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Main Forums => General Issues => Topic started by: nicole_80sgirl on Jul 31, 2007, 06:19:49 PM

Title: Using the same attorney
Post by: nicole_80sgirl on Jul 31, 2007, 06:19:49 PM
I live in Missouri and me and my husband are going to get a divorce. We have 3 children together. We know an attorney and we have used her in the past for custody of my husbands daughter and she said she would do our divorce for $500 and we pay the filing fee as long as it's not contested.  

The judge in our county does not grant shared custody. My husband has talked about having joint legal and physical custody and I explained to him that I thought one of use would still be the primary one with physical custody and he doesn't like that. I have been that one that has had most of the responsiblities of taking care of our children and I would want to be the one with primary physical custody. Honestly, I think he just doesn't want to pay child support. I'm not worried about child support because I know I can support our children by myself because I'm doing it right now.

My husband is also in the middle of a huge mess. His 16 year old daughter accused him of raping her and he has been to jail and has an attorney. I don't think he did it. I know that sounds crazy, but I'm really confused about what to do. Does anyone have any suggestions?
Title: Yeah.................
Post by: Kitty C. on Jul 31, 2007, 10:43:53 PM
If you both want to use the same atty. to save money and it's not contested, then you don't go to court to dispute it.  It doesn't make any difference what the judge thinks...if that's the agreement you come up with, that's what you get.

But I think you are confused on this 'joint physical custody' issue.  Many divorcing women automatically think that if the father wants joint physical and legal custody, it's because they don't want to pay support.  Did you ever stop to think that maybe he loves his children and wants to have equal say and effort into raising them?  And what makes you think that if he doesn't pay support, he's not taking care of his kids financially?  

The idea of support is to make sure that BOTH parents are equally supporting their kids financially, regardless of whom the kids live with.  So if you share physical custody equally, you would still be paying equally.  The other financial details to work out would be in who carries insurance, how OOP medical and dental expenses are handled, and how to split costs that are over and above normal, every days expenses (extra-curricular activities, high dollar toys, etc).  Then you have the special custody issues that must be worked out, like where the kids spend the holidays and how vacations are worked out.

Sorry if I sound crass, but that old dig that fathers who want to share in raising the children that they love are ONLY doing it to get out of paying support is just plain ignorant.  Just because you carried them for 9 months and gave birth to them doesn't mean he loves them any less than you do or would take care of them worse than you.  He may not take care of them EXACTLY the way you want him to (within legal limits), but that's not for you to say once you split.  His way of parenting will not be like yours..........the reason why God made it possible to have children ONLY by having a male and female come together, because children MUST HAVE the influence of both to grow up as well rounded individuals.  

The best possible outcome for your children is to have constant and continuous contact with both parents, and having a 50/50 split with physical custody and joint legal will ensure that.  But ONLY if you are willing to put any differences you may have with each other aside and be willing to co-parent with him.  You must have thought enough of him at one point to have 3 children with him, now you will still be in each other's lives as long as those children are alive.  For your children's sake, you both need to be the better person and put their needs first.  And what they need the most is BOTH their parents.

Again, I apologize if this sounds crass, but this is a sore subject with me......my SS suffered for years because his mother hated DH so much, she thought she could make him pay for the supposed hurt he caused her by limiting his contact with SS to the absolute minimum that the court would allow.  And we only live 2 blocks apart.  Can you imagine living so close to your child and only seeing them 96 hours a month????  Thank God for SS's sake, she went through another divorce and 'saw the light'.....now we see him at least every weekend, since DH now works out of town all week.  And SS relishes EVERY minute of it.
Title: RE: Yeah.................
Post by: mistoffolees on Aug 01, 2007, 08:51:09 AM
>If you both want to use the same atty. to save money and it's
>not contested, then you don't go to court to dispute it.  It
>doesn't make any difference what the judge thinks...if that's
>the agreement you come up with, that's what you get.

Be careful. This is not always the case. In some jurisdictions, the judge will not allow an agreement that the parties work out if he thinks it is not in the best interest of the child(ren). Best to ask the attorney specifically if he/she knows any reason the judge might not approve the deal they've worked out.

Even more importantly, they could work out a deal and go to the judge with it, but either party can change their mind at the last minute - creating a huge mess.

Personally, I think it's best to have separate attorneys even if the divorce is agreeable. Less surprises that way. And if they truly HAVE agreed on all issues, it won't be that much more expensive. However, in this case, it doesn't appear that they agree on all issues - which makes a single, shared attorney an even worse idea.

>
>But I think you are confused on this 'joint physical custody'
>issue.  Many divorcing women automatically think that if the
>father wants joint physical and legal custody, it's because
>they don't want to pay support.  Did you ever stop to think
>that maybe he loves his children and wants to have equal say
>and effort into raising them?

I agree with everything else you wrote (trimmed for brevity).
Title: Thanks for the clarification, mist...........eom
Post by: Kitty C. on Aug 01, 2007, 09:08:18 AM
:-)
Title: RE: Thanks for the clarification, mist...........eom
Post by: nicole_80sgirl on Aug 03, 2007, 09:39:45 PM
Well, my husband doesn't have a job and has told me he won't be able to pay support. He is trying to get disability and has been trying to for 4 years now. He's been turned down 2 times with an attorney he is waiting on the 3rd appeal. I'm really not worried about the support and I wouldn't keep the kids from him because he's not able to pay.  He does what he can to make money on the side which I know is illegal but I can't stop him.

He has been staying with the kids while I work through the week and when I call home he is always laying on the couch and half the time he is sleeping or he isn't even there and left the 12  and 9 year old home to watch the 2 year old. Then he was supposed to have them this weekend but decided he needed a break. Yet, he tells me he'd like to have custody of them.

I really don't think the same attorney will work anyway. It's like a roller coaster with him, everyday is a different story. I don't know, there is so much confusion right now. There's no telling what tomorrow brings. Thanks for the responses. :)
Title: RE: Yeah.................
Post by: Samson2005 on Sep 27, 2007, 09:51:09 PM
Depending on the state, either parent may be able to refuse to let the court make decisions concering the raising of your children. That is a fundamental right under the US constitution. Never let them get involved one Tad, or else you give them jurisdiction over you all.
Title: RE: Using the same attorney
Post by: Samson2005 on Sep 27, 2007, 09:52:10 PM
Depending on the state, either parent may be able to refuse to let the court make decisions concering the raising of your children. That is a fundamental right under the US constitution. Never let them get involved one Tad, or else you give them jurisdiction over you all.
Title: RE: Using the same attorney
Post by: mistoffolees on Sep 28, 2007, 07:00:21 AM
>Depending on the state, either parent may be able to refuse
>to let the court make decisions concering the raising of your
>children. That is a fundamental right under the US
>constitution. Never let them get involved one Tad, or else you
>give them jurisdiction over you all.

I think you're confused. I don't believe you have any rights to tell the court you don't want them to be involved. If the court gets involved (and they ARE involved if you file for divorce), they have every right in the world to set limits.

Of course, you're free to exercise that alleged constitutional right from your jail cell if you wish.
Title: RE: Using the same attorney
Post by: Samson2005 on Sep 28, 2007, 07:08:12 AM
mist, you are misguided here.

you can get a divorce and refuse to give the court jusidtiction over your children. they will not be discussed.
Title: RE: Using the same attorney
Post by: mistoffolees on Sep 28, 2007, 07:37:18 AM
>mist, you are misguided here.
>
>you can get a divorce and refuse to give the court
>jusidtiction over your children. they will not be discussed.


I'd like to see you tell the judge he can't get involved. By its very nature, family court has the right to get involved essentially any time they wish. Admittedly, if no one ever approaches the court about the kids, the court isn't going to stick their nose in it. But it doesn't take very much to bring it to the court's attention.

Furthermore, if you don't resolve custody issues at the beginning, they only get worse. This board is full of stories about people who have messes on their hands that could have been averted if they had resolved issues up front.

IMHO, trying to settle these issues without getting court approval is a sure-fired route to disaster. And telling the court that you aren't interested in their opinion is even worse.
Title: RE: Using the same attorney
Post by: Samson2005 on Sep 28, 2007, 07:56:00 AM
Most of the stories on this board are from people who have had difficulties, yes. Most people don't go around talking about how smooth their lives are. They reach out when there is a problem.

Alot of people don't know it, but they can refuse to allow the court to make decisions concerning their children unless it is proven that they are in danger.

People essentially are ASKING the court to get involved with their children when they go there arguing about who will be where and when.

Get a divorce and refuse to discuss the children to not give the court jurisdiction if you are able.

Bless you both if you are capable of raising your children without getting the monsters involved. It is your right as Americans to raise your children as long as they are not endangered.

If you're getting divorced and the judge or one of the lawyers starts talking about your children (they see dollar signs). Say that you refuse to allow the court to even discuss them.
Title: RE: Using the same attorney
Post by: mistoffolees on Sep 28, 2007, 09:33:03 AM
>If you're getting divorced and the judge or one of the lawyers
>starts talking about your children (they see dollar signs).
>Say that you refuse to allow the court to even discuss them.


If you don't mind spending some time in jail for contempt of court.

You have no legal right to tell the court to jump in a lake.
Title: RE: Using the same attorney
Post by: Samson2005 on Sep 28, 2007, 10:02:43 AM
a court does not have jurisdiction over anyone and everyone that walks in there.

most of the time divorcing couples unwittingly relinquish jurisdiction of their children during the divorce process and the lawyers almost NEVER tell them that because of the wealth gained from contested custody issued.

Even just one parent (when the other is seeking the court's involvement)can object to the court exercising power over his child as a violation of the constitutional rights of himself and the child.

you really should not state your opinions as fact in a place like this.
Title: RE: Using the same attorney
Post by: mistoffolees on Sep 28, 2007, 10:19:39 AM
>you really should not state your opinions as fact in a place
>like this.

Nor should you.

The difference, of course, is that my opinion is based on the collective experience of 300 million Americans over 200 years. If a court says it has jurisdiction, it does - until you take it to the Supreme Court and win. Since there have not been any cases where anyone has taken this to the Supreme Court, the court's saying that it has jurisdiction is sufficient.

You're the one making the incredible claim (that you can tell the court to p*** off if you wish), Seems to me that it's about time for you to prove that claim.
Title: apologies to OP for being off topic
Post by: Samson2005 on Sep 28, 2007, 05:27:45 PM
Mist, I think I recall having this discussion with a well known lawyer in this state. You are welcome to call him and discuss the issue if you please, just let me know if you want his contact info.

Anyway, here is something I found on the web:

How to object to personal jurisdiction.
* 735 ILCS 5/1-301. Before filing any other pleading, file a Special and Limited Appearance. WARNING: Any Appearance that is not a Special Appearance is a general Appearance.
* If the reason for your objection to the personal jurisdiction is not apparent from the papers already in the court file, the Special and Limited Appearance must be supported by an Affidavit setting out the reasons.
* Make certain you only pray that the Court determines it has no personal jurisdiction. If you request any other relief, you are submitting your client to the jurisdiction of the court and yourself to a possible malpractice claim. Do not pray for attorney’s fees. Do not pray for such further or different relief as the court deems appropriate. Do not pray for a substitution of judge.
* If you win this motion, the case is over as far as your client is concerned.
* If you lose this motion, you have a horrible choice to make. Do you convert your Special and Limited Appearance to a general Appearance and participate in the case? (If you do, and a judgment is entered against your client, you can no longer appeal the jurisdictional issue).
* The other alternative is to not participate in the rest of the case, have a default judgment entered against your client and then appeal the jurisdictional issue at the conclusion of the case.


Title: RE: apologies to OP for being off topic
Post by: mistoffolees on Sep 28, 2007, 08:01:53 PM
>Mist, I think I recall having this discussion with a well
>known lawyer in this state. You are welcome to call him and
>discuss the issue if you please, just let me know if you want
>his contact info.
>
>Anyway, here is something I found on the web:
>
>How to object to personal jurisdiction.
>* 735 ILCS 5/1-301. Before filing any other pleading, file a
>Special and Limited Appearance. WARNING: Any Appearance that
>is not a Special Appearance is a general Appearance.
>* If the reason for your objection to the personal
>jurisdiction is not apparent from the papers already in the
>court file, the Special and Limited Appearance must be
>supported by an Affidavit setting out the reasons.
>* Make certain you only pray that the Court determines it has
>no personal jurisdiction. If you request any other relief, you
>are submitting your client to the jurisdiction of the court
>and yourself to a possible malpractice claim. Do not pray for
>attorney’s fees. Do not pray for such further or different
>relief as the court deems appropriate. Do not pray for a
>substitution of judge.
>* If you win this motion, the case is over as far as your
>client is concerned.
>* If you lose this motion, you have a horrible choice to make.
>Do you convert your Special and Limited Appearance to a
>general Appearance and participate in the case? (If you do,
>and a judgment is entered against your client, you can no
>longer appeal the jurisdictional issue).
>* The other alternative is to not participate in the rest of
>the case, have a default judgment entered against your client
>and then appeal the jurisdictional issue at the conclusion of
>the case.

That's nice. Now, if you ever come up with some evidence that you're allowed to tell a judge to get lost because you don't want him involved in your child custody case, feel free to provide it.

And, no, I'm not interested in retaining an attorney to discuss the matter.
Title: RE: apologies to OP for being off topic
Post by: Samson2005 on Sep 28, 2007, 10:01:20 PM
I guess there is no way for me to make sense to you then.. I've tried both ways.
Title: RE: apologies to OP for being off topic
Post by: mistoffolees on Sep 29, 2007, 06:00:35 AM
>I guess there is no way for me to make sense to you then..
>I've tried both ways.

Maybe you could try providing real evidence that you can tell a judge that they have no right to get involved in your case without penalty instead of just posting irrelevant ramblings.
Title: RE: Yeah.................
Post by: suebee on Oct 01, 2007, 07:36:11 AM
You have made some wonderful points not only for the person you responded to but for me. I've been the parent (mom) who lives 6 miles from my EX and kids (we have joint legal custody, he has physical custody) and have been kept from them except for what the specific visitation states for 2 years now.

My daughter said it best...as have you...kids need BOTH parents. My EX spent 2 years making me pay for hurting him and allowing his soon to be EX wife to delete me from my kids lives b/c of her mental instabilities and jealousy. Now that she is gone, my EX may have seen the light and wants to talk and I intend to do so cooperatively and amicably in order to make things better for our kids, b/c they've been through hell with his wife, and with he and I not coparenting.

The KIDS come FIRST and they are the ones who end up suffering the most when parents don't put aside all their messy emotions that have nothing to do with the kids.

Title: RE: apologies to OP for being off topic
Post by: lilywhite on Oct 01, 2007, 11:09:44 AM
>Mist, I think I recall having this discussion with a well
>known lawyer in this state. You are welcome to call him and
>discuss the issue if you please, just let me know if you want
>his contact info.
>
>Anyway, here is something I found on the web:
>
>How to object to personal jurisdiction.
>* 735 ILCS 5/1-301. Before filing any other pleading, file a
>Special and Limited Appearance. WARNING: Any Appearance that
>is not a Special Appearance is a general Appearance.
>* If the reason for your objection to the personal
>jurisdiction is not apparent from the papers already in the
>court file, the Special and Limited Appearance must be
>supported by an Affidavit setting out the reasons.
>* Make certain you only pray that the Court determines it has
>no personal jurisdiction. If you request any other relief, you
>are submitting your client to the jurisdiction of the court
>and yourself to a possible malpractice claim. Do not pray for
>attorney’s fees. Do not pray for such further or different
>relief as the court deems appropriate. Do not pray for a
>substitution of judge.
>* If you win this motion, the case is over as far as your
>client is concerned.
>* If you lose this motion, you have a horrible choice to make.
>Do you convert your Special and Limited Appearance to a
>general Appearance and participate in the case? (If you do,
>and a judgment is entered against your client, you can no
>longer appeal the jurisdictional issue).
>* The other alternative is to not participate in the rest of
>the case, have a default judgment entered against your client
>and then appeal the jurisdictional issue at the conclusion of
>the case.
>
>
>
But you left out the first part which says:  
"Personal Jurisdiction
A court has personal jurisdiction over a person who has been served with a summons anywhere in the State of Illinois. 735 ILCS 5/2-209(b)(1).
A Court may have jurisdiction over someone who has been served outside the State of Illinois if that person committed an act that submits him to the jurisdiction of the Illinois Court. 735 ILCS 5/2-208 and 209. This is commonly called the Long Arm Statute.
The United States Supreme Court decided Kulko vs. The Superior Court of California (1978). 98 S.Ct. 1690, 436 US 84. Couple divorced in New York. Wife and child moved to California. Father acquiesced to move. Mother sought to set child support in California against father. U. S. Supreme Court held that the due process clause of the 14th Amendment to the United States Constitution operates as a limitation on the jurisdiction of state courts to enter judgements affecting rights or interests of non-resident defendants. A valid judgment imposing a personal obligation may only be entered by a court having personal jurisdiction over the defendant. The existence of personal jurisdiction depends upon the presence of reasonable notice to the defendant that an action has been brought and a sufficient connection between the defendant and the forum state to make it fair to require the defense of the action in the forum state. There was not a sufficient connection in this case and the California court did not have jurisdiction over Mr. Kulko.
Similar Illinois Appellate Court decisions are:
Duncan vs. Duncan, 94 Ill.App.3d 868, 419 N.E.2d 700, 50 Ill.Dec.592 (3rd Dist. 1981).
In Re: The Marriage of Cody, 636 N.E.2d 1114, 201 Ill.Dec.682 (5th Dist. 1994).
Sections of 5/2-209 applicable to family practitioners are:
(5) With respect to actions for dissolution of marriage, declaration of invalidity or legal separation, maintaining a matrimonial domicile in Illinois at the time the cause of action arose or committing in Illinois an act giving rise to the cause of action..

(6) for an action under the Parentage Act, the performance of an act of sexual intercourse within the State of Illinois.

(8) the performance of sexual intercourse within the state which is claimed to have resulted in the conception of a child who resides in this state.

(9) the failure to support a child, spouse or former spouse who has continued to reside in this sate since the person either formerly resided with them in this state or directed them to reside in this state.

There are slightly different rules for personal jurisdiction under the Uniform Interstate Family Support Act. 750 ILCS 22/201. Long Arm jurisdiction can be obtained if the defendant resided with the child in Illinois, the defendant resided in Illinois and provided pre-natal expenses or support for the child, the child resides in Illinois as a result of the acts or directives of the defendant, the defendant engaged in sexual intercourse in Illinois and the child may have been conceived by that act, or of any other basis consistent with the constitutions of Illinois or the United States."

Then there's you part which is soley about long-arm jurisdiction.  If you live in Illinois, Illinois has jurisdiction (see the very first part).
Title: RE: apologies to OP for being off topic
Post by: Samson2005 on Oct 01, 2007, 11:16:05 AM
Yes, Illinois has jurisdiction IF you want them to make a decision regarding who has custody and visitation of the children.
Title: RE: apologies to OP for being off topic
Post by: Samson2005 on Oct 01, 2007, 11:34:11 AM
Q: Do we have to go to court if we agree on who should have custody?

A: Even if both of you agree on who should have custody, you should get an order from the court on your agreement. An order signed by the judge will protect each parent's rights and will allow a parent to enforce the order. The order should clearly state which parent will have custody, what type of custody was agreed to and the visitation schedule. The parents should present the agreed order to the judge.

http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=5005


This tells me that the court does not have power over people in this situation until it is given to them..
Title: RE: apologies to OP for being off topic
Post by: mistoffolees on Oct 01, 2007, 02:13:27 PM
>Q: Do we have to go to court if we agree on who should have
>custody?
>
>A: Even if both of you agree on who should have custody, you
>should get an order from the court on your agreement. An order
>signed by the judge will protect each parent's rights and will
>allow a parent to enforce the order. The order should clearly
>state which parent will have custody, what type of custody was
>agreed to and the visitation schedule. The parents should
>present the agreed order to the judge.
>
>http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=5005
>
>
>This tells me that the court does not have power over people
>in this situation until it is given to them..

That tells me you're reading what you wrote with a blind eye.

It says that if you agree on custody, the court can approve it. But since the court has to approve it, the court has final say.

In fact, it specifically states that you NEED to get the court's approval before custody is binding - which is exactly what I've been saying all along.

There's absolutely nothing in your citation that even hints that you can tell the judge to stay out of your affairs. In fact, it says exactly the opposite.