Ask a Divorce Lawyer topics for Feb. 10: Child support and unemployment; paternity and child support; maintenance costs and length of marriage; divorce and foreign citizens; military custody battles; mediation agreements

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

• I'm currently unemployed but will start a job soon. Is my child support determined by my current unemployed status or by my pending future salary?
• My ex came after me for child support for a child that is 14 years old and I’m not sure is mine. What can I do?
• Is it true that it is against the law to make a provision for the support of children over the age of 18?
• My ex wife filed a motion for order permitting travel to Brazil with the kids. I'm afraid she won't return. What can I do to stop her?
• How is maintenance calculated?
• The judge granted our request to dismiss our uncontested parenting divorce. Does this mean the mediation agreement is null and void as well?

Question:

I am currently unemployed and want to know how quickly I should file a child support modification request? I do have a job that begins in about 6 weeks, but I will be making half of what I used to make. Do I file for a modification before I start my new job or after? And will the pending job affect the amount of support or is the support determined by my current unemployed status?

Answer:

Each state has different laws governing child support.  I do not practice in your state so I can only speak to general practice.  You should contact a domestic litigation attorney licensed in Georgia as the answer to your question may be different than what I reference below.  Cordell & Cordell has many attorneys licensed and located in Georgia who would be happy to assist you.

There are many factors that you should consider when determining when to file.  First, you need to know what the Courts in your jurisdiction use for determination of income.  Courts vary from state to state and even county to county when it comes to determination of income.  For example, some Courts will average your earnings over the past few years, some will average your last two months of paystubs, others will use the income declared on your most recent tax return.  You need to contact an attorney in your area to find out how the Courts in your jurisdiction tend to determine support.  The answer to this question may control your decision of when to file as you may need to wait a certain period of time before filing.

Another factor to consider is whether the Court backdates to the date of filing.  Many jurisdictions will backdate the support amount to the date you filed the motion.  Sometimes it can take weeks and even months to get before the Court on a modification due to the number of cases the Court has to process.  In the meantime, you are responsible for paying the existing support obligation.  However, if the Court modifies the support, you may be entitled to a credit for payments you made beyond this amount since the date of filing.  Not all counties backdate, therefore, you should discuss this with your attorney.

You asked whether the support modification will be based on the unemployment income or the income you will receive fr om the new job.  The answer to that question will be dependent on your earnings when the case is actually heard by the Court.  However, you should discuss this issue with your attorney as the opposing party could seek a modification if your earnings substantially change shortly after the Court modifies support.  For example, if the Court orders support based on the unemployment income (which would likely only be the case if the Court was unaware of your pending employment opportunity), and you start your new job earning more than you did on unemployment, your ex could motion the Court to modify based on the new amount.  In addition to the time you will spend with the Court, you each may incur substantial legal fees going to court for two modifications.  As such, you and your attorney may discuss proposing a support amount to the opposing party which reflects the amount you anticipate you will receive with your new employment.  You may even be able to negotiate an additional credit to compensate for the time you are earning less on unemployment.  Because the decision of when to file a motion for modification and the strategy for negotiating a settlement or litigation for the modification will be determined by the practices in your county, it is important that you consult an attorney before proceeding.

Question:

My ex came after me for child support for a child that is 14 years old and I’m not sure is mine. Still, I was ordered to pay support based on “imputed” income. I do not know this child and only work part time as an actor. Is there anything I can do?

Answer:

Each state has different laws governing paternity and child support.  I do not practice in your state so I can only speak to general practice.  You need to contact a domestic litigation attorney licensed in California as the answer to your question may differ than what I reference below.

I am going to break your question into two separate issues.  The first is your paternity concerns.  The second is imputing income for child support.

Paternity

In many jurisdictions, once a man has been found to be the father of a child, he is responsible for the support of the child even if he believes he is not the father.

Did you sign a Voluntary Acknowledgment of Paternity when the child was born?  In most jurisdictions, genetic testing is not required to establish paternity.  Voluntary Acknowledgment of Paternity (VAP) forms are available for fathers to sign at the hospital at the time of the child’s birth.  The VAP includes a waiver of the right to paternity (DNA) testing.  By signing the VAP, the man is declaring to all, including child support enforcement, that he is the father of the child.  If the VAP is not rescinded within 60 days, the VAP is a binding determination of paternity.  Thereafter, the acknowledgment may only be challenged in court on the basis of fraud, duress, or material mistake of fact.

However, you can be found to be the father of a child even if you did not sign a VAP.  In some states, paternity can be established by default if the alleged father does not respond to the action which may have been mailed to an address he has not lived at in years.  In this situation, the mom stated in court that he was the father and because he was not there to deny it, the default paternity was ordered.  Each state has different guidelines for contesting paternity in default paternity actions.

If you believe you are not the father of the child and the deadline for contesting paternity has passed, there may still be hope.  The court may vacate a paternity determination if you prove fraud, duress, or material mistake of fact.  The difficulty in proving fraud, duress, or material mistake of fact to vacate the acknowledgment is that the laws and court rulings of each state vary.  You need to discuss your basis for the belief that you are not the father with an attorney to see if you have a case for paternity fraud or some other basis for contesting the paternity determination.  A genetic test would confirm whether you are the father.  However, some states prohibit genetic testing once a man has been legally determined to be the father.  Some states do allow a genetic test and may extinguish a support order upon the discovery that the child is not your biological child.  More so in instances where the biological father has been identified for support purposes.

In addition to proving that the child is not yours and that the mother committed fraud when naming you as a father, it is important that you also identify and locate the biological father.   The courts are concerned for the financial support of the child; providing the alternative means of support combats the best interest of the child argument.  The decisions in paternity fraud cases vary greatly from state to state.  Even if you do not believe you have a case for fraud, if you believe you are not the father, you should contact a domestic litigation attorney licensed in your jurisdiction immediately.

Imputing Income

Each parent has a duty to maximize earnings to support his or her child.  If a Court finds that a parent is voluntarily under-employed, the Court may impute income to that party to his or her earning capacity.  You should contact an attorney to discuss your situation and the reason you are working part-time to see if there is anything you can do to lower your support.

Question:

My ex wife comes from a very, very wealthy family. All four children have sizeable net worths. During our marriage, some of those funds were to be used for college. During the 11th hour of negotiations, I agreed to leave those funds alone and pay for their college education. I've heard it is against the law to make a provision for the support of children over the age of 18. Can you tell me if this is true in Wisconsin?

Answer:

No, it is not against the law in Wisconsin to include a provision for the support of children over the age of 18.  Parties are free to enter into a marital settlement agreement which may include provisions requiring one or both of the parties to continue to pay for the support of their children after a child graduates high school.  Although neither of you would be obligated to pay for your kids’ college education without the Order, you two decided to incorporate the provision into your divorce settlement which makes payment for college education a Court Order.  If you intentionally violate a Court Order, you could face a finding of contempt of court which could include a fine and/or jail time.

Depending on the language used in your marital settlement agreement, you may be able to obtain a modification to your divorce decree if your financial circumstances have changed since the date of divorce.

You need to contact a domestic litigation attorney licensed in Wisconsin immediately.  Be sure to bring a copy of your marital settlement agreement with you to your initial consultation.  Cordell & Cordell has an office in Milwaukee with attorneys who would be happy to assist you.

Question:

My ex wife filed a motion for order permitting travel to Brazil with the kids. I am afraid that she will not return to the U.S. again. What can I do to stop her?

Answer:

In an attempt to prevent child abductions by one parent, when children are traveling with only one parent, border officials are often requiring a notarized statement from the other parent authorizing the travel or a signed Order from the Court which authorizes the travel.  Because you are not willing to sign an authorization, your wife is motioning the Court to approve the travel.

You can object to her motion but you must be prepared to provide the Court with the reasoning for why her motion should be denied.  You need to contact a domestic litigation attorney to discuss why you believe your ex may not return to the U.S.  Be sure to bring a copy of your divorce decree and your ex wife’s motion with you.

You have an upcoming hearing; therefore, it is important that you contact an attorney immediately to prepare for the hearing.  Cordell & Cordell has an office in Milwaukee with domestic litigation attorneys who would be happy to assist you.

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:

My wife has said that if I don’t play by her rules she will make sure that I will not see my son, and that a judge will uphold this because I am collecting unemployment and am a 1099 employee when I get projects. She is a Japanese citizen who I believe has beaten the system to stay in the country. Can she keep me from seeing my son while we go through the divorce process because I don’t have proven financials?

Also, does having a child automatically negate marriage fraud? She has refused to change her name, add my name to bank accounts, etc., and says she won’t divorce me until her green card conditions are released. Can I call INS on a situation like this?

Answer:

No, your wife cannot demand that you “play by her rules.” If, as your question suggests, your marriage is irretrievably broken, you should consider divorce. Your question raises issues of state and federal law, so you could very well find yourself in both state courts and federal agencies/courts if you decide to pursue your case.

What happens to your custodial rights is a matter of state law for the state court in your county to decide. In general, the standard to apply for any custody decision is the “best interests of the child” standard. State statutes and case law define this standard differently, but there are certain factors and/or themes that appear in the majority of states. For example, in Michigan, where I practice, family courts must consider the following factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence . . . of the existing or proposed home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant

You will find the same or similar factors in most states. (Child support, incidentally, is not a factor because the court can order the wealthier, non-custodial parent to pay the custodial parent support.)

One common factor is “moral fitness.” This is an amorphous factor that only impacts the decision if it affects the children. For example, a moody mother who is an excellent mother nonetheless will still receive custodial time, whereas a father who lies and cheats and steals, so much so that his children have witnessed it or picked up on it or his behavior discredits otherwise truthful court testimony, will probably receive less. If the parents are equal on all other factors, this may be the dispositive one.

Courts must also analyze each parent’s proposed homes for the child, each parent’s willingness to foster and encourage a relationship between the child and the other parent, the child’s affection with each parent, any domestic violence, any physical, mental or moral impediments to parenting, and “any other factor” relevant to the particular family.

Therefore, your wife’s allegations that you commit fraud may play a part in the analysis, particularly if they are documented (as opposed to “merely” alleged) and affect your chances of obtaining custody to your children, but so will your relationship with your children, your likely relationship with their mother after your divorce, her relationship with you, her relationship with the children, who was the primary caregiver, where the children have an established, familiar environment, where the children go to school, which parent is more likely to encourage the children’s current religious education, etc., etc.

What happens to your wife’s status if you divorce or she commits fraud are matters of federal law for the US Citizenship and Immigration Services (USCIS, formally the INS), the immigration agencies and federal courts to decide. This is a highly complex area of law, so you should consult an immigration specialist if you do consider a divorce or you want to call the immigration agency to report your wife for fraud.

For example, if your wife is a CRA (conditional resident alien) for two years or less, and the condition for permanent status is marriage, she risks deportation if you divorce, but not necessarily if you separate (unless the laws in the jurisdiction automatically convert legal separations to divorces). Certain criminal convictions may also render her deportable, depending on her actual status in the country. “Conviction” includes a finding of guilt and a guilty plea. See 8 USC 1101(a). This is a very serious concern because she could, depending on the conviction, be barred from ever returning to the United States. Merely retaining a maiden name is not enough because no states require women to change their names after they marry. False allegations from you could really, really hurt your custody case – you will look like an unreasonable father bent on keeping your wife from your children at all costs.

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

Question:

My friend told me that since my daughter is under five, my wife (soon to be ex) could not be required to work since she has been a stay at home mother for the past seven years and I would be responsible for 100% of her maintenance. Is that true?

Answer:

Tell your friend (nicely) to stop giving you advice – he is only making the divorce process more difficult and more confusing for you. He can be there as a friend to take you out, buy you lunch or a ticket to a basketball game, or something else fun, but he should not be there as your lawyer. Consult a lawyer for legal advice.

As for your friend’s custody advice, since at least the 1970s, the maternal presumption (an automatic right to custody for mom as the custodial parent) has been abolished by statute or case law in all states. Those presumptions are unconstitutional because both parents, male and female, have a fundamental right protected by the United States Constitution to the care, rearing and decision-making for their children.

As for your friend’s child support advice, effective 2007, the child support laws in the State of Georgia consider each parent’s income and percentage of time with their children. It is possible to impute income to an unemployed parent at either the state minimum wage rate (as we do in Michigan) or a higher rate base don the parent’s prior earning capacity and employability. A vocational expert will help here; you can send your wife, with a court order, to a vocational expert for an assessment of her job skills and employability in your area, then use that information to support a case for income imputation.

That is step one in the support calculation process, according to the Georgia Office of Child Support Enforcement:

Step 1 – determine the monthly gross income of both parents.  (Gross income may include imputed income if applicable.)
Step 2 – adjust each parent’s monthly gross income by deducting one-half of any self-employment taxes, any preexisting child support orders for current support for other children, and any theoretical child support orders approved by the court for other qualified children being supported (stepchildren are not qualified children).
Step 3 – add each parent’s adjusted income together to determine the Combined Adjusted Income
Step 4 – Refer to the child support obligation table to locate the Basic Child Support Obligation
Step 5 – Calculate the pro rata share of the basic child support obligation for the custodial parent and the noncustodial parent by dividing the combined adjusted income into each parent’s adjusted income to arrive at each parent’s pro rata percentage of the basic child support obligation
Step 6 – calculate the Adjusted Child Support Obligation by adding the additional expenses of the cost of health insurance and work related child care costs, prorating such expenses in accordance with each parent’s pro rata share of the obligation and adding such expenses to the pro rata share of the obligation. 
Step 7 – determine the presumptive amount of child support for the custodial parent and the noncustodial parent by assigning or deducting credit for actual payments for health insurance and work related child care costs
Step 8 – If any deviations are approved by the Court, they would be subtracted from or added to the presumptive amount of child support.
Step 9 – Uninsured health care expenses will also be divided based on the pro rata responsibility of the parents unless the court determines otherwise.

The “presumptive amount of child support” means the basic child support obligation including health insurance and work related child care costs.

Parents may deviate from the presumptive amount if the amount is “unjust or inappropriate” because one parent has extraordinary medical bills, assumed more marital debt, suffers a lack of employability, makes payments in kind (e.g., mortgage payments for the child’s home), and so forth. For more information, visit www.ocse.dhr.georgia.gov/.

Keep in mind that I am a Michigan-licensed attorney. I cannot give you legal advice about the laws in your home state, Georgia. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney in your area immediately for additional, case-specific information and legal representation.  Cordell & Cordell, P.C. does have offices in Georgia, and we would be happy to discuss your case with you. Thank you for submitting a 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'm currently in the military stationed in Korea, and I'm attempting to get my child support paperwork processed. My son's mother has already established that she doesn't want to file for joint custody. At what point should I be concerned about custody and visitation?

Answer:

The time to be concerned about custody and visitation is long before it becomes an immediate concern, because establishing custody and visitation can be time consuming. I am going to assume your statement regarding your son’s mother not wanting to file for joint custody means that she isn’t filing for any type of custody at all. If that is the case, and the two of you are amicable, it’s possible you could work out some kind of visitation without any court involvement. However, if she won’t let you see your child, you will have to file for custody and visitation at some point.

Initiating a custody dispute while you are stationed outside the U.S. would be problematic. Most state require judges to decide which parent should get custody based on the ‘best interests of the child’ standard. The factors to determine how that standard is applied vary from states to state, but will invariably require some consideration for the stability of the child’s living situation. If the child has an established home, barring any abuse allegations, that will be given great weight.

Another consideration is the Servicemember’s Civil Relief Act (previously known as the Soldier’s and Sailor’s Civil Relief Act). This act allows you to stay (or hold off) a child custody proceeding while you are stationed out of the country, which is to your benefit. But if you initiate the custody proceeding, then you can’t use the Act. Also, if your son’s wife initiates a proceeding, you need to be careful not to void the applicability of the Act, so consult your commander before taking action, as a response from you or your attorney could be considered an appearance in the matter and automatically give the court jurisdiction over you.

There are variables that could apply to your situation that are too intricate to discuss in this forum. I would suggest you consult with an attorney licensed in Illinois for more in-depth information. I am not licensed in Illinois, but Cordell & Cordell maintains offices in Illinois and have qualified attorneys who could assist you.

Question:

I had an uncontested divorce (after a mediated agreement) dismissed yesterday after my wife introduced we had been intimate after filing. The judge granted the dismissal. Is the mediation agreement null and void now as well?

Answer:

First, I must preface my answer I am not licensed to practice law in Georgia and can only give you general information. Cordell & Cordell maintains offices in Georgia and I would urge you to contact one of our qualified attorneys before taking action.

The mediation agreement is probably void, as most agreements of that kind are not binding until adopted by the court. Your case was dismissed so any agreements made within the case are also dismissed.

It was likely dismissed without prejudice, which means that either party can bring the divorce action before the court again. You could file your own divorce petition. Georgia has fault and no fault divorce options. Consult an attorney about what course of action would be best for you.

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.

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