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Past Questions |
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Current Questions and AnswersNOTE: 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 am curious to know the legality of fund raising in an effort to help my
divorced brother with his legal expenses. He is presently in the battle of his life with
his ex-wife with regard to the time that he is permitted to spend with his 6 year old
daughter. It is a long and dreadful story......so I won't trouble you with the
details....but I was wondering if it would be morally and legally okay to organize a fund
raising event - either a party of some sort or a raffle. By the way our family lives in
Buffalo, New York. Q: My ex and I went to court a year and a half ago and we have shared parenting.
The ruling states that I pick them up at 3:30pm and my ex picks them up at my house at
6:00 in the morning. She is currently on 2nd shift, but has been off all this year due to
her pregnancy, so she has had the kids. After having her new baby she is planning on
quitting her job, and she says that I can't get the kids per our shared parenting
agreement in court. Will I be able to continue my agreement, or will it be possible to go
back to court to get our shared parenting changed since she will no longer be working? A: In general the agreement remains in force until changed by the court. The general rule is that the court can change the custody order upon a showing of a substantial change in circumstances, following by a showing that the change is in the best interest of the children. It sounds like there would be grounds to modify. I would caution you to utilize as much custody as you are permitted under the current order, or the fact that you didn't do so might be held against you in a future modification. Q: I am 32 years old, I am a steelworker and firefighter/paramedic. My
ex-girlfriend of 15 years and 2 kids up and left me for a guy on the internet. The only
thing she took was the computer. I have the 2 kids and the house. The house is in my name
only. I do not have legal custody of the kids, but she left seven months ago, she will
only watch the kids if I prove that I am at work she has even called there and came up
there to check. My question is if I go for sole custody what are the chances she could
turn the tables on me. I make good money so I know she would make out like a bandit on
child support. How does the abandonment law work? A: In addition to only providing general commentary, I never give odds. Judges are too unpredictable. That said, in general it sounds like you have a good case, assuming that you don't get one of those judges whose attitude is "custody to the woman no matter what." It would be helpful for someone from your work to testify about her phone calls. I take it that there was never a formal finding of paternity so you would bring a paternity action coupled with a count for custody and a count for support (you would seek support from her.) She has not abandoned the children given your description. Q: Hello my fiancé and I live in Washington and we are in the process of moving
to Colorado in May. He is in the military and December of 1999 his ex wife moved out of
the state to move back to Florida. At the time she said she moved because she felt her
life was threatened by her boyfriend. Later she e-mailed me saying she moved to Florida
for family support and that it was important that their son be around family. His father
is his family. Now he gets out of the army in May and she found a new guy and is moving
out of Florida to North Carolina but they may move again. In the parenting plan it states
that if its geographically capable that the father pays for travel expenses. Now is that
geographically capable? To me that is impossible. She won't even meet us half way. And
also once we move to Colorado, can we modify it and change the parenting plan? A: What does "geographically capable" mean? That doesn't even make any sense to me. Do you have any idea what the court meant by this phrase? In any event, as a general matter the situation you describe, especially the ex's frequent moves, should support a motion to modify the parenting plan. If the child has lived in Florida for greater than 6 months, and she hasn't gone to N.C. and lived there with the child for 6 months, then it's likely that Florida currently has jurisdiction over the modification (as the child's "home state"). But consult an attorney to determine which state currently has jurisdiction and your chances of success. Q: I visit my children every other weekend... that's what me and my ex agreed
on..My ex sent a letter to my job saying that it was no longer acceptable.... I went to
pick my daughters up and they weren't there... I called the police to file a domestic
report... is there any other course of action I can take.. I haven't had a visitation
problem in 4 years.. now its a problem. A: You don't specify if this every other weekend arrangement is pursuant to a court order. If it is not, but is just a private agreement between the two of you, then it isn't directly enforcable. Your remedy would have to be to go back to court and seek to modify the custody arrangement. You would argue that the course of conduct over the last 4 years, coupled with your ex's new attitude, justifies a change. If it is pursuant to a court order, then the usual remedy is a motion for contempt of court, possibly coupled with a request for a modification. Some states provide special remedies for denial of court-ordered vistiation (such as Missouri's "Family Access Motion"), so you should also check with an attorney for your state to see if there are any other options available to you. Q: My ex-wife has filed for child support modification, She has re-married since
the divorce 8 years ago, Because of this marriage she has cut back to working part time.
This will drastically change what I pay in support, Because she willingly cut back her
hours, is there any way I can avoid this drastic rise in support? A: You need to consult an Arizona attorney to find out the specific rule for your state. I can comment generally that judges look unkindly on a party voluntarily limiting their income and then asking for more support as a result. A good argument for you may be "imputed income" where the court sets support based on what the party CAN make, rather than what they DO make. Also, some states will take a new spouse's income into account in setting support, not directly, but only to the extent it reduces the parent's expenses. This is obviously true in your ex's case, as her expenses are being reduced by her new spouse's income. It might turn out to be possible for that to be considered when setting support. Talk to an Arizona attorney ASAP. Q: My wife secured a new attorney. This lawyer appears to be taking over our case completely. They cancelled our 4-way settlement meeting three times, and now insist on psychological evaluations for all of us. I am frustrated by this, and into my attorney for over $5,000.00. I suggested adamantly that we also file civil contempt of court, as my wife has over 100 court order violations since last August. My lawyer says they have some on me and we should not waste the judge's time. I said she doesn't have many...about 6 or so. Anyway, when I made my displeasures known to my attorney, he now wants me to sign a release form and seek another attorney. I can't afford to do this. Can he legally force me to do this? Is it ethical? A: He can withdraw from your case if he gets permission from the court. However, I think he cannot force you to sign a release form. You don't indicate what you'd be releasing him from (a malpractice action? an ethical complaint?) so it's hard to comment in more detail. Q: My son is nine years old. The man that I thought was his birth father tested negative last year. He is now suing me for the $10,000 he paid me in child support and $7,000 in lawyer's fees. He initially (in 1991) did not show up for the court ordered paternity testing and was named the father by default. I have since found the real birth father (who also disappeared) who is beginning to pay child support only retroactive to July 2000. I don't know what to do about the situation and feel that Father candidate A is negligent for running away 9 years ago. I also feel that if anyone owes him this money it should be my son's real birth father. This is an extremely embarrassing situation and I think I need to retain a lawyer. My first question is: is my son's birth father responsible for the 9 years of child support? And am I responsible to pay back the wrongfully accused even though he could have cleared this up 9 years ago? A: You definitely need to consult an attorney for your state as the way this situation is handled can vary. However, the "majority rule" as I understand it is that, once a man has been determined to be the father, that determination is legally binding even if he is later found not to be the father. The only exception is usually out and out fraud, which doesn't exist in your case as he didn't bother to show up for the testing (and in any event would be questionable 10 years later). While you need to find out the specific rule of law for your state, I think it unlikely that you'd have to pay the money back. By the way, I'd be interested to know if the real birth father was ordered to pay support by the court. If I were his attorney, I'd argue that it was already determined that "father A" was the father, in law if not in fact. Perhaps that argument does not work in yoru state. Q: Hello my fiancé and I live in Washington and we are in the process of moving
to Colorado in May. He is in the military and December of 1999 his ex wife moved out of
the state to move back to Florida. At the time she said she moved because she felt her
life was threatened by her boyfriend. Later she e-mailed me saying she moved to Florida
for family support and that it was important that their son be around family. His father
is his family. Now he gets out of the army in May and she found a new guy and is moving
out of Florida to North Carolina but they may move again. In the parenting plan it states
that if its geographically capable that the father pays for travel expenses. Now is that
geographically capable? To me that is impossible. She won't even meet us half way. And
also once we move to Colorado, can we modify it and change the parenting plan? A: What does "geographically capable" mean? That doesn't even make any sense to me. Do you have any idea what the court meant by this phrase? In any event, as a general matter the situation you describe, especially the ex's frequent moves, should support a motion to modify the parenting plan. If the child has lived in Florida for greater than 6 months, and she hasn't gone to N.C. and lived there with the child for 6 months, then it's likely that Florida currently has jurisdiction over the modification (as the child's "home state"). But consult an attorney to determine which state currently has jurisdiction and your chances of success. Q: My co parent, non custodial mom is continuing to not follow our family court order of "no contact" of her fiancé around our two sons age 6 & 4. He has a history of violence, is allowed supervised visitation from his ex wife #1, ordered to a 52 week domestic violence course, has 3 restraining orders on him from ex wife #2 and her parents. The most recent occurrence was last weekend. When my boys were returned they informed me that the mom forced them in the car, (the boys were crying not to go) with this person was sitting in the car. Is it time to get CPS involved? A: If there is actual violence going on, you may want to try CPS. If there isn't, you could still try but they may not get involved. However, if the mother is continually violating the court's order, and the court recognized that this person was a danger to the children, then the situation you describe makes out a good case for both a motion to modify and a motion for contempt. You should consider trying to get custody of the children away from her. Consult an attorney for your state to determine your chances of success. (If you don't live in N.C., but the children do, then it's very likely the action would have to be filed in N.C.) Q: Both my son's mother and I have remarried. When figuring child support, do
they take total gross from the house hold or just her and my monthly gross? A: In general, the income from the parents only is used in calculating child support. This is because the new spouse(s) does not have a legal support obligation for the child. However, to a some states will indirectly consider the new spouse's income to a certain extent, but only to the extent it reduces the living expenses of the parent. Many states do not do this, or do it only under special circumstances. Q: My wife tells me she wants a divorce and tells me I will not be able to afford anything decent to live in. She makes much more salary than me. Am I entitled to alimony? A: Under present law in all states, men are just as entitled to women to receive alimony (usually now called maintenance) under appropriate circumstances. Although I cannot tell you whether or not you are entitled to receive maintenance, and you should consult an attorney for your state to determine the specific standard, I can tell you that, in theory anyway, your sex has nothing to do with it. Q: My ex-wife admitted to Maximus Child Support that my daughter does not live
with her. However, Maximus said I still owe child support because I failed to include in
my modification that support shall continue as long as the child is in the home. However,
my original divorce decree clearly states that support shall end if the child leaves the
home. I've already emancipated 2 of my adopted daughters. Do I have to emancipate my 16 yr
old or does my original divorce decree still stand? A: "Maximus Child Support"? You should have an attorney for your state parse your decree and modification to determine its legal effect. However, the general rule that should apply to your situation is that a modification only affects those provisions of the decree specifically set forth in the modification (or overriden by unambiguous implication). Everything from the original decree that the modification does not mention continues in full force and effect. So, if your original decree says "support ends if the child leaves the home, support at $500 a month", and there's a modification that says "support is hereby modified to $600 a month" and it says nothing about the circumstances of termination of support, then the original provision should remain in effect. As a result, there's a good shot that the provision you mention is still in effect. But have an attorney for your state check to be sure. — TOP — 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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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.
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