Divorce and Parental Rights Q&A
More Common Divorce and Unmarried Parents Questions and Answers
Learn more about Divorce and Parental Rights and Responsibilities in Maine in our interactive classroom.
A. On one hand, your divorce case will be simpler because you don’t have to deal with children’s issues. You will not go through any of the Magistrate steps that happen in divorces with children. To get started, follow the steps outlined in your court forms packet information sheet. Soon after you file and serve your court papers, and the other party files a response, both of you will get a “Scheduling Order” from the court. This Order will give you deadlines: such as when to file a Financial Statement, when to attend mediation, etc. You must follow the Scheduling Order. If you need a change in the schedule, you must file a written request with the court, including your reasons. If both of you agree to the scheduling changes, your request is more likely to be granted.
Check back. We plan to offer another step-by-step guide for parents without children before the end of the year (2016).
Q. What do I put on the complaint form as "grounds" for divorce?
A. Most divorces in Maine are granted on the grounds of "irreconcilable differences." The Maine statute includes nine different grounds for divorce, including adultery and extreme cruelty. But you do not have to show “fault” to get a divorce in Maine. If you want to get a divorce based on “fault” (extreme cruelty, for example), you should get a lawyer. If you list this as the only grounds and you do not prove "extreme cruelty," the court may not grant the divorce. If either spouse tells the court that there are "irreconcilable differences," the court can order a divorce. So, as a practical matter, this is the grounds the court almost always uses, even when one party is at fault.
Serious abuse may be relevant to other decisions the court must make, like divison of parental rights and repsonsibilities and need for spousal support. You can still tell the court about abuse or other issues even if you file based on "irreconcilable differences." Again, it almost never makes sense to try and show "fault" as the reason for your divorce.
Q. If I am afraid of the other party, do I have to say where I am living when I fill out the court forms?
A. No. You can write "confidential" where the forms ask for address and telephone. Then ask the clerk for an Affidavit for Confidential Address form (or find it online here). Write down why you think this information must be kept private to keep you or your children safe. Sign it in front of a notarty public. Then give it to the clerk along with your other papers. The clerk will then "seal" this information so that the others can't see it. The other party can object to this in writing. if so, the court may hold a hearing to decide whether the clerk must still keep the information secret.
Q. What if I move or change phone numbers while my court case is pending?
A. Notify the court in writing right away if your mailing address or telephone number changes. The court clerk needs to be able to find you. Otherwise, you may not get court notices, causing you to miss important court dates. You can use this court form to notify the court of changes.
Q. What happens if I don't go to a court meeting or hearing?
A. It is important that you show up for all court dates. be on time and be prepared. If you don't go, you can be "defaulted," which means that the court gives the other party what they want because you didn't show up. The court can also charge you for costs, such as court fees or the other party's attorney fees.
Q. Can I sell or get rid of property?
A. The court has ordered both of your to preserve all marital property while your case is pending. This means that you cannot give away, sell, or destroy any property that your spouse may have an interest in. For example, you can't sell the family car. One parent cannot cancel the other parent's or children's health insurance. These orders are included in the Summons and Preliminary Injunction form (see “Notice to Both Parties” on page 2) that the Plaintiff "served" on the Defendant. These orders apply to both of you. To avoid serious penalties, you need permission from the court to do any of these things. We advise you to talk to a lawyer before doing anything that may violate this order.
Q. What if the father claims he is not the father?
A. If you are the mother of a child and the father disputes that he is the father, you will have to go through some extra steps in this process. You will need to prove that the defendant is the father of your child. If this is an issue, check the box on the complaint that asks for "blood or tissue typing tests."
Q. What about stepchildren?
A. Beginning in April 2004, the Maine Law Court decided that the trial court can decide whether a stepparent who wants visitation, or other parental rights and responsibilities:
- should be awarded visitation, as a "third party," or
- should be treated as a "de facto parent," having on-going rights and responsibilities like a biological parent.
This ruling raised many unanswered questions that are still being resolved.
If you are a stepparent wanting to be treated as a "de facto parent," you must prove that you have been acting as a real parent to the child. The Court said that you can be considered a "de facto parent" only if you have "fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life." This is a complex and rapidly changing area of the law. We suggest that you get legal advice if you plan to seek de facto parental rights.
As with all children's issues, the court's primary goal is to meet "the best interests of the child."
NOTE: As of July 1, 2016 the Maine Parentage Act will be in effect. This Act clarifies further the rights of "non-traditional" parents and will affect divorce and parental rights and responsibility case outcomes. Go here to learn more details about the Act.
Q. How does the divorce affect my health insurance under the Affordable Care Act (or Marketplace)?
A. Your options for health insurance and your reporting requirements may be affected by your divorce. If you receive a subsidy (reduced cost), review your current health insurance and report any changes in household income or household size. If you fail to do this, you will have to pay back any subsidies that you should no longer be getting. Or you may find out that you now qualify for a larger subsidy. If you lose your health coverage as a result of divorce, go to healthcare.gov to find out if you qualify for marketplace health insurance (or MaineCare). Or speak to a local marketplace representative. Loss of coverage due to divorce allows you to purchase insurance outside of the limited yearly enrollment period.
Q. If the court orders that I should get child support, how do I collect it?
A. You have choices. You can wait to see if the other parent pays regularly. If this happens, you don't have to do anything to enforce the order.
If you are not getting the payments, or think that you'll need help collecting your child support, you have other choices.
- You can ask the Department of Health and Human Services (DHHS) to collect the money and send it to you. The court clerk should have information about how to obtain an application for DHHS services. Or, you can get this information and an application from the DHHS website Fill out the application and send it to:
Department of Health and Human Services
Division of Support Enforcement and Recovery
11 State House Station
19 Union Street
Augusta, ME 04333-0011
- Be sure to submit all of the documents DHHS requires to open a case with the application. If you don't include everything they need, DHHS may return your application. After DHHA gets your complete application, they will open a case. The sooner you get your information to DHHS, the sooner they can begin the collection process.
If you or your children get TANF, you do not have to sign up for DHHS collection services. You get this service automatically.
- You can give the other parent's employer a copy of your Child Support Order, along with a completed Income Withholding for Support form.
This form orders the employer to withhold the amount owned to you from the other parent's wages each pay period and send the money to DHHS. If you choose this option, you must notify DHHS. Give DHHS your mailing address and keep it up to date. If you move and don't tell them, DHHS will not know where to find you. DHHS then forwards to you any money received from the employer. DHHS will not take any other steps to enforce the court order. This is called a "limited services" option.
Under either option you choose, any money collected on your behalf will be placed on a debit card which DHHS will mail to you. You may use this card at almost every ATM and retailer and any place that accepts VISA. You may also opt to have your child support directly deposited into a bank account. You will not receive paper checks.
If the other parent does not get a regular paycheck, collecting support may be much harder. Your choices are to ask for DHHS services through the application process, hire a lawyer, or try to take the other parent back to court on your own. The last choice may be difficult, depending on the facts of your case. Read about Post-Judgment Motions, then decide if you can do a Motion to Enforce or Motion for Contempt on your own.
If you need more answers from DHHS about establishing or collecting a child support order, call the Division of Support Enforcement and Recovery, at 207-624-4100
Q. What is a "guardian ad litem" and do I need one?
A. Sometimes a "guardian ad litem" (GAL) is asked to look into difficult issues and recommend solutions. A GAL is a person trained to investigate problem issues and report back to the court on possible solutions. For example, a GAL might look into a parent's addiction issues and recommend whether this should affect parental rights. If you think your children would benefit from having a GAL, this is the time to ask. A Magistrate can appoint a GAL.
GALs charge an hourly rate. If you think that you need a GAL but cannot afford one, as the Magistrate whether the court would be willing to help you find a free or reduced-fee GAL. There is no guarantee of this. It may not be possible to have a GAL if you and the other parent cannot afford to pay and the court decides that your case does not require a GAL.
Q. Do I have to go to mediation if I am afraid of my spouse or former partner?
A. The court may waive mediation "for extraordinary cause." For example, if you think trying to mediate will trigger abuse, you may ask the court to let you skip mediation. You can ask the Magistrate to do this in person at your first court meeting (the "Case Management Conference") or at a later Status Conference.
Or you can ask at any time in writing. Send a letter to the court or file a more formal motion. Explain what has happened to make you afraid of the other party. If you include a sworn affidavit, you must sign your affidavit under oath in front of a notary public. Attach a copy of your Protection from Abuse Order, if you have one. File these papers with the court clerk. The clerk will ask the Judge to look at them and decide whether or not you will have to mediate.
If you get to mediation and you are still afraid, ask the mediator to talk to you in private about your concerns. The mediator can allow you to stay in separate rooms. In extreme cases, the mediator can decide that mediation won't work, or can stop mediation after it starts if someone is threatened.
We encourage people affected by domestic violence to try to get a lawyer. A good first step may be to contact your local domestic violence program: 1-866-83-4HELP.
Learn more about Divorce and Parental Rights and Responsibilities in Maine in our interactive classroom.