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Child Custody
During a
divorce proceeding, the court will determine the custody provisions based on
what is in the best interest of the minor children. The court can take
many issues into account in their determination of custody. Custody will be
determined on all children under the age of 18 which were either born or
adopted by the both parents subject to the divorce proceeding. If the wife
is pregnant at the time the divorce is filed, this should be stated in the
divorce documents. The 4 types of custody are listed below:
Legal
Custody:
Legal custody of a child is the right and obligation to make decisions about
a child's upbringing. Decisions regarding schooling, and medical and dental
care, for example, are made by a parent with legal custody. In many states,
courts now award joint legal custody to the parents, which means that the
decision making is shared. If you share joint legal custody with the other
parent and exclude him or her from the decision-making process, your ex can
take you back to court and ask the judge to enforce the original custody
agreement. You won't get fined or go to jail, but it will probably be
embarrassing and cause more friction between the two of you -- and it may
harm the children. What's more, if you're represented by an attorney, it's
sure to be expensive.
Physical
Custody:
Physical custody is the right of a parent to have a child live with him.
Some states recognize the concept of joint physical custody where the child
spends approximately half the time in each parent's home. The latter
arrangement is tricky and should be considered only if you have an amicable,
respectful relationship with your ex. Also, it works best if you live near
the other parent. This lessens the stress on children and allows them to
maintain a somewhat normal routine.
Sole
Custody:
Sole custody means that only the custodial parent has physical custody and
legal custody of a child, and that the non=custodial parent has visitation
rights. In most states, courts are moving away from awarding sole custody to
one parent, and they are often enlarging the role a father plays in his
children's lives. This translates into physical custody for one parent with
joint legal custody shared by both -- plus a generous visitation schedule.
Courts may not hesitate to award physical custody to the father if the
mother is deemed unfit -- for example, because of alcohol or drug
dependency, an unfit boyfriend or child abuse or neglect charges. It's
understandable that there may be animosity between you and your ex-spouse,
but sole custody shouldn't be sought unless the parent is a direct harm to
the children. Even then courts may simply order supervised visitation, while
still allowing joint legal custody.
Joint
Custody:
Parents who don't live together have joint custody (also called shared
custody) when they agree, or a court orders them, to share the
decision-making responsibilities for, and/or physical control and custody
of, their children. Joint custody can exist if the parents are divorced,
separated, no longer cohabiting or even if they never lived together. Joint
custody may be joint legal custody, joint physical custody (where the
children spend a significant portion of time with each parent) or both. It
is common for couples who share physical custody to also share legal
custody, but not necessarily the other way around.
Usually, when parents share joint custody,
they work out joint physical custody according to their schedules and
housing arrangements. If the parents cannot agree, the court will impose an
arrangement. A common pattern is for children to split weeks between each
parent's house. Other joint physical custody arrangements include
alternating years or six-month periods, or spending weekends and holidays
with one parent while spending weekdays with the other.
Joint custody has the advantages of assuring
the children continuing contact and involvement with both parents, and
alleviating some of the burdens of parenting for each parent. There are, of
course, disadvantages -- children must be shuttled around, parental
non-cooperation can have seriously devastating effects on children and
maintaining two homes for the children can be expensive.
Property and Debts[back
to top]
How is the property divided during a divorce?
It is common
for a divorcing couple to decide about dividing their property and debts
themselves, rather than leave it to the judge. But if a couple cannot agree,
they can submit their property dispute to the court, which will use state
law to divide the property.
Division of
property does not necessarily mean a physical division. Rather, the court
awards each spouse a percentage of the total value of the property. (It is
illegal for either spouse to hide assets in order to shield them from
property division.) Each spouse gets items whose worth adds up to his or her
percentage.
Courts
divide property under one of two schemes: equitable distribution or
community property.
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Equitable distribution.
Assets and earnings accumulated during marriage are divided equitably
(fairly). In practice, often two-thirds of the assets go to the higher
wage earner and one-third to the other spouse. Equitable distribution
principles are followed everywhere except the community property states
listed just below.
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Community property.
In Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas,
Washington and Wisconsin, all property of a married person is classified
as either community property, owned equally by both spouses, or the
separate property of one spouse. At divorce, community property is
generally divided equally between the spouses, while each spouse keeps his
or her separate property.
How do we distinguish between community and non-community property?
Very
generally, here are the rules for determining what's community property and
what isn't:
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Community property
includes all earnings during marriage and everything acquired with those
earnings. All debts incurred during marriage, unless the creditor was
specifically looking to the separate property of one spouse for payment,
are community property debts.
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Separate property of one spouse
includes gifts and inheritances given just to that spouse, personal injury
awards received by that spouse, and the proceeds of a pension that vested
(that is, the pensioner became legally entitled to receive it) before
marriage. Property purchased with the separate funds of a spouse remain
that spouse's separate property. A business owned by one spouse before the
marriage remains his or her separate property during the marriage,
although a portion of it may be considered community property if the
business increased in value during the marriage or both spouses worked at
it.
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Property purchased with a combination of separate and community funds
is part community and part separate property, so long as a spouse is able
to show that some separate funds were used. Separate property mixed
together with community property generally becomes community property.
Who gets to live in the house during the divorce?
If children
are involved, the parent who spends the most time with the kids, or provides
their primary care, usually remains in the marital home with them. If you
don't have children and the house is the separate property of just one
spouse, that spouse has the legal right to ask the other to leave.
If, however,
you don't have children and you own the house together, this question gets
tricky. Neither of you has a legal right to kick the other out. You can
request that the other person leave, but he or she doesn't have to. If your
spouse changes the locks, or somehow prevents you from entering the home,
you can call the police. The police will probably direct your spouse to open
the door. When you both own the home, the only time you can get your spouse
to leave is if domestic violence has been committed and a judge grants a
restraining order.
Uncontested Divorces[back
to top]
An uncontested divorce is one in which both parties agree to
the divorce and the terms of the settlement, without going to trial. This
does not mean that there are no arguments or disputes between the spouses -
it simply means that the spouses were able to reach an agreement without
going to court and having the judge rule one way or the other. Uncontested
divorces move much faster through the court system and are therefore less
expensive. In addition, by bypassing the lengthy litigation and trial
process, an uncontested divorce typically leads to reduced hostility and
resentment among the ex-spouses, and both are able to resume their lives
more quickly.
At the heart of every divorce are three issues:
1.
How to divide the community property,
2.
Who will have custody of the children, and
3.
How much child and spousal support should be paid.
While no divorce is truly "uncontested" in the sense that there are no
disagreements, these disagreements do not always have to be resolved in
court. That's what we mean by an uncontested divorce - one where the spouses
can reach a decision as to the terms of the divorce without going to trial.
Uncontested divorces move much faster through the court system and are
therefore less expensive.
We recommend that every couple seeking a divorce first use all means
possible to work out mutual terms for the separation, without going to
court. If the spouses cannot work things out on their own, we recommend
arbitration and mediation, with or without attorney representation. Not only
will this save time and money, but by bypassing the lengthy litigation and
trial process, an uncontested divorce typically leads to reduced hostility
and resentment among the ex-spouses, and both are able to resume their lives
more quickly.
Contested divorces, on the other hand, often involve complex issues, high
financial stakes and technical legal procedures in court. While an
uncontested divorce can often be performed without an attorney, we believe
that it is best to retain experienced counsel in a contested divorce due to
the litigation involved. Furthermore, if one spouse is represented by an
attorney or if there are difficult or major financial issues involved in the
divorce, we recommend seeking an attorney.
Separation Agreements[back
to top]
What is a Marital Settlement Agreement?
A marital settlement
agreement spells out the terms of the divorce and the relationship between
the two spouses after the divorce. These agreements usually cover property
division, child custody and child plans, debt division, spousal support, and
any other relevant issues related to the divorce.
Although not required, filing a martial settlement agreement has many
advantages. First, because it lays out all of the agreements in writing,
there are no ambiguities. Second, the spouses will probably never have to go
to court because the judge will most likely honor the written agreement if
written correctly and if it covers all material aspects of the divorce.
Third, it shows the court that the issues were thought out, and the case
will move more quickly though the system.
Marital settlement agreements can be entered into at any time before the
final judgment. They are typically filed with the final judgment. If a
spouse is receiving welfare, the District Attorney's office may need to
review and sign the marital settlement before it is filed with the court.
Common FAQ[back
to top]
Question
[back
to top]
How do I know if my
divorce is uncontested?
Answer
A divorce is uncontested if neither party disputes any matter pertaining to the
divorce in court. A divorce can still be uncontested if the other party refuses
to sign the papers as long as neither party demands a trial to dispute any of
the issues.
Question
[back
to top]
How do I get started
and exactly how does this work?
Answer
You start by going to our questionnaire, filling it out, and submitting it to
us with the appropriate fee. Using the information you provide us in the
worksheet, we prepare a complete set of documents that contains all the
paperwork you need to file for divorce. When we return the documents to you, all
you have to do is sign them, have your signatures notarized and deliver them to
the clerk of the court. The court then processes the divorce and issues the
final decree.
Question
[back
to top]
What happens after
you send the appropriate documents to me. What do I need to do? Do I file the
documents at a local court? Do I have to appear before a judge and how long does
that process take after I file? Will I have to go to court?
Answer
The phrase "go to court" means different things to different people. There is a
difference in "going to the courthouse" and "going to trial". You do go to the
courthouse to file the documents we prepare for you. However, you do not go to
trial because there is no trial. The judge has the right to have you come in to
the courthouse to ask any questions the court has about your case. Such meetings
are not adversary and often the case is handled on the basis of the paperwork.
In those cases the person filing for divorce never appears before the judge.
Question
[back
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How long will it
take for my divorce to be final?
Answer
Our goal is to have your documents completed and returned to you within hours
from the time we receive them. They will arrive ready to be signed and filed
with the court. If you live in a state that does not have a mandatory waiting period
your divorce is normally final within 45 to 90 days of filing. However, that can be
affected by a heavy volume of cases filed in the same time frame as yours.
The following states have mandatory waiting periods as indicated below:
ARIZONA
- 60 DAYS
CALIF0RNIA - 6 MONTHS
IOWA - 90 DAYS
KENTUCKY - 60 DAYS IF THERE ARE CHILDREN - NONE IF NOT
LOUISIANA - 180 DAYS UNLESS LIVING APART FOR 6MONTHS
OREGON - 90 DAYS
S. DAKOTA - 60 DAYS
TEXAS - 60 DAYS
UTAH - 90 DAYS
VERMONT - 6 MONTHS
WASHINGTON - 90 DAYS
WISCONSIN - 120 DAYS
IF YOUR STATE DOES NOT APPEAR
ON THE ABOVE LIST THE WAITING PERIOD IS NO MORE THAN 30 DAYS.
Question
[back
to top]
Are there any other
fees beside yours?
Answer
Our fee is a flat fee and we have no other charges unless you decide to revise
your documents after we have completed the case. There is a filing fee paid
directly to the court at the time of the filing.. The clerk of the court in your
county can tell you the exact amount of the fee. Divorces are filed in the State
Court, not the county court. State Courts are usually called Circuit Court,
District Court, Superior Court, or Family Court and the phone number for the
clerk is listed in the government section of your phone book under the State
listings.
Question
[back
to top]
Can I still get a
divorce using your service if I don't know where my spouse is?
Answer
Yes. It is simply a matter of filing the correct paperwork which will include an
affidavit to the effect that you do not know the whereabouts of your spouse. We
provide the affidavit and the court, or you, publish a notice in the newspaper instead of
serving a summons as they would in cases in which the whereabouts of the spouse
is known.
Question
[back
to top]
What if my spouse
doesn't want to consent to the divorce?
Answer
Your spouse does not have to consent or sign for you to obtain an uncontested
divorce. If you tell us your spouse will not sign we will prepare the papers in
the proper format for the court to serve a summons on your spouse. Even if your
spouse ignores the summons the court will issue the decree without the spouse's
signature under a procedure referred to as "default judgment".
Common Terms[back
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Common Divorce Terms
Alimony:
Payment of support (not child support) from one spouse to another so that
the spouse receiving the payment can maintain the lifestyle that he/she was
accustomed to during the marriage. Also called spousal support or
maintenance.
Annulment:
The legal ending of an 'Invalid Marriage'. To the law neither party was ever
married, but all the children born of the annulled marriage remain
legitimate.
Arrearages:
The difference between the amount of alimony or child support paid, if any,
and the amount required under court order.
Child
Support:
The amount of money that the non-custodial parent pays to the custodial
parent to help pay for the every day needs of the child(ren) such as
housing, food and clothing.
Child
Support Guidelines: The amount of child support to be paid,
under normal circumstances, according to a schedule established by the
state, based upon income. It is federally mandated that all states establish
guidelines for child support.
Common
Law Marriage:
A judicially-recognized marriage in some states, usually based on
cohabitation.
Community
Property:
A rule of property division which divides equally all property acquired
during the term of the marriage, without regard to whose name it is held.
Inheritances and gifts are excluded in some jurisdictions.
Complaint:
The formal document filed with the Court which states that the
plaintiff wants a divorce and why.
Contested
Divorce:
The party sued opposes the because either : she/he denies the asserted
grounds or he/she does not agree with the suing party as to the terms of the
divorce i.e. property, child custody, child support, alimony, assumption of
marital debts etc.
Court
Order:
A written instruction from the court carrying the weight of law. Orders must
be in writing. Anyone who knowingly violates a court order can be held in
contempt of court.
Custodial
Parent:
The parent with whom the child(ren) live the majority of the time
with.
Custody:
The legal right and responsibility awarded by the court for the care of a
child. See Joint
Custody and Sole
Custody
Defendant:
The person (either husband or wife) who is being sued for
divorce.
Deposition:
Where a party or witness is asked questions orally before a court reporter.
Emancipation:
An act by which a parent relinquishes their to custody and are relieved of
their duty to support the child. The child is then no longer bound to the
stipulations set forth in the divorce decree. Emancipation can occur when
the child marries, is inducted into military service, by court order based
upon the child's best interest or by when the child reaches an appropriate
age.
Equitable
Distribution:
The division
of the property (marital assets) acquired during the marriage. Marital debts
can also be part of the equitable distribution.
Grounds:
The reason(s) under state statute for granting a divorce.
Interrogatory:
Written questions asked by one party of an opposing party, who
must answer them in writing under oath.
Joint
Custody:
The children live with the residential custodian and visit with
the non-residential parent. Both parents have an equal say in major
decisions affecting the children can only be made with notice and consent.
See Sole Custody
Maintenance:
See Alimony
Marital
Assets:
All property acquired during the course of the marriage
regardless of who owns or has title to it. It includes but is not limited to
the following: house(s), other real estate, cash, stocks, bonds, motor
vehicles, pensions, profit sharing plans and insurance.
Mediation:
Process by which you work with a neutral third party to prepare
your divorce agreement. This process is voluntary and non-binding.
Motion:
A request for some type of action or decision to be made by the court.
Non-Custodial Parent:
The parent with whom the child(ren) do not live the majority of the time
with.
Nuptial:
Pertaining to marriage.
Order:
See Court Order
Pendente
Lite Support:
A temporary order of the Court which provides support until the divorce is
finalized.
Physical
Custody:
The home/parent in which the child(ren) will primarily reside in/with. See
Custodial Parent
Plaintiff:
The person (husband or wife) who files the divorce complaint and sues the
person for divorce.
Pro Se:
To represent yourself in court proceedings without an attorney.
QDRO:
Qualified Domestic Relations Order. A ruling by the court stating what
portion of one spouse's pension is to be awarded to the other spouse.
Quid Pro
Quo:
The giving of one valuable thing for another.
Restraining Order:
A court order prohibiting a party from certain activities. Issued in
response to a motion. Restraining orders often are issued to protect marital
assets and to protect against domestic violence. In many states, violating a
"domestic restraining order" is a criminal offense.
Sole
Custody:
The custodial parent has the power to make all decisions, including
day-to-day decisions as well as major decisions, concerning the child(ren)'s
health, education and welfare without notice to and consent from the
non-custodial parent. See Joint Custody
Spousal
Support:
See Alimony
Subpoena:
A court order to attend a legal proceeding such as a trial or deposition. If
documents are also requested, the subpoena is called a subpoena duces tecum,
Latin for "bring with you." Sometimes a subpoena duces tecum states that you
must produce certain documents by a specific date without having to appear.
Visitation:
The right of the non custodial parent to see the children.
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