Ask a Divorce Lawyer topics for Jan. 28: New girlfriends and custody battles; over payment of child support; alimony; W-2's and taxes; visitation; adoptions and parental rights

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

• Is it common to be told to end a new relationship when fighting for custody with my ex?
• Do I have to pay alimony if she got pregnant with another man's baby while we were still married?
• Can I recover over payments of child support?
• Can I request W-2’s to prove her salary?
• Is there something I can do to keep her from cutting off all contact?
• Is there any way to force my ex to let my minor son fly on a plane by himself so I can see him more?
• Can my ex's new husband adopt my son if I gave up parental rights?
• I apparently owe 18 years of back child support though I was told the child wasn't mine. What can I do?
• I was ordered to pay child support last year. Can I claim it for 2009 taxes?

Question: I moved out 18 months ago and am now in a committed relationship with a woman. I’m trying to get 50/50 custody of my three children, but was told that I need to end this relationship to have a better chance to get custody of my kids since my soon-to-be-ex is saying I left the marriage for this other woman. 

Is this common practice to be told to end a relationship in custody cases? My girlfriend and I live several hours away, so when she’s here on weekends she stays with me, including times when I have the children. Does this make a difference?

 Answer:

 Each state has different laws governing custody and placement of children.  I do not practice in Missouri so I can only speak to general practice.  However, Cordell & Cordell has many attorneys licensed and located in Missouri who would be happy to help. 

Yes, having your girlfriend spend the night on weekends could make a difference in your custody case.  Although there may not be a law against it, exposing your children to your significant other during a custody battle is typically very difficult on children.  Recognizing this, the Courts are especially intolerant when a parent moves in with a new significant other during the pendency of a divorce.  If the time you have with your children is limited, your girlfriend should not visit while you have your children. 

Although 18 months has passed and you are looking to move on with your life, the Court will be looking at what is best for the children.  I do not know how your Judge will address the existence of the relationship.  Generally, so long as the relationship does not affect your children, there is no requirement that you must end the relationship.  However, your Judge may have a history of “punishing” anyone who has started a new relationship while he or she is still legally married.  Your attorney will be able to tell you how the Courts in your jurisdiction have addressed similar situations and will advise you of the impact your relationship will have on your custody case.

Question: 

I live in California, which is a common-law state, thus spouses may be required to pay alimony to their ex if the ex spouse was not employed during the marriage. Although I am a woman, my ex husband hardly worked and I had to support us both. Seven years later I am seeking a divorce. Now he is threatening to go to a lawyer to get alimony out of me. However, he recently impregnated a woman. I was told that if the spouse gets someone else pregnant while we are still legally married, then I would not be responsible for paying him alimony. Can you confirm that this is correct?

Answer:

First, I must preface that I do not practice in your state.  Therefore, I cannot answer your question applying the laws in California; I can only speak to general practice.  You need to contact a domestic litigation attorney licensed in California before you decide how to proceed.

I think you mean that California is a community property state.  This means that all property is considered marital property with limited exceptions.  Whether your ex will receive 50% of the property and whether he will receive alimony are two different questions.  When determining alimony, most states have a variety of factors the Court must consider before deciding to award 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.  In Wisconsin, the Court cannot award maintenance based on only one factor—so the fact that you were the breadwinner may be a factor for maintenance but there would have to be additional factors which support the decision to award maintenance.  Once the Court determines that a party is entitled to maintenance, the Court then determines how much the person should receive per month and how long he or she should receive it. 

The pregnancy may or may not be a factor the Court considers in the decision to award alimony.  The pregnancy is evidence of adultery.  I do not know whether California has any fault statutes.  Many states have at-fault divorce where this evidence would most certainly be relevant.  Other states consider fault when determining property division and whether or not to grant alimony.  You must contact a domestic litigation attorney licensed in California to determine whether or not the affair would be relevant in your divorce.

Question: 

I have two daughters. My oldest daughter has reached the age of majority in Alabama, but it will be three months after before I get in court on a petition to modify. Will I recover the over payments during that time?

Answer:

Each state has different laws governing child support.  Since I do not practice in Alabama, I cannot tell you whether there is a statute which allows the Court to backdate the support to the date you filed the motion.  Therefore, you should contact an attorney licensed in Alabama.

Many states backdate support modifications to the date that the party filed the motion.  This assumes however that your motion prevails.  It is important that you refer back to your divorce decree or paternity judgment and re-read the child support section to see if there are any provisions which would extend your payment of support beyond age18.  In most states, the obligations to financially support a child continues until the child reaches 18 years of age or 19, so long as the child is pursuing a high school diploma.  Therefore, you may still be obligated to pay for the support of your eldest daughter if she is still in high school.  Even if there is not a provision in your support order, there may be a statute which requires you to pay support until she graduates high school as well.  You should contact a domestic litigation attorney licensed in Alabama to discuss when your obligation to support terminates.

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.

Question: 

We recently had a child support modification. The new amount was set at $1,061. I was determined to owe arrears of $1,600 for which they added an additional payment of $100 a month. The wage assignment was for $1,161 and did not include instructions to change to $1,061 once the arrears was paid up. We are now overpaying. How do we get this changed and how do we recoup overpayment?

Answer: 

Family law is state specific. I am not licensed to practice law in California and can only give you general information. Before you take any action you should contact a domestic litigation attorney licensed in California.

You can ask the court to issue a new wage assignment with the proper amount. Courts don't usually require custodial parents to re-pay overpayment of child support, it is more likely you will get a credit for the over payment on a future payment.

California has an extensive on-line system that has a lot of information available to parents, and offers advice and options which you can do yourself. Take some time to look at the California Department of Child Support Services Web site.

Question: 

If my ex has told me, though I have no other proof or evidence, that she is paid by another employer, can I request those W-2’s to prove her salary? Also, I have a strong indication that she is being paid under the table. How can I prove that? Can I have the judge get involved in that, if we have a child support hearing?

Answer: 

Family law is state specific. I am not licensed to practice law in Oregon and can only give you general information. Please contact a domestic litigation attorney licensed in Oregon before taking action.

You are allowed to petition the court for a modification of child support when you believe your payments would change by a certain amount, usually 20% or $50. Courts will sometime require parents to provide 2 years tax returns and W-2's as a matter of course. If you believe that she is getting paid under the table then further steps will be required. This might include subpoenaing her personal financial records, or that of the party you believe to be paying her. It could also include depositions where she would be questioned under oath before the hearing.

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 owe a lot of back child support for something me and the mother had agreed on, but no she decides to file a complaint saying I owe. I have not heard anything from her since I have been paying again since I cannot get a hold of her. 

Is there something I can do to keep her from cutting off all contact?

Answer:

Your child support duty and your right to visitation or contact with your children are separate issues and, in Michigan, paying support does not entitle you to visitation or contact. Your order will specify what rights you have. Look for the terms “physical custody” and “parenting time” (for physical time with your children) and “legal custody” (for the right to make important life decisions, such as where the children go to school and whether they have surgery). If your order is silent or you merely have a support order, then you will need to file a custody complaint under the Child Custody Act of 1970, MCL 722.21 et seq., to obtain those rights.

For example, in Michigan, it is very common for paternity cases, where the parents are unmarried, to end in a “consent judgment”– this is misleading because it merely orders support, not visitation. To obtain visitation, the parents need to file a separate action.

There is a new law in Michigan, effective December 28, 2009, that allows courts to order parents to attend parenting classes or permit makeup parenting time when they violate a support order, but so far the law only applies to payors (you), not payees (your children’s mother). 

So, what can a support payor like you do? Here are some suggestions:

File an Action for Custody or Parenting Time: As explained above, a support order does not entitle you to physical time with your children. You will need a separate order for custody and/or parenting time. Forms are available online at www.courts.michigan.gov, but custody actions are complex and fact-intensive, and the procedures are confusing because the Circuit Court and the Friend of the Court both participate, so you should have an attorney’s assistance.

Motion to Reduce Child Support: If you cannot pay the current amount, consider filing a motion to reduce it. Be on the offense, not the defense. 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.

Three Year Support Review: The 1996 PRWORA requires states receiving federal assistance to review child support orders every three years. In Michigan, 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 you submit your letter. Be cautious, however, because incremental differences may not be enough to modify the current order.

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.

Motion for Contempt. If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later.

Keep in mind that I cannot give you detailed advice about your case without a thorough meeting with you. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney immediately for additional information and legal representation. Thank you for submitting a question to Cordell & Cordell, P.C.

Question: 

My son lives with his mom in Houston and I live in Memphis. He is 11 years old and weekend visits with him are extremely difficult to make happen because his mom will not allow him to fly on his own. I have been driving down to see him regularly, but this affects my job as I have to take off work, etc. 

Is there any way to force his mom to let him fly on his own? I am also very interested in getting custody of my son because I am extremely unhappy with some of the parenting decisions being made. Is it even possible for me to fight for custody particularly since I am the father? 

Answer:

If you thought the answer to your question is YES, you are right. It is possible for you to obtain custody of your son even though you are the father, and the same is true for most fathers. The maternal preference is antiquated and by statute or court opinion forbidden in all States. We do see fathers having to struggle more in court to obtain custody because the preference lingers, unstated, but the struggle is worth it if the reward is your son. You should find an attorney you trust, and you must be willing to invest time, energy and emotions, with a realistic expectation of the outcome, as you pursue your case.

As for your current traveling problems, you must bring this issue to the court’s attention if you want to enforce your ordered rights. Your court will not enforce its order unless a party brings to the court’s attention something that needs enforcing – there are simply too many orders, and too many things that happen beyond the purview of the bench, for the court to do otherwise. How you bring this issue to the court’s attention, however, will depend on the severity of the situation – was it willful? does your current order require your ex to allow your son to travel? is this a one-time occurrence? Consider these options:

Informal Court Enforcement: Research the resources in your area for parenting time and custody enforcement. Many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators, exist. In Michigan, for example, parents who have missed visitation with their children may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days. You should consult with a lawyer to learn about the resources available to you.

Contempt: If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later. The procedures for these motions vary by jurisdiction.

Motion to Modify: If your ex purposely denies your time, if your son is willing and mature enough to travel alone, or if you suspect something about your current order just does not “work” and a change would be better, consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and  thorough preparation. The long-term benefits could be worth the effort, however, if you are legitimately unsatisfied. You must have a lawyer’s assistance for this motion. Do not pinch pennies here. You need a realistic viewpoint if you are going to invest money, time and emotions for a motion.

Document. Be sure to document when you will exercise parenting time and what happens if parenting time goes awry. Confirm the dates you intend to exercise parenting time in writing. Keep a journal to document your concerns – Was your ex-late for pick up or drop off? Did she give a good reason for denying travel? Did you try to make alternate arrangements for travel or parenting time? How did the exchange go? This is somewhat therapeutic, and it will also refresh your memory when discussing your case with a lawyer and if you need to testify in the future. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.

Keep in mind that I am a Michigan attorney and cannot give you detailed 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 immediately for additional information and legal representation. Cordell & Cordell, P.C. does have offices in your state, Tennessee, and your son’s state, Texas, and we would be happy to discuss your case with you. Thank you for submitting your question.

Question: 

My son was divorced in Kansas. He did not have an attorney at the time, and one of the papers he signed was for giving up his parental rights to his son. 

Does that mean his ex wife can how have someone else adopt his son without asking for my son’s permission? That’s what she’s telling him.

Answer:

Possibly.

If the paper your son signed was a voluntary release of his parental rights that the court then accepted and entered as an order terminating parental rights, then, yes, in most states he cannot prevent the adoption. Parental rights are the right to care, custody, inheritance, and so forth, between parent and child. These are constitutional rights. A release and order terminating parental rights severs the legal bond between the parent and child; the parent no longer has the right to care, custody or inheritance from the child. (Note, however, that in some states, like Michigan, the parent may still owe support to the state for the child for services rendered before the adoption.)

If the paper your son signed was merely a release of his custodial rights, then he can still prevent the adoption. Custodial rights are the rights to parenting time and decision making for the child. A release and order terminating custodial rights dos not sever the legal bond between parent and child. To permit the adoption, the court must still sever that bond.

Your son should read his paper carefully to determine which he signed. He should also obtain a copy of the order to determine the court ordered the particular release he signed. These papers can be full of legal jargon, so be sure to take them to an attorney for a thorough review. His opportunity to challenge the papers is limited, in most states, to showing that the release was involuntary. He may have as few as seven days from the date of the order for the release to challenge it. Therefore, act quickly.

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

I just received a notice that I owe back child support for 18 years!?! I have always been told the child was not mine and out of the blue, she is demanding back child support. What can I do?

Answer:

The question of retroactive child support is state specific and I must preface my answer by stating that I am not licensed in the state of Ohio. An attorney in your jurisdiction will be able to answer your question more specifically.

If you have doubts about the child being yours, as 18 years of being told the child is not yours might bring about, I would advise you to get a paternity test. This can be done consensually or through a court order.

Further, some courts are limited in their ability to apply child support retroactively. Some courts can only order child support retroactively to the date that a motion was filed to establish child support. This means that a court in these jurisdictions cannot order child support to be paid all the way back to the date of the child's birth.

Again, I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation.

Question: 

I will have been separated for 18 months by the time of my final hearing for divorce in the state of Indiana. I have paid over $130,000 in bills and expenses for my ex to be (not incl. my own bills). Will the judge included this as support already paid and lessen her "equitable distribution"? 

Answer:

I must preface my answer by stating that I am not licensed in the state of Indiana and an attorney in your jurisdiction will be able to answer your question more specifically.

In general any money spent during the marriage is considered marital debt.  It is unlikely that a judge will consider this in lessening any distribution of your remaining assets; however it should be considered in whether or not any support or maintenance you owe will be retroactive to the time of filing. Depending on what the money was used for, i.e. house payments, car payments, etc., your attorney may be able to argue additional equity in the property; however, paying things like credit card bills will not gain you such equity in property.

Again, I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area if you need additional information or legal representation, as most parties in divorces do. Cordell & Cordell does have offices and licensed attorneys in Indianapolis that would be happy to consult with you should you 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: 

I have a two-year-old daughter with my ex (we were never married, lived together for four years). We never had any custody papers or similar documents filed. She is a non-active reserve, who lives with our daughter in Pennsylvania, and now needs to have papers in place. 

The only thing I want in the agreement is an extended visitation with me in Virginia for one month over the summer and alternating holidays. But my ex is refusing this because she says my daughter doesn't know me very well. I don't get to see her very often, but she does know me as her father. 

What are my rights in this situation?

Answer:

First let me preface my answer by stating that I am not licensed to practice law in Virgina and since any question pertaining to issues surrounding children are fact and state specific, it would be wise to seek the opinion of an attorney licensed in Virginia.

Each state differs with regards to the rights to a child, specifically, a child that was born out of wedlock. In some states you would have no rights as it pertained to your daughter until you established paternity. Once paternity is established then you would have the rights that any parent would have to thier child. Other states would presume that you were the father of the child and thus you have parental rights because you held yourself out to be the father and served in the paternal role.

Once it is determined that you do have paternal rights to the child, then a Court will most likely decide a parenting schedule based on the best inerests of the child. Depending upon the state, there are many factors that a court may consider, when determining the best interests of the child. It is possible that a Court could look at your relationship with your daughter and her familiarity with you. You will need to consult an attorney in Virgina to determine what factors a Court would use in your case and how the facts in your case would be used in determining a parenting schedule.

Question: 

My spouse and I have agreed to a court-ordered agreement, but she won't sign it. If she fails to sign the decree, what can be done to override the unfinished document? Also, can I claim the money that was paid for divorce? I was ordered to pay child support starting October 2009. Can I claim it for 2009 taxes?

Answer: 

First let me preface my answer by stating that I do not practice law in Texas, although Cordell & Cordell, P.C. does have licensed attorneys in Texas that would be happy to discuss your case with you. In most states an agreement is not an agreement until both parties have actually signed the agreement. Unfortunately for you and agreement appeared to be reached only to have your spouse balk at signing the finished agreement. Having a Court enforce or enter an agreement that is not signed by one party is always tricky situation.

Generally, Courts are not in the business of making people settle or making people sign agreements. That is to say that it can't be done, in some jurisdictions, if the Court finds that there was a meeting of the minds and that an actual agreement was formed then a Court may enforce the agreement, regardless if both parties signed the agreement. However, that is not always the case and an attorney in your jurisdiction can give more specific advise on enforcing the agreement.

With regards to your child support questions, you will need to discuss that issue with a tax specialist. It is my understanding of the tax code that child support is neither deductible to the payor or income to the payee. So, I am unsure what you are trying to claim for your taxes.

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.

Comments (2)

co habitation
written by john nichols, September 29, 2010

I am divorced and starded dating. my girlfriend has spent the night on a few occasions while my kids are here. she sleeps on the couch. me ex wanted to add a co habitation clause in a motion. what if i had a live in nanny or a female roomate? where does that fit in?

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Live-in guests
written by mallen, September 30, 2010

Usually, in cases that I practice, co-habitation clauses affect a parties’ ability to receive maintenance or alimony.If the purpose of the co-habitation clause is to control who can live in your house, then there may be an issue and it looks like you have already started thinking about what those issues can be.

This is always dangerous territory because your ex-spouse wants to have a say in what you can do when you have your children. It is always hard to parent when you face restrictions. I would recommend that you speak to an attorney in your jurisdiction to help prevent such restrictions being placed upon you.

Jason Bowman is an attorney in the Louisville, Kentucky, office of Cordell & Cordell. 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.

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