Step Four: Making some decisionsStep Four: Making some decisions admin Wed, 05/20/2020 - 11:34
To prepare for your first court meeting, think about the decisions you need to make. The most important decisions are about your children. Learn more about parenting through a divorce or separation by visiting our new Families Change Guide.
What "parental rights and responsibilities" issues have to be decided?
Here are the issues you need to think about, and discuss with the other parent if you can:
- Primary residence (who will the child live with?)
- Parent-child contact (when will the child have contact with the other parent?)
- Decision-making (how will decisions about the child be made?)
- Child support (how much support will one parent pay the other?)
- Medical insurance (how will the child be insured and who will cover uninsured expenses?)
- Tax exemption (which parent will claim the child as a dependent on their taxes?)
Here are some more details about each of these decisions:
- Where will the children be living- with one parent most of the time ("primary residence") or "shared 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 to be put in place (such as supervision by another family member, or no use of alcohol or drugs during visits), raise those issues with the other parent and the Magistrate.
- How much child support will be paid? You can estimate the amount by filling out a Child Support Worksheet. Where both parents will be providing "substantially equal care," you must fill out a Supplemental Worksheet, as well. (NOTE: Parents with very low incomes who may need to rely on TANF to help support their children should avoid agreeing to share primary residence or "50/50." This will most likely result in loss of TANF benefits.) If you have trouble with these forms, get help from a Courthouse Assistance Project. Sometimes you can agree to a different amount if the court approves the reasons for the change. This is called a "child support deviation." If you can't figure this out, the Magistrate will help you. Read more about "deviation" here.
- 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 coverage through the state? If your child will be getting coverage through the Affordable Care Act (ACA), which parent should take on this responsibility? How will you share any unmet medical expenses? Read more here about ACA considerations.
- Are there any other child-related issues that you want to include in your agreement? For example, is religious upbringing or medical treatment decision-making an issue?
There are three ways to divide up parental rights and responsibilities: "shared," "sole," and "allocated." In many cases where it is safe for both parents to make decisions together, and where parents have made decisions together in the past, your parental rights and responsibilities will be "shared." The court order may specify how those will be shared. In certain cases, where one parent has abandoned the child or if one parent has prevented the other parent from making decisions in the past, the court may give "sole parental rights" to the other parent. Sometimes the court will "allocate" the rights and duties between the parents if that is in the best interest of the children. "Allocated parental rights" might include allowing one parent to make final decisions after consulting with the other parent, or dividing specific decisions between the parents.
NOTE: While making these decisions, it is always important to put your children first. Learn more about parenting through a divorce or separation by visiting our new Families Change Guide.
If we can't agree, how does a court decide child-related issues?
When the parents can't agree, court make decisions based on the children's "best interests."
Best Interest of the Child Factors
- Child's primary caregiver
- Which parent has been more involved in the day-to-day parenting?
- Who prepares meals for the child?
- Who puts the child to bed?
- Who takes the child to appointments?
- Age of the child
- Switching schools and communities may be easier for a younger child
- An older child may be able to transport himself between parents
- Child's relationship with each parent
- Have both parents been involved or has one been absent?
- Is the child close with both parents?
- Child's preference (if the child is old enough to express her wishes)
- Does an older child want to live with one parent or stay in their current school?
- The judge will listen to, but not necessarily agree with, the child.
- Where and with whom does the child live right now
- What are the child's current living arrangements?
- Is it best to keep them the same?
- The court will consider stability for children.
- Each parent's ability to be a parent
- What is each parent's ability to raise the child?
- What is each parent's ability to give a child love and affection?
- Child's adjustment to their school and community
- Would moving a child from his current school and community cause too much disruption to the child's life?
- The ability of both parents to co-parent and work together
- Will the parents support each other?
- Is one parent more responsible for parenting conflicts than the other?
- Whether an infant is being breast-fed
- If a child under the age of one is breast-fed, should the parenting schedule be made in a way that will let breastfeeding continue?
- Whether there is domestic violence between the parents
- If there is abuse, what is the impact on the child emotionally?
- How can the child be safe?
- Whether either parent is a danger to the child
- Is the child safe with both parents?
- Is either parent living with someone who is a danger to the child?
- Any other factor(s) related to the well-being of the child
What other issues need to be decided in a divorce?
If you are not married, the "parental rights and responsibilities" issues explained above will be your only focus. The court will not help you with dividing up property and debts. And the court will not order spousal support. If you and the other parent own real estate together (such as a home), you may need to file a separate court action to legally divide your property. This is called a "partition action." Or one party can deed their interest to the other, in exchange for money or other property. Again, the court will not help you with this in the context of your Parental Rights case.
If you are married, some more issues will need to be decided:
- Property (how the property you own will be divided)
- Debt (how much debt will be divided)
- Spousal support (whether one spouse will pay support to the other, and how much)
How do we divide up property and debts?
That isn't always an easy question to answer. If you have a lot of property or debts, you should try to get a lawyer. Make sure that you are getting a fair share of real estate, pensions, and retirement accounts.The court will try to divide property fairly, not necessarily equally.
Personal Property: If you don't have much property, then you may be OK without a lawyer. All "marital property" should be divided fairly. "Marital property" is property that either of you got during your marriage (even if it is in your name alone). Generally speaking, property each of you got before you were married, as well as gifts made to you alone during the marriage, or something you inherited during the marriage, are not marital property (i.e. "non-marital property"). Each of you may claim your non-marital property. The divorce order must address how all of your "marital property" has been or is going to be divided. Again, if you have pensions, retirement plans, or other major property issues, try to get a lawyer.
Debts: The same rules apply to debts. CAUTION: No matter how you divide up your debts in your divorce, a creditor can still go after you for debts you both signed for while you were married. For example, you both signed for a joint car loan, even if you agree that your spouse will be responsible for the car loan, the car creditor can still come after you to pay the car loan. If a creditor forces you to pay a joint debt that the divorce court has ordered the other party to pay, you can bring a
"post-judgment motion" to ask the court to order that the other parent pay you back.
Real Estate: If you own a house or other real estate and don't have a lawyer, get this court form: Certificate Regarding Real Estate. Fill it out with the correct Registry of Deeds information, and file it with the clerk. Send a copy to the other party. The court will use this information in drafting your final order. Also, the court will order either you or the other party to prepare another form: Abstract of Divorce Decree. Submit this completed form to the clerk along with a $10 filing fee. Send a copy to the other party. Once you get the signed abstract of divorce decree back from the clerk, you need to send the form and a filing fee to the Registry of Deed in the county where the property is. It is a good idea to call the Registry of Deeds to ask exactly how much the filing fee is before mailing. Once the Abstract is filed in the Registry of Deeds, third parties, like future buyers, can trace how the divorce affected the ownership of the property.
How does the court decide on spousal support, or alimony?
First, Maine law no longer uses the term "alimony." It's called "spousal support." Unlike child support, the court does not have a set formula for determining spousal support. If this is an issue in your case, you should try to get a lawyer. You must ask for spousal support now; you cannot come back to the court later, after your divorce, to ask for it.
There are three types of spousal support in Maine:
- General support
- Transitional support, and
- Reimbursement support
Here are some of the factors that the court will look at to decide whether to award spousal support, for how long, and for what amount:
- The length of the marriage
- The ability of each party to pay
- The age of each party
- The employment history, employment potential, income, and education of each party
- The health of each party
- The contributions of either party as a homemaker
- Economic misconduct
- Tax consequences
- Any other factors the court considers appropriate
The court processes explained next are designed to help you figure out all of these issues. But the process goes faster and more smoothly if you can figure out some of this ahead of time. The court is there to:
- Identify issues you cannot agree upon (Case Management Conference)
- Help you resolve issues that you haven't been able to come to an agreement (Mediation)
- Make sure that your agreement is fair - for your children, for you, and for the other parent. (Uncontested Hearing)
- Decide issues you still can't resolve on your own (Contested Hearing)
- Issue a final enforceable order. (This can be based on your agreement, decided by the court, or a combination of both.)
Frequently Asked Questions
Q. What if the other parent claims they are not the parent?
A. If you are the parent of a child and the other parent disputes that they are the parent, you will have to go through some extra steps in this process. You will need to prove that the defendant is the parent of your child. If this is an issue, check the box on the complaint that asks for "blood or tissue typing tests." You can learn more about "parentage" in Maine in our article "Maine Parentage Act: Who can be a parent?"
Q. What about stepchildren?
A. Beginning in April 2004, the Maine Law Court decided that the trial court can decide whether a stepparent who wants visitation, or other parental rights and responsibilities:
- should be awarded visitation, as a "third party," or
- should be treated as a "de facto parent," having on-going rights and responsibilities like a biological parent.
This ruling raised many unanswered questions that are still being resolved.
If you are a stepparent wanting to be treated as a "de facto parent," you must prove that you have been acting as a real parent to the child. The Court said that you can be considered a "de facto parent" only if you have "fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life." This is a complex and rapidly changing area of the law. We suggest that you get legal advice if you plan to seek de facto parental rights.
As with all children's issues, the court's primary goal is to meet "the best interests of the child."
You can learn more about "parentage" in Maine in our article "Maine Parentage Act: Who can be a parent?"
Q. How does the divorce affect my health insurance under the Affordable Care Act (or Marketplace)?
A. Your options for health insurance and your reporting requirements may be affected by your divorce. If you receive a subsidy (reduced cost), review your current health insurance and report any changes in household income or household size. If you fail to do this, you will have to pay back any subsidies that you should no longer be getting. Or you may find out that you now qualify for a larger subsidy. If you lose your health coverage as a result of divorce, go to healthcare.gov to find out if you qualify for marketplace health insurance (or MaineCare). Or speak to a local marketplace representative. Loss of coverage due to divorce allows you to purchase insurance outside of the limited yearly enrollment period.
Q. If the court orders that I should get child support, how do I collect it?
A. You have choices. You can wait to see if the other parent pays regularly. If this happens, you don't have to do anything to enforce the order.
If you are not getting the payments, or think that you'll need help collecting your child support, you have other choices.
- You can ask the Department of Health and Human Services (DHHS) to collect the money and send it to you. The court clerk should have information about how to obtain an application for DHHS services. Or, you can get this DHHS child support information and an application from the DHHS website. Fill out the application and send it to:
Department of Health and Human Services
Division of Support Enforcement and Recovery
11 State House Station
19 Union Street
Augusta, ME 04333-0011
- Be sure to submit all of the documents DHHS requires to open a case with the application. If you don't include everything they need, DHHS may return your application. After DHHA gets your complete application, they will open a case. The sooner you get your information to DHHS, the sooner they can begin the collection process.
If you or your children get TANF, 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 Child Support Order, along with a completed Income Withholding for Support form.
This form orders the employer to withhold the amount owned to you from the other parent's wages each pay period and send the money to DHHS. If you choose this option, you must notify DHHS. Give DHHS your mailing address and keep it up to date. If you move and don't tell them, DHHS will not know where to find you. DHHS then forwards to you any money received from the employer. DHHS will not take any other steps to enforce the court order. This is called a "limited services" option.
Under either option you choose, any money collected on your behalf will be placed on a debit card which DHHS will mail to you. You may use this card at almost every ATM and retailer and any place that accepts VISA. You may also opt to have your child support directly deposited into a bank account. You will not receive paper checks.
If the other parent does not get a regular paycheck, collecting support may be much harder. Your choices are to ask for DHHS services through the application process, hire a lawyer, or try to take the other parent back to court on your own. The last choice may be difficult, depending on the facts of your case. Read about Post-Judgment Motions, then decide if you can do a Motion to Enforce or Motion for Contempt on your own.
If you need more answers from DHHS about establishing or collecting a child support order, call the Division of Support Enforcement and Recovery, at 207-624-4100