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Divorce, Child Custody and Support
There are as many reasons to stay married as there are to be divorced. If you are reading this section, you know how difficult the decision has been. There are no easy answers. However, you are in the right place to find the information you need to make the best educated and informed decision about divorce, custody, and child support.
An uncontested divorce occurs when both parties agree to separate, how to divide the assets, the debts, and custody and support issues, if they exist. It is far better for you and your spouse to resolve the child-related issues than to have a Court decide for you. The Judge does not know you nor care about you, and some lawyers enjoy an expensive fight. Divorce merely ends a marriage and settles all the legal matters between the spouses.
Divorce laws are different in each state. It is therefore wise to consult an attorney before you make any decisions concerning where and when you file. Almost every state has a minimum residency requirement, and does not require a lawyer to file for divorce. The right lawyer can save you from a life time of mental and economic hardship. An experienced attorney will also be able to guide you through a very difficult time and can help you resolve many legal issues. A family law attorney knows the laws and your legal rights.
Generally, divorce cases are heard in the State or County Family Courts. Their mission is to provide a fair, expeditious, and economical venue to resolve the issues dealing with families and children. Additionally, most Family Courts also hear matters regarding juveniles or juvenile delinquency, child or family abuse, adoption, guardianships, divorce, separation, child support, paternity, custody, jurisdiction, restraining orders involving family members, and domestic violence. Each of these topics will be discussed below.
Because of the serious ramifications of divorce, there are usually several issues that make the divorce process contested. The most commonly disputed issues are:
- Who will have custody of the children?
- Who will have visitation?
- How will the property be divided?
- How will the debts be divided?
- Who will pay child support
- How much child support will be paid?
- Where the children will live?
- Who will pay the children’s expenses?
- If one spouse will have to pay to help support the other (alimony)?.
Domestic Violence and Abuse
Domestic abuse can be physical, but it can also be emotional or financial. If someone you are married to, is related to you, or if you are involved in a dating relationship with someone who is abusing you in any way, you may seek a Temporary Restraining Order, usually referred to as a (“TRO”).
Usually, the police will take a victim of domestic violence directly to the Family Court in order to get the TRO. However, it is not necessary and you can go to the Court yourself. You will be asked to fill out some basic information about you and your family, and to describe in detail the acts that lead you to believe that you have been a victim of domestic violence. You will need approximate dates and very specific description if the abuse in order to get the TRO. Once the form is complete, you will meet with a Court representative who will review the form and complete a case analysis. It may be a lengthy process, however, you will be afforded the opportunity to address your safety concerns with a Judge or Magistrate. Bring with you any witnesses, police reports, information about any weapons the person might possess, medical reports and any other evidence to support your position. If the hearing officer finds any factual basis to support your allegations, you will be granted the protective order called the TRO.
The temporary Restraining Order is only temporary, not permanent. It is merely an interim court order issued for your immediate protection until a judge can hear all the facts of the underlying claims. You will also be given a second court date to return and present your case again. As a constitutional protection, the accused in a domestic violence case has the right to be heard and confront any witness against him or her. After hearing all the facts in the case, the court can continue the TRO, Modify the TRO, Dismiss the TRO or convert the TRO into a Final Restraining Order. The Final Restraining Order, also called an FRO, is a permanent court order which prohibits the accused from certain conduct. It usually includes a no-contact with victim statement and could include a no-phone call to victim requirement.
If someone has filed a TRO or other type of restraining order against you, you need the help of an attorney. A TRO can have catastrophic effects on your life, your job, housing, and your family. It may also affect your driver’s license, any professional licenses, and your ability to pass any required screening test. A restraining order can become part of a criminal record and stay on your record the rest of your life. You need an attorney to represent and protect you from the overwhelming affects a restraining order can bring.
Mediation is the most effective method to resolve disputes which can not otherwise be settled by the parties themselves. Instead of a single Judge deciding the issues for you, most courts have a three person panel of mediators who hear both side of the issues in dispute. The mediators are usually licensed and trained in the law and can save you endless court fees. They are knowledgeable in the Court proceedings and findings. They will present you with all possible outcomes of every situation and help you come to a better understanding in what the Judge will normally decide. Knowing this can help you resolve many issues, and limit your exposure to the court.
Almost every jurisdiction has four basic types of child custody, they are:
- Sole Physical Custody: Sole physical custody means the children shall reside with and under the supervision of one parent. The court must approve the parent’s plan for the other parent’s visitation rights. This is the likely outcome in cases of abuse abandonment, or parents that cannot be near each other. The courts prefer not to take away a natural parents maternal or paternal right to parent their children. However, certain circumstances require that the court take this action. The Court can order Sole Custody to one parent and provide for visitation rights to other parent.
- Joint Physical Custody: Joint physical custody means each of the parents will have equal and significant periods of physical custody. Both parents will have continuing contact with the children and have an equal amount of overnight time with the children. If the parents live near each other, get along, and can provide for a safe and productive home for the children, this may be the option for you.
- Sole Legal Custody: Sole legal custody means one parent shall have the right and responsibility to make decisions about the health, education and welfare of the children. The other parent retains visitation rights. Although the courts favor joint legal custody, sole legal custody is the most common custody arrangement.
- Joint Legal Custody: Joint legal custody means both parents share the right and the responsibility to make decisions about the health, education and welfare of the children. The law presumes that joint legal custody is in the best interest of minor children when the parents can make it work and submit a workable “parenting plan.” However, joint legal custody is not always easy. It requires both parents to cooperate and lay aside their differences. Additionally, with Joint Legal Custody, one parent will be designated as also having Residential Custody; meaning that the child or children will live with the residential parent most of the time, with the other parent having rights of visitation.
Visitation Rights in a Divorce
Visitation rights do not translate easily into laws or court orders. The law does state that any person having an interest in the children’s welfare is entitled to reasonable visitation. What is reasonable in one circumstance is not necessarily reasonable in another. This is why parents are left to define reasonable visitation standards for grandparents and others.
Paternity is the legal determination of a child’s biological father. It is used when either someone takes the position that the child is not their own, when a child is born to unmarried parents, or if a biological father wishes to establish a relationship with a child. Until paternity is established, a father has no legal rights or obligations. Paternity can be established several ways:
- The parents cohabitate after the child is born and the father treats the child as his own;
- If the parents sign a voluntary establishment of paternity document when the child is born; or
- One of the parents file a paternity petition with Family Court, which can result in a court ordered genetic test to determine if the test taker is indeed the father.
Once paternity is established, the father can obtain custody and visitation rights, and may be required to provide child support. Following the paternity determination, child custody and support matters are determined the same way as in a divorce case.
Under the Uniform Premarital Agreement Act, premarital agreement means an agreement between prospective spouses made in contemplation of marriage. Therefore, it will become effective only upon marriage. The Uniform Act also provides that “property” means any interest in real or personal property, including income and earnings.
The parties to a premarital agreement typically contract with respect to
- the rights and obligations of each of the parties to specific property and in any of the property of either or both of them, whenever and wherever acquired or located;
- the right to buy, sell, use, transfer, exchange, abandon, lease, consume, mortgage, dispose of, or otherwise manage and control property;
- the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of a specific event;
- the modification, the amount or elimination of spousal support;
- the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- the ownership rights in and disposition of the death benefit from a life insurance policy or inheritance;
- the choice of law governing the construction of the agreement; and
- any other legal matter, including their personal rights and obligations. The courts do not enforce provisions that are a violation of public policy or a violation of law.
Although premarital agreements can govern and control all marital issues, it usually cannot control issues of custody. Premarital custody agreements are normally not enforceable. Also, the agreement , may not be enforceable if one of the party’s did not execute the agreement voluntarily or if the agreement was unconscionable (for instance, leaving one party in abject poverty). The agreement may also become unenforceable if one party failed to disclose material information necessary for the other to make an informed decision.
For those who cannot marry or choose not to marry, but desire some structure and perhaps some of the protections that the law affords those who marry, cohabitation agreements may be the best way to address their financial and personal affairs. Cohabitation agreements are governed by contract law rather than family law. These agreements can be contracts for almost everything, except children, visitation and custody. They typically cover tax matters, property and income divisions, alimony, support, and the other duties each owes to the other. This means that a cohabitation agreement will fully reflect the conscious choices of the couple and should help the parties avoid any misunderstandings in their relationship. Although unmarried couples are denied many of the law’s benefits given to married couples, a cohabitation agreement can be an opportunity to set out the parameters that are individually best suited to that couple.
Child Support Calculations
Child support is a financial contribution paid by the non-custodial parent, to the custodial parent. Child support is designed to support the expenses of raising a child, such as food, clothing, education, medical expenses, housing and other needs. Child support exists because parents are required to pay for the support of their children, even if the children no longer live with both parents. The judicial standard governing child custody is to keep the best interest of the child in mind. However, the best interests of each child depend on specific facts and circumstances. A younger child will have different needs than a more mature child. To make the child support easier to calculate, almost every jurisdiction has legislated specific Child Support Guidelines. This provides for a consistency in calculating the proper amount of child support a non-custodial parent must pay. Child support can also be required in cases where someone has lived with a child long enough that they are considered a parental figure.
This is called Child Support by Estoppel.
Exceptional circumstances can justify the court deviating from the Child support guidelines from the guidelines. However, it is usually limited situations where a parent has new children in another relationship who also needs support. A high-earning parent might qualify for deviation from the guidelines as well a parent who has special medical needs.
Every state calculates child support different. However, the most common factors the Courts consider are: 1.The financial resources of the parents, 2. The child’s health and any special needs, 3. The child’s standard of living, 4. The child’s educational needs, 5. The tax consequences to both parties, 6. Other non-monetary contributions that the parents can make towards caring for the child. Most states require that medical insurance, medical expenses, and child care costs for working parents should be included in child support agreements.
Child support payments are usually terminated upon the child becoming “emancipated”. This usually occurs when the child attains the age of either 18 or 21 depending on the state and depending if the child continues their education beyond high school. Other events that can cause emancipation include, marriage of the child, death, the child becoming incarcerated, entering the Armed Forces or Peace Corps or the child permanently living away from the residential home. The only way to modify the amount of child support or to terminate the child support is with a court order. Typically, if you want to file a Motion to change the amount child support, you will need to show a material change in circumstances. A child support order is never final. Either parent can file for modification of support.
If the non-custodial parent is intentionally unemployed in order to evade his or her child support obligations, the Family Court will “impute” income to the non-custodial parent. This means that the court will pretend that the non-custodial parent is working and is making a certain wage. This is an arbitrary decision by the court. This will force the non-custodial parent to quickly find employment. If the non-custodial parent is working, a portion of his or her paycheck can be taken directly by the state to pay any child support obligations. If you and your spouse plan to share joint physical custody and there is a substantial difference in the income which the parents earn, the Family Court may likely order the parent with more income to pay child support to the parent who earns less.
What to Do if You’ve Been Served with Divorce Papers
If you have been served with a Complaint for Divorce or other court papers, you must act immediately to protect your rights. Depending on the kind of court papers that were served on you, you have as few as 20 days to file a legal response or may forever lose your rights to respond. If you fail to file a response before the filing deadline, the court may enter a “default judgment” against you. A default could allow your spouse everything he or she asks for in the complaint regarding child custody, child support, spousal support, property division, and any other requests. If you were served with any court documents, you should speak to an attorney immediately.
Spousal Support “Alimony”
If you and your spouse are unable to agree on whether one spouse will support the other, the amount of support, and the duration of support, the court may order one spouse to provide support to the other spouse for either a temporary or indefinite period. In ordering spousal support, the Family Court will usually consider the following factors: (1) the financial resources of both spouses; (2) the potential of the spouse seeking support to meet his or her financial needs; (3) the health condition of the spouses ; (4) the standard of living established while married; (5) the age of the spouses; (6) the duration of the marriage; (7) the spouses’ occupations during the marriage; (8) the vocational skills and employability of the party seeking support and maintenance; (9) the needs of the parties; (10) the custodial and child support responsibilities; (11) the ability of the party from whom support and maintenance is sought to meet his or her own needs while meeting the needs of the party seeking support and maintenance; (12) other factors which measure the financial condition in which the parties will be left as the result of the action under which the determination of maintenance is made; and (13) the probable duration of the need of the party seeking support and maintenance.
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