QUESTIONS OF THE WEEK - Wednesday, February 6, 2008

Joe T., Atlanta, GA:

I am sick and tired of reading about Britney Spears and K-Fed, and the problems that they have with regard to the custody of their children. Can a judge take the children from both of them and give them to a family that would actually care for them?

The Lawyer of Love:

If one parent is caring for the needs of the minor children and acting in their best interests, the judge really does not have grounds to remove the children. In fact, there is really no reason to take the children away from K-Fed. He is being unfairly judged by past conduct with respect to his other children and former partying days.

K-Fed has actually stepped up to the plate and demonstrated fatherly love by tending to the needs of the Britney clan in her absence. To the best of my knowledge, there has not been any evidence adduced to demonstrate that K-Fed is an unfit father. Quite the contrary: Once it was clear that Brit went off the deep end, K-Fed intervened and took charge without missing a beat. K-Fed did not alienate the children from Brit, as is commonly done in custody cases. He should be commended for his efforts at parenting, not denigrated for past so-called errors.

Jeffrey S., Minneapolis, MN:

I got married to a woman overseas, in India, and we never filed for a marriage license in the U.S. I am an American citizen and she now has a green card. We've lived in the U.S. for the past three years and are unfortunately considering a divorce. Do we have to file in the U.S. or in the country in which we were married?

The Lawyer of Love:

If your marriage is considered valid and legal in India, then it will most likely be valid in Minnesota. Unless, after consulting with an attorney, you find that the laws in India are more favorable for divorce or you need an extended vacation, you may file in Minnesota.

Rene H., New York, NY:

My wife and I are in the middle of a bad divorce. We were married for 22 years and have twin boys who are 16-years-old. My wife keeps telling me that when the divorce is final, I'm going to have to pay child support and my kids' college educations. Is that right?

The Lawyer of Love:

I question the reason you are listening to the very person you are at odds with in a "bad" divorce unless, of course, you are a masochist. If your wife has sole custody of your children or is the residential parent in a joint custody arrangement, you will pay child support to your former spouse. The child support guidelines and nuances can be explained to you by a New York divorce attorney. If you are awarded custody of your children, then your wife may be required to pay you child support. The contribution to college expenses for your children is discretionary with the New York court and may not be absolute as claimed by your sadistic wife.

Tom P., Detroit, MI:

I have been divorced for 15 years. My ex-wife and I share custody of our two children. She is the primary care parent, and I pay her child support.

Due to my ex-wife's substance and alcohol abuse and relationship problems, since our divorce my children were not happy at home nor doing well in school.

My 18-year-old daughter moved in with me two years ago, and my 16-year-old son moved in this past summer. Both of my children are thriving now; they are happy, they are doing well in school and they have goals and plans for the future.

My problem is that I have continued to pay child support, fearing that if I stop my children may have to move back in with their mother per our divorce agreement. My current wife is upset because I pay child support, however, we support our children. What do I do?

The Lawyer of Love:

The definition of fear is "false evidence appearing real." Your current wife has every reason to be upset. You or your lawyer may file a petition to modify custody and support based upon the change in circumstances; namely, the children are no longer living with their mother. After the court determines that you have 'de facto' custody (in other words, the children have been in your custody for two years), the court will most likely, after a hearing on the merits, order that the child support be terminated. When you establish custody, you may then seek child support from your ex-wife. If she is not employed, you may consider a request that the court order her to find a job. That way, she can assist in supporting your children instead of continuing to drain your resources.

Robert P., Los Angeles, CA:

Now that K-Fed has custody of his kids with Britney, will Britney have to pay him child support? I'd love it if my ex-wife had to pay me child support!

The Lawyer of Love:

Since K-Fed has custody of the two minor children, poor Britney may have to sacrifice some of her grooming expenses in favor of paying support for her children. Lucky for her, she will be able to make ends meet while supporting her kids in the lifestyle they have been accustomed.

John W., West Palm Beach, FL:

I have been divorced for quite some time now. We have no custody agreement with our 10-year-old son. He has been living with his mom the whole time while I was paying child support -- $39 of the $120 weekly was for child care. He has been in school full-time for a while (he's now in 4th grade) and has not gone to day care in three years, even though I'm paying for it. I have told her this, but she just says she would get the money anyway. What should I do?

The Lawyer of Love:

The terms of a divorce decree with respect to child support are modifiable. However, the burden of modification is placed upon the parent who wants to implement change and can show a legal basis for such modification. In order to change the terms, you or your attorney must file a petition and give proper notice. Unless you take steps to modify the arrangement, your payments will not be reduced. You must also keep in mind that if your income has increased since the original decree, your ex may petition to increase the amount of child support. So, quit your whining, and either hire a lawyer to assist you or get a calculator and figure out whether you will benefit from the change.

Don R., Buffalo, NY:

My wife has signed off on the homestead rights more than one time. Is she still entitled to part of the house in the case of a divorce?

The Lawyer of Love:

Yes, she may be, so do not host that groundbreaking ceremony just yet. A waiver of homestead does not necessarily mean your wife has waived all rights and interest in the property. If the real property was acquired during the marriage or is otherwise classified as marital, then the homestead waiver may not assist you during the divorce.

Jim H., Denver, CO:

I am in a sticky situation. When we broke off our engagement, my ex-fiancé left Colorado and took our two-year-old daughter with her to Ohio. People have told me that I don't have the same rights to keep them in Colorado (i.e. signing the papers to let her take our daughter out of state) since we were never married. To make matters worse, she is a legal secretary at a major Ohio law firm and has started seeing one of the attorneys there. She insists she is not moving back to Colorado anytime soon. I voluntarily make child support payments every month to her and have gone to Ohio four times to visit my daughter since they left in November 2006. What can I do?

The Lawyer of Love:

First, quit listening to "people" who have no clue as to your legal rights. Second, you need to consult with a Colorado attorney immediately. I am assuming that you were adjudicated the father of this child for purposes of my answer. The Colorado attorney can tell you if your ex-fiancé violated laws by leaving with your daughter and whether you can force her to bring the child back to Colorado.

The attorney will also inform you whether you have rights under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which may allow you to commence custody proceedings in Colorado. The UCCJEA may provide you with the home court advantage because Colorado remains the home state of your child for six months prior to the commencement of the proceedings. In other words, the Colorado courts may have jurisdiction to hear your custody case if your lawyer determines that you meet the requirements of the UCCJEA. Third, you may want to stop visiting Ohio until you speak with an attorney. Your ex-fiancé may be trying to lure you to Ohio. Because you do not have "contacts" in that state, she cannot file an action of this nature against you. In order for your ex to file suit against you in Ohio, the court must have "personal jurisdiction" over you. Personal jurisdiction in its simplest form is shown by contacts with the particular state where you are being sued. The more you visit with your daughter in Ohio, the more it can be argued that you have "contacts."

Lastly, if you can file in Colorado now and beat her to the punch, consider it a victory. You will not only outsmart her, but you will also save yourself thousands by not having to travel to litigate.

Rich K., Tinley Park, IL:

I do not have any of my accounts with my wife's name on them. How much leverage does this give me if we get divorced?

The Lawyer of Love:

The question is whether the source of funds in the accounts were derived from marital funds or continuously commingled with marital funds throughout the marriage. If you deposited salary in the accounts, they could possibly be classified as marital. If, however, you have accounts that you acquired prior to the marriage and did not taint the accounts with marital funds, they may be classified as your non-marital accounts, and your wife may not be entitled to these funds in a divorce. As far as leverage, the classification of your bank accounts is only one piece and it is impossible to answer your question without more information. All of the relevant facts of your case and the facts of her case must be assessed to determine the best strategy. Only after a thorough analysis can leverage (if any) be employed in a manner that may benefit you.