Getting Support Quickly in your Custody Case
It’s happening, and you know it. There’s not a whole lot you can do about it, but you’re no fool: you know that things between you and your child’s father really aren’t working out, and you’re probably close to calling it quits. Whether this was your decision or his (or a mutual one), if your finances are interconnected, you’re probably a little worried about what’s going to happen when he says sayonara—and has his paycheck direct deposited into another account.
For a lot of parents, whether they’re married or not, raising a child is a joint financial responsibility that is handled just that way—jointly. Many parents choose to live together, share their respective paychecks, provide health insurance to cover the child, and share the costs of utilities and other monthly living expenses.
That’s all well and fine, until someone decides they don’t want to do it anymore.
Can he just cut me off—just like that?
If you’ve been enjoying the benefits of dual income, separation can come as a bit of a shock, especially if you’re the lesser wage earner. Even if you’re the higher wage earner, though, it can be difficult to suddenly have to fork over all the money for all the expenses—when you used to have someone to share the burden with.
If you’ve been paying rent or utilities together and one of you suddenly decides to call it quits, legally that’s fine—unless there’s a court order in place that specifically says that you’re not allowed to stop paying for something.
When it comes to a mortgage, though, it can be a little more complicated. Obviously, if both people’s names are on the mortgage, you’re both legally on the hook for each monthly payment. If he decides he’s just not going to pay his share, you can force him to pay—but you’ll probably have to go to court to do it. It’s not like you can just not pay it, because that would have an adverse affect on your credit (and could send your home into foreclosure, if it goes on long enough), so you’re still on the hook. If he’s got no interest in the home at all anymore, it’s possible to either sell the home and split the equity, if there is any, or refinance it so that it’s in your name alone.
If his name isn’t on the mortgage, he probably can stop paying you, unless you have a rental agreement or something else in place.
Technically, though, the answer is yes. If he decides he wants to stop paying for things he has previously paid for, there’s not a whole lot you can do, unless there’s an order in place that prevents him from doing it.
So, what do I do if he cuts me off?
If you’ve been sharing the financial burden, it’s not so easy for you once he stops paying for things. It puts you in a tough place, and it usually happens pretty unexpectedly. If you don’t have extra money saved up (and even if you do), it’s scary because he has just yanked your security net right out from under you.
Still, you’re not without at least some recourse. What should you do if he cuts you off from access to the money you formerly shared?
If your case is part of a divorce action…
If you and your child’s father are getting a divorce, you can file for divorce right away if you have fault based grounds. In Virginia, the fault based grounds that you can use to file for divorce are adultery, sodomy, buggery, felony conviction, cruelty, apprehension of bodily hurt, desertion and abandonment. (For more information on fault based grounds and what they mean, click here.)
When you have fault based grounds, you can file for divorce right away. In most cases, you can’t get divorced until you’ve been separated for a year, but you can use your fault based grounds to get into the court system quickly. Of course, filing for divorce means that you’re on a litigated divorce track (as opposed to a negotiated, or uncontested, divorce track), but that doesn’t mean that you’re bound to continue litigating your case through until the end. At any point in the divorce process, you can switch over from a contested to an uncontested divorce, or vice versa—from uncontested to contested.
The main advantage of starting out with a contested divorce, even if you fully intend to have an uncontested divorce entered, is that you can have a pendente lite hearing. Pendente lite is a Latin phrase that means, roughly, “while the litigation is pending.” At the pendente lite hearing, or PL hearing (as some lawyers call it), temporary issues of support can be handled. You could ask, at this point, that the court award temporary child support and spousal support. It’s not permanent support; at the end of the divorce (or whenever your separation agreement is signed), whatever terms you agreed to (or whatever the judge ordered) would come into effect. Still, the pendente lite hearing is important, because it’s an opportunity at the outset of the case to get the kind of relief that will help you (financially, at least) make it through from the period of separation until your final divorce decree is entered.
The one major disadvantage that can be identified here is cost. Divorce actions take place in circuit court, not juvenile court like custody petitions, and it’s a contested hearing, so you probably want to hire an attorney to represent you. To hire an attorney to represent you in what looks like a contested case (even though you may switch it over later, that’s not what it is today, and the attorney can’t quote you an uncontested price for a case that is, for all intents and purposes, contested) will cost money.
It’s hard to have the money to pay for an attorney when the chief issue is that your child’s father has left you without money. There’s not really a good solution for this problem; I only tell you so that you’ll be aware of the advantages and disadvantages of any possible course of action.
If yours is a divorce case and you have fault grounds, you may wish to use the pendente lite hearing to help establish temporary support while your divorce is pending. Otherwise, read on for other alternatives.
If you’re getting a divorce and don’t have fault based grounds, or if you aren’t married to your child’s father…
If you don’t have fault based grounds for divorce, can’t afford to hire an attorney to represent you in your pendente lite hearing, or you were never married to your child’s father, you’ll find yourself in juvenile court.
At the juvenile court level, you can file for child support and spousal support (of course, you can only file for spousal support if you were married). If yours is just a custody case, you can do everything at the juvenile court level—while you’re down there, you may as well file for custody and visitation as well. (You want to file for visitation, even if you’re planning on asking the court for primary physical custody. Why? If you don’t ask for it, the court has no authority to award it. If you get down there on your trial date and things go badly, you’ll definitely want to be able to ask for visitation in your worst case scenario. Otherwise, you could risk getting nothing. I don’t need to tell you that this is not a position you want to be in. Bottom line: always, always, always, ask for custody AND visitation, even if what you’re after is custody.) You don’t need any grounds to do this; you just need to go down to the clerk’s office, fill out the appropriate paperwork, pay the fee, and file.
Do I need an attorney to file for child or spousal support at the juvenile court level?
Maybe, but not necessarily. The juvenile court is a court not of record, so you have an automatic appeal to the circuit court if you want it. When you appeal a decision, no record from the lower court follows you, so your appeal is “de novo,” meaning that it’s heard all over again from the start.
Because of this, and in an effort to keep costs down, lots of moms decide to represent themselves at the juvenile court level. They know that, if things don’t go well, they can later hire an attorney to represent them in their appeal to the circuit court. Since nothing that happened at the juvenile court will follow them up to the circuit court, it’s pretty low risk.
Of course, you can hire an attorney to represent you at the juvenile court, too, if you’re more comfortable. Juvenile courts typically have a reputation for being more user friendly, but it never hurts to have an experienced attorney by your side at any part in the proceedings.
How long will it take for me to get a trial date?
The major disadvantage of this method is that it may take some time before you have a trial date set. Every court handles things a little bit differently, so ask questions to your clerk if you’re not sure what to expect in your locality. What I usually see, though, is that there is a return date set pretty quickly. At the return date, the judge will meet both of you, find out the basics of your case, and, after he’s convinced that you won’t be able to settle your case, he’ll set a trial date. The trial date will probably be months away; in some jurisdictions, it could be a year or more away, depending on how backed up the court’s docket is.
The good news, though, is that, no matter how long it takes you to get your trial scheduled, if you receive an award of child or spousal support, the award will be issued retroactive to the date of filing. So, even though it may take awhile to get into court, your award will date all the way back to the date you originally filed.
It may not be possible to get a support award in place as quickly as you’d like, but if your child’s father suddenly takes off and stops providing financial support, you’re not without recourse. Whether your case is part of a larger divorce action or whether it’s just related to custody, support, and visitation, you can turn to the court for help. Both the juvenile and the circuit courts have the authority to help in this type of situation and, while they usually can’t get an order in place that quickly (even in the circuit court it’ll probably take a few months; in the juvenile court it can take a lot more time), there are mechanisms in place that will help you make sure that you can provide for your child.
For more information, or to get help getting support in place, give our office a call at (757) 425-5200.