Father stopped support for 11 years

By Margarette MACAULAY

Monday, February 20, 2012

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Dear Mrs Macaulay,

I have a serious and unique case on my hands. My mother has been married for the past 13 years and has four children for her husband. However, he abandoned her for another woman in New Jersey, where he lives. She went crazy for a while. His family took the two oldest children and she was left with the other two. Things took a turn for the worse when he stopped providing financial support for them and her. This he did for 11 years. He started again in 2010 and then stopped in June 2011. I have all the Western Union receipts to show. My mother ended up having other children and he found out about them. Now he wants a divorce.

My problem is that I have been the one responsible for maintaining and raising his two sons for the past few years because my mother is unable to do so. He denies being the father of one of them, which is absolutely ridiculous as they share an uncanny resemblance. Both the boys and I have been through hell together and I don't want them to suffer anymore.

I want to know if he can divorce my mother while he is in New Jersey without her signing any documents and whether my mother can contest the divorce. Is she eligible to get some alimony from him and sue him for the pain he has caused her? Can I stay here in Jamaica and go through the courts to get him to maintain his children in the right and proper way? I want to sue him for all the money that I have spent that has caused me to drop out of college.

Thank you for your letter. As you asked several questions, I am going to deal with each of them in the order you have posed them and based on the facts you have related.

1. You wish to know whether your mother's husband can apply for and obtain a divorce from your mother in New Jersey and if he can do so without her signing to indicate her non-contest of it.

The answer is that if he petitions for a divorce in New Jersey, he would be required to serve it on your mother. When she receives the documents, she has a right to decide whether she will or will not contest it. She can state her position on documents provided for this purpose and return them to the court or the attorney who effected service on her. If she contests it, she would in all probability have to attend court in New Jersey. But let me ask you this, what would be the purpose of her contesting the divorce? Has their marriage not failed and been non-existent for many years? I think that she should just let him go through with it.

2. You ask whether she is eligible to get some alimony from him and could sue him for the pain he has caused her. Well, as a wife who is incapable of working, he is legally obligated to maintain her either by way of periodic sums or by way of a lump sum (alimony). She can apply for this — she should have done so years ago — when he did not provide for her and the children. If he had not recommenced providing support for her (which is evidence of his acceptance of his obligation), then it could have been argued that she had no need of maintenance from him as she survived without it for all those years. As to suing for the pain he caused her, I do not know of any case when such a claim has received compensation.

If because of her mental state she was incapable of filing claim for herself and for the children, you or some other member of the family could have applied to act on her behalf and on the court making such an order, make the application for her and be responsible for disbursements for maintenance for her and for the children.

3. You ask essentially if application can be made here in Jamaica for maintenance.

Yes it can, but you should go to the Family Court and enquire whether or not Jamaica has a reciprocal arrangement with New Jersey. If there is one, then have your mother promptly file here for maintenance for herself and for the children before they reach 18. The issue of the custody, care and control of the children should also be applied for and be dealt with by the court at the same time as that for maintenance.

Before I deal with your last question, I want to comment on your statement that he denies being the father of one of the boys. The fact of the matter is that there is a presumption in law that children born within wedlock are the issue of the husband. In order to dislodge this presumption, he would have to have reliable DNA evidence showing that he is not the father. You should therefore not worry about this.

4. Your final question is really whether you can sue him for all the money you expended on maintaining the two boys and which consequently caused you to forego continuing your tertiary level education.

The answer is yes you can sue him, but I cannot tell you that you will definitely succeed. Like all claims, you will have to prove your case to the court against him on a balance of probability.

I feel, however, that you have a case because you had to step in because of your mother's infirmity and because of his failure, neglect and refusal to meet his legal obligation to maintain her and his children. You also have the fact that as a result of all these circumstances, you suffered a detriment, in that you had to give up on your further education and therefore this adversely infringed on your advancement in life. You clearly have suffered and are suffering a loss by his failure to maintain the boys.

So I will advise you to go and talk with a lawyer about it and tell the lawyer if he has any property here as this is a relevant matter which will have a bearing on the advice you will receive as to your means of collecting any sums awarded to you if you succeed with your claim.

I trust that I have brought some clarity to yours and your mother's positions. Good luck.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give advice via e-mail.


The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.




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