Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:
- I have a child support order from another state for two kids that I found out aren’t mine. How do I go about stopping this order?
- Are there laws that govern when, and/or if, you are able to evict a spouse?
Question:
I have a child support order from New York for two kids that I found out aren’t mine. How do I go about stopping this order?
Answer:
Unfortunately, it is not as easy as submitting the DNA test results to the court to eliminate a child support order. In fact, many states have declared that a DNA test alone is not sufficient to vacate a paternity determination. Family courts are courts of equity and if the biological father is not produced, the courts may completely overlook your victimization because the court is focused on the best interest of the child. What is in the child’s best interest may be to continue to require you to support the child, even though you know you are not the biological father.
How you approach changing and stopping the order depends how, when, and where the current order was issued. Child support may be ordered when a court enters a judgment of annulment, divorce, legal separation, or paternity, or when the court approves a stipulation between parties. The court can order one or both parents to pay child support. While the child’s mother is always known at birth, the process for determining the father may vary depending on the facts of each case. Each state has different guidelines for contesting paternity in default paternity actions, stipulated paternity actions and in marital presumption cases.
Cordell & Cordell understands the concerns men face during divorce.
If the child support order is from a paternity action, the action would have concluded with a judgment of paternity. While many judgments are based on genetic tests taken of both parents and the child, the judgment may have been a default or stipulated judgment. A default judgment is entered if a party fails to appear at a hearing. In this situation, the mother named you in court as the father and because you were not there to deny it, a default paternity judgment is ordered. A stipulated judgment is entered if the respondent is an alleged father and he stipulates that he is the father of the child. In this situation, you likely would have signed a voluntary acknowledgement of paternity (VAP). Additionally, in most jurisdictions, paternity may be established by marriage, even if the husband and wife were separated for significant periods of time. By statute, the man married to the mother at the time of the child’s birth or conception is presumed to be the father of the child. Also, if the mother marries after the child is born, and no other man has been adjudicated the father, the man the mother marries may be presumed to be the child’s father. If these presumptions remain unrebutted, you, as the husband, would be established as the father.
Because the reason for stopping the child support order relates to the judgment and paternity determination, the legal action necessary would be to reopen the judgment. In many jurisdictions, judgments may be reopened for a set time, such as within one year of the initial entry. Following that time, a judgment may be reopened for good cause, or for various other grounds including mistake, fraud, misrepresentation, or some other grounds justifying relief. Even then, the motion must be made within a reasonable time.
If this timeframe has passed, the only recourse would be to seek to set aside the judgment based on fraud. In order for you to succeed in a fraud claim, you must prove that the mother committed fraud. This is not to be confused with a woman who mistakenly names a man who later turns out to not be the father. The elements of fraud require you to prove that she knew you were not the father at the time that she named you, that she told you that you were the father, and that you signed an acknowledgment or agreed to the judgment based on her statement. To succeed, you will need evidence showing that she knew you were not the father at the time.
In addition to proving that the mother committed fraud, it is important to also identify and locate the biological father. Even if you can prove you are not the biological father, the court may not change the judgment. The court is concerned for the financial support of the child; providing the alternative means of support combats the best interest of the child argument. It is unlikely that the court will remove you as the father unless there is another man it can name as the child’s father.
You mention that the child support order is from New York. If the judgment is also from New York, the motion to reopen or the action for fraud most likely needs to be brought in New York. I do not practice in New York, so, I cannot inform you as to their specific laws. If the judgment was registered in your home state of Illinois, you may also have some options in Illinois. You should contact a domestic litigation attorney licensed in Illinois or New York immediately to explore your options. Cordell & Cordell has attorneys that are licensed and located in Illinois, and they would be happy to discuss your case with you.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.
Question:
What are the laws in Texas regarding getting a spouse out of the house? I can’t afford to file for a divorce at this time, I just want her out. She’s back to doing drugs and we have a young daughter. I am wondering if I can make her leave or if I have to have her evicted through the court?
Answer:
In Texas, there are several laws and statutes that govern when, and/or if, you are able to evict a spouse. Additionally, several factors can play an important role in whether or not such a request will even be entertained without court intervention, such as whose names appear on the mortgage or deed, or if the property was owned prior to marriage by one of the parties separately, etc. As your questions did not specify what the dynamics of the situation are, I can only provide a generic response to your questions.
You may obtain a consensual agreement signed by both parties providing that your spouse will leave the house. As this option seems unlikely in your situation, the next option would require court proceedings, or at the very minimum a state agency’s involvement, to require your spouse to leave the house. Several issues such as potential harm or injury presented to your child, or actions which are illegal and open liability for both parties, may be considered in determining whether or not she should be refrained from her remaining in the home. Any one issue may be sufficient to have her leave the home without initial Court intervention or filing of divorce. This option is unpredictable and is not a reliable method for obtaining sole use of the property, while retaining possession of your child.
My suggestion would be to consult with an attorney and make them aware of all the concerns that currently exist. As there are allegations of drug use, you may be able to obtain the desired result without the full expense of divorce proceedings.
Although I practice law in Texas, I cannot give you legal advice without thoroughly reviewing your case. Do not rely on this information as establishing an attorney-client relationship. Contact an attorney immediately for assistance. Cordell & Cordell, P.C. does represent clients in Texas. Thank you for submitting a question to Cordell & Cordell, P.C.
Samuel M. Sanchez an Associate Attorney in the Fort Worth, Texas, office of Cordell & Cordell P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Sanchez is licensed in the state of Texas where he is a certified mediator, interview/interrogation specialist, and is appointed by Gov. Perry to the Board of Regents for Midwestern University. Mr. Sanchez received his Bachelor of Arts from Texas Tech University, and received his Juris Doctor from Wesleyan Law School in Fort Worth, Texas.
My significant other who I have been with for more than six years is being garnished for two children who are not his the marriage was very short before she left him and has had and lost 3 children since his name she put on her daughter that she gave away to the babysitter and isnt his hes being responsible for tax returns taken for a child he hasnt seen since the mother lost her years ago I dont understand this he cant even afford a divorcecause washington state keeps taking his wages for kids that arnt his
wow this is so freaking crazy i mean for real you prove with a DNA test you are not the father and your still responsible because its the child’s best interest get real the mothers best interest it should be dropped and they find the real father why should you have to find the real father i mean man shes the one that couldn’t keep her stuff together to know i mean come on they has to be a way to fix this i mean my mans a good man and father this is taking away from us because these laws are screwed up i mean he is on social security disability and they taking his money for a child hes never been around because she told him it wasnt hers i mean gee and how can prove now 10 years later that she said that i mean the blood is the proof and its my opinion that it is definitely not the best interest for the child to think the wrong man is his father and the mom spend that money however she please while we struggle wow just in udder shock someone has to fix this
I need paying support for my son ‘ 8months now what should i do?
Hi im single mom now i need support for my son ‘ because he is only 8months now my son daddy is not give money for my son ..what should i do? I need pls.
My husbands ex wife had cheated on him all through thier marriage. They have 3 girls. A man is saying that the middle child is his and we have a snap shot of him saying on facebook. Also, proof she had affair with this guy. In process of dna right now. If proves not his daughter do we have a chance of dropping chikd support and insurance? She is 14 and has known this guy is her father, he has visited her numerous occasions. She has also called him dad, her mom has told her he’s her dad.
My husband just found out a week ago after 14 yrso of this
Howard.Marvin18@yahoo.com I’m in the same position,paying support while the father stills lives there. The child is grown. I want this to stop.
How or why lawyers and everyone else have you thinking if you are paying support for a kid that is not your. 1st all the mother have to do is inform the court you are not the dad. if she will not, do what i did take her the small court, in my state 10,000 is limit . My complaint was based on thievery. Thief knowingly and forcibly taking your money. fraud is deliberate deception to secure unfair or unlawful gain, to deprive a victim. The judge look at the DNA Test that was 12 years old, i was behind only one year. So i killed 2 birds with one stone i got her 2 take me off child support and pay me my money back. I took your 2 court 2 more time, while rewording it as to avoid a civil form of double jeopardy. No i’m not a lawyer
Dont worry you dont sound like one!
My brother is paying spousal support while his ex is pregnant and living with another man she got e warning to look for a job and be self supportive but has done nothing and lied under oath.
Their two kids involved, but one is not his and is 9yrs old which his ex told the child that my brother is not his father. I know it’s going to be a tough fight but how can we get him of his care and stop the spousal or child support and is he able to get a refund if he gets to win the case? We need someone that is tough and will fight for his rights
Take her to small claims court for fraud ..Thief knowingly and forcibly taking your money. fraud is deliberate deception to secure unfair or unlawful gain, to deprive a victim.
What if you signed the birth certificate and you know the kid wasn’t yours, then what
I have a class debate on “Men who are the victims of paternity fraud should not be required to continue pay child support” I have to argue, “Once a man acknowledges paternity and begins to pay child support he should be required to continue to pay until the child is 18 even if confirmed through DNA that the child is not is” My question is, How can I argue this?
My husband and I have been together for 3 years now. My husband (now 33) has had a child support case against him since he was in his late teens/ early 20’s. The child is not his and the birth mother does not have the child, but the named legal guardian and has the case against him. My husband has lost everything because of this, he cannot get a job without child support garnishing everything, they took away his driver’s license because he cannot pay, and every 3 months he has a court date where we have to borrow money from family to keep him out of jail… he has tried for years to prove that he is not the father and has spent time in jail because of it. I understand that the law is looking out for the best interest of the child in question, but we have a total of 5 children between us and I am the only one working at this time while my husband is a stay at home dad. We cannot afford to keep paying child support for a child that is not his, we barely make it payday to payday and I have a very decent paying job. We cannot afford lawyers or to make a trip to PA (from NC) to attend hearings. How is THIS in the best interest of THAT child if our *5* children have to suffer for it? There should be a reform to the child support laws about entrapment for wrongful paternity and not make it so difficult for those not responsible to have THEIR lives absolutely ruined.
My husband’s ex-girlfriend took his two kids in 2010 to Georgia on ” vacation” but come to find out she had no intention of returning back home to montana .
We filed for custody in 2011 shortly after she left and had to refile again when we found out she moved again to North Carolina . We did everything the court asked of us .
She lives with her parents and many others . No job . No car .
We have 5 good cars , a house , jobs .
The judge gave her custody .
My husband was told he would have to fly every Wednesday to north Carolina to see his kids for 2 hours .
We have tryed to call and talk to the kids and only once he was able to talk to them . We finally found them on Facebook but don’t get a reply back .
He pays child support and he doesn’t truely know if there even his kids .
He lost his job recently and i’m the only one working but dont make enough to pay bills .
What is the best advice for our situation ?
I received an arrears notice in the mail today in NJ stating my wages will be garnished. This is identity theft. I never met the woman who they state is the mother of the child. The court said I went to take a DNA test In South Carolina a day I was working and proved to be the father. I have been calling courthouses back and forth between NJ and SC. Now I am at a stand still because they don’t believe me. Is there a way I can fight this? Please help!
My fiancé has taken a paternity test and the child isn’t his….. the mother will not drop the child support order and they live in two different states… she reside in NY and he resides in SC…. he can’t work a 9 to 5 because they take his money for child support on a child that isn’t his…. haven’t the slightest clue where to start or what it would cost but need to get this issue resolved
Have you gotten this situation handled ? I am in a similar situation with my fiancé paying child support for a child that isn’t his . Need help asap