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General Issues / Divorce Overview
Jul 30, 2004, 11:27:55 PM
VISIT ONLINE AT Http://www.divorceprofessionals.com
INTRODUCTION
When you get married, you never consider that the person you love may later seem like your worst enemy. Yet, with a divorce rate hovering around fifty percent, it looms as a very real possibility. Often, divorce takes a very high toll, both financially and emotionally. No matter how well you prepare, the greatest toll of divorce falls on children. Your understanding of the issues and the form of dispute resolution you choose in your divorce may determine how you survive the process.
I have produced this handbook to provide people engaged in family law disputes with an understanding of the issues and procedures in the family court system. It is also my hope, that the information contained in this handbook will help parties involved in these disputes to insulate their children from the process and to learn to craft their own solutions before litigating their issues in a Courtroom.
The information in this handbook was derived from years of family law practice and is based generally upon existing family law statutes and case law. It is not intended to provide state specific legal information regarding your case or to replace the advice of an experienced family law attorney.
For additional information, bulletin boards, forms and laws and other family law resources for men and women, you may wish to visit our web site at http://www.divorceprofessionals.com.
DIVORCE - A FIFTY PERCENT PROPOSITION
Nobody marries with the expectation of failure. Married couples never contemplate that the person they once loved could later seem to be a stranger and perhaps even an enemy. Yet, statistics paint an ugly picture. Today, almost five out of every 10 marriages ends in divorce. Some studies place that figure even higher. Even more alarming are statistics that indicate that as many as "95 percent of all divorced people eventually remarry . . . 76 percent of second marriages fail within five years . . . .87 per cent of third marriages fail and 93 per cent of fourth marriages end in divorce within five years."
SOURCE: Http://answers.google.com/answers/threadview?id=363986
In divorce proceedings, women lose financially. Their standard of living may drop as much as thirty percent in the first year following a divorce. Men, may not suffer as great financially, however, they tend to lose parenting rights and precious time with their children.
There are several simple and logical ways to protect yourself financially if you believe your marriage is in jeopardy:
ONE: Keep Non-Marital Assets Separate.
Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding.
* Categories of non-marital assets include: property you inherit;
* proceeds from personal injury awards (ie. Worker's compensation or accident proceeds);
* items owned prior to marriage; and
* gifts to one party rather than the family.
If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.
TWO: Establish Your Own Credit.
Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.
THREE: Review Your Financial Holdings Regularly.
Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started. Records should include all bank accounts, investments, retirement records, stocks, bonds, automobile titles, tax returns, pay stubs, credit card statements, life insurance policies, health insurance benefits, real estate documents, and collectible records.
FOUR: Photograph Property.
Use a camera or video recorder to record the contents of your home and the major assets included on the property. This includes tools in the garage, appliances, artwork collectibles and any asset of value. After a divorce has been commenced assets often are taken from the property or hidden away. Having a clear and accurate record can be extremely important.
FIVE : Time Your Divorce.
The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't remarry, the non-earning spouse may qualify for Social Security benefits based on the ex-spouse's earnings when both reach the age of 62.
SIX: Close Joint Accounts.
If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed. You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by keeping accurate records.
SEVEN: Hire an Experienced Divorce Lawyer.
To ensure that you receive your important mail and messages, open a post office box that you can use for your mail before you separate. This can be important if you and your spouse are continuing to share the same residence.
EIGHT: Seek Emotional Support.
Divorce is most often an emotionally charged, frightening and draining experience. As a result, you will need to rely on your family and social support mechanisms to aid you in your journey through the divorce process. Instead, divorcing parties often take the opposite approach. Perhaps for reasons of sadness or shame, they isolate themselves from their important networks. This isolation can often result in what I refer to as the "Ostrich Syndrome." They stick their head in the sand and avoid addressing important divorce issues like a debtor ignoring mounting bills on a kitchen table. Too often, when these people realize their error, it is too late. They have irreparable harmed their case, lost property issues for lack of preparation, or acquiesced in inequitable financial support settlements. Your social resources are important. They should be there to pick you up emotionally. They are not there, however, to provide you legal advice. It is important to leave that to the experts that you will rely on in your divorce.
NINE: Put Aside Finances.
It is important to save money to hire an attorney before the divorce is actually filed. In some sense, you are building a war chest in order to maintain your defense. Even if you are able to resolve your case by agreement in the short run, you should always be prepared for the worst. All too often, one party may lose out in the divorce when they are no longer able to financially keep up the fight. Many of these parties wind up "pro se" (without an attorney) attempting to navigate the rough waters of divorce on their own. I compare this to asking someone who speaks no Latin to translate the language. The divorce process is the same way. It has its own customs, language and processes. If you are not trained to speak the language like a lawyer, you are likely to struggle greatly.
TEN: Hire an Experienced Divorce Lawyer.
It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding. There are many lawyers to choose from so it is important that you ask important questions in order to choose one that understands the issues and that shares your philosophy.
FINDING LAWYERS TO INTERVIEW
Divorce can be an intimidating process for the uninitiated. In law, there is no area that generates as much paper work or requires the filing of more forms. As a result, the process can be confusing, time consuming, and often, very costly financially and emotionally. As a result, choosing a lawyer may be the most important decision you make.
A good lawyer will:
* help you to understand and focus on the issues of your divorce without losing sight of the emotional nature of the proceedings;
* help you to prepare for court proceedings in advance;
* provide prompt and courteous responses to your questions;
* provide information and methods to help you reduce your legal fees.
To choose an attorney you should find a number of candidates to interview. The best way to find a good lawyer is to ask for a recommendation from someone you know and trust. However, don't just get names form you friends. Instead, ask them detailed questions regarding the specific strengths and weaknesses of the attorneys they recommend. Remember, not every lawyer is right for every client and your friend's lawyer may not be right for you. If you still need more prospects, you may locate a lawyer through your local bar association's attorney referral service or through an internet listing service.
There are also numerous attorney referral services on the internet:
* Divorce Net at http://www.divorcenet.com
* Divorce Source at http://www.divorcesource.com
* Divorce Headquarters at http://www.divorcehq.com
* Divorce Interactive http://www.divorceinteractive.com
* Martindale Hubbell at http://www.lawyers.com
* West Publishing at http://www.lawoffice.com
* Find Law at http://firms.findlaw.com/firms/
* Law Info at http://www.lawinfo.com
* Lawyer Shop at http://lawyershop.com
* Attorney Pages at http://www.attorneypages.com
* The Lawyer Source at http://www.thelawyersource.com
* Law Chek at http://www.lawsonline.com
* Law Guru at http://www.lawguru.com
* Laws Online at http://www.lawsonline.com
Finding lawyers is only the first step. A referral service simply compiles a listing of attorneys in your geographic without screening the attorneys listed for reputation or experience. You must still interview your attorney to determine whether he or she is qualified and whether his or her philosophy fits with your own.
INTERVIEWING CANDIDATES
It is important to remember that not every lawyer is appropriate for every client. It is important that your philosophy matches that of your attorney. Nothing is worse than feeling like your interests are not being represented or that you are being bullied into a settlement. The lawyer is there to provide you with advice on the legal issues and to plan strategies regarding the presentation of the case. However, the ultimate decisions regarding the legal issues are yours alone.
Remember, it is your case!
Most lawyers will offer a free initial consultation. You should speak with the lawyers that you intend to interview in advance regarding any costs associated with your first meeting. Meeting with a lawyer may seem intimidating. To ensure that you are prepared, you may wish to make out a list of questions or points that you would like to raise in the interview. Additionally, If you have already been served legal papers, bring them to the interview along with any correspondence or other relevant documents. This will allow the lawyer to assess the potential issues in your case.
Some questions you may wish to ask include the following:
* How long have you been a lawyer;
* What is your primary area of practice;
* Do you have any other practice areas;
* What percentage of your caseload is dedicated to divorce;
* Have you handled cases with issues similar to mine;
* Do you have a heavy caseload and do you have time for my case;
* Have you handled many divorce cases in my county;
* What is the divorce process in my county;
* What are the likely obstacles and issues in my case;
* What are my alternatives in resolving the issues;
* Is there any process you would recommend and why;
* Approximately how long will the process take;
* What are your rates and how often will you bill me;
* What are the costs I can expect in this case;
* What are the legal fees I can expect in this case;
* Will the lawyer accept payments on any outstanding balance;
* How will you keep me informed of the progress in my case;
* What kind of approach do think is appropriate and why -aggressive and unyielding, or cooperative.
* Who else in the office will be working on my case and what is their rate;
* Is there anything I can do to keep my legal fees down.
SELECTING YOUR LAWYER
When interviewing lawyers, you should listen carefully to the answers provided. However, equally important to assess the lawyer's personality. How does he or she make you feel? Confident? Frightened? Is the lawyer willing to spend time with you and provide answers at the initial meeting in a friendly manner? How you feel about your lawyer may affect your ability to communicate effectively with that person over emotional and highly personal matters. After each interview, assess the strengths and weaknesses of the candidate. Did the lawyer listen to you? Did the lawyer provide enough information to make you feel comfortable that he or she knew the law and procedure in your state and county? Did you feel confident?
ESTABLISHING A WORKING RELATIONSHIP
After you choose your lawyer, it is important to establish ground rules and philosophies to ensure that your are on the same wave length as your lawyer. What do you expect from your lawyer? What dies your lawyer expect from you?
It is important to discuss your specific objectives and the issues that are important to you. Together you may then plot a course to resolve those issues. You should also discuss avenues of communication. One complaint that is heard most often is that "my attorney did not return my call." Discuss the possible ways for you to communicate with your lawyer, including telephone, fax and/or e-mail.
If you have difficulty reaching your attorney, it is because the attorney is not available or has a court conflict. In such instances you should contact his secretary or legal assistant to schedule a telephone conference on the attorney's calendar. By scheduling the conference, you are assured of reaching your attorney at the designated time.
Be honest with your lawyer. Do not hold back relevant information even if it seems embarrassing. Your lawyer cannot protect your interests with only half of the facts. There is nothing worse than being surprised at trial by unexpected information.
Finally, if you have any questions about billing, raise them as soon as you receive a copy of your bill.
It is very important that you understand your legal fees and your lawyer=s billing procedure. You should talk specifically about those costs during your initial conference.
HOW MUCH WILL THE DIVORCE COST
It is difficult to determine how much a divorce will cost. However, after reviewing the likely issues, your method for resolving those issues, and hearing your philosophy of the case, a lawyer may be able to give you a range of expected expenses. Controlling the expenses in a divorce, however, is no easy task. Many of the factors contributing to legal costs are outside of your lawyer's control. The personality and philosophy of the your spouse=s attorney can affect the ultimate path that your divorce takes. Additionally, the ability of the parties to cooperate and communicate may also have a significant impact.
WRITTEN RETAINER AGREEMENTS
Your attorney is required to provide you with a written retainer agreement identifying the costs and hourly fees that will apply to your case. It is important that you read this document carefully and ask questions regarding any unclear issues. Signing a retainer agreement does not mean that you cannot fire your lawyer or that your lawyer cannot withdraw from the case. You may change lawyers at any time. The retainer agreement, however, will memorialize the terms of your billing relationship with the attorney. Once you have signed the retainer agreement, it is a legally binding and enforceable contract. Always keep a copy of your retainer agreement for later reference.
FLAT FEES
Fees charged by lawyers can vary from state to state and county to county. You may find a lawyer who charges a fixed flat fee for motions after a divorce or for uncontested proceedings where the parties have reached an agreement. In such instances, the amount of work which must be performed by the lawyer can be easily determined. This is a favorable payment method since you will know at the outset the total cost of the proceeding which will allow you to budget accordingly.
HOURLY FEES
In most contested cases, you will find that lawyers will bill out their time at an hourly rate. Although rates vary, you may expect your lawyer to bill out services at an hourly rate between $125 and $350 per hour. Reduced hourly rates may apply to services that are performed by associate attorneys, paralegals, law clerks or legal assistants in your attorney=s office. Hourly rates are influenced by your attorney=s legal experience, reputation and the demand for his/her services.
MINIMUM FEES
Lawyers may also charge minimum fees for specific services that are billed out as part of the divorce proceeding. For example, drafting a Motion or a Petitioner may be billed out at a flat rate of $200. You should discuss with your lawyer any minimum fees that may be applicable to your case.
MINIMUM BILLING INCREMENTS
Your lawyer may also bill out services based on a minimum billing increment. For example, your lawyer may bill out his or her time in twelve minute increments or two tenths of an hour. That means for any service no matter how short, the lawyers time is rounded up to the nearest twelve minute increment.
COSTS
In addition to your legal fees, you may be required to pay any costs that are incurred by your lawyer that are associated with your case. Costs may included charges for any filing fees, copies, mileage, faxing, service of papers, postage and parking. It is important for you to review and understand the costs that you are likely to incur.
EXPERTS
You may also be required to cover any costs related to necessary experts. Experts may be used to provide medical testimony or appraisals of real estate, business assets or personal property. Independent custody evaluators may be hired to perform a custody study or vocational experts may be necessary to determine what financial support is necessary. The need for experts depends greatly on the issues of your case. You should consult with your lawyer regarding the potential need for experts in your case and an estimate of the costs.
RETAINERS
Your attorney may request a "retainer fee." This is an advance payment against which any hourly fees and/or costs are assessed. The retainer is a form of security deposit to ensure payment of future legal fees.
PAYMENT ARRANGEMENTS
Most lawyers will require you to remain current on your legal fees. The reason for this, is that each month the lawyer must pay offices expenses related to rent, payroll, advertising and other overhead. Some attorneys may even require a new retainer when the original retainer is exhausted. If you are unable to remain current, you do have options that can be discussed with your lawyer.
Security for Fees
You may secure your legal fees by providing a lien against a marital or non-marital asset. Be sure to review any agreements related to security interests carefully. Moreover, if a security interests relates to real estate, it is necessary for your attorney to inform you that you have the right to have the agreement reviewed by separate counsel.
Wage Assignment
You may also suggest to your attorney a wage assignment which ensures a consistent monthly payment toward your legal fees.
Credit Cards
Most law offices will accept credit card payments.
LOW COST LEGAL SERVICES
If you cannot afford the legal fees charged by your lawyer, you may ask for the names of other lawyers of agencies that may provide services on a sliding fee scale or at a lower rate. Often there are non-profit legal aid agencies in your area that will accept income qualified applicants at reduced or no fee.
ORGANIZATION AND REDUCING LEGAL FEES
Simply by being organized and remaining actively involved in your case you may significantly reduce your legal fees. Your lawyer will provide you with a number of documents received during the proceeding. This may include correspondence, court notices or other legal documents. Not every document you receive will require you to respond. Additionally, you may not understand every document you receive. However, it is very important to review each piece of information and to contact your lawyer with any questions.
A. Keeping A File At Home.
To facilitate communication with your lawyer, it is important that you maintain a complete file at your residence. You may wish to use an expandable file pocket with individual folders for different types of documents. The initial folders you should have would include a correspondence folder for letters and memos; a "Pleadings" folder for any legal documents (these documents usually include a court caption). Maintaining a separate and organized file at your residence will allow you to review documents with your attorney by telephone saving you're the time and expense of an in office appointment.
B. Organizing Documents and Filling Out Requested Forms.
Even more important, during your legal proceeding you may be asked to provide documents, answer interrogatory questions or complete other court related forms. In providing the necessary information it is important that you understand what information is being requested and to follow your lawyers instructions to the letter in completing any forms. Do not hold back information. Assume that any information requested is necessary unless you are informed otherwise by your lawyer. If you provide disorganized or incomplete information, your attorney may spend a number of hours sorting through paperwork at an hourly rate. This can be avoided.
C. Compiling Questions
You should also keep a notebook of any issues and questions that you have for your attorney noting the date of your question or issue in your notebook. When you have a sufficient number of issues or questions, you should contact your attorney for answers. By waiting until you have a number of questions at one time, you may significantly reduce your legal fees. You should contact your attorney immediately in the event of any emergency. However, you should ask yourself, "Is this an emergency? And what can my lawyer do about it?" For example, a child is returned twenty minutes late from visitation is an unlikely emergency. Moreover, there is very little immediate impact your lawyer can have after the fact. Write down the information and provide to your lawyer at a convenient time.
D. Do Not Use Your Lawyer as a Therapist
Your lawyer is not a therapist and should not be used to unload your emotional issues. Though most lawyers, are trained to listen and lend a sympathetic ear, they are also on the clock and billing you for their time. You are far better off to find a professional therapist to help you through issues of separation, anger and resentment. They will help you to resolve those issue and may provide that help under an insurance policy or on a sliding fee scale.
E. Focus on the Legal Issues
Listen to your lawyer and focus on the legal issues of your case. All too often, divorce costs are driven up by emotional issues that do not relate to the legal issues. This can have a costly impact particularly when you spend hundreds of dollars on attorney's fees seeking items that are far less valuable and can be replaced. There are many examples where hundreds and even thousands of dollars have been spent to argue about couches, chairs, frying pans, dogs and cats. These items are replaceable. In property disputes, ask yourself "Do I really want this item, or am I simply asking for it because it will hurt my spouse. " Use the divorce process to "get out not to get even."
F. Don't Try to Cheat
Hiding assets and delaying the proceedings may result in higher legal fees. A Court has the ability to require you to pay your spouse=s legal costs if it believes that you have contributed unreasonably to the length and delay of the proceedings.
CHOOSING A DIVORCE PROCESS
Most people do not understand that they control their divorce process. They alone can choose how they will resolve their issues. In that context, there are hundreds of conflict resolution procedures or combinations of those procedures. In some cultures that may include community intervention and mediation. Not all divorces must spend a lengthy amount of time in the court system.
Obviously, the Cost of a divorce proceeding may depend on the process you choose. The more that you can accomplish on your own with your spouse, the lower the costs related to legal fees and other proceedings. Although the ways to resolve divorce issues are diverse and varied, I like to set out the more common divorce processes in levels, with the lowest level potentially being the least expensive and least contested. However, none of these levels operates in a vacuum, you may be mediating while your divorce progresses through court for example.
LEVEL ONE: DISCUSS ISSUES DIRECTLY.
To reduce legal expenses it may be possible to discuss the divorce issues with your spouse. Even if you cannot agree on all issues, you may resolve some. For example, property issues are generally easier issues to address. Any asset that is acquired during the marriage is marital. Any asset that is owned before marriage, inherited or gifted to one party may be non-marital. If you and your spouse can meet to define what assets you have, that is 25% of the battle. If you can then agree on what assets are marital or non-marital, you are half way there. If you can then agree on the value of the assets, you are 75% of the way toward resolving your property issues. The final step is determining the division, who gets what. In a divorce, your attorneys will go through these very same steps in a process called discovery. If you can make some progress before hiring a lawyer, you may save some costs. Obviously, the parenting issues and support issues are a bit more emotional and often difficult.
LEVEL TWO: MEDIATION.
If you are unable to speak with your spouse one on one because of acrimony and anger, or if your spouse has a much stronger personality than you, you may wish to try a mediator. A mediator is an independent neutral. The mediator does not give legal advice, but will try to keep the settlement negotiations controlled and civil and may even suggest documents that you may acquire or steps you may take to resolve your issues.
LEVEL THREE: COLLABORATIVE LAW.
Collaborative Law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to "trouble shoot and problem solve" rather than to fight and win. It does not exist in any laws or drafted Court procedures. In fact, it was a creation of attorneys who believed that the Court system creates adversaries and promotes fighting. As part of the Collaborative Law method, both parties retain separate attorneys whose job it is to help them settle the dispute. The process is carried out with a series of meetings with all parties present. Documents and information are freely exchanged without the formalities associated with the Court process. This generally saves money. Where the Court system would most likely not have the parties meet to discuss their issues for many months, if at all, Collaborative Law expedites the process with a meeting at the very beginning. This gets the matter off to a flying start without having to wait based on Court schedules. In fact, part of the Collaborative Law agreement is that neither party may go to court. If that should occur, the Collaborative Law process terminates and both attorneys are disqualified from any further involvement in the case.
LEVEL FOUR: COURT PROCEEDINGS.
A divorce action may be commenced by serving the other party with and filing a Summons and Petition. These documents notify the court of the divorce and start the court time lines. Each county has a slightly different process. In most counties where the parties disagree on custody or parenting schedules, the Court requires mediation (except in cases where domestic abuse has occurred). Additionally, if children are involved, both parents must attend a co-parenting class and often children over the age of 5 must attend a class on how to deal with parents involved in a divorce. As a general rule, Court time lines are very slow. A party may schedule a temporary hearing to determine what happens until the divorce is final. On a temporary basis the court will determine who resides in the house, who pays what bills, who has temporary custody, child support and maintenance issues. In most counties, if the parties do not resolve their issues and the matter proceeds to trial, that trial date will not occur for a year or more.
DOCUMENTS YOUR LAWYER WILL NEED
As part of the legal process, you will be required to provide documents related to the family finances including income, debts, assets and valuations. Your attorney is best able to represent you when the documents are provided in a complete and organized fashion. A complete document file can be instrumental to negotiating and resolving divorce issues without litigation. Even more significantly, however, if settlement is not possible, your documents may be absolutely necessary to support your case at trial.
Once again, organization may help to reduce your legal fees. I would suggest organizing the documents by the categories set out below. You may wish to include a cover sheet with each category listing each document that you have included.
INCOME INFORMATION
1. Your paycheck stubs from all sources of employment over the last year. At a minimum, try to provide paycheck stubs for the last three months.
2. If you can get them, your spouse's paycheck stubs for the same period of time. Those check stubs will often show year top date earnings and deductions.
3. If either you or your spouse is self-employed, any and all business documents demonstrating payments received or charges billed are necessary. This includes - (a) job bids (b) invoices for work performed (c) ledgers of payments received (d) Bank deposit slips (e) bank statements (f) independent contractor agreements (g) contracts agreements
4. If either you or your spouse is self-employed, documentation regarding business expenses is necessary. These may include check registers, canceled checks, payment receipts, check carbons, computerized income or expense records, financial statements, profit and loss statements, general ledgers.
5. At a minimum, copies of your joint or individual tax returns, both state and federal, for the past three years.
6. Copies of any business tax returns for any business in which you or your spouse hold an interest for the past three years.
7. If either party works for cash, necessary documentation may include:
* Check ledgers demonstrating expenses paid during marriage (a person working for cash will often have check registers that do not show payments for necessities of life such as groceries - the explanation for that omission is often cash payments)
* Any receipts for cash payments.
8. A copy of any financial statements or statements of net worth prepared by you or your spouse for the purpose of securing bank loans or for any other purpose.
9. Any other information that will help you establish your net worth, your spouse's net worth, your joint net worth, your income, and your spouse's income.
REAL ESTATE INFORMATION
10. Deeds, abstracts, and Torrens certificates showing the legal description of your homestead and any other real estate. Secure these from your mortgage company or lending institution if you do not have them.
11. Current mortgage statements on the first mortgage, second mortgage and/or home equity loans on the homestead and any other real estate.
12. All papers and documents covering the initial purchase of the homestead including the purchase agreement.
13. Any and all documents refinancing the loans on any parcel of real estate owned during the marriage (those refinancing documents are likely to include and appraisal of the property and a statement regarding income of the parties).
14. Tax assessor's statements on the homestead and other real properties.
SAVINGS AND CHECKING ACCOUNTS
15. Savings passbooks and savings certificates of individual or joint accounts held individually or jointly by you and your spouse.
16. Any and all bank statements for the past year from any account in your name or held jointly with your spouse.
17. If possible, list of corporate stocks or stock certificates owned by you and your spouse individually or jointly.
LIFE INSURANCE
18. Any current life insurance policies on your life, your spouse=s life or on your children whether it is an individual policy or a policy through your employer. To be complete you should provide any and all statements you have regarding that life insurance policy including any documents indicating a cash balance or loans against them.
DEBTS
19. An itemized list of all debts in either your name or the name of your spouse, with the attached invoices or statements for each. You should include any outstanding unsecured bills including credit cards, accounts payable, student loans and/or medical bills. The documents provided should include the statements at the time of your separation as well as the current balance.
DEFERRED COMPENSATION PLANS
20. A copy of the most recent statements for any:
(A) pension;
(B) retirement,
(C) profit sharing/401 K plan
(D) Mutual funds
(E) IRAs
AUTOMOBILES
21. Title or registration cards to all automobiles/boats/ATV=s/snowmobiles or other motor vehicles owned by you or your spouse individually or jointly.
22. Any documents demonstrating the current outstanding secured debt on the automobiles/boats/snowmobiles/ATV=s including payment coupons, amortization schedules or monthly invoices
EMPLOYMENT
23. Any job descriptions that may exist.
24. A current resume for you and your spouse.
25. Any benefits information related to you or your spouse=s employment including health insurance information
CUSTODY
26. Report Cards for the children.
27. Medical Records for the children.
28. Daycare records for the children.
29. Any homework assignments that you have signed or approved.
NECESSARY MONTHLY EXPENSES
30. You should provide your lawyer with a list of necessary monthly expenses. You should be prepared to support your list with documentation that the expenses listed are accurate. It can be devastating to your case financially, if you embellish your monthly expenses to the point that they are unbelievable and unsupportable. A chart for itemizing your monthly expenses is included on the next page.
ESTIMATED MONTHLY LIVING EXPENSES/BUDGET
Children Client -
FOOD/BEVERAGE
Groceries
Restaurant
HOUSING
Mortgage or Rent
Real Estate Tax
Insurance (home owners or renters)
Maintenance/Repairs
Second Mortgage
Home Equity Loan
UTILITIES
Electricity
Gas
Sewer & Water
Telephone
Telephone - Long Distance
Waste Disposal
Water Softener
Cable TV
FURNISHINGS/OPERATION
Services/Cleaning
Supplies
Furnishings/Equipment -
Lawn Service
Snow Removal
APPAREL/UPKEEP
Clothes/Shoes
Laundry/Dry Cleaning
Upkeep
GROOMING
Haircuts
Sundries
EDUCATION
Tuition
Transportation
Special Activities
Lunch Money
Tutoring
Books/Supplies
TRANSPORTATION
Auto Installment Payment
Auto Insurance
Maintenance/Repairs
Gasoline
License
Parking
Public Transportation
Replacement Reserve
CHILD CARE
Transportation
Baby Sitter
Day Care Center
Allowance
Camp
Lessons
Diaper Service
MEDICAL CARE
Doctor
Dentist
Orthodontist
Eyeglasses/Contact Lenses
Medicine/Drugs
Therapy
INSURANCE NOT DEDUCTED BY EMPLOYER
Life
Health
Personal Property
Personal Umbrella
MISCELLANEOUS
Child Support
Maintenance/Alimony
Income Taxes
Entertainment
Hobbies
Vacation
Gifts
Memberships
Subscriptions
Donations
Pets
Costs of Employment
Savings
Retirement
Postage
Bank Charges
OTHER
OTHER
OTHER
OTHER
OTHER
OTHER
UPCOMING SPECIAL EXPENSES: (not included above)
TOTAL:
TIPS TO ASSIST/TRAPS TO AVOID
During divorce proceedings, emotions run high. You may feel angry or betrayed. You may want to take immediate action. However, there are a number of pitfalls that you must avoid and tips to help you prepare your case.
RECORDED STATEMENTS.
In a contested divorce always assume that any statement you make is recorded. This includes telephone calls and answering machine messages. Do not say or do anything that you would not want a court to know about. In Minnesota it is legal to record any conversation that you are involved in. Such recordings are admissible in Court. However, it is a felony to record a conversation in which you are not involved. An example would be placing a recording device on a telephone to capture conversations between your spouse and another individual.
SPEAKING WITH OPPOSING COUNSEL.
Once you are represented by an attorney, opposing attorneys may not speak with you regarding the case. If they call you refer them to your attorney. Do not call them even if your lawyer is unavailable and you consider it an emergency.
SPEAKING WITH JUDGES.
Parties may not speak with or provide letters to a Judge unless it is part of a scheduled hearing. Contact without the other party present is called ex-parte contact and is prohibited.
PARENTING NOTEBOOKS.
In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your child(ren). What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party=s parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.
INDEPENDENT DOCUMENTATION.
In a custody proceeding courts are often faced with conflicting "he said" and "she said" testimony. It is very important to find independent documentation to verify any statements. For example, if you contend that you are the primary caretaker, reports from doctors, daycare provider or teachers may document your attendance at parent-teacher conferences, signing off on homework or taking the child to the doctor. It is very important that you acquire this documentation when possible. If domestic abuse is an issue, you may wish to document incidents with police calls to the homestead, police reports or orders related to domestic abuse. If drug or alcohol use is an issue, a driving record showing DWI arrests or drug charges may prove invaluable. This may also apply to any individuals that have frequent contact with the children. If they are a danger to the children, it is relevant.
INVOLVEMENT OF CHILDREN.
Avoid involving minor children in the proceeding. It is not appropriate to show your child court documents. This may harm the child emotionally and damage your case. Also, you should avoid blaming or vilifying the other parent in the child=s presence. Remind the child that the divorce is not their fault and is a parental dispute. Tell your child (no matter how you truly feel) that both parents love them.
PHOTOGRAPH PROPERTY.
To prepare for divorce, in addition to acquiring necessary documentation, you may wish to photograph or videotape your furnishings, personal property and real estate. By photographing the contents of your home, you will create a comprehensive log of your possessions and the condition of your home. It may be difficult at a later date to recall all items or necessary repairs.
DON'T LOSE YOUR TEMPER.
One of the most abused processes is the ORDER FOR PROTECTION or ABUSE RESTRAINING ORDER alleging domestic abuse. Do not get caught in this trap. It makes any custody battle very difficult since there is a presumption under Minnesota law that an abuser should not have custody. Do not yell, grab, hit, or throw anything in the presence of your spouse or, even more significantly, in the child(ren)'s presence. If your spouse tries to incite you, walk away. Something as simple as blocking someone's egress from a room may be considered abusive.
DIVORCE, LEGAL SEPARATION AND ANULLMENT
Divorce is often called a "Dissolution of Marriage" because it dissolves the Marital Contract. The only difference between a divorce and a legal separation is that a decree of legal separation does not terminate the marital status of the parties.
A decree of legal separation may be granted when the court finds that one or both parties need a legal separation. The same issues that are addressed in a divorce may be addressed as part of a legal separation including custody, child support, spousal maintenance, property division, debt division and payment of attorney's fees.
Annulment is the process by which a Court states that a marriage never legally existed. An annulment is a nullification of a marriage. In our modern world, an annulment tends to be more a creature of religion than of law. In the Catholic religion, for example, a person must obtain a religious (not a legal) annulment before they can remarry again in the Catholic faith. This annulment proceeding operates outside of the law and is recognized only by the Catholic Church.
Legal annulments are rarely granted and when they are, very specific circumstances must exist. Often people believe that they may annul a marriage simply because it was of a very short duration. That is not the case. In most cases an annulment may be granted if the intent to enter into a civil contract was not present at the time that the parties married. For example, an annulment may be granted if, at the time the marriage occurred, one party suffered from mental illness, married based on fraud (eg immigration purposes), was forced consent, was physical incapacity to consummate the marriage, or lacked consent to an underage marriage or bigamy occurred. Regardless o an annulment, children of that annulled marriage are considered legitimate. As a result, evening annulment cases, the court may award custody of children of the marriage and require payment of child support and support of a party.
WAITING PERIODS
There are a number of States that have waiting periods that apply before a divorce can be filed, before a divorce can be finalized or before a party can remarry after divorce. These periods are often called a cooling off periods. They are designed to dissuade parties from divorce and promote reconciliation. These waiting periods vary broadly in their application in each state.
For example, in the State of Maryland, the parties must live apart without any cohabitation for a period of one year before their divorce can be filed. In New Hampsire, state statutes establish a 6-month waiting period before divorce for families with children. Unlike many waiting periods, the period is begun by filing a declaration of intent to separate. It does not require the parties to stay separate, or that they have already filed for divorce. By contrast, in Wisconsin, the parties cannot finalize their divorce before 120 days has elapsed after they have filed for divorce. Additionally, any person divorced in Wisconsin must wait one year before they can remarry. Any marriage before that time would be consider void.
An excellent summary of state laws related to divorce waiting periods and waiting periods for remarriage can be found online at Government Social Security Site: http://policy.ssa.gov/poms.nsf/lnx/0200305165
These time periods may be shortened in some states if the divorce is a "fault" based proceeding.
NO FAULT DIVORCE
Most states have some form of Ano fault@ divorce system. In the not so distant past, divorces could only be granted for specified reasons such as infidelity or abandonment. This resulted in much highly emotional litigation that pitted one spouse against another with each painting the other as the "bad guy." As a result, most states, in order to minimize the impact of divorce on children and reduce costs associated with proving fault, have adopted "No Fault" statutes which generally requires only that one party believes that there has been an irretrievable breakdown of the marriage.
FAULT BASED DIVORCE
There are a few states that have also retained divorce processes based on fault. In states with fault based divorce, ground may include (1) adultery; (2) abandonment for one year; (3) imprisonment for certain period of time; (4) cruel and inhuman treatment; or (5) Drug/alcohol addiction. Proving fault may allow the parties to finalize their divorce at an earlier date without a cooling off period that is required by many state statutes. For the most part, fault does not affect any other issues. In other words, one party will not be awarded more property because the other party had an affair. By the same token, one party will not receive spousal support because the other party abandoned them.
JURISDICTION
To file for a divorce in any state, a party must meet the jurisdictional requirements spelled out in that State's statutes. In many states it is required that one party must have lived in the state for 180 days to one year and there must be no other divorce proceedings pending in other jurisdictions.
WHAT IF I DON'T WANT THE DIVORCE?
You may ask your spouse to attend counseling. However, you cannot force that person to attend counseling or to cooperate. If your spouse refuses, the divorce will move forward. In most counties, a Judge will grant a divorce if one party believes that an irretrievable breakdown of the marriage exists.
Once a divorce has been filed, it is important to promptly address the issues. Delay and foot dragging may impair your rights and result in an order requiring you to pay your spouse's attorney's fees if the Court finds that you have unreasonably contributed to the length and delay of the proceedings.
WHERE DO I FILE?
A proceeding for dissolution or legal separation may be brought by either or both spouses and is commenced by personal service of the summons and petition venued in the county where either spouse resides. "Residence" means the place where a party has established a permanent home from which the party has no present intention of moving.
SHOULD I FILE FIRST?
There is very little advantage to filing first.
One possible advantage is the ability to choose the county in which the case is filed. Another possible advantage is to allow the party filing to prepare in advance for the divorce proceeding. Where the parties have established two separate residences there may be two potential jurisdictions. Your attorney may have insight into the subtle biases of each county and the different processes used allowing him./her to choose a the more favorable forum.
CUSTODY OVERVIEW.
There are two types of custody, "legal" and "physical." Do not confuse these terms. They have two very different meanings and different effects.
Legal Custody
Legal Custody is the right to make decisions related to your minor children. Major decisions include
* Education: Where do you children attend school? Should they attend special classes or tutoring?
* Health care: What types of medical treatments should your child have? Who should be the doctor?
* Religion: What church, mosque or temple should your child attend? What religious education should your child attend? Should your child be baptized? If so, in what religion?
There is a strong presumption under Minnesota law that "legal custody" should be shared by the parents. The only time that legal custody is not shared is when the parents are unable to communicate and do not have any reasonable methods for resolving disputes. Often when parents have conflicting beliefs regarding legal custody issues, the Court may decide the one conflicting issue while still awarding parents joint legal custody on other issues. For example, the Court may determine a conflict regarding religion but still award joint legal custody regarding non-conflicting issues.
It is important to remember that an award of joint "legal custody" is not a basis for a downward departure in child support.
Physical Custody
Physical Custody is what most people think of when the term "custody" is mentioned. It may be referred to in different terms in different states. For example, Wisconsin refers to "physical custody" as "physical placement" or "primary physical residence."
Physical custody refers to the primary physical residence of the child. The presumption under law varies from state to state. In many states, there is a presumption that where the parent's cannot agree on physical custody, custody should be awarded to one parent or another to provide stability and prevent conflict. In more recent years, there has been a trend toward establishing statutes that presume that the parties should share physical custody. In 2003, the presumption for joint physical custody existed in only 20 states plus the District of Columbia. Some excellent references to psychological studies related to sole or joint physical custody exist at http://www.wiskit.com/marilyn/custody.html
Whatever the standard that is applied, it is common that the presumption can be rebutted by demonstrating that a different custodial relationship is in the best interests of the child.
To determine what is in a child=s best interests, a Court is required to look at the totality of circumstances surrounding the particular case at issue. However, the courts are often required to specifically address delineated factors spelled out in that state's statutes. Understanding those factors and addressing your custody arguments to those factors can be a critical part of the case. You must have a strategy and game plan in any custody dispute to present your case along with independent documentary evidence to support your position. If your case boils down to a "he said-she said" case alone, your chances of prevailing are greatly diminished and allow the court to issue rulings based on its particular bias. Historically, this has often favored mothers who were often the primary caretakers of the children in single income households. That result is only now slowly changing along with the trend for two income households as more women enter the workforce, often because of economic necessity. Some factors that state statutes often address are:
1 The wishes of the child's parent or parents as to custody;
2 the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference most Courts do not consider the child to be of suitable age until the age of twelve or more;
3 the child's primary caretaker (who cooked the meals, took the child to the doctor, bathed the child, attended school functions and extra-curricular activities, helped with homework, provided discipline);
4 the intimacy of the relationship between each parent and the child;
5 the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
6 the child's adjustment to home, school, and community;
7 the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8 the permanence, as a family unit, of the existing or proposed custodial home;
9 the mental and physical health of all individuals involved;
10 the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
11 the child's cultural background;
12 the effect on the child of the actions of an abuser that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
13 The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
Generally, courts may not use one factor to the exclusion of all others. Many people, attorneys included, tend to place a significant emphasis on which parent was the primary caretaker. However, this factor is only one of many and may not be used as a presumption in determining the best interests of the child.
Joint Physical Custody.
In order for a court to award joint custody, it must find that the parents have the ability to cooperate in rearing the children and have methods and a willingness to use methods for dispute resolution. In making such a determination, the Court must consider the following factors:
(a) the ability of parents to cooperate in the rearing of their children;
(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;
(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
(d) whether domestic abuse has occurred.
ALLEGATIONS OF ABUSE.
Allegations of sexual or physical abuse are taken very seriously. Seeking a restraining order as part of a divorce proceeding has become a common occurrence and is sometimes an abused process designed to gain advantage in a custody proceeding or to acquire an early court date to have one party removed from the home. A finding of domestic abuse, whether it involves the minor children or not, may have a dramatic impact on the divorce proceedings. There is a very strong presumption under Minnesota law that physical custody should not be awarded to a domestic abuser. That means, a person who has been the subject of an Order for Protection (restraining order) or convicted of domestic assault may be unable to acquire physical custody. For this reason, allegations of domestic abuse must be vigorously defended in order to preserve your rights in a custody battle. This can be a vexsome issue since Courts regularly elect to err on the side of caution granting restraining orders in cases where the allegations and evidence are very weak. Do not fall into this trap. As stated previously:
* Avoid all conflict if possible!
* Assume any thing you say or do is being recorded!
* Maintain your best behavior!
This can be very difficult in the emotional context of divorce. However, when you consider that most divorce cases are driven forward by emotional issues rather than legal ones, this becomes an absolute necessity to preserve your rights, facilitate settlement and reduce legal fees.
What is Domestic Abuse?
Domestic abuse is generally defined very broadly. Domestic abuse must be committed against a family or household member by a family or household member and include:
(1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or
(3) terroristic threats; criminal sexual conduct; or interference with an emergency call within the meaning of section.
"Family or household members" include spouses and former spouses, parents and children, persons related by blood, persons who are presently residing together or who have resided together in the past, persons who have a child in common regardless of whether they have been married or have lived together at any time; a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and persons involved in a significant romantic or sexual relationship.
False Allegations of Abuse.
False allegations of sexual or physical abuse are also taken very seriously. In many states there are statutes that allow the court to consider false allegations of abuse in making custody determinations. Moreover, false allegations of sexual or physical abuse to gain advantage in a custody proceeding may also result in criminal charges.
PREFERENCE OF CHILDEN.
Many people incorrectly believe that the children have an absolute right to choose where they will live. That is not the case. Under most state laws, a child may express a preference when that child has reached a suitable age and maturity level. Even if the child is able to express a preference, most courts do not place much weight on a child's preference before the age of twelve. Even at that age and older, the child's preference is only one factor out of the many statutory factors for determining custody.
Children as Witnesses.
Many parents wish to know if their children can be called as witnesses. Although opinions on this topic may vary, most psychologists agree that placing a child in the role of a witness can be very traumatic and is usually not in their best interests. Children present testimony in only rare cases. Where cases do require the testimony of children, Courts will often require that a Guardian Ad Litem speak with them and represent their interests and statements to the Court. The Court may also speak to the children directly in a less intimidating setting such as the Judge's chambers.
Extra-Marital Affairs.
Most states have Ano fault@ statutes. That means that you do not have to cite a reason for a divorce. Instead, it is only necessary that the relationship of the parties is irretrievably broken down. As a result, blame and shame are removed from the proceedings. Many people believe that an extra-marital affair makes a spouse an inappropriate parent to have custody. However, most courts view the extra-marital affair as irrelevant to the divorce issues. This is true even is states with fault based grounds. Courts will not render moral decisions. An extra-marital affair only becomes relevant if it somehow affects the "best interests" of the minor children. This occur only in limited cases where the parent's new significant other can be shown to have contact with and endanger the children.
Parenting Rights.
Custodial and non-custodial parents have certain parental rights. Those include the following:
· Medical Care and Medical Records. Each party has the right of access to, and to receive copies of medical, dental, orthodontic, optometric and any other medical or psychological or counseling records and information regarding the minor child(ren). Presentation of a copy of this order to the custodian of a record, or other information, regarding the minor child(ren) constitutes sufficient authorization for the release of the record or information to the requesting party.
· School and School Records. Each party shall keep the other party informed as to the name and address of the school the minor child(ren) is/are attending. Each party has the right to be informed by school officials about the child(ren)'s welfare, education progress/status, school events, and the scheduling of parent/teacher conferences. The school is not required to hold a separate conference for each party. Each party has the right of access to, and to receive copies of any school, daycare or religious information, records, report cards or other materials related to the minor child(ren).
· Accident or Illness. In case of an accident or illness of the minor child(ren), each party shall notify the other party of the accident or illness, the name of the health care provider, and the place of treatment.
· Reasonable Telephone Contact. Each parent has a right of reasonable access and telephone contact with the minor children.
The Court may waive any of these rights if it finds that it is necessary to protect the welfare of the children.
PREFERENCE OF CHILDEN.
Parties in a divorce proceeding may also craft their own parenting plans.
A parenting plan is simply a schedule which sets out the care giving responsibilities of each parent. Parenting plans should include:
1 a schedule of the time each parent spends with the child;
2 a designation of decision-making responsibilities regarding the child; and
3 a method of dispute resolution.
A parenting plan may also include other issues and matters the parents agree to regarding the child.
CUSTODY EVALUATIONS
Where parents are unable to agree on parenting plans or custody issues, the Court will require a custody evaluation performed. This may be carried out by county social workers, psychologists or a Guardian Ad Litem. A Guardian Ad Litem is a person that is appointed by the Court to represent the interests of a person who is unable to do so for themselves. In the context of a custody case, the Guardian Ad Litem acts as a spokesperson regarding what the Guardian believes is in the child's best interests.
To present your case in a custody evaluation, it is important to develop an EARLY GAME PLAN based on the factors that the court is likely to consider in your State.
CUSTODY REPORTS
The person performing the evaluation will investigate the facts and generate a report that is provided to the Court. The report will usually include a summary of the investigation, an analysis of the thirteen custody factors set out in your state's statutes and a conclusion regarding what is in the child(ren)'s best interests.
THE USE OF CUSTODY EVALUATIONS
The Court is not required to adopt the recommendations of a custody evaluator. However, in most custody cases, the parties have very polar positions regarding the facts. This often boils down to a "He Said - She Said" Situation at trial. Where the evaluation was performed by a person appointed by the Court, the evaluator is considered a neutral party and their recommendation may hold considerable weight with a Judge who must weigh conflicting testimony. To combat an unfavorable custody report, your attorney will try to point out the deficiencies of the investigation performed and facts that may have been overlooked by the evaluator. It is may also be necessary to hire your own expert to conduct a separate custody evaluation and present a different recommendation at trial.
POWERS OF THE EVALUATOR
The custody evaluator often has broad power and may require the parties to provide releases of information for counseling, medical or psychological records. The evaluator may also require psychological testing, chemical dependency evaluations or random urinalysis tests as part of the investigation process. This is particularly t
INTRODUCTION
When you get married, you never consider that the person you love may later seem like your worst enemy. Yet, with a divorce rate hovering around fifty percent, it looms as a very real possibility. Often, divorce takes a very high toll, both financially and emotionally. No matter how well you prepare, the greatest toll of divorce falls on children. Your understanding of the issues and the form of dispute resolution you choose in your divorce may determine how you survive the process.
I have produced this handbook to provide people engaged in family law disputes with an understanding of the issues and procedures in the family court system. It is also my hope, that the information contained in this handbook will help parties involved in these disputes to insulate their children from the process and to learn to craft their own solutions before litigating their issues in a Courtroom.
The information in this handbook was derived from years of family law practice and is based generally upon existing family law statutes and case law. It is not intended to provide state specific legal information regarding your case or to replace the advice of an experienced family law attorney.
For additional information, bulletin boards, forms and laws and other family law resources for men and women, you may wish to visit our web site at http://www.divorceprofessionals.com.
DIVORCE - A FIFTY PERCENT PROPOSITION
Nobody marries with the expectation of failure. Married couples never contemplate that the person they once loved could later seem to be a stranger and perhaps even an enemy. Yet, statistics paint an ugly picture. Today, almost five out of every 10 marriages ends in divorce. Some studies place that figure even higher. Even more alarming are statistics that indicate that as many as "95 percent of all divorced people eventually remarry . . . 76 percent of second marriages fail within five years . . . .87 per cent of third marriages fail and 93 per cent of fourth marriages end in divorce within five years."
SOURCE: Http://answers.google.com/answers/threadview?id=363986
In divorce proceedings, women lose financially. Their standard of living may drop as much as thirty percent in the first year following a divorce. Men, may not suffer as great financially, however, they tend to lose parenting rights and precious time with their children.
There are several simple and logical ways to protect yourself financially if you believe your marriage is in jeopardy:
ONE: Keep Non-Marital Assets Separate.
Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding.
* Categories of non-marital assets include: property you inherit;
* proceeds from personal injury awards (ie. Worker's compensation or accident proceeds);
* items owned prior to marriage; and
* gifts to one party rather than the family.
If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.
TWO: Establish Your Own Credit.
Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.
THREE: Review Your Financial Holdings Regularly.
Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started. Records should include all bank accounts, investments, retirement records, stocks, bonds, automobile titles, tax returns, pay stubs, credit card statements, life insurance policies, health insurance benefits, real estate documents, and collectible records.
FOUR: Photograph Property.
Use a camera or video recorder to record the contents of your home and the major assets included on the property. This includes tools in the garage, appliances, artwork collectibles and any asset of value. After a divorce has been commenced assets often are taken from the property or hidden away. Having a clear and accurate record can be extremely important.
FIVE : Time Your Divorce.
The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't remarry, the non-earning spouse may qualify for Social Security benefits based on the ex-spouse's earnings when both reach the age of 62.
SIX: Close Joint Accounts.
If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed. You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by keeping accurate records.
SEVEN: Hire an Experienced Divorce Lawyer.
To ensure that you receive your important mail and messages, open a post office box that you can use for your mail before you separate. This can be important if you and your spouse are continuing to share the same residence.
EIGHT: Seek Emotional Support.
Divorce is most often an emotionally charged, frightening and draining experience. As a result, you will need to rely on your family and social support mechanisms to aid you in your journey through the divorce process. Instead, divorcing parties often take the opposite approach. Perhaps for reasons of sadness or shame, they isolate themselves from their important networks. This isolation can often result in what I refer to as the "Ostrich Syndrome." They stick their head in the sand and avoid addressing important divorce issues like a debtor ignoring mounting bills on a kitchen table. Too often, when these people realize their error, it is too late. They have irreparable harmed their case, lost property issues for lack of preparation, or acquiesced in inequitable financial support settlements. Your social resources are important. They should be there to pick you up emotionally. They are not there, however, to provide you legal advice. It is important to leave that to the experts that you will rely on in your divorce.
NINE: Put Aside Finances.
It is important to save money to hire an attorney before the divorce is actually filed. In some sense, you are building a war chest in order to maintain your defense. Even if you are able to resolve your case by agreement in the short run, you should always be prepared for the worst. All too often, one party may lose out in the divorce when they are no longer able to financially keep up the fight. Many of these parties wind up "pro se" (without an attorney) attempting to navigate the rough waters of divorce on their own. I compare this to asking someone who speaks no Latin to translate the language. The divorce process is the same way. It has its own customs, language and processes. If you are not trained to speak the language like a lawyer, you are likely to struggle greatly.
TEN: Hire an Experienced Divorce Lawyer.
It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding. There are many lawyers to choose from so it is important that you ask important questions in order to choose one that understands the issues and that shares your philosophy.
FINDING LAWYERS TO INTERVIEW
Divorce can be an intimidating process for the uninitiated. In law, there is no area that generates as much paper work or requires the filing of more forms. As a result, the process can be confusing, time consuming, and often, very costly financially and emotionally. As a result, choosing a lawyer may be the most important decision you make.
A good lawyer will:
* help you to understand and focus on the issues of your divorce without losing sight of the emotional nature of the proceedings;
* help you to prepare for court proceedings in advance;
* provide prompt and courteous responses to your questions;
* provide information and methods to help you reduce your legal fees.
To choose an attorney you should find a number of candidates to interview. The best way to find a good lawyer is to ask for a recommendation from someone you know and trust. However, don't just get names form you friends. Instead, ask them detailed questions regarding the specific strengths and weaknesses of the attorneys they recommend. Remember, not every lawyer is right for every client and your friend's lawyer may not be right for you. If you still need more prospects, you may locate a lawyer through your local bar association's attorney referral service or through an internet listing service.
There are also numerous attorney referral services on the internet:
* Divorce Net at http://www.divorcenet.com
* Divorce Source at http://www.divorcesource.com
* Divorce Headquarters at http://www.divorcehq.com
* Divorce Interactive http://www.divorceinteractive.com
* Martindale Hubbell at http://www.lawyers.com
* West Publishing at http://www.lawoffice.com
* Find Law at http://firms.findlaw.com/firms/
* Law Info at http://www.lawinfo.com
* Lawyer Shop at http://lawyershop.com
* Attorney Pages at http://www.attorneypages.com
* The Lawyer Source at http://www.thelawyersource.com
* Law Chek at http://www.lawsonline.com
* Law Guru at http://www.lawguru.com
* Laws Online at http://www.lawsonline.com
Finding lawyers is only the first step. A referral service simply compiles a listing of attorneys in your geographic without screening the attorneys listed for reputation or experience. You must still interview your attorney to determine whether he or she is qualified and whether his or her philosophy fits with your own.
INTERVIEWING CANDIDATES
It is important to remember that not every lawyer is appropriate for every client. It is important that your philosophy matches that of your attorney. Nothing is worse than feeling like your interests are not being represented or that you are being bullied into a settlement. The lawyer is there to provide you with advice on the legal issues and to plan strategies regarding the presentation of the case. However, the ultimate decisions regarding the legal issues are yours alone.
Remember, it is your case!
Most lawyers will offer a free initial consultation. You should speak with the lawyers that you intend to interview in advance regarding any costs associated with your first meeting. Meeting with a lawyer may seem intimidating. To ensure that you are prepared, you may wish to make out a list of questions or points that you would like to raise in the interview. Additionally, If you have already been served legal papers, bring them to the interview along with any correspondence or other relevant documents. This will allow the lawyer to assess the potential issues in your case.
Some questions you may wish to ask include the following:
* How long have you been a lawyer;
* What is your primary area of practice;
* Do you have any other practice areas;
* What percentage of your caseload is dedicated to divorce;
* Have you handled cases with issues similar to mine;
* Do you have a heavy caseload and do you have time for my case;
* Have you handled many divorce cases in my county;
* What is the divorce process in my county;
* What are the likely obstacles and issues in my case;
* What are my alternatives in resolving the issues;
* Is there any process you would recommend and why;
* Approximately how long will the process take;
* What are your rates and how often will you bill me;
* What are the costs I can expect in this case;
* What are the legal fees I can expect in this case;
* Will the lawyer accept payments on any outstanding balance;
* How will you keep me informed of the progress in my case;
* What kind of approach do think is appropriate and why -aggressive and unyielding, or cooperative.
* Who else in the office will be working on my case and what is their rate;
* Is there anything I can do to keep my legal fees down.
SELECTING YOUR LAWYER
When interviewing lawyers, you should listen carefully to the answers provided. However, equally important to assess the lawyer's personality. How does he or she make you feel? Confident? Frightened? Is the lawyer willing to spend time with you and provide answers at the initial meeting in a friendly manner? How you feel about your lawyer may affect your ability to communicate effectively with that person over emotional and highly personal matters. After each interview, assess the strengths and weaknesses of the candidate. Did the lawyer listen to you? Did the lawyer provide enough information to make you feel comfortable that he or she knew the law and procedure in your state and county? Did you feel confident?
ESTABLISHING A WORKING RELATIONSHIP
After you choose your lawyer, it is important to establish ground rules and philosophies to ensure that your are on the same wave length as your lawyer. What do you expect from your lawyer? What dies your lawyer expect from you?
It is important to discuss your specific objectives and the issues that are important to you. Together you may then plot a course to resolve those issues. You should also discuss avenues of communication. One complaint that is heard most often is that "my attorney did not return my call." Discuss the possible ways for you to communicate with your lawyer, including telephone, fax and/or e-mail.
If you have difficulty reaching your attorney, it is because the attorney is not available or has a court conflict. In such instances you should contact his secretary or legal assistant to schedule a telephone conference on the attorney's calendar. By scheduling the conference, you are assured of reaching your attorney at the designated time.
Be honest with your lawyer. Do not hold back relevant information even if it seems embarrassing. Your lawyer cannot protect your interests with only half of the facts. There is nothing worse than being surprised at trial by unexpected information.
Finally, if you have any questions about billing, raise them as soon as you receive a copy of your bill.
It is very important that you understand your legal fees and your lawyer=s billing procedure. You should talk specifically about those costs during your initial conference.
HOW MUCH WILL THE DIVORCE COST
It is difficult to determine how much a divorce will cost. However, after reviewing the likely issues, your method for resolving those issues, and hearing your philosophy of the case, a lawyer may be able to give you a range of expected expenses. Controlling the expenses in a divorce, however, is no easy task. Many of the factors contributing to legal costs are outside of your lawyer's control. The personality and philosophy of the your spouse=s attorney can affect the ultimate path that your divorce takes. Additionally, the ability of the parties to cooperate and communicate may also have a significant impact.
WRITTEN RETAINER AGREEMENTS
Your attorney is required to provide you with a written retainer agreement identifying the costs and hourly fees that will apply to your case. It is important that you read this document carefully and ask questions regarding any unclear issues. Signing a retainer agreement does not mean that you cannot fire your lawyer or that your lawyer cannot withdraw from the case. You may change lawyers at any time. The retainer agreement, however, will memorialize the terms of your billing relationship with the attorney. Once you have signed the retainer agreement, it is a legally binding and enforceable contract. Always keep a copy of your retainer agreement for later reference.
FLAT FEES
Fees charged by lawyers can vary from state to state and county to county. You may find a lawyer who charges a fixed flat fee for motions after a divorce or for uncontested proceedings where the parties have reached an agreement. In such instances, the amount of work which must be performed by the lawyer can be easily determined. This is a favorable payment method since you will know at the outset the total cost of the proceeding which will allow you to budget accordingly.
HOURLY FEES
In most contested cases, you will find that lawyers will bill out their time at an hourly rate. Although rates vary, you may expect your lawyer to bill out services at an hourly rate between $125 and $350 per hour. Reduced hourly rates may apply to services that are performed by associate attorneys, paralegals, law clerks or legal assistants in your attorney=s office. Hourly rates are influenced by your attorney=s legal experience, reputation and the demand for his/her services.
MINIMUM FEES
Lawyers may also charge minimum fees for specific services that are billed out as part of the divorce proceeding. For example, drafting a Motion or a Petitioner may be billed out at a flat rate of $200. You should discuss with your lawyer any minimum fees that may be applicable to your case.
MINIMUM BILLING INCREMENTS
Your lawyer may also bill out services based on a minimum billing increment. For example, your lawyer may bill out his or her time in twelve minute increments or two tenths of an hour. That means for any service no matter how short, the lawyers time is rounded up to the nearest twelve minute increment.
COSTS
In addition to your legal fees, you may be required to pay any costs that are incurred by your lawyer that are associated with your case. Costs may included charges for any filing fees, copies, mileage, faxing, service of papers, postage and parking. It is important for you to review and understand the costs that you are likely to incur.
EXPERTS
You may also be required to cover any costs related to necessary experts. Experts may be used to provide medical testimony or appraisals of real estate, business assets or personal property. Independent custody evaluators may be hired to perform a custody study or vocational experts may be necessary to determine what financial support is necessary. The need for experts depends greatly on the issues of your case. You should consult with your lawyer regarding the potential need for experts in your case and an estimate of the costs.
RETAINERS
Your attorney may request a "retainer fee." This is an advance payment against which any hourly fees and/or costs are assessed. The retainer is a form of security deposit to ensure payment of future legal fees.
PAYMENT ARRANGEMENTS
Most lawyers will require you to remain current on your legal fees. The reason for this, is that each month the lawyer must pay offices expenses related to rent, payroll, advertising and other overhead. Some attorneys may even require a new retainer when the original retainer is exhausted. If you are unable to remain current, you do have options that can be discussed with your lawyer.
Security for Fees
You may secure your legal fees by providing a lien against a marital or non-marital asset. Be sure to review any agreements related to security interests carefully. Moreover, if a security interests relates to real estate, it is necessary for your attorney to inform you that you have the right to have the agreement reviewed by separate counsel.
Wage Assignment
You may also suggest to your attorney a wage assignment which ensures a consistent monthly payment toward your legal fees.
Credit Cards
Most law offices will accept credit card payments.
LOW COST LEGAL SERVICES
If you cannot afford the legal fees charged by your lawyer, you may ask for the names of other lawyers of agencies that may provide services on a sliding fee scale or at a lower rate. Often there are non-profit legal aid agencies in your area that will accept income qualified applicants at reduced or no fee.
ORGANIZATION AND REDUCING LEGAL FEES
Simply by being organized and remaining actively involved in your case you may significantly reduce your legal fees. Your lawyer will provide you with a number of documents received during the proceeding. This may include correspondence, court notices or other legal documents. Not every document you receive will require you to respond. Additionally, you may not understand every document you receive. However, it is very important to review each piece of information and to contact your lawyer with any questions.
A. Keeping A File At Home.
To facilitate communication with your lawyer, it is important that you maintain a complete file at your residence. You may wish to use an expandable file pocket with individual folders for different types of documents. The initial folders you should have would include a correspondence folder for letters and memos; a "Pleadings" folder for any legal documents (these documents usually include a court caption). Maintaining a separate and organized file at your residence will allow you to review documents with your attorney by telephone saving you're the time and expense of an in office appointment.
B. Organizing Documents and Filling Out Requested Forms.
Even more important, during your legal proceeding you may be asked to provide documents, answer interrogatory questions or complete other court related forms. In providing the necessary information it is important that you understand what information is being requested and to follow your lawyers instructions to the letter in completing any forms. Do not hold back information. Assume that any information requested is necessary unless you are informed otherwise by your lawyer. If you provide disorganized or incomplete information, your attorney may spend a number of hours sorting through paperwork at an hourly rate. This can be avoided.
C. Compiling Questions
You should also keep a notebook of any issues and questions that you have for your attorney noting the date of your question or issue in your notebook. When you have a sufficient number of issues or questions, you should contact your attorney for answers. By waiting until you have a number of questions at one time, you may significantly reduce your legal fees. You should contact your attorney immediately in the event of any emergency. However, you should ask yourself, "Is this an emergency? And what can my lawyer do about it?" For example, a child is returned twenty minutes late from visitation is an unlikely emergency. Moreover, there is very little immediate impact your lawyer can have after the fact. Write down the information and provide to your lawyer at a convenient time.
D. Do Not Use Your Lawyer as a Therapist
Your lawyer is not a therapist and should not be used to unload your emotional issues. Though most lawyers, are trained to listen and lend a sympathetic ear, they are also on the clock and billing you for their time. You are far better off to find a professional therapist to help you through issues of separation, anger and resentment. They will help you to resolve those issue and may provide that help under an insurance policy or on a sliding fee scale.
E. Focus on the Legal Issues
Listen to your lawyer and focus on the legal issues of your case. All too often, divorce costs are driven up by emotional issues that do not relate to the legal issues. This can have a costly impact particularly when you spend hundreds of dollars on attorney's fees seeking items that are far less valuable and can be replaced. There are many examples where hundreds and even thousands of dollars have been spent to argue about couches, chairs, frying pans, dogs and cats. These items are replaceable. In property disputes, ask yourself "Do I really want this item, or am I simply asking for it because it will hurt my spouse. " Use the divorce process to "get out not to get even."
F. Don't Try to Cheat
Hiding assets and delaying the proceedings may result in higher legal fees. A Court has the ability to require you to pay your spouse=s legal costs if it believes that you have contributed unreasonably to the length and delay of the proceedings.
CHOOSING A DIVORCE PROCESS
Most people do not understand that they control their divorce process. They alone can choose how they will resolve their issues. In that context, there are hundreds of conflict resolution procedures or combinations of those procedures. In some cultures that may include community intervention and mediation. Not all divorces must spend a lengthy amount of time in the court system.
Obviously, the Cost of a divorce proceeding may depend on the process you choose. The more that you can accomplish on your own with your spouse, the lower the costs related to legal fees and other proceedings. Although the ways to resolve divorce issues are diverse and varied, I like to set out the more common divorce processes in levels, with the lowest level potentially being the least expensive and least contested. However, none of these levels operates in a vacuum, you may be mediating while your divorce progresses through court for example.
LEVEL ONE: DISCUSS ISSUES DIRECTLY.
To reduce legal expenses it may be possible to discuss the divorce issues with your spouse. Even if you cannot agree on all issues, you may resolve some. For example, property issues are generally easier issues to address. Any asset that is acquired during the marriage is marital. Any asset that is owned before marriage, inherited or gifted to one party may be non-marital. If you and your spouse can meet to define what assets you have, that is 25% of the battle. If you can then agree on what assets are marital or non-marital, you are half way there. If you can then agree on the value of the assets, you are 75% of the way toward resolving your property issues. The final step is determining the division, who gets what. In a divorce, your attorneys will go through these very same steps in a process called discovery. If you can make some progress before hiring a lawyer, you may save some costs. Obviously, the parenting issues and support issues are a bit more emotional and often difficult.
LEVEL TWO: MEDIATION.
If you are unable to speak with your spouse one on one because of acrimony and anger, or if your spouse has a much stronger personality than you, you may wish to try a mediator. A mediator is an independent neutral. The mediator does not give legal advice, but will try to keep the settlement negotiations controlled and civil and may even suggest documents that you may acquire or steps you may take to resolve your issues.
LEVEL THREE: COLLABORATIVE LAW.
Collaborative Law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to "trouble shoot and problem solve" rather than to fight and win. It does not exist in any laws or drafted Court procedures. In fact, it was a creation of attorneys who believed that the Court system creates adversaries and promotes fighting. As part of the Collaborative Law method, both parties retain separate attorneys whose job it is to help them settle the dispute. The process is carried out with a series of meetings with all parties present. Documents and information are freely exchanged without the formalities associated with the Court process. This generally saves money. Where the Court system would most likely not have the parties meet to discuss their issues for many months, if at all, Collaborative Law expedites the process with a meeting at the very beginning. This gets the matter off to a flying start without having to wait based on Court schedules. In fact, part of the Collaborative Law agreement is that neither party may go to court. If that should occur, the Collaborative Law process terminates and both attorneys are disqualified from any further involvement in the case.
LEVEL FOUR: COURT PROCEEDINGS.
A divorce action may be commenced by serving the other party with and filing a Summons and Petition. These documents notify the court of the divorce and start the court time lines. Each county has a slightly different process. In most counties where the parties disagree on custody or parenting schedules, the Court requires mediation (except in cases where domestic abuse has occurred). Additionally, if children are involved, both parents must attend a co-parenting class and often children over the age of 5 must attend a class on how to deal with parents involved in a divorce. As a general rule, Court time lines are very slow. A party may schedule a temporary hearing to determine what happens until the divorce is final. On a temporary basis the court will determine who resides in the house, who pays what bills, who has temporary custody, child support and maintenance issues. In most counties, if the parties do not resolve their issues and the matter proceeds to trial, that trial date will not occur for a year or more.
DOCUMENTS YOUR LAWYER WILL NEED
As part of the legal process, you will be required to provide documents related to the family finances including income, debts, assets and valuations. Your attorney is best able to represent you when the documents are provided in a complete and organized fashion. A complete document file can be instrumental to negotiating and resolving divorce issues without litigation. Even more significantly, however, if settlement is not possible, your documents may be absolutely necessary to support your case at trial.
Once again, organization may help to reduce your legal fees. I would suggest organizing the documents by the categories set out below. You may wish to include a cover sheet with each category listing each document that you have included.
INCOME INFORMATION
1. Your paycheck stubs from all sources of employment over the last year. At a minimum, try to provide paycheck stubs for the last three months.
2. If you can get them, your spouse's paycheck stubs for the same period of time. Those check stubs will often show year top date earnings and deductions.
3. If either you or your spouse is self-employed, any and all business documents demonstrating payments received or charges billed are necessary. This includes - (a) job bids (b) invoices for work performed (c) ledgers of payments received (d) Bank deposit slips (e) bank statements (f) independent contractor agreements (g) contracts agreements
4. If either you or your spouse is self-employed, documentation regarding business expenses is necessary. These may include check registers, canceled checks, payment receipts, check carbons, computerized income or expense records, financial statements, profit and loss statements, general ledgers.
5. At a minimum, copies of your joint or individual tax returns, both state and federal, for the past three years.
6. Copies of any business tax returns for any business in which you or your spouse hold an interest for the past three years.
7. If either party works for cash, necessary documentation may include:
* Check ledgers demonstrating expenses paid during marriage (a person working for cash will often have check registers that do not show payments for necessities of life such as groceries - the explanation for that omission is often cash payments)
* Any receipts for cash payments.
8. A copy of any financial statements or statements of net worth prepared by you or your spouse for the purpose of securing bank loans or for any other purpose.
9. Any other information that will help you establish your net worth, your spouse's net worth, your joint net worth, your income, and your spouse's income.
REAL ESTATE INFORMATION
10. Deeds, abstracts, and Torrens certificates showing the legal description of your homestead and any other real estate. Secure these from your mortgage company or lending institution if you do not have them.
11. Current mortgage statements on the first mortgage, second mortgage and/or home equity loans on the homestead and any other real estate.
12. All papers and documents covering the initial purchase of the homestead including the purchase agreement.
13. Any and all documents refinancing the loans on any parcel of real estate owned during the marriage (those refinancing documents are likely to include and appraisal of the property and a statement regarding income of the parties).
14. Tax assessor's statements on the homestead and other real properties.
SAVINGS AND CHECKING ACCOUNTS
15. Savings passbooks and savings certificates of individual or joint accounts held individually or jointly by you and your spouse.
16. Any and all bank statements for the past year from any account in your name or held jointly with your spouse.
17. If possible, list of corporate stocks or stock certificates owned by you and your spouse individually or jointly.
LIFE INSURANCE
18. Any current life insurance policies on your life, your spouse=s life or on your children whether it is an individual policy or a policy through your employer. To be complete you should provide any and all statements you have regarding that life insurance policy including any documents indicating a cash balance or loans against them.
DEBTS
19. An itemized list of all debts in either your name or the name of your spouse, with the attached invoices or statements for each. You should include any outstanding unsecured bills including credit cards, accounts payable, student loans and/or medical bills. The documents provided should include the statements at the time of your separation as well as the current balance.
DEFERRED COMPENSATION PLANS
20. A copy of the most recent statements for any:
(A) pension;
(B) retirement,
(C) profit sharing/401 K plan
(D) Mutual funds
(E) IRAs
AUTOMOBILES
21. Title or registration cards to all automobiles/boats/ATV=s/snowmobiles or other motor vehicles owned by you or your spouse individually or jointly.
22. Any documents demonstrating the current outstanding secured debt on the automobiles/boats/snowmobiles/ATV=s including payment coupons, amortization schedules or monthly invoices
EMPLOYMENT
23. Any job descriptions that may exist.
24. A current resume for you and your spouse.
25. Any benefits information related to you or your spouse=s employment including health insurance information
CUSTODY
26. Report Cards for the children.
27. Medical Records for the children.
28. Daycare records for the children.
29. Any homework assignments that you have signed or approved.
NECESSARY MONTHLY EXPENSES
30. You should provide your lawyer with a list of necessary monthly expenses. You should be prepared to support your list with documentation that the expenses listed are accurate. It can be devastating to your case financially, if you embellish your monthly expenses to the point that they are unbelievable and unsupportable. A chart for itemizing your monthly expenses is included on the next page.
ESTIMATED MONTHLY LIVING EXPENSES/BUDGET
Children Client -
FOOD/BEVERAGE
Groceries
Restaurant
HOUSING
Mortgage or Rent
Real Estate Tax
Insurance (home owners or renters)
Maintenance/Repairs
Second Mortgage
Home Equity Loan
UTILITIES
Electricity
Gas
Sewer & Water
Telephone
Telephone - Long Distance
Waste Disposal
Water Softener
Cable TV
FURNISHINGS/OPERATION
Services/Cleaning
Supplies
Furnishings/Equipment -
Lawn Service
Snow Removal
APPAREL/UPKEEP
Clothes/Shoes
Laundry/Dry Cleaning
Upkeep
GROOMING
Haircuts
Sundries
EDUCATION
Tuition
Transportation
Special Activities
Lunch Money
Tutoring
Books/Supplies
TRANSPORTATION
Auto Installment Payment
Auto Insurance
Maintenance/Repairs
Gasoline
License
Parking
Public Transportation
Replacement Reserve
CHILD CARE
Transportation
Baby Sitter
Day Care Center
Allowance
Camp
Lessons
Diaper Service
MEDICAL CARE
Doctor
Dentist
Orthodontist
Eyeglasses/Contact Lenses
Medicine/Drugs
Therapy
INSURANCE NOT DEDUCTED BY EMPLOYER
Life
Health
Personal Property
Personal Umbrella
MISCELLANEOUS
Child Support
Maintenance/Alimony
Income Taxes
Entertainment
Hobbies
Vacation
Gifts
Memberships
Subscriptions
Donations
Pets
Costs of Employment
Savings
Retirement
Postage
Bank Charges
OTHER
OTHER
OTHER
OTHER
OTHER
OTHER
UPCOMING SPECIAL EXPENSES: (not included above)
TOTAL:
TIPS TO ASSIST/TRAPS TO AVOID
During divorce proceedings, emotions run high. You may feel angry or betrayed. You may want to take immediate action. However, there are a number of pitfalls that you must avoid and tips to help you prepare your case.
RECORDED STATEMENTS.
In a contested divorce always assume that any statement you make is recorded. This includes telephone calls and answering machine messages. Do not say or do anything that you would not want a court to know about. In Minnesota it is legal to record any conversation that you are involved in. Such recordings are admissible in Court. However, it is a felony to record a conversation in which you are not involved. An example would be placing a recording device on a telephone to capture conversations between your spouse and another individual.
SPEAKING WITH OPPOSING COUNSEL.
Once you are represented by an attorney, opposing attorneys may not speak with you regarding the case. If they call you refer them to your attorney. Do not call them even if your lawyer is unavailable and you consider it an emergency.
SPEAKING WITH JUDGES.
Parties may not speak with or provide letters to a Judge unless it is part of a scheduled hearing. Contact without the other party present is called ex-parte contact and is prohibited.
PARENTING NOTEBOOKS.
In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your child(ren). What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party=s parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.
INDEPENDENT DOCUMENTATION.
In a custody proceeding courts are often faced with conflicting "he said" and "she said" testimony. It is very important to find independent documentation to verify any statements. For example, if you contend that you are the primary caretaker, reports from doctors, daycare provider or teachers may document your attendance at parent-teacher conferences, signing off on homework or taking the child to the doctor. It is very important that you acquire this documentation when possible. If domestic abuse is an issue, you may wish to document incidents with police calls to the homestead, police reports or orders related to domestic abuse. If drug or alcohol use is an issue, a driving record showing DWI arrests or drug charges may prove invaluable. This may also apply to any individuals that have frequent contact with the children. If they are a danger to the children, it is relevant.
INVOLVEMENT OF CHILDREN.
Avoid involving minor children in the proceeding. It is not appropriate to show your child court documents. This may harm the child emotionally and damage your case. Also, you should avoid blaming or vilifying the other parent in the child=s presence. Remind the child that the divorce is not their fault and is a parental dispute. Tell your child (no matter how you truly feel) that both parents love them.
PHOTOGRAPH PROPERTY.
To prepare for divorce, in addition to acquiring necessary documentation, you may wish to photograph or videotape your furnishings, personal property and real estate. By photographing the contents of your home, you will create a comprehensive log of your possessions and the condition of your home. It may be difficult at a later date to recall all items or necessary repairs.
DON'T LOSE YOUR TEMPER.
One of the most abused processes is the ORDER FOR PROTECTION or ABUSE RESTRAINING ORDER alleging domestic abuse. Do not get caught in this trap. It makes any custody battle very difficult since there is a presumption under Minnesota law that an abuser should not have custody. Do not yell, grab, hit, or throw anything in the presence of your spouse or, even more significantly, in the child(ren)'s presence. If your spouse tries to incite you, walk away. Something as simple as blocking someone's egress from a room may be considered abusive.
DIVORCE, LEGAL SEPARATION AND ANULLMENT
Divorce is often called a "Dissolution of Marriage" because it dissolves the Marital Contract. The only difference between a divorce and a legal separation is that a decree of legal separation does not terminate the marital status of the parties.
A decree of legal separation may be granted when the court finds that one or both parties need a legal separation. The same issues that are addressed in a divorce may be addressed as part of a legal separation including custody, child support, spousal maintenance, property division, debt division and payment of attorney's fees.
Annulment is the process by which a Court states that a marriage never legally existed. An annulment is a nullification of a marriage. In our modern world, an annulment tends to be more a creature of religion than of law. In the Catholic religion, for example, a person must obtain a religious (not a legal) annulment before they can remarry again in the Catholic faith. This annulment proceeding operates outside of the law and is recognized only by the Catholic Church.
Legal annulments are rarely granted and when they are, very specific circumstances must exist. Often people believe that they may annul a marriage simply because it was of a very short duration. That is not the case. In most cases an annulment may be granted if the intent to enter into a civil contract was not present at the time that the parties married. For example, an annulment may be granted if, at the time the marriage occurred, one party suffered from mental illness, married based on fraud (eg immigration purposes), was forced consent, was physical incapacity to consummate the marriage, or lacked consent to an underage marriage or bigamy occurred. Regardless o an annulment, children of that annulled marriage are considered legitimate. As a result, evening annulment cases, the court may award custody of children of the marriage and require payment of child support and support of a party.
WAITING PERIODS
There are a number of States that have waiting periods that apply before a divorce can be filed, before a divorce can be finalized or before a party can remarry after divorce. These periods are often called a cooling off periods. They are designed to dissuade parties from divorce and promote reconciliation. These waiting periods vary broadly in their application in each state.
For example, in the State of Maryland, the parties must live apart without any cohabitation for a period of one year before their divorce can be filed. In New Hampsire, state statutes establish a 6-month waiting period before divorce for families with children. Unlike many waiting periods, the period is begun by filing a declaration of intent to separate. It does not require the parties to stay separate, or that they have already filed for divorce. By contrast, in Wisconsin, the parties cannot finalize their divorce before 120 days has elapsed after they have filed for divorce. Additionally, any person divorced in Wisconsin must wait one year before they can remarry. Any marriage before that time would be consider void.
An excellent summary of state laws related to divorce waiting periods and waiting periods for remarriage can be found online at Government Social Security Site: http://policy.ssa.gov/poms.nsf/lnx/0200305165
These time periods may be shortened in some states if the divorce is a "fault" based proceeding.
NO FAULT DIVORCE
Most states have some form of Ano fault@ divorce system. In the not so distant past, divorces could only be granted for specified reasons such as infidelity or abandonment. This resulted in much highly emotional litigation that pitted one spouse against another with each painting the other as the "bad guy." As a result, most states, in order to minimize the impact of divorce on children and reduce costs associated with proving fault, have adopted "No Fault" statutes which generally requires only that one party believes that there has been an irretrievable breakdown of the marriage.
FAULT BASED DIVORCE
There are a few states that have also retained divorce processes based on fault. In states with fault based divorce, ground may include (1) adultery; (2) abandonment for one year; (3) imprisonment for certain period of time; (4) cruel and inhuman treatment; or (5) Drug/alcohol addiction. Proving fault may allow the parties to finalize their divorce at an earlier date without a cooling off period that is required by many state statutes. For the most part, fault does not affect any other issues. In other words, one party will not be awarded more property because the other party had an affair. By the same token, one party will not receive spousal support because the other party abandoned them.
JURISDICTION
To file for a divorce in any state, a party must meet the jurisdictional requirements spelled out in that State's statutes. In many states it is required that one party must have lived in the state for 180 days to one year and there must be no other divorce proceedings pending in other jurisdictions.
WHAT IF I DON'T WANT THE DIVORCE?
You may ask your spouse to attend counseling. However, you cannot force that person to attend counseling or to cooperate. If your spouse refuses, the divorce will move forward. In most counties, a Judge will grant a divorce if one party believes that an irretrievable breakdown of the marriage exists.
Once a divorce has been filed, it is important to promptly address the issues. Delay and foot dragging may impair your rights and result in an order requiring you to pay your spouse's attorney's fees if the Court finds that you have unreasonably contributed to the length and delay of the proceedings.
WHERE DO I FILE?
A proceeding for dissolution or legal separation may be brought by either or both spouses and is commenced by personal service of the summons and petition venued in the county where either spouse resides. "Residence" means the place where a party has established a permanent home from which the party has no present intention of moving.
SHOULD I FILE FIRST?
There is very little advantage to filing first.
One possible advantage is the ability to choose the county in which the case is filed. Another possible advantage is to allow the party filing to prepare in advance for the divorce proceeding. Where the parties have established two separate residences there may be two potential jurisdictions. Your attorney may have insight into the subtle biases of each county and the different processes used allowing him./her to choose a the more favorable forum.
CUSTODY OVERVIEW.
There are two types of custody, "legal" and "physical." Do not confuse these terms. They have two very different meanings and different effects.
Legal Custody
Legal Custody is the right to make decisions related to your minor children. Major decisions include
* Education: Where do you children attend school? Should they attend special classes or tutoring?
* Health care: What types of medical treatments should your child have? Who should be the doctor?
* Religion: What church, mosque or temple should your child attend? What religious education should your child attend? Should your child be baptized? If so, in what religion?
There is a strong presumption under Minnesota law that "legal custody" should be shared by the parents. The only time that legal custody is not shared is when the parents are unable to communicate and do not have any reasonable methods for resolving disputes. Often when parents have conflicting beliefs regarding legal custody issues, the Court may decide the one conflicting issue while still awarding parents joint legal custody on other issues. For example, the Court may determine a conflict regarding religion but still award joint legal custody regarding non-conflicting issues.
It is important to remember that an award of joint "legal custody" is not a basis for a downward departure in child support.
Physical Custody
Physical Custody is what most people think of when the term "custody" is mentioned. It may be referred to in different terms in different states. For example, Wisconsin refers to "physical custody" as "physical placement" or "primary physical residence."
Physical custody refers to the primary physical residence of the child. The presumption under law varies from state to state. In many states, there is a presumption that where the parent's cannot agree on physical custody, custody should be awarded to one parent or another to provide stability and prevent conflict. In more recent years, there has been a trend toward establishing statutes that presume that the parties should share physical custody. In 2003, the presumption for joint physical custody existed in only 20 states plus the District of Columbia. Some excellent references to psychological studies related to sole or joint physical custody exist at http://www.wiskit.com/marilyn/custody.html
Whatever the standard that is applied, it is common that the presumption can be rebutted by demonstrating that a different custodial relationship is in the best interests of the child.
To determine what is in a child=s best interests, a Court is required to look at the totality of circumstances surrounding the particular case at issue. However, the courts are often required to specifically address delineated factors spelled out in that state's statutes. Understanding those factors and addressing your custody arguments to those factors can be a critical part of the case. You must have a strategy and game plan in any custody dispute to present your case along with independent documentary evidence to support your position. If your case boils down to a "he said-she said" case alone, your chances of prevailing are greatly diminished and allow the court to issue rulings based on its particular bias. Historically, this has often favored mothers who were often the primary caretakers of the children in single income households. That result is only now slowly changing along with the trend for two income households as more women enter the workforce, often because of economic necessity. Some factors that state statutes often address are:
1 The wishes of the child's parent or parents as to custody;
2 the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference most Courts do not consider the child to be of suitable age until the age of twelve or more;
3 the child's primary caretaker (who cooked the meals, took the child to the doctor, bathed the child, attended school functions and extra-curricular activities, helped with homework, provided discipline);
4 the intimacy of the relationship between each parent and the child;
5 the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
6 the child's adjustment to home, school, and community;
7 the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8 the permanence, as a family unit, of the existing or proposed custodial home;
9 the mental and physical health of all individuals involved;
10 the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
11 the child's cultural background;
12 the effect on the child of the actions of an abuser that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
13 The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
Generally, courts may not use one factor to the exclusion of all others. Many people, attorneys included, tend to place a significant emphasis on which parent was the primary caretaker. However, this factor is only one of many and may not be used as a presumption in determining the best interests of the child.
Joint Physical Custody.
In order for a court to award joint custody, it must find that the parents have the ability to cooperate in rearing the children and have methods and a willingness to use methods for dispute resolution. In making such a determination, the Court must consider the following factors:
(a) the ability of parents to cooperate in the rearing of their children;
(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;
(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
(d) whether domestic abuse has occurred.
ALLEGATIONS OF ABUSE.
Allegations of sexual or physical abuse are taken very seriously. Seeking a restraining order as part of a divorce proceeding has become a common occurrence and is sometimes an abused process designed to gain advantage in a custody proceeding or to acquire an early court date to have one party removed from the home. A finding of domestic abuse, whether it involves the minor children or not, may have a dramatic impact on the divorce proceedings. There is a very strong presumption under Minnesota law that physical custody should not be awarded to a domestic abuser. That means, a person who has been the subject of an Order for Protection (restraining order) or convicted of domestic assault may be unable to acquire physical custody. For this reason, allegations of domestic abuse must be vigorously defended in order to preserve your rights in a custody battle. This can be a vexsome issue since Courts regularly elect to err on the side of caution granting restraining orders in cases where the allegations and evidence are very weak. Do not fall into this trap. As stated previously:
* Avoid all conflict if possible!
* Assume any thing you say or do is being recorded!
* Maintain your best behavior!
This can be very difficult in the emotional context of divorce. However, when you consider that most divorce cases are driven forward by emotional issues rather than legal ones, this becomes an absolute necessity to preserve your rights, facilitate settlement and reduce legal fees.
What is Domestic Abuse?
Domestic abuse is generally defined very broadly. Domestic abuse must be committed against a family or household member by a family or household member and include:
(1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or
(3) terroristic threats; criminal sexual conduct; or interference with an emergency call within the meaning of section.
"Family or household members" include spouses and former spouses, parents and children, persons related by blood, persons who are presently residing together or who have resided together in the past, persons who have a child in common regardless of whether they have been married or have lived together at any time; a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and persons involved in a significant romantic or sexual relationship.
False Allegations of Abuse.
False allegations of sexual or physical abuse are also taken very seriously. In many states there are statutes that allow the court to consider false allegations of abuse in making custody determinations. Moreover, false allegations of sexual or physical abuse to gain advantage in a custody proceeding may also result in criminal charges.
PREFERENCE OF CHILDEN.
Many people incorrectly believe that the children have an absolute right to choose where they will live. That is not the case. Under most state laws, a child may express a preference when that child has reached a suitable age and maturity level. Even if the child is able to express a preference, most courts do not place much weight on a child's preference before the age of twelve. Even at that age and older, the child's preference is only one factor out of the many statutory factors for determining custody.
Children as Witnesses.
Many parents wish to know if their children can be called as witnesses. Although opinions on this topic may vary, most psychologists agree that placing a child in the role of a witness can be very traumatic and is usually not in their best interests. Children present testimony in only rare cases. Where cases do require the testimony of children, Courts will often require that a Guardian Ad Litem speak with them and represent their interests and statements to the Court. The Court may also speak to the children directly in a less intimidating setting such as the Judge's chambers.
Extra-Marital Affairs.
Most states have Ano fault@ statutes. That means that you do not have to cite a reason for a divorce. Instead, it is only necessary that the relationship of the parties is irretrievably broken down. As a result, blame and shame are removed from the proceedings. Many people believe that an extra-marital affair makes a spouse an inappropriate parent to have custody. However, most courts view the extra-marital affair as irrelevant to the divorce issues. This is true even is states with fault based grounds. Courts will not render moral decisions. An extra-marital affair only becomes relevant if it somehow affects the "best interests" of the minor children. This occur only in limited cases where the parent's new significant other can be shown to have contact with and endanger the children.
Parenting Rights.
Custodial and non-custodial parents have certain parental rights. Those include the following:
· Medical Care and Medical Records. Each party has the right of access to, and to receive copies of medical, dental, orthodontic, optometric and any other medical or psychological or counseling records and information regarding the minor child(ren). Presentation of a copy of this order to the custodian of a record, or other information, regarding the minor child(ren) constitutes sufficient authorization for the release of the record or information to the requesting party.
· School and School Records. Each party shall keep the other party informed as to the name and address of the school the minor child(ren) is/are attending. Each party has the right to be informed by school officials about the child(ren)'s welfare, education progress/status, school events, and the scheduling of parent/teacher conferences. The school is not required to hold a separate conference for each party. Each party has the right of access to, and to receive copies of any school, daycare or religious information, records, report cards or other materials related to the minor child(ren).
· Accident or Illness. In case of an accident or illness of the minor child(ren), each party shall notify the other party of the accident or illness, the name of the health care provider, and the place of treatment.
· Reasonable Telephone Contact. Each parent has a right of reasonable access and telephone contact with the minor children.
The Court may waive any of these rights if it finds that it is necessary to protect the welfare of the children.
PREFERENCE OF CHILDEN.
Parties in a divorce proceeding may also craft their own parenting plans.
A parenting plan is simply a schedule which sets out the care giving responsibilities of each parent. Parenting plans should include:
1 a schedule of the time each parent spends with the child;
2 a designation of decision-making responsibilities regarding the child; and
3 a method of dispute resolution.
A parenting plan may also include other issues and matters the parents agree to regarding the child.
CUSTODY EVALUATIONS
Where parents are unable to agree on parenting plans or custody issues, the Court will require a custody evaluation performed. This may be carried out by county social workers, psychologists or a Guardian Ad Litem. A Guardian Ad Litem is a person that is appointed by the Court to represent the interests of a person who is unable to do so for themselves. In the context of a custody case, the Guardian Ad Litem acts as a spokesperson regarding what the Guardian believes is in the child's best interests.
To present your case in a custody evaluation, it is important to develop an EARLY GAME PLAN based on the factors that the court is likely to consider in your State.
CUSTODY REPORTS
The person performing the evaluation will investigate the facts and generate a report that is provided to the Court. The report will usually include a summary of the investigation, an analysis of the thirteen custody factors set out in your state's statutes and a conclusion regarding what is in the child(ren)'s best interests.
THE USE OF CUSTODY EVALUATIONS
The Court is not required to adopt the recommendations of a custody evaluator. However, in most custody cases, the parties have very polar positions regarding the facts. This often boils down to a "He Said - She Said" Situation at trial. Where the evaluation was performed by a person appointed by the Court, the evaluator is considered a neutral party and their recommendation may hold considerable weight with a Judge who must weigh conflicting testimony. To combat an unfavorable custody report, your attorney will try to point out the deficiencies of the investigation performed and facts that may have been overlooked by the evaluator. It is may also be necessary to hire your own expert to conduct a separate custody evaluation and present a different recommendation at trial.
POWERS OF THE EVALUATOR
The custody evaluator often has broad power and may require the parties to provide releases of information for counseling, medical or psychological records. The evaluator may also require psychological testing, chemical dependency evaluations or random urinalysis tests as part of the investigation process. This is particularly t
#3
Custody Issues / Repulsive Posting
Dec 08, 2004, 11:22:37 AM
Here is some fodder for the grist mill. The following post appears on Divorce Source on the Children" bulletin board. The gender bias of the entire question is repulsive. If you agree, feel free to let this student know how you feel.
____________________________________
hi,
I am a third year journalism student and am writing about how much access fathers should have to their children and am looking for opinions of those who have gone through this.
Please could you let me know your opinion on a few of the following things:
how much do you think a child should see there father? Is it better for them to not see them at all than to see them when the father "has time" i.e fitting the child around the rest of his life causing him to be unreliable? What effect do you think this has on the child?
Thanks
If you would rather email your replies instead of posting them on here my address is [email protected]
____________________________________
hi,
I am a third year journalism student and am writing about how much access fathers should have to their children and am looking for opinions of those who have gone through this.
Please could you let me know your opinion on a few of the following things:
how much do you think a child should see there father? Is it better for them to not see them at all than to see them when the father "has time" i.e fitting the child around the rest of his life causing him to be unreliable? What effect do you think this has on the child?
Thanks
If you would rather email your replies instead of posting them on here my address is [email protected]
#4
Custody Issues / Board Rules
Oct 29, 2004, 05:49:36 AM
Folks, it is important to remember to be respectful when posting. Try to respond to the question asked or inquiry made without personal attacks.
By the same token, it is important to remember that a broad pallet of diverse opinions are welcome. You may not agree with them and you may even argue your counter point. A difference of opinion is a good thing, even if the opinion being voiced is unpoplular or seems misguided.
Generally, posts will not be erased. If you have any complaints, let me know, and I wil take a look at them
By the same token, it is important to remember that a broad pallet of diverse opinions are welcome. You may not agree with them and you may even argue your counter point. A difference of opinion is a good thing, even if the opinion being voiced is unpoplular or seems misguided.
Generally, posts will not be erased. If you have any complaints, let me know, and I wil take a look at them
#5
Custody Issues / A Little Input
Aug 26, 2004, 10:27:50 PM
Hey all.
I am working on a website and book that will delineate divorce issues generally. I will submit the results to these fine people at SPARC. However, I am looking for topic idea. Have any ideas? Here is what I have so far.
Saving Your Marriage
Preparing for Divorce
Choosing a Lawyer
How Much Will Divorce Cost
Reducing Legal Fees
Pro Se Divorce
Choosing a Divorce Process
Dispute Resolution (Mediation and More)
Documents You Will Need
Determining a Budget
Tips and Traps in Divorce
Divorce & the Court Room Process
Common Divorce FAQs
Custody
Custody Evaluations
Changes to Custody
When Can Children Decide
Relocating with Children
Allegations of Abuse
Children as Witnesses
Fault vs. No Fault
Parenting Rights
Children's Bill of Rights
Parenting Plans
Parenting Notebooks
Child Support and Parenting Time
Dispute Resolution (Mediation and More)
Child Support
Modifying Child Support
Cost of Living Adjustments
Determining Income for a Cash Based Payer
Child Care
The Marital Estate (Property Rights)
Non-Marital Assets
Real Estate Issues
Stock Options
Dividing Retirement Plans
Dividing 401K Plans
Dividing and Valuing a Business
Spousal Maintenance & Alimony
Imputing Income
Health Insurance
Life Insurance
Tax Deductions
Debt Issues
Awarding Legal Fees
I am working on a website and book that will delineate divorce issues generally. I will submit the results to these fine people at SPARC. However, I am looking for topic idea. Have any ideas? Here is what I have so far.
Saving Your Marriage
Preparing for Divorce
Choosing a Lawyer
How Much Will Divorce Cost
Reducing Legal Fees
Pro Se Divorce
Choosing a Divorce Process
Dispute Resolution (Mediation and More)
Documents You Will Need
Determining a Budget
Tips and Traps in Divorce
Divorce & the Court Room Process
Common Divorce FAQs
Custody
Custody Evaluations
Changes to Custody
When Can Children Decide
Relocating with Children
Allegations of Abuse
Children as Witnesses
Fault vs. No Fault
Parenting Rights
Children's Bill of Rights
Parenting Plans
Parenting Notebooks
Child Support and Parenting Time
Dispute Resolution (Mediation and More)
Child Support
Modifying Child Support
Cost of Living Adjustments
Determining Income for a Cash Based Payer
Child Care
The Marital Estate (Property Rights)
Non-Marital Assets
Real Estate Issues
Stock Options
Dividing Retirement Plans
Dividing 401K Plans
Dividing and Valuing a Business
Spousal Maintenance & Alimony
Imputing Income
Health Insurance
Life Insurance
Tax Deductions
Debt Issues
Awarding Legal Fees
#6
Father's Issues / Deadbeat Parents on Pizza Boxes
Mar 26, 2007, 07:11:47 PM
The national news program Fox and Friends will be addressing the pros and cons of "deadbeat parents" on pizza boxes tomorrow. I believe the program will run in the morning. I will be on along with Cynthia Brown, executive director of the Butler County Child Enforcement Agency. Write to the program with your view.
The A.P sent out the story by wire which can be read at the link below.
http://www.foxnews.com/story/0,2933,261051,00.html
The A.P sent out the story by wire which can be read at the link below.
http://www.foxnews.com/story/0,2933,261051,00.html
#7
Father's Issues / Changing Custody Laws
Mar 24, 2005, 09:05:21 PM
I believe that the custody laws mustbe changed on teh state level. Many of the federal lawsuits filed, lacked standing and basic legal arguments to affect real change. However, the lawsuits did garner attention and when that is focused on State legislators, change occurs.
Several laws have finally been proposed in Minnesota to establish a presumption in favor of joint physical child custody in marriage dissolution proceedings. This could make a presumption for joint physical custody a reality in a very short period of time. A presumption for joint physical custody simply means that both parents would be equally situated as a custodial parents and the court could deviate from an order requiring joint physical custody with the children by making express findings that a deviaion is in the children's best interests.
Very few states currently have a presumption for joint physical custody. The nearest state is Wisconsin which has a presumption in its statutes that time should be maximized wity each parent. This has been inmterpreted by many of Wisconsin's Circuit Court Judges as a presumption for joint physical custody. As a result, custody orders, particularly those entered in Wisconsin's Western Counties where I practice (Polk, Pierce, St. Croix, Burnett, Barron, Dunn), generally award joint physical placement to parents on a substantially equal scehdule where the parents continue to reside in the same county or school district and where the parent's work schedules allow for equal parenting. In my experience, this has significantly reduced litigation on the custoody/placement issue in Wisconsin. There is support for that conclusion as well as the conclusion that a presumption for joint physical custody has a much greater impact on divorce proceedings.
Many studies have been conducted nationwide that conclude that a presuimption for joint physical custody may, in fact, have an impact on divorce proceedings themselves by reducing the divorce rate, presumably by reducing the financial incentive to divorce. For information on these studies review
http://www.proactive-coach.com/divorce/statistics/research-rates.htm
For some information on the benefits of joint physical custody, review http://www.deltabravo.net/custody/jointbenefits.htmor http://www.thelizlibrary.org/~liz/liz/those-jointcustody-studies.html
In Minnesota, bill, SF 1408, was introduced by Sen. Sheila M. Kiscaden, Sen. Thomas M. Neuville and Sen. Dan Sparks on March 3, 2005, and seeks to establish a presumption in favor of joint physical custody in child custody cases. Parents would be required to enter a custody agreement within 90 days of the start of custody proceedings (HF779 Companion Bill). The bill was referred to the Senate Judiciary Committee on March 3, 2005.
On Feb. 22, another comprehensive family law bill, HF1191,
was introduced by Rep. Eastlund and others. Unlike Sen. Neuville's bill, this bill also addresses joint physical custody. The bill proposes "best interests of the child clarified relating to family law, joint legal and physical custody rebuttable presumption established, and child support guidelines provided."
Bill HF0779, which would also provide a presumption of joint physical custody (but does not include comprehensive family law provisions), was introduced Feb. 3 by Rep. Mahoney. Under current law, courts use a rebuttable presumption that joint legal custody is in the best interests of the child. This bill adds language that "joint legal and physical custody is in the best interests of the child." The bill also adds that "...if the parents fail [to agree on custody or on a parenting plan] the court must use a rebuttable presumption, except as otherwise provided by this subdivision, that upon request of either party joint physical custody involving an equal division of time between the parties is in the best interests of the child."
Another bill to modify child custody presumptions, requirements and procedures, Bill SF0604, was introduced in the Senate on Jan. 31 by Sen. Wiger. The bill proposes, "modifying certain presumptions, requirements and procedures affecting child custody; modifying the purposes of juvenile court laws relating to child protection, separating intent relatingto cases of no alleged parental abuse from cases of alleged parental abuse; requiring appointed guardians to be learned in family law, requiring the supreme court to adopt rules specifying training and experience requirements; authorizing challenges to guardian ad litem appointments for good cause; prohibiting the court from considering the preference of the parent in placing children in removal cases.
If you support these bills write to your state senators and state representatives.
_________________
Minnesota Divorce visit Http://www.divorceprofessionals.com
Divorce Answers visit http://www.divorceinstitute.com
Several laws have finally been proposed in Minnesota to establish a presumption in favor of joint physical child custody in marriage dissolution proceedings. This could make a presumption for joint physical custody a reality in a very short period of time. A presumption for joint physical custody simply means that both parents would be equally situated as a custodial parents and the court could deviate from an order requiring joint physical custody with the children by making express findings that a deviaion is in the children's best interests.
Very few states currently have a presumption for joint physical custody. The nearest state is Wisconsin which has a presumption in its statutes that time should be maximized wity each parent. This has been inmterpreted by many of Wisconsin's Circuit Court Judges as a presumption for joint physical custody. As a result, custody orders, particularly those entered in Wisconsin's Western Counties where I practice (Polk, Pierce, St. Croix, Burnett, Barron, Dunn), generally award joint physical placement to parents on a substantially equal scehdule where the parents continue to reside in the same county or school district and where the parent's work schedules allow for equal parenting. In my experience, this has significantly reduced litigation on the custoody/placement issue in Wisconsin. There is support for that conclusion as well as the conclusion that a presumption for joint physical custody has a much greater impact on divorce proceedings.
Many studies have been conducted nationwide that conclude that a presuimption for joint physical custody may, in fact, have an impact on divorce proceedings themselves by reducing the divorce rate, presumably by reducing the financial incentive to divorce. For information on these studies review
http://www.proactive-coach.com/divorce/statistics/research-rates.htm
For some information on the benefits of joint physical custody, review http://www.deltabravo.net/custody/jointbenefits.htmor http://www.thelizlibrary.org/~liz/liz/those-jointcustody-studies.html
In Minnesota, bill, SF 1408, was introduced by Sen. Sheila M. Kiscaden, Sen. Thomas M. Neuville and Sen. Dan Sparks on March 3, 2005, and seeks to establish a presumption in favor of joint physical custody in child custody cases. Parents would be required to enter a custody agreement within 90 days of the start of custody proceedings (HF779 Companion Bill). The bill was referred to the Senate Judiciary Committee on March 3, 2005.
On Feb. 22, another comprehensive family law bill, HF1191,
was introduced by Rep. Eastlund and others. Unlike Sen. Neuville's bill, this bill also addresses joint physical custody. The bill proposes "best interests of the child clarified relating to family law, joint legal and physical custody rebuttable presumption established, and child support guidelines provided."
Bill HF0779, which would also provide a presumption of joint physical custody (but does not include comprehensive family law provisions), was introduced Feb. 3 by Rep. Mahoney. Under current law, courts use a rebuttable presumption that joint legal custody is in the best interests of the child. This bill adds language that "joint legal and physical custody is in the best interests of the child." The bill also adds that "...if the parents fail [to agree on custody or on a parenting plan] the court must use a rebuttable presumption, except as otherwise provided by this subdivision, that upon request of either party joint physical custody involving an equal division of time between the parties is in the best interests of the child."
Another bill to modify child custody presumptions, requirements and procedures, Bill SF0604, was introduced in the Senate on Jan. 31 by Sen. Wiger. The bill proposes, "modifying certain presumptions, requirements and procedures affecting child custody; modifying the purposes of juvenile court laws relating to child protection, separating intent relatingto cases of no alleged parental abuse from cases of alleged parental abuse; requiring appointed guardians to be learned in family law, requiring the supreme court to adopt rules specifying training and experience requirements; authorizing challenges to guardian ad litem appointments for good cause; prohibiting the court from considering the preference of the parent in placing children in removal cases.
If you support these bills write to your state senators and state representatives.
_________________
Minnesota Divorce visit Http://www.divorceprofessionals.com
Divorce Answers visit http://www.divorceinstitute.com
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