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Wednesday, October 28, 2009

Determining Child Custody through Litigation

A child custody battle, whether as part of a divorce action or a separate action (generally after the divorce, where one of the parents is seeking a change of custody terms), can be one of the most contentious and unnerving forms of litigation you may ever experience.

The law does not favor either parent by gender, and each case is driven by the unique facts involved. The sole question to be answered in an initial custody action is, "What is in the best interests of the child?"

In an action to modify a prior custody ruling, there is an additional question to be answered: "What has changed since the prior custody order (or agreement) that would warrant a change of custody at this time?"

The courts will often seek the aid of unbiased health care and educational professionals to help them reach the best possible decision. Often, forensic psychiatrists or psychologists will be called on to conduct a thorough investigation and evaluation of each child and each parent involved in the custody litigation. This evaluation may include "significant others" such as grandparents or other caretakers who have contact with the children.

This investigation will attempt to determine:

  • Who is the better parent?
  • Which parent, if any, is attempting to exercise mind control over the children to the detriment of the other parent?
  • Which parent may be interfering with the other's visitation rights?
  • Any other factor that might have an impact on answering the question, "What is in the best interests of the child?"

The court will also appoint a Law Guardian, or attorney for the child, who is an independent lawyer charged with the responsibility of representing the child's interests, separate and apart from either parents' interest in the litigation. If the child is old enough and mature enough to express his own desires regarding which parent he wishes to live with, the Law Guardian will make that viewpoint known to the court. The Law Guardian will advocate for the child's wishes as long as he believes this viewpoint was not the result of parental brainwashing.

In most cases, if a child has reached the age of 13 or 14, his wishes will be factored into the court's final decision, provided he demonstrates appropriate levels of maturity for his age.

The cost of all professional fees, including the forensic evaluators, Law Guardian, and any other professionals appointed by the court, will be paid by the mother and father, proportional to their respective income and other financial conditions. These fees, in addition to each parent's own attorney's fees, can quickly escalate, resulting in an enormous financial cost to each party.

The litigation of a custody proceeding often also results in enormous emotional costs to both parents as well as the children involved.

For all of these reasons, it is in the best interests of everyone involved to try and negotiate a balanced settlement agreement crafted by the divorce attorneys for each parent so that the financial and emotional costs of litigation can be avoided entirely.

Tuesday, September 29, 2009

New York Passes New Child Support Legislation

The state of New York has recently passed new legislation expanding the base income for mandatory child support
from $80,000 to $130,000. Any income above $130,000 may or may not be subject to the court awarding child support. This will be left entirely to the discretion of the court.

Prior to this new legislation, the courts have customarily awarded child support up to a discretionary base income of approximately $200,000. Any income above this level has generally been exempt from child support. However, with the expansion of the mandatory base income from $80,000 to $130,000, the discretionary cap is likely to rise as well. It is still uncertain how high it will go.

When the courts exercise discretion to go beyond the mandatory base, they consider lifestyle and standard of living factors. Sending children to private school, consistently taking extravagant vacations, and providing children with extracurricular activities such as music lessons, dance lessons, or summer camp will often influence the court's decision as to whether to award child support on a higher income than the mandatory base of $130,000.

While there is a basic formula for awarding child support, it is important for your divorce lawyer to be aware of these additional factors which may lead the court to use discretion in altering the ultimate dollar figure. Hiring an inexperienced divorce lawyer may result in a child support award that poses a serious financial burden on you and your family.

Thursday, August 27, 2009

Legal Separation

In most states, a legal separation can be achieved in one of two ways:

  • Through a comprehensive agreement between the two parties
  • By court decree

Whenever possible, you want to avoid the second option, since a court trial can be just as involved and expensive as a divorce trial. For the most part, the issues are the same, and once you're going through a trial, you might as well go for the divorce. It's the same work and the same cost, so you may as well finalize it and make it official.

In most cases, a legal separation is achieved through a negotiated settlement between both spouses, leading to a Separation Agreement, which is a formal contract that covers issues such as:

Essentially, this agreement will cover any issue necessary to enable the couple to put their lives on separate tracks and move forward as individuals. Naturally, the agreement provides that the couple will live separate and apart, free from the authority and control of one another, as if each were single and unmarried.

It is a contract where the terms must be strictly followed. The only restriction for each party living under the terms this agreement is that they may not get re-married because they are not yet legally divorced. However, each person is free to date and even live with someone else, since all of the issues of the separation have already been dealt with. A court may not change the terms of a written separation agreement unless it determines that the terms of the original agreement are unconscionable.

Most states have laws that allow either party involved in the separation agreement to obtain an uncontested divorce after living separate and apart for a required period of time. At this time, the terms and provisions of the separation agreement will become the basis for the divorce agreement. The judge will simply have to sign the final divorce decree.

If you and your estranged spouse are able to work out a separation agreement amicably, it is a much better way to go about your divorce. You and your spouse will have negotiated all of the terms without the intervention of the court. This enables you to maintain control over the entire process.

Thursday, July 30, 2009

Don’t Lose Sight of What’s Best for Your Child

It is easy to get caught up in the bitterness and animosity you feel for your estranged spouse during a divorce proceeding. Often, feelings of anger and betrayal may drive a person's motivation during such a difficult time. Unfortunately, in many cases, the person you end up hurting is not your spouse but your child.

When a divorcing couple has young children, it is important to make sure that their best interests are kept in mind when deciding issues of child custody. While feelings of bitterness and spite might motivate you to want to "stick it to your ex," in the long run, this behavior will only cause your children to suffer.

Children deserve to maintain positive, close relationships with both parents, provided neither parent is abusive or negligent in any way. To attempt to deny your ex his or her right to spend meaningful time with your children is unconscionable.

Clearly, child custody may be one of the most contentious issues you will have to deal with in your divorce. For most divorcing couples, both parents will want to spend as much time as possible with the children. Frequently, scheduling issues make custody arrangements extremely complicated. However, it is important to keep a level head during this difficult process and always remember that your priority when deciding custody should be to make the transition to divorced life as smooth as possible for your children.

A good divorce attorney will always try to help remove any animosity from this discussion and guide you and your estranged spouse through the custody process in a way that works to keep the best interests of your children at heart. If your divorce attorney fails to do this, you are most likely working with the wrong lawyer, because in the end, it is in your best interests to always put what is best for your children first.

Wednesday, June 24, 2009

Spousal Support

The payment of maintenance, sometimes referred to as spousal support or alimony, is entirely up to the discretion of the courts in most states. Unlike child support, which is mandated by statute as to the amount (based on a specific percentage of each parent's income), spousal support may be granted or denied at the judge's discretion, and the amount of this payment is not fixed based on statutory laws.

Years ago, before most states enacted Equitable Distribution laws, a spouse could be granted alimony based on a disparity of incomes between each party, and based on the financial needs and accustomed standard of living achieved during the marriage. If spousal support was granted, it would last for the life of the needy party, or until his or her remarriage.

Before 1980, spousal support would be denied, as a matter of law, in the event a divorce
was granted on grounds against the needy party. For example, if a wife, who never worked, were found to be guilty of cruelty or adultery, she would be barred by law from ever collecting spousal support, no matter how egregious the conduct of the husband was during the marriage.

In the early 1980s, most states rectified this inequity by establishing Equitable Distribution laws. Today, most states grant spousal support according to genuine need. It is designed to be rehabilitative in nature in order to provide the needy spouse sufficient time to complete an education (or re-education) so that he or she may be able to return to the workforce and earn a decent living. Therefore, spousal support is generally limited to a short period of time, depending on the duration and circumstances of the marriage.

It is not uncommon for spousal support to only last for one year when the marriage was short. For a longer marriage, spousal support may last for as long as five years. The presence of young pre-school children at home is often a factor in determining spousal support, since the custodial parent may need to stay home with the children for a number of years.

In situations where the couple filed for divorce after a very long marriage, a spouse who stayed at home for many years and who is beyond the age where he or she could reasonably retrain for employment might be granted lifetime spousal support. Regardless, marital fault will no longer disqualify you from receiving spousal support; it is determined on the basis of need.

The court will consider the following factors when determining the amount and duration of spousal support:

  • Income disparity between each party
  • The lifestyle and needs of the "poorer" spouse
  • The ability of the "wealthier" spouse to support him/herself after paying maintenance
  • The ability of the needy spouse to gain or regain full employment
  • The duration of the marriage

Of course, you do not have to leave this issue up to the courts. You and your estranged spouse can negotiate these issues with the help of your divorce lawyer. This will save you a great deal of time, aggravation, and legal expenses.

Thursday, May 28, 2009

Do I Need A Prenuptial Agreement?

One of the most common questions asked by couples about to enter into a marriage is, "Do we need a prenuptial agreement?" Unfortunately, the answer to this question is very vague: "It depends."

First, let's talk about the typical situation where a prenuptial agreement is not necessary. When both partners are at relatively the same stage in life, a prenuptial agreement is generally not important. The same life stage can be defined as:

  • Both people are marrying for the first time
  • Neither has any children from a prior relationship
  • Both have similar incomes
  • Neither party has acquired any significant assets

A prenuptial agreement is necessary in situations where there is a disparity in assets or wealth between the marrying parties, or where one or both parties has children and wants to ensure that his or her wealth goes to the children.

In a typical prenuptial agreement, one or both parties agree to give up certain property rights that would be bestowed upon that party by law as a result of marriage. A prenuptial agreement allows each party to be able to dictate where his or her wealth will be distributed in the event of an untimely end to the marriage, whether through death or divorce.

The marrying couple can agree to just about anything in a prenuptial agreement. It can be unfair or imbalanced, as long as it is not unconscionable. In order to ensure that a prenuptial agreement will be upheld in court, both parties must have equal representation in the negotiation and execution of the agreement, and the agreement must contain as an exhibit a comprehensive financial statement of each party.

These agreements are highly technical documents, and it is important to have an experienced matrimonial law attorney draft it. Also, it is important to never sign a prenuptial agreement without having it reviewed by your attorney.

Thursday, April 23, 2009

Equitable Distribution

Years ago, ownership of title to property was the determining factor as to which spouse would receive the property after a divorce. For example, if the marital residence was purchased during the marriage but only one spouse was listed on the title to the property, that spouse would always receive the house in the divorce, regardless of which spouse contributed the money to purchase the home. Similarly, a bank account, pension account, 401K plan, or business that was titled in one spouse's name would be awarded to that spouse in its entirety.

During the 1970's and 1980's, the philosophy of "marriage as an economic partnership" began to develop. As a result, many states passed legislation modifying divorce laws so that title would no longer be the determining factor in the distribution of marital property during a divorce.

Today, in most states where Equitable Distribution is the law, property is defined in one of two ways:

  • Marital property
  • Separate property

Any property acquired during the marriage, regardless of who holds the title, is considered marital property. The only exceptions to this are:

  • Gifts
  • Inheritances
  • Personal injury awards

The above exceptions as well as any property or assets acquired prior to the marriage and kept separate (not co-mingled) are considered separate property.

Some assets can be partly marital and partly separate. For example, if a husband was enrolled in his employer's pension plan for 5 years prior to the marriage and then for 20 years during the marriage, then 80% of the pension would be considered marital property and 20% would be considered separate property. The 20% would be distributed to the titled spouse, while the 80% would be distributed equally to each party.

Equitable Distribution does not necessarily require equal distribution. For example, if a business was established during the marriage but was worked exclusively by one spouse, the value of the business does not necessarily have to be split equally. If the husband worked the business with no contributions from the wife, the court can look to the wife's other contributions to the marriage (i.e. homemaking, child rearing, entertaining clients) and determine an "equitable" percentage of the business to award to the wife. That percentage will often be less than half.

Normally, assets such as homes, cars, boats, bank accounts, pensions, IRAs, 401Ks, and other forms of savings and investments will be distributed equally. Businesses where there is unequal active participation of each spouse will generally be distributed unequally, similarly to businesses where only one spouse participated.

As a result of Equitable Distribution laws, couples entering a marriage should consider a prenuptial agreement, especially in situations where there has been an unequal accumulation of assets prior to the marriage.

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Disclaimer: Information contained throughout The Divorce Directory is intended to generally inform you about divorce law and introduce you to divorce attorneys throughout the U.S. The information regarding divorce and divorce law is not meant to be taken as legal advice. If you like to speak with an experienced divorce attorney, click on the link to your state to find an experienced divorce lawyer in your area for an initial consultation.