family court - Divorce Solutionist

Although most states have some form of “no-fault” as grounds, there are still instances where a legal separation is the best route to go when heading towards divorce. “No-fault” means that the parties do not need a “reason” to divorce, they can just allege irreconcilable differences (or some variation of) and that suffices. This negates the need to rely on a separation in a legal way as the reason to divorce. However, there are still some instances where a separation is advantageous no matter what grounds exist.

Divorce Therapy and its Implications

Legal Separation vs. Separation

There is a difference between a legal (formal) separation and just the parties merely living separate and apart. A legal separation is a when you have a written agreement (in some states it must be filed in court) stating the terms of your separation. It usually includes provisions with respect to property division, spousal support and custody too.

A separation done legally does NOT end the marriage, it puts the world on notice that you are no longer identified as a married couple for financial, medical or other reasons.

When parties are just living apart with NO formal, written agreement there is no such notice and so the IRS, the Social Security Administration, and the like, will consider you married.

The Advantages of a Legal Separation

The main reason couples opt for separation in a legal way is take advantage of the financial benefits. They are the following:

The parties can still file jointly when filing taxes.
Any assets &/or debts that accumulate from the date of legal separation, will not be considered marital. This means each party will keep their assets and be responsible for their own debt.
Either party may be qualified for social security benefits by meeting the 10 year requirement. Certain military benefits can remain intact.
Health insurance benefits can continue for the parties.
May meet certain religious requirements.

Such separations do not have an inherent end date. They can remain intact until one or both parties die. However, reconciliation or actual divorce terminates the agreement. The terms of the legal separation may be incorporated into the final divorce or the parties can agree to modify the terms upon divorce.

When it is NOT Advantageous

Sometimes the legal separation creates more problems than proceeding straight to divorce. Also, unlike a divorce, this kind of separation may not get the same acknowledgment in a state different from the state it was created.

Entering into a sexual relationships with another while there is a legal separation may arise to the crime of adultery in some states.
Some states do NOT allow you to “incorporate” or “merge” it into the divorce. A separate action for divorce is necessary.
Enforcement of legal separations can be an issue for either Family Court or Civil Court. Depending on which issues are sought for enforcement, either court may be more favorable. (Florida, is one of those states since it does not acknowledge it.
The costs for filing it can be duplicative if a divorce follows.
Mental and emotional anguish can be inevitable. Some parties feel like they are in limbo until an actual divorce happens.

The bottom line, have all of the information and facts before proceeding to legal separation. Although it is viewed as a step short of divorce, the parties should prepare as if they are actually going right to divorce.

In Conclusion

Explore all options when trying to decide which route to take when splitting up. Gather info, research laws, speak with professionals, etc.

If you would like to discuss your divorce or custody case, please feel free to reach me.

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Each state has some sort of guidelines when it comes to deciding the best interests of the child custody. The best interests of the child is the standard courts use to determine custody & visitation. Even though these standards follow basic principles across all states, the factors used to make this determination varies from state to state. This explains why the outcome in your case may look significantly different than the outcome in a case very similar to yours, both within the same state and across states.

Best Interests of the Child Standard Defined

Although there is no definitive standard definition of “the best interests of the child” there is a general principle. That general principle is “…fostering and encouraging the child’s happiness, security, mental health and emotional development.” Currently, every state has specific factors to help its courts make custody determinations. However, how the courts uses and weighs these factors varies from state to state.

Specific Factors: Mandatory vs. Discretionary

The states’ specific factors all center around these principles, they all have a variation and/or an extension of the following:

Emotional ties and relationships between the child and their parents, siblings and family members;
The parents’ capacity to provide a safe home, with adequate food, clothing and medical care;
The mental and physical needs of the child;
The mental and physical health of the parents;
The presence of domestic violence

Some states require that some or all of their specific factors to be considered, leaving little room for discretionary guidelines. Other states, on the other hand, have rules that give them permission to use discretion in applying their specific factors in addition to factors not expressly stated.

Variations of Statutes’ Definition

Most states have “shall” in their statutes, which makes adhering to the specific factors a requirement. Like Virgina, for example, every one of its ten factors must be considered by the States with statutes that state “shall” with respect to consideration of its specific factors leave the courts with little discretion. The courts have little wiggle room to consider factors outside of the specified factors, unless the statute says so.

In Virginia, for instance, the courts MUST consider all ten of its factors when making custody determinations. So in other words, every custody case in this state will be scrutinized using every single one of its 10 factors no matter what. This means that a case where parents are making allegations of medical neglect, educational inadequacies, inappropriate living conditions that the courts do NOT have to consider these allegations when applying the factors because these are not explicitly listed in the state’s statute.

Code of Virginia – Best Interests of the Child

However, in Connecticut, it’s Gen. Stat. Section 46b-56( c) lists 15 factors. It reads in part “…the court shall consider the best interests of the child, and in doing so, may consider but shall not be limited to, one or more of the following factors.” Some of the factors are the temperament and developmental needs of the child; the wishes of the child’s parents; the willingness and ability of the parents to coparent, amongst several others. So even though it lists specific factors, the courts are not obligated to make its determination based on these factors. Connecticut courts can use factors that are NOT even on the list at all.

Impact on the Judge’s Determination

The weight of the factors, the use of the factors and the discretion with respect to both renders different outcomes for every case. The states where courts have more discretion in considering its factors are more likely the ones with inconsistent decisions. This can be an advantage to some, and a nightmare for others.

If you know for certain what factors the judge must consider, it is easier for you to prepare your case. However, where the judge is not mandated to follow any specific guidelines, it is much harder to pre-determine what to focus your attention on.

In Conclusion

It is imperative to conduct thorough research before filing for custody. If you can get a list of factors with an understanding of how they apply, then you are sure to put yourself in a much more advantageous position.

Feel free to contact me to discuss options for your divorce or custody case.

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Contested custody cases requires the use of “unconventional” methods with respect to gathering facts to help it made rulings. The parties to the custody action can appear pro se, where they speak for themselves, or by their family lawyers. But children’s interests must also be given considerable consideration with respect to custody and visitation. This is routinely accomplished by the use of a guardian ad litem as their voice or by them speaking directly with the judge.

Collaborating with Your Family Law Attorney

GAL as Child’s Voice

GALs are typically used as the voice of the child in contested child custody and visitation cases. The guardian ad litem is supposed to be an impartial, objective person who represents the child in high conflict custody cases. (The ABA standards for GALS Statutory Provisions For Guardians ad Litem )They are responsible for advocating the “best interests of the child” standards for their client. They are often appointed by the court, either at its discretion or either party’s request, to report to the court the best interests of the child. They are lawyers, social workers or any other qualified professional appointed by the court. They use several measures to gather evidence, explore allegations and to report to the court based on these.

Judge In-Camera Interviews

The alternative to a GAL reporting to the court, the court can speak directly with the child(ren) in custody cases. In some instances, the judge can conduct an “in camera” interview where he/she speak directly to the child in closed court (or in judges’ chambers) with a recorder or court reporter present. The thing with in camera though, is that judges are reluctant to conduct these. They’re reasoning is that children are fragile and should be shielded from the dissension involved with custody battles. In fact, there are very few instances where a judge would voluntarily subject a child to the emotional and mental turmoil of litigation.

Guardian Ad Litem vs. Judge In Camera

Each state has a age limit for when a child can express their preference with respect to which parent they would like to live with. Children under 12, generally, do not have a “say” and thus the GAL is most often the sole source used to help the court to make it’s determination. Children 12 or older, on the other hand, may have the option to speak for themselves. Even though older children can speak for themselves, the extent to which they are permitted varies. The amount of weight given to the child’s preference, varies from state to state and from case to case.

Advantages to Either Option

In some instances, it’s beneficial to opt for a GAL, as opposed to an in-camera, no matter the age of the child. For example, in custody cases where there are allegations of alienation or manipulation then a GAL may be best suited to speak on the child’s behalf. The GAL will take the time to meet with the child; speak with each parent and/or their attorney (if they deem it necessary); talk to teachers, medical and mental health professionals who have worked with the child; review necessary reports, notes, etc. and whatever else they need to devise an adequate report for the court.

However, in cases where in cameras are permitted then this is the better option in other cases. In cameras, however time constraints is a big issue. In addition, the attorneys’ input is limited as they are usually only allowed to submit a list of questions to ask the child in lieu of their actual presence. The GAL is the only other person permitted in the in-camera, as their job is to ensure that their client’s rights are not violated by the court. The major advantage of in camera interviews though is that the whole proceeding is recorded and the parties have access to the minutes of the recording. This can a major strategic advantage for either side when preparing for trial. GALs do not have to record any such interviews with their clients and therefore, are not required to make any such recordings available.

In conclusion

The point is that in some cases the parties don’t have a choice, they must rely on the input of a GAL instead of an in camera. And although they might have the option to avoid both, they should understand the limitations and benefits.

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Uncontested divorce is a viable option for many in New Jersey. In some states, although many have changed their laws, proceeding to divorce on the uncontested track requires specific steps. New Jersey is a true “no fault” state thus making Uncontested Divorce much easier to accomplish. No-fault means that the parties do not need to allege a “reason” for the divorce. (Read here to understand how “grounds” matter in divorce https://thedivorcesolutionist.com/should-you-file-first-in-your-custody-or-divorce-matter/

Should You File First in your Custody or Divorce Matter?

An Uncontested Divorce is where the parties agree on all of the terms of the divorce. This means they agree to the “grounds” (which isn’t usually an issue in “no-fault” states like NJ), child custody/visitation, child or spousal support, property division & debt allocation. Court intervention is not needed since the parties resolved all issues on their own. The parties merely complete the appropriate forms, sign them, pay all associated fees and file with the court. (Some courts require a hearing as part of procedure.) Even if the divorce started off with disputed issues, at any time the parties can consent and proceed on the Uncontested Track.

The fees for an Uncontested Divorce are usually a fraction of those for a Contested Divorce. There are 4 options to get an Uncontested Divorce in New Jersey. They are as follows:

A non-profit can handle it for you from inception to final order. Although this method is usually free, each non-profit has its own guidelines and criteria applicants must meet to qualify. In addition, many have waitlists that go as long as a year before they can help. (www.lsnj.org is the most popular)
A document preparer completes the forms only, no further assistance is provided by them. The fees for this service usually range between $399 and $799.
A lawyer can handle the matter from inception to final order. Lawyers fees typically start at $1500 and go up to $3500, depending on other issues associated with the Uncontested Divorce.
You can do it yourself. This method can be the most cost efficient but the most nerve wracking too if the litigants are not familiar with legalese and/or the court process. NJ actually has a self help page to make it more accessible https://njcourts.gov/selfhelp/selfhelp_divorce.html.

The Uncontested Divorce-NJ Workshop addresses all of the disadvantages of the 4 options mentioned above. This workshop will help you by going through each step of the process with the assistance of an experienced family law professional. At the same time, you will have the opportunity to ask questions about things you do not understand. So you won’t be overcome with frustration by doing it all alone. And last, you will save yourself time and hundreds of dollars by signing up for the workshop. (You are responsible for filing fees, etc.). The cost of this workshop is only $99.

There is no other lawyer, organization, business, etc. offering such a service. This is the best way to gain your freedom, build confidence and have a piece of mind.

Feb. 1, 2021 at 6PM EST on Facebook Live.

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I’ve touched up contempt in family court several times in the past. But what is or is not contempt in family court matters is worth a lengthy discussion. It is defined as “the offense of being disobedient to or disrespectful toward a court of law and its officers…”. (Wikipedia) This covers orders, rulings, decisions issued by a judge of court. So basically when a party to an action is ordered or directed to act or not act and they do the opposite, they are acting in contempt.

Change to Child Custody Arrangements during Covid

Family Court Order vs Other Court Order Violations

Family court orders typically come about by examination of a confluence of things. Laws, statutes and regulations are just a part of what comes into play. Social norms, public policy issues and bureaucratic influences also have a significant impact in family court decisions. In other courts, criminal court for instance, the application of the law has a much bigger influence. And as a result, acts of contempt are generally more explicit. The court order is usually clear with respect to consequences for disobeying it. Violating a criminal court order usually entails a fine and/or incarceration because the violation is usually against the court itself or public policy. In family court, on the other hand, no such clarity exists.

First off, making a “finding” that contempt actually happened is not as clear cut. Non-compliance is usually the court’s finding, which is very different from contempt. When someone violates a family court order by not paying child support or spousal support, not following a custody/visitation order or ignoring provisions in a divorce judgment they are not necessarily in violation against the court itself. Their defiance is against the other party. Next, family court violations need to be examined in context, not on isolated bases. This too, makes them privy to being viewed as less egregious as criminal court violations. And last, family court orders tend to include lots of provisions where execution is conditioned upon other provisions being executed.

Actual vs. Perceived Contempt in Family Court

As I mentioned, what may be thought of as contempt may in fact be viewed as violations, non-compliance, etc. Although by definition there is no distinction, what matters is how the court views it. The court is the factfinder and it will determine what rises to the level of contempt using a different level of scrutiny than it would in any other court.

Let’s examine a few scenarios to get some insight on how the court views violative behaviors.

Court order directs that the non-custodial parent (NCP) pays the custodial parent (CP) $500 per month for child support. After 3 months of missed payments, late payments or partial payments the CP seeks contempt against NCP.
Court order states that the NCP is to exercise their visits with the child every Fri. eve at 6PM until Sunday afternoon at 4PM. In the past several months, CP repeatedly shows up to drop off an hour or two late.
Court order, by way of Divorce Decree, orders that the Defendant is to turn over all personal property in their possession within 30 days of the Decree. 90 days have passed and Plaintiff still has not received any such property.

Although all of these scenarios clearly exhibit some violations, non-compliance and/or disobeying court orders, they rarely arise to the level of “contempt” in a family court setting. However, when these acts are considered in context, reviewed in light of other issues in the case, a finding of contempt is possible.

Making a Case for Contempt in Family Court

Although the elements of contempt are usually spelled out in some form, the courts usually use a less stringent standard of proof in family court.

The key to getting the court to make an actual contempt ruling requires a strategic approach. You need to look at the violative behavior in with a look at the entire case. This means looking at past behaviors, considering the judges position of related issues, social norms, local practices, etc.

So when you are faced with a repeated nonpayment of support it makes sense to consider the NCP parent’s track record with paying, if there is an issue with ability to pay because of a change in employment, if the court had to reprimand NCP previously for nonpayment and so on. Additionally, you should ask yourself “what is your judge’s history with this particular violative act”.

When the issue is with late drop-offs or early pickups, consider things like quality of visits, ability to makeup for lost time, the harm done to the children, etc. Again, what your judge’s views are on this issue, what the judge would say or do in this situation, etc. are also very important.

When you are faced with making a case for contempt, one great source to refer to is the actual order itself. Review it over and over again if necessary, to see if there are any “gray” areas of interpretation. Read it from the other party’s perspective to see if there are any viable potential arguments they can make. Read it to with a view from the judge’s viewpoint to see if their intent was clearly stated.

Sum it Up

In conclusion, understand that what you may perceive as a clear case of contempt may not be considered such by family court. It is a good idea to think, plan and strategize on what your next move should be in the event of violations of your court order.

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Family law attorney gets the worst wrap in the legal field. Let’s be honest, they can be the most difficult to work with in divorce and custody cases. They often come across as unemotional, they barely recall important facts, they fail to communicate effectively and they totally ignore your wishes at times.

Data reports that more than half of family law clients are disappointed in their attorney’s services. Also, with respect to the overall profession, family law attorneys are hated more than any other specialty. Despite these statistics though, working with the right attorney on your divorce or custody case can get you favorable results.

You have Rights as a Client

You get to dictate how your case is handled. That’s right you have the right to determine which moves your attorney makes on your behalf. I bet you did not know that huh. Well…technically you do but there’s a caveat. Most competent attorneys will not give you complete authority, afraid that you make foolish decisions. They do have ethical obligations to give you the necessary legal information to make informed decisions. And when they do, and you insist on deciding against it, they can withdraw from your case.

So although it is your right, it may not be the wisest thing to do. Why, you ask, would an attorney take issue with his or her client exercising their right? Well because the attorney’s job would be pointless if they didn’t. Attorneys have egos and a client who goes against their own lawyer’s advice bruises their egos. Just kidding. The real reason is multifaceted but the bottom line is they have an obligation to you, the system and the bureaucrats that oversee the legal process.

What You Say in Family Court Matters

Your Attorney Expects Things of You

Most attorneys have objectives that go way beyond providing you with the best representation. Of course it’s important that do their best to get you the results discussed. But it doesn’t end there attorneys have ethical obligations, professional aspirations, track records to establish & maintain, etc. So if they anticipate anyone or anything that will interfere with these, they might think twice. In plain English, you have a responsibility to your lawyer too.

At the top of the list is honesty, you owe it to yourself and your case to be honest with your family law attorney. If you can’t be candid with your divorce or family law attorney then you can’t be trusted. Your divorce attorney has the fate of your future in their hands so it’s imperative that you tell the truth about everything that matters. Cooperation is next, you must be willing and able to work as a team with your lawyer to see favorable results. Communication is also important, keeping the lawyer in the loop with what is going on helps them to prepare for the necessary next steps.

Meeting in the Middle

To get the help you need you need to understand what your rights are but also what your responsibilities are too. It’s extremely important to find the right lawyer for your situation, there’s no doubt about that. However, you put all responsibility on the lawyer, you must do your part too. It is prudent for you to have a clear discussion about the expectations, the process, the outcome, etc. Although this discussion should be had very early in the attorney-client relationship, all is not lost if it happens any time after. The point is, be upfront, ask questions, be clear, be cooperative.

In conclusion

How your divorce or custody case proceeds in court is up to you. Don’t be so quick to blame your lawyer for what goes “wrong” in your case. Before you “hate” or badmouth them for what they are not doing, ask yourself if you did your part. It takes teamwork to get through these sort of situations.

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When Legal Separation is the Better Route

Legal Separation vs. Separation

The Advantages of a Legal Separation

When it is NOT Advantageous

In Conclusion

Best Interests of the Child Custody Each State

Best Interests of the Child Standard Defined

Specific Factors: Mandatory vs. Discretionary

Variations of Statutes’ Definition

Impact on the Judge’s Determination

In Conclusion

Guardian ad Litem vs. Judge In-Camera Contested Custody

GAL as Child’s Voice

Judge In-Camera Interviews

Guardian Ad Litem vs. Judge In Camera

Advantages to Either Option

In conclusion

NEW! Uncontested Divorce-NJ Workshop ONLY $99.

Contempt in Family Court: What it Is & it is Not

Family Court Order vs Other Court Order Violations

Actual vs. Perceived Contempt in Family Court

Making a Case for Contempt in Family Court

Sum it Up

Collaborating with Your Family Law Attorney

You have Rights as a Client

Your Attorney Expects Things of You

Meeting in the Middle

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