FREQUENTLY ASKED QUESTIONS:
Divorce
Does one have to go to court to obtain a divorce?
A court of law is the only way in which one can obtain a divorce decree, dissolution, legal separation, nullity, or other form of terminating a marriage. Each jurisdiction has established its own body of law by which this procedure is accomplished to give it full legal effect. The various states have enacted statutes, which govern the procedures by which this is done. Other than the termination of the marital estate the court also has jurisdiction to resolve the other issues which are intertwined in the existing marriage which include but are not limited to, custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.
What is involved in starting the process for a divorce or dissolution?
The first step would be the filing of a properly executed petition with the appropriate court. The court must have what is called subject-matter jurisdiction that would entail satisfying the requirements of residency or domicile within the state and county dictated by the statute. This can be as little as six weeks or as long as three to six months. Without this threshold requirement being met the court would not have the jurisdiction to hear the matter and execute an order or decree of divorce, or dissolution, or like orders terminating the marital state.
How long does the process take to obtain a divorce or dissolution?
The time period involved is dependent upon the law of the state and could be as short as six weeks and can extend to six months depending upon the jurisdiction involved. If there are contested issues involved, it can be several years before the court may resolve all of the issues involved. The decree of divorce has full effect as soon as the judge signs it.
What is a divorce?
A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce.
What is a legal separation?
Legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. The process of legal separation is sometimes called separate maintenance. A decree of separate maintenance cannot later be converted to a divorce decree. If parties in a legal separation later desire a divorce, they must file a new divorce action.
What is dissolution?
The act of terminating a marriage, but the term does not apply to an annulment. Dissolutions are subject to the laws of the states that provide for them. State law governs the procedures for the termination of the marriage and the distribution of marital assets, custody, and visitation and support issues.
What about the divorce kits and preprinted forms that are available?
Family law is a complex area of the law that is not well served by simplistic forms that do not address all of the issues and areas concerned if the individual is not well versed or has not consulted with appropriate legal counsel to review the facts and problems of each individual case. The lasting effects of decisions made in haste without proper advice would militate against the use of such forms.
What is an annulment?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
What kind of documents will be needed to put together what the court will need to decide all of the issues involved?
List of Documents
Address Book Names, addresses and telephone numbers will help your lawyer prepare subpoenas for documents, depositions and court appearances. Don’t forget mystery numbers, i.e., those without names, or just initials. Identify them with the criss-cross directory. Look for the following professionals, friends, and businesses: accountants--personal, business, and your spouse’s family bankers--personal and business, including trust officers and your spouse’s family banker; bookkeepers--for further documents; computer consultants--they know how and where data is hidden; computer on-line services--obtain his password to access information; computer message center and voice mail codes; financial planners friends--those close enough to be trusted with money; insurance agents--including life, annuity, casualty, and key man insurance; investment Advisor lawyers; mailing services--such as Mail Boxes Etc.; mini-storage and office record storage; physicians ;stock brokers ;telephone answering services ; telephone long distance companies ;therapists ;travel agents--personal and business; Federal and State Tax Returns for Past Years of the marriage, prior years if obtainable; Individual tax returns (Form 1040) (Form 1040X, for amendments).
Include all filed schedules for both individual and businesses involved. Supporting documentation: W-2s, 1099s, etc.
Look at Schedule B (Interest and Dividends). You can identify accounts, and the approximate amount on deposit Interest from foreign bank accounts appears at the very bottom of Schedule B.
Look for refunds and/or deficiencies. If you believe that the document produced is a forgery, have your lawyer insist that your spouse signs Form 4506. The IRS will photocopy the actual return filed.
Partnership tax returns (Form 1065) Look for net operating loss adjustments. Gift and estate tax returns. Has your spouse made or received any gifts? Has s/he inherited any property?
Business Records, Financial Statements and Credit Card Invoices
Personal Property
Personal property includes: Annuities; Antiques; Appraisals contain detailed descriptions of marital property. Note that appraised values may depend on the reason for the appraisal. For example, replacement value appraisals are often inflated while tax appraisals minimize value. Be sure you know the purpose for which the appraisal was prepared. Also, art work, automobiles, planes, boats, china and crystal, coins collectibles, frequent flyer miles, furniture/furnishings, furs, guns, jewelry, rugs, stamps, sterling Silver. Bills of Sale (all property over $200); Certificates of Title for automobiles boats planes trailers heavy equipment; Homeowners Insurance scheduled property often states a value for insurance purposes. Life Insurance Policies, applications, including drug test results beneficiaries cash surrender value loans against policies other encumbrances against policies, e.g., using the policy as collateral for a loan Sales Slips and Bills of Sale for automobiles, boats, planes, or trailers. Savings, Checking, and Credit Union Accounts. Note: if your spouse’s name is second on a joint account with a third party, that third party will report interest income. Your spouse will not receive a 1099, and the account will not show on your income tax return. Also, application to open an account. Monthly statements (look for payment or debit memo for safe-deposit box rental), passbooks, canceled checks and drafts (front and back) Note: make sure you photocopy the backs of checks, especially those made out to cash, to your husband or to any unknown third party. Account numbers of secret accounts may appear along with the name of the depository bank. Also, check cashing card, check register, check stubs, cashier checks (carbon or photocopy), cash transactions, certificates of deposit, children’s Uniform Gift to Minors Act bank records, Christmas club accounts, deposit slips, linked mutual fund and stock brokerage account, loan and credit applications, numbered accounts (often Swiss), passbooks (check to see if there is a loan against it), wire transfers withdrawals Look for any suspicious activities, such as repeated withdrawals of sums such as $505, suggesting conversion to travelers checks for $500 plus a 1 percent fee of $5.00. Securities Accounts; Securities certificates; stocks and bonds; stock brokerage account statements; lists of securities; mutual fund statements; agreements relating to the account, such as, option trading, etc.; applications to trade certain securities; Note that if your spouse is a sophisticated investor, he/she may have options or commodity trading ability. Stock brokerages require customers to fill out lengthy questionnaires before opening accounts for certain risky activities, such as options. These questionnaires are a good source of information regarding investment experience and objectives. IRAs, Keoghs and SEP-IRAs Pension, Retirement and Survivor Benefits. Small Business Ownership Records: Any information you obtain is helpful in appraising the value of the business, including; buy-sell agreements, key-man, life, and property insurance, casualty insurance, leases, non-compete agreements, financial statements, balance sheet, shareholder equity investments, asset list and depreciation schedules, corporate redemption agreement to purchase stock rights of first refusal, major contracts, pension and profit sharing budgets, projections, marketing literature, loan applications. Employment Benefits: Look for any sign that your spouse has deferred income, commissions, bonuses, royalties or has had salary converted into a non-cash benefit. This would include the following: clothing allowance, company car, credit union statements, contracts of employment, employee benefits brochures, pension benefit statement, plan booklet, and amendments actuarial report, on pension plan, expense accounts, expense reimbursements, housing/relocation programs, in-kind compensation, meals, medical insurance, life insurance, loan programs, pay stubs (show certain benefits not part of taxable income), pension, profit sharing, stock purchase plan, travel and entertainment allowance.
Litigation
If your spouse is suing, what is the value of his or her lawsuit? If your spouse is being sued, do you have any exposure? Are there any prior divorce proceedings--will a first wife’s right supersede yours? Court papers relating to pending matter(s) Statement of damages (to ascertain the value of the case) Look for Court records of final adjudication and Liens placed on assets. Loan Documents and Applications, Financial statements tend to show inflated asset values, income and net worth. Collection agency letters, home equity loans / lines of credit, mortgages / home and business notes, passbook loans, and payment schedules. Look for recent payment of loans to family members, business associates, and friends. Also, look for accelerated payments; your spouse wants to show he has no money for you. Also, promissory notes / payable and receivable. Miscellaneous Income and Assets: royalties, severance pay, workers’ compensation, Annuities, rental income, prizes and awards, trust and estate income, capital gains, gift certificates, unemployment compensation, pension, veteran’s benefits, social security, lottery or gaming winnings, life insurance income or proceeds, notes payable to your spouse, Partnership Agreements, Passport. Basically, any document or information that can track money or property and its character should be obtained, preserved and turned over to your attorney or someone he associates in to help him.
How are Custody and Visitation issues decided?
No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, dissolution or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality.
Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement if that is possible. A decision made by a stranger is rarely completely acceptable to all if the attempt has not been made in earnest. The family court systems of the states usually have several layers of counseling, mediation and conciliation to attempt to bring warring parents together for the purpose of resolving the issue of what it is in the best interests of their children.
Preliminary Considerations
The court is vested by the state with the authority to determine issues related to the custody of children of a marriage and for whom support is authorized, as well as emancipation, guardianship and other similar matters. It should be noted that the existence of a valid marriage bears absolutely no relationship to the propriety of a determination as to custody and visitation of minor children. Obviously there is no requirement of marriage for children to be brought into the world, but the issue is ripe for resolution within the family law context, whether it is a divorce, establishment of paternity or a child support action.
When custody determinations are fully litigated it involves different phases. Typically the first phase is initiated by way of an order to show cause or ex parte application for custody, requesting temporary restraining orders. If the person requesting such an order is capable of showing an immediate threat of harm to the child or an immediate risk that the child might be removed from the state, such orders can be granted.
The next phase typically involves mediation, counseling, and child custody evaluation/investigation. Generally it entails a series of court-appointed mediators and counseling professionals. Its purpose is to move towards a mutual agreement between the parties.
Child custody evaluation/investigation comes about in two ways. The court may appoint on its own motion a mental health professional and/or experienced child custody evaluator to investigate the situation and report back to the court as an aid in making the determination. If an allegation of child abuse or child endangerment is lodged a county agency may institute such an investigation as well. Beyond the allegation being lodged statute and regulatory authority govern the process.
The concept of legal custody pertains to the rights and responsibilities of the legal custodian to make decisions relating to the child’s health, education and welfare. This is a broad grant and is liberally construed to include most of the significant decisions in the child’s life.
The concept of physical custody refers to where the child will reside. The parent exercising physical custody over the child will generally be thought of as the custodial parent, while the other parent is commonly referred to as the visiting parent. An award of physical custody is more significant than an award of legal custody because the parent with whom the child is residing typically will exercise the lion’s share of the decision-making in issues pertaining to the child. The court will not contemplate an award of physical custody without an award of legal custody, either sole or held jointly with the other parent. Legal custody can be divided jointly between the parents, while physical custody can be vested exclusively in one parent.
While not an exhaustive list, the following sets forth some of the considerations the courts have grappled with in this area of awarding custody and establishing visitation:
Abuse of alcohol or drugs, change in the child’s residence, child’s preferences, issues of non-marital cohabitation, conduct of the parents in general, daycare issues, history of domestic violence, ethical and emotional guidance, expert recommendations, finances, frequent and continued contact, frustration of visitation, future relationships of the parents, gender of the parents, sexual orientation, past criminal activity, physical or emotional handicap, psychological issues, race and ethnicity issues, religion, schooling, status quo, unconventional lifestyle, work-related issues.
What about visitation?
Generally a court will grant reasonable visitation rights to a parent unless it is shown that the visitation will be detrimental to the best interests of the child. A non-parent can in the discretion of the court also be granted if they have an interest in the welfare of the child, this is generally divided into the area of grandparents, stepparents and other non-parents. It should be noted that this is discretionary. The court may also approve visitation plans and restrictions considering factors relevant to the best interests of the child.
What happens when a parent must relocate?
When faced with a relocating custodial parent, the court will generally require that parent to give the other parent a minimum amount of notice prior to the anticipated move. This notice gives the non-custodial parent an opportunity to go to court and seek orders restraining the relocation of the child. These so-called move-away cases have gone back and forth on allowing and disallowing a move by the custodial parent with the minor children for over 20 years. While the best interests of the child have always been central to the decision, the uncertainty has made this area murky. Assistance of counsel is highly recommended if there exists disagreement between the parents.
How can a parent remedy the frustration of visitation rights?
A variety of remedies are available to provide relief to the non-custodial parent who has had visitation rights frustrated. The non-custodial parent can commence an action to show cause concerning contempt for violating the court’s order pertinent to visitation. This is not a favored alternative. The court also has power to modify support, yet this works a hardship on the welfare of the child and is similarly not favored. Another alternative is to ask the court to require the custodial parent to post a monetary bond, which would be forfeited if the custodial parent frustrates visitation. Usually a history of frustration of visitation is the threshold, which much is shown the court, not a sole incident.
What is domestic violence?
This is violent conduct between relatives or family members and exists in many forms. In some states there does not have to be actual physical fighting between the parties; rather emotional abuse or fear of bodily harm is enough to be considered domestic violence. Real physical abuse, threats of bodily harm, mental cruelty, upsetting telephone calls, conflicts at work, and stalking are all forms of domestic violence. In general, one of the following relationships must exist in order for an action to be considered domestic violence: 1. The parties are related by blood, marriage, or adoption. 2. The parties are married now or were married to one another in the past. 3. The parties are presently or were once living together. 4. The parties are now or used to be dating or in an engagement relationship. 5. The parties have a minor child together.
Child Support
What is child support?
Child support is a payment by one parent (often the non-custodial parent) to the other parent for the support of their common child. (See Child Support and Visitation.) It is in the best interest of a child for both parents to be obligated to pay for the support of their child. An order for child support transfers the income/wealth from one parent to the other so that the combined incomes/wealth of both parents is available to use for the support of the child.
What is child support used for?
Child support covers everything a child needs, and even more, during the growth and formative years. Keep the following in mind:
A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life; and
Children should share in the standard of living of both parents. Thus, the amount of a child support award is more than a question of bare necessities.
If the child has a wealthy parent, that child is entitled to, and therefore “needs” something more than the bare necessities of life. Where the supporting parent enjoys a lifestyle that far exceeds the custodial parent’s living standard, child support must to some degree reflect that more opulent lifestyle. This is so even though, as a practical matter, the child support payments will incidentally benefit others in the custodial household whom the pay or parent has no obligation to support (e.g., custodial parent owed no spousal support, adult children, or children from custodial parent’s other relationships).
Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. Children are entitled to share in non-custodial parent’s elevated standard of living despite custodial parent’s substantially lower income. Awarding supported children a percentage of a non-custodial parent’s future bonuses ensures they will share in his standard of living.
Who can be ordered to pay it?
A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available, thus reducing the need for subsequent enforcement actions.
When can a child support order be changed or modified?
An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent’s financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.
How long must child support be paid?
The duration of this responsibility depends upon state law. All states require both parents to be financially responsible for their child during the child’s minority, generally through the child’s high school years. A few states have extended the time for financial responsibility beyond the minority of the child. Child support can be terminated in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting.
How is the amount of child support determined?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.
Obligor and obligee - which one is which?
The obligor is the parent that is required to pay the child support to the other parent.
The obligee (obliged) is the parent who receives the payment from the other parent.
What other items do formulas consider?
Time Spent With Child. Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula. Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the custodial parent (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the non-custodial parent (the parent without primary physical custody). Since the custodial parent spends more of his/her income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other.
Number of Children. Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common.
Special Support Circumstances. In addition, special circumstances may require a greater amount of child support to be paid. Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid.
Since there are a number of factors that go into the formula to determine guideline child support, some states have approved computer programs designed specifically for determining the amount of child support. Use of a computer program to determine the amount of child support is a very objective method for determining child support.
Proper analysis of all the factors can have dramatic effect upon the determination of the guideline child support amount.
What income items do typical formulas cover?
The formula is based on the respective net incomes of the parents. Federal and state income taxes, Social Security and Medicare tax, health insurance, union dues and other mandatory expenses are subtracted from a parent’s gross income (that is, income from all sources including, but not limited to, wages and investments) to arrive at his/her net income.
After a child has been raised, is the parent who raised them able to sue for back child support?
This depends on the law in the state where the parents live. In some states, the parent who was to receive child support can collect support owed even after the children are adults. The parent who was supposed to pay child support cannot claim that the child support is too old to be collected, or that the other parent should have tried to collect sooner, except to the extent collection is barred by the statute of limitations.
What about allocation of standard of living?
Each parent is supposed to pay for child support according to his or her ability and circumstances and station in life. A parent with the higher standard of living has the obligation to ensure his or her children share in that lifestyle. A non-custodial parent cannot be forced to pay child support beyond his or her means simply to match the custodial parent’s new station in life (as where custodial parent remarries into wealthier social position).
My husband and I have decided to use artificial insemination to have a child. The donor will not be obligated to support the child
Your best protection is to buy from a sperm bank since sperm bank donors have no way of knowing if they have any kids, let alone who the mothers are. However, one of the many disputed issues in this newly developing area of the law is whether the identity of the donor should be secret or whether states should enact legislation permitting disclosure to the child of his/her biological father.
If you opt out and go private, your best first step is to see a lawyer to draw up an artificial insemination contract. However, states are divided on whether the contract is enforceable. Some states won’t enforce these contracts as a matter of public policy (parents should be on the hook for child support and should get visitation). Some enforce the contract (consenting adults can decide these things for themselves). And the law is constantly changing.
Termination of parental rights is probably the best bet if you insist on going private. Check with a lawyer to see if a private party can bring this suit and if it can be brought before the birth of the child (in California, for example, your rights can be finalized through a pre-birth Judgment of Maternity and Paternity).
Can a parent limit the amount of future child support that is to be paid to the other (custodial) parent?
Maybe. Child support is awarded in the best interests of the child. In order to limit the amount of future child support payments, the interests of the child must be adequately considered. In theory, a disinterested Guardian Ad Litem for the child would have to be appointed and represent to the court that the best interest of the child would be to limit such future support payments. This would expose the Guardian Ad Litem to the possibility of a future claim by a former child (having reached the age of majority, s/he is considered to be competent to bring a legal action on his/her own) that the limitation of child support was not in his/her best interest. Thus, these limitations are rare.
Some states, however, will consider an argument that if there is a high level of income/wealth by one or both parents, a limit to the amount of support is proper. For example, suppose that the non-custodial parent has $1,000,000 in annual earned income, which results in a guideline support amount of $300,000 to the custodial parent. In some states, the non-custodial parent may be able to argue that such a high level of support is not in the best interest of the child, and that a lower guideline support amount should be set.
My wife is delinquent on her court-ordered medical payments for our child. Can I sue her for the delinquent funds in small claims court?
Small Claims court never has jurisdiction of Family law matters (despite what you see on TV). You may need to contact Family Support Services in your city, or at your courthouse, and find out what your local rules are for the enforcement of the judge’s orders.
Can one parent be ordered to pay child support even if s/he never married the other (custodial) parent?
Yes. Child support is payable from one parent to the other for a common child, regardless of the marital status of the parents. This is very common in a paternity action, whether or not the issues of parentage, child visitation, child custody, and child support are resolved. Paternity actions to recover the cost to government for payment of Aid to Families with Dependent Children (AFDC or welfare) are commonly brought by local government agencies (such as the Office of the District Attorney) throughout the country to hold a parent responsible for child support, even when s/he has never been married to the other parent.
I’m marrying a man who has children from a previous marriage. He regularly pays his child support. Since I earn more than my fiancé can I be held responsible?
Some states, California for example, provide that a new spouse with income cannot be held liable for the support of a stepchild except under extreme circumstances. Your State may have similar exemptions. However, for the time being, and for purposes of financial safety, set up and maintain separate savings and checking accounts. That way, your funds do not become commingled with your husband’s, and a court, should the question ever arise, will always be able to calculate whose income is whose and where the funds came.
How do childcare costs get factored in?
The cost of childcare can likewise be apportioned between the parents. Because childcare costs are incurred so that a parent is able to earn income, it means that a greater amount of combined income is available for the support of the child. Since both parents benefit from the cost of childcare, this cost is divided between the parents (usually 50% each). The parent who actually pays the childcare expense receives payment from the other parent.
I am a stepparent. Do I have an obligation to support the children from my wife’s previous marriage?
No. You should not be responsible to provide for the children’s support, unless there was an adoption or you agreed to provide support in a marital agreement.
I am the biological father of an illegitimate child born to a married woman who had agreed to abort the child. Do I have to pay child support?
A biological father is responsible for paying child support unless someone else adopted the child or his parental rights were severed by court action.
If the obligor parent doesn’t pay, can visitation be stopped?
No. The child support obligation and the right to child visitation are two different issues.
Failure to pay child support is insufficient grounds to stop the right of the obligor parent to visit with his/her child. A court in the best interest of the child orders visitation, to promote love and affection with both parents, custodial and non-custodial. Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be established.
On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for these needs; thus is treated as a separate issue, and does not have a determinative effect upon visitation. The obligee parent must continue to allow visitation with the child despite failure of the obligor parent to pay child support. Although this may be very hard for the obligee parent to understand, if the obligee parent frustrates the right of the obligor parent to visit with the child, the obligor parent could ask the court to change custody of the child based upon this frustration of visitation even though s/he is delinquent in payment of child support.
Gary J. Gottfried Co., LPA
608 Office Parkway, Suite B
Westerville, OH 43082
Map
Phone: (614) 297-1211
Fax: (614) 297-6387
E-Mail