Current Questions and Answers
NOTE: Information contained in this site is intended to help fathers who are involved in the divorce process. It should not, however, be construed as legal advice. For personal legal advice, please consult your attorney.
Q: I presently share custody of my two year old daughter and four year old son with my ex wife. After our divorce we agreed on a parenting plan - that the children would reside with me as the custodial parent and she would be the non-custodial parent. The children would reside with me during the week and she would get them every weekend. At this time, she appeared to not have much interest in being actively involved with the children and was more than willing to give me primary custody. However, my children are currently preschool age and somehow the parenting plan was marked as only during school age. None the less, the plan was followed until 8 months ago when she moved seventy miles to Kirkland. At this time she as well as her fiancé pushed for splitting of equal time (Two Weeks/Two Weeks). They threatened with unlimited funds for a court battle and so I agreed to allow it until they reached school age. Now, my ex wants to move to Utah for a new job for her husband that makes more money . She states that this will allow her to be a stay at home mom. She is currently pregnant as well. This concerns me.
Can she get this parenting plan modified so that she can
move to another state and get primary custody even though she signed the initial agreement
to grant me the primary custody? Or is this even a legal document because it is devised
for children of school age and the children are currently 2 and 4? I fear that the courts
will feel that living with her is in their best interest because she will be able to
afford to stay home and is the mother... Plus she was recently married and I am currently
living with my fiancé.
A: While you need to consult a lawyer for your state to get legal advice, I can make a few comments here. First, the general rule is that private agreements between parties regarding custody and support, that are not approved by a judge and entered as a judgment, are unenforcable. You don't mention whether the parenting plan you agreed to "after the divorce" was entered as a judgment or is just a private agreement. If not, it is not enforcable. Same thing with the two weeks/two weeks agreement. What counts is what the court ordered during the divorce. In general, upon an appropriate change in circumstances, custody and support agreements are always modifiable if the modification is found to be in the best interests of the children. As a result, it's likely that the answer to your question of whether she could modify the parenting plan is yes, she can (or at least, she can try to.) You need to go get some legal advice from a local attorney, and soon.
Q: My ex wife moved to Oregon about
four years ago, I live in California. She has sole custody and I was to have visitation
rights - Now she is tired of taking care of our two boys and is willing to sign over
custody to someone else. My question is do I need to get Oregon court papers to have her
sign or can I get papers from my local court and have her sign those. I really need to
know quickly so I don't lose these boys to someone else.
A: If the children have lived in Oregon for more than 6 months, then Oregon should have custody as the children's "home state" under the Uniform Child Custody Jurisdiction Act. Because private agreements between parties regarding custody and support, that are not approved by a judge and entered as a judgment, are unenforcable, you need to do more than just get papers and have her sign them. It is likely that you need to bring a legal action in an Oregon court to modify the existing custody judgment and transfer custody to you. If she agrees to the modification it should not be too difficult to accomplish. Consult an attorney licensed in Oregon to get legal advice on this situation.
Q: My wife and I are trying to draw
up some final steps. I am willing to concede the equity in the marital home (approx.25000)
if she leaves my retirement alone (worth 8000) gives me a property settlement of 6000 and
drops any seeking of alimony. We were married for 20 years and have 2 minor children that
she has primary physical custody of. I pay child support at the maximum rate according to
the guidelines and will continue to do so. What I need to know is how to word the final
steps so she can never come back and ask for alimony. Should I word it as giving her like
.10 a week for 20 years of non-modifiable alimony or is there another way to word it so
she cannot come back ten years from now and ask for alimony.
A: You need to consult an attorney for your state as every state is different. In general, you would use language like "The parties both agree that they can meet their reasonable needs through property and employment and therefore waive alimony (maintenance in many states) and understand that neither party can ever come back to this or any court seeking maintenance in the future." However, this is only GENERAL language and should not be considered to necessarily be applicable in any particular state; I only give it as a general example.
Q: My husband and his ex-wife were
married less than 5 years and we've been married for over 20. When his two daughters from
their marriage had babies before they each turned 18, he stopped paying child support
payments thinking he was abiding by the stipulation in his divorce decree that he pay
support until they reached the age of "...maturity." His daughters are currently
over 25 yrs. old. Now that his ex-wife is experiencing serious health problems, she wants
to claim arrears and alimony. Can she do these? Thank you for your consideration.
A: The general rule is that, if alimony (usually called "maintenance" these days) was denied in the initial dissolution, it is denied permanently. If it was awarded, or there was specific language allowing the court to keep jurisdiction over the issue, then it can be awarded or modified up or down in the future. So, your husband needs to have an attorney for your state look at the dissolution decree and check the specific language so as to apply your state's law and see what the result is. If she hasn't collected maintenance for over 20 years, then I think it likely it was denied entirely intially, and thus she probably can't get it now. Even if it wasn't and the court kept jurisdiction, she'd have a very tough argument to make that, 20 years later, your husband should in essence act as her health insurer. Courts in my state (Missouri) have stated on occasion that maintenance is not meant to be insurance. As far as the arrears, depending on your state's statute of limitations, she may well have a claim.
Q: As mandated by the court, I have
my kids during the summer. My question is, if it is not specifically stated in my decree,
my I keep the child support money,when I have the kids for more than a month, so that I
can support my kids during that time?
A: Although states vary, the general "majority" rule is no, you cannot. I seem to remember seeing that some states do abate child support in the situation you describe, however, so you should talk to an attorney for your state to be certain.
Q: My brother has evidence that his
wife he is divorcing uses drugs and a taped conversation between him and her about her
cheating on him with four different people in a six month time frame. The tape also talks
about drug abuse. Can he use the tapes? He also would like to know the best way to
document that she hardly ever comes to see their child, two years of age. Can he use any
bank records that show misuse of family funds, and that she cleaned out the checking
account when she left? He also has records that she had went to a rehab facility, but she
did not complete the program. He also has recent drug screening test results. Is there any
way to get a court ordered drug screen for her, and what can he produce at court and how
would he do so?
A: This depends on your state. I can only give general commentary, but I can tell you that under federal law, the tapes are legal so long as the conversation is between your brother (the person doing the taping) and her. However, in some states have a tougher standard in which the tapes are only legal if ALL parties to the conversation knew of the taping. As far as the court ordered drug screen, generally the judge has authority to order physical exams of either party upon good cause shown.
Q: My soon husband to be is going
through a major ordeal with his ex wife. Just a week ago, his son that she has custody of
was taken away from her and her present husband for abuse, instability, and drunkenness.
DHR did not contact him at all. The child at the moment is with her husband's parents b/c
DHR believed him to be the father. She is saying that she is going to sign over all her
rights as a parent to her mother. And as a result, my fiancé would not get the
opportunity to get custody of his own son. Can they do this, and how can we stop it?
A: You need to file a motion with the agency to intervene in the case as soon as possible. DHR would be an administrative agency, so under your state's version of the state Administrative Procedure Act, as a party with an obvious interest in the matter, you should be permitted to intervene in the administrative matter. Another possibility I can think of is to file a paternity action against the ex wife, assuming that the son was born after the divorce and is not covered in the divorce decree. If that is not so, how is it that DHR doesn't realize that the present husband is not the father? If there is an existing court order stating that your husband is the father (such as the divorce decree between him and his ex-wife) then your husband should probably file a motion to modify that decree to give him custody. If not, the paternity action, or intervening in the current agency action, is the answer. Consult an attorney for your state ASAP.
Joseph Cordell, J.D. founded Cordell & Cordell in 1990 after a brief stint with a major law firm. Originally a general practice firm focusing its attention on domestic relations matters, Cordell & Cordell has evolved into a firm practicing exclusively domestic relations law, with an overwhelming emphasis on fathers' rights. For more information you can visit http://www.dadsdivorce.com/ or if you have a question that you would like answered http://www.dadsdivorce.com/phorum/list.php?f=16&collapse=0
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Information contained in this site is intended to help fathers who are involved in the
divorce process. It should not, however, be construed as legal advice. For personal legal
advice, please consult your attorney.
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