So far, we have explained the basics of how the
Maine Court's Family Division works. And we've told you what some of the
legal terms mean. But there's still more to know. Here are some answers
to questions many people ask.
Q.
If we have no mutual children, does all of this apply to me?
A. You can still bring any
of the above motions to change or enforce your divorce
judgment.
Some of the information here will help you do that. Follow the same steps
for completing and serving the forms. A
Family Law Magistrate (Magistrate) will not be involved in your case. You
will have to schedule the court dates through the
clerk's office and notify the other party. It will be your job to get
the court to move your case along.
Q.
If I'm bringing a motion to modify, to change the “parental rights
and responsibilities,” what questions will the court have?
A. Your motion may address
one or more of the following. Read about the issues that apply to your case.
Try to work out the changes with the other parent, if you can. If this isn't
possible, at least think about the following issues that apply to you:
- Where will the children be living most of the time (called their “primary
residence”)?
- When and under what conditions will the children be visiting the other
parent? If you and the other parent can talk about this issue, you may
want to agree to a flexible order, like “visits will be at reasonable
times.” On the other hand, if you expect problems, then you may want
to set a schedule so that you can avoid future arguments. If you have
good reasons to ask that conditions be put on visits (such as supervision
by another family member, or no use of alcohol or drugs during visits),
raise those issues with either the other parent or the
Magistrate, or both.
- How much child support will the visiting parent pay? You can find this
amount by filling out the Court's Child Support Worksheet.. If
you have trouble with it, get help from a friend, an advocate, or the "
HelpLine."
(We also provide online information
about how to fill out this form, as well as a
self-calculating look up form.)
If you are still stumped, ask
the Magistrate to help you at
the case conference. Sometimes you can agree to a different amount, if
the court approves the reasons for the change.
- How will you cover your child's health care expenses? Can either of
you get medical insurance at work? Is your child eligible for
MaineCare
health coverage through the state? How will you share any unmet medical
expenses?
- Are there any other child-related issues where a “substantial change
in circumstances” would call for a change in the order?
There are three ways to divide up parental rights and responsibilities:
“shared,”
“sole” and “allocated.” In most cases, the parental
rights and responsibilities are “shared.” The court order tells
how they are shared. In certain cases, where one parent
has abandoned the child or is violent, the court may give “sole parental
rights” to the other parent. Sometimes the court will “allocate”
the rights and duties by directing one parent to take care of a certain
task (religious upbringing, for example). When acting on a Motion to Modify,
the Court can change how these rights and responsibilities are divided.
Q. How long will my court
case take?
A. That depends. If you are
bringing a Motion to Modify and you both agree on the changes, then
your case may be taken care of at the first
Magistrate conference. If you disagree
about the changes and need to go through all of the steps, including a formal
court hearing, this could take several months.
If you have brought a Motion to Enforce or Motion for Contempt,
the court may try to give you some quick relief (within a few weeks). On
the other hand, if the case becomes complicated (by difficult factual disputes,
for example), the case will take longer.
Q. If I got the motion papers
in the mail from the other party, am I agreeing to everything
in the papers if I sign and return
the “Acknowledgment of Receipt” form?
A. No. By signing and returning
the form, you are only agreeing that you got the motion papers. If you disagree,
you need to file your written response with the court
clerk within 21 days
of the date you signed the acknowledgement form. (For a Motion to Modify
Child Support, your request for hearing must be filed within 30 days.)
If you don't to this, the court can grant the motion by
default.
Copy the top part of the motion, identifying the
court and the parties, onto a blank sheet of paper. Then label the paper
“Opposition to Motion.” Then answer the other party's statements
that you don't agree with and explain why you think the court should reject
the motion. You will also
have the chance to explain where you stand on
issues at the conference, the mediation, and any formal hearings you may
have.
Q.
If I am afraid of the other party, do I have to say
where I am living when I fill out the court forms?
A. No. where the form
asks for address and telephone, you may write "confidential."
Then ask the clerk for
an Affidavit for Confidential Address form. State in the
affidavit
why you think this information must be kept private, for the safety of you
or your children. You must sign the affidavit in front of a
notary public. Give your affidavit to the clerk along with your
other papers. The clerk will then "seal" this information,
so that the other party can't see it. The other party can object to this
in writing. Then the court would hold a hearing to decide whether the clerk
must still keep the information secret.
Q.
On Motions to Modify, do I have to go to mediation if I am afraid of
my spouse or former partner?
A. In rare cases, the court
may waive mediation “for extraordinary cause.” For example,
if you think trying to mediate will cause the other party to hurt you or
your children, you may ask the court in writing to let you skip mediation.
Do this by filing a motion.
On another page, explain what has happened to make you afraid of the other
party. This is called an
affidavit.
You must sign your affidavit under oath in front of a
notary public. File both papers with the court
clerk. She will ask the
judge to look at them and decide whether or not you will have to mediate.
(Some courts may accept a letter, instead of a formal motion. Attach
a copy of your Protection from Abuse Order, if you have one. Or ask the
Magistrate to waive mediation when
you meet with him.)
If you get to mediation and you are still afraid, talk to the
mediator in private about your concerns. The mediator may allow you
to stay in separate rooms. In extreme cases, the mediator may decide that
mediation won't work, or can stop mediation after it starts if someone is
threatened.
If you are in this situation, we encourage you to try to get a lawyer.
Ask for our pamphlet “Divorce and
Separation: Where Can I Get Help?”
Q.
How do I subpoena a witness?
A. Go to the
clerk
and ask for a subpoena form.
The form costs $5.00, unless you got a fee waiver.
Fill out the form. Make two copies of the form.
Give the original and one copy to a responsible adult, asking her to hand-deliver
the copy to the witness.
You must pay the witness a fee. The fee is $10.00 plus mileage, at the
rate of $.22 per mile. Give this amount to the person who is serving the
subpoena for you. He must give it to the witness with the subpoena. At the
time of service, the adult server should fill out the section on the back
of the original form, explaining when and how the copy was given to the
witness. Bring that original
subpoena with you to the court hearing.
Think twice before subpoenaing a witness who does not want to testify or
who is against you. You may get testimony that is untrue or that is not
helpful to you.
Q.
What happens if I don’t go to a court meeting or hearing?
A. It is important that you show up for court dates.
Be on time and be prepared. If you don’t go, you can be "defaulted," which means that the court gives
the other party what he wants because you didn’t appear. The court can also charge you for costs,
such as court fees or the other party’s attorney fees.
Notify the court in writing right away if your mailing address changes.
If you don’t do this, you may not get court notices, which will cause you to miss important court dates.
Q. If the court orders
that child support be paid to me, how do I collect it?
A. You have choices.
You can wait to see if the payments are made. If this happens, you don't have to
do anything to enforce the order.
If you are not getting the payments, or think you'll need help collecting, you
have other choices.
- You can ask the Department of Health and Human Services to collect the money and send
it to you. Ask the clerk for
a DHHS Child Support Services brochure, an application form, and contract form.
Fill out the forms and send them to:
Department of Health and Human Services
Division of Support Enforcement and Recovery
Central Office Supervisor
11 State House Station
Augusta, ME 04333-0011
Include all required documents. Otherwise, DHHS will not accept your application.
After DHHS gets your forms and opens a case file, they will be contacting
you for more information. To get child support sooner, always get back
to them promptly.
If you or your children get TANF or MaineCare, you do not have to
sign up for DHHS collection services. You get this service
automatically.
- You can give the other parent's employer a copy of your Immediate
Income Withholding Order.
Get this from the court clerk.
This paper orders the employer to withhold wages and send the money to
DHHS. DHHS then forwards it to you. Keep DHHS informed of your current
mailing address. If you choose this option, you will get
"limited service" from DHHS. They will forward money they get to you
but will not take any other steps to enforce the court order.
If the other parent does not get a regular paycheck, collecting support may
be much harder. Your choices are to ask for DHHS services, hire a lawyer,
or try to take the other parent back to court again on your own.
RETURN TO TABLE OF CONTENTS
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Notice
© Pine Tree
Legal Assistance
January 2007
Sometimes the laws
change. We cannot promise that this information is always
up-to-date and correct. If the date above is not this year,
call us to see if there is an update.
We provide this
information as a public service. It is not legal advice.
By sending you this information, we are not acting as your lawyer.
Always consult a lawyer, if you can, before taking legal action.
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