Father's Rights on SingleDad.com – Q&A with DadsDivorce.com

0
1461
Rating :
(1 Votes )

SingleDad.com offers Family Law Resources and Information for newly divorced men. This week we cover questions about pregnancy during divorce; Using Military BAH and COLA to determine Child Support;Re-Marriage and Alimony; Child Abuse

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

  • Can the court include my military Cost of Living Adjustment and military Basic Allowance for Housing for purposes of a child support modification?
  • Is she legally obligated to inform me if she’s pregnant during our divorce?
  • I’ve been paying alimony to my ex-wife up until she got re-married. But she has been able to get that marriage legally annulled. Will I have to start paying her alimony again since it’s like that second marriage never existed?
  • The mother of my child hit my kid. The hospital said don’t take the child back there, but the police are saying the child has to be returned to the mother or there will be a warrant issued for custodial interference! What are my rights?

Question:

I am currently stationed overseas. Two years ago we had our child support modified. The judge at that time did not include the COLA (Cost of Living Adjustment) or BAH (Basic Allowance for Housing). We have recently gone to court and have had support modified once again, but this time the judge did include COLA and BAH causing our support to double. Can COLA and BAH be included in calculating child support?

Answer:

First, I would like to thank you for your service to your country.

You have asked if the Court can include your military Cost of Living Adjustment “COLA” and military Basic Allowance for Housing “BAH” for purposes of a child support modification.

For our non-military friends, "BAH" is an amount of money authorized to assist service members in defraying the housing cost incurred by them when assigned to a permanent duty station within the continental U.S. The rate of "BAH" is based on median housing costs and is paid independent of a member’s actual housing costs. "COLA" is an amount of money designed to help members stationed in high-cost areas to maintain purchasing power so they can purchase approximately the same goods and services in the high-cost area as they could anywhere else. "COLA" is based on duty location, rank, time in service, and number of dependents.

Indiana Code § 31-16-8-1 governs the Modification or Revocation of child support orders. Under this section, modification of a child support order may be made only upon (1). A showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2). A showing that a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

Indiana Courts also look to the Indiana Child Support Rules and Guidelines (most recently amended Jan. 1, 2010) for guidance into determining the proper amount of child support an obligor parent is to pay. Guideline Number 3, entitled “Determination of Child Support Amount” defines what “income” is countable to an obligor parent in determining child support. This Guideline makes a laundry list of items that are countable as “weekly gross income” in Indiana for purposes of child support calculation that is even more inclusive than taxable income under the Internal Revenue Code. So, even though you may not have to pay taxes on things like your military BAH or COLA, an Indiana Court can count these items into your income for child support purposes. In fact, the Commentary to Guideline 3 states:

In calculating Weekly Gross Income, it is helpful to begin with total income from all sources. This figure may not be the same as gross income for tax purposes. Internal Revenue Code of 1986, § 61. Means%u2011tested public assistance programs (those based on income) are excluded from the computation of Weekly Gross Income, but other government payments, such as Social Security benefits and veterans pensions, should be included.”

Despite this recommended inclusion, Courts do have the ability to either phase in modifications in order to reduce the sting from a sudden doubling of child support such as what you experienced in your case, or even deviate from recommended child support obligation completely, based on the facts of your case. The Commentary to Guideline 1 of the Indiana Child Support Rules and Guidelines illustrates some examples where courts should phase in modifications or deviate completely, including scenarios which may be applicable to you, such as “both parents are members of the armed forces and the military provides housing” or “one of the parties is required to travel an unusually long distance in the course of employment on a regular or daily basis and incurs an unusually large expense for such travel” or “the custodial or noncustodial parent incurs significant travel expense in exercising parenting time.” The guideline further recommends “judges must also avoid the pitfall of blind adherence to the computation for support without giving careful consideration to the variables that require changing the result in order to do justice.”

Although the court has already modified your child support obligation, you may still have recourse in filing a Motion to Correct Errors, or a Motion to Reconsider and carefully crafting an argument that focuses on the facts of your case. However, the filing of such a motion would be time sensitive to your matter. One argument I would consider in a Motion to Reconsider would point to the fact that the Court previously did not factor in military BAH or COLA in prior child support calculations in your case, and there may not have been a substantial and continuing change in circumstances which would warrant their inclusion now. The best recommendation I can give you, as always, is to seek out competent legal representation. Cordell & Cordell has attorneys located in Indiana.

Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana office of Cordell & Cordell, P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.

Question:

My husband is in the military and will be coming home from deployment in a few months. I’ll be asking for a divorce. I just found out I’m pregnant with my boyfriend’s baby. My husband doesn’t know about my boyfriend or that I’m pregnant. Can I hide my pregnancy from him when we get divorced? Am I legally obligated to inform him about my pregnancy even if it’s with another man’s baby?

Answer:

You should not hide your pregnancy, for several reasons. First, when you file for divorce, in most states you must indicate whether you are pregnant – if you conceal the fact, then you commit perjury, which is a crime, not a mere lie. Second, children born during the marriage are presumptively children of the marriage – i.e., your husband’s – if you do not address the child’s paternity in your divorce, then the presumption could be conclusive. Third, you could foreclose your boyfriend’s opportunity to establish paternity, and your child’s opportunity for support from him, with a conclusive finding in your divorce judgment.

And, if your case ever winds up in court for a hearing on a contested issue or a trial, your lie about something you cannot hide (pregnancy) will tarnish your credibility when you testify truthfully.

If your husband’s potential reaction concerns you, plan, plan, plan before you speak. Select a place that is safe – e.g., a relative’s home – or consider telling him in a session of couple’s therapy with an expert who can guide you both through the emotions. If the reaction is severe, or you anticipate it will be, speak to a domestic violence shelter or advocacy group. Always consult with a lawyer in your area before filing any documents.

Be advised, I am licensed to practice law in Michigan. I cannot give you legal advice or recommend a course of legal action for your home state, Texas. I have only given general information. Do you not rely on this information as establishing an attorney-client relationship, and contact an attorney in your area immediately for legal advice and representation. Cordell & Cordell, P.C. does have offices in Texas to assist you. Thank you for sending a question to Cordell & Cordell, P.C.


Question:

I’ve been paying alimony to my ex-wife up until she got re-married. But she has been able to get that marriage legally annulled. Will I have to start paying her alimony again since it’s like that second marriage never existed?

Answer:

That depends on the language in your order.

In most alimony orders, alimony terminates upon remarriage. End of story. It does not resume when the supported spouse divorces again. For example, an ex-wife cannot divorce her second, home-body and poor husband and come back to the first, hardworking husband for support because the second did not have pockets quite as deep. The support was intended to maintain the spouse’s standard of living until she remarried, at which point she obtained a new standard of living with her second husband.

However, alimony orders can be as creative as the parties agree or the judge decides, so long as the order is not against public policy. I have seen orders for lifetime alimony that only terminates upon death – not remarriage to a second husband or a third or a fourth.

These are two opposite extremes. Where does your scenario fall? You must read your order carefully to determine where. An attorney who can interpret the language is a must – otherwise, if you do owe support but do not understand the order and fail to pay it, you risk accruing alimony arrears or missing the deadline to object to reinstatement or ask for a modification or termination. Please take your order to an attorney.

Be advised, I am licensed to practice law in Michigan. I cannot give you legal advice or recommend a course of legal action for your home state, Texas. I have only given general information. Do you not rely on this information as establishing an attorney-client relationship, and contact an attorney in your area immediately for legal advice and representation. Cordell & Cordell, P.C. does have offices in Texas to assist you. Thank you for sending a question to Cordell & Cordell, P.C.

Question:

My wife won’t sign our divorce papers and she’s been under investigation for child neglect and abuse. I filed a police report and have documents from the hospital showing the abuse. They said not to return the child to home. Yet the police are saying the child has to be returned to the mother or there will be a warrant issued for custodial interference. I don’t understand! I have to return my child to an abusive mother?!? What are my rights?

Answer:

In Michigan, your child abuse/neglect case and your divorce case are two separate cases. This can be confusing to divorcing parents because the laws in Michigan for assigning cases to judges require the same judge to hear both cases, when possible. However, the judge will, or should upon proper request, issue orders in one case that match the other. For example, if the judge issues a “no contact” order for one parent and the child in the CA/N case, then the judge should clarify, on the record, that the order applies in the divorce case.

This does not mean the judge must issue these orders. The judge will only issue a parenting time or custody restriction upon proper request. In general, in the divorce case, the parent requesting the restriction must show proper cause or changed circumstances since the last order and that the restriction is in the child’s best interests. A proper cause should be relevant to one of the child’s best interests, whereas a change in circumstances may be relevant to more than one but, combined, shows circumstances surrounding the child have or will have a substantial effect on the child’s well-being. In the CA/N case, on the other hand, the child’s guardian ad litem will recommend a parenting time and custody order, which may include these restrictions. Unless there is an active CA/N case (a report or investigation is not enough), then the parent must request the modification in the divorce case. Child abuse and neglect, even if the county Child Protective Services investigates, is not necessarily proper cause or change in circumstances. Moreover, by statute CPS investigations and reports are usually not admissible into evidence to support a motion. Be prepared to support such a motion with proof of substantial effects on your child’s best interests if you pursue it.

Be advised, although I am licensed to practice law in Michigan, I cannot give you legal advice or recommend a course of action without reviewing your case in detail. Do you not rely on this information as establishing an attorney-client relationship, and contact an attorney in your area immediately for legal advice. Cordell & Cordell, P.C. does work throughout Michigan. Thank you for sending a question to Cordell & Cordell, P.C.

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.

Richard JaramilloRichard “RJ” Jaramillo, is the Founder of SingleDad.com,
a website and social media resource dedicated to single parenting and specifically for the newly divorced, re-married, widowed and single Father with children.
RJ is self employed, entrepreneur living in San Diego and a father of three children. The mission of SingleDad is to help the community of Single Parents
“Make Life Happen…Again!”

SHARE
Previous articleSingle Parent Advice on SingleDad.com; Is your Child Obese?
Next articleSpring Break Custody Question and others on SingleDad.com
Richard “RJ” Jaramillo, is the Founder of SingleDad.com, a website and social media resource dedicated to single parenting and specifically for the newly divorced, re-married, widowed and single Father with children. RJ is self employed, entrepreneur living in San Diego and a father of three children. The mission of SingleDad is to help the community of Single Parents “Make Life Happen…Again!”