FREQUENTLY ASKED QUESTIONS
Divorce brings up both legal and emotional questions. On this page, we have attempted to answer some of the more common ones. Because individual circumstances differ, nothing on this page (or this website) should be considered an acceptable substitute for personalized legal or family counseling.
If you would like to arrange a confidential consultation with a Board Certified Family Lawyer, please contact us via e-mail or by calling (972) 248-8383.
What does "community property" mean? Texas is a community property state. Although there are exceptions to every rule, community property is subject to a division in the event of a divorce, including debts. Before the community estate can be divided, it must be characterized. The estate is not merely divided by giving each side 50%. Instead, several questions are asked to determine what a "fair and equitable" division of that estate should be. For example, items that would be considered as part of the community estate could consist of cars, houses and other property obtained during the marriage.
In Texas, property that is considered the separate asset of a party is generally not divided. It is only the community estate that gets divided. For instance, if one party owned a house before the marriage, that house would remain the property of that person after the divorce is settled. However, there are also rules that might give the other spouse a claim of reimbursement if certain criteria are met. Other separate property items may include such things as stocks, businesses, inheritance and gifts. Whether each item of the marriage is characterized as community or separate is one of the keys to the final outcome of the division of property.
Many times, the determination of how an article of property will be categorized can be difficult. In these circumstances, "tracing" is often used to make these determinations. Tracing develops relevant evidence for the tracking of an individual's separate property through the entanglement with community property. Often when tracing is used, expert witnesses are needed to testify to the evidence or give appropriate appraisals of the property's value.
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Does Texas law allow for alimony? Until recently, Texas was the last state without alimony. Recent changes in the law, however, have opened the door to very limited spousal support after divorce. The possibility and probability of spousal support will be evaluated by your lawyer and factored into the strategy of the case. Back to Top
Can my spouse and I settle our differences out of court and just get a judge to approve the settlement? There are several different avenues for resolving marital dissolutions out of court-such as mediation and collaborative law-and these tools can greatly improve the financial and emotional factors of a divorce. However, your decision must be carefully thought through. After the divorce is over, it is often too late to change your mind. It is imperative that you consult with a qualified, Board Certified Family Lawyer before agreeing to anything. Particularly if there are children involved, you want to make sure that their best interests are taken into account. Ultimately, most cases are resolved without a final trial. Back to Top
What is the custody law in Texas?In the State of Texas, a divorce cannot be granted without settling what is in the best interest of children involved and the division of the community property. In the event that both parents cannot determine a mutual plan for child custody in Dallas, the court will make the decision. Depending on the age of the child, the court will often weigh the wishes of the child when making its decision. However, in all child custody cases, custody is determined by what is in the "best interest" of the child. The court also takes into consideration that either overruling or granting the child's wishes could be against the child's best interest. The determination can depend greatly on the child's age and maturity.
Custody is generally thought of as either Sole Managing Conservatorship or Joint Managing Conservatorship. Unless proved otherwise, courts will presume joint managing conservatorship to be in the children's best interest.
Sole managing conservatorship means that one parent has the majority of the legal rights regarding the children and makes the majority of the substantive parental decisions.
In most, though not all cases, the child will reside with one parent while the other parent will have specified periods of access.
Joint Managing Conservatorship means that both parents share the children's substantive parental decisions. Despite popular belief, "joint custody" does not mean the child spends half of the time with one parent and the other half with the other parent. In fact, joint custody has little to do with the actual time either parent spends with their children. Instead, it relates to the legal issues associated with raising children. In some cases, the most important legal right is the establishment of domicile, or the determination of where the child will physically live.
Over the past several years, domicile restrictions have become more and more popular. That is, though one parent may have the right to establish the residence of the children, that residence must be located within a certain geographic boundary. That boundary can be a school district, city, county, state or even country. Most often, the children's residence is limited to a county or group of counties. However, every case does not necessarily require a domicile restriction.
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What is the child support law in Texas? Child support, in most instances, is based on the Texas Child Support Guidelines. To put it simply, child support usually ends up being 20% of the obligor's (the party paying support) net pay for 1 child, 25% for two children, 30% for 3 children, and so on, up to a maximum of 40%. In Texas, the courts most often require the obligor to also pay for the children's health insurance.
The issue of child support usually arises in three contexts: support paid pursuant to a divorce or modification of an order, support ordered from a finding of paternity, and enforcement of an existing support order.
Courts want to see children provided for. If a judge orders one parent to be the primary conservator of the children, he or she will usually order the other parent to pay support. Likewise, if the children change from living with one parent to living with the other, then the support is likely to shift.
If support has already been ordered, sometimes a modification of the amount of support is necessary. Either the paying parent changes jobs and the pay decreases or the receiving parent desires an increase in support due to various reasons. Once three years have passed since the signing of the last order, a party seeking a change need only show that the support obligation is not within the Texas guidelines. Prior to the passage of three years, that party must also show that there has been a change in circumstances that warrants an increase or decrease in support.
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What is contempt? Contempt is a remedy that is often used to compel the parent who has been ordered to pay child support and who has failed to do so, to appear in court to offer a legal excuse for failing to pay the support as previously ordered.
Contempt is also the remedy that is used when one of the parties violates an existing order by denying access to children, violating the other party's rights in certain items of property or, on some occasions, by physical or verbal attacks that have been prohibited by the court.
The Court has the power to punish the party violating the court's order by placing them in jail, fining them, or both. The Court can also enforce payment of support arrearage by placing the violator in jail until the monies are paid.
These are, of course, extreme remedies and before a court will use these remedies, the attorney bringing the motion must have met a great number of technical requirements. These are the most detailed motions that a family law attorney can bring, since the accused party can lose his or her freedom. It is essential, therefore, that any lawyer bringing a contempt motion be well trained and experienced in these matters since even a small technical defect can cause the motion to fail.
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How do paternity cases work? When contemplating a paternity case, all other issues about child custody, visitation, and support apply. In these cases, however, there is another factor: Who is the father? It doesn't always matter that he's on the birth certificate. If the parties were not married when the child was conceived or born, then the man will not have conservatorship or visitation rights and will not be obligated to pay any support until he is found by a Court to be the father (or in the case of a temporary hearing, until the paternity tests have found him to be the father by way of a DNA test).
Once a man is found to be the father he may:
. be required to pay child support
. exercise visitation with the child
. make decisions concerning the raising of this child
. take custody of the child
Therefore, it is important to have attorneys who can explain all the aspects of paternity and the consequences that follow.
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My ex-spouse lives in another state now. What laws apply to cases like ours? Issues regarding children are treated under 2 areas of law, the Uniform Child Custody Jurisdiction and Enforcement act (UCCJEA) and the Uniform Interstate Family Support Act (UIFSA).
The UCCJEA deals with custody and visitation issues. It requires an original action to be started in the home state of the children. The home state is typically where the child has lived for 6 months or, if the child is not 6 months old, then where the child has lived primarily since birth. Suits to modify prior orders are brought in the same state and the same court from which the original order came, unless (1) there is a new home state of the children (they have been living in a new state for 6 months or more) and there no longer exists sufficient evidence in the original state to make a lawsuit there practical.
Child support is treated in a different area, under UIFSA. Under that law, so long as a parent is still residing in the original state where the first order was done, any modification of the support portion of that order will remain in that state. If both parents move from the original state, then the parent who wants to modify the child support must go to the state of the other parent and file the action. Once the action is filed and an order is entered, it will stay in that state until a parent no longer resides there.
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Will our divorce scar our children? Chronic conflict and stress is hard on children, emotionally as well as physically. Children under stress are more vulnerable to physical illness, problems at school, and problems with others. As a parent, you are in a better position than anyone else to answer this question about your own children. If you are chronically unhappy, stressed or depressed in your marriage, that has already had a negative impact on your children.
So rather than asking whether a divorce will harm children, the better question is "Will a divorce resolve or result in more or less stress for the children?" Once you answer this question, you will have better insight into the potential impact divorce will have on your children.
Any change - even if it is ultimately for the better - is stressful. Keep this in mind and make use of community resources - extended family, clergy, or mental health professionals to help your family through the divorce if you decide this action is the best choice. Back to Top
How do we tell our children we're divorcing? In most cases, it's best that you and your spouse tell your children together, if possible. It is important to let them know it is an adult decision that you both believe will make your independent lives better.
Many children have misperceptions about having to choose a parent, not being able to see the non-primary parent, or even having to go to court. So it is important that you both educate your children together about what to expect in the upcoming months and reassure them that you will always be a family, although you will not always be living together.
Listen to you children's concerns. Encourage your children to talk so you can address possible misperceptions.
Let your children know that you support their relationship with the other parent. Tell your children that it's okay to love and miss the other parent and that having these feelings is natural.
Most importantly, tell your child she or he will not have to choose one parent over the other. It's important to reassure your children that they still have two parents who love them, that they will eventually have two homes, and that they will be living some with Dad and some with Mom.
Remember that your children will look to how you and your spouse are coping with the upcoming changes. Your confidence and your reassurance about the new changes in the family will instill confidence in your children.
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Our relationship is so strained that we have a hard time being civil to each other. How can we protect our children? Conflict between parents is extremely hurtful to children. Find a neutral mediator or a therapist to help you and your spouse focus on the needs of the children. Use your neutral person to help you both tell the children about the upcoming divorce and your hopes that the strife between the two of you will lessen by living independently.
Be very careful to keep your children out of the middle. Resist any urge to draw your children into the divorce issues. Children caught in the middle feel like they are in a war zone.
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The kids will be with me most of the time. How can I make sure they maintain a healthy relationship with their other parent? Children tell us they most often miss the parent they are not with at the time, so you need to let your children know it is natural and normal to miss the absent parent. Give your children permission to call or see the other parent.
Teach your children how to deal with feelings of missing the absent parent. Show them how to telephone, e-mail or help them arrange a meeting with the absent parent. Your showing them how to reach out is teaching them how to cope, as well as a demonstration of your support for the other parent. It is a physical demonstration of permission to love the absent parent.
Eventually, you and your spouse will have legal documents that will likely provide for set periods of visitation for the other parent. Although your children don't need to know the details of the Court's orders, they should know that they will be able to see the other parent on a regular basis. Even though your legal documents will outline specific periods for both parents, you will have the ability and responsibility to work with the other parent and be as flexible with the children's schedule as possible.
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My kids don't live with me. How can I maximize our time together and maintain a close relationship? Frequent contact across a variety of contexts - meals, homework, sports practice, discipline, bed-time - contribute to a rich parenting relationship that mirrors normal family life. Try to interact with your children in these types of natural, everyday experiences. It will feel good and right to them.
Establish independent lines of contact with teachers, therapists, friends, neighbors, and extended family. This will help you continue to play a part in your children's lives without interruption and without infringing or becoming too dependent on the primary parent. Knowing your children's schedules and habits at their primary home will help you normalize their experience at yours.
Finally, remember that your children have two homes, not just one. Don't make the mistake of "taking the children home" after your period of possession. Keeping this mindset will help you create a fulfilling family life for the children.
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How can we best avoid conflict in the divorce process? Unlike other lawsuits, a divorce can be accomplished through a variety of ways. Collaborative law is one of the newest and most exciting forms of resolution. Even though both parties have attorneys, it is an avenue of divorce resolution that avoids formal litigation and the courtroom. The parties are free to use mediators, financial planners, counselors, extended family, members of the clergy or anyone else that might be helpful in resolving the divorce issues. Attorneys practicing collaborative law must undergo specialized training that is not available in all areas of the country. (The Board Certified Family Lawyers at The Anderson Law Firm have received this specialized training and are active in the collaborative law movement.)
If you use a more traditional and formal approach to the divorce process, many cases can be resolved in formal mediation. This is a process whereby the clients are represented by attorneys and a third party - a mediator - works with each side to resolve disagreements without the cost and stress of a contested trial. Because the mediation process is so successful, many courts make mediation mandatory so that families avoid the cost and strife of formal litigation.
If your case goes to trial, it is important to educate the children about the process in a general way. Sometimes a judge will speak with older children. Sometimes children believe they will have to choose a side. Before you educate your children, talk with your lawyer and get guidance from professionals about what you should and should not tell the children.
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My spouse is telling the children negative things about me and our break up. What should I do? First, listen to your children's thoughts and feelings. Gently learn about how such information was obtained. Do not criticize the other spouse. Rather, if your child holds a misperception, correct the misperception factually without judgment.
Be realistic. Even parents within intact families make critical remarks of one another. Forgive and try to understand small transgressions. If possible, talk to your spouse about working together to protect your children from strife.
If the problem continues, your children will be harmed, so you must take action to protect them. Talk to your lawyer about options, mediation, a therapist, or even a court hearing that might provide needed relief. Judges generally have little tolerance for parents who say bad things to their children about the other parent because it is so very harmful for the children.
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How do we help our children with setting up two households? Involve your children in the process of setting up two households. Mix old and new from their bedrooms. Avoid having the non-primary spouse start new bedrooms from scratch. Work together, and let your children see cooperation.
Avoid becoming territorial with toys and clothing. Such things belong to the children - not to the adults. Invariably, children will unintentionally leave a beloved toy or homework at one household. Work together to straighten out such problems.
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How do I help our children cope with the problems of divorce? Listen and talk. Just listening to your children's concerns and feelings is enough to provide them great relief. You don't have to solve all of their problems. Sometimes just listening is enough.
Talk to your children, shepherd them through the divorce process. Allow them to disagree with you or be angry with you. This will pass.
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What can I do to make to make this process work out well for everyone? Take good care of yourself and your children. Be aware of the effects of stress and do as much as you can to prevent stress from taking over your lives.
Remember to have fun with your children. Eat healthy meals. Exercise. Make sure they and you get a good night's sleep. These stress busters will help your children cope with the upcoming changes.
Be Optimistic about a better future for everyone. Optimism is contagious. If you cope well with the changes, your children will likely follow your lead.
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What should we tell the children about litigation, if anything? Resist the temptation to involve your children in any aspect of the divorce. If the children are naturally curious or have heard statements about the litigation from your spouse or extended family, do not discount their feelings or questions. Calmly explain to them that these are adult issues that do not concern them.
Always take the high road. Your children are part you and part your spouse. Any criticism of your spouse reflects poorly on the self-esteem of your children. Find a balance between keeping the children out of the process and answering questions by explaining to them that everything will be alright, that both parents love them, and that the divorce will not affect that love and affection by both parents.
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I need to get on with my life and want to start dating. What should I do to protect my children? If your divorce is ongoing, it's best to hold off on dating. Put your children first. Remember that they are already upset, confused and perhaps angry. Adding a new person to this dynamic in the middle of a divorce could have traumatic effects on your children's lives.
You have a lot to deal with going through the process of a divorce with children and property issues. Don't add to an already complicated situation. Focus your energies on your children and on helping them through the process rather than satisfying your socialization needs by going out on dates. There will be plenty of time to begin new relationships after you have closed this chapter of your life.
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Now that we've separated how do I handle the fact that our child spends time in two different households? This is not a turf war. It's your job to help make your children comfortable in both your home and the home of the other parent. Recognize and understand that the children are going through great changes and they need reassurance from both parents that it's okay to enjoy time in both households. Make sure you provide photos of your spouse in their bedroom at your home. Offer to provide a family picture or picture of yourself for their bedroom in your spouse's home. All of your efforts to help transition the children from a one household family to a two household family will payoff in the resulting adjustment of your children. What more could a parent want?
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I'm having trouble getting my children's school and medical information from my spouse. What is the best way to deal with this situation? Be pro-active. Take the responsibility of getting the school and medical records yourself. Back to Top
My child doesn't want to visit with my spouse. What should I do? Gently explore with your children why they don't want to spend time with their other parent. Make sure they know that they can come to you with any concern.
If, after speaking to your children about their reasons for avoiding visitation, you determine that your children are being abused, seek help from your attorney or law enforcement authorities.
However, unless you believe your child is being harmed, you should support frequent and ongoing contact with the other parent. Be enthusiastic when you talk about visits with the other parent. Talk about all of the activities your children and the other parent will enjoy. The more supportive you are of the visit, the more likely your children will want to go and will enjoy their time.
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Our children want to attend their regular sporting practices and games, but some of those events take place during my spouse's visitation days. Doesn't my spouse have to take our children to these activities? This question illustrates the importance of co-parenting. Talk to the other parent about the problem and try to work out an informal solution if you can. If necessary, talk to your attorney, but keep in mind that this type of issue will come up repeatedly as you and the other parent work together to raise the children. Work on give-and-take. Offer compromises.
If you have to go to the Judge, you should talk to your attorney about the realistic outcome of such an action before you file a motion. As a general rule, do not schedule any activities during the other parent's time with the children, unless you and the other parent have agreed to such activities Do not involve your children in the problem.
In most circumstances, a parent will have the choice of whether to take the children to the practices or games during their periods of possession. Although some courts will allow children some continuity in a limited number of activities and, therefore, order both parents to take them to certain events, many times a parent will simply have the choice of whether to take the child to the activity. If the event is important to your child, then discuss the activity with your former spouse before signing your child up for it. Also, limit the number of activities so that the other parent will not feel as though his or her entire time with the child is spent going to one activity after another. Often, a parent will see this as an attempt by you to interfere with the relationship they have with your child.
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How do I stop my spouse from fighting with me in front of the children? Ask the other spouse to please refrain from discussing any adult issues within the hearing of the children. Make yourself available to discuss your spouse's complaints, frustrations and/or concerns as soon as possible.
As it is an issue that your spouse believes to be important, don't put it off. Instead, give an alternative setting in which to air complaints, frustrations or concerns. Consider sitting down with the spouse before the first visitation period and asking to formulate some ground rules by which the two of you will discuss issues pertaining to the children and issues pertaining to property. Your lawyer can help guide you with an agenda of items to consider and present.
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My children take medication regularly but my spouse refuses to send it with them during my periods of visitation. What should I do? Bring the issue to your spouse's attention and find out what the problem is. Is it the cost of medication that causes the other parent to avoid giving it to you? Does the other parent think it is your responsibility to go out and get your own medicine? Once you know the underlying reason for the refusal, you are better able to come up with a solution.
Talk to your children's doctor to see if you can get a prescription to keep in your home. If you are not able to get a second prescription, consider scheduling a meeting with the doctor and the other parent so that the doctor may tell both of you how important it is that the children receive their medication.
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My children keep asking when we're going to be a family again. What should I tell them? Respect that your children are feeling insecure and want their ideal family back. Seek professional guidance from a child psychologist or therapist to learn how to respond to your children's inquires. Reassure your children that they have two parents who love them very much, and that nothing about having two households diminishes how important they are to both you and your spouse. For example, emphasize the positive parts of the divorce such as no more arguing, more one on one time with each parent, double Christmas, etc.
Even if you hope for reconciliation, do not get your children's hopes up by letting them know this. Your children are quite fragile during the divorce process and do not benefit from having unfulfilled high hopes or being disappointed.
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My children keep asking me about the litigation. What should I say? Even though a divorce or modification suit isn't your children's fault, they might blame themselves. Reassure them that the divorce and the litigation are not their fault.
Shield your children from the litigation as much as possible. An answer that keeps the child from becoming involved in the issues of the action will be of most benefit. For instance: "This is something your father and I need to work out, and you don't need to worry about it. Your father and I love you and we will always love you."
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My ex-spouse keeps talking to our child about the litigation. Can I do anything about it? Children should certainly not be exposed to the details of court actions involving them. If your former spouse is willing, try going to a counselor or sitting down with a mutual and trusted friend to work out how to interact with your children in a positive and appropriate way. If that doesn't work, then consider court intervention. A judge can make specific orders for the protection of children, which may include orders to refrain from such discussion or, in some extreme cases, orders that limit or even supervise the access that the offending party may have to the child.
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My children constantly talk about my ex-spouse's new love interest. They have even told me that the new person sleeps over. How should I react? It is important for your children to feel as though they can come to you about any subject. If you react negatively about a new love interest, then they will likely either not get along with that new person, or feel as though talking to you about him or her is a bad idea, particularly if your children like the new person. Either way, your child loses.
Instead, have a positive attitude. If it's a new boyfriend or girlfriend of your ex-spouse, encourage your children to give this person a chance. If it's a more serious relationship, then say things to your child that will let him or her feel good about liking this new person. At the same time, remind your children that they can come to you at any time if there is something about the new person that causes any concern. Not only will it help your relationship with your child, but it might also help your relationship with your former spouse.
If you are concerned about the message it is sending to your child to have a new love interest stay overnight, talk to your children about the choice that your former spouse is making and discuss why it might be a good choice or a bad one. If your former spouse is willing, try going to a counselor or sitting down with a mutual and trusted friend or member of the clergy to work out how to deal with the new love interest in a positive and appropriate way. If it gets to be a real problem or if you are against your child being exposed to adults living as a married couple when they're not, and your former spouse continues to let it happen, then you can seek court intervention. Some judges will see it your way and prevent any adults of the opposite sex from spending the night when your children are there. However, if you do that, you must expect the relationship between you and your former spouse to be damaged.
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My child tells me that my ex-spouse's parents keep saying bad things about me. What can I do? First, listen to your children's thoughts and feelings. Gently learn about how such information was obtained. Do not criticize the other parent. Rather, if your child holds a misperception, correct the misperception factually without judgment.
Be realistic. Even families with parents who are not divorced make critical remarks of one another. Forgive and try to understand small transgressions.
If possible, talk to your former spouse. If he or she does not know this is happening, then it may solve the problem. If the problem continues, your child will be harmed, so you must take action to protect them. Talk to your lawyer about options, mediation, a therapist, or even a court hearing that might provide needed relief. You will find that if you need to go to court, judges generally have little tolerance for parents, and even extended family, who say bad things to children about their parents.
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My ex-spouse and I are different religions and we each teach our children about our beliefs and practices. Isn't this confusing for our children? Courts will often not give orders providing for a specific religion for a child. However, that does not mean that you should not address the issue. Your children will likely not be damaged by learning about two different religions, just as they won't be damaged by learning two different languages. Explain the differences between the two religions to your children and offer a safe environment in which they can talk to you about those differences and their individual preferences. Back to Top
My ex-spouse can make more money, but chooses not to so that he can avoid paying more child support. Can I do anything? The courts of many states can help you. "Intentional under employment" is a theory by which a person is able to make more money, but chooses not to. If you are able to demonstrate that they are making less money specifically to avoid paying more child support, the court of your state may have the authority to order child support in an amount that would be paid if the other parent were making the amount of money he or she is capable of making. Back to Top
My ex-spouse won't follow the court's order. What can I do? Any violation of the court's order may be addressed through enforcement. This will include a failure to pay child support on time or at all, a failure to allow visitation or a failure to return a child at the end of visitation. In most states, an order may be enforced by a finding of contempt, which can include time in jail, fines, the award of attorney fees, or a requirement that a bond be posted.
It is also a general rule that child support and visitation have nothing to do with one another.
Therefore, if your former spouse refuses to pay child support, your remedy is a motion for Enforcement. You should not take matters into your own hands and withhold the child.
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What do I do when my ex-spouse keeps buying our children expensive gifts and I can't keep up? Talk to your former spouse about the lessons expensive gifts teach. If that is impractical or if it doesn't work, then it will be up to you to talk to your children about those lessons. Money doesn't buy happiness and what is really important are family, faith, honesty, etc. Many children are persuaded by expensive gifts and you can't stop your former spouse from buying them. What you can do is teach your child the right values. Back to Top
Every time my former spouse wants to change the visitation schedule, she has our children call and ask. Isn't this wrong? Yes. When your former spouse puts your child in the position of a messenger, that child carries a responsibility that he or she should not have to bear. That, in effect, forces the child to take on the adult role because the parents are acting like children. Suggest to your former spouse alternative ways to communicate - e-mail, voice mail, letters, or a phone call. Even using a mutual friend to pass along communications is better than having your children do it. If your former spouse continues to use the children as messengers, a court can order an alternative method of communication. Back to Top
My ex spouse has re-married and they're planning to move to another state because of the new spouse's job. What can I do? A move to another state certainly must affect the relationship between the child and the parent left behind. Often that relationship is hurt. We have found that children of parents separated by distance most often miss the parent left behind a great deal. If the children have a close relationship with the non-custodial parent, then a move should be avoided if at all possible.
Many states have policies that prevent such a move unless there is a very compelling reason. Some states, however, have incorporated just the opposite view into their family codes and routinely allow a move unless the remaining parent can show a good reason why the move would be bad for the children. If your children have a very close relationship with the non-moving parent, travel will be hard, the child is very young, thus making travel even harder, etc., then a court, may well prevent the move.
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