Child Custody

February 19, 2009
By Lauren Williams

It is estimated that parents of more than one million children in the United States get divorced every year. In addition, children of parents who are unmarried, already divorced or deceased increases the number of child custody cases brought before courts throughout this country.

As with every other area of the law, each state has its own laws dealing with child custody issues. This section will deal with child custody in general terms. If you have a specific question regarding child custody, please contact an attorney in your area.

Best Interests of the Child

Most jurisdictions refer to the “best interests” of the child and this is a bit of an overstatement. Obviously, the interest of a child are taken into consideration, but so too are the parents interest in raising their child.

Types of Custody

Child custody refers, in general, to the custodial arrangement between the parents post-divorce. Courts can award sole custody or joint custody. This should be differentiated from legal custody and physical custody. Legal custody generally refers to which parent or parents are authorized to make decisions regarding the child’s care and physical custody in which the child’s living arrangements are determined.

Most courts will begin making child custody decisions pending divorce litigation and post-divorce. The orders may be temporary, as in the case of pending litigation or final, like post-divorce orders. Often, if there is a change in circumstances, either parent may go back to court to ask for a new court order if the changes affect the child’s welfare or safety.

Important Factors

Factors included in determining child custody usually include claims made by each parent regarding custody, which parent has been the primary caretaker of the child, the character and conduct of the parents and their relationship with the child, any agreement between the parents pre-divorce which may be contained in a separation agreement, and the child’s preference. Other factors may include a finding that neither parent is suitable as the child’s custodian and visitation rights of the non-custodial parent.

Joint Custody

In addition, in many jurisdictions, the new norm has been to award joint custody. Joint custody is thought to allow both parents and the child to enjoy the benefits of childrearing and to preserve contact between both parents and the child. The psychological benefits for the parents and the child are evident. From a practical standpoint, in a joint custody arrangement it isn’t just one parent’s responsibility to raise the child his or her self, including arranging for daycare, work concerns and time for other activities. Also, joint custody may force both parents to work together to raise the child and eliminate some of the acrimony that may be felt by either or both parties post-divorce.

Sole Custody

If the parents are so argumentative or hostile towards each other that a joint custody arrangement may actually be detrimental to the child’s well being, then the court may look to award sole custody. Factors determining joint custody can include the parents’ fitness, agreement or disagreement on joint custody, the parents’ ability to communicate and to cooperate when it comes to the child’s welfare, the geographical proximity of each parent and the possible harm to the child’s psychological or emotional development.
Other Issues

One obvious problem with a joint custody arrangement is when one parent decides to move. When this occurs, the court may then grant sole custody to one of the parents. Another problem is when a disagreement occurs between the parents that they just cannot agree on. In those instances, the court may wait until the parents finally reach an agreement, the court may decide the issue, or the court may side with the primary physical custodian of the child.

To learn more about the child custody laws of your state and to have specific questions answered, please contact an attorney in your area.

What is the difference between a regular traditional divorce and divorce mediation or collaborative divorce?

February 16, 2009
By Lauren Williams

It is important to realize that there is generally only one legal system in each state; so, to say that there is more than one process is a bit of an exaggeration. The difference that people are referring to is that divorce mediation or collaboration is intended to transform a contested divorce into an uncontested divorce. Contested simply means that the husband and wife do not agree on one or more issues, whether it is a disagreement as to how marital assets should be divided or what custody and visitation should be. If the husband and wife do agree on all issues, then their divorce is considered to be uncontested.

Mediation involves the husband and wife meeting with a neutral third party, who may or may not be an attorney, who tries to help the couple find common ground and reach an agreement on the issues that must be decided in their divorce. Remember it is impossible for the mediator to provide you with unbiased legal advice because the mediator is trying to force an agreement. This can be particularly problematic when the mediator is an attorney, providing what may appear to be legal advice and spinning things in one direction or another to get an agreement. Remember, if you do reach an agreement the mediator can say the process was successful, however, that agreement may be one sided.

Obviously the most common problem with mediation or collaboration is that the husband and wife may spend considerable time and money to go through the mediation process and still not reach an agreement. Another frequent problem occurs when the spouses do reach an agreement through mediation and then one or both of them later consults with an attorney, realizes the deal is unfair, and then backs out. At that point the whole agreement usually goes out the window. Once one party backs out of one aspect of the agreement it can often have a cascading effect resulting in a disagreement on many more issues. This can actually make the divorce process more heated as the other party may resent their spouses decision to back out of the deal.

Another problem with mediation is that often the relationship dynamic between the spouses can create an uneven playing field. Remember, the mediator is simply trying to get the spouses to reach an agreement and is not really there to represent or advise either party.

An additional issue may be that, if the spouses have not yet consulted with an attorney, they may be unaware as to what their legal rights and responsibilities are and what the states laws would normally favor. This is usually the reason why, when a spouse consults an attorney after mediation, they may back out of the mediator’s arrangement. Their attorney may advise them that the agreement the mediator worked out is not in their favor.

In most states each party will be advised to consult an attorney prior to finalizing any agreement, so it is unlikely that the parties will go through the whole process without eventually meeting with an attorney. In addition, for the divorce to be finalized, the spouses must appear before a court of law in their state and, if the agreement is too one sided, the judge may raise issues with it. It is important to note, however, that you cannot always rely on a judge to point out that your agreement is unfair. Many courts are processing so many divorces that, if an attorney does not represent you, it is possible your case may not get the attention from the court that it deserves.

If you are considering divorce you should realize there is no substitute for having an attorney advise you of what your rights and responsibilities are under the law. If you do enter into an agreement and then later realize that you made a bad deal, you might be stuck with it.

How do I legally change my name back to my maiden name after divorce?

February 16, 2009
By Lauren Williams

Each state has a legal process for undergoing a name change. This requires that a legal action to change your name be filed with the court and it can be a cumbersome and time-consuming process. Luckily, marriage and divorce are exceptions to that process.

If a wife wants to take her husband’s name upon marriage it should be shown on their marriage license or certificate, depending on the state. This is important because you will generally need a document showing the name change in order change or renew your drivers license, passport and other identifying documents.

When divorcing your must specify that you are changing your name back to your maiden name at the time of divorce and it must be shown in the court order granting your divorce. Your attorney can guide you through this part of the process in your state. If the final court order does not show that you have elected to change your name, you may be unable to change your driver’s license and other documents. This is because, if it is not in the court order, you will have no official record of the change. If you fail to change your name at the time of divorce you may need to then go through the normal name change process in your state, which will be much more time consuming and costly.

If I’m not a US citizen and plan to marry an American and then apply for citizenship, what do I need to know?

February 16, 2009
By Lauren Williams

The most important thing to know is that if you enter the USA under false pretences you can be immediately deported and you cannot apply to re-enter the USA for any reason for at least three years. So, if you entered the USA illegally, marriage alone may not be enough to cure all of your status problems. It will be important for you to consult with an immigration attorney who can make the proper applications.

A huge mistake that some make is to get married overseas and then enter the USA with a visitor’s Visa, believing that they can then apply for citizenship later. If you marry overseas and are entering the USA with the intention of obtaining citizenship and staying longer, this is considered entering the Country under false pretences. Remember, you are not entering the USA to visit; you are entering to live here permanently. You will be questioned by immigration upon entry, if you mention that you married overseas and will be applying for citizenship, you can be deported immediately and will unable to return for three years, regardless of your new marital status.

The best advise is to consult with an US immigration attorney prior to marriage to ensure that you do not make any mistakes in filing the wrong applications and that you know what documents you will need to obtain overseas to verify that you are married. Remember, if your marriage license or certificate is in a foreign language it may not be accepted by the USA unless you also obtain the proper verifying documents from the US overseas Consulate Office or Embassy in that country. Also realize that, depending on your current status, the proper office to apply for legal status or a temporary Visa may be the US office in your home country.

Common Law Marriages

February 3, 2009
By Lauren Williams

Most states have done away with common law marriage. Today, only a handful of states still recognize common law marriage. In general terms, common law marriage requires that the couple assume that they are married and hold themselves out as man and wife publicly and professedly.

Additional Requirements

This definition protects, to a certain degree, fraudulent claims of common law marriage. Often, there is even a requirement of marital cohabitation which provides additional objective evidence of a common law marriage. Many jurisdictions will contain a statute that prevents a “wife” from purporting a common law marriage after her “husband” has died in order to claim a share of the deceased husband’s estate.

Clear and Convincing

In addition, the evidence of a common law marriage often has to be “clear and convincing.” Elements involved in determining common law marriage include that there is no agreement to be husband and wife in writing but that there is a marriage based on the evidence that the couple lived as husband and wife for many years. Evidence can include testimony from family members, friends, acquaintances and others that they were reputed to be married. Habit and repute often will be enough to support a finding of common law marriage.

Impediment Test

Often a test of common law marriage will be the impediment test. Under these cases, if there is an impediment to a couple getting married, like one of them cannot get divorced for whatever reason, and the couple still decides to live as husband and wife for many years. If, subsequently, the spouse does get divorced and the couple living together remains living as though they were husband and wife after the impediment has been removed, they couple may have a valid common law marriage.

Variations from State-to-State

The law can get rather complex from state to state, so if you need more information regarding common law marriage, check with an attorney licensed in your state with knowledge of matrimonial law so he or she can inform you specifically regarding your issue or question. For example, if a couple begins to reside together in a state where common law marriage is not recognized and then they subsequently move to a state that does, what effect does that have on their marital status. The same issues arise if they couple resided in a common law state for years and then moves to a state that does not recognize common law marriage. These are important issues through which an attorney will be able to help guide you.

Alimony & Spousal Support

February 3, 2009
By Lauren Williams

Alimony, or in some states spousal support, can be generally defined as one spouse providing temporary or permanent financial support to his or her ex-spouse in order to help that ex-spouse maintain, as nearly as possible, the standard of living he or she enjoyed during marriage.

Alimony and Fault

Although virtually all of the previous obligations, duties and responsibilities that are part of being married end with the divorce, the financial obligation to the ex-spouse often continues. Most states today take the approach that alimony not be influenced by fault. For example, if a wife committed adultery which led to divorce, the adultery would not be a reason to deny alimony to her. However, in some states, the fault standard will influence any alimony decision made by the court.

Modern Trend

There seems to be a trend towards alimony not being awarded, being awarded for short period of time and/or in smaller amounts than years past. This may be due to the fact that there are more opportunities in the workplace, generally speaking, than there has been historically. In addition, some jurisdictions are awarding more property during the property division part of a divorce instead of awarding alimony.

Alimony and Children

Furthermore, alimony may be ordered if the ex-wife has custody of children born during the marriage and the child custody amount is not sufficient to provide for the ex-wife’s and children’s well-being. In addition, alimony also serves to prevent the ex-spouse receiving support from becoming indigent and dependent upon the state for assistance.

Other Factors

Factors included in deciding on alimony include the court’s discretion to determine if it would be suitable under that case’s particular circumstances, the Defendant’s ability to pay, the Plaintiff’s needs, duration limits, reimbursement, fault, and how the alimony payments are to be made.

For more information on how alimony is handled in your state, please contact an attorney licensed in your state who handles matrimonial cases.

Child Support

January 17, 2009
By Lauren Williams

The courts in the various states can order child support to be paid both while a divorce action is pending and after a divorce has been granted. In most cases, both parents will be equally responsible for supporting their children, although the award of child support often is not enough to fully provide for the child or children. The expenses of feeding, clothing and educating the child probably will not be covered by the award of child support, and the supporting parent often is the one who must make up the difference.

Father’s Obligations

The father is the parent that most often is responsible for paying child support to the custodial wife to support children of the marriage. The award of child support requires either paternity, that the child be the natural child of the father, or adoption, that the father adopted the child.

Changes

In most situations, a child support order can be changed to some degree after the initial order has been issued. A change can usually be requested by a parent when relevant circumstances change.

Payments

Child support orders often direct payment from the non-custodial parent to the custodial parent at regular intervals. In many states the payments are made through the court in order to allow the state to track and confirm whether the payments are being made. Usually, for example, if a father is paying child support to the child’s mother, the payment would be made monthly on a fixed date. The custodial parent then has the responsibility to care for the minor children with this payment.

When Support Ends

The length of time of child support payments differ state to state. That said, most states will insure that payments last until the child reaches the age of majority, which usually is between 18 and 21. However, if a child is still completing his or her education, the support payments may continue until the child graduates or until such time that the court declares the child to be an adult. For example, if a child is in college and drops out to work full-time and is older than 18, then the child will not need to be supported any longer and the child support obligation may end.

Exceptions

An adult child may require that child support be paid if the adult child is mentally or physically incapable of supporting his or her self. Conversely, a minor child that enters into marriage or otherwise becomes self-supporting may result in the child support being terminated.

Insurance

Often part of the divorce or separation agreement will include a clause requiring the non-custodial parent to maintain health and life insurance for the minor children. Life insurance provisions vary from state to state so inquire with your particular state’s law to determine what the law is regarding life insurance.

Other Considerations

Most states, in general terms, will take into account the child’s needs and the financial resources of both parents, the standard of living enjoyed by the child during marriage and the child’s educational and medical needs in making a decision on awarding child support. Some states will have statutory norms that are easily calculable, and in other courts will have some leeway in determining the amount.

Effect of Marriage to Another

If a non-custodial parent remarries, in some jurisdictions, the second spouse’s income may be determined to support the non-custodial parent, thus making it possible for the court to order a higher child support amount to support his or her children.

Laws Vary From State-to-State

The issue of child support is obviously very important to any divorce action. To learn about the laws and standards in your state, please contact an attorney in your state.

Separation Agreements

January 14, 2009
By Lauren Williams

A separation agreement allows a husband and wife to agree on all of the same issues that would need to be decided upon divorce, including maintenance or alimony, division of marital property, child custody and child support. In most states a separation agreement must be entered into voluntarily, however, in some states a legal action can be taken in Court to obtain a separation.

Although some states will enforce a verbal separation agreement, most states require that it be in writing and a few states require that the signatures be notarized for the agreement to be enforceable. In addition several states require the couple to actually separate (begin living apart) at the time, or just before, the separation agreement is created in order for it to be enforceable.

All states encourage couples to work out their marital issues amicably. For this reason separation agreements are encouraged and will, for the most part, be upheld by a Court. That said there are certain reasons a separation agreement will be subject to challenge by either the court or a spouse who later changes their mind. If a separation agreement is to be challenged, it is generally easier for a Court to reject or modify the agreement if the challenge comes before the agreement is approved by the Court or incorporated into a divorce decree. Once a Court approves a separation agreement that Court is likely to be more reluctant to allow any challenge to the agreement.

Lack of Consideration and Unfairness

One reason that a separation agreement might be challenged is if it is so one sided as to be overly unfair. Sometimes this can be explained in terms of a lack of consideration, meaning there is nothing in the agreement for one spouse. An overly one-sided agreement is sometimes referred to as unconscionable. A Court is most likely to consider a challenge of this kind if it has a concern that one spouse will become destitute. The state will be worried, if one spouse becomes destitute, because of an overly unfair agreement, that spouse, and potentially the children, may become wards of the state. Thus, depending on the state, the terms of the separation agreement would usually need to be extremely one-sided, leaving almost nothing to one spouse, in order for it to be challenged on this basis.

Duress or Undue Influence

Separation agreements are more susceptible to challenges based on duress than most other types of contractual agreements. This is particularly true if the other spouse was the cause of the duress or exerted an undue influence or control over the other. Usually a claim of duress would go hand-in-hand with a claim of unfairness or unconsionability. Thus the claim of duress may be used to explain why the spouse entered into the one-sided agreement.

Effect of one spouse not having an attorney

If an attorney did not represent the spouse that is claiming duress or unfairness, this will tend to increase that spouses chance of challenging the separation agreement. However, if the agreement adequately provides for the spouse it will usually be upheld, regardless of whether an attorney represented the spouse when the agreement was created.

Misrepresentations and Fraud

One reason that will almost always allow a separation agreement to be challenged is when lies or misleads the other spouse as to a material fact. This often occurs in the context of one spouse understating the amount or value of marital assets. If this is shown to have occurred the separation agreement will almost always be challengeable.

Custody and Child Support

Spouses can use separation agreements to agree, within reason, as to custody, visitation and child support. The Courts encourage spouses reaching an agreement on these issues. However, unlike other provisions a Court is more likely to consider whether the agreement regarding the children is reasonable. Whenever an agreement concerns the children the Court will seek the outcome that is in the best interests of the child or children. Unlike some other provisions, an agreement on child support can always be revisited if circumstances change.

The effect of reconciliation

Reconciliation can occur when a husband and wife separate and then restore their marriage. For it to be considered reconciliation the spouses must generally return to living together as husband and wife, engage in sexual relations and intend to resume married life permanently. Spouses merely living together as an experiment to see if they want to reconcile and/or engaging in sexual relations is not enough.

The effect of reconciliation on a separation agreement will vary from state-to-state. Generally if, after reconciliation, the spouses can, by their words or conduct, rescind a separation agreement. In the common circumstance where a couple separates but never divorces, later reconciles and lives together until one dies, the separation agreement will generally be held invalid.

If a separation agreement required the transfer of property and then the payment of alimony sometimes reconciliation can lead to an unfair result. This is because the property transfer may have occurred prior to reconciliation and thus might not be changed even though, as a result of reconciliation, alimony is no longer required. This could be a significant problem if the reconciliation later fails and the couple decides to split once more.

It is recommended that if a couple that has entered into a separation agreement decides to reconcile, each spouse should consult with an attorney to see how that might effect the agreement.

Child Abduction

January 8, 2009
By Lauren Williams

California child abduction law attempts to fight the illegal taking of a minor child from a lawful custodian or person with visitation rights as defined by that law. A particular mental state is required to break that law. It also can be broken by parents, even in situations where there is no custody order regarding the child.

The taking, enticing away, keeping, withholding, or concealing of a child from a parent or legal custodian amounts to a criminal act under California law. Violations of this law can result in felony jail terms of up to three years in prison and a $10,000 fine. This law can be violated even by parents, grandparents, and other family members. The one exception is in the case of perceived harm to a child, and in this case you need to consult an attorney to determine if there is a legally allowable reason to withhold a child from persons with custody or visitation.

Children of divorce and in disputed parental situations sometimes fall victims to adult abuse and even abduction. It is a problem to be resolved quickly and with agreeable terms to all parties. Children should never become pawns in a divorce or separation.

Who Gets the Ring if the Marriage is Called Off?

January 4, 2009
By Lauren Williams

Diamond Solitaire RingThe answer to this question will vary from state-to-state.  In most states if the marriage does not occur the engagement ring must be returned (including: Iowa, Kansas, Michigan, New Jersey, New Mexico, New York, North Carolina, Minnesota, Pennsylvania, Tennessee, Wisconsin).  Read more

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