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The divorce settlement agreement constitutes 75% or more of the contested divorce cases. Courts are set up to encourage litigants to settle all issues including property distribution, child custody, child and spousal support. Pretrial conferences, settlement conferences and mediation are all part of the program aimed to settle. Divorce settlement, however, does not always take enforcement into consideration. Enforcing settlements are usually another huge piece of the pie.

Dating During Divorce

Divorce Settlement Agreement Strategies

From the filing of the first pleading, usually the complaint, the process proceeds on the settlement track. The complaint, ideally, lays out all of the details of the case some of which are not really material. The rules of procedure affords great latitude with respect to making allegations in the complaint. Then the opponent has the opportunity to respond with defenses and/or denials that the court can “strike”. This particular phase sets the stage for settlement when the case gets to initial conference.

From this point on, each meeting is pretty much centered around resolving anyboutstsnifng issues. In fact at times the judge will use persuasion to encourage the parties to settle. The judge will give a hint of suggestion of how he/she will rule should the case go to trial.

Also, the time lapse between conferences is strategically designed to give the parties the opportunity to negotiate settlement.

Pitfalls of Settlement

Although the courts maintains an environment conducive to settling, it’s not always the best way to proceed. Although it’s usually cost beneficial for all involved, it can set either of the party up for failure.

Negotiated settlements have inherent flaws, as much as they have advantages. First off, it’s imprudent to enter into settlement talks if discovery is not complete. The discovery phase is always tricky in divorce cases. One or both parties are often apprehensive about turning over financial, personal and health information to the other. It’s a rare instance where both parties fully disclose every fact, document or authorization related to the issues in divorce.

Second, as I mentioned above, sonetimes judges strongly urge resolution for reasons unrelated to the particular case. This can unduly influence either party to give in to these suggestions regardless of how fair they are.

Third, unavoidable distractions can also affect how successful settlement talks can go. Emotional and mental volatility are often the source of uneasiness

Enforcing Settlement
It’s no secret that coming to an agreement is entirely different than getting both sides to stick it. Especially in family law, people often find reasons to justify deviating from the terms of their settlements. Financial changes, remarriage/new baby, debt obligations etc. to name just a few reasons.

More than half of divorce settlement agreements wind up being hauled into court for enforcement, modification and/or contempt. The agreements do not come with a gatekeeper to monitor it’s execution so at times they are not worth the paper they are written on. Lawyers, mediators, parenting coordinators etc may try to help facilitate the execution of the agreement but they’re efforts are often futile.

Enforcing settlement agreements requires court intervention more often than not. Rarely is there ever an incentive for the violating party to voluntarily comply. So the opposing party must employ the court if they want to the terms of the agreement implemented.

In conclusion

A forced settlement is not better than any settlement at all no matter how much pressure you’re under. You would be cutting of your nose to spite your face. Coming to an agreement is not always a bad thing, it just requires a rational mind and tempered emotions.

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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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Dating during divorce may not render you the best outcome in your situation. You can try to rationalize so many ways but the reality is you can’t unless it’s an Uncontested divorce and it’s near the end. I understand that in cases where the divorce has been dragging on for years, where your spouse cheated several times, where you get lonely, etc. But if you’re expecting a property distribution, spousal support or alimony and most importantly, child custody then hold off on having coffee with the “hot guy” may be wise.

When Legal Separation is the Better Route

Dating During Divorce Grounds

As I’ve discussed before, (for the discussion on no fault laws read here www.) most states have some form of “no fault” as divorce grounds. What that means is that neither spouse has to allege anything specific as their reason for divorce. However, there are instances where either spouse may want to use adultery as the basis for divorce. Adultery is when a married person has sexual intercourse with another person other than their spouse. The implications of adultery in a divorce can be catastrophic.

Spousal support, child custody and property distribution determinations are all impacted by alleging and proving adultery. Dating during divorce, no matter what stage the divorce is at, is in fact adultery. Doesn’t matter if the other spouse knows of the adulterous affair or even if both the parties are having an affair, it’s still adultery.

If the petitioning spouse chooses to use adultery as grounds, whether they can substantiate their claim or not, it can give that spouse the upper hand with respect to settlement negotiations.

Dating and Child Custody/Visitation

While the divorce is pending there is usually some form of temporary order for custody and visitation. And although the terms in the order can vary from case to case, some things are pretty customary. Customary provisions are usually based on what your particular jurisdiction’s considers the “norm”.

Many jurisdictions, upon either party’s request, can include what is called a “morality clause,”. This clause covers parents romantic or social life activities. The clauses usually imposes specific limitations with the intention to maintain some sense of decency while coparenting. Some of these clauses merely dictate at which point parents can introduce the kids to romantic partners. While others go as far as prohiting extended periods of time in partners’ presence or overnight visits. Again, in some jurisdictions these clauses can be pretty routine while in others they are frowned upon. Either way, limits can be put on parents’ ability to see other people, even while the divorce is pending.

Dating and Alimony

Alimony or spousal support guidelines varies from state to state. The premise behind it though is pretty consistent amongst the states. The purpose is “to limit any unfair economic effects of a divorce by providing a continuing income to a non-wage-earning or lower-wage-earning spouse. Part of the justification is that an ex-spouse may have chosen to forego a career to support the family, and needs time to develop job skills to support themselves. Another purpose may be to help a spouse continue the standard of living they had during marriage despite changes to income, income tax, bonuses, taxable income, tax returns and etc.” (Source. Findlaw.com)

There is discretion with respect to which factors are given consideration. Weighing the discretionary factors determines who gets alimony, for how long and how much. However, most alimony awards are conditioned upon the awardee maintaining “unmarried” or “non-cohabitation” status. Although judges won’t sign off on an Agreement that terminates spousal support merely because the awardee is dating, if the dating lead to cohabitation they mpst certainly will.

Dating and Property Distribution

As stated earlier, if adultery is alleged and proven the courts can “punish” the adultering spouse by awarding a larger portion of marital assets. Particularly in equitable distribution states, as opposed to community property states, the courts will compensate the offended spouse with a more favorable property award.

In sum, dating during divorce should be done with much careful thought. I know that matters of the heart can take on a life of it’s own. However, I suggest weighing the costs of having am indulgent heart.

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A step or blended family is a family that consists of parents and children who are not biologically related, the parents are remarried or cohabitating with someone other than the biological parent. Blended families make up almost half of all families in the US, according to Stepfamily.org. That means that a large amount of children are being raised in a home with one or more non-biological adult and children. This arrangement raises several family law related concerns, moreso than the mundane issues. Let’s take a look at how the various legal concepts apply to step families.

Coparenting in Step or Blended Families

Coparenting within a step or blended family is a little different than coparenting amongst solo parents. Although coparenting amongst solo parents poses challenges, co-parenting amongst step families takes on a different set of challenges.

Depending on how the custody agreement arose, whether it came to be as a result of a settlement (verbal or written), a court order or negotiations, the way coparenting happen looks different. It is not uncommon to overlook custody provisions that specifically address stepparents’ rights and responsibilities. It’s obviously not because stepfamilies are rare. Stepparents are not discussed in custody agreements because the courts don’t have jurisdiction over persons who are not parties to the action. However, some parties are savvy enough to ask that specific provisions be included, making the parties themselves responsible for their partners compliance. One of the ones I see often is a provision that speaks to if and when the child can call the stepparent “Mommy” or “Daddy”.

What You Say in Family Court Matters

Additional provisions that may be included in custody agreements are; whether and to what extent the stepparent can discipline the child, if they can consent to medical treatment, if they are allowed to access school records or attend events, etc. Even if some of these NOT covered in the actual custody document, federal and state laws govern the rights of stepparents with respect to health and education. Stepparents cannot consent to medical treatment of a stepchild, even in emergency situations. They can transport the child to the hospital or medical appointments but need written consent to do more than that. Consent to treatment requires written consent from the parent/spouse who must have joint custody or legal custody.

Same with respect to accessing school records or attending school events, consent (although written consent is not required it is recommended) from the parent/spouse is needed. As for discipline, no specific laws address stepparent rights in the event the custody agreement fails to mention it. However, the extent to which a stepparent can discipline a stepchild relies solely with the biological parents (as long as it is within the legal confines of their state). Whatever rules the parents agreed to also extends to stepparents. Nonetheless, it is prudent to cover stepparent discipline in the custody agreement. Stepparents should be viewed as authority figures, of course, and should step into that role with confidence but boundaries should be established and maintained.

Custody/Visitation in Blended Families

There is a difference in step parents rights and responsibilities in sole custody arrangements. In sole custody households, the biological parent does not have to confer with the other when making major decisions. However, in joint custody, shared custody or 50/50 arrangements, this is not the case. (For a detailed explanation of the difference in custody arrangements go here http://www.thedivorcesolutionist.com/will-the-court-award-sole-custody). When consent is required in joint custody arrangements, there are times when that consent can be trumped by the other biological parent. However, situations that do not need consent, still make copa Step or Blended Family renting amongst stepfamilies difficult. The issues that directly affect custody/visitation are communication, pickups and dropoffs, attendance at special events, household rules, etc. For the most part, stepparents are to adhere to the provisions of the custody agreement even though if they are not mentioned in the agreement. Furthermore, stepparents should not meddle in communications or discussions between biological parents except in exigent circumstances. Particularly in high conflict custody arrangements, stepparents should keep their input or involvement to a minimum. Maintaining boundaries should be paramount to ensure coparenting goes smoothly.

Child Support or Financial Obligations in Blended Families

Child support guidelines applies to biological parents but can bring stepparents into the fold. The purpose of child support is to ensure that children have the benefit of maintaining the same or similar standard of living as if the parents were still living in the same household. However, this principle gets tricky in its application when children have the addition of a stepparent and their income. Although the courts cannot obligate stepparents to provide for children that are not biologically theirs (except in adoption) they cannot ignore the windfall uncalculated income provides. A payor non-custodial solo parent should not have to give up more than his/her proportionate share of income to a payee custodial remarried parent who has the financial advantage of another income in the household.

What happens with child support in stepfamilies? Well, most courts will not “add” the stepparent’s income into the formula. However, what they are permitted to do is to “consider” the stepparent’s income when deciding if they should deviate from the child support guidelines. And where there a huge disparity in income, and thus standard of living, they will try to balance them out by applying its discretion.

Conclusion

In sum, stepparents should take every aspect of the new family dynamics into account before taking on the role in a step or blended family. Although having a custody agreement in place helps a lot, it is nearly impracticable to follow every provision to the letter. Emotional bonding, physical conditions and financial limitations can make implementation even more challenging.

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Up until recently, with Covid-19, people had to physically go where the job or career opportunities were plentiful. (Since Covid-19 the need to physically move has stalled with the influx of the work at home options). And although, women are increasingly becoming the breadwinner in marriages, they still outnumber men when it comes to following their spouse to the new location for work. Women are more inclined to give up their job/career, friends and family, and all levels of security, to follow their man across the country or globe. A spouse who follows their spouse to a new relocation for the promise of a better life are referred to as “trailing spouses“. Divorce is more likely in trailing spouse cases than not.

When Legal Separation is the Better Route

What is Trailing Spouse

Trailing spouses is when a spouse follows their spouse to a new location for that spouse to pursue career opportunities. Unfortunately, however, marriages suffer at a rate of almost 50 % from the effects of the stress and strain presented by these circumstances. Depression among the trailing spouses skyrockets causing major breakdown of the marriage. Loneliness, disappointment, sadness, etc. all play a major role in the mental and emotional distress many experience.

Divorce is imminent in trailing spouse cases, which in turn leads to issues with custody, support and property distribution. I would like to explore how these issues play out in trailing spouses cases.

Trailing Spouse and Custody

A trailing spouse that relocates for their spouse’s job or career advancement may have a legitimate argument for relocation back to their hometown. Relocation custody cases are one of the most litigated aspects of child custody. Albeit, deciding the general terms of custody can be quite intense, making a ruling with respect to relocation can be more of a challenge. The courts use “the best interests of the child” factors to determine if relocation should be granted. These factors include the physical, mental and emotional well being of the child; the child’s relationship with each parent; any special needs of the child, just to name a few.

However, with respect to relocation the best interests standards vary slightly. The major consideration is the imposition relocation would put on the noncustodial parent-child relationship.

One significant factor considered in trailing spouse divorce relocation cases is the support system the custodial parent would have in the proposed city or state. A support system for the parent is a support system for the child, which presumes mental & emotional well-being and social stability. So a custodial parent seeking to go back “home”, assuming a familial & social circle exists there, has a better chance than if they chose a random “start over” location.

Trailing Spouse and Alimony

Alimony, or spousal support/maintenance, is awarded in divorce in an effort to “balance” the parties economic position. It’s purpose is to minimize the deleterious effects of going from a stable economic status to one of uncertainty due to divorce. Data reports that almost half of women experience a huge economic disadvantage upon divorce. And

although men can get alimony too, their ability to “catch up” post divorce is greater. Trailing spouse situations are apt for alimony demands based on this and other factors.

States differ in how they decide alimony. The Uniform Marriage and Divorce Act is the federal statute states use to base their alimony laws on. Each state uses the federal statute to come up with factors to consider in alimony determination. Those factors include the payee spouse’s earning potential; the standard of living enjoyed while the parties were married; the separate property of each party; child support obligations; the duration of the marriage and the ability of the payor spouse to support him/herself.

Trailing spouses can certainly make a case for alimony based on at least half these factors. For example, if the spouse developed depression as a result of the uproot, this can certainly impair their ability to become self sufficient. Depending on the specifics, underemployment or unemployment are definitely possible consequences of depression. Or, in instances where the trailing spouse is willing to give up the marital home and/or to forego other marital assets (i.e. pensions, vehicles,etc), this would be factored in as well. The overall focus is on what the trailing spouse gave up in order to move away to support their spouse.

Conclusion

In conclusion, trailing spouses sacrifice quite a bit and deserve to be compensated for their efforts. The courts don’t have explicit rules for cases like these, although they probably should, there are ways to argue your case accordingly.

What did you give up as a trailing spouse? What did you gain?

*Pt. II of Trailing Spouses and Divorce will be posted next week.

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I recently suggested to a group member that she refrain from referring to her child as property in case of child custody. Her post had a part where she said “keep my child all to myself. She was asking for advice on whether she should let the Dad sign the birth certificate when their child was born. She wondered if his rights would be trumped by hers is she didn’t. Well she didn’t like what I said but I was only trying to help her avoid unnecessary headaches later on. There are advantages to keeping the Father’s name section blank, no doubt about that. But some of those benefits cease to exist when he seeks to enforce his rights.

Fundamental rights as parents

Children born out of unmarried relationships are not chattel, no more than ones born out of marriage are. They don’t belong to either parent over the other like s piece of property. They may be one or both parents’ responsibility but certainly not their possession. In this country, all parents have fundamental rights and one of them is access to their blood related child. To have those rights infringed upon or terminated requires isn’t easy. It entails a process that goes beyond just opting out of have dad sign the birth certificate. Not to say that abusive parents’ rights trumps their child’s safety or well-being. But they are certainly entitled to due process before those rights can be taken away.

Should You File First in your Custody or Divorce Matter?

In most states children born outside of marriage are the legal custody of the parent who has the child with them. In most cases this is the mother but can be the father too. Their laws expressly state that “legal custody is with the mother who gave birth of that child until the child reaches age 18.” However, what this implies is that the mother can make any and all decisions for the child. And although this is true, the father can fight this at any time.

“Presumed” legal custody meaning & implications

When the mother has legal custody as a result of unmarried status, this is “presumed” custody. Presumed is “a legal inference that must be made in light of certain facts.” So that means that the fact that mom delivered the baby and has baby with her, that her having custody can be inferred. This is different than if a court of competent jurisdiction had determined she had custody. In other words, presuming custody did not involve an assessment of her being “fit” enough to have custody.

Rights with “presumed” legal custody

A parent who has presumed custody has some rights, until the other parent challenges them. All decisions with respect to medical, educational, residence, etc. are totally up to the presumed parent. A parent with presumed custody can get a passport for the child, can relocate without limitations, can choose homeschool over in person, and so on. However, if that parent seeks government assistance of any kind other issues may arise.

The problems surface when Dad decides that he wants to have more inclusion or thinks he can do a better job. So, whether he’s on the birth certificate or not, he can challenge custody. As long as he knows he’s the father and decides to exercise his rights, all of Mom’s sole authority ends.

Having presumed custody does not mean you have to deny the father of access to the child. In fact, facilitating and fostering some type of involvement may work in everyone’s best interest. However, it is important to note that allowing the father to have contact before paternity is established can be tricky.

Disputing “presumed” legal custody

Presumptions can be rebutted. Inferring something exists because of the facts available only means that anyone can prove otherwise. In custody situations, Dad can rebut the presumption of legal custody by proving that he has rights as the father. To do this he must establish paternity in one of two ways. First, he can sign an Acknowledgment of Paternity, where both parents must complete and sign a form from his local government agency. The other method is done by filing a petition in court and having a judge order a DNA test which results in an Order of Paternity.

Once the father establishes paternity his right to visits, decision making and custody are all up for debate. His rights as Dad automatically take effect and he is entitled to almost everything that Mom is entitled to. The courts will level the playing field so to speak. So a mother who has had presumed legal custody will not be given more consideration in court just because paternity was never established. Conversely, a father will not be at a disadvantage because he was not on the birth certificate or because he never sought paternity until the court proceeding.

Conclusion

In sum, unless your child was created by an anonymous sperm donor, both parents have equal rights to access to their child. Our legal system sees both parents involvement as a necessary component to their children’s growth and well-being. This is the starting point in all cases, whether that is the case for every parent is to be determined by the courts.

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Need help in handling your Family Court case on your own?

Tagged child custody Divorce Coach Divorce Settlement Agreement Free Divorce Advice Free Divorce Consultation Joint Custody Child Support paternity

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.

Need help in handling your Family Court case on your own?

Tagged attorney custody divorce Divorce Coach Divorce Settlement Agreement family law Family Law Attorney Free Divorce Advice Free Divorce Consultation Joint Custody Child Support

Divorce Settlement Agreement Strategies

Pitfalls of Settlement

In conclusion

Best Interests of the Child Standard Defined

Specific Factors: Mandatory vs. Discretionary

Variations of Statutes’ Definition

Impact on the Judge’s Determination

In Conclusion

GAL as Child’s Voice

Judge In-Camera Interviews

Guardian Ad Litem vs. Judge In Camera

Advantages to Either Option

In conclusion

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

Dating During Divorce Grounds

Dating and Child Custody/Visitation

Dating and Alimony

Dating and Property Distribution

Coparenting in Step or Blended Families

Custody/Visitation in Blended Families

Child Support or Financial Obligations in Blended Families

Conclusion

What is Trailing Spouse

Trailing Spouse and Custody

Trailing Spouse and Alimony

Conclusion

Fundamental rights as parents

“Presumed” legal custody meaning & implications

Disputing “presumed” legal custody

Conclusion

You have Rights as a Client

Your Attorney Expects Things of You

Meeting in the Middle

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