Can I back out of divorce/separation agreement?

An agreement isn’t binding until a judge signs and enters it. If you find, after consideration and possibly advice of independent counsel, that the terms and conditions enclosed in the Agreement are not tolerable or include things you feel you can not live with, then do not passively allow it to happen to you.  Once the Agreement is entered into the court and made into an Order, you are bound by it. But, you can stop it at any time before that.  (There are ways to open the Agreement and modify certain terms and/or conditions, but they are difficult and costly.)

An Agreement memorializes the things the parties want and agreed to.  If you don’t agree, then its pointless.  Step back from an Agreement that does not represent what you agree to.  Don’t be bullied or coerced into signing.  If you signed it already, you have a last chance at the final hearing to express to the Court that you did not willing sign the Agreement.

torn curtain

Whether you live in an equitable distribution state or a community property state, property (personal and marital) can be put on the chopping block for distribution. The time and money and effort you put into the marriage  has a quantifiable value. I think every party should fight for their fair share.

You should retain a lawyer and fight for the things you are entitled to receive. The short answer to your question is: YES.

 

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Dad Must Pay Half of Daughter’s Law School Costs

Reprinted by Permission – American Bar Association Journal

A Rutgers University history professor will have to pick up half the cost of his daughter’s education at Cornell Law School, which will cost him about $112,500, according to a New Jersey appeals court.

James Livingston is required to pick up the tab because of terms in his divorce settlement agreement, according to a decision (PDF) last month by the New Jersey Superior Court, Appellate Division. The New Jersey Star-Ledger and the National Law Journal (sub. req.) have stories.

The divorce agreement said Livingston would pay half the expenses for his daughter’s post-college higher education, according to the opinion. The agreement also said the daughter would provide Livingston with a copy of her class schedule, grades and financial aid information within five days of receiving them. Both Livingston and his ex-wife were not obligated to make any financial contribution, however, if the daughter did not maintain a C grade point average.

Livingston initially offered to pay $7,500 a year for his daughter’s legal education, provided that she attend Rutgers Law School, live at home with her mother, and provide him with progress reports, according to the opinion. He claimed his daughter should have informed him of financial aid offers from other law schools, and he should have been allowed to jointly decide with his daughter which law school she would attend. He also argued that his continued estrangement from his daughter was a changed circumstance that relieved him of his obligation.

The appeals panel rejected those arguments. A frequently used provision in divorce settlements gives fathers the right to participate in school selection, but Livingston’s agreement didn’t have such a clause, the court said. The court also pointed out that Livingston was already estranged from his daughter when he entered into the divorce agreement.

“If a relationship and a voice in the planning and selection of a school were his expectations,” the court said, “such terms could and should have been included in the agreement. They were not.”

 

How to Find Your Spouse’s Hidden Assets.

What ever happened to that collection of priceless sports memorabilia? What did she do with all the expensive jewelry you gave her over the years?  Are you shocked that your soon-to-be-Ex’s Sworn Financial Disclosure Statement didn’t mention that 2nd IRA you know he has?

Divorcing spouses in all states can use powerful legal tools, called “discovery,” to help them find hidden income and other assets when they are in the midst of a divorce or child support action.

Any court action that will ultimately involve a court order for distribution or payment of money will require financial disclosure statements.  The first step in dividing assets during a divorce is to create a complete financial picture of all of the assets owned by each spouse. Generally, these assets will be categorized as “marital” (property acquired during the marriage), “separate” (property acquired before the marriage, after separation, or by gift or inheritance), or “comingled” (where you’ve mixed marital and separate property together, for example, in a bank account or retirement fund). These are general definitions; the laws of your particular state will dictate exactly how property is characterized.

Even though you may not have ownership rights in your spouse’s separate property, it’s important to account for all of it because (depending on your state’s laws) a court may consider the value of both spouses’ separate property when deciding how to divide marital property and debts.

letmeexplain

Finding Assets When You’re the “Out-Spouse”

If your spouse handled the bookkeeping during your marriage, and you played little to no part in tracking finances, you are what some attorneys refer to as the “out-spouse.” This simply means that you don’t have immediate access to or knowledge of financial information, but your spouse does.

If you’re the “out-spouse,” your first course of action should be to simply ask your spouse for copies of all financial records. If your spouse can and will produce all records, the information gathering process might not be too painful. Alas, this is rarely the case. Sometimes, your spouse simply can’t find the records. If so, the two of you can work together to gather information. With online access to just about everything nowadays, it’s easy to get account records. You can also send joint requests for records to mortgage companies, banks, retirement plan administrators, and other third parties.

Unfortunately, many spouses refuse to produce information because they’re hiding assets. Finding hidden assets in divorce can be challenging, especially for non-attorneys. This article explains what a basic search should entail, but we’re not suggesting that you should conduct every search yourself.

If you believe your spouse is hiding assets, you may want to contact an attorney with experience in asset search and investigation. Even if you don’t suspect your spouse is hiding assets, it’s wise to consult with an attorney to ensure you’re asking the right questions and if appropriate, using the discovery methods listed below.

The Divorce Discovery Process

If you don’t think your spouse will voluntarily disclose all financial information in your divorce, you or your attorney will need to use a formal, legal process to get information and documents. Attorneys and judges refer to this as the “discovery process.” The discovery process provides several methods of getting information, which vary slightly from state to state, but for the most part include all of the following:

Document demands. Your attorney can ask your spouse to produce specific documents, such as tax returns, financial statements, loan applications, and account records.

Written questions called “interrogatories” or “requests for admission.” Using these discovery tools, your spouse must answer questions in writing, or admit specific statements that you believe are true.

Inspection demands. You can ask to inspect property like a safe deposit box or wine collection.

Testimony given under oath. In what’s called an oral deposition, you, your spouse, and your lawyers appear before a court reporter; your spouse is sworn to tell the truth and must answer questions asked by your attorney.

The discovery process is a good way to get financial information from an uncooperative spouse because the court has the power to compel compliance. For example, if your spouse fails to produce documents, you can ask a judge to order your spouse to do so. If your spouse disobeys the order, a court may punish your spouse by imposing a “sanction,” which can include monetary fines or even a judgment against your spouse on a particular issue.

A deposition is a particularly good way to get information from a dishonest spouse. Anyone who lies under oath during a deposition can be charged with perjury. This may be just the right kind of pressure your spouse needs to tell the truth about hidden assets. Typically, you should wait to depose your spouse until you’ve obtained some financial records. This way you can ask your spouse questions about records and information you’ve already examined.

What to Ask For During Discovery

You should ask for documents and information relating to assets, income, debts and liabilities. Don’t forget that assets come in different forms. Tangible assets include cash and other hard assets that can be sold or liquidated like the family residence, cars, jewelry, fine art, a wine collection, and other personal property. Intangible assets include assets such as savings accounts, checking accounts, brokerage accounts, retirement accounts, stocks and stock options, investment income, royalties, copyrights, and patents. So be sure to request a wide variety of records including receipts, loan documents, deeds, title records, account statements, stock certificates, subscription agreements, royalty agreements, tax documents, and W-2 forms.

Start with the tax return

If you’re the “out-spouse,” you probably weren’t preparing or reviewing tax returns during the marriage. It’s essential you examine these during a divorce. Some important areas of a return are covered below. But don’t stop here—tax laws and accounting issues are complex. It’s important to consult a tax advisor if there are complicated tax issues in your divorce.

Form 1040: Income from wages. As discussed in more detail below, this is where you’ll find income from all reported sources, including wages, salaries, tips, interest income, dividends, business income, capital gains, IRA distributions, pensions and annuities, unemployment compensation, and social security.

Form 1040: Interest and dividend income. Income-earning investments like bonds, bank CDs, savings accounts, money market accounts or loans made as a lender will show up here. It’ll also show dividend income like income paid to stock shareholders. If either the interest or dividend income exceeds $400, a Schedule B should be attached that will identify the source of the income.

Form 1040: Retirement plan distributions. Distributions (money received) from a deferred-compensation plan or IRA account are listed on the 1040. If there were distributions, ask where the funds went.

Carryforwards. A “carryforward” is an IRS or state income tax rule that allows taxpayers to save an unused deduction, credit, or loss and use it in a later tax year. For example, you may “carryforward” charitable donations that exceed 50% of your income and apply these in another tax year. Similarly, if you exceed the yearly limit for contributions to your child’s 529 college savings plan by say $2000, you may be able to carryforward the $2000 and use it as a deduction in a later year. These types of credits should be accounted for in the property division.

Refunds. Review old returns to find previous tax refunds. Sometimes a spouse who anticipates a divorce will intentionally overpay taxes for a previous year, expecting to get the entire reimbursement after the divorce is final.

Schedule A: Itemized deductions. This is where itemized deductions are entered including any state and local taxes paid on income, real estate and personal property. These payments may be related to hidden assets located (or income generated) in another state. For example, if your spouse paid property taxes for a property you weren’t aware of, you’ll need to learn the name on title, the purchase date, and the source of any payments on the property.

Schedule A: Miscellaneous deductions. Deductions here may include expenses for tax and, possibly, estate planning advice. If you didn’t know your spouse consulted a tax professional or estate planner, you may want to follow up directly with these individuals. Your search could uncover additional assets, such as a hidden trust.

Schedule B – Part III: Foreign accounts. In addition to the sources of dividend and interest income, Part III of Schedule B may contain a list of your spouse’s foreign accounts and trusts.

Schedule C: Profit or loss from business. Schedule C is used to report profit or loss from a business operated or a profession practiced as a sole proprietorship (a businesses owned by a single owner). Be sure to review the reported sales, expenses of the business, costs of goods sold and net income to get an idea of how your spouse’s business is doing.

Schedule E: Supplemental income and loss. Here you can find income-generating assets including

rental real estate

royalties from literary and artistic works such as music and books

royalties from copyrights, patents, and software

investments in partnerships and S-corporations, and

estates and trusts.

Loan applications and financial statements

Before approving a loan, a lending institution will ask for a completed application, copies of recent pay stubs, account records, and a signed declaration regarding all assets and debts. If your spouse applied for a loan, get a copy of the application as it might reveal hidden income or assets.

In addition, your spouse may have submitted a personal financial statement to a lender. A personal financial statement should include all assets, debts, income, and expenses. It’s basically a report from your spouse to the bank regarding all of his or her own finances and the marital estate. You should definitely ask your spouse (or the lender) for copies of all personal financial statements your spouse prepared.

Trace accounts and cash flow

Tracing (analyzing) accounts and cash flow during the marriage (tracing all money in and money out) may lead to the discovery of hidden assets. In order to perform a complete tracing, your attorney or accountant will need records for all accounts under one or both spouses’ names (whether held alone, jointly, or with a third person). This includes savings, checking, brokerage, trust accounts, and any other accounts used by either spouse during the marriage.

Get copies of cancelled checks and ask for copies of wire transfer documents, including authorization forms and wire instructions, to see if your spouse authorized any major transactions you weren’t aware of. Find out where the funds went. Did your spouse set up another personal account that holds a stash of cash? Did your spouse “gift” money to a relative or friend that your spouse will undoubtedly get back once the divorce is over? Did your spouse move money into a joint account with a third party? Tracing is a great way to uncover hidden assets.

Search for hidden bank accounts

You or your attorney can send a subpoena (a written request issued by the clerk of the court) to any bank where you suspect your spouse has an account. When subpoenaed properly, a bank is obligated to produce all records associated with your spouse’s name. If the bank fails to do so, it can be held in contempt of court.

Review account records carefully. Search for transactions into and out of known accounts. Look for unfamiliar account numbers. For example, if you find a large transfer into or out of your spouse’s account, check to see where the money came from or went. Banks typically list the name of the sending and receiving institutions and the last four digits of all accounts. If you find an unfamiliar account, you may have discovered a hidden asset. Follow up with a subpoena for records to that bank as well.

If you have questions about finding assets in your divorce case, you should contact an experienced family law attorney in your area for advice

My Ex told me to stop paying her the child support. Is this legal?

Only a court of competent jurisdiction can vacate the child support order. If you fail to pay under the existing order you could be setting yourself up for a Contempt charge. If your ex no longer wishes to receive payments from you for the children, she will have to go to the Probate & Family court that issued the order and seek a new order terminating the child support obligations. She will have to give GOOD CAUSE why the court should absolve you totally of your support obligations. Unless she just won the PowerBall lottery and/or is independently wealthy, she will be hard pressed to explain why you should be exempted from the absolute duty to support your children. Another reason why the court might terminate your obligation is in the case of domestic violence.  In the past, where a woman or the children were in danger of retribution from paying spouse, she could claim good cause due to danger of physical harm if the paying spouse knew their whereabouts. Today, this is less likely because the court can arrange to have the payment made to the Department of Revenue for benefit of the children and the spouse need never have any contact with the wife or children.  This will depend on state laws.

Until such time that a court has terminated your child support obligation, I strongly advise you to continue making your payments. If she refuses to accept payments or fails to negotiate your checks, place the money in a trust or escrow account for the benefit of the children. If the contempt charges should later surface, you will have a very good defense and you will have the money to make the arrears payments.

father holding hands with child

The bottom line is: DO NOT STOP YOUR PAYMENTS UNTIL A COURT ORDER TERMINATES OR MODIFIES YOUR OBLIGATION. If you wife should actually take this matter before a judge, then you should retain counsel to assist you navigate this tricky situation.

Can My Husband & I Just Agree How We’ll Divide Our Property?

Verbal agreements between the parties are totally unenforceable in law. You must memorialize an agreement in writing and file it with the appropriate court. Any Settlement Agreement between the parties is subject to approval of the court.  In addition to certain statutory requirements, the Agreement must be “fair”, not entered into under duress and each party should have advice of independent counsel.  Retaining a counselor to draft, file and argue the matter in a court is the best course of action.  This is really not a time for self help.

MA does not recognize legal separations, but does have other provisions to protect the separated spouses. If you are contemplating a separation, consider a separate support petition.  This is will allow a couple to establish a support order for spouse and custodial parent, if you have children.  It will NOT  address distribution of property and does NOT dissolve the marriage.

Couple-disagreeing

http://online-divorce-lawyer.com.au/tag/divorce-property-settlement/

http://www.avvo.com/attorneys/02110-ma-estela-matta-4257429.html

How is an inheritance treated in a divorce?

Generally, inheritances are not subject to equitable distribution because, by law, inheritances are not considered marital property. Instead, inheritances are treated as separate property belonging to the person who received the inheritance, and therefore may not be divided between the parties in a divorce.

However, state laws determine how an inheritance is treated in a divorce based upon how it was treated by the heir upon receipt of the asset(s).  If it’s “shared”, the rules vary greatly among the states. For instance, if the inheritance is deposited into a joint bank account and used for joint marital expenses (called “comingling of the inheritance”), the inheritance loses its immunity. Likewise, if the inheritance is used to make improvements to the primary residence, it may also lose its immunity.

Therefore, comingling is key — if this “separate property” is used in a way that benefits joint marital assets, the inheritance is no longer considered separate property, and may be subject to equal division upon divorce.

If this inheritance has never been commingled with marital assets, a divorcing spouse will have no right for inclusion in the distribution.

If the inheritance was acquired before the marriage, it is advisable to have a pre-nuptial agreement that specifies the property is not a joint or marital asset.  However, the same rules of comingling will still apply if the assets are joined with other marital funds or used as marital property.

This issue is fact-specific and subject to state law, so it is advisable to contact a  local divorce attorney to review your facts and circumstances to best advise you of your legal options.

How can I get rid of a DV Restraining Order?

In MA, the process of “vacating” (using the legal term) or modifying a 209A Abuse Prevention Order, i.e a Restraining Order or “RO”, depends on a number of factors: (a) which court issued the RO (b) whether you are the victim/complainant or the defendant (c) whether there was an arrest and criminal charges were filed by the State against the defendant (d) whether the RO has already been extended.

Any court of law or equity with competent jurisdiction can issue a Restraining Order in MA (District Court, Probate & Family Court and Superior Court).  Most typically, an injured party will file an Ex Parte Complaint for an Abuse Prevention Order under M.G.L. c. 209A in the District Court. The process in the District Court is deliberately simplified so as not to impede justice where a party has a legitimate grievance and is in danger if imminent harm. All that is required is for a party to complete the Complaint form and an affidavit stating the particulars of the allegations, then appear before the judge that same day (or night) and attest to the allegations contained in the Complaint and Affidavit, wherein they state under oath that they are in fear of harm from the alleged defendant.  The alleged defendant does not have to be present for the order to issue.  The police will be notified of the RO and the police will be charged with the obligation to serve the notice and RO upon the defendant.  ROs may cause or become part of a defendant’s record.

There is no bar to applying for an RO because another proceeding between the parties is pending in another court.  So that even if you are in the midst of a divorce or custody or support proceeding with the defendant, you can still file for an RO in the District Court, should a viable threat arise.  However, the District Court has limited jurisdiction in this regard: the District Court can issue the RO, which can include a full stay away order, and temporary custody if applicable, and a temporary child support order; BUT, it cannot litigate these issues to disposition.  The petitioner will have to transfer the order to an appropriate court (The Probate & Family Court) for a final judgment.  The sole purpose of the District Court RO is to place a legal shield between the complainant and the defendant to try to prevent immediate harm.

Another way to obtain an RO is to apply for it in your pleadings or by motion to the Probate & Family Court when a matter is commenced or pending before it. Lastly, a RO can be issued by the Trial Part of the Superior Court during a criminal case if either the Court or a witness who believes it is necessary applies.

An RO issued by the District Court can be “incorporated” into another proceeding involving the same parties in an action in another court, e.g. in a divorce or criminal prosecution.  This is done by motion. RO proceedings are distinguished from the universal prohibition of seeking relief in one court while a matter between the same parties is pending in another.  The law permits this exception to the prohibition on concurrent proceedings to afford expedited protection.  The same relief (restraining the defendant) sought in another court would take longer and involve more “process” than the District Court regulations require.

In order to un-do a Restraining Order issued by the District Court and not yet incorporated to another proceeding, the party wishing to vacate the order must apply to the issuing court by motion.  If you are the defendant, you should request a copy of the Complaint and Affidavit upon which the order was issued.  In order to have the RO vacated, you must convince the court that each and every of the allegations raised in the Affidavit are false.  The defendant has limited “discovery” tools available, unlike a conventional divorce or criminal proceeding because the 209A process in the District Court is an expedited proceeding, and lengthy discovery would defeat the purpose of its authority. A defendant has some subpoena power, but no deposition or demand for production of documents powers.  However, hearsay is admissible. You have the right to bring witnesses and to cross examine any witnesses produced by the Plaintiff/complainant giving sworn testimony.  Affidavits of friends or family, unaccompanied by live, in-court testimony, are not admissible.

The burden of proof for the defendant is very high, and unless you are attempting to vacate the Ex Parte order before it is extended, the chances of prevailing are very slim. (In the Ex Parte process described above, the court may issue the order outside of the presence or knowledge of the opposing party/defendant, but will require that the absent party be notified and served with the Order, and will be given a short date to appear in court and argue why the order should be dismissed before the court extends the order–typically for 6 months or one year.)  This first hearing is the most likely time to vacate the temporary RO–before it is extended.  If the Petitioner and the defendant agree that they no longer wish to have the RO in place, the court will most likely discontinue the order if there has been no arrest and if the defendant’s alleged conduct  does not rise to criminal.

The RO will have a definite date when it expires.  The petitioner may return to court on or before that expiration date and ask the court to renew the Order, if circumstances between the parties has not improved and there is still a threat of harm.  Both parties must have notice of and opportunity to be heard at the hearing.  At this point (the hearing to extend the order), it is virtually impossible to vacate the order because the facts have been reaffirmed by the petitioner at the time of the first hearing after issuance of the RO–when the defendant was given notice and opportunity to appear and rebut the allegations. If a petitioner does not seek renewal of the RO, it will expire without any further need of action by either party; however the record of the RO may remain against the defendant as a permanent part of a criminal record.

talk to the hand

 

Many times, the complainant/Plaintiff wishes to recant or dismiss the RO they sought and obtained from the District Court. This can be complicated where the District Attorney has begun a case due to the alleged criminal conduct of the defendant.  If, for example, the allegations include physical assault, or the brandishing of a weapon or abuse of a minor child, the case is going to be treated as a criminal matter and prosecution for the charges will ensue.  Once the state treats it like a criminal matter, it will be up to the prosecutor (the District Attorney and his Assistants) to determine whether they will dismiss the charges and discontinue prosecution as a criminal matter.  Sometimes, if the petitioner-now witness/complainant for the State refuses to testify and/or recants the allegations, and there is no other evidence but the testimony of the victim, the State will have no option but to dismiss the charges (since they will be unable to meet its burden of proof).  However, more and more the DA will not rely exclusively on the testimony of the victim and will use extrinsic evidence such as 911 call tapes, medical records, police reports, EMS records and other evidence of abuse or criminal conduct to prosecute the case.  So recantation is not a guarantee that the charges will be dismissed or that the RO will be lifted.

If the RO has been incorporated into a concurrent proceeding such as a divorce in the Probate & Family Court or criminal trial in the Superior Court, an application by motion has to be made in those courts for a vacatur of the RO.  That is a much more complicated application and counsel should be retained to pursue this.

Vacating a Restraining Order is a very difficult thing to do —for both the defendant and the accusing party.  I advise clients to consider the consequences of applying for a legal restraint BEFORE FILINGS.

NEVER FILE A FALSE REPORT OR FILE FOR AN ABUSE PREVENTION ORDER IF THE ALLEGATIONS ARE UNTRUE.

False allegations can become permanent records against the defendant, notwithstanding the falsity of the claim; and recanted allegation do not mitigate the harm done.  Restraining Orders can affect parental rights, custody and visitation, and even distribution of marital assets.  Further, for every victim who recants or refuses to cooperate in the prosecution of criminal charges, dozens of unreported abusers kill women victims of domestic violence every year. A false or recanted report of abuse discourages the police and legal system from taking abuse reporting seriously.  Abusing the process for retaliation or any other reason is a crime.  Recanters can be prosecuted for perjury,  defendant can me “marked” for life.  Police response to domestic violence situation is affected by the false reporting or recanting of allegations.

As always, I must advise that a person considering filing an abuse prevention order consult with counsel about the appropriate remedy.  Having said that, if you are under threat or fear of harm, you should not hesitate to seek a restraining order. If you are a defendant and feel a false charge has been filed against you, please do yourself a favor and consult with counsel before proceeding to attempt to remove or vacate the RO.

This information is based on Massachusetts law.  If you reside in another state or jurisdiction, you should consult with an attorney in your area for specific regulations affecting your rights and remedies.

http://www.ncdsv.org/images/False%20Allegations_WVCADV_1.15.08.pdf

I received a summon for a divorce, but nothing has happened since. What am I supposed to do?

The first thing you have to do is serve and file an Answer to the Complaint.  This should be done within 20 days of service of the summon and complaint.  If the time to answer has passed, you or an attorney can request an extension of time to answer.  failure to answer to the complaint could result in a default judgment of divorce against you.

One the issues have been joined (summon and complaint has been answered) you can make a motion for a temporary orders. You can also ask for temporary custody, child support (if you get the temporary custody order); and if circumstances permit, you may be able to get support for yourself–all pending the final dissolution of the marriage. A smart lawyer would have done that for you as soon as the divorce action was filed. Once an order is in place there will be no more game playing (or he does so at his own risk).

There are also required sworn financial disclosures that both parties must file. Lying on these financial disclosures is on pain and penalties of perjury.

There are many legal tools and procedures that an attorney would have already put into place to eliminate many of the issues you are concerned with.

If you do not have an attorney, your every effort should be to retain one—yesterday! Your legal costs can be paid by your husband, in some circumstance. Speak to a lawyer and s/he will know what to do for you and if they can get fees from the husband. Don’t waste another minute. Start calling lawyers today.

Does a legal separation freeze assets and debts at the time of filing?

The short answer is: NO

There are big difference between divorce and “separation”. MA does not have a provision for legal separation—only for Separate Support. Which means if you want to stay married but live apart, support orders can be entered which can include child custody and child support as well other provisions. However, the distribution of marital assets are not considered when a separate support application is filed with the Probate & Family court unless there is abandonment by the defendant spouse.

If you are concerned with treatment of property and assets should you and your spouse part ways, you are better off filing a Complaint for Divorce, which places an automatic stay on both parties restraining the sale, transfer, gifting or dissipation of assets or the further accrual of further marital debt to may have to be divided. 

Legal Separation is treated differently in different states.  MA does not have provisions for legal separation, while New York, on the other hand allows a legal separation to be converted into a divorce after a 12-month period.

You should consult with a local divorce attorney familiar with divorce and separation laws in your state about your concerns and rights.

I have custody of my 4 yr old daughter. Her mother just moved to Texas and wants her to visit there. How can I stop this?

There is usually a visitation order issued concurrent with the award of custody. One parent has physical (and possibly sole legal custody) and the other has the right to visit with the child.  The visitation order lays out when (and sometimes where) the child can visit with the non-custodial parent (“NCP”), as well as any restrictions to the visitations such as a third party’s presence or supervision of visitations.

caring father with children

Unless otherwise expressly stated in the order, the court did not envision visits across the continent. Without the custodial parent’s express consent, the either or both parents have to go to court to seek a modification of the visitation order to allow out of state visits. It’s the custodial parent’s burden to seek permission of the court and to argue why relocation should be permitted. Until such time, it is the NCP’s  right not to allow the out of state visits; but you should accommodate visitation locally to be in compliance with the order as intended. In the event the relocation is permitted, the NCP can travel to the child to exercise the visitation rights.

If you are served with a notice of a motion (to modify visitation), retain counsel to assist you prepare your rebuttal arguments.

If the NCP removes the child from the state without  permission or court order—that becomes a whole different ballgame.  Interstate removal of a child is a crime, even by a parent.  There are federal Parental Kidnapping Laws the prescribe the treatment of a parent who engages in this type of conduct.

Assuming the NCP is paying child support, there may be a modification of the support obligation to off-set the travel expenses–if the matter ever comes to court.  Otherwise, keep the status quo.