Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:
- If I never turned in our marriage certificate to the clerk, am I still legally married?
- I've been making the mortgage payments during the divorce process so is the home mine during this time?
- Can I request the kids be taken out of daycare if they're old enough? Why do I pay for that and child support?
- Do I have to pay half of our child's counseling fees if there is no court order and my ex set it up without input from me?
- My child's mother is moving states and leaving my child to live with a friend. I'll still be paying child support. Shouldn't she have to pay as well since she's leaving the child or can I have more obligation reduced?
- My ex has a court order to refinance the mortgage, but has already been denied once. What happens if she can't refinance?
- My ex is paid off but I still owe the state a lot of money, the majority of which is surcharges that will keep piling up. Do I have any options?
Question:
If I never turned in our marriage certificate to the clerk, am I still legally married?
Answer:
First I must preface my answer that I am licensed to practice law in Nebraska and can only provide you with general information. Family law is state specific and you should consult with a domestic litigation attorney licsned in Ohio before taking action.
Most states require a marriage license to be obtained before the ceremony is performed. If the ceremony is performed without the license then the ceremony would not have validated the marriage. But once the license is obtained and the ceremony is performed by a party authorized to do so, then the marriage certificate only serves as presumptive evidence of the marriage, but it doesn’t finalize anything. Assuming you went through with the ceremony in good faith, then there was ‘a meeting of the minds’ at the time of the ceremony, and the marriage is likely valid.
Question:
My wife and I are going through a divorce. During the marriage, she handled paying the bills but was often months behind and the house nearly went into foreclosure because of this. I then made the payments and have since kept making the payments out of my own personal (separate from our joint) account. So is the home legally mine? Can I change the locks and keep her out?
Answer:
First I must preface my answer that I am licensed in Nebraska and can only give you general information. I would suggest you speak with a domestic litigation attorney licensed in Delaware before taking action.
State law on this issue can vary from state to state. You might consider filing a motion asking the court for exclusive residency of the home, however, some courts will only grant these upon allegations that the spouse in the home fears emotional or physical harm from the other spouse.
Question:
I pay monthly child support for two kids and have been paying for daycare expenses for my youngest son who is 9 years old. I have suggested the younger son stay home after school with his older brother since they've stayed alone before. So I informed the mother that after this school year I intend to stop paying for what I think is unnecessary daycare expenses. Is that reasonable? How long should I expect to pay for daycare for the younger one? And why am I paying in addition to child support?
Answer:
First I must preface my answer that I licensed to practice law in Nebraska and can only give you general information. I would suggest you consult with a domestic litigation attorney licensed in Maryland before taking action.
Some states list daycare expenses separately in the order. However, some states include daycare expenses in the guidelines when figuring child support. Take a close look at the decree in your divorce to see if daycare expenses are addressed. If the decree specifically states you are responsible for a certain percentage of day care expenses, then you are.
If the daycare expenses are not listed separately in the decree, consult an attorney licensed in Maryland to learn of the possible effects of your stopping the payment.
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 ex says that I owe half of the counseling fees for our minor child, but there is no court order for this counselor whom she chose without any input from me. Am I responsible for half?
Answer:
First let me preface my answer by stating that I am not licensed in the state of California and I am unable to give you any specific advice that would relate to the laws and rules of the state of California.
Generally speaking, the answer to your question will depend upon the facts of your case. In some instances the Courts will make you pay for half of the counseling for the minor child and depending upon your case child counseling may be a good thing. However, if there is no specific court order requiring you to pay half of the counseling or for your child to be in counseling you may not be liable for half of the charges. If the Court determines that you should pay half, the Court may also determine that you should only pay half of what an in-network provider would charge since your ex-wife went outside of the plan.
Keep in mind that you never know what a Court will do or what a Court will order, so it may be beneficial to you to weigh what the costs of counseling are versus the costs of hiring an attorney to represent you in Court.
Question:
My husband has a daughter who has one more year of high school left and lives with her mother, the custodial parent. Her mom is moving out of state and allowing my husband's daughter to live with a friend to finish school. She has set up a checking account for her daughter that will have the child support payments deposited into it. Is this right? She's leaving the child so why is he the only one paying?
Answer:
First let me preface my answer by stating that I am not licensed in Indiana, although Cordell & Cordell, P.C. does have attorneys who are licensed in Indiana who would be happy to discuss your case with you.
It is difficult to answer this question without knowing the specific historical facts and what the Court has ordered in this case. Depending upon your state your husband could move to modify child support to reflect the new arrangement. Child support is designed to give the child an equal household at each parent's home. If the mother is leaving the child, then sheshould also be paying child support. It would not be equitable for your husband to bear the complete obligation.
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.
Question:
In my divorce decree my ex wife agreed to refinance the mortgage and the home improvement loan and has until April 1 to do this. What happens if she can't refinance? Will she be in contempt?
Answer:
If you wife does not follow the order, then she will be in contempt of court. However, she may have an affirmative defense. If a party is unable to comply with a court order, then the court cannot hold them in contempt. If she is actively seeking out a loan to refinance the home but is being denied, she may have a defense. I do not know all the facts of your case so I cannot tell you what will happen next. A lot of that will depend on what is in the decree.
Because I do not have your case file in front of me I cannot answer your question specifically, but only give you general information. If you need additional legal advice or representation, you should contact an attorney in your area immediately. Cordell & Cordell, P.C. has many attorneys in Missouri who would be glad to review your case if you so with.
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:
My case is decades old and though my ex is paid, the state of Michigan claims I still owe them $22,000, but 90% of that is surcharge. Is there anything I can do other than keep paying and paying...
Answer:
Yes, you have options!
The Michigan Legislature amended the Support and Parenting Time Enforcement Act, which regulates child support orders, effective Dec. 28, 2009. One of the main purposes for the amendments was to solve a growing problem in Michigan – parents ordered to pay support who lost their jobs just built arrears, and faced penalties and punishment (including jail-time) like “deadbeat-parents,” even though they would pay support if they could. They simply had no money. If this sounds like you, try one or more of these options under the new Act:
- No Interest. Make sure your child support order is not accruing interest. Under the new Act, child support orders do not accrue interest.
- Fee Set Aside. Ask the State and/or the Friend of the Court, which administers child support orders under the SPTEA, to waive the fees the State charges to administer your order. The new Act says the State “may” charge these fees, not “shall” charge these fees. Be prepared with documentation of your finances to show you cannot pay them.
- Waiver/Abatement. File a motion with your Court to request a repayment plan for your arrears and/or a discharge of the amounts you owe the State. Under the new Act, the State will discharge the amounts if all of the following are true:
(a) The arrearage did not arise from conduct by the payer engaged in exclusively for the purpose of avoiding a support obligation.
(b) The payer has no present ability, and will not have an ability in the foreseeable future, to pay the arrearage absent a repayment plan that waives or discharges amounts assessed as surcharge.
(c) The payer's plan is reasonable based on the payer's current ability to pay.
(d) The surcharge accrued or will accrue after the SPTEA was adopted. (As your case is 34 years old, some of your surcharge may remain).
Until you have a new support order, a payment plan or a surcharge waiver, however, keep paying! Any amount you pay is better than no amount at all. The new Act allows the State to forgo a surcharge if you make reasonable efforts to pay your support obligation, i.e. if you do not “willfully” fail to pay.
Most of all, please consult with an attorney. Although I am licensed to practice law in Michigan, I cannot give you legal advice about Michigan law for your case without reviewing your case. Do not rely on this answer as establishing an attorney-client relationship. Cordell & Cordell, P.C. does practice in Michigan.
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.
