Q. My husband is making our divorce process incredibly difficult. He moved to our ski condo in Maine and filed for divorce there claiming that is where we are domiciled. We are not. We did spend most of the winter in Maine because of COVID when the kids were doing school remotely three days per week. However, we were here every Monday and Tuesday for them to do school in person and came back permanently in April so they could return in person. I filed for divorce here.
He filed a motion to dismiss my divorce complaint and lost. As soon as I knew he lost, I requested a hearing on my motion for support orders and custody. We had a hearing this week and the judge refused to hear the case because I did not properly serve my husband with the papers.
I don’t understand this – I mailed the papers to his lawyer on time and told them about the hearing which I was supposed to do. Now the court won’t reschedule us until September and my husband says he has enrolled the kids in school in Maine. Can you tell me what I did wrong so I don’t do it again? And do my kids have to change schools?
A. Without looking at the docket to be sure my hunch is that when your husband filed the complaint for divorce, his lawyer filed a limited appearance solely for the purpose of contesting jurisdiction. That lawyer’s appearance ended when the motion to dismiss was denied. If you only sent a copy of the motion and the notice of hearing to the lawyer and not to your husband, he did not have proper notice of your motion. Unless he hires a new lawyer or his prior lawyer files a general appearance in the case, you need to serve him directly with the motion and notice of hearing date.
But, just because he pulled a fast one here and you do not get an immediate support and custody order, doesn’t mean he won anything. When you have your hearing in September, you can ask for support retroactive to the date of service of the motion. If the judge is sympathetic, you might get it. But if not, you can still look for a slightly greater asset division in the end because of all of the things you are paying over these months without help from him.
In terms of school, he does not have sole legal custody and you do not agree to change the children’s school. Write a letter to the school where he registered them and state your objections and confirm their enrollment in their current school. Also, clearly notify the current school you do not consent to unenrollment.
Finally, you should take a page out of his book. File a motion to dismiss his action in Maine and use your children’s school attendance records as support to reflect there was never an actual move to Maine.