Archive for January, 2006

Exploring Joint or Shared Physical Custody

Tuesday, January 31st, 2006

Physical custody is simply defined as the parent with whom the children will reside with. If a custody order is structured with a shared or joint physical custody arrangement, this means that the children will actually reside with both parents for a period of time that far out ways the typical overnight visitation schedule (50-50 or 60-40 etc.). This type of custody arrangement is not the norm, but more and more parents are exploring as an option, especially if they intend to live close to one another and within the same school district.

The courts are only willing to award a custody arrangement like this if it seems as though the parents can work together and it is deemed to be in the best interest of the children. You can only imagine how a shared or joint physical custody arrangement could be difficult on the children. The courts like to see a schedule in which the children live with each parent for a significant block of time. This way a routine will remain in tact for the children.

Before introducing this type of arrangement to your spouse or the courts, be sure to examine whether or not it is truly feasible. Also, do not get joint physical custody confused with joint legal custody which is a more common type of joint custody that is awarded.

Dividing a Business Upon Divorce

Monday, January 30th, 2006

Any portion of a business that is owned by a spouse for any period of time during a marriage is typically considered marital property under equitable distribution laws.

The portion of the business that a spouse is typically entitled to is as follows:

One half of your husband’s interest that increased during the marriage.

For example:

The day you got married the business was valued at $200,000.00 making your husband’s interest worth $100,000.00 (since he is a 50% partner).

At the separation date the business can be appraised at being worth $500,000.00, making your husbands interest worth $250,000.00.

You would be entitled to 50% of the increased portion ($150,000.00), which would be $75,000.00.

The state that you are divorcing in would apply the appropriate distribution laws. This above example pertains to an “Equitable Distribution” state, which means that the property is dividing in a fair and equitable fashion.

Here is an example of the typical factors considered by an equitable distribution state. Please keep in mind that these factors will vary from state to state.

The court may divide all of the spouse’s property, including any gifts and inheritances, based on the following factors:

(1) the contribution of each spouse to the acquisition, preservation, or appreciation in value of the property, including the contribution of each spouse as homemaker;

(2) the length of the marriage;

(3) the age and health of the spouses;

(4) the occupation of the spouses;

(5) the amount and sources of income of the spouses;

(6) the vocational skills of the spouses;

(7) the employability of the spouses;

(8) the liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income;

(9) the conduct of the parties during the marriage (if the grounds for divorce are fault-based); and

(10) any health insurance coverage.

Fault is not a factor if the grounds for the divorce are irretrievable breakdown of the marriage filed in conjunction with a separation/settlement agreement.

Appealing Your Divorce Settlement

Thursday, January 26th, 2006

It is not uncommon for one spouse to appeal a divorce settlement, but it is uncommon for a spouse to actually win or be granted the terms requested in the appeal.

Issues like child support and alimony are often amendable post divorce, but the actual division of the marital assets is typically not. There are certain circumstances that will potentially enable you to have the current decree thrown out and these circumstances are, but not limited to, signing under duress, blackmail, intoxicated at the time of signing, under the influence of mood altering mediations, etc. The bottom line is, an appeal can not be filed on the basis that you now feel as though what you originally agreed to was simply unfair.

Hiring a lawyer to appeal your settlement is not a bad choice if you feel strongly that you have a legitimate case. It is the responsibility of the lawyer to do his or her best job to prove your case. If your lawyer knows that you do not have a legitimate case to begin with, he or she should advise you of such, thus eliminated the costly time and attorney fees. If you feel as though your attorney is taking advantage of you, probably knowing all along that the case would be dismissed, I would consider contacting your local Bar Association to speak with the ethics committee.

Child Relocation

Thursday, January 26th, 2006

The topic of child relocation is one that comes up rather often.

Most states they have limited the freedom the primary custodial parent has to just freely move with the child(ren) upon his or her own will. The strict rules that are set in place to prevent relocation without permission are done so to protect the rights of the non-custodial or secondary resident parent. One must keep in mind that the other parent did not divorce his or her child(ren).

That being said, the courts do realize that all situations are very unique and this is why certain factors are addresses when a request to relocate is made. It is the job of the requestor or the moving parent to prove to the judge court that it is in the best interest of the child that the move takes place.

You should also keep in mind that the farther the distance the more difficult it will be to have the judge grant permission, especially if the other parent has been even somewhat consistent with the visitation schedule.

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.

2. The extent to which visitation rights have been allowed and exercised.

3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.

4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.

5. Whether the cost of transportation is financially affordable by one or both parties.

6. Whether the move is in the best interests of the child.

Getting a Copy of Your Divorce Certificate

Wednesday, January 25th, 2006

Getting a divorce certificate is not difficult, but it does require patience.

Here is a break down of the process:

- Your divorce certificate can be retrieved from the County Court in which you were divorced. There is typically a record department within the family law or domestic relations division.

- If they do not have record of the divorce, there is a possibility that the divorce was pushed to a surrounding county court due to case overload at the time. (this means that you can also check surrounding counties)

- Please keep in mind, that most court houses charge a search fee if you do not know the case number. Your success will be much greater if you do know the case number and the turn around time will be much faster.

- Once the case is found, it takes about anywhere from 1 week to 4 weeks by mail or can be retrieved in person that same day.

To find out the exact turn around time and cost per copy, you can call the county court house. Also keep in mind, some counties charge more for a certified copy of your certificate and/or final divorce decree or judgment.

Serving Your Spouse Divorce Papers

Monday, January 23rd, 2006

Consider yourself served! A stranger walks through the door and hands you court documents in person bringing to your attention that you are being sued. This can happen at any time, at home, work, or even when your walking down the street.

Divorce papers are served in the same fashion typically by a sheriff or private process server. An official summons and petition or complaint for divorce or dissolution of marriage will be deliver in person, so the court has documented proof that the person being served has knowledge of the pending divorce case. Service through the mail is often an option as well, but all documents must be sent certified to the appropriate address.

Serving your spouse can often be avoided, if your spouse agrees to waive the requirement of service by filing an acknowledgment and/or waiver of acceptance. This is most common in an uncontested divorce since both parties are in full agreement. In a case like this, the act of serving the spouse would be an unnecessary court formality and costs that would delay the divorce process.

Evidence in a Divorce Case

Friday, January 20th, 2006

“Admissible evidence” may be a little redundant, since one of the definitions of evidence is “the documentary or oral statements and the material objects admissible as testimony in a court of law.” You see, “admissible” is part of the definition. For the most part, however, people tend to call all the material objects and testimony that is presented in a court of law, or that is collected by the police or investigators in connection with a trial or dispute, “evidence.” “Admissible evidence” simply means evidence that will be allowed into court.

There are numerous ways that evidence could be ruled inadmissible. For example, if you have watched any television shows dealing with the police, or detectives, or criminals, you are undoubtedly familiar with the Miranda warning, which begins “you have the right to remain silent.” This warning originated in a United States Supreme Court case, which said that unless someone is aware of his or her rights under the Constitution and the Bill of Rights, he cannot waive those rights. If evidence is received in contravention of the Miranda warning, for example, if a suspect is not read the warning at all, any evidence that the police may find as a result of the suspect’s questioning is inadmissible.

Can an Uncontested Divorce Be Filed Under Grounds of Adultery?

Wednesday, January 18th, 2006

A misconception many divorcing spouses have is that an uncontested divorce must be a no-fault divorce or filed under grounds similar irreconcilable differences.

The confusion begins with understanding the difference between an uncontested divorce and a no-fault divorce. An uncontested divorce is simply a divorce in which the two parties have resolved all issues to settle their divorce. There are no “contested” issues that need to be negotiated or settled by the court. Most divorces will eventually end up uncontested, because most divorces are settled out of court. The challenge lawyers and spouses face is how much time and negotiation it will take for the case to become uncontested.

Most spouses doing their own divorce typically have an uncontested situation from the start, so this being said it is only natural for the divorce to be filed under a no-fault or irreconcilable differences ground.

On the contrary, it is very possible that two spouses can agree in an uncontested fashion that infidelity did occur and that the grounds of adultery would be appropriate.

Do I Need a Divorce Lawyer if I am in The Military?

Monday, January 16th, 2006

Some divorces are simple, and theoretically a layperson (a non-lawyer) could fill out all the forms him- or herself. Usually a simple divorce is no-fault, with both parties residing in the state, and no child support or custody issues involved.

True, the law of your state probably will not require you to have a lawyer for a divorce. Some people, citing expense, consider going without a lawyer. Other parents believe that a lawyer only serves to escalate the ongoing hostilities that are present in such an emotional decision as a divorce. And some just prefer to handle such personal arrangements as a divorce themselves.

Lawyers, however, do a better job of handling these matters. They are familiar with the law and the rules of procedure. They may “know the judge,” that is, they are familiar with the judge and his rulings and know the best approach. They are also able to shield their client from his or her own anger in the proceedings. It is a rare person who can keep emotion out of an argument as basic as a divorce. Judges will see this anger and resentment, which will do the person representing him or herself no good. In this way, lawyers often serve to prevent the escalation of hostilities.

Friends and Family During Divorce

Friday, January 13th, 2006

There are four types of people you may rely on during this stressful period; family, friends, professionals, and support groups. Of those you should be able to depend on the most are your family. Unfortunately, family unity and nucleus are not always strong. There may be members who are considered black sheep. There may be jealousy and disharmony within your family. But of all the people you know, you should be able to trust your family.

I guarantee you’ll be under an immense amount of stress during this period. Some individuals express their frustration and stress by telling others. This can be a turn off to family and friends when all they hear from you is details of you, your spouse, and the attorneys’ actions. At first you’ll gain sympathy. After awhile it can push them away. Your family should be very supportive during this turbulent time. But after awhile, the stress can take its toll on them too.

One of the problems encountered is the wearing on your family with the problems you are faced during a divorce. When speaking of family this includes sisters, brothers, parents, grandparents, uncles, aunts, and sometimes offspring. Offspring only applies when they are adults. If you have a stepparent with a good relationship between you and them, then they are included.