As promised, I am working on Part Two of Frequently Asked Questions for family law-related matters. Every single day the family law community is faced with scenarios that look similar but have their own nuanced characteristics. So, although some questions are asked repeatedly, how and if they apply to a particular set of facts vary greatly.
I encourage my audience, and the family law population at large, to ask question after question in an effort to maintain a basic understanding of what is at risk in their divorce or custody. It does not matter if you refer to several sources, or even if the responses differ. It is important to gather as much information from various sources when enmeshed in a divorce or custody matter.
One of the things that I do daily encourage my audience to ask questions. As a result, what I have noticed is that there is a lot of misinformation being circulated. In addition, I realized that people tend to have the same concerns regardless of their location, status, or position (in their case). So, I have decided to dedicate this week’s blog to those common questions, providing some clear answers.
Frequently Asked Questions
1. Should we try to resolve all issues ourselves to save time and money in divorce or custody?
An Uncontested Divorce is one where the parties either have no disagreement or have resolved/settled all issues so there are no disputes. In some instances, a divorce can start out as Contested (where there are disputed issues) and wind up in settlement early enough to be considered Uncontested. This is different than a divorce that settles via mediation, although some courts will allow mediated divorces to proceed as Uncontested. This saves tons of time and money depending on the issues involved. With respect to custody, resolving the disputed issues can also get the case over within months as opposed to years.
- Does joint custody mean that you cannot get child support?
In most states, court-ordered child support is determined by statutory guidelines. One of the factors is typically included in the guidelines is custody. In cases where joint physical custody is awarded, child support is apportioned according to the time with each parent. For example, in 50-50 cases, in some states, neither parent pays child support to the other. However, in some states, the financial obligation of each parent is calculated based on their income (and other factors) and then the parent who has the highest obligation may be ordered to pay the other the difference in both of their child support award amounts.
Where Child Support & Custody Intersect
- What can I do if I do not know where my ex or soon to be ex is living to notify him/her of the case?
Once you file your initial petition for divorce or custody, it is your responsibility to “serve” the other party with a copy of the petition. This is how they are put on notice of the pending case. If you are unable to locate them, you must follow your jurisdiction’s procedures in either locating them or serving them another way. Most states will allow an alternate means for service. So instead of having the party served at a physical address, for instance, the court may allow the petitioner to place an ad in the local newspaper. The newspaper ad is considered “service by publication” as it puts the other party on notice of the suit.
- Should I consider mediation or some other alternative to litigation?
There are alternatives to divorce or custody litigation, that do not entail the burden and overwhelm of trial in court. More than half of all family court cases settle, with only a small fraction making it to trial. Those options are mediation, collaborative divorce or Do it Yourself. Mediation is the option most often used, in some states it is mandatory. Mediation prices range from $2000 up to $10,000s. The costs associated with mediation makes it most attractive to many, but so does the quicker turnaround than litigation. If you want to explore least expensive options to divorce and custody, be sure to seriously consider mediation.
- Do we need a Parenting Plan for our child(ren) if we already have a schedule that we work with?
Some states have their own form of a parenting plan, parenting agreement, etc. If there is a custody case pending, then the parties will be required to enter into such agreement to make it an effective order. If there is no court case pending, then the parties are free to create one that works for them. The difference in the two, is in the former if either party chooses to change terms of the agreement, the other can seek Contempt. In the latter, neither party is obligated to stick to the plan because there may not be any consequences for them choosing not to.
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Finding & Using Resources
Although there are tons of free resources on the internet, knowing which question to ask can make these resources useless. When you are enmeshed in a legal battle, particularly in Family Court, it is critical to have the right information. It is not advisable to trust your friends, family or even strangers to give you the appropriate answers to your legal questions. Having gone through the process helps, but it does not qualify them to give you legal advice since each case is quite different.
I always recommend getting at least three (3) consultations from qualified attorneys in your jurisdiction so that you have a solid foundation to start your journey. Most family law attorneys will provide a free consultation so cost should not be a deterrent.
In Conclusion
Always, always, always ask questions and seek answers. At the same time, use discernment to decide if the source is reliable. There is an overwhelming amount of information relevant to divorce and custody, so filtering is important as well.
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