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Hi, I am Nestor I have primary residential custody of my…

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Hi, I am Nestor I have...
Hi, I am Nestor

I have primary residential custody of my two young girls, ages 5 and 8. Their mother gets visitation twice a week. I do the drop-off and pickup. The children and I live 22 miles away from their mother. There is a Consent Order which stipulates that I, the primary custodian of the children, shall drop-off and pickup children to and from mother. The Order says that I shall drop-off and pick up until the mother gets her own transportation. I've had custody of my children for 6 months.

I am a Pro Se lawyer. I am divorcing the mother of my children. First, she asked me to file for divorce because she did not have the money to do it herself. I filed an uncontested divorce in December, 2011. I served my wife via USPS Certified + Return Receipt On December 30, 2011.

She failed to answer the Summons and Complaint and refused to sign the divorce she asked me to file. The reason she has given me for not signing the divorce papers is because, "You are including the children in the divorce. You are asking to keep the custody of the children, permanently."

She is so ignorant, she still hasn't realized I already have custody of the children as per the Consent Order and therefore, I am not asking for custody via the divorce. She doesn't understand I have to include copies of the Consent Order with the divorce papers, thereby making the judge aware of the fact that there is no custody issue to be addressed.

She thinks, "The consent Order is not a serious document. A Consent Order could be void." She is so out of touch with reality, she believes the divorce judge will allow her to claim custody of the children, even though I already have the custody of the children. Also, alimony, child support, and distribution of assets (my sole income for the past 10 years is Social Security Disability, $1,300.00 a month; the only thing of value I have is a 12-year-old Honda) were addressed on the Consent Order, too.

My divorce case has already been scheduled for a Default Judgment on March 15th for lack of response from her. Here in NJ the Defendant is given 35 days to submit an answer. Today, 58 days after I served her, she advised me she has hired a lawyer and is going to submit an answer and counter claim.


I am representing myself on this matter. It was supposed to be an uncontested divorce. She asked me to file the divorce until I got tired of her telling me, "I don't want to continue signing with your last name; you already have the children; why don't you divorce me and get it over with?"

But now, at this juncture she has gotten some income tax money and hired a lawyer.

My Question to you, Expert, kill my anxiety:

What should I worry about here? If as per the Consent Order I have custody of children and alimony and child support were also addressed on the Order (both parties waive spousal support against each other); the Order also stipulates that my apartment (rented) is for the exclusive use of Nestor Lopez (me) and the children, what is she looking for by hiring a lawyer to contest a divorce that has already been scheduled for default?

What could her lawyer, at this juncture, accomplish for her, especially when there is a Consent Order that addresses most of the divorce issues?

I she wasting her money on her $300-an hour lawyer at the last minute?

What should I worry about, anything?
Submitted: 6 years ago.Category: Family Law
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Answered in 7 hours by:
2/28/2012
Family Lawyer: PlotinusLaw, Family Law Attorney replied 6 years ago
PlotinusLaw
PlotinusLaw, Family Law Attorney
Category: Family Law
Satisfied Customers: 738
Experience: 14 years of practice in all aspects of family law.
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Thank you for your question and for contacting JustAnswer. My name is Christopher and I will be helping you with your legal issue today. Have you received any legal documentation from your wife's alleged attorney, like an Appearance or any paper stating that she is being represented by an attorney?
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Customer reply replied 6 years ago
I haven't gotten anything from the attorney, but I met him in court yeasterday. We had to appear before a judge pertaining an Order to Show Cause I had filed back in December because the wife was refusing to disclose her address to me. Therefore, everytime I dropped off the children to her for visitation, she would wait for me at a park or gas station and refused to disclose her address to me.

So I had to go to a judge to force her to give me her address. As a consequence, the judge got curious as to why she was hiding with the children when I brought them to her for visitation and Ordered an inspection of her apartment and set the return date for 60 days. Yesterday, the 60 days were up and we had to return for the judge's final decision as to whether she (judge) would allow overnight visitation in what turned out to be an Illegal basement. So, the judge, who, in December, had suspended her visistation--pending the outcome of the inspection of her apartment, determined yesterday that the suspension continues until she finds a decent place to receive the children for visitation.

I am sorry I 've written so much. Her lawyer was there with her. They both brought up the FM matter (divorce in NJ), even though it was not the subject matter. The judge had already ruled on the Order to Show Cause and was walking out the little back door and that's when the wife started talking about the divorce matter and her lawyer took over her comments to the judge and said, "Yes I am filing an answer and c/claim on the divorce matter." I guess they just wanted me to hear that.

Furthermore,

Last week I filed a lawsuit against her for Breach of Verbal Contract in Small Claims Court. I am suing for $3,000.00. As I told you, I have the custody of my children and I don't get child support from the mother. She went behind my back and filed her 2011 taxes and claimed the children and got over $9,000.00 dollars refunded back to her. I don't know how she got so much money refunded to her. I know the children were the reason she got most of that money. But she only worked 3 months (off the books) at a hair salon in 2011. She mentioned she was making $200.00 per week at this job. I don't what she did. But she sure got a lot of money from the IRS.

I found out about her claiming the children before she got her refund checks and told her she was not supposed to claim the children because they do't live with her. So, she said, "Please, don't call the IRS on me; let's share the money half and half."

Given that I am broke and my only source of income is Social Security Disability, I agreed to allow her to claim children and entered into a Verbal Agreement with her. I have digitally recorded about 5 conversations we had about the income tax money and the fact that we have an agrrement to share it half and half. She doesn't know about the recordings. Besides, there are numerous of text messages on this matter between the two of us.

As you can see, after she insisted that I file for an uncontested divorce because she did not have the money to pay for the process, she decided not sign the divorce papers nor answer the complaint until now, about 60 days after I filed and the divorce is cheduled for a default judgment. You see, she defrauded me and her own children of thousands of dollars worth of tax refund (as she decided to keep about $,7000.00 of it and give me and the children $2,500 dolars. And guess what? She gave it to me on a Cashier's check to protect herself and act of delinquency. Now she is using such money to pay a $300/hr lawyer from Lopez and Jimenez Law firm.


Please, try to address all of my concerns, including the viability of my Small Claims suit and give me tips as to how to follow up with Discovery and Request for Admissions and so forth.

Also, the lawyer is most likely sending me a counter claim in the nick of time and God knows what else he is going to send me. What should I be careful with when answering his technical low blows?

The divorce is based on Irreconcilable Differences.

I brought my wife form the Dominican Republic 4 years ago. She got her permanet green card in 2010. So, obviously that is another shenanigan she pulled on me. After she got Permanent Resident Card, she sprung wings. How can I exploit the latter fact when I go for the divorce hearing on March the 15th?
Customer reply replied 6 years ago

I haven't gotten anything from the attorney, but I met him in court yesterday. We had to appear before a judge pertaining to an Order to Show Cause I had filed back in December because the wife was refusing to disclose her address to me. Therefore, every time I dropped off the children to her for visitation, she would wait for me at a park or gas station and refused to disclose her address to me.

So I had to go to a judge to force her to give me her address. As a consequence, the judge got curious as to why she was hiding with the children when I brought them to her for visitation and ordered an inspection of her apartment and set the return date for 60 days. Yesterday, the 60 days were up and we had to return for the judge's final decision as to whether she (judge) would allow overnight visitation in what turned out to be an Illegal basement. So, the judge, who, in December, had suspended her visitation--pending the outcome of the inspection of her apartment, determined yesterday that the suspension continues until she finds a decent place to receive the children for visitation.

I am sorry I've written so much. Her lawyer was there with her. They both brought up the FM matter (divorce in NJ), even though it was not the subject matter. The judge had already ruled on the Order to Show Cause and was walking out the little back door and that's when the wife started talking about the divorce matter and her lawyer took over her comments to the judge and said, "Yes I am filing an answer and c/claim on the divorce matter." I guess they just wanted me to hear that.

Furthermore,

Last week I filed a lawsuit against her for Breach of Verbal Contract in Small Claims Court. I am suing for $3,000.00. As I told you, I have the custody of my children and I don't get child support from the mother. She went behind my back and filed her 2011 taxes and claimed the children and got over $9,000.00 dollars refunded back to her. I don't know how she got so much money refunded to her. I know the children were the reason she got most of that money. But she only worked 3 months (off the books) at a hair salon in 2011. She mentioned she was making $200.00 per week at this job. I don't what she did. But she sure got a lot of money from the IRS.

I found out about her claiming the children before she got her refund checks and told her she was not supposed to claim the children because they do't live with her. So, she said, "Please, don't call the IRS on me; let's share the money half and half."

Given that I am broke and my only source of income is Social Security Disability, I agreed to allow her to claim children and entered into a Verbal Agreement with her. I have digitally recorded about 5 conversations we had about the income tax money and the fact that we have an agreement to share it half and half. She doesn't know about the recordings. Besides, there are numerous of text messages on this matter between the two of us.

As you can see, after she insisted that I file for an uncontested divorce because she did not have the money to pay for the process, she decided not sign the divorce papers nor answer the complaint until now, about 60 days after I filed and the divorce is scheduled for a default judgment. You see, she defrauded me and her own children of thousands of dollars worth of tax refund (as she decided to keep about $,7000.00 of it and give me and the children $2,500 dollars. And guess what? She gave it to me on a Cashier's check to protect her act of delinquency. Now she is using such money to pay a $300/hr lawyer from Lopez and Jimenez Law firm.


Please, try to address all of my concerns, including the viability of my Small Claims suit and give me tips as to how to follow up with Discovery and Request for Admissions and so forth. I will add BONUS!

Also, the lawyer is most likely sending me a counter claim in the nick of time and God knows what else he is going to send me. What should I be careful with when answering his technical low blows?

The divorce is based on Irreconcilable Differences.

I brought my wife form the Dominican Republic 4 years ago. She got her permanent green card in 2010. So, obviously that is another shenanigan she pulled on me. After she got Permanent Resident Card, she sprung wings. How can I exploit the latter fact when I go for the divorce hearing on March the 15th?

Family Lawyer: PlotinusLaw, Family Law Attorney replied 6 years ago
Thank you for being patient, we have been having problems with our server today, and I could not post an answer earlier than this. Your wife's retaining an attorney means that she will have a legal someone explaining the law to her and how to assert her rights. For example, without an attorney, she would not know that the default can be set aside. Pursuant to the New Jersey rules of civil procedure;

4:43-3. Setting Aside Default

A party's motion for the vacation of an entry of default shall be accompanied by (1) either an answer to the complaint and Case Information Statement or a dispositive motion pursuant to Rule 4:6-2, and (2) the filing fee for an answer or dispositive motion, which shall be returned if the motion to vacate the entry of default is denied. For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 4:50.



It has been my experience that in family court, defaults are easily set aside, much more so than in other civil cases because the family courts are courts of equity.

Your wife's retaining an attorney does not mean that everything that has happened in the case to date will be reversed. With regards to custody, again, in my experience, the court's are very reluctant to modify custody, even temporary custody, without a very good reason because they want to preserve stability for the children. Having said that, you should be aware that if your wife is contesting custody at this point, it will mean that there will be a formal hearing or trial to determine what custodial arrangement will be in the best interest of the minor children.



I'll address your small claims issue now. Again, I cannot tell you what to do, or give you advice. I can tell you that the judge in your divorce case has the jurisdiction to make a decision on the matter. Technically, that money is part of the marital estate, and you are entitled to half of it. Filing a motion to have her turn over her half of the money in divorce court would be a much quicker path to resolution on this issue, than going through small claims. I can't tell you how to answer the interrogatories and request of admissions because I am not licensed to practice law in New Jersey. You really should consult with a New Jersey attorney with regards to this. I know that money is an issue for you, I am wondering if you have tried legal aid? Here is a link to one of the many legal aid agencies in New Jersey; http://www.lsnj.org/ Also, here is a link to the New Jersey rules of civil procedure; http://www.judiciary.state.nj.us/rules/part4toc.htm

Here is the text of the rule dealing with interrogatories:



RULE 4:17. Interrogatories To Parties

4:17-1. Service, Scope of Interrogatories

(a) Generally. Any party may serve upon any other party written interrogatories relating to any matters which may be inquired into under R. 4:10-2. The interrogatories may include a request, at the propounder's expense, for a copy of any paper.

(b) Uniform Interrogatories in Certain Actions.

(1) Limitations on Interrogatories. In all actions seeking recovery for property damage to automobiles and in all personal injury cases other than wrongful death, toxic torts, cases involving issues of professional malpractice other than medical malpractice, and those products liability cases either involving pharmaceuticals or giving rise to a toxic tort claim, the parties shall be limited to the interrogatories prescribed by Forms A, B and C of Appendix II, as appropriate, provided, however, that each party may propound ten supplemental questions, without subparts, without leave of court. Any additional interrogatories shall be permitted only by the court in its discretion on motion.

(2) Automatic Service of Uniform Interrogatories. A party defendant served with a complaint in an action subject to uniform interrogatories as prescribed by subparagraph b(1) of this rule shall be deemed to have been simultaneously served with such interrogatories. The defendant shall serve answers to the appropriate uniform interrogatories within 60 days after service by that defendant of the answer to the complaint. The plaintiff in such an action shall be deemed to have been served with uniform interrogatories simultaneously with service of defendant's answer to the complaint and shall serve answers to the interrogatories within 30 days after service of the answer to the complaint. In all actions commenced prior to September 5, 2000, however, answers to uniform interrogatories shall be demanded by letter of demand served upon all adverse parties within the time prescribed by R. 4:17-2, and answers shall be served within the time prescribed by R. 4:17-4(b).

(3) Claims of Privilege, Protection. Privileged information need not be disclosed provided the claim of privilege is made pursuant to R. 4:10-2(e). Nor need information be disclosed if it is the subject of an identified protective order issued pursuant to R. 4:10-3.

(4) Obligation to Answer Every Question. Except as otherwise provided in subparagraph (b)(3) of this rule, every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered.



Here is the text of the rule governing Requests to Admit or Deny;



RULE 4:22. Requests For Admissions

4:22-1. Request for Admission

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters of fact within the scope of R. 4:10-2 set forth in the request, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after being served with the summons and complaint. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may, subject to the provisions of R. 4:23-3, deny the matter or set forth reasons for not being able to admit or deny.

Requests for admission and answers thereto shall be served pursuant to R. 1:5-1 and shall not be filed unless the court otherwise directs.

The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion.

I hope that this answers your questions to your satisfaction. If not, please don't hesitate to ask a follow up question. Finally, please remember to click on the green "accept" button so that I may receive credit for this response.
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Customer reply replied 6 years ago
I AM ONLINE RIGHT NOW TRYING TO FILL OUT THE MOTION FORM. I AM GOING TO FILE A MOTION TO SEE IF THE JUDGE WHO WILL BE PRESIDING OVER THE DIVORCE MATTER ACCEPTS MY MOTION TO COMPEL MY WIFE TO HAND OVER THE REST OF MY HALF OF THE INCOME TAX MONEY. HOWEVER, IN THE BOX WHERE IT ASKS ME TO ENTER "TYPE OF MOTION," I REALLY DO NOT KNOW WHAT KIND OF MOTION THIS IS. THERE ARE SEVERAL TYPES OF MOTIONS THAT I KNOW, BUT IN THIS CASE, THERE IS NO EXAMPLE AVAILABLE. FOR INSTANCE, SEE THE FOLLOWING AND NOTE THERE IS NO EXAMPLE THAT APPLIES TO MY SITUATION:

Motion to dismiss the complaint
 Motion for entry of default
 Motion to vacate a default judgment
 Motion for summary judgment
 Motion to strike an answer for failure to answer interrogatories
 Motion to compel discovery

You see? What would be my motion? I don't want the to dismiss my complaint because I did not specify what kind of motion I am making.

Any help?
Customer reply replied 6 years ago
Relist: Other.
The Expert has not responded to my follow-up questions. I've been waiting for about 3 days!
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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