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Fri 8 Apr, 2005 11:21 am
I have a rather odd situation that is still baffling me, but I will try to explain it so as to be understood...
My ex-wife and I separated in April 1993. I hired a paralegal in order to file a petition for dissolution of marriage (divorce) in May 1994. The petition included a section stating that custody be awarded to both parents and that child support be paid "per statute" by my ex-wife to me. The petition was signed by myself and also by my ex-wife on May 31, 1994. The petition was not filed until January 1996 because, during that time, my ex-wife was "missing in action". My paralegal and I decided to go and file the petition in her absence. I trusted the advice of my paralegal, and accepted that all necessary information was taken care of and that the divorce was done. Since the date of separation (April 1993) our daughter resided solely with me and I took care of all expenses for her care, since my ex-wife was often not able to be found (she was more or less in and out of town and saw her daughter sporadically for quite some time, until she finally settled into living with her current boyfriend and started seeing her daughter on a somewhat regular basis of every other weekend).
My ex-wife never paid any child support at all during this time. I was unable to afford an attorney and felt that I would not get any support if I were to take her to court because she was often unemployed and living with friends, etc.
I recently became able to afford an attorney, and retained one last summer in order to take my ex-wife to court for her arrears in child support. Upon researching the exact date of commencement of child support payments by retrieving the original file from the courts, my attorney discovered that the original divorce petition was dismissed due to "failure to prosecute". The dismissal date was effect in January 1997. I did not receive any sort of notice on this dismissal, but I was told that it didn't matter if I did or not - that we were legally still married. Or course, I was extremely irked! The afore-mentioned paralegal was not able to be found. My attorney and I immediately filed a new petition for dissolution of marriage and child support orders, and also stated as our position that my ex-wife should pay retroactive child support for the time period of the original filing until now, because we have been living as divorced, our daughter as always resided permanently with me, and I have been providing the sole financial support for our daughter this entire time. This new petition was filed last July 2004. Yesterday (April 7, 2005) we finally got to the end of all the legal stuff and had the hearing for permanent orders. The judge awarded me with sole decision-making responsibility (they don't use the word "custody" in Colorado any more) and also ordered my ex-wife to pay child support from this point forward, and also retroactive support dated from the current date of filing (July 2004) until now. She (the judge) also suggested that the only reason she chose not to award the extra retroactive child support was because she did not have a statute to use for this sort of case (where the husband was unaware that he was not divorced, etc.). My attorney informed me that the judge could be asked to revisit this point if we could find some sort of statute or even a similar case from another or the same court, whether in-state or out, where child support could be or was awarded in a similar situation.
I apologize if this is confusing - I'm still pretty baffled by it myself, as I said... Can anyone out there help me out with this one?
Also, if I should decide to do so, am I able to move out of state because I have "sole decision-making responsibility" and my ex has only "reasonable parenting time" (they don't use the word "visitation" in Colorado any more, either). Or is that another court case altogether?
I appreciate responses from any one - thanks for reading this one!
I am in the same shoes
Hello, Danoels4:
I just want to know what's the result. I am in the same shoes, and my wife and I informally separated for two years and our daughter has been living with me since then. How, my ex-wife refuses to pay past child support, and the judge said that he can only enfore her to pay child support from the time that I filed the divorce case. How to get that retroactive child support?
Best,
jszhu
Just for clarification purposes, you state "Since the date of separation (April 1993)..."
Did you have an actual seperation agreement at that point? Or are you referring to the date of physical seperation (i.e. the date you were no longer living together as husband/wife)?
I am referring to the date of physical separation. Now I am trying to figure out what statute of family law I can use to get retroactive child support that incurred during the imformal separation period through the Court. Theoretically, if there is no such statute that we can use for retroactive child support, why then can we file a petition for retroactive child support to the Court?
jszhu wrote:I am referring to the date of physical separation.
Ok, if there had been a formal seperation agreement it would be easier but...
Quote:Now I am trying to figure out what statute of family law I can use to get retroactive child support that incurred during the imformal separation period through the Court.
I can't find anything that incidactes that it is possible.
Quote:Theoretically, if there is no such statute that we can use for retroactive child support, why then can we file a petition for retroactive child support to the Court?
You can petition because there are other circumstances where retroactive support may be applicable. If you had a formal seperation agreement that had stipluated she would pay child support and she disappeared and then the final divorce decree restated her obligation you could petition the court to enforce the 1st agreement and get the child support for the period between the seperation agreement and the final divorce.
Anyway, I'm not sure if these will help directly but you might take a look:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=2000app%5Cct10128&invol=1
http://www.cobar.org/opinions/opinion.cfm?OpinionID=4572
Maybe some of the law citations listed will give your lawyer something to look at.
Best benefit of the child?
Thank you for your reply. I found there is a dilemma about the best benefit of the child when we look at the family law. Everybody can talk about the best benefit of the child but maybe nobody care about it. As you said, we cannot get retroactive child support of the informal separation. Now let's look about marital debts. If, because of no child support from your soon-to-be ex, you got debts, which incurred during separation for the purpose of the best benefit of the child (trying to offer the child a decent life), the court may not regard the debts as marital debts. So, your ex will not be responsible for the debts. Where can we find a way out of this dilemma?