be happy to consult with you.

Generally, courts expect appearances in person. You could retain an attorney to appear before the court on your behalf, though whether this would be acceptable can vary from judge to judge, even within the same jurisdiction.

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: 

My stepson currently lives with me and his father. He signed up for the Marines at the age of 17 with permission from my husband and the mother. My stepson has changed his mind about the Marines and plans to move in with his mother and join a junior college. Will we be required to pay child support and college fees? Is my stepson considered an emancipated minor since he has signed up for the Marines and is responsible to pay for his own college?

Answer:

Maybe not.

Whether your husband and his ex-wife will have to support their son depends on what the current child support order says. Usually, each parent’s support obligation terminates when the child is emancipated or reaches the age of majority (in most states, age 18). Had it not been for a child support case, the court could not compel either parent to pay more – not for college, living expenses, medical expenses, or anything. When the parents have a child support case, however, the court can order them to support their child beyond the age of majority. For example, this happens in Michigan, where I practice law, for children who are still in high school and reside with one of the parents until age 19 ½. If the order is silent, then the default termination rules apply (emancipation or age of majority).

However, when in doubt, ask the court for help. Too often, parents make informal agreements or assume their interpretation is correct, only to find that (1) their agreements are unenforceable and/or (2) they still owe support, plus interest, penalties and arrears and/or (3) they are in contempt of court. Try one of 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 child support order is appropriate. In Michigan, for example, the payor and the payee must agree, the payor must have no arrears, and there must be no threats of domestic violence or signs of “strong-arm” bargaining between the parties before the court will consider an opt-out. 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.

Motion to Clarify: If the current order is just unclear, ask the court that issued it to clarify when support terminates.

Settle: Explain your interpretation to the other parent, sincerely and in depth. If the support order will continue, ask for a settlement at an amount you can afford to pay, and explain that any other higher amount is impossible (and why). Support obligations are non-dischargeable in bankruptcy, and the other parent may be left with a bankrupt payor who is not paying anything at all if you do not settle at a reasonable amount. Be sure to reduce any settlement to a written order, with the court’s approval and abiding all court rules and statutes for entering settlement agreements.

Keep in mind that I am a Michigan attorney and cannot give you legal advice about the laws in your state, Illinois. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area for additional information or representation. Cordell & Cordell, P.C. does have offices in Illinois. Thank you for submitting your question. 

Question:

If my name is on the deed to the house, can he make plans to sell the house?

Answer:

Probably not without paying your spouse a marital share.

I assume by “the house” you mean the house you and your spouse shared during the marriage. Whose name is on the deed does not determine who is entitled to the house during divorce because “title” to real estate is not the same as a “marital interest” in real estate. Title is the link between the person who owns property and the property itself – that is, it is the legal right establishing ownership. Marital interest, on the other hand, is a right to a share of the property. This may be a legal interest or an equitable interest depending on the statutes in your state. This marital interest is why, for example, a husband who is the “sole owner” on his home mortgage or deed can end up having to pay his wife half the value of home’s equity at divorce.

This may include half the profits of a sale.

What rights you and your spouse have to your home and the property inside depend on the facts of your case. If you are separated and divorced, then your divorce decree should state those rights. If you are separated but not divorced, you are in a precarious position – if you deny access to the house, you may deprive your spouse of property that is rightfully his or hers (this is a crime in some states) or paint yourself as the unreasonable spouse in court (which could make you liable for attorney fees and costs in most states). If you sell the house, you could end up paying taxes and your spouse his or her fair share to boot. However, your spouse may encumber property or sell it and conceal the profits if you do nothing, or at least destroy the inside with a baseball bat in a fit of rage (yes, divorcing spouses do this).

You should ask for permission before you sell the house. If you and your spouse agree, put the agreement in writing and send it to your judge for approval. Make sure you do so after your lawyer and a financial advisor have reviewed your agreement because the timing of the sale could have tax consequences you can easily avoid if you are still married (e.g., the exclusion for profits on the sale of a principal residence f/k/a the homestead exemption).

Keep in mind that I am a Michigan attorney and cannot give you legal advice about the laws in your state, Tennessee. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area for additional information or representation. Cordell & Cordell, P.C. does have offices in Tennessee. Thank you for submitting your question.  

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:

 1. Our agreement on the updated child support was verbal so can she sue me for the difference at some future point if she decides to?

2. Does her marriage and subsequent move out of town provide me any leverage if she decides to pursue the child support in arrears?

3. Does her marriage and move provide any leverage should I decide to petition for a permanent reduction in child support?

Answer:

1. Your verbal agreement to reduce your payment will not be enforceable. You should file a motion to modify to adjust your child support amount. See answer 3.
2. If you wish to object to your wife’s relocation with your son, you must file an objection to relocation. In theory she should file a notice of relocation too, however if you know of a planned relocation, you can jump the gun so to speak and file first. The standard for relocation is the best interest of the child. You may also consent to the relocation if you are not opposed to it.
3. It may or may not. All other things being equal, it is unlikely that remarriage and a move would effect child support. Modification of child support is based on a substantial and continuing change in circumstances. I cannot say whether or not your facts constitute a substantial and continuing change in circumstances because I do not know all the facts in your case.

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

Question:

My husband and I have custody of his 18-year-old daughter. We have recently purchased a new house that is very close to our previous house and also the mother's house. We were unable to send the 60 days notice as required due to the lack of a binding contract. We did attempt to send a certified letter prior to the expected move to the mother, however she will not pick the letter up knowing it is our notification. She is completely aware of our move due to the requirement of her signing a quick claim deed on our former house that was purchased before her and my husband's divorce was final that failed to get recorded at that time. Can she file contempt of court charges against my husband, and if so can she obligate us with any court or lawyer fees for such action? If she took such action would it be probable the court would require her to pay all our fees required in such action if we have the proof with receipts and postal documents showing her failure to pick up our notication letter?

Answer:

A party’s objection to relocation must be based on the best interest of the child. The court will look at various factors which are affected by the move. This may include whether the child changes school districts, how it will effect custody schedules, and any other effects it may have on the child. One defense to contempt is impossibility. If it is impossible for a party to comply with a court order, then the party does not have to comply. Because I do not know all the facts of your case, I cannot give you a specific answer to your question, only general information.

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