My rights during the divorce

Q: Dear Mrs Macaulay,

I was married in New York in 2012 to a Jamaican who is also an American citizen. We have a five-year-old son together who is also an American. I am Jamaican. My husband purchased a home in Jamaica at the beginning of our relationship prior to us getting married. He has always resided in the US, whilst my son and I have lived at this home in Jamaica with him taking care of the mortgage and me maintaining all other household expenses along with the day-to-day maintenance of our child.

Our marriage has irretrievably broken down since 2014 and he has filed a petition for divorce in the superior court of New York as well as for physical and residential custody of our child. I have 30 days in which to respond; however, I am uncertain about how to proceed.

I am not an American citizen and during the course of our marriage he had not initiated the filing process. Despite several requests for him to share the household expenses with me, he has always refused to do so, leaving me with nothing to spare for investing on my own. He, on the other hand, has managed to extend the home in Jamaica as well as purchase a home in the US during the course of our marriage. His divorce petition has a clause excluding the equitable distribution of the property he has acquired in the US, yet speaks to marital assets acquired during the marriage being subject to equitable distribution. However, I am uncertain that the house here in Jamaica would be considered a marital asset as he purchased it in his name prior to our marriage. Any advice you offer would be greatly appreciated.

A: Well, firstly, you must check whether your ex correctly put in his petition the true date of the breakdown of your marriage. If he put in an earlier date, then you must contest this. Additionally, you ought to check what grounds he stated caused the breakdown of your marriage. If this is not true, then you must again contest it.

However, even more important is the issue of his application for legal custody which I am sure he must have applied for, but which you state as ‘physical and residential custody’ of your child.

It is vital that you contest this strongly and clearly. You need only prepare your answer and contest of his claims in clear language in a document with the same heading which appears on his petition, with the court and the suit number and names correctly reproduced. Then you state your answer and contesting facts point by point in response to his assertions as they appear in his petition.

You must state clearly that your child has always lived with you and that you have always been his nurturer and caregiver, and was always in the family home in Jamaica while your husband lived in New York (and I suppose, save for short visits) during the lifetime of your son from his birth to the date of your answer. You should also state clearly that you solely provided your son’s maintenance (support) and also list what his father provided.

Having stated all these clearly, you should then end and say for these reasons, you contest his claim for residential custody of your son as this would not be in the child’s best interests, but would rather cause him harm. And ask that such custody which you have always had and exercised be ordered to remain with you and that the father be ordered to provide maintenance for his son in the sum of $XXX per month payable into a stated bank account or by banker’s drafts.

You will have to specify the items of such maintenance and their dollar costs. You must itemise the child’s individual expenses — school books, materials, etc, and a sum for miscellaneous expenses. Educational, medical, dental, optical and extracurricular expenses are generally shared half/half between the parents, unless the financial situation of one far exceeds the other.

Then, my dear, I would advise you to go to the Family Court in your parish and file for ‘custody, care and control’ of your son, with access to his father for half of all major school holidays at his expense (if you are sure that he would not just retain him and leave his current residence); and for maintenance, providing the lists and dollar sums for each as you would have sent to the New York court.

Then, also please have a caveat placed on the title of your family home to protect it while you file for the declaration of the respective interests of you and your husband. You must contact a lawyer to move on this as such an application ought to be filed within a year of the breakdown of your marriage or divorce, though the court has power to extend the time.

Once the court accepts that the property in Jamaica is the, or is one of the family homes, you would be entitled to your presumptive one-half share. The fact that he bought it just before your relationship would not necessarily be a bar to this, as it seems to me that he did so in contemplation of the commencement of your relationship and for the family residence for you and your son throughout the years. Continue to reside there and file your claim for your share of it.

I trust that I have assisted you by clarifying the issues for you and what you can and should do. I hope that my answer to you is within the allotted time. If not, still apply, and add a petition to the court to extend the time for the filing of your answer and defence to his claims.

Good luck, and please file the actions I have suggested here in Jamaica, so that you can have the protection of our courts in relation to your child who has always lived with you here in Jamaica and in relation to the property which is a family home and is situated in Jamaica.

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.

DISCLAIMER:

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.