It is not uncommon for lawyers to be called by men who have been served with notice that they are the subjects of paternity actions. It is also not at all unusual for men to contact lawyers to inquire how they can establish the right to parenting time (visitation) with their children, born out of wedlock. At times, it will be necessary to establish paternity for other reasons, such as obtaining government benefits upon the death of the child's father.
Contested Paternity Actions
Contested paternity actions arise either as private actions, or are brought by the state. A private action for paternity is usually meant primarily to secure child support payments from the father, or parenting time with the child. The state will usually commence a paternity action through a prosecutor's office where the mother applies for state assistance, so the state may btain full or partial reimbursement of any grant of aid from the child's father. A person tentatively identified as the child's father in paternity litigation is referred to as the "putatitive father" pending the resolution of the case.
Where a paternity action names the putative father as a defendant, the putative father has the choice of either consenting to the entry of a paternity judgment, or of contesting the action - asserting either that he is not the father, or requesting that DNA tests be performed to confirm his paternity. Paternity testing is now usually performed through a DNA test based upon a cheek swab, and it is not ordinarily necessary to draw a blood sample. If the putative father disagrees with the result of a court-ordered paternity test, he has the right to seek and introduce an independent paternity test.
Where a paternity action names the mother as defendant, she faces the same essential choices as the father. She may either consent to having the putative father named as the child's legal father, or may request paternity testing to confirm that he is the father.
In the most unusual paternity litigation in which has been involved, two men brought a combined paternity action against the mother of a child. Following DNA testing, it was established that neither man was the child's biological father.
Non-Contested Paternity Actions
Some men are confident that they are the biological father of the child, or wish to maintain a legal relationship with the child whether or not they are the father, and thus either initiate paternity actions or consWhen you consent to the entry of a paternity order, you consent for lifeent to the entry of a paternity order. Ordinarily, once such an order is entered, it entitles the father to parenting time (visitation) with the child, and creates a legal duty for the father to provide child support.
Please note the following: . Most jurisdictions will not allow you to escape the consequences of that order, including the requirement that you pay child support, even if you can later prove that you are not the child's biological father. If there is any chance that you will resent the child, or wish to break off your relationship to the child, if you ultimately learn that you are not the child's biological father, by all means obtain a DNA test before admitting that you are the child's father. Some studies suggest a non-paternity rate for children born inside marriage of twenty percent or more. Outside of marriage, you have even fewer assurances. If you consent to being named as the child's father, be sure that you are willing to live up to that designation no matter what you may later learn.
Wednesday, February 10, 2010
Important Considerations for Prenuptials
Considerations for Executing An Agreement
To be most effective, a prenuptial agreement should be drafted and signed well in advance of the wedding - ideally not less than a month in advance. The less wealthy spouse should have an independent attorney review the prenuptial agreement, and if appropriate to negotiate changes. While the less wealthy spouse should select that independent attorney, and the wealthier spouse should not try to influence that choice or interfere with the attorney's independence, in some situations the wealthier spouse may wish to offer reimbursement of that attorney's fee. If the agreement is signed on the eve of the wedding, it may be challenged on the basis that it was signed under coercive circumstances.
Post-Nuptial Agreements and Endorsements
If you have not signed a prenuptial agreement, you probably still have the option of negotiating for a similar "post-nuptial" agreement after you have married. Absent a threat of divorce, there is less of a chance that a post-marital agreement could be viewed as coerced. You may wish to check with an attorney if you feel this type of agreement would benefit you and your family.
Similarly, you may wish to endorse a prenuptial agreement after the wedding, so as to reflect that you and your spouse entered into the agreement voluntarily and intend it to be binding now that you are married. This will diminish the possibility that the agreement will be challenged in the future on the basis of coercion. While it can be extremely coercive to be presented with a prenuptial agreement shortly before a wedding with an ultimatim (express or implied), "Sign this, or the wedding is off", that pressure is gone once the wedding is over.
Who Benefits?
The knee-jerk assumption with prenuptial agreements is that they always benefit the wealthier spouse. In actuality, due to the requirement that prenuptial agreements be fair, they can provide significant protection and assurance to the less wealthy spouse. The less wealthy spouse will often get a relatively clear picture of what life will be like after the marriage in terms of assets and spousal support, and will also be relieved of some of the concern that a divorce would be nasty or contentious, or that a judge might offer less than is provided for by the prenuptial agreement. While premarital agreements cannot assure that a divorce will not be contentious, they often help.
To be most effective, a prenuptial agreement should be drafted and signed well in advance of the wedding - ideally not less than a month in advance. The less wealthy spouse should have an independent attorney review the prenuptial agreement, and if appropriate to negotiate changes. While the less wealthy spouse should select that independent attorney, and the wealthier spouse should not try to influence that choice or interfere with the attorney's independence, in some situations the wealthier spouse may wish to offer reimbursement of that attorney's fee. If the agreement is signed on the eve of the wedding, it may be challenged on the basis that it was signed under coercive circumstances.
Post-Nuptial Agreements and Endorsements
If you have not signed a prenuptial agreement, you probably still have the option of negotiating for a similar "post-nuptial" agreement after you have married. Absent a threat of divorce, there is less of a chance that a post-marital agreement could be viewed as coerced. You may wish to check with an attorney if you feel this type of agreement would benefit you and your family.
Similarly, you may wish to endorse a prenuptial agreement after the wedding, so as to reflect that you and your spouse entered into the agreement voluntarily and intend it to be binding now that you are married. This will diminish the possibility that the agreement will be challenged in the future on the basis of coercion. While it can be extremely coercive to be presented with a prenuptial agreement shortly before a wedding with an ultimatim (express or implied), "Sign this, or the wedding is off", that pressure is gone once the wedding is over.
Who Benefits?
The knee-jerk assumption with prenuptial agreements is that they always benefit the wealthier spouse. In actuality, due to the requirement that prenuptial agreements be fair, they can provide significant protection and assurance to the less wealthy spouse. The less wealthy spouse will often get a relatively clear picture of what life will be like after the marriage in terms of assets and spousal support, and will also be relieved of some of the concern that a divorce would be nasty or contentious, or that a judge might offer less than is provided for by the prenuptial agreement. While premarital agreements cannot assure that a divorce will not be contentious, they often help.
Prenups!
A prenuptial agreement, sometimes called a premarital agreement, is a contract between people who intend to marry which governs what will happen to their assets in the event of divorce. Historically, courts viewed prenuptial agreements with suspicion, believing that they discouraged people from getting married. Today, most jurisdictions permit prenuptial agreements, taking the opposite perspective that they can actually help facilitate marriage.
"Prenuptial" or "Prenuptual"?
The word "prenuptial" is one of the most frequently misspelled words in legal parlance. The term is derived from the word "nuptial", which means "of or relating to marriage or the wedding ceremony". While a hyphenated reference to a "pre-nuptial agreement", or the short-hand reference to a "prenup", can be acceptable, the misspelling "prenuptual" is not. If you see a website advertising "prenuptual agreements", the author of the page probably doesn't know anything about the subject.
Who Needs A Prenuptial Agreement?
Prenuptial agreements are perhaps most common in situations where one person has considerable assets or earning capacity, or owns a business, and is marrying a person who has significantly fewer assets. An agreement as to a future property settlement or spousal support (alimony) payments can provide the wealthier spouse with financial protection, and at the same time with some assurance that the marriage is about love and not money.
Premarital agreements can also be beneficial for second marriages, particularly when the couple is older and both partners are financially established. People who are financially independent, have accrued significant retirement savings, and have children from prior marriages may wish to provide that their assets and retirement accounts remain separate, and that certain property, such as family heirlooms, remain outside of the marital estate.
A prenuptial agreement can also cover assets which have not yet come into the marital estate, for example by clarifying how inheritances will be treated in the event of divorce.
If you are pursuing a professional degree at the time of marriage, such as a law degree or medical degree, you may wish to obtain a prenuptial agreement which will prevent that degree from being considered a marital asset.
Considerations for Drafting An Agreement
If you are exploring the possibility of a premarital agreement, you should consult with an attorney in your state who has experience drafting prenuptial agreements. The requirements for drafting a valid prenuptial agreement vary significantly from state to state. Further, if you have sufficient assets to require a prenuptial agreement, the cost of having an attorney draft the agreement will probably seem quite reasonable, and the attorney fee can be viewed as a form of insurance in the event that the agreement is subsequently held invalid - the attorney will likely carry malpractice insurance which could provide some recompense in the event that the agreement fails due to the attorney's negligence. While for a multi-million dollar estate, a prenuptial agreement may cost thousands of dollars to prepare, that is a small amount in proportion to the estate.
You may wish to consider increasing the benefits provided to the less wealthy spouse in the event of major life events such as the birth of children, or in the event that the marriage persists. Depending upon the circumstances, you may also wish to set an expiration date for the prenuptial agreement, such that if the marriage lasts for a certain amount of time the agreement is no longer effective, or that the parties must agree at that time to renew it.
You should note up front that you cannot cover every contingency in a prenuptial agreement. Nothing you declare in a premarital agreement about child custody or child support for children born during the marriage would be enforceable.
If you wish to utilize a prenuptial agreement, please be aware that you will have to provide an honest recitation of your assets as part of that process. If it is discovered that you have hidden assets or misrepresented the size of your estate, you may not be able to enforce the contract.
You should seek to offer a fair prenuptial agreement, as a premarital agreement that would leave the less wealthy spouse destititute would probably not be enforced by a court. Some states look at fairness not only when the agreement is signed, but also when it is enforced. In those jurisdictions, changes in a spouse's health, financial status, or employability may render invalid a previously enforceable agreement. A lawyer experienced with prenuptial agreements can guide you through these issues.
"Prenuptial" or "Prenuptual"?
The word "prenuptial" is one of the most frequently misspelled words in legal parlance. The term is derived from the word "nuptial", which means "of or relating to marriage or the wedding ceremony". While a hyphenated reference to a "pre-nuptial agreement", or the short-hand reference to a "prenup", can be acceptable, the misspelling "prenuptual" is not. If you see a website advertising "prenuptual agreements", the author of the page probably doesn't know anything about the subject.
Who Needs A Prenuptial Agreement?
Prenuptial agreements are perhaps most common in situations where one person has considerable assets or earning capacity, or owns a business, and is marrying a person who has significantly fewer assets. An agreement as to a future property settlement or spousal support (alimony) payments can provide the wealthier spouse with financial protection, and at the same time with some assurance that the marriage is about love and not money.
Premarital agreements can also be beneficial for second marriages, particularly when the couple is older and both partners are financially established. People who are financially independent, have accrued significant retirement savings, and have children from prior marriages may wish to provide that their assets and retirement accounts remain separate, and that certain property, such as family heirlooms, remain outside of the marital estate.
A prenuptial agreement can also cover assets which have not yet come into the marital estate, for example by clarifying how inheritances will be treated in the event of divorce.
If you are pursuing a professional degree at the time of marriage, such as a law degree or medical degree, you may wish to obtain a prenuptial agreement which will prevent that degree from being considered a marital asset.
Considerations for Drafting An Agreement
If you are exploring the possibility of a premarital agreement, you should consult with an attorney in your state who has experience drafting prenuptial agreements. The requirements for drafting a valid prenuptial agreement vary significantly from state to state. Further, if you have sufficient assets to require a prenuptial agreement, the cost of having an attorney draft the agreement will probably seem quite reasonable, and the attorney fee can be viewed as a form of insurance in the event that the agreement is subsequently held invalid - the attorney will likely carry malpractice insurance which could provide some recompense in the event that the agreement fails due to the attorney's negligence. While for a multi-million dollar estate, a prenuptial agreement may cost thousands of dollars to prepare, that is a small amount in proportion to the estate.
You may wish to consider increasing the benefits provided to the less wealthy spouse in the event of major life events such as the birth of children, or in the event that the marriage persists. Depending upon the circumstances, you may also wish to set an expiration date for the prenuptial agreement, such that if the marriage lasts for a certain amount of time the agreement is no longer effective, or that the parties must agree at that time to renew it.
You should note up front that you cannot cover every contingency in a prenuptial agreement. Nothing you declare in a premarital agreement about child custody or child support for children born during the marriage would be enforceable.
If you wish to utilize a prenuptial agreement, please be aware that you will have to provide an honest recitation of your assets as part of that process. If it is discovered that you have hidden assets or misrepresented the size of your estate, you may not be able to enforce the contract.
You should seek to offer a fair prenuptial agreement, as a premarital agreement that would leave the less wealthy spouse destititute would probably not be enforced by a court. Some states look at fairness not only when the agreement is signed, but also when it is enforced. In those jurisdictions, changes in a spouse's health, financial status, or employability may render invalid a previously enforceable agreement. A lawyer experienced with prenuptial agreements can guide you through these issues.
Important Considerations for Legal Separation
Important Considerations of Legal Separation:
•If your separation later turns into a divorce, the manner in which you have divided your personal property may well be the manner in which that property becomes divided for the purposes of the divorce. That is, it is not unusual for a divorce settlement or judgment to award separated parties the personal property that is in their own possession. If there are important belongings that, for one reason or another, you will leave with your spouse upon separation, you may wish to make specific note in your separation agreement that both you and your spouse intend that property to come to you in the event of divorce.
•If you contract for the division of property in your separation agreement, that contract will likely be binding upon you in the event of divorce. For example, if your separation agreement assigns the marital home to one spouse, and details how the equity will eventually be divided, absent a new agreement by both spouses it is likely that you will be bound by that earlier agreement upon divorce.
•Insurance companies make money when they deny claims. If you are separating for the purpose of maintaining insurance coverage which would terminate upon divorce, check the policy language carefully. Some insurance companies are now including language which will cause coverage to lapse in the event of a legal separation.
•Remember that separated couples remain married to each other. If you expect that you will wish to remarry, you will ultimately have to go to court to obtain a divorce.
•Remember to separate your finances. Ordinarily, the money in a joint bank account belongs to both people named on the account. That is, if you are placing money into the account, your spouse may have a legal right to withdraw all of that money even if you are separated. If your name appears on a lease or mortgage for the residence where your spouse will live, you will remain liable for payments. Similarly, if you continue to share joint credit accounts, including credit cards, or your name appears on any utility bills (phone, gas, electrical, etc.) you will ordinarily be liable for any debt incurred by your spouse even after separation. It is thus wise to separate your finances, and to obtain credit cards and bank accounts in the individual names of each spouse, as part of the separation process.
•Where pensions or government benefits are involved, it makes sense to consult with an accountant in relation to your financial situation as part of a legal separation, so as to make sure that you meet all of the necessary legal requirements to maintain your interest in those benefits.
What If Things Don't Work Out?
If you separate from your spouse hoping that there will be an eventual reconciliation, but things don't work out, the exact procedure for converting your separation into a divorce will vary depending upon where you live. In some states, for a period of time after a judgment of separate maintenance is entered, the parties may convert their case into an action for divorce. In other states, a new divorce action must be started. Some states fall in the middle, giving the court which issued the order of separation the discretion to allow the parties to amend their complaint to request divorce.
•If your separation later turns into a divorce, the manner in which you have divided your personal property may well be the manner in which that property becomes divided for the purposes of the divorce. That is, it is not unusual for a divorce settlement or judgment to award separated parties the personal property that is in their own possession. If there are important belongings that, for one reason or another, you will leave with your spouse upon separation, you may wish to make specific note in your separation agreement that both you and your spouse intend that property to come to you in the event of divorce.
•If you contract for the division of property in your separation agreement, that contract will likely be binding upon you in the event of divorce. For example, if your separation agreement assigns the marital home to one spouse, and details how the equity will eventually be divided, absent a new agreement by both spouses it is likely that you will be bound by that earlier agreement upon divorce.
•Insurance companies make money when they deny claims. If you are separating for the purpose of maintaining insurance coverage which would terminate upon divorce, check the policy language carefully. Some insurance companies are now including language which will cause coverage to lapse in the event of a legal separation.
•Remember that separated couples remain married to each other. If you expect that you will wish to remarry, you will ultimately have to go to court to obtain a divorce.
•Remember to separate your finances. Ordinarily, the money in a joint bank account belongs to both people named on the account. That is, if you are placing money into the account, your spouse may have a legal right to withdraw all of that money even if you are separated. If your name appears on a lease or mortgage for the residence where your spouse will live, you will remain liable for payments. Similarly, if you continue to share joint credit accounts, including credit cards, or your name appears on any utility bills (phone, gas, electrical, etc.) you will ordinarily be liable for any debt incurred by your spouse even after separation. It is thus wise to separate your finances, and to obtain credit cards and bank accounts in the individual names of each spouse, as part of the separation process.
•Where pensions or government benefits are involved, it makes sense to consult with an accountant in relation to your financial situation as part of a legal separation, so as to make sure that you meet all of the necessary legal requirements to maintain your interest in those benefits.
What If Things Don't Work Out?
If you separate from your spouse hoping that there will be an eventual reconciliation, but things don't work out, the exact procedure for converting your separation into a divorce will vary depending upon where you live. In some states, for a period of time after a judgment of separate maintenance is entered, the parties may convert their case into an action for divorce. In other states, a new divorce action must be started. Some states fall in the middle, giving the court which issued the order of separation the discretion to allow the parties to amend their complaint to request divorce.
Legal Separation
Sometimes, when a divorce seems imminent, a married couple inquires about the possibility of "legal separation". Some states refer to legal separation by other names, such as "separate maintenance".
"Separation" versus "Legal Separation"
Usually, when people use the term "legal separation", they are referring to a situation where a court has entered an order governing what will happen while the parties are separated, perhaps covering issues such as child custody and support, and spousal support (alimony).
Typically, a court will have the power to resolve as part of a "legal separation" any and all issues that would normally be resolved in a divorce. The exception is that when the final order is entered by the court, the parties remain married.
Also, most jurisdictions require a waiting or "cooling off" period before a court will issue a divorce judgment, but there is not ordinarily a waiting period before a court may issue an order of "legal separation" or "separate maintenance".
It is possible for a married couple to separate without going to court, on the basis of a mutual understanding or even a written agreement. Some people will seek the assistance of a lawyer in drafting a separation agreement. This can be a very good idea, particularly where the parties want to be sure that insurance coverage will continue for both spouses following separation.
Why People Seek Legal Separation
The reasons people ask about separation as opposed to divorce include:
•Religious Concerns - they may have a religious objection to divorce;
•Insurance Concerns - they may wish to ensure that one of the spouses has continued coverage through the other spouse's insurance provider;
•Trial Separation - they may hope that the marriage can be reconciled, but recognize a need to spend some time apart, and desire a formal arrangement to address such issues as child support and custody, spousal support (alimony) and property in the interim;
•Divorce Waiting Periods - they may wish to separate during the period of time their state requires them to wait, prior to the entry of a judgment of divorce;
•Tax Purposes - Sometimes, in a complicated divorce, a wealthy spouse may wish to formalize the spousal support (alimony) at an early stage through a separation agreement, in order to take the associated tax deduction;
•Social Security and Pension Benefits - Sometimes spouses will wish to delay formal divorce until they have been married long enough to quality for certain Social Security or pension benefits. For example, if your interest in certain Social Security or military pension benefits vests after ten years, it is not ordinarily fiscally prudent to divorce from a nine year marriage before you qualify for those vested benefits
"Separation" versus "Legal Separation"
Usually, when people use the term "legal separation", they are referring to a situation where a court has entered an order governing what will happen while the parties are separated, perhaps covering issues such as child custody and support, and spousal support (alimony).
Typically, a court will have the power to resolve as part of a "legal separation" any and all issues that would normally be resolved in a divorce. The exception is that when the final order is entered by the court, the parties remain married.
Also, most jurisdictions require a waiting or "cooling off" period before a court will issue a divorce judgment, but there is not ordinarily a waiting period before a court may issue an order of "legal separation" or "separate maintenance".
It is possible for a married couple to separate without going to court, on the basis of a mutual understanding or even a written agreement. Some people will seek the assistance of a lawyer in drafting a separation agreement. This can be a very good idea, particularly where the parties want to be sure that insurance coverage will continue for both spouses following separation.
Why People Seek Legal Separation
The reasons people ask about separation as opposed to divorce include:
•Religious Concerns - they may have a religious objection to divorce;
•Insurance Concerns - they may wish to ensure that one of the spouses has continued coverage through the other spouse's insurance provider;
•Trial Separation - they may hope that the marriage can be reconciled, but recognize a need to spend some time apart, and desire a formal arrangement to address such issues as child support and custody, spousal support (alimony) and property in the interim;
•Divorce Waiting Periods - they may wish to separate during the period of time their state requires them to wait, prior to the entry of a judgment of divorce;
•Tax Purposes - Sometimes, in a complicated divorce, a wealthy spouse may wish to formalize the spousal support (alimony) at an early stage through a separation agreement, in order to take the associated tax deduction;
•Social Security and Pension Benefits - Sometimes spouses will wish to delay formal divorce until they have been married long enough to quality for certain Social Security or pension benefits. For example, if your interest in certain Social Security or military pension benefits vests after ten years, it is not ordinarily fiscally prudent to divorce from a nine year marriage before you qualify for those vested benefits
How to Get an Annulment
Many people who are considering bringing an end to their marriage come to their lawyers with the idea of getting an annulment instead of a divorce. This article discusses annulment only in its legal sense, and not in any religious sense. The nature and availability of religious annulment varies with each religious authority.
How Is Annulment Different From Divorce?
An annulment is a decree that a marriage was invalid from its outset. Whereas a divorce brings a valid marriage to an end, an annulment is a legal decree that effectively undoes the marriage, such that in the eyes of the law the marriage did not ever exist.
When Is Annulment Available?
Annulments are typically available under the following circumstances:
•You and your spouse are close biological relatives, and should not have qualified for marriage under the law. For example, you and your spouse are parent and child, parent and stepchild, aunt and nephew, uncle and niece, or grandparent and grandchild. The precise parameters of the relationship which will qualify a couple for annulment will vary between jurisdictions.
•One of the spouses did not have the mental capacity to enter into a marriage contract. By way of example, at the time of the ceremony a spouse may be incapacitated due to a mental disability, whether temporary or permanent in nature, or from intoxication.
•One of the spouses was below the legal age to consent to marriage. (In some jurisdictions, the availability of annulment may also depend upon whether the proper legal requirements, such as parental and/or judicial consent to the marriage, were followed.)
•You or your spouse entered into the marriage as a result of threat, force or duress.
•You or your spouse were fraudulently induced into entering the marriage. Fraud may include the concealment of an important fact, such as permanent impotence or sterility, a criminal history, or infection with a sexually transmitted disease.
•Your spouse was married to another living person at the time of the marriage. (In some jurisdictions, such a marriage would be considered bigamous and void under the law, and thus it would not be necessary to also seek an annulment.)
Some jurisdictions also permit annulment where one spouse concealed the fact of a divorce, finalized only a short time before the wedding (e.g., less than one month before the marriage).
Important Facts About Annulments
Some people believe that annulments will be available if they have only been married for a short time. The duration of a marriage is not a factor in the determination of whether an annulment is available.
For annulment based upon fraud or deception, it may be necessary for the spouse seeking the annulment to end the relationship as man and wife upon learning of the deception. If cohabitation continues once the innocent spouse knows of the fraud, many jurisdictions will consider that the spouses resolved the issue between themselves and that the fraud was thereby rendered a non-issue.
Most jurisdictions are extremely reluctant to grant annulments once a married couple has had children.
An annulment may limit your ability to share in the marital estate, or to obtain spousal support (alimony) which would otherwise result from divorce.
How Is Annulment Different From Divorce?
An annulment is a decree that a marriage was invalid from its outset. Whereas a divorce brings a valid marriage to an end, an annulment is a legal decree that effectively undoes the marriage, such that in the eyes of the law the marriage did not ever exist.
When Is Annulment Available?
Annulments are typically available under the following circumstances:
•You and your spouse are close biological relatives, and should not have qualified for marriage under the law. For example, you and your spouse are parent and child, parent and stepchild, aunt and nephew, uncle and niece, or grandparent and grandchild. The precise parameters of the relationship which will qualify a couple for annulment will vary between jurisdictions.
•One of the spouses did not have the mental capacity to enter into a marriage contract. By way of example, at the time of the ceremony a spouse may be incapacitated due to a mental disability, whether temporary or permanent in nature, or from intoxication.
•One of the spouses was below the legal age to consent to marriage. (In some jurisdictions, the availability of annulment may also depend upon whether the proper legal requirements, such as parental and/or judicial consent to the marriage, were followed.)
•You or your spouse entered into the marriage as a result of threat, force or duress.
•You or your spouse were fraudulently induced into entering the marriage. Fraud may include the concealment of an important fact, such as permanent impotence or sterility, a criminal history, or infection with a sexually transmitted disease.
•Your spouse was married to another living person at the time of the marriage. (In some jurisdictions, such a marriage would be considered bigamous and void under the law, and thus it would not be necessary to also seek an annulment.)
Some jurisdictions also permit annulment where one spouse concealed the fact of a divorce, finalized only a short time before the wedding (e.g., less than one month before the marriage).
Important Facts About Annulments
Some people believe that annulments will be available if they have only been married for a short time. The duration of a marriage is not a factor in the determination of whether an annulment is available.
For annulment based upon fraud or deception, it may be necessary for the spouse seeking the annulment to end the relationship as man and wife upon learning of the deception. If cohabitation continues once the innocent spouse knows of the fraud, many jurisdictions will consider that the spouses resolved the issue between themselves and that the fraud was thereby rendered a non-issue.
Most jurisdictions are extremely reluctant to grant annulments once a married couple has had children.
An annulment may limit your ability to share in the marital estate, or to obtain spousal support (alimony) which would otherwise result from divorce.
More on Non-Legal Skills for Lawyers
1. The Psychological Professional’s Role in Mediation
The Achilles heel of mediation is that, without the appropriate psychological awareness, the one thing that needs to be mediated – the client’s negative beliefs systems relating to the separated co-parent – are not properly expressed or addressed. Without dealing with the underlying causes of that negativity, the parties cannot unify behind a common positive goal. Consequently, any attempt to mediate may feel like an attempt to force agreement on the parties and so result in as much polarisation and resistance as does litigation.
By way of illustration, research undertaken by the Ministry of Justice in relation to longer-term outcomes of in-court mediation found that about 60% of agreements reached by parents had been dropped, or had broken down, by the two year follow up point – this being due to one or both of the adults not supporting the agreement rather an adaptive change to circumstances.
Further, two years after mediation, the majority of parents involved in that research continued to report a negative relationship with their co-parent that had not improved, or had worsened. At the two year follow up point, the number of children with borderline or abnormal scores for reporting psychological distress on a standardised measure remained about double the United Kingdom norm. One of the main conclusions reached in that report was that there needed to be more relationship based or therapeutically-orientated interventions, under the umbrella of public health rather than the family justice system.
2. Getting the Best from Court Appointed Experts
Due to their lack of mental health expertise, lawyers have great difficulty in effectively instructing court appointed psychiatric or psychological experts in terms that result in advice and opinion that best inform the court. Since, typically, an expert in the same field plays no part in the process of formulating the correct questions to the court appointed expert, there is a risk of the questions posed being too general and over simplistic.
Mental health care professionals working closely with their mutual clients’ legal team can play a vital role in ensuring that the court appointed expert is appropriately instructed and their reports interpreted beyond the purely clinical diagnosis. In this way, the inherent risk in such reports – that they are frequently the result of a very short involuntary clinical assessment where the risk of a negative report is uppermost in the parents’ mind when being assessed, as opposed to a voluntary doctor-patient assessment – can be addressed by the drafting of instructions and questions to the court-appointed expert which contain an appropriate level of technical insight.
The Achilles heel of mediation is that, without the appropriate psychological awareness, the one thing that needs to be mediated – the client’s negative beliefs systems relating to the separated co-parent – are not properly expressed or addressed. Without dealing with the underlying causes of that negativity, the parties cannot unify behind a common positive goal. Consequently, any attempt to mediate may feel like an attempt to force agreement on the parties and so result in as much polarisation and resistance as does litigation.
By way of illustration, research undertaken by the Ministry of Justice in relation to longer-term outcomes of in-court mediation found that about 60% of agreements reached by parents had been dropped, or had broken down, by the two year follow up point – this being due to one or both of the adults not supporting the agreement rather an adaptive change to circumstances.
Further, two years after mediation, the majority of parents involved in that research continued to report a negative relationship with their co-parent that had not improved, or had worsened. At the two year follow up point, the number of children with borderline or abnormal scores for reporting psychological distress on a standardised measure remained about double the United Kingdom norm. One of the main conclusions reached in that report was that there needed to be more relationship based or therapeutically-orientated interventions, under the umbrella of public health rather than the family justice system.
2. Getting the Best from Court Appointed Experts
Due to their lack of mental health expertise, lawyers have great difficulty in effectively instructing court appointed psychiatric or psychological experts in terms that result in advice and opinion that best inform the court. Since, typically, an expert in the same field plays no part in the process of formulating the correct questions to the court appointed expert, there is a risk of the questions posed being too general and over simplistic.
Mental health care professionals working closely with their mutual clients’ legal team can play a vital role in ensuring that the court appointed expert is appropriately instructed and their reports interpreted beyond the purely clinical diagnosis. In this way, the inherent risk in such reports – that they are frequently the result of a very short involuntary clinical assessment where the risk of a negative report is uppermost in the parents’ mind when being assessed, as opposed to a voluntary doctor-patient assessment – can be addressed by the drafting of instructions and questions to the court-appointed expert which contain an appropriate level of technical insight.
Lawyers and Psychologists Working Together
How, then, can lawyers and psychological professionals work together for the benefit of their mutual clients? The following areas of cooperation are the main ones that my practice employs within our everyday interaction with our clients.
1. Developing and Communicating a Client’s Case
From the client’s first meeting with their solicitor, time pressure, the manner in which the solicitor elicits his instructions, the client's deep upset and the solicitor’s limited understanding of the client’s interpersonal difficulties and psychological processes which underpin their distress, automatically narrow the information base on which a case can be built. The value solicitors ascribe to legal precedent further narrows the case in the solicitor’s mind to those facts which are consistent with or distinguishable from that precedent. There is a risk that the solicitor’s early assessment of the prospects of success (usually expressed in terms of a percentage), viewed through this narrow focus and understandably couched in cautious terms, sets the client on a path of disillusionment, conditioned helplessness and increased anxiety and hostility, since he feels his case has already been pre-judged without the solicitor understanding what he or she regards as the unique aspects of it.
Psychological professionals can greatly assist in ensuring that a client’s case is formulated and presented to maximum effect through the inclusion of these unique features. Their ability to establish a good rapport, take a full case history of both the family breakdown and the contributory factors leading to it, as well as their expertise in managing the client's distress and facilitating open communication on very sensitive issues, greatly assists the solicitor to develop a holistic legal case which the client is more likely to believe accurately reflects their experience and position. Clients also find this process of great value as it frequently serves to give them additional insight into their own distress and why their relationship broke down, thereby enabling them to view the legal process more objectively and positively and to maintain their child centric position.
Since an integral part of this approach is that the client develops a broader understanding of the decision making and behaviour of their former partner, we have found that it is much more likely that the parents achieve a consensual settlement through their unification behind the common goal of the best interests of the children.
2. The Role of Psychological Professionals in Supporting their Client
It is very stressful for any parent to be involved in family law litigation. This pressure may last many months or years. A client who cannot communicate their feelings at this anxious time or sinks into a spiral of pessimism, negativity or depression in response to the prospect of their loss and to their feelings of helplessness, is unlikely to be in the best frame of mind to conduct litigation, think flexibly or continue functioning in other aspects of their life. This will inevitably have a knock-on effect upon the child’s well-being. Preserving the client’s emotional and psychological well-being in these circumstances is best undertaken by a psychological professional who understands these issues.
It is estimated that family breakdown directly affects approximately one-third of the United Kingdom population1 (and many more indirectly). Research from Families Need Fathers and the Equal Parenting Alliance provide a worrying insight. A survey of over 200 parents involved in the family justice system found that 35% of respondents had contemplated suicide, with a shocking 7% having actually attempted suicide. Clearly, this is an untenable situation that must be seriously addressed.
In order to support their client effectively, it is necessary for the psychological professionals working in this forum to have a relevant understanding of the family justice system and for the solicitor to be aware of, at least basic, psychological principles, thereby facilitating a symbiotic relationship that truly reflects and caters for the client's needs.
1. Developing and Communicating a Client’s Case
From the client’s first meeting with their solicitor, time pressure, the manner in which the solicitor elicits his instructions, the client's deep upset and the solicitor’s limited understanding of the client’s interpersonal difficulties and psychological processes which underpin their distress, automatically narrow the information base on which a case can be built. The value solicitors ascribe to legal precedent further narrows the case in the solicitor’s mind to those facts which are consistent with or distinguishable from that precedent. There is a risk that the solicitor’s early assessment of the prospects of success (usually expressed in terms of a percentage), viewed through this narrow focus and understandably couched in cautious terms, sets the client on a path of disillusionment, conditioned helplessness and increased anxiety and hostility, since he feels his case has already been pre-judged without the solicitor understanding what he or she regards as the unique aspects of it.
Psychological professionals can greatly assist in ensuring that a client’s case is formulated and presented to maximum effect through the inclusion of these unique features. Their ability to establish a good rapport, take a full case history of both the family breakdown and the contributory factors leading to it, as well as their expertise in managing the client's distress and facilitating open communication on very sensitive issues, greatly assists the solicitor to develop a holistic legal case which the client is more likely to believe accurately reflects their experience and position. Clients also find this process of great value as it frequently serves to give them additional insight into their own distress and why their relationship broke down, thereby enabling them to view the legal process more objectively and positively and to maintain their child centric position.
Since an integral part of this approach is that the client develops a broader understanding of the decision making and behaviour of their former partner, we have found that it is much more likely that the parents achieve a consensual settlement through their unification behind the common goal of the best interests of the children.
2. The Role of Psychological Professionals in Supporting their Client
It is very stressful for any parent to be involved in family law litigation. This pressure may last many months or years. A client who cannot communicate their feelings at this anxious time or sinks into a spiral of pessimism, negativity or depression in response to the prospect of their loss and to their feelings of helplessness, is unlikely to be in the best frame of mind to conduct litigation, think flexibly or continue functioning in other aspects of their life. This will inevitably have a knock-on effect upon the child’s well-being. Preserving the client’s emotional and psychological well-being in these circumstances is best undertaken by a psychological professional who understands these issues.
It is estimated that family breakdown directly affects approximately one-third of the United Kingdom population1 (and many more indirectly). Research from Families Need Fathers and the Equal Parenting Alliance provide a worrying insight. A survey of over 200 parents involved in the family justice system found that 35% of respondents had contemplated suicide, with a shocking 7% having actually attempted suicide. Clearly, this is an untenable situation that must be seriously addressed.
In order to support their client effectively, it is necessary for the psychological professionals working in this forum to have a relevant understanding of the family justice system and for the solicitor to be aware of, at least basic, psychological principles, thereby facilitating a symbiotic relationship that truly reflects and caters for the client's needs.
Importance of Non-Legal Skills
What is it then that clients want from their family lawyers at potentially the most difficult time of their lives and regarding the most important issue in their lives the determination of the well-being of their children? Drawing upon both my personal and professional experience, the latter as a commercial law partner and now full-time family lawyer (during the course of which, in addition to my own clients, I have spoken to many parents on a pro bono and second opinion basis), it is clear that the parents’ overwhelming concern is that the application of legal skills alone leads to them experiencing acute feelings of disempowerment, disengagement, helplessness, not being listened to and paternalism.
This experience has informed opinions that the following approach is essential to addressing these client concerns:
•Taking a holistic approach to the client's needs beyond simply perceiving their case in terms of relevant fact and law for the purpose of "black and white" legal analysis based on legal precedent, since this has the effect of negating the uniqueness of each client's personal circumstances and family dynamic.
•Supporting the client emotionally and psychologically to ensure they feel listened to and their case articulated in a manner which emphasises their genuine child centric concerns. This minimises the risk that the client adopts a non-child centric position which frequently involves the prosecution of their legal case and interaction with the other parent containing a series of threats, allegations, denials and counter allegations, which inevitably causes great hostility, upset and resentment between the parents and the legal system.
•Developing and agreeing a plan of action with the client around a clearly defined strategy for communicating the parent’s child centric concerns.
•Offering a level of service that reflects the client's emotional needs and allows for regular, open communication between client and lawyer whenever it is required by the client.
•Remaining focused on providing a "can-do" approach and solutions to any matter that the client wishes to include as part of his case, rather than a lawyer driven "I know best" approach which ultimately results in a sense of helplessness in the client. The established approach where lawyers repeatedly emphasise the risks of any given course of action without suggesting a possible alternative solution is not seen by clients as providing any added value to their case.
This experience has informed opinions that the following approach is essential to addressing these client concerns:
•Taking a holistic approach to the client's needs beyond simply perceiving their case in terms of relevant fact and law for the purpose of "black and white" legal analysis based on legal precedent, since this has the effect of negating the uniqueness of each client's personal circumstances and family dynamic.
•Supporting the client emotionally and psychologically to ensure they feel listened to and their case articulated in a manner which emphasises their genuine child centric concerns. This minimises the risk that the client adopts a non-child centric position which frequently involves the prosecution of their legal case and interaction with the other parent containing a series of threats, allegations, denials and counter allegations, which inevitably causes great hostility, upset and resentment between the parents and the legal system.
•Developing and agreeing a plan of action with the client around a clearly defined strategy for communicating the parent’s child centric concerns.
•Offering a level of service that reflects the client's emotional needs and allows for regular, open communication between client and lawyer whenever it is required by the client.
•Remaining focused on providing a "can-do" approach and solutions to any matter that the client wishes to include as part of his case, rather than a lawyer driven "I know best" approach which ultimately results in a sense of helplessness in the client. The established approach where lawyers repeatedly emphasise the risks of any given course of action without suggesting a possible alternative solution is not seen by clients as providing any added value to their case.
Monday, February 1, 2010
Divorce Lawyers Should Tell You Bad News
People who are thinking about getting a divorce say, "I want the meanest, toughest attorney I can find. I want a fighter." You should shudder and say that a fighter is the last thing anyone should want in a lawyer.
Fighter-attorneys may make a client feel good as they harass and humiliate the other spouse, but fighter-attorneys cost tons of money and they always make things worse--for both parties.
So, what are the characteristics of a good lawyer in divorce cases?
First, the hallmark of a good lawyer is that he or she will tell a client things the client does not want to hear. A good lawyer gives clients bad news.
In divorce cases there is always a good deal of bad news to be given.
--There will not be enough money to maintain the standard of living the family is used to.
--Often the family residence will have to be sold.
--Each parent will spend less time with the children because there will be a second home in which the children will spend time.
--The children may begin to misbehave or do poorly in school or exhibit other unfortunate problems, which will consume more time, energy and possibly money to pay counselors to try to solve.
The list of bad news goes on and on. The fighter-attorney fails to warn the client--allows, or even encourages, the client to hold on to unrealistic expectations. The good lawyer does not.
Clients sometimes say to a lawyer who tells them what they do not want to hear, "Whose side are you on anyway?" But a good lawyer is on the client's side when they explain reality.
Another sign of good lawyers is that they get along with one another. They are courteous to one another, and they are able to trust one another. They exchange information promptly. They cooperate. Fighter-attorneys do all sorts of stuff to aggravate the other side, which may provide a perverse kind of pleasure while it is happening, but in the end, non-cooperation between lawyers generates enormous legal fees and it increases the bitter feelings between the parties which ultimately damages their lives and the lives of their children. People who hire fighter-attorneys can expect a scorched-earth result. They are often surprised to discover they themselves have to live on that scorched earth.
Divorcing couples are wise to hire lawyers who are peace-makers and problem-solvers. Look for a lawyer who has gone to the trouble of getting mediation training, and watch out for attorneys who do not tell you things you do not want to hear
Fighter-attorneys may make a client feel good as they harass and humiliate the other spouse, but fighter-attorneys cost tons of money and they always make things worse--for both parties.
So, what are the characteristics of a good lawyer in divorce cases?
First, the hallmark of a good lawyer is that he or she will tell a client things the client does not want to hear. A good lawyer gives clients bad news.
In divorce cases there is always a good deal of bad news to be given.
--There will not be enough money to maintain the standard of living the family is used to.
--Often the family residence will have to be sold.
--Each parent will spend less time with the children because there will be a second home in which the children will spend time.
--The children may begin to misbehave or do poorly in school or exhibit other unfortunate problems, which will consume more time, energy and possibly money to pay counselors to try to solve.
The list of bad news goes on and on. The fighter-attorney fails to warn the client--allows, or even encourages, the client to hold on to unrealistic expectations. The good lawyer does not.
Clients sometimes say to a lawyer who tells them what they do not want to hear, "Whose side are you on anyway?" But a good lawyer is on the client's side when they explain reality.
Another sign of good lawyers is that they get along with one another. They are courteous to one another, and they are able to trust one another. They exchange information promptly. They cooperate. Fighter-attorneys do all sorts of stuff to aggravate the other side, which may provide a perverse kind of pleasure while it is happening, but in the end, non-cooperation between lawyers generates enormous legal fees and it increases the bitter feelings between the parties which ultimately damages their lives and the lives of their children. People who hire fighter-attorneys can expect a scorched-earth result. They are often surprised to discover they themselves have to live on that scorched earth.
Divorcing couples are wise to hire lawyers who are peace-makers and problem-solvers. Look for a lawyer who has gone to the trouble of getting mediation training, and watch out for attorneys who do not tell you things you do not want to hear
Divorce with the Child's Best Interests at Heart
A Michigan judge recently awarded custody of a 3-year-old girl to her father rather than continue custody with her mother with whom the child had lived since she was born. The father planned to have his mother take care of the little girl. The judge said he believes it is in the child's best interests to be in the daycare of her paternal grandmother rather than in paid daycare while her mother attends classes at the University of Michigan as a scholarship student.
The judge has been severely criticized by thinking men and women, including newspaper editors and columnists Ellen Goodman and Anna Quindlen. All the criticism argues that the judge's decision is unfair to the mother. Anna Quindlen pointed out that if the mother had not gone to college but rather had stayed home and applied for welfare benefits, she would not have lost custody of her daughter, although, because raising children is not recognized as "work" by many Americans, she would surely have been criticized for "not working".
It is unquestionable that this decision was unfair to the mother, but the law says that custody decisions are to be based on what is best for the child, not what is best for the mother or best for the father.
A more productive topic for the critics to explore would be: What do the words "best interests" of a child mean and how should the Courts determine the "best interests" of a child?
According to the Michigan judge the best interests of this child require her to be cared for by blood relatives, not licensed, paid daycare providers. He did not explain, to my knowledge, the basis for that belief.
Most persons educated and experienced in child development matters would say that it is in the best interests of any child to remain in the care of the parent to whom the child is primarily bonded, unless that parent has significant parenting flaws. The child will almost always be primarily bonded to the parent who feeds, clothes, bathes, plays with, comforts, and nurses the child most of the time.
In the Michigan case, it may have been the maternal grandmother to whom the child was primarily bonded, if the news reports were accurate that it was she who raised the child while the mother completed high school. However, the law in America has consistently held that parents' rights outweigh grandparents' rights when it comes to determining custody of a child. That is, the law says it is in the best interests of a child to be raised by parents rather than grandparents, unless the parents are unfit.
Obviously, the words "best interests of the child" have no one, single meaning, which is why laws in most States define "best interests" by listing a number of factors. In New Mexico judges are directed to consider
•the wishes of both parents;
•the wishes of the child;
•the relationship between the child and his parents, siblings and others important in his life;
•the child's adjustment to home, school & community; and
•the mental & physical health of everyone involved.
Whether daycare should be a factor in deciding what is in a child's best interests is the question the Michigan appellate courts must now decide. More accurately, the question may be whether daycare is properly the deciding factor as the Michigan judge seems to believe.
However, it is important to keep in mind that in custody cases, it is the child's best interests that matter, not the parents.
The judge has been severely criticized by thinking men and women, including newspaper editors and columnists Ellen Goodman and Anna Quindlen. All the criticism argues that the judge's decision is unfair to the mother. Anna Quindlen pointed out that if the mother had not gone to college but rather had stayed home and applied for welfare benefits, she would not have lost custody of her daughter, although, because raising children is not recognized as "work" by many Americans, she would surely have been criticized for "not working".
It is unquestionable that this decision was unfair to the mother, but the law says that custody decisions are to be based on what is best for the child, not what is best for the mother or best for the father.
A more productive topic for the critics to explore would be: What do the words "best interests" of a child mean and how should the Courts determine the "best interests" of a child?
According to the Michigan judge the best interests of this child require her to be cared for by blood relatives, not licensed, paid daycare providers. He did not explain, to my knowledge, the basis for that belief.
Most persons educated and experienced in child development matters would say that it is in the best interests of any child to remain in the care of the parent to whom the child is primarily bonded, unless that parent has significant parenting flaws. The child will almost always be primarily bonded to the parent who feeds, clothes, bathes, plays with, comforts, and nurses the child most of the time.
In the Michigan case, it may have been the maternal grandmother to whom the child was primarily bonded, if the news reports were accurate that it was she who raised the child while the mother completed high school. However, the law in America has consistently held that parents' rights outweigh grandparents' rights when it comes to determining custody of a child. That is, the law says it is in the best interests of a child to be raised by parents rather than grandparents, unless the parents are unfit.
Obviously, the words "best interests of the child" have no one, single meaning, which is why laws in most States define "best interests" by listing a number of factors. In New Mexico judges are directed to consider
•the wishes of both parents;
•the wishes of the child;
•the relationship between the child and his parents, siblings and others important in his life;
•the child's adjustment to home, school & community; and
•the mental & physical health of everyone involved.
Whether daycare should be a factor in deciding what is in a child's best interests is the question the Michigan appellate courts must now decide. More accurately, the question may be whether daycare is properly the deciding factor as the Michigan judge seems to believe.
However, it is important to keep in mind that in custody cases, it is the child's best interests that matter, not the parents.
Some Divorce Vocabulary
A divorce may be one of the most complex legal processes that a person encounters in his or her lifetime. For many people it is their first (and hopefully last) contact with the legal system. Knowing some of the basic terminology involved in divorce can help.
Petition for Divorce. This is the document that the person who wants a divorce files with the court asking for a divorce. It might also be called Petition for Dissolution of Marriage. A petition sets out the relief that the person wants the court to grant (in this case a divorce) as well as the legal grounds for the relief and any factual support.
Temporary Order. This is also sometimes called an Interim Order. It is a court order that is not permanent. It will last only until a hearing, or a final order is issued, or until some other specified event occurs. An example of a temporary order is a temporary custody order, which will specify which parent has custody of the children pending a final custody determination. A temporary support order is an order that provides for one of the parties to a divorce to pay support to the other party either for that party or for the children or both. A temporary restraining order might be issued to prevent one of the parties to a divorce from disposing of property. The key thing with any temporary order or interim order is that the order is not permanent.
Community Property. In community property states, property that is acquired by the husband and wife during their marriage belongs to both. Property that was owned by either spouse prior to the marriage is their separate property. However, if separate property becomes commingled with community property it can become community property. For example, where husband and wife combine bank accounts when they get married the amount each had in the accounts before they were married will cease to be separate property. A spouse can acquire separate property during their marriage if the property is given to that spouse as a gift or inheritance.
Equitable Distribution. Many states require the equitable distribution of property acquired during the marriage. This means that property and debts should be divided fairly, not equally. Several factors may be used to determine what is fair including the length of the marriage and earning capacity of the parties.
Spousal Support. This is sometimes called Alimony or Separate Maintenance Payments. If the court determines that one spouse has a legal obligation to provide for the support of the other spouse, it can order that alimony be paid to the spouse to whom support is owed.
Child Support. Parents have a legal obligation to support their children. In a divorce, the non-custodial parent will be ordered to pay child support to the custodial parent. If there is joint custody, the parent who has primary physical custody will receive child support from the other parent. Each state has child support guidelines that are used to determine the amount of child support.
Custody. When used in the context of child custody, this refers to the person who will have responsibility for the child. Sometimes a court will award sole custody to one of the parents. Many courts now award Joint Custody to both parents. Sometimes joint custody refers to the fact that both parents continue to have an equal say in the upbringing of the child, even though one parent is awarded primary physical custody. When a parent has primary physical custody the child will live with that parent and have visitation with the other parent. Sometimes joint custody refers not only to the fact that both parents continue to have an equal say in the upbringing of the child, but also to the fact that the child is to spend roughly equal periods of time in each parents' household.
Petition for Divorce. This is the document that the person who wants a divorce files with the court asking for a divorce. It might also be called Petition for Dissolution of Marriage. A petition sets out the relief that the person wants the court to grant (in this case a divorce) as well as the legal grounds for the relief and any factual support.
Temporary Order. This is also sometimes called an Interim Order. It is a court order that is not permanent. It will last only until a hearing, or a final order is issued, or until some other specified event occurs. An example of a temporary order is a temporary custody order, which will specify which parent has custody of the children pending a final custody determination. A temporary support order is an order that provides for one of the parties to a divorce to pay support to the other party either for that party or for the children or both. A temporary restraining order might be issued to prevent one of the parties to a divorce from disposing of property. The key thing with any temporary order or interim order is that the order is not permanent.
Community Property. In community property states, property that is acquired by the husband and wife during their marriage belongs to both. Property that was owned by either spouse prior to the marriage is their separate property. However, if separate property becomes commingled with community property it can become community property. For example, where husband and wife combine bank accounts when they get married the amount each had in the accounts before they were married will cease to be separate property. A spouse can acquire separate property during their marriage if the property is given to that spouse as a gift or inheritance.
Equitable Distribution. Many states require the equitable distribution of property acquired during the marriage. This means that property and debts should be divided fairly, not equally. Several factors may be used to determine what is fair including the length of the marriage and earning capacity of the parties.
Spousal Support. This is sometimes called Alimony or Separate Maintenance Payments. If the court determines that one spouse has a legal obligation to provide for the support of the other spouse, it can order that alimony be paid to the spouse to whom support is owed.
Child Support. Parents have a legal obligation to support their children. In a divorce, the non-custodial parent will be ordered to pay child support to the custodial parent. If there is joint custody, the parent who has primary physical custody will receive child support from the other parent. Each state has child support guidelines that are used to determine the amount of child support.
Custody. When used in the context of child custody, this refers to the person who will have responsibility for the child. Sometimes a court will award sole custody to one of the parents. Many courts now award Joint Custody to both parents. Sometimes joint custody refers to the fact that both parents continue to have an equal say in the upbringing of the child, even though one parent is awarded primary physical custody. When a parent has primary physical custody the child will live with that parent and have visitation with the other parent. Sometimes joint custody refers not only to the fact that both parents continue to have an equal say in the upbringing of the child, but also to the fact that the child is to spend roughly equal periods of time in each parents' household.
Decrease Legal Fees by Telling the Truth
Attorney fees are a major issue in divorce court. Divorce lawyers in Albuquerque charge between $150 to $375 hourly, so their fees can grow very quickly and become very large.
Given that the single most common problem divorcing spouses face is not having enough money, if they're not careful, they'll find that their lawyers may make that problem worse, not better.
For example, if divorcing parents aren't able to talk to each other respectfully and sensibly about when, where and how they will share their children, they will have to pay their attorneys to talk for them. They can find themselves with combined legal fees of $500 or more just to arrange one weekend visit.
Similarly, divorcing spouses who aren't absolutely honest with one another can find themselves with enormous legal fees because their lawyers will have to spend time questioning and investigating everything the other side says. That can be very expensive.
In divorce cases, the court can order one side to pay all or part of the other side's lawyer fees. This is routinely done in cases where one party has to go to court to get the other party to do what they're supposed to do such as pay support or make the children available for visitation.
Attorney fees are also awarded in cases where neither side did anything wrong but one party has a greater income than the other, or one side knows more about their community property and its worth. The goal is to balance the power.
In Albuquerque, it is fairly common for judges to have the parties pay their combined attorney fees in proportion to their incomes. For instance, if one side's annual income is $50,000 while the other side's is $25,000, the first side would pay 2/3rds of both lawyers' fees, while the other would pay 1/3 of both fees. Proportional payment generally happens if both sides are reasonable or if both are equally unreasonable.
If one side offers to settle the case but the other side refuses to agree and then "loses" in court, judges often order the one who unreasonably refused to settle to pay the reasonable side's attorney fees.
Of course, in the American legal system, each side has a right to demand a full trial about attorney fees. The rules of law say there must be evidence that the fees were reasonable in amount and for work that was necessary to be done. The judge also needs to consider evidence about:
-the complexity of the case
-the successfulness of the outcome
-the lawyer's reputation among her peers
-the ability of each party to pay
and other factors. People who insist on a full trial on attorney fees need to know they will incur still more attorney fees to argue about attorney fees. That can include fees to other lawyers who serve as expert witnesses for the original lawyers. Many trials cost the parties $14,000 in legal fees and expert witness fees to argue about $5,000 of attorney fees.
The lesson is that lawyer fees don't need to become enormous in divorce cases if the divorcing spouses are honest and reasonable. But, if one or both of them loses their good sense, the lawyers fees can be staggering.
Given that the single most common problem divorcing spouses face is not having enough money, if they're not careful, they'll find that their lawyers may make that problem worse, not better.
For example, if divorcing parents aren't able to talk to each other respectfully and sensibly about when, where and how they will share their children, they will have to pay their attorneys to talk for them. They can find themselves with combined legal fees of $500 or more just to arrange one weekend visit.
Similarly, divorcing spouses who aren't absolutely honest with one another can find themselves with enormous legal fees because their lawyers will have to spend time questioning and investigating everything the other side says. That can be very expensive.
In divorce cases, the court can order one side to pay all or part of the other side's lawyer fees. This is routinely done in cases where one party has to go to court to get the other party to do what they're supposed to do such as pay support or make the children available for visitation.
Attorney fees are also awarded in cases where neither side did anything wrong but one party has a greater income than the other, or one side knows more about their community property and its worth. The goal is to balance the power.
In Albuquerque, it is fairly common for judges to have the parties pay their combined attorney fees in proportion to their incomes. For instance, if one side's annual income is $50,000 while the other side's is $25,000, the first side would pay 2/3rds of both lawyers' fees, while the other would pay 1/3 of both fees. Proportional payment generally happens if both sides are reasonable or if both are equally unreasonable.
If one side offers to settle the case but the other side refuses to agree and then "loses" in court, judges often order the one who unreasonably refused to settle to pay the reasonable side's attorney fees.
Of course, in the American legal system, each side has a right to demand a full trial about attorney fees. The rules of law say there must be evidence that the fees were reasonable in amount and for work that was necessary to be done. The judge also needs to consider evidence about:
-the complexity of the case
-the successfulness of the outcome
-the lawyer's reputation among her peers
-the ability of each party to pay
and other factors. People who insist on a full trial on attorney fees need to know they will incur still more attorney fees to argue about attorney fees. That can include fees to other lawyers who serve as expert witnesses for the original lawyers. Many trials cost the parties $14,000 in legal fees and expert witness fees to argue about $5,000 of attorney fees.
The lesson is that lawyer fees don't need to become enormous in divorce cases if the divorcing spouses are honest and reasonable. But, if one or both of them loses their good sense, the lawyers fees can be staggering.
What Exactly is Alimony
When you go through a divorce, not only do you have to make decisions about how to divide assets, who will maintain primary custody of the kids, and how child support will be arranged, but in some cases, you may have to provide alimony to your spouse. Alimony is also known as spousal support and is in place to provide income for the spouse that does not have the capability or capacity to earn as much money as the other spouse. Alimony is not the same as child support and there are no specific ways to calculate alimony in any state.
Often times, the amount of money a spouse may be entitled to is based on their ability to provide an income that would maintain the same standard of living they were accustomed to when they were married. While often times it is not possible for both spouses to maintain the standard of living they shared when they were married, alimony is in place to try to accomplish this.
Alimony is also determined based on the amount of time you and your spouse were married. If the marriage dissolved after a short period of time, alimony is often not even considered. Whereas, if the marriage lasted many years and one spouse was the primary financial provider, alimony will most often be awarded.
Alimony also has tax consequences. While child support is not tax-deductible by the giver or receiver, alimony is tax deductible to the payer and must be included as part of the taxable income of the payee. Also, alimony may be in place for a certain time, after which time, you are not required to provide your ex-spouse with financial support. Other times, alimony is indefinite or is terminated upon death.
It is a good idea to discuss alimony and the laws regarding alimony in your state with an experienced divorce attorney. Your attorney should be able to help you know what to expect as your divorce is finalized and help you understand what options you have available to you that are in the best interest of you and your child.
Often times, the amount of money a spouse may be entitled to is based on their ability to provide an income that would maintain the same standard of living they were accustomed to when they were married. While often times it is not possible for both spouses to maintain the standard of living they shared when they were married, alimony is in place to try to accomplish this.
Alimony is also determined based on the amount of time you and your spouse were married. If the marriage dissolved after a short period of time, alimony is often not even considered. Whereas, if the marriage lasted many years and one spouse was the primary financial provider, alimony will most often be awarded.
Alimony also has tax consequences. While child support is not tax-deductible by the giver or receiver, alimony is tax deductible to the payer and must be included as part of the taxable income of the payee. Also, alimony may be in place for a certain time, after which time, you are not required to provide your ex-spouse with financial support. Other times, alimony is indefinite or is terminated upon death.
It is a good idea to discuss alimony and the laws regarding alimony in your state with an experienced divorce attorney. Your attorney should be able to help you know what to expect as your divorce is finalized and help you understand what options you have available to you that are in the best interest of you and your child.
What Happens in a Divorce?
The necessary steps in obtaining a divorce will depend on the particular situation of the parties getting the divorce. A divorce where the parties have been married for a relatively short period of time, have no children, and little property or debts should be less involved than a divorce where the parties have been married for a long period of time, where there are minor children, or where there is significant property or debt to divide. The divorce process should be simpler in cases where both parties want and agree to the divorce. If one party is blind-sided by receiving divorce papers they might respond by doing whatever they can to prolong the process. Finally, the more the parties can agree on between themselves the smoother and quicker their divorce. If the couple is bogged down in fighting and disagreements over anything and everything, the process will be slower.
Filing a petition.
The first step in the divorce process is filing a petition. Even where both spouses agree that they want to get divorced, one of them will have to be the one to file a petition with the court asking for the divorce. The petition will state the grounds for the divorce. The grounds for divorce vary depending on the jurisdiction. All jurisdictions allow for some type of no-fault grounds such as "irreconcilable differences", but only a few states still consider fault grounds for divorce, such as adultery or abandonment. Your lawyer can tell you whether fault grounds are available in your state, and if so, whether or not it makes sense to file for divorce on fault grounds.
Temporary Orders.
If one spouse depends on the other for financial support or will have custody of the children, that spouse needs to ask the court for temporary orders for support and custody. For example, if a stay at home mom files for divorce, she will need financial support from her husband to continue paying the household bills. She will also need a temporary custody order and a temporary child support order for the kids. A temporary order is usually granted within a few days and will remain in effect until a full court hearing. If the party seeking the temporary order is the same party who files the petition, they should file them at the same time. If the party seeking the temporary order did not file the petition, they should file their request for the temporary order as soon as possible.
Service of Process.
The party who files for divorce also needs to file proof of service of process. This is a document that shows that a copy of the divorce petition was given to the other party. Service of process can be either very dignified or very undignified or anywhere in between. If the parties mutually agree on the divorce, it is best for the party who files the complaint to arrange for service of process to the other party's attorney. Having a process server visit one's spouse at his or her place of employment to serve papers falls into the undignified category.
Response.
The party who receives service of process will then need to file a response to the petition. If a divorce was sought on fault grounds and the responding party wants to dispute those grounds, he or she will need to address it in the response. The responding party may choose to dispute the facts that are alleged to be the grounds for divorce or he or she may choose to assert a defense to the grounds. If there is disagreement as to property division, support, custody, or any other issue, this should be set out in the response.
Negotiation.
If the parties don't agree on all the issues, they will need to try to negotiate their differences. The court may schedule settlement conferences that attempt to move the parties toward a final resolution of the issues. If the parties disagree on child custody and visitation, the court may also order mediation, evaluation of the children and parents by a social worker or other court employee and that a lawyer or guardian ad litem be appointed to represent the children. Other issues that may need to be negotiated are the property division and any spousal support.
Trial.
Any issues the parties absolutely cannot resolve between themselves will have to be decided at a trial. However, going to trial will take longer, cost more money, and have less predictable results so it is probably best to avoid going to trial if possible.
Order of Dissolution.
The order of dissolution ends the marriage and spells out how the property and debts are to be divided, custody, support and any other issues. When the parties negotiate their own resolution to all of the issues, they will draft the order of dissolution and submit it to the court. If the order of dissolution complies with legal requirements and both parties entered into it knowingly and willingly, then the judge will approve it. Otherwise the court will issue an Order of Dissolution at the end of the trial.
Filing a petition.
The first step in the divorce process is filing a petition. Even where both spouses agree that they want to get divorced, one of them will have to be the one to file a petition with the court asking for the divorce. The petition will state the grounds for the divorce. The grounds for divorce vary depending on the jurisdiction. All jurisdictions allow for some type of no-fault grounds such as "irreconcilable differences", but only a few states still consider fault grounds for divorce, such as adultery or abandonment. Your lawyer can tell you whether fault grounds are available in your state, and if so, whether or not it makes sense to file for divorce on fault grounds.
Temporary Orders.
If one spouse depends on the other for financial support or will have custody of the children, that spouse needs to ask the court for temporary orders for support and custody. For example, if a stay at home mom files for divorce, she will need financial support from her husband to continue paying the household bills. She will also need a temporary custody order and a temporary child support order for the kids. A temporary order is usually granted within a few days and will remain in effect until a full court hearing. If the party seeking the temporary order is the same party who files the petition, they should file them at the same time. If the party seeking the temporary order did not file the petition, they should file their request for the temporary order as soon as possible.
Service of Process.
The party who files for divorce also needs to file proof of service of process. This is a document that shows that a copy of the divorce petition was given to the other party. Service of process can be either very dignified or very undignified or anywhere in between. If the parties mutually agree on the divorce, it is best for the party who files the complaint to arrange for service of process to the other party's attorney. Having a process server visit one's spouse at his or her place of employment to serve papers falls into the undignified category.
Response.
The party who receives service of process will then need to file a response to the petition. If a divorce was sought on fault grounds and the responding party wants to dispute those grounds, he or she will need to address it in the response. The responding party may choose to dispute the facts that are alleged to be the grounds for divorce or he or she may choose to assert a defense to the grounds. If there is disagreement as to property division, support, custody, or any other issue, this should be set out in the response.
Negotiation.
If the parties don't agree on all the issues, they will need to try to negotiate their differences. The court may schedule settlement conferences that attempt to move the parties toward a final resolution of the issues. If the parties disagree on child custody and visitation, the court may also order mediation, evaluation of the children and parents by a social worker or other court employee and that a lawyer or guardian ad litem be appointed to represent the children. Other issues that may need to be negotiated are the property division and any spousal support.
Trial.
Any issues the parties absolutely cannot resolve between themselves will have to be decided at a trial. However, going to trial will take longer, cost more money, and have less predictable results so it is probably best to avoid going to trial if possible.
Order of Dissolution.
The order of dissolution ends the marriage and spells out how the property and debts are to be divided, custody, support and any other issues. When the parties negotiate their own resolution to all of the issues, they will draft the order of dissolution and submit it to the court. If the order of dissolution complies with legal requirements and both parties entered into it knowingly and willingly, then the judge will approve it. Otherwise the court will issue an Order of Dissolution at the end of the trial.
Rights of Visitation for Fathers
Visitation rights are a myth. Neither parent is inherently entitled to visitation rights when going through a divorce. You only have visitation rights when they have been established by the court or determined in a parenting plan that is created by both parents and acknowledged in court.
In your divorce proceedings, it is important to be aware that visitation and custody are two separate matters. Legal custody grants you the ability to direct how your child is raised. This includes things such as the religion, education and healthcare of your child. Physical custody allows your child to live with you. Visitation, on the other hand, tends to define how your time with your kids is spent. A qualified divorce attorney with experience handling custody and visitation issues should be able to more thoroughly explain the differences between custody and visitation and advise you on your best course of action.
For example, if you are awarded full custody of your children, your wife may seek visitation rights. Or if you are granted primary custodial rights while the divorce is pending, your wife may also seek visitation rights. This is something you should talk about with your attorney and something that should be dictated by your wife’s ability and capability to care for your children while they are with her. If your wife has drug or alcohol addiction problems, you should make sure that visits are supervised. Likewise, if there is a history of physical, mental or sexual abuse, visitation should be closely monitored. There may even be a specific location that your wife must be in to visit with your children. In this way, the way your wife spends her time with your children is defined. This offers a number of protections to your children if your wife is unfit to watch them on her own.
When visitation rights are granted to your spouse, be sure that you have the terms of that visitation in writing. People and circumstances change over time and it is a good idea to have all of the details concerning visitation (who, when, where, or possible restrictions) in writing to avoid potential conflict in the future.
If visitation rights are established, it is important that you encourage your wife to arrive promptly for each visit and never miss a visit. Missed visits with a parent can be extremely harmful to your child. If the mother of your children consistently misses scheduled visitations, be sure to document each missed visit and talk to your attorney about what can be done to protect your child.
In your divorce proceedings, it is important to be aware that visitation and custody are two separate matters. Legal custody grants you the ability to direct how your child is raised. This includes things such as the religion, education and healthcare of your child. Physical custody allows your child to live with you. Visitation, on the other hand, tends to define how your time with your kids is spent. A qualified divorce attorney with experience handling custody and visitation issues should be able to more thoroughly explain the differences between custody and visitation and advise you on your best course of action.
For example, if you are awarded full custody of your children, your wife may seek visitation rights. Or if you are granted primary custodial rights while the divorce is pending, your wife may also seek visitation rights. This is something you should talk about with your attorney and something that should be dictated by your wife’s ability and capability to care for your children while they are with her. If your wife has drug or alcohol addiction problems, you should make sure that visits are supervised. Likewise, if there is a history of physical, mental or sexual abuse, visitation should be closely monitored. There may even be a specific location that your wife must be in to visit with your children. In this way, the way your wife spends her time with your children is defined. This offers a number of protections to your children if your wife is unfit to watch them on her own.
When visitation rights are granted to your spouse, be sure that you have the terms of that visitation in writing. People and circumstances change over time and it is a good idea to have all of the details concerning visitation (who, when, where, or possible restrictions) in writing to avoid potential conflict in the future.
If visitation rights are established, it is important that you encourage your wife to arrive promptly for each visit and never miss a visit. Missed visits with a parent can be extremely harmful to your child. If the mother of your children consistently misses scheduled visitations, be sure to document each missed visit and talk to your attorney about what can be done to protect your child.
The Chameleon Effect
Sharp-tongued parents turn child into chameleon
Chameleon kids are an all too frequent product of divorce. These are children who behave, think and feel one way at dad's house and an altogether different way at mom's house.
Chameleon kids often tell each of their parents different stories to keep them both happy. Telling each parent, "I want to live with you." is a common example. Complaining about or criticizing one parent to the other parent is another.
Chameleon kids go far beyond that, however. Sometimes they change the way they dress, their interests, and virtually all aspects of their lives as they go back and forth between their parents' homes.
In one case a teenage girl rode horses at her mom's house and talked about rodeos. At dad's house, she wore preppie clothes and talked about school proms.
The most extreme case in recent history involved a young girl whose parents called her by different first names. At mom's house, she took ballet lessons. At dad's house, she was an outdoor-loving youngster who went camping and hiking. At mom's house, she behaved like a very little girl, often sitting in her mother's lap like a two-year-old. At dad's house, she was assertive and self-reliant.
Everyone needs to learn how to adapt to different situations. It is essential to know that behavior should be different at church than at a football game. But children who exhibit complete changes of behavior and interests from one parent's home to the other's are in trouble. They become over-adaptive. They are extremely vulnerable to peer pressure because their primary fears are rejection and abandonment. If they happen to be in the company of thugs, they act as thugs act. If they associate with a cult, they become true believers. If their peers use drugs or alcohol or join gangs, so will they. They do not develop a sense of self or an internal set of values.
Divorced parents need to pay special attention to the hopes and expectations they convey to their children. Warning signs from a chameleon-child-in-the-making include talking negatively about one parent to the other or agreeing with a parent who is criticizing the other parent. A child mimicking a parent's behavior or interests could be another warning sign.
The best remedy for chameleon behavior is for parents to stop their fight. Parents who stop talking negatively about each other and who interact courteously give children the message that it is acceptable for people to be different and that people can disagree without absolutely rejecting one another.
Parents need to give their children permission to be individuals. Divorced parents need to love their children more than they hate each other in order to prevent the chameleon effect.
Chameleon kids are an all too frequent product of divorce. These are children who behave, think and feel one way at dad's house and an altogether different way at mom's house.
Chameleon kids often tell each of their parents different stories to keep them both happy. Telling each parent, "I want to live with you." is a common example. Complaining about or criticizing one parent to the other parent is another.
Chameleon kids go far beyond that, however. Sometimes they change the way they dress, their interests, and virtually all aspects of their lives as they go back and forth between their parents' homes.
In one case a teenage girl rode horses at her mom's house and talked about rodeos. At dad's house, she wore preppie clothes and talked about school proms.
The most extreme case in recent history involved a young girl whose parents called her by different first names. At mom's house, she took ballet lessons. At dad's house, she was an outdoor-loving youngster who went camping and hiking. At mom's house, she behaved like a very little girl, often sitting in her mother's lap like a two-year-old. At dad's house, she was assertive and self-reliant.
Everyone needs to learn how to adapt to different situations. It is essential to know that behavior should be different at church than at a football game. But children who exhibit complete changes of behavior and interests from one parent's home to the other's are in trouble. They become over-adaptive. They are extremely vulnerable to peer pressure because their primary fears are rejection and abandonment. If they happen to be in the company of thugs, they act as thugs act. If they associate with a cult, they become true believers. If their peers use drugs or alcohol or join gangs, so will they. They do not develop a sense of self or an internal set of values.
Divorced parents need to pay special attention to the hopes and expectations they convey to their children. Warning signs from a chameleon-child-in-the-making include talking negatively about one parent to the other or agreeing with a parent who is criticizing the other parent. A child mimicking a parent's behavior or interests could be another warning sign.
The best remedy for chameleon behavior is for parents to stop their fight. Parents who stop talking negatively about each other and who interact courteously give children the message that it is acceptable for people to be different and that people can disagree without absolutely rejecting one another.
Parents need to give their children permission to be individuals. Divorced parents need to love their children more than they hate each other in order to prevent the chameleon effect.
How to Determine Child Support
In order to establish consistency and predictability in the amount of child support awards, the federal government mandates child support guidelines to be used by the states. The particular guidelines are different in each state. Please visit our free child support calculators.
Income
Most of the guidelines take into consideration the income of both parents. The percentage of the couple's combined income that each parent contributes helps determine the amount they will be obligated to pay in child support. Some states will base their formula on gross income, while others will use net income.
Deductions
If a parent is already paying child support or alimony from a previous situation, they will generally be allowed to deduct that amount from their income. Typically, there are two requirements to qualify for this deduction: the support payments must be court-ordered (not voluntary) and the parent must actually be making the payments. A parent is not allowed to make deductions from his or her income for the support of a subsequent spouse or children.
Childcare expense
States will usually also take into consideration the amount that the parents must spend on childcare in order to work or look for work. Some states will adjust the amount allowed for this expense to account for the federal dependant care exemption on federal income taxes. In states that provide a dependent care exemption on state income taxes, the expense may be adjusted to reflect this as well.
Healthcare expense
The child support order needs to spell out who will pay for the children's health insurance. The amount spent on health insurance is added to the basic child support order and then credited to the parent who pays it. Many states' guidelines call for a certain amount of additional support to cover out of pocket health care expenses that may be incurred. Extraordinary medical expenses will be taken into consideration as well.
Other expenses
The basic support order may also be increased to account for other unusual expenses such as special educational needs of gifted or handicapped children. The cost of visitation expenses, such as travel for the parent or child, are usually divided between the parents in proportion to their incomes. The non-custodial parent would then receive a credit for the amount of this expense that belongs to the custodial parent.
Shared Custody and Visitation
Many of the guidelines try to account for the amount of time that the children spend with each parent in determining the amount of the child support award. The more time that the children spend with the non-custodial parent, the more expenses that parent incurs to support he children. In situations where there is shared custody or extensive visitation, the amount of child support awarded will probably be less than in situations where there is sole custody and little visitation.
In a case to determine the amount of child support that should be awarded, there is a presumption that the child support guidelines provide the correct amount. However, it is possible to obtain an award that is higher or lower than the amount determined by the guidelines. This will require a judicial determination of extenuating factors that require a deviation from the guidelines.
Income
Most of the guidelines take into consideration the income of both parents. The percentage of the couple's combined income that each parent contributes helps determine the amount they will be obligated to pay in child support. Some states will base their formula on gross income, while others will use net income.
Deductions
If a parent is already paying child support or alimony from a previous situation, they will generally be allowed to deduct that amount from their income. Typically, there are two requirements to qualify for this deduction: the support payments must be court-ordered (not voluntary) and the parent must actually be making the payments. A parent is not allowed to make deductions from his or her income for the support of a subsequent spouse or children.
Childcare expense
States will usually also take into consideration the amount that the parents must spend on childcare in order to work or look for work. Some states will adjust the amount allowed for this expense to account for the federal dependant care exemption on federal income taxes. In states that provide a dependent care exemption on state income taxes, the expense may be adjusted to reflect this as well.
Healthcare expense
The child support order needs to spell out who will pay for the children's health insurance. The amount spent on health insurance is added to the basic child support order and then credited to the parent who pays it. Many states' guidelines call for a certain amount of additional support to cover out of pocket health care expenses that may be incurred. Extraordinary medical expenses will be taken into consideration as well.
Other expenses
The basic support order may also be increased to account for other unusual expenses such as special educational needs of gifted or handicapped children. The cost of visitation expenses, such as travel for the parent or child, are usually divided between the parents in proportion to their incomes. The non-custodial parent would then receive a credit for the amount of this expense that belongs to the custodial parent.
Shared Custody and Visitation
Many of the guidelines try to account for the amount of time that the children spend with each parent in determining the amount of the child support award. The more time that the children spend with the non-custodial parent, the more expenses that parent incurs to support he children. In situations where there is shared custody or extensive visitation, the amount of child support awarded will probably be less than in situations where there is sole custody and little visitation.
In a case to determine the amount of child support that should be awarded, there is a presumption that the child support guidelines provide the correct amount. However, it is possible to obtain an award that is higher or lower than the amount determined by the guidelines. This will require a judicial determination of extenuating factors that require a deviation from the guidelines.
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