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Divorce 101 Q&A: Part 2

September 2019 | Allen E. Fogel, Esq. & Brett A. Potash, Esq.
If you are considering getting a divorce, you should begin by meeting with an attorney to discuss your rights and the legal ramifications of going through with such a move. The following Q&A (part two of this feature) may also prove helpful as you go through this often arduous process.

Question: My spouse and I are divorced. He/she pays child support but is always late with their payments. What can I do?

Answer: You should file a Petition in Family Court to have support paid by Income Deduction Order through the Support Collection Unit. This way, child support is garnished from the payer’s salary each time he/she is paid.

Q: My spouse has a family major medical plan provided by his/her employer. If we were to divorce, can I continue to be covered by my spouse’s employer-provided health insurance plan?

A: You cannot remain covered by your spouse’s medical plan after a divorce; however, you have the right to continue the benefits under COBRA. The employer is required to provide the documents necessary to continue the coverage, and there is a monthly cost associated with the continuation of the coverage.

Q: My parents gave me $20,000 so my husband and I could buy a home. If we were to divorce, what happens to that money?

A: A gift to one party during the marriage is considered separate property. However, once that gift is used to purchase a jointly-owned asset such as a home, the gift loses identity as separate property in most cases and each party to the marriage would have equal claim to the money.

Q: Our 15-year-old son has been skipping school, coming home at all hours of the night and spending time with other children who are a bad influence. What can I do?

A: While there may be certain counseling options available, if the child refuses to cooperate, you may file a Petition in Family Court to have the child declared a “Person in Need of Supervision” (otherwise known as a PINS Petition). The Court then has the power to set guidelines for the child; if he fails to abide by those guidelines, he can be removed from the home and ordered into a residential facility.

Q: My wife has told me that she’s moving to Florida with our two preschool-age children to live with her parents. Can she do this without my consent?

A: No. While a parent may move wherever he or she wishes, the children may not be moved absent consent of both parents or a court order.

Q: My spouse and I both have pension plans through our respective employers. What happens to these if we were to divorce?

A: You and your spouse may be entitled to a percentage of each other’s pensions. This percentage depends on the ratio between how much money was accumulated into the pension during the marriage, compared with how much money is accumulated into the pension altogether at the time the pension participant retires. Generally, the longer the length of time a person accumulates money into his/her pension while not being married, the smaller the aforementioned percentage will be and thus the spouse will be entitled to a smaller amount.

Q: How and when can I begin collecting from my former spouse’s pension?

A: After your divorce is finalized and if you retained a right to your former spouse’s pension, you should have an attorney prepare a document called a Qualified Domestic Relations Order (QDRO). This is a legal order that will be sent to the pension provider notifying them you are entitled to a portion of your former spouse’s pension. When your former spouse retires, you will begin to receive your share of the former spouse’s pension. However, if you were to change your address, you must notify the pension provider.

Q: My spouse and I signed our divorce agreement. Am I officially divorced?

A: Not so fast. Although the contents of your agreement are now officially enforceable, you are not yet legally divorced. You and your spouse’s attorneys will then file various documents with the Court to obtain a divorce judgment. This legal document (called a “Judgment of Divorce”) is arguably the most important document you will receive. The Judgment of Divorce is a Court Order that indicates you are officially legally divorced.

Q: I would like to change my name back to my surname prior to my marriage. How can this be done?

A: Your attorney should include a provision stating you may resume use of your prior surname in the Judgment of Divorce.
If you have any questions about the matters discussed in this article, please contact your Legal Service Plan’s National Legal Office at 800-832-5182.