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

• My daughter will turn 18 in a few days and will graduate from high school in May. When should I petition the court to discontinue child support?
• Should I require that my ex come back to the state our divorce is in and get a modification to include out-of-state visitations?
• Can my passport be denied if I owe child support?
• What options do I have to increase my chances of obtaining custody of my unborn child?
• Can my spouse file for child support when we are separated but not divorced yet?
• How can I protect my property when I move out during the divorce process?
• Can I as the paying parent withhold some money from child support in order to pay  her half of our child's medical expenses?
• My son is 18 and lives in a home for autistic kids off SSI benefits. Do I have to keep paying child support for him if he doesn't receive any of it for living expenses?

Question: 

My daughter will turn 18 in a few days and will graduate from high school in May. When should I petition the court to discontinue child support?

Should I wait until she graduates?  If I wait until she graduates, will the money deducted from my check be refunded to me from the date of the petition providing their is no outstanding balance? Do I need to enlist the services of a lawyer for this?

Answer:

In Michigan, child support orders should terminate automatically at the time the child reaches age 18 or, if specified in the order, age 19 ½ so long as the child was in high school full time and living with the support recipient. These terms are included in the standard Uniform Child Support Order. If you do not have a Uniform Child Support Order, contact your local Friend of the Court office to confirm that your order will terminate when your child reaches age 18 (or, as mentioned, 19 ½).

Some parties opted out of the Friend of the Court system. If you did, then you cannot call your local Friend of the Court Office. Instead, you will need to read your order carefully to determine the date support terminates. By operation of statute, support should terminate at age 18 (or, as mentioned, age 19 ½).

If your order is at all ambiguous and you fear it will not terminate automatically, file a motion with your court to request a declaratory order stating when the support order terminates. You should have a lawyer’s assistance because you need to file state and local court rules for motion practice, such as when to schedule a hearing, what to say at the hearing, what to include in your written motion, and so forth. However, forms are available through the Michigan State Court Administrative Office if you cannot obtain an attorney. Check online at www.courts.michigan.gov/scao.

Keep in mind that, although I am a Michigan attorney, I cannot give you legal advice without reading your orders and discussing your case with you. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for additional information and legal representation. Cordell & Cordell, P.C. does practice in Michigan, and we would be happy to discuss your case with you. Thank you for submitting your question to Cordell & Cordell, P.C.

Question:  

My original decree did not discuss out-of-state visitations. Since then my ex secretly moved from Oklahoma to Florida to avoid creditors, $10,000 in back child support, etc. Now she wants our daughters to spend the summer with her. I don’t even know where she lives or that she has a job, home, etc. Should I require that she come back to Oklahoma and get a modification to include out-of-state visitations, plus specify travel arrangements? If so, what should I suggest be included? I don’t trust her. 

Answer:

Probably yes. One of you needs to return to your divorce court to request a modification or a clarification for your current order. Otherwise, either or both of you run the risk of punishment for contempt of court for not following the current order. 

If your ex-wife does not want to modify her visitation schedule, only the location, then you should file a motion with your divorce court to request a clarification. A clarification is an opportunity for your court to explain what it intended given the circumstances at the time it entered the order. Did the court intend the schedule to apply even if your children would have to leave the state? Did the court intend the schedule to apply if your ex-wife does not have a home or a job? Is the silence in your current order a sign that the court did not consider these issues, or did consider them and decided the schedule would apply nonetheless? You are obviously unsure, I assume legitimately, so you should ask for clarification to avoid punishment for not following the order.

If your ex-wife does want to modify the visitation schedule (you know she wants the children spending summers with her), then insist that she obtain a modified order. A modification is an opportunity for your court to change its terms given the circumstances as they exist today. You have a right, as a party to the order, to insist that you and your ex-wife follow it. Moreover, your court will only enforce its orders because the court has an independent duty to ensure that any custody and visitation schedule is in the children’s best interests. (If your court decides that the current schedule will apply out of state, you might ask for a modification, too.)

Although you can never ensure your children’s absolute safety during visitation, you can request provisions (which the court may adopt) to help. Consider these:

For transportation: Each party should be responsible for providing and paying for transportation during that party’s parenting time. If necessary and due to reasonable work schedule conflicts or unavoidable and reasonable personal schedule conflicts, the party may select another properly licensed adult known to the child to provide transportation. The party must personally give advance notice to the other party when possible, and the party will have a first right of refusal to provide transportation instead.

For communicating with your children during parenting time: Each party must provide the other party with a phone contact where the children and the party can be reached at all times during parenting time. The parties may not abuse phone contact privileges but may call the children at reasonable times.

For parenting time modifications: The parties should be encouraged to make arrangements to exchange parenting time to allow the children to attend special events and activities with extended family members and to cooperate with each other to allow the children to spend such other time with the other party as the children desire. However, where applicable for purposes of calculating child support, only ordered overnights will be considered.

Keep in mind that I am a Michigan attorney. I cannot give you legal advice about the laws in your state, Missouri. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney who practices in Missouri for additional information and legal representation. Cordell & Cordell, P.C. does have offices in Missouri, and we would be happy to discuss your case with you. Thank you for submitting your question to Cordell & Cordell, P.C.

Question: 

I am from Minnesota but have been living and working in China for several years and am now married to a Chinese woman with a young daughter. When I went to get my daughter’s paperwork and passport at the embassy here in China, they took my passport saying I owe $26,000 in child support arrears to the state of Minnesota. Of course, when I called the child support office they told me I had to make the one-time payment in full. If I have to leave China, my daughter and wife will have no one to support them. Is what they’re doing, denying passports, violating my, or at least my daughter’s rights? Is there any way to fight this court?

Answer:

Yes, by federal law and federal regulation, the United States may deny or revoke passports to applicants who have arrears of child support of more than $5,000, except for a limited passport to return to the United States. See, e.g., 42 USC 652 and 22 CFR 51.70. Payors with at least $5,000 arrears appear on a list in the Passport Name Check System. However, the Secretary of Health and Human Services must certify the arrears. When the arrears are paid or do not exceed $5,000, the Secretary sends a subsequent certification to remove the payor from the list. Usually, hardship exceptions only apply when the applicant’s life or safety is in jeopardy, or a passport denial is against the fundamental public policy of the United States (this is a vague standard); just wanting to be with a loved one in another country and/or to work is usually not enough.

So, what can a support payor who cannot obtain a passport do? Here are some suggestions: 

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. You may even request to have your arrears reduced or discharged. Be sure to request that the court enter an order clearly stating how much in arrears (below $5,000) you owe, and be sure to send that order to the appropriate person at the Secretary for a new certification to remove your name from the Passport Name Check System. 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 have child support review procedures to review orders every three years upon a payor’s or a payee’s request. 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 these reviews Be cautious, however, because incremental differences may not be enough to modify the current order (in Michigan, we need at least 15% deviation), and you could end up paying more support if your ex-spouse’s income has deceased more than yours.

Have a frank settlement discussion. Explain your financial predicament to your ex, sincerely and in depth. Ask for a settlement at an amount you can afford to pay, and explain that any other higher amount will force you into bankruptcy (if true). Support obligations are non-dischargeable in bankruptcy, and your ex 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. 

File a grievance: If your local child support administrator simply has the records wrong, contact the state support administration and ask for grievance forms. These forms allow you to report the local child support administrator for handling your file poorly. You will not receive a financial benefit (e.g. damages for pain and suffering), but you will put the state on notice of the errors in your file.

File a lawsuit: Beware, this option will not work in all states. If you paid support but your ex did not report it, consider a lawsuit or motion against her for fraud, misappropriation of funds, contempt of your child support order, credit against your arrears, or something similar. You will need to speak to an attorney who practices in Minnesota to learn what options are available to you. 

Keep in mind that I am a Michigan attorney. I cannot give you legal advice about the laws in your home state, Minnesota, and your current country, China. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney who practices in your home state and current country for additional information and legal representation. Thank you for submitting your question to Cordell & Cordell, P.C.

Question: 

When my ex-girlfriend and I were together, she got pregnant and told me the child was mine. Now that we’re separated, I have reason to believe the child is not mine. She has agreed to perform a DNA test once the baby is born in order to discover the paternal father. If the child is mine, what can I do to increase my chances of obtaining custody? I own my own home, have a very successful and stable career, and can provide a more stable living atmosphere. She makes very little money and stays at either her parents’ house or her boyfriend’s. Is there anything I can do before the child is born and legal proceedings start?

Answer:

Yes, there are things you can do.

First, I want to commend you for being active in this child’s life from the outset. Not only do you show how great and caring a father you will be, you create reasons for the court to award you custody of this child. The more active and involved the father, the more likely the father will receive custody.

Second, in addition to speak to an attorney in your state for case-specific information, consider the following options:

Register as a putative father: You should register with the Illinois Putative Father Registry immediately. If you do not, you will not receive notice of adoption actions, your girlfriend will not have to obtain your consent to an adoption, the state will presume that you abandoned the child, the state may terminate your parental rights, and you will be barred from declaring yourself the father in a paternity action. You can learn more about this registry at www.putativefather.org. 

Get married: If you are already considering marriage, you should get married before the child’s birth. In Illinois, a child born to a married woman is presumed to be a child of the marriage, i.e. her husband’s child. Although this is a presumption, which may be set aside in certain legal actions, it does limit the options for third parties to contest paternity while you are married.

Acknowledge paternity: To establish paternity with your girlfriend’s cooperation, sign an acknowledgment of paternity form. You and your girlfriend each sign this form. You can obtain it at the hospital and at most county clerk, local department of human services and vital records offices. The state will use this form as a basis to obtain a child support order again you, unless you and your girlfriend are also married by that time. The state will also use the form to add your name to your child’s birth certificate. In Illinois, you have sixty days to rescind the acknowledgment.

File a paternity action: If your girlfriend will contest paternity, file a lawsuit under the Illinois paternity laws. You start by filing a paternity “complaint” or “petition” in the county where the child (or mother) resides. These lawsuits proceed like custody suits in divorce cases, with the addition of a right to request genetic testing and an extra legal issue, who is the child’s father. Otherwise, the same themes in child custody cases, such as which custodial parent is in the child’s best interests, and the final orders are similar. The end result will be, assuming you are found the father, an order for child custody, parenting time and child support.

Note that with any of these options you render yourself liable for child support.

Keep in mind that I am a Michigan attorney. I cannot give you legal advice about the laws in your state, Illinois. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney who practices in Illinois for additional information and legal representation. Cordell & Cordell, P.C. does have offices in Illinois and we would be happy to discuss your case with you. 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: 

I am still legally married but separated for two months. Can my spouse file for child support when we aren’t divorced yet?

Answer:

Yes, she can. Temporary child support and spousal support are options that serve to provide income during the pendency of the divorce. Generally, one party will make a motion for temps, and the temporary order that follows will be in effect until a final order is entered.

I am not licensed to practice law in Texas and cannot give information that is state specific. Cordell & Cordell maintains offices in Texas and I would suggest you contact one of the qualified attorneys in those offices for further information. 

Question: 

I have already filed for divorce from my wife, and now I’m interested in filing for protection papers to protect my property inside the home since she is starting to sell my things. How do I go about protecting my property?

Answer:

As I am not licensed to practice law in Georgia I can provide general information on your questions. Cordell & Cordell maintains offices in Georgia. I would suggest contacting one of our qualified attorneys before taking action.

A temporary restraining order can serve to protect property during the pendency of a divorce. This type of order can prohibit one or both parties from selling, destroying, disposing of, etc., almost any type of personal property, cash, etc.. Though you should know that that these orders can allow a party to sell or use property if it is for the purposes of providing basic living requirements, such as food or rent.

Question: 

My friend is going through a nasty divorce. He hasn’t seen his daughter in over 6 months, and hasn’t even been able to talk to her recently because the mother blocks his calls. He tried filing for contempt against her for doing this but he was told it would take longer than the divorce, which keeps getting continuances even though the mother filed in April 2009. He misses his daughter very much and feels that his hands are tied and his daughter hates him because they haven't had any communication. What can he do?

Answer:

As I am not licensed to practice law in Indiana I can provide general information on your questions. Cordell & Cordell maintains offices in Indiana. I would suggest contacting one of our qualified attorneys before taking action.

Is there an order in place regarding visitation? If there is, then I would immediately file a Motion for Contempt. This would force the mother to show that she had a good reason to keep the child from the father or risk being held in contempt of court. Many times, once a Motion for Contemptis filed and the other party sees that the father is serious about enforcing visitation, the reason for withholding visitation will mysteriously disappear. If not, then it is good for the judge to see how the mother is acting. As for how long it take, that can vary from judge to judge, but it’s better to pursue a course of action that will eventually have a chance for success that sit back and do nothing at all, particularly when there isn’t any way of knowing how long a divorce will take. 

If there is not an order regarding visitation, then your friend needs to enter a motion requesting one. Without an order, there isn’t anything requiring the mother to allow visitation.

 Regardless, your friend needs to document his attempts to see his daughter and also, his attempts to speak with the mother about visitation. Log the dates, times, and what was said. This will serve to refresh his memory if he has to testify or participate in a deposition.

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: 

I've paid child support on time and in full for 10 years in the state of Louisiana. It's on record with the state's office of child support. But my ex wife moved to Texas and filed a false claim there that I have not paid anything.  Now I'm being garnished for back child support that I don't owe. I don't know what I can do to stop this. Any suggestions?

Answer:

In general, if there is a record of payment history, you or your attorney should be able to get a copy of that record from the clerk's office in the county where the divorce and child support payments are registered. That will be the key piece of evidence to show you are not in arrears. I strongly suggest you retain an attorney as interstate issues are extremely complex.

Keep in mind that I am a Missouri attorney and cannot give you detailed advice about the laws in Texas or Louisiana. 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 and legal representation. Cordell & Cordell has attorneys located and licensed in Texas if you wish to meet with them.

Question: 

I represented myself during my divorce, which is now over. But I continue to get harassing e-mails from my ex's lawyer. Can I file a harassment restraining order on the lawyer to no longer contact me since the case is over? Would this need to go back to the divorce judge?

Answer:

I do not know all the facts of your case and therefore cannot give you detailed advice. I would suggest you contact an attorney to find out if your ex's behavior rises to the level of harassment. If he/she is contacting you in regards to an ongoing issue in the case, then you are standing in the shoes of an attorney and it would not be harassment. 

If however the attorney is simply contacting you to tell you are a bad parent, you don't deserve whatever the court awarded you, etc., it may rise to the level of harassment. You should keep track of these emails, so an attorney may advise you on the best course of action. You may also want to file a bar complaint against the attorney.

It would not "need" to go back to the divorce judge, however it is likely that the Judge would want to hear about any inappropriate action by the attorney.

Because I do not know all the facts of your case, 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 and legal representation. Cordell & Cordell has attorneys located and licensed in Missouri if you wish to meet with them.

Question: 

Our decree says any uncovered medical expense is to be split by the parties. If she said she can't or won't pay, can I as the paying parent withhold some money from child support to pay her half of the medical expense?

Answer:

In general, no, you cannot withhold child support money; even if the other parent isn't holding up there end of the bargain. The amount of child support you are to pay is in the court order and you cannot simply change the order on your own.

What you can do is file a motion for contempt or a motion to modify the judgment to regain her half of the child's medical expenses. These are both somewhat tricky in that there are procedural hoops to jump through and specific standards that must be met. 

You should contact an attorney in your area for additional information and legal representation, and you should not rely on this answer as establishing an attorney-client relationship. Cordell & Cordell has attorneys located and licensed in Missouri if you wish to meet with them.

Question: 

I pay child support for two children. One is 18 years old and severely autistic so he lives in a group home receiving SSI for living expenses. I pay child support for him even though he doesn't receive any of it for living expenses. He will go through graduation exercises in May, but will attend school until he is 21. How long do I legally have to pay child support for him?

Answer:

I am not licensed in South Dakota and therefore I cannot answer your specific question.

The age and circumstances of emancipation vary from state to state. For instance, in Missouri a minor is emancipated at the age of 18 or once he/she completes high school, unless the child begins secondary education by the October following graduation. While in school, support would continue until age 21. Also many states provide for additional child support if a child who would normally be emancipated has a physical or mental disability.

You should contact an attorney in your area to find out your state's specific rules for emancipation.

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.