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LADY LAWYER
LADY LAWYER, Family Law Attorney
Category: Family Law
Satisfied Customers: 6531
Experience:  Family Law Attorney
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My husband filed for divorce 33 days ago and has not served

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My husband filed for divorce 33 days ago and has not served me with papers yet. How long does he have to serve me with papers? If he does not serve me in that time frame can I file and serve him? If I am able to file will I be able to regain custody of our children?
Christa
Submitted: 3 years ago.
Category: Family Law
Expert:  LADY LAWYER replied 3 years ago.

LADY LAWYER :

Hello, Thanks for choosing Justanswer.com! I look forward to helping you today.

LADY LAWYER :

He has to serve you within 90 days.

Customer :

Thanks. Can you tell me if there is a time limit that papers must be served by?

LADY LAWYER :

If not, then the summons and complaint can be dismissed and you can file against him.

Customer :

90 days sucks! I had heard that he only had 45?

LADY LAWYER :

However, filing the lawsuit costs money, so you can save money by just letting him serve you.

LADY LAWYER :

The court does not care who is the plaintiff and who is the defendant. It will not make a difference at all in your case.

LADY LAWYER :

So unless he lives in another state, I would just allow him to serve me.

Customer :

I havent prevented him from serving the papers, but would like to file against him so that I can regain custody of our children

Customer :

right now I am not allowed to see or talk to them at all

LADY LAWYER :

Filing against him will not make a difference in the custody issue.

LADY LAWYER :

Has the court given him custody for now>

LADY LAWYER :

?

Customer :

only because he filed first.

LADY LAWYER :

Unless there was a hearing, just because he filed first does not mean the court granted him custody!

Customer :

I was in the hospital when he filed, but my doctors see no reason why I should not be allowed to have custody

Customer :

how would know if there was a hearing?

LADY LAWYER :

You have to contact the clerk of court, family law division.

LADY LAWYER :

If you missed the inital hearing on custody, then yes, he may have temporary custody right now. But all you need to do is request a hearing and get yourself in front of the judge to ask for at least joint custody!

Customer :

I know he filed because I can see the info online. would I be able to see if there was a hearing online

LADY LAWYER :

I would not wait around for him to serve you anything. You can request a custody hearing at any time.

LADY LAWYER :

Yes, the docket should say so.

Customer :

dosent he have to tell me there isgoing to be a hearing so I can attend?

LADY LAWYER :

But just so you know--him serving you or you serving him has nothing to do with who is going to get custody.

LADY LAWYER :

YES, the court should have told you.

LADY LAWYER :

If all he has done is file for divorce, then he has no right to keep your children from you. There may be nothing keeping you from them except for him saying you cannot see them.

LADY LAWYER :

I would let him serve you and meanwhile, request a hearing for custody.

LADY LAWYER :

He may have asked for sole custody in the divorce papers, but again, UNLESS the court has held a hearing and ruled in his favor, he has no legal authority to be keeping those kids from you.

Customer :

he wants to go before a mediator to make a parenting plan, and has had his lawyer draft papers that i had to sign to see then a few weeks ago, and then we had an argument over the phone and he has denied my request to see them

Customer :

what do I need to show to regain shared custody?

LADY LAWYER :

Why did you sign something like that?

LADY LAWYER :

Do you know what you signed?

LADY LAWYER :

If you willingly gave him custody, then that is a different story.

Customer :

My lawyer told me to I signed a temporary order saying that I would have an approved third party with me when the children were with me, what the dates and times of my 2 visits would be, and that he had temporary, primary physical custody as I had moved back in with my parents in a different city from where the kids are attending school

LADY LAWYER :

Okay. That is information that I needed.

LADY LAWYER :

There is already an order in place giving you these set times to visit your children. Your ex cannot simply deny you the right to these visits because he feels like it. Your ex is in contempt of the court order. I don't know what your attorney is doing, but he needs to be filing a motion for contempt against your ex so that the judge will rule that your ex MUST allow you to see your kids.

Customer :

I would like to move back to the area, but have no support group there. he kicked me out of the house while I was in the hospital and moved our kids to another home but has stopped paying for the morgatage and it has fallen to me. I cant afford rent and the mortgage

LADY LAWYER :

What I said before is still true though--whether he files against you or whether you file against him will make no difference in who gets custody. You both are going to ask for the same thing from the court no matter who files.

Customer :

I know in the end the custody will be shared, but dont want to wait 6 months to see the kids

LADY LAWYER :

You don't have to! You currently have an order in place that says you get visits with them.

Customer :

the dates of thies visits have passed

LADY LAWYER :

If he is not honoring the agreement, he is in contempt of court but you have to let the judge know about this before anything can be done.

LADY LAWYER :

Then you need to request a hearing to get visitation.

Customer :

he is unwilling to agree to any more dates at this time

LADY LAWYER :

The judge can overrule him.

LADY LAWYER :

BUT, if you have not been served with any papers for the divorce yet, the court shouldn't even have jurisdiction over your kids yet. You need to talk to your attorney ASAP and find out what is going on here.

LADY LAWYER :

I think you are being misinformed about your ex's rights and your rights.

Customer :

what do I need to prove to get the most visitation time I can?

LADY LAWYER :

That you are a fit mother and that you have the children's best interest in mind.

LADY LAWYER :

All the judge cares about is what is in the best interest of the children.

Customer :

I have left a message for my lawyer to call me earlier today She felt that by agreeing to the supervised visits in the begining would be the best way to prove I am a fit mother as it would not be a he said - she said thing

LADY LAWYER :

Well, I don't know your back story, but unless there is some sort of substance abuse problem, I would have never had a client agree to something like that.

Customer :

any other way to proe I am a fit parent?

LADY LAWYER :

The court will not consider you "unfit" unless there is substance abuse, child abuse or unless you cannot provide a stable home for the child. So you really don't have to prove that you are fit--he would have to prove that you are unfit. Otherwise, the court favors joint custody.

Customer :

no substance abuse. I was mis diagnosed as bipolar and the medication I was on 2 months ago led me to havea mental break down. My diagnosis and medication have been changed and my doctors see no problems with me spending time with the kids

Customer :

they actually think that spending time with the kids is good for me

LADY LAWYER :

I would agree.

Customer :

should I get something in writing from the doctors?

LADY LAWYER :

I would have your doctor's affidavits ready to show the judge to say that spending time with your children would be a good thing and that you are currently okay.

LADY LAWYER :

Yes, get notarized affidavits from them.

Customer :

how hard is that?

LADY LAWYER :

Not hard at all--your attorney should be able to secure them for you.

Customer :

anything else? do in need affidavits from the family members who have been supervising my visits in the past?

LADY LAWYER :

Sure, any family members or character witnesses that have seen you interact with the kids or can testify to your mental health would be most helpful.

Customer :

can I request a hearing before he serves me with papers?

LADY LAWYER :

Well, like I said, you are going to need to talk to your attorney. Because if you haven't been served with the divorce papers, the court technically shouldn't even have any say so over your kids at this time. You need to find out what has been done so far.

LADY LAWYER :

The usual process is that you would be served and your attorney would file a response, asking for whatever in teh divorce, plus custody of the children. Then a hearing can be scheduled ASAP.

Customer :

but I need to wait until I am served? The waiting is killing me..especially as he still has 50+ days before he must serve me

LADY LAWYER :

Your attorney can totally call the other attorney and accept service THAT DAY on your behalf.

LADY LAWYER :

There are things your attorney should be doing for you so that you can see these kids ASAP.

Customer :

do I need to be giving him money to support the kids? I am on disability since my breakdown, but he has been unemployed for the last 2 years. I dont mind giving money for the kids, but think I can get more time with them if I am living closer, which I cant do as I am having to pay the complete mortgage on our house as we sell it cuz he is refusing to pay it and I am not willing to let go of the $400,000 of equity in it

LADY LAWYER :

No, not unless the court tells you to. That is not going to make a difference on whether you can see them or not.

LADY LAWYER :

Do you have a legal aid attorney or something?

Customer :

what are the types of things I should ask my lawyer about to see the kids more?

Customer :

yes

LADY LAWYER :

I think we have already gone over them pretty much.

LADY LAWYER :

Just if there is any court order saying he has custody at the moment.

Customer :

his parents have money and he is using a high priced attorney, but I am broke right now and using the aid available at the courthouse

LADY LAWYER :

No wonder, it sounds like your attorney is being bullied here.

Customer :

yep. and I am dying of heartbreak as I have no contact with the kids right now. I will call and leave a message for the lawyer again. Thank you for your help

LADY LAWYER :

You're welcome. I am going to leave the question open even after you accept the answer. Come back at any time and I will help you at no additional charge.

LADY LAWYER :

God Bless you.

Customer :

Thank you SO much. how do I get backin touch?

LADY LAWYER :

Once you accept the answer, you will have the option to bookmark and save the page. You can also just sign back into Justanswer.com at any time and come back here.

Customer :

thank you ! have a great day. I appreciate your help.

LADY LAWYER :

You're welcome!

LADY LAWYER :

The accept button should be somewhere on the bottom. Let me know if you have trouble finding it so I can leave the question open. Thanks.

LADY LAWYER, Family Law Attorney
Category: Family Law
Satisfied Customers: 6531
Experience: Family Law Attorney
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