[Karon's note: There are probably few more stressful situations that being in court. If you and your spouse feel you've been summoned there unfairly, the stress just goes higher. This month, we have a guest column from a family lawyer who will help you prepare if you have to face that situation. Our many thanks to Linda for her contribution.]

Many of you may be in the situation where your spouse’s ex brings him (or her) back to court for litigation over new or ongoing issues. For purposes of this article, I will treat the situation as though you are the new wife and stepparent (i.e., the “she”) and that your spouse is the “he” who was once married to that other woman. I will also treat the situation as though your spouse’s ex-wife is bringing him back to court, rather than the other way around.

New or ongoing litigation is most likely to be about either the custodial arrangement (specifics relating to custody and/or visitation) or child support. When people divorce and either agree on property division or have the court divide their property, rulings that are property-related are final unless set aside due to fraud, duress or misrepresentation. It is unusual for property terms in a decree to be set aside by the court. Matters pertaining to minor children, however, are always reviewable and modifiable by a court of competent jurisdiction based upon a material change of circumstances. This is because as children grow older and circumstances change, it would be unfair and impractical to set the initial child support amount and custody arrangements in stone.

Ex-spouses can’t go back to court just because they don’t like the deal they made or the Judge’s ruling regarding custody or support. But, they can go back to court when things have changed enough to justify a review and potential modification by the court. Typical reasons for changes in child support relate to either a material change in income of one or both of the biological parents, or a significant change in the needs of the child, such as needing braces, medical issues or learning issues requiring educational support services. Change of circumstances which can warrant a review or modification of custodial arrangements may include the remarriage of either biological parent, a geographic relocation, changing needs of the child or perceived problems that the child is having with the current custody/visitation schedule.

If your spouse receives a court pleading where his ex is asking for an increase in child support, here are some tips to help him get prepared and to decrease legal fees. I often tell my clients that the more they can do for me (such as pulling together financial records in an organized fashion), the less I will be on the clock. Your spouse will typically need to obtain documentation of his current employment income from all sources as well as documentation of the “health insurance differential” he may pay to add the children to his health insurance coverage. The health insurance differential is the additional amount that one parent pays to cover the children under their policy, as compared to what it would cost them to only cover themselves.

If your spouse is working with an attorney, have him pull together this basic documentation and provide it in an organized format to the attorney. If he is representing himself, all the more reason for him to have organized records in that there won’t be an attorney coaching him as to what specifically he needs. If there are no documents requested from the other side in “formal discovery”, I tell my clients to provide me with their three most recent pay stubs if their income is always the same.

If their income fluctuates up and down, such as for someone self-employed or one who regularly works overtime, I will ask that they provide me income documentation from the past six months or one year, depending on the case. Self-employed income can be particularly hard to document. Courts are typically looking for a person’s gross employment income from all sources minus legitimate business expenses, before taxes are taken out. Depending on the self-employed person’s business records, clear documentation of this can be difficult and business expenses can sometimes be challenged in court as to whether they are legitimate. Prior years’ tax returns with all attachments can be helpful as an additional tool for demonstrating income.

Formal discovery is automatically allowed in some courts and not others. This is where either party to a case may ask a specified number of written questions in advance of the court hearing, and the other party is required to answer in writing within a certain timeframe, and their answers are considered as though under oath. In the state where I practice law, the Circuit Court has an automatic right of discovery and the Juvenile Court does not. We can ask for permission from the Judge, however, to conduct formal discovery in juvenile court cases. Support and custody/visitation cases can be heard in either court, depending on other circumstances, in my state.

In support modification hearings, your spouse should also consider what circumstances have changed with their ex-spouse that can be relevant to what the current child support amount should be. Typically this could include whether that spouse’s income has increased (or decreased), whether work-related childcare expenses or needs of the children have changed, etc. It is important to note that in most circumstances, the income of a new spouse who is a step-parent to the child/children does not affect the child support amount. This is because it is only the biological parents who have a lawful duty to provide support to these children.

In custody or visitation modification cases, it is important to look at what is in the best interests of the child. This is the overriding legal standard when determining these cases. The preferences of the child may or may not be taken into account in such a proceeding, depending on the age of the child and the state where the case is being heard. Sometimes it can be up to individual judges as to whether they will take a child’s preferences into account.

In the state where I practice, most judges will speak privately to children in their chambers during a court proceeding if either party brings a child to court to express their preferences. However, judges typically prefer that children be kept out of these proceedings and most psychologists agree that it is best not to involve children in the court hearing, if possible. In my own experience, children tend to feel responsible for the outcome of such a hearing if they have played any role in being in court. This can be quite a burden for a child, including a teenage child, to shoulder.

In a custody or visitation modification proceeding, your spouse should consider what his position is regarding what type of residential and visitation arrangement will currently serve the child best. If he feels things have gone well for the children when they are with him and does not want his time reduced or wishes to increase it, he may want to have various witnesses who can discuss observation of his relationship with the child/children. He also might want to take photographs of himself with the children and at family time (which would involve you) and pictures of your home and where the children sleep when they are there. Most judges will receive these pictures into evidence and it provides an opportunity for a judge to visually see the children in your home.

Judges also tend to be particularly interested in how children are doing in school and are concerned about how the custodial and visitation status may potentially affect this. If your spouse wants more time with the children (a decision you should probably be involved in also!), the extend to which he is already involved in school meetings, homework support, sports and other activities, lessons, and doctor and dental appointments may help him. If he is looking at requesting more time down the road, he should start to get more involved in these activities now.

If your spouse is working with an attorney on any upcoming court hearing, it can be helpful to group questions together to be raised at specific intervals with the attorney rather than on a regular basis. Grouping questions and discussions with the lawyer into specific times, rather than many more shorter phone calls, usually saves on legal fees. Keep in mind that attorneys typically charge for all of their time working on the case, including phone calls to the client, witnesses or opposing counsel, meetings, reviewing documents the client provides, settlement negotiations and preparation for court.

If it is hard to afford the services of an attorney, it doesn’t hurt to ask a potential attorney if they can provide a courtesy discount on their hourly rate (such as 25%) so that the services will be more affordable. The attorney may say no, but if they are interested in handling the case, they may say yes (as I have done on various occasions). Also, ask your spouse to check whether there are any legal service plans provided by his employer that offer access to attorneys at discounted fees.

It is useful to provide the attorney with a written summary of information, which relates to the specific case which is being brought before the court. As stated before, the more your ex (and you) can do to organize the material for the attorney, the less you will be paying in legal fees. It is important to work with an attorney with whom you feel comfortable and who has a style that is compatible with yours. Court is almost always a stressful process and I consider it important to determine if there are settlement options before a case fully litigates.

If the case goes to court, sticking to the point and giving the judge a clear idea of what is going on without extra theatrics or “tactics” is usually a good idea. Tell your spouse that it is okay to be nervous in court or sad or emotional, as court is a stressful place to be, but it is usually not a good idea to get angry in the courtroom. Even if his ex’s attorney is asking him difficult, nasty or annoying cross-examination questions, the best thing your spouse can do is remain calm and take the high road. Showing anger or aggressiveness to a judge will almost always work against a parent’s goals in any of these types of court proceedings.

If you sense trouble brewing with your spouse’s ex, it is probably a good idea to start “documenting” things now in case a court case is brought. This means keeping a journal of important things that occur that relate to custody, visitation or child support, including date/time and what occurred. These notes can usually be used in court to “refresh the parties’ recollection”.

Also, be careful with email communications. Any email that you or your spouse send to your spouse’s ex can typically be read by a Judge if it is presented in court by the other side and if the Judge finds it to be relevant. The same applies to emails sent by the ex to your husband or to you. Save either all of her emails to either of you if things are getting contentious, or save the important ones. Good luck!

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Warmly,
Karon
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