Divorce Law Basics

General Divorce Law Basic Information

What is Family or Domestic Relations Law ?

Family or Domestic Relations Law encompasses a broad range of legal topics involving family, marriage and children. The major legal topics associated with family law include adoption and guardianship, child custody and visitation rights, child support and alimony, divorce or annulment, state child protection laws, domestic violence among other familial topics.

Child Custody Basics - What is child custody?

The term “child custody” refers to both the legal and also hands-on day-to-day relationship between a parent and his or her minor child. This includes the parent's right to raise, care for, and make major decisions on behalf of the child. Child custody entails the rights and the obligations in caring for the welfare of a minor child.

There are different types of child custody such as legal custody, physical custody, joint custody or sole custody.  Legal custody of a child gives a parent the right and the obligation to make decisions on behalf of the way a child is raised . A parent with legal custody is permitted to make important long-term decisions about the child's religion, education and medical care, among other critical decisions. Physical custody references where your child physically lives. The parent with whom the child primarily or solely lives is called the "custodial parent". Typically there are rights of visitation allowed for the non-custodial parent. Joint custody is for parents that do not live together and share the decision-making responsibilities and physical control of the child. Under joint custody there can be shared legal custody or shared physical custody or both.  Sole custody is for when one parent has either sole legal custody or sole physical custody of the child. Most courts reluctant to grant one parent sole custody unless the other parent is deemed unfit. Generally most courts strive to allow for participation by both parents in the life of the child.

How Do I Get Custody of My Children?

Child custody is determined by a an agreement between the parties or by an order of the court. A child custody agreement should outline the scope of the parenting roles inclusive of physical and legal custody with a visitation schedule for the non-custodial parent. If the parties cannot agree then the court will make its own determination and impose a legally binding resolution on the parties. A court will have a contested custody hearing and issue a final order that resolves issues of custody after hearing from all parties and any relevant witnesses. The determination of custody in a contested custody hearing varies from state to state but generally is an assessment of "what is in the best interests of the child".

A determination of what is in the best interests of the child may consider a multitude of factors such as the age of the child, the preferences of the parents, the wishes of the child, the level of attachment of the child with the neighborhood, the quality of the relationship and the involvement of each parent in the life of the child, the ability of each parent to provide a stable and healthy home life, the financial resources of each parent, the actual living conditions and planned bedroom arrangements for the child, any evidence of domestic violence or child abuse, any false allegations of abuse or neglect, the physical and mental health of each parent,as well as the parents ability to provide for the children's physical needs and emotional well being for the child. There is no simple formula to guide a judges decision in determining the custody arrangement of child.

How To Win A Child Custody Dispute

The process for getting custody of a child will entail persuading the court what is in the best interests of the child. Typically, a “guardian ad litem” will be appointed by the court to investigate what solutions would be in the “best interests of a child.” A guardian ad litem represents the interests of the child and is appointed to act as a fiduciary of the child in a child custody dispute. The guardian ad litem will attempt to investigate the facts, make recommendations to the court, follow-up on that orders of the court are being properly executed, report when the needs of the child are not being met and in general to promote the best interest of the child.

A parent will need to convince the court that they are the more suitable parent based on what is in the best interest of the child. Each parent will have an opportunity to share any relevant documentation that may include notes and observations that memorialize the behavior of the other parent. Any third party witness, such as other family members, teachers or therapists may offer relevant testimony to provide a true picture to the court on the parental relationships with the child. It is important a parent communicate with the court and also with the other parent in such a manner that is both dignified and respectful. The court will take into account, attitude, demeanor, general court room etiquette which also may include whether a person is properly dressed for a court appearance.

How To Modify Child Custody or Change A Parenting Plan and Schedule

The procedure for modifying a child custody order or to modify a parenting plan and schedule is to petition the court with a filing for modification. The procedures for modifying a previous court order (or a parental plan and schedule) will vary from state to state but generally if the parties cannot agree to the modification then a person must petition the court to request for modification of the current arrangement. A basis for a court to modify an existing child custody order will usually entail some change in circumstance that offer new reasons for the court to reevaluate the previous court order. Generally, judges refrain from modifying a previous court order so as to provide a measure of stability to a child, but there are circumstances when modification of an existing order is necessary. A change in the behavior of a child or parent may provide an opportunity for a court to reevaluate the original court order; problems related to executing visitation rights; a decision by one or both parents to relocate or remarry; new employment situations; changed work schedules; or family situations have changed; may constitute valid reasons for a court to modify a previous arrangement.

What is Child Support?

Child support is court-ordered payments made by one parent to the other for the purpose of financial support of a child or children. The purpose of child support is to protect a child from the economic impact following the end of a marriage or other relationship. The implementation of "Child Support Enforcement Act" under the Social Services Amendments of 1974 requires all states to establish a child support collection agency to make sure that a child is cared for and shares in the same standard of living enjoyed by both parents and to provide continuity of a standard of living enjoyed by the child or children that existed prior to the dissolution of the relationship.

How is Child Support Calculated ?

The formula to calculate child support payments to provide for the welfare of a child or children vary from state to state. A majority of states calculate child support by combining both parents' incomes, and then setting aside a fixed percentage of the total amount of money for the needs of the child. Any calculation by a court can be altered by taking into account a variety of factors such as special needs of the child, the income and ability of the non-custodial parent to pay, the specific needs of the custodial parent, and also a consideration of the standard of living of the child before the dissolution of the relationship.

The court typically calculates child support payments that allow for payments that cover more than the basic necessities of life of food, shelter and medical care for the child. A court may consider other life expenses that can improve the quality of life of the child, such as the costs for private schooling or to allow for child participation in extra-curricular sports or activities. The non-custodial parent is not required to provide an accounting to the custodial parent or the court as to how the child support payments are used, so unless there is obvious child neglect, the non-custodial parent has no ability to determine whether the payments are actually used for the benefit of the child.

How can I get my child support reduced ?

A change in circumstance may allow a non-custodial parent to get a temporary or permanent reduction of child support obligations. A petition filed with the court modify a previous support order when the non custodial parent incurs the a loss of a job, a significant reduction in earnings, or a change in the custody arrangement. It is important to provide evidence to the court of a change in financial circumstances with documentary evidence such as pay-stubs or other evidence of income. There is no willingness on the part of the court to retroactively modify any previous child support payments that may have been made prior to the date of filing, so it is important to file a modification request as soon as circumstances change.

What Happens If I Fail to Pay Child Support

Failure to make child support payments in accordance with the child support court order can lead to severe consequences. A failure to make timely payments will result in court attempts to compel payment from the non-custodial parent and/or also may result in a finding of contempt of court or even jail time. A court can issue criminal or civil warrants for arrest, issue liens on properties owned for any past child support payments due; seize bank accounts, garnish wages, issue fines, deny tax refunds, exclude from receipt of government benefits, and even request for the suspension of state issued professional or other licenses. The failure to make child support payments will also negatively impact a person's credit score. A court may allow a noncustodial parent to catch up on payments due by making smaller payments on past due amounts that are in arrears. It is never a good idea to ignore a court order or fail to appear at a child support hearing.


What Is a Divorce?

A divorce or dissolution is the legal termination of the marriage relationship. The divorce process involves the division of property and the determination of child custody rights and obligations. In a divorce proceeding terms of alimony or spousal support, as well as child support obligations are agreed upon by the parties or otherwise determined in accordance with a court order.

The division of property in a divorce proceeding depends upon whether the state follow a rule of "equitable distribution" or whether the state is a "community property" state. Typically, property acquired by either spouse during the marriage is considered "marital property" and is subject to equitable division. The majority of the states follow equitable distribution laws in which property acquired during the marriage belongs to the spouse who earned it and in the case of divorce, the property is to be divided between the spouses in a fair and equitable manner. Property acquired before the date of the marriage is not considered joint property and the party may retain such property after the dissolution of the marriage. In contrast, community property states classify any income, assets and property as belonging to both spouses regardless of who earned the income. Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin follow the rule that all assets acquired during the marriage are considered "community property." Any property received as a gift or inheritance even during the course of the marriage is considered separate property in a community property state.

What Questions To Ask A Divorce Lawyer in a Divorce Proceeding ?

There are many questions to ask a divorce lawyer before hiring an attorney to represent a person in a divorce proceeding. The costs of divorce (including attorney fee structure), the process for filing divorce, the division of marital assets, and issues of child and alimony support are all important topics to be discussed. Generally, an attorney will bill a client based on an hourly basis or a fixed fee. A contentious divorce proceeding can take a very long time and it is important for a person to prepare for the financial consequences of a time consuming divorce proceeding. The attorney should also explain to the client the state procedures for filing for a divorce and an estimated timeline for resolution of the divorce. Splitting marital assets, child custody and spousal support all generally follow state rules and the attorney should should explain procedure and likely outcome to his or her client.

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