We tend to think of courts as having pretty much supreme power to order parties before it to do what they want. This is particularly true in a divorce or child custody case, where a lot is at stake. Generally speaking, if the parties cannot agree on how their lives should be reordered by coming to an agreement, the court is going to reorder their life according to state law. In reality, that is only partially true.
There are some things the Court cannot do in a family law case. If you want the Court to decide an issue in your divorce, child custody, child support, guardianship, or adoption case, the issue must be one where the court has the legal power to act and give you some relief. There are some very big things that do not make that list that tend to surprise a lot of our clients.
The family home is often a source of dispute in a divorce. Usually, those homes come with mortgages. Often, the court is powerless to do anything about them. If you and your soon to be ex-spouse both have your names on a piece of property, and there is a mortgage with both names, the court cannot necessarily force one of you to refinance the house in your own name. They can try, but they need the cooperation of one very important third party.
The court can order a refinance as part of the divorce, but to make that order truly effective one spouse must get a new mortgage in their name alone. The court cannot force a lender to actually give anyone a mortgage. Only the lender can make that decision, and they will do so based on your credit and income as they will for any other loan.
If the spouse who is supposed to refinance cannot get a loan, then the Order to refinance is essentially null. The spouse has to show they tried honestly, and were honestly turned down. But if that is true, there isn’t a whole lot the court can do other than revisit the entire situation and make a different ruling.
The court cannot usually require a parent to pay for college expenses. Once a child reaches the age of emancipation (defined below), the state does not require a parent to pay for any other expenses – including college. If state law does not require it, then you cannot force it on your ex-spouse during an action for child support.
Emancipation is the point at where you no longer have any legal responsibility to care for your child. Most people think this happens on the child’s eighteenth birthday, but that is not entirely true. It is a common misconception (although in reality it isn’t far off the mark.)
You could legally have the duty to provide for your child until he or she is 19, if they have not yet graduated high school. For a child to be emancipated in the eyes of the law, they must have reached the earlier of (a) 18 years old and graduation from high school, or (b) 19 years old even if they have not graduated.
So if your 18 year old child is born in January, they are not “emancipated” from you until they graduate in May or June. (note: There are other times you have to pay for a child over 18 – such as the duty to pay for a special needs child. But that would not include college expenses.)
There is one big exception to this rule about college expenses. If your separation agreement contains a provision whereby one of the parents is bound to provide college expenses, then that provision is enforceable by the court. This would be a contract provision, and it is enforceable like any other contract provision.
Presumably, one spouse offered to pay college expenses for the children even after they are emancipated, and the other spouse gave up something to get that bargain. That is an enforceable bargain. Parents can make these agreements in ways other than a separation agreement too. If it is a contractual arrangement, then it is enforceable by the courts.
Sometimes a wife who took her husband’s name at marriage will want to get her maiden name back. This is common and the court will do that if the wife makes the request during the divorce.
But often the wife does not want to change her name. This is a personal decision and can be made for many reasons. Most commonly we see it when the marriage lasted a long time and the wife is now known by her married name in the community and in her business relationships. Changing your name in that instance is difficult.
We also see it when a wife wishes to keep the same name as her children. The children of the marriage will continue to have their original last names, and sometimes the mother wants to keep it for that reason alone.
If the wife decides to keep her married name at the time of the divorce, the husband cannot force her to take back her maiden name. The matter of name is strictly the wife’s choice. There is no way to force a wife to take back her maiden name when she becomes an ex-wife.
There are many other things that a court may not be able to help you with, even if you demand it. It depends on the particular facts of your case. Each case and each family is like a fingerprint, no two are exactly alike. That is why we always strongly urge anyone facing a family law issue to at least get a consultation with a family law attorney. There you can ask your questions, get some advice, and at least find out what you can handle on your own – and what you cannot.