Ask a Divorce Lawyer topics for Jan. 27: Rights to child; Bank accounts; Alimony; Emergency custody; Retirement money; Taxes; Birth certificates; Annulment; Child support
|Wednesday, 27 January 2010 16:15|
Among the Ask a Divorce Lawyer questions answered today:
My ex and I filed for divorce in Arkansas and we have a child. Our decree states that I have my daughter every Wednesday, every other weekend and half of all school holiday breaks. Since the divorce, she and I have both moved to different states so I don’t get to see my daughter now. How do I fix the issue of not being able to see my child?
Each state has different laws governing custody and placement of children. I can only speak to general practice since I do not practice in Arkansas nor do I know which state your ex moved to and how long she has lived there. Although there are many follow-up questions that have to be answered to decide your next steps, there are a couple of issues I can point out that you need to discuss with an attorney right away. You need to contact an attorney licensed in the state that has jurisdiction of your case immediately.
Most states have statutes that require a parent to file a notice of intent to move with the Court if he or she plans to move a child out of state. I do not know if Arkansas has a notice statute. If there is a statute, I also do not know whether she complied with the statute. Therefore, it is important to contact an attorney right away to discuss your situation and any options you may have with respect to her move. Generally, the longer you wait after the move to do anything, the fewer options you may have.
You need to know which state has jurisdiction in your case in order to proceed with enforcement or modification of the placement order. Jurisdiction refers to the power a court has to hear your case. Arkansas had jurisdiction of your case originally. However, a state may lose jurisdiction depending on the length of time your child has been in a different state and the laws of each of the states. There is a federal law which provides full faith and credit for custody and placement orders. Full faith and credit requires one state to recognize and enforce the orders from another state. Therefore, depending on the length of time that your ex has been in the new state, you may have to register the custody and placement orders in the new state to seek enforcement. Each state has different statutes which detail the procedure for enforcing an out-of-state placement order.
If you file a motion for enforcement, the most recent placement order is the schedule that you would be seeking to enforce. More information is needed to determine which state you should be filing any motion to enforce the placement order. You also have to consider the practicality of enforcing the order. If you both live in different states, a mid-week transition would be impractical and not in your daughter’s best interest. Because you both are no longer in Arkansas, this may qualify as a substantial change in circumstances warranting a modification of custody and placement which would result in a new order controlling custody and placement of your daughter. You and your attorney will be able to discuss what options you may have for modification and in which state you should file the motion.
You should consult an attorney immediately as there are many follow-up questions that need to be answered before deciding your next step.
My wife has a secret bank account that I found that she won't show me the history on. Is there a way to see it if it is in her name only or any way for me to access it as her legal husband?
Each state has different laws governing marital property. Since I do not practice in your state, you should contact an attorney licensed in Arizona to discuss your options for obtaining the bank statements.
Have you filed for divorce or legal separation? As a part of the divorce process, each party is required to disclose to the other all of his or her assets, debts, and liabilities. Generally, all that is required is the balance in the account and how the account is titled. However, you would definitely want to know more than just the balance of the account. Although the account is in her name, the funds she used to create the account may have been marital funds (dependent on the property laws of Arizona). Even if she is not required to automatically provide you with the bank statements, you may be able to use your state’s discovery statutes to demand the production of the statements. You should discuss your concerns with an attorney to discuss your options for obtaining the statements applying the discovery laws of Arizona.
If you have not filed for divorce and simply want to know whether you have a right to access her bank statements as her legal husband, you would need to contact the bank directly to find out if they have any policies and procedures available to you to obtain bank statements. However, I do not know if Arizona has any laws requiring the bank to provide you with the statements. An attorney licensed in your state will be able to answer that question for you.
Question: Where do I obtain the paperwork for a settlement agreement? State or county? Also, my wife is a full-time student now. Will she get alimony from me if we divorce since she isn’t currently employed, but is going to school full time as her choice?
First, I must preface that I do not practice in your state. Each state has different laws governing divorce and each state has different resources available to pro se litigants.
Your question leads me to believe that you are attempting to proceed with your divorce pro se; without an attorney. It is not advisable to proceed with a divorce without the assistance of a domestic litigation attorney. If the reason you did not hire an attorney is that you believe you and your wife can come to an agreement, I still encourage you to hire an attorney. Even if you have complete agreement on all issues, you should still have legal representation to ensure that the agreement is drafted in accordance with state laws and adequately represents your understanding of the agreement. Agreements drafted by parties as opposed to attorneys tend to cause legal problems later when one person attempts to enforce the agreement. This causes a lot of headaches and often much more in legal fees than the costs would have been if the parties hired attorneys in the first place. You should certainly contact a domestic litigation attorney in your jurisdiction prior to filing for divorce. Many states have very detailed statutes which explain how a person must go about filing for divorce and even the format that is required for the documents submitted to the court. If you represent yourself, you are held to the same standards as an attorney who specializes in domestic litigation.
In response to the alimony question, generally there are designated factors that the Court has to consider in determining whether or not to order a party to pay alimony. For example, in Wisconsin, the Court considers the following when determining maintenance (our version of alimony): the length of the marriage, the age and health of the parties, the division of property, the education level of each party at the time of the marriage and at the time the action is commenced, the earning capacity of the parties, the feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the time needed to achieve this goal, the tax consequences to the parties, pre-marital and post-marital agreements, the contribution of one party to the education, training or increased earning power of the other and any other facts as the court may determine to be relevant. Once the Court determines that a party is entitled to alimony, the Court then determines how much the person should receive per month and how long he or she should receive it.
You need to contact an attorney licensed in Colorado to discuss the background of your marriage and the factors the Court will consider based on the laws in your state. Cordell & Cordell has many attorneys licensed and located in Colorado who would be happy to assist you.
My ex-wife has custody of my two teenage daughters. My eldest is very depressed and the school counselor wants her to be admitted to a crisis center. My daughter says it's because she has the responsibilities of an adult when she's with her mother: has to cook, clean, babysit, help with homework, etc. What can I do to get emergency custody?
Each state has different laws governing custody and placement of children. You need to contact a domestic litigation attorney licensed in Indiana immediately. Although I do not practice in your state, Cordell & Cordell has many attorneys licensed and located in Indiana who would be happy to help.
First, you state that you have visitation rights from the divorce. Is there a placement schedule that is supposed to be followed? If so, and your ex is refusing you your court ordered placement time, you may be able to file a motion to enforce the order or ask the Court to find your ex in contempt of court. Contempt of court is a punishment for parties who intentionally violate a Court Order. Punishments can include fines and even jail time.
It seems that you need more than just an enforcement of the Court Order; you need a modification of the custody and placement arrangements all together. Most states have statutes which detail when a party can request a modification of custody and placement. The statutes have requirements which must be met in order for the Court to even consider a modification. The party requesting modification typically has to show that there has been a substantial change in circumstances warranting a modification. There may also be a time lapse requirement. For example, in my jurisdiction, Wisconsin, there is a two year “truce” period that follows the original placement order where the parties cannot obtain a modification unless the party can prove the modification is necessary because the current custodial arrangements are physically or emotionally harmful to the best interest of the child.
Given the severity of your daughter’s depression and the effect her current custodial conditions are having on her condition, you need to contact an attorney right away to discuss the requirements for modification in Missouri and whether emergency orders are available in your state given the circumstances.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.
I’ve heard in the state of Missouri that my wife cannot have access to my retirement unless I default on child support. Legally, is she able to take the funds in my 457 account as a means of providing her with her own retirement money since she did not work full time? Is she eligible for all of it or only some of it?
I must inform you that I am not licensed to practice in Missouri. However, Cordell & Cordell has many attorneys licensed and located in Missouri who would be happy to help you. Because each state has different laws governing dissolution of marriage, it is important that you contact a domestic litigation attorney licensed in Missouri prior to taking any action.
Missouri statutes divide property into marital and non-marital. Marital property is property that has been acquired by the parties once married. Non-marital property is property acquired by a party before the marriage or by gift or inheritance. As for your retirement fund a lot of the division will depend on when you started contributing to the retirement and how many years you contributed to it while married, if any. Any contributions made while you were married will be considered marital property by a court. If it is considered marital property, then your wife will be entitled to a portion of the fund. If you began contributing to it before marriage, you should go back if possible and try to determine the value of the fund at the time of your marriage. You could make an argument that this amount is non-marital property and entirely yours to keep. If you cannot make a determination of its value before marriage, then a court may determine that the retirement funds have been co-mingled thus making all of the retirement funds marital property.
Of course, if you began contributing to the funds once you were married and have continued to contribute throughout the marriage, then the funds will be marital property. In a divorce proceeding division of property can be done one of two ways. First, the parties can agree on how to divide property. Second, if you cannot agree then a judge will divide the property for you based on several factors including but not limited to length of marriage, ability to support oneself, contributions to the marital estate, conduct of the parties, and value of non-marital property awarded to each party.
If I am claiming my 12-year-old son and my ex wife is claiming my 19-year-old daughter, can I also claim half of her college expenses for which I paid? The two children live with me and I receive child support for both of them.
I must inform you that I am not licensed to practice in New York. Because each state has different laws governing child support and its relationship with taxes, it is important that you contact a domestic litigation attorney, tax attorney, or accountant licensed in New York prior to taking any action.
Each state has its own child support laws and tax code. The Child Support Rules and Regulations may offer some guidance on your question, but the best place to seek an answer would be the tax code of New York. A tax attorney or accountant would be a great resource for answering any questions about deductions for your daughter’s college tuition. Many states do allow for deductions at certain institutions within the state. A person’s income that is claiming a deduction is often a factor as well. However, the tax code of New York would offer definitive answers to your situation.
Steven “Lee” Akins, Jr. is a Staff Attorney in the Memphis, Tennessee office of Cordell & Cordell, P.C. Mr. Akins practices exclusively in the area of domestic relations. He received his BBA in Finance from Southern Methodist University and continued his education to receive his Juris Doctor from Texas Wesleyan University.
I have a friend that has been caring for his 6-month-old son since birth. My friend's name is not on the birth certificate, but he does have a DNA test showing he is the dad. In a few days he plans to serve his wife with custody papers.
What would the right steps be for him to get custody, and minimize the risk of the mom showing up and taking the boy? What rights does my friend have if his name is not on the birth certificate?
First, I must preface my answer I am not licensed to practice law in Missouri and can only give general answers. Cordell and Cordell maintains offices in Missouri and your friend should consult one of our qualified attorneys before taking action.
Your friend needs to file a complaint to establish paternity, custody and possibly child support. Along with this complaint, he should also file a motion asking for temporary custody and child support. Without a temporary order, which will state who has custody until the final order is entered, he is in a precarious position. Even though his name isn't on the birth certificate, he maintains the right to petition the court for paternity, custody and child support. It will be valuable to your friend to be able to show that he has held himself out as the child's father.
Can a divorce be nullified? My ex and I have been divorced for more than 2 years. We now intend to marry each other again. Is it possible for the divorce to be nullified instead? We live in Pennsylvania.
Nullity or annulment, is a term used to describe the process of erasing a marriage so that legally it is as if it never happened. I am not aware if that process applies to divorces.
Once a divorce decree is entered, there is usually a time period before it becomes final, usually 30 days to 6 months. During this interlocutory period it's possible a Motion to Vacate could be filed. After that time is up, it's doubtful you'll be able to vacate the decree.
I am not licensed to practice law in Pennsylvania or Alabama and the preceding statements are general in nature. You should contact a domestic litigation attorney in your state to get specific information prior to taking action.
My wife and I are getting a divorce. We have one son about to go to college. She wants me to pay maintenance at $500 per month for five years. We're not fighting over anything except maintenance payments. Since I have a seasonal job and our son is about to enter college, should I have to pay that amount?
I am not licensed to practice law in Missouri and as such, can only give you a general answer. Cordell & Cordell maintains offices in Missouri and I would suggest you consult with one of our qualified attorneys before taking any action.
The guidelines whether a spouse will owe the other maintenance vary from state to state. Some factors can include the duration of the marriage, the situation of each party, the contribution of each party to the marriage, and the ability of the custodial parent to maintain gainful employment without interfering with the interests of the minor children.
To answer your question, no one can tell you how much a divorce will cost, there are many scenarios and your attorney will not have control of many factors, such as the actions your spouse takes. Yes, its possible for your divorce to be quick and cheap, the chances of that happening depend a great deal on how much the two of you can agree upon between yourselves.
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.
I am the custodial parent to our two minor children. My ex and I reached an out-of-court agreement that she would give me back my child support that is automatically paid to her from my income. Our divorce papers state we both can claim one child for tax purposes. Now that the living arrangements have drastically changed (from 50/50 to about 75/25 in favor of me), can I now claim both children for tax purposes, especially since I'm not asking her for any support?
At the outset, you should ask your divorce court to modify your custody, parenting time and child support order. The modification order can include a provision specifying who claims the children for tax purposes, when and under what circumstances, so long as the order does not contravene the Internal Revenue Code. You are in a precarious position if you do not because informal agreements between parents are just that – informal and difficult, if not impossible, to enforce in court. Courts have an independent duty to ensure that the current order is in each child’s best interests. Depending on the procedures in your local courts and the temperament of your particular judge, this could range from merely placing a judicial stamp of approval on a written agreement between parents styled as a “amendment number X to divorce decree” to an evidentiary hearing during which one or both parents give testimony to explain why the agreement is in each child’s best interests.
If your current order specifies who claims you children for tax purposes, then you should request the modification before you file your tax return this year. Some courts have expedited or uncontested motion periods during which you can request the modification and have an order entered quickly, within days. Please contact an attorney in your area for additional information and assistance.
If your current order is silent, then you should follow the dependency rules in the Internal Revenue Code. You can find a helpful analysis from the IRS called “Publication 504” at http://www.irs.gov/publications/index.html. In general, unless the custodial parent releases the dependency exemption according to the IRC, the custodial parent claims the exemption. The custodial parent for tax purposes is the parent with whom the child lives more than half of his or her time during the year. Exceptions apply for dependents who are disabled and have income from sheltered workshops and kidnapped children. Beginning in 2009, the non-custodial parent must use IRS Form 8332 to claim the exemption.
You should consult a tax attorney and an attorney in your area for additional information and assistance. Keep in mind that I am a Michigan attorney and cannot give you detailed information about the laws in your state, Illinois. You should not rely on this answer as establishing an attorney-client relationship. Cordell & Cordell, P.C. does have offices in Illinois, and we will be happy to discuss your question further with you. Thank you for submitting a question to us.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, be advised that any federal tax advice contained in this article was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Always consult a specialist for thorough tax advice.
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.