Divorce Legal Questions

While I strongly advise speaking with, and probably retaining, divorce counsel to finalize your divorce, the steps are as follows, subject to local rules which vary by county: Each of you must sign an Affidavit of Consent and file the same with the court. I suggest that each of you also sign a Waiver of 20 day Notice which must also be filed. The Plaintiff must sign Affidavits of Non Military Service and of Defendants Signature which must be filed. The Plaintiff must file a Praecipe to Transmit the Record. I trust this has been helpful, but you are welcome to call or email me on a free initial basis.    Matthew R. Nahrgang, Esquire 35 Evansburg Road, Ste 400 Collegeville, PA 19426 610 489-3041 o 610 489-3042 fax mnahrgang@verizon.net nahrganglaw.com... Read Answer

Yes, a spouse can sign a power of attorney authorizing someone else to take care of any matters the spouse could personally do, as long as they mentally competent, regardless of whether they are incarcerated or not.  A spouse does not have "a right to everything" if the other spouse is incarcerated.  Spouses often own community property which is subject to their joint control.  A spouse signing a power of attorney does not negate the other spouse's rights with respect to joint management community property.  Spouses often also own property that is one spouse's separate property or is the sole management community property of one spouse.  A power of attorney signed by a spouse can give the attorney-in-fact named in the POA the authority to control the separate property and the sole management community property of the spouse that signed the POA.... Read Answer

During a divorce, there is a rebuttable presumption that all of your marital assets are community property, regardless of which spouse's name is listed on the title.  A party claiming to have a separate property interest in an item of property (for example, because they traded in another vehicle they owned before the marriage or used separate funds which were in a bank of account before the marriage) has the burden of proving their separate property interest by clear and convincing evidence, which often requires undisputed documentary evidence.  This usually isn't a factor in a marriage that has lasted "years."Upon divorce, your community property will be divided by the court in a manner that is "just and right" which does not necessarily mean 50-50.  The evidence you detail in your question will be considered in making a "just and right" division of your marital assets.  In most cases, barring unusual evidence, each spouse is awarded the motor vehicle they usually drive and is responsible for paying any debt owed that is secured by the vehicle.  If there is a significant disparity in value or equity, the court typically adjusts that using other assets.  Awarding a motor vehicle to one spouse while making the other spouse responsible for the debt is a recipe for post-divorce conflict and proceedings.  A competent and experienced attorney will strongly caution you against agreeing to such an arrangement.  A competent and experienced judge typically will not order it.  ... Read Answer

Most agreed or default decrees are signed at the prove-up hearing when they are handed to the judge.  It usually only takes a few seconds.If the parties have a dispute about the contents of the Decree, either party can file a motion to enter and set it for hearing.  Any dispute will be resolved at that hearing.  That may require the Decree to be revised.  If not, the judge typically will sign it at the end of that hearing.... Read Answer

That is untrue.  Typically, when parties file for divorce, they either agree or the court enters temporary orders detailing which party gets exclusive temporary use and possession of real estate, motor vehicles, and potentially other property and which recurring bills each party is ordered to pay during the pendency of the case.  Such temporary orders may also include temporary support for a spouse or any children of the marriage, interim attorney fees if one party in in control of most of the community funds, and a parenting plan for custody & possession of any children.It is not automatic that each spouse must pay 1/2 of all bills.  ... Read Answer

I believe you are mentioning a Provisional Order from the court hearing your case.  If you have an Order requiring your spouse to pay certain debts and s/he does not do so, your remedy is to file a Motion with the Court requesting enforcement of these Orders.  Of course I would suggest documenting your efforts to obtain compliance from your spouse via text or email, but you can apply to the Court for a hearing (15 or 30 minutes should do) in order to enforce the Orders.  You can request your spouse pay a certain amount to the vendor or perhaps even into the Clerk's Office to secure bills s/he is not paying.  Make sure to request payment of penalites/late fees also.  Good luck!... Read Answer

In order to enforce a court order by contempt of court, the order typically must be signed and the party against whom the order is being enforced must have actual notice of its contents.In divorce cases, the written temporary order memorializing the associate judge's rulings at the temporary order hearing is typically prepared by the petitioner/movant's attorney and circulated to the respondent's attorney to be approved as to form or to make any objections within a couple of days after the temporary order hearing. If there are no objections to the form of the order, it is typically signed by the judge within a week of the hearing.  A temporary visitation order can also be enforced by means other than contempt of court, for example by giving make-up visitation time to the parent deprived of a scheduled visit.Sometimes, for strategic reasons, it is unwise to ask the court to strictly enforce a court order against the other party because the violation itself might be evidence of something you want to show the court about the other party that may enhance your case or weaken their case.  ... Read Answer

It would be unwise to terminate your husband's phone line, but you are under no obligation to pay the phone bill unless and until the court orders it.In most situations, you can have your phone company move your own phone line to a different account in your sole name, which you would then pay.  Then leave your husband's phone line in the other account in both your names which, in the absence of a court order, you have no obligation to pay.If your husband doesn't pay, the phone company generally solves the problem for you.... Read Answer

Typically, when a marital residence is subject to a mortgage loan but is awarded to one spouse in divorce proceedings, the dispossessed spouse signs a "Special Warranty Deed" conveying their interest in the residence to the spouse to whom the residence is awarded, and that spouse in turn signs a "Deed of Trust to Secure Assumption" of the mortgage debt.  You should contact the attorney who handled your divorce proceeding to ensure that the appropriate ancillary documents were properly executed and recorded in the Deed Records.... Read Answer

I see that you are in New York. As an Annapolis divorce lawyer, my legal knowledge is limited to the laws of the state of Maryland, which may differ from the laws in your state. Having said that, even after a divorce has been finalized, it may be possible to address hidden or undisclosed assets if they come to light. However, the process can be complex and the laws that apply can vary significantly from state to state. For instance, some states operate under "equitable distribution" laws where assets are divided fairly, but not necessarily evenly, while others, like Maryland, are "community property" states, where all property and assets acquired during the marriage are generally divided equally. In a situation where a divorce has already been finalized, it's important to act swiftly. Time limits may apply for bringing such matters back before the court. It may be necessary to file a motion to reopen the divorce case, or there might be other legal avenues available depending on the specific circumstances and the laws of your state. Because of the potential complexity and the significant impact these matters can have on your financial future, it's crucial that you seek out a New York attorney who has experience in divorce litigation and who can provide guidance tailored to your specific situation. While I can provide general advice based on my knowledge and experience in Maryland, a local attorney will be able to help you understand the details of New York law and how they apply to your case.... Read Answer

In general, signing the birth certificate as the father is an acknowledgment of paternity. However, different jurisdictions have different rules on this matter. For example, in many jurisdictions, if a woman is married but separated from her husband, and she becomes pregnant by another man, the law may still recognize her husband as the legal father of the child. This is the "presumption of paternity" principle, which holds that a woman's husband is the presumed father of any children born during the marriage. It can make things legally complex when the biological father is someone else. The situation you described is a complex legal issue that could involve both family law (concerning divorce and child custody matters) and paternity law. Disestablishing the presumption of paternity and having the biological father recognized legally could involve a court proceeding and may require DNA tests. To get the most accurate advice for your specific situation, you should reach out to a legal professional who is well-versed in family and paternity law in your jurisdiction. Understanding the specifics of your situation would enable an Anne Arundel County divorce lawyer, or a competent attorney from your jurisdiction, to advise you on the best course of action to take in this case.... Read Answer

If your ex-husband is filing endless motions in your divorce case, and if they are consistently denied, then you could probably move for sanctions under Md. R. 1-341. This would allow the judge to reimburse you for your counsel fees. On the other hand, if he is filing cases against you outside of the divorce action, then you may have claims against him for abuse of civil process or malicious use of civil process. The problem however is that one of the elements for both causes of action is "special damages," which typically requires arrest or seizure of property. If the husband's actions, for instance, have lead to a foreclosure, then you could have the requisite damages that would allow a Baltimore County divorce lawyer or civil practice lawyer from your specific jurisdiction to pursue the claim. If you do not have arrest or seizure of property as damages, then your best bet would be to hire an attorney, and then move for Md. R. 1-341 sanctions during and after the cases, assuming that you are consistently prevailing.... Read Answer

Your best course of action is to contact an attorney who practices in the area of divorce law in or near the county where you and your husband live.That attorney can explain to you that property inherited by one spouse is that spouse's sole and separate property and is not community property.  If your husband inherited assets from his family (or really from anyone else), those assets are his sole and separate property and you have no community rights to them.You may be entitled to spousal maintenance under the Texas Family Code if you are destitute and homeless.  There are specific statutory requirements that you must satisfy, and spousal maintenance is limited in amount and duration.  You will need proof of your efforts to secure gainful employment or of any disability that prevents you from securing gainful employment.... Read Answer

Yes, there can be repercussions for not abiding by a court order.  The divorce court that issued the order might hold your ex-spouse in contempt of court, might enter other orders to enforce its property division, or might need to clarify the decree so that its order is clear and unambiguous enough to enforce by contempt.  The attorney who assisted you in your divorce proceedings should be able to discuss your options for enforcement including the anticipated cost of further proceedings.... Read Answer

As a general rule, a lawyer cannot charge s $300 "transfer fee" for transferring your file to a new attorney.  He would only be able to bill you for the actual time he or his staff expended in gathering your file together, physically or electronically, and then delivering them to your new attorney.... Read Answer

If you and your husband purchased the new house during your marriage using community funds, then it is most likely community property subject to a just and right division as part of your divorce process.If there is a mortgage on the new house, in most circumstances, if the court awards the new house to one spouse, that spouse will also be obligated to pay the mortgage payments.  If both spouses are on the mortgage, the spouse to whom the house is awarded will sign a deed of trust to secure assumption to protect the other spouse in the event of a future failure to pay the mortgage.  If there is substantial equity in the new house, the spouse to whom the house is awarded may be ordered to pay a sum of money to the other spouse, which in most such circumstances will be protected by an owelty lien.Alternatively, the court may order the parties to sell the new house and then divide the net proceeds between you in a manner that is just and right.  ... Read Answer

There is no proper legal status called a "legal separation."  It is legal, meaning not unlawful, for spouses to separate at any time, with or without the ultimate goal of obtaining a divorce.  In practice, spouses usually separate at or before the time one files for a divorce.Your marital status as of the end of your tax year will determine what marital status to claim on your federal tax returns. Your accountant would best be able to explain to you whether it will be to your advantage to complete a divorce proceeding before the end of the year to take advantage of the "single" filing status or whether it would be to your advantage to wait to complete a divorce next year in order to file either a "joint" tax return or "married, filing separately."There is a mandatory sixty day waiting period in Texas from the time you file for divorce before a divorce can actually be granted.  In practice, because of the time it usually takes to negotiate and prepare a final decree of divorce and schedule time with the court for a prove-up, I'd give it six months.... Read Answer

Dear Anonymous:   Congratulations on resolving your divorce issues amicably.  However, you do still have to file a petition for dissolution of marriage and appear before a judge for the divorce to become final. If you have no children, you can file for a simplified dissolution of marriage, where both your spouse and you file the petition jointly and appear before the judge jointly. To get started, click on the link below or paste the link into your browser, where you can find the forms to file the petition for simplified dissolution of marriage.  There are also instructions that will guide you through the process. https://www.flcourts.gov/content/download/685807/file_pdf/901a.pdf Best of luck, Cindy S Vova Family Law Offices of Cindy S. Vova, P.A. Broward/Miami-Dade:  954-316-3496 Boca Raton/Palm Beach: 561-962-2785  ... Read Answer

Maybe if your new house is community property.In a typical divorce case, your attorney will ask for temporary orders during the pendency of the case.  Temporary orders typically include awarding one party exclusive use and possession of a house and, most often, a motor vehicle.  In the absence of a protective order due to domestic violence, you likely will not have much luck excluding your husband from a residence that is community property unless and until temporary orders are entered awarding your exclusive use and possesion of the home.... Read Answer

Marital property is defined as property acquired from the date of marriage to the date of separation.  If the house was acquired during that time, and marital funds were used to buy it, the record owner is irrelevant as it is marital.  If it was his before the marriage, the increase in value during the marriage is also marital. I trust this helps somewhat and you are welcome to call or email me on a free initial basis as I do practice in Chester County. Matthew R. Nahrgang, Esquire 35 Evansburg Road, Ste 400 Collegeville, PA 19426 610 489-3041 o 610 489-3042 fax mnahrgang@verizon.net nahrganglaw.com ... Read Answer

Generally speaking, your divorce decree creates binding obligations between you and your former spouse.  It typically does not (and cannot) in any way limit a third-party creditor's rights against either you or your former spouse because the creditor was not a party to your divorce proceeding.When the parties have a joint debt obligation, including a tax debt, at the time of divorce, the court typically includes provisions as to how those debts are paid.  A typical provision begins with the language similar to the following:"IT IS ORDERED AND DECREED that Petitioner A.C. shall pay, as a part of the division of the estate of the parties, and shall indemnify and hold Respondent B.C. and his property harmless from any failure to discharge, these items:"This is typically followed by a laundry list of debts which may include 50% of any past tax debt of the parties incurred during their marriage.To enforce this provision against your ex-wife, you would first pay the IRS the entire tax debt, then sue your ex-wife for indemnity seeking a judgment against her for the 50% she was ordered to pay and to indemnify you from any failure to discharge.  You would then get a judgment against her, which likely will include interest and attorney fees, which you could then collect using any of the legal methods available for collection of an ordinary civil judgment subject to the usual property exemptions... Read Answer

Each party in a divorce case has a right to equitable distribution of the marital estate.  Marital property is defined as property acquired after the date of marriage until the date of separation, regardless of whose name it is in.  The parties’ relative income is a significant factor among many in determining the percentages of division as well as what assets are distributed to whom.  More can be explained in a free initial consult. I trust this answers your question but do not hesitate to call or email on a free initial basis.      Matthew R. Nahrgang, Esquire 35 Evansburg Road, Ste 400 Collegeville, PA 19426 610 489-3041 o 610 489-3042 fax mnahrgang@verizon.net nahrganglaw.com ... Read Answer