Daily Answer Desk with Jim Gross, Esq.

Question of the Day:

My husband and I are working on a dissolution together without a battle.  Our only major asset is our house.  When sold we'll have 60K to divide 60/40 in my favor.  We wanted to see if they're is way he can get a lien or loan to buy me out?  Then I could move out and we could get on with our lives instead of being trapped together. – Nikki

Answer:

Nikki: He may be able to get a loan to buy you out from a bank or another mortgage lender.  Or you can give him the loan yourself by taking his promissory note and letting him pay you over time.  You can secure his payments with a second mortgage on the house.

Question of the Day:

My husband is not going to leave the house and I don't want to remove my 3 children from the house in the middle of the school year.  An attorney told me that I could stay in the house during the day as long as I am doing kid related things.  But once they go to sleep for the night, I could leave and that would count as living separate and apart.  First of all, is this true?  Second will this harm me in any way as far as custody of the kids? Or am I forfeiting any of my rights to half of the house? – Monica

Answer:

Monica: I have seen this arrangement work successfully in some cases without prejudice to custody or property.

Question of the Day:

My ex and I are divorced "on record" with the MSA not finalized/signed yet. 1) are we considered divorced? 2) is there a time limit to how long the terms of the agreement stay valid without signature? – Curious

Answer:

Curious: Sometimes a settlement is reached on the courthouse steps and read into the record with the intention that it be reduced to a written agreement and signed later.  Once the judge signs the decree of divorce, you are divorced.  If you never sign a written agreement, the transcript of the agreement that was put on record in court will be your agreement.

Question of the Day:

Does child support include items that are needed for my wife’s own support? (i.e. utility bill (monthly cost), gas (auto), water, garbage, and private schooling? – Brendon

Answer:

Brendon: In an “income shares” state like mine, the custodial parent pays his or her share of the costs of raising a child directly by providing for shelter, food, clothing and education.  The other parent pays his or her share of these items indirectly by child support payments to the custodial parent.

Question of the Day:

How do I get a divorce when we have a business together on our name?  My income comes from a business.  It is a child care center, but my husband’s name is on it, and it runs out of our house we own together (but no longer live in it because it is used for the business only).  It brings in a good income.  Although I run the business, my husband just put some constructional work into it and he claims it is his too.  I am tired or doing it by myself and paying for all of his debts. What can I do?  We have 2 other homes.  One has good equity in it.  I don't even want anything from the home, just the business house and my business.  How can we resolve this?  – Anna

Answer:

Anna: I find it always helps to put a dollar figure on things.  Get an estimate of the value of the equity in the house and the business.  Once you quantify assets, they are sometimes easier to negotiate.  For example, you might want to trade him your share of the house for his claim to your business.

Question of the Day:

What is the difference between annulment and divorce?  – Ginger

Answer:

Ginger: A divorce is the termination of a marriage.  An annulment says the marriage never happened.  If a marriage never happened, theoretically there would be no rights to alimony or equitable distribution of marital property, But in my state the law allows the court to award alimony and distribute property in a divorce or annulment.

Question of the Day:

Can a wife get a divorce without the husband’s participation? – Eric

Answer:

Eric:   Yes, a wife can obtain a divorce by default if she serves the husband with a copy of the divorce complaint and summons, and he has an opportunity to defend.  If the wife cannot locate the husband in spite of diligent efforts, the court can allow alternative service like publication in a newspaper or posting on the courthouse bulletin board.

Question of the Day:

I have been served divorce papers and sent them back without contest due to the fact that we were going to settle, now he is completely ignoring everything. Can i still sue for alimony?

Kat

Answer:

Kat:   Yes, you can file an amended answer and countercomplaint.

Question of the Day:

My wife and I are divorced due to her 2+ year adulterous affair.  I have primary physical custody of our 2 girls (less than 8 years of age).  My ex does get 2 night overnight stays. I recently went to drop our kids off (as agreed) and she was in the bedroom with her paramour.  Can I get a restraining order against him to not have sex in the place where my kids are going to stay.  I understand that if they marry I can do nothing but until then can I ask for their 'activity' be restrained from the children’s domicile? – Robert

Answer:

Robert: Rather than a restraining order against the paramour, the way I would approach this is to file a motion to modify visitation in the original divorce action asking the court to add this condition to the order.  You would have to show a change in circumstances since the original agreement or order.  I would ask the ex first to see if you can agree on this outside of court.

Question of the Day:

I had been separated from my husband for 5 years before I filed for a divorce and got it June of.  After all these years we are now talking about getting back together. He says that he really what's to give our marriage a chance.  Can a Divorce be annulled? – Melissa

Answer:

Melissa: The record and fact of the divorce will not be erased, but a divorce can be reversed, by remarriage.

Question of the Day:

Can someone be sued for child support payments that are 30 years old or more?

Is there a statute of limitations on that?  – Jack

Answer:

Jack: The statute of limitations does apply to child support payments and it starts to run as soon as the child reaches the age of majority.

Question of the Day:

if i am paying alimony and i remarry, do i have to continue to pay alimony? – Von

Answer:

Von: Yes.  Alimony terminates on the remarriage of the person receiving it, not the person paying it.

Question of the Day:

I have been married for the past 13years now, and I don't have any happy marriage life. I am 32 years of age and I have decided to file for divorce.  How do I need to start my conversation with my husband on the divorce?  – Gina

Answer:

Gina: I usually suggest starting the conversation with questions.  “Are you really happy?  What should we do about our problems?  How do you see our future together?”  It is not an easy conversation to have, but you have to take your thoughts out of your head and put them through your mouth into the conversation.

Question of the Day:

Out of 30 questions she answered 5 with the 5th amendment, 6 with I object to this interrogatory as it is not relevant to any issue in this case.   In doing this she is hiding all the information I need to help prove my case.  And how does she get to say that the questions I am asking is not RELEVANT? – Michael

Answer:

Michael:   After good faith efforts to resolve these disputes out of court, you can ask the court for an order compelling her to answer the interrogatories she objected to.  She does not have to answer the ones she took the 5^th on, but the divorce court can construe this against her and usually does. 

Question of the Day:

My husband and I have been separated for 3 1/2 years because he has never been true to the marriage. He would stay out all night, sometimes for 3 or 4 days at a time. One year we brought a car together and six months later he tore it up, later I found out there was a woman in the car at the time because she sued him for injuries she sustained. Once I had enough I told him he had to leave.  Now that we've separated he lives with another female but keeps his place on the side to try and deceive me.  We have one child at home (16). Can I get child support for the past 3 years we've been separated included in the divorce? – Gloria

Answer:

Gloria:  In my state, we can only get child support back to the date of filing a petition for it with the court.

Question of the Day:

During the divorce process, which spouse is expected to leave the home? – Lisa

Answer:

Lisa:  There is no rule of thumb.  It is a matter for negotiation.  In my state, Maryland, the court may, but does not have to, allow the party with primary custody of the children to remain in the home for up to three years.  After that, the court may order the home to be sold.

Question of the Day:  

I'm married for 10 yrs in october. i want to get divorced BEFORE then to avoid parting with my SS money. My wife is in agreement. I understand some divorces can take months/years. What are my choices to speed it up? We have no kids or assets to split. – Johnny  

Answer:  

Johnny: You can relax.  The ten year rule allows a former wife to elect to use your social security record as a basis for her own benefits, but it doesn’t reduce your benefits.

Question of the Day:

My husband and I are getting divorced but we are wanting to stay in the same house as roommates for at least 2 years to both be here for our 3 year old daughter. – Kim

Answer:

Kim: Yes, there is no law against parties living together as roommates after a divorce.

Question of the Day:

When the ex-husband files a Motion For Custody Evaluation, what does this mean and what does the court look at? – Harold

Answer:

Harold: It means the ex is trying to modify custody and has asked the court to appoint a person to conduct an investigation of the child and parents and perhaps other witnesses and make a report to court concerning which parent should have custody.

Question of the Day:

My children, ages 13 and 14, are asking me if it is okay for them to tell their father they do not want to spend time with him. The 13 year old lives with me and is refusing to spend the Thanksgiving Holiday with her father and the 14 year old lives with his father and does not want to spend the Christmas vacation or New year with his father. So far, there has been no ruling in court on the divorce or custody matters. He and I have mutually agreed to the custody arrangement we now have.  Is it within my children’s rights to tell their father that they do not want to spend time with him and can he force them to legally?  – Kim

Answer:

Kim: The children may express their wishes, but the adults control visitation.