How Will A Judge Decide Who Gets Sole Custody?

First and foremost, it’s almost always best for two parents to work together with their attorneys — or even through arbitration — to determine the best solutions during a divorce proceeding. Courtroom battles can be hectic, time consuming, and result in even more stress. At the end of the day, you would be leaving the ultimate decision about what happens to your kids in the hands of someone who has spent almost no time in their presence. 

When the decision is left up to the courts, though, how will a judge decide which parent or guardian should receive sole custody?

 

  • What does the child want? Yes, a judge will want to hear from your children before making the determination of sole custody. The opinions of your child may or may not sway the judge’s decision one way or the other depending on age. Older children will have more of a say (those around the age of twelve or older).

  • What is in the child’s best interests? Obviously this is an important question to ask, and difficult to answer. The judge won’t know what the child’s life at home is really like — he or she can only infer. That’s why the judge will look at all the information readily available, like income, social standing, character witnesses, etc.

    A parent who makes less won’t necessarily be prevented from obtaining custody, but if one parent is in poverty and the other makes six figures with a stay-at-home job, it’s not looking good for the parent in poverty. Then again, if the parent who makes six figures does it by selling drugs — you see how things can change on a situation by situation basis.

  • Who is the child’s primary caretaker? The judge will want an answer to this question. This is partly due to psychology growing up. Children will develop a bond with the person who provides the most support. The bond helps a child grow emotionally throughout adolescence. After a divorce this bond can be especially important. Because so many mothers still fall into this category, a court will more often side with her.

  • Are the parents married? Unfortunately, an unwed father is much less likely to win custody of a child even if paternity is established. The only way to obtain custody is by proving that the mother is unable to provide for the child’s basic needs. In many cases the best an unwed father can hope for is shared custody, which at least gives him a say in any important legal decisions that must be made in the future.

What Is Parental Alienation And How Does It Affect A Divorce?

Child custody battles can often get very heated. Negotiating things such as child support and visitation can be difficult. However, recently we’ve been seeing an increase in child custody cases involving parental alienation; when a parent undermines a child’s relationship with the other parent. Common examples of parent alienation include:

  • A mother telling a child that the father has abandoned them.
  • A father telling a child that mommy doesn’t want to spend time with them.

This can be very detrimental to a child’s psyche. Children who believe the manipulation done by their parents often develop something called Parental Alienation Syndrome (PAS). A child with PAS usually will no longer want to spend any time with the parents that they’ve been tricked into rejecting. Not all children develop PAS, however, if your child is being manipulated into thinking things that aren’t true, it is important to have them evaluated by a psychologist. If you feel that your child is being distant, it is imperative to try to mend the relationship. You do not want to potentially lose custody of your child because they have been brain-washed by your soon to be ex-spouse.

While PAS is not acknowledged in DSM-IV as a true psychological condition, the courts do recognize that it exists. According to experts, there are three levels of child alienation; mild, moderate, and severe. A third-party from the court will perform child custody to determine the severity of the alienation. To repair the relationship, many children will have to undergo therapy. Some judges recommend removing the child from the alienating parent’s home while other judges are hesitant to remove a child from the home is the alienation is severe.

The key to obtaining custody in a child alienation case is to get the courts to move quickly and assign a child custody evaluation and psychologist to assess the situation before the alienation becomes too severe. Contact us today if you feel that your child is at risk of becoming alienated.

Can I Divorce If My Partner Won’t Sign The Papers?

Filing for divorce will result in stress. It’s inevitable. One of the questions you’ll have to answer when filing for divorce is exactly how you go about it: will you present the case for a no-fault divorce, or will you point the finger at your partner for contributing to the demise of your relationship? If you choose the latter, you might have a long road ahead. Choose the former, and it might be easier on both of you–but you might come away with fewer assets when all is said and done.

What if your partner won’t sign the divorce papers? Does it make any difference? Yes and no.

No one wants to endure drawn-out divorce proceedings, but that’s exactly what might happen if your partner refuses to sign the papers or disputes the hows and whys. If a partner won’t even respond to the divorce request, then matters can quickly become even messier.

Don’t worry: you can still get a divorce. The judge will likely handle it in one of two ways. The judge might proceed with an uncontested divorce, or perhaps allow you to file a default divorce. You’ll only be allowed an uncontested divorce if the divorce petition and response have both been properly filed. In this case, your spouse most likely refused to agree to and sign the final divorce papers, in which case the court may proceed with the divorce as though it was uncontested. This becomes more likely if your spouse fails to show up in court.

A default divorce may occur if your spouse doesn’t respond either to the initial request to file for divorce or the eventual terms of the divorce. Your spouse usually has a month to respond to your petition. If that doesn’t happen, then you may be allowed to file for a default divorce.

In such a case, you will be assigned a court date during which you must show up. The judge will hear the facts of the case–as you outline them–and then make a judgment based on the merit of your arguments.

This means there is no benefit to ignoring a partner who wants a divorce or refusing to sign divorce papers. A divorce will still occur. In fact, by refusing to be part of the process, your partner is actively giving up his or her rights to fight against a potentially damaging judgment.

Should You Divorce After Domestic Violence Or Abuse?

About 95 percent of victims in cases of domestic violence are women, and these violent circumstances are present in as many as two-thirds of all marriages. Although these figures are shocking all by themselves, it’s even more shocking that the victim almost never leaves the spouse after the violence occurs. If you’re abused as a child, it increases the chances that you’ll perpetuate violence later in life.

That should make the question of whether or not you should divorce a spouse after a divorce or domestic abuse occur all the easier: of course!

There are a number of reasons that a person will decide to stay with a spouse after enduring violence. One of them is the legal system and its many faults. Some would describe it as a broken system, but there are many options and services available to those who need help.

No matter what you think, you need to act. The longer you wait, the worse the violence will become. There are shelters. There are pro bono lawyers who specialize in domestic violence. Call the police. Get yourself and your children to safety. That said, it’s a good idea to speak with a lawyer before you do. If the court doesn’t agree that you had ample reason to remove yourself or your kids from the home, then it might affect alimony later, your ability to return home, or your chances for child custody.

When you’ve escaped from that environment, you should consider filing criminal charges. Your lawyer will help you determine what a spouse might be charged with, whether it is assault and battery or sexual assault.

Court may help alleviate your situation, but it could take time before you might get court-mandated custody of your children, possession of assets, or a restraining order.

An attorney will help you collect your thoughts and write up an adequate list of facts in the case, from threats and accusations, to medical records, to the results of the violence. State and federal laws protect you from domestic violence, and you should use these protections to your benefit. Get to safety. Call a lawyer, and then the police. File for divorce. When all that is done and over with, you can finally move on with your life.

What Do Statistics Say About Child Custody During Divorce?

Child custody can be one of the biggest decisions that parents will have to make during a divorce, and also the most contentious. If parents aren’t calm and level-headed about the situation, then they might need to head to court. If they aren’t calm and level-headed there, then things could get even worse. Most custody arrangements aren’t decided by the courts because no one wants that. The less than 10 percent that end up there might not benefit either parent or their children.

A “custodial parent” is defined as such because he or she has been given custody by the court system. If the decision is ultimately made in court, then an older child might have a say in where he or she goes. The judge will want to hear all sides, and that means asking about the feelings of the child.

There are probably more custodial parents than you realize. More than 25 percent of children and 48 percent of African American children live in families with a custodial parent. Over half of custodial parents only have a single child. In other words, don’t think you’re alone. Don’t be embarrassed to discuss your situation with friends and family, because it’s common.

Custodial-parent families experience poverty more often than non-custodial-parent families. If you plan to file for divorce, make sure to discuss your financial situation with anyone involved with the decision-making process. If you know you won’t have enough to survive, take the extra time to explore other options before you make a choice you could regret. Ask for help from a qualified divorce attorney for legal advice.

Nearly half of custodial parents receive child support payments from the other parent.

About half of out-of-court arrangements leave the mother with the child. When court factors into the equation, only 17.5 percent of custodial parents are the fathers.

If you’re a father seeking to gain custody of the child, then you should know that courts still seem to favor the mother in situations where sole custody is granted. If you would like to turn the tables to give yourself a better chance, then you need to do two things: show that you can easily support a child on your own, and show that your spouse cannot.

What Is Marital Abandonment?

In regards to family law, marital abandonment is a situation with one spouse leaves the family renouncing any responsibility to the family. This is different than someone moving out during a separation. In Marital Abandonment, the spouse typically does not provide support, especially financial, and does not intend to return to fulfill those responsibilities. After a certain period of time where it is clear the spouse will not return, the remaining spouse can use this as grounds for divorce.

Another form of Martial Abandonment is Constructive Abandonment. This is when one spouse makes life so intolerable for the other spouse, that they are forced to leave. There are many legal grounds that allow a spouse to leave under these conditions such as:

  • domestic violence and abuse
  • infidelity or withholding sex
  • refusing to give financial support

While most forms of Marital Abandonment are classified under family law, there are a few instances where the act can be considered criminal. If a spouse commits marital abandonment and refuses to provide care for minor children or for a spouse who has serious medical problems may be considered criminal behavior. It’s imperative to go through the proper legal channels and get a legal divorce and work out a proper custody agreement than face criminal charges.

If you feel that your marriage is heading towards divorce then feel free to contact us for a free consultation. Or if you have been abandoned by your spouse, give us a call and we can help you file the necessary paperwork to protect your financial assets.

Planning For Special Needs Children During The Divorce Process

Right now, 40 to 50 percent of Americans who are getting married will get divorced. However, couples who are parents to special needs children have almost double the divorce rate percentage with 80 to 90 percent of marriages ending in divorce. While any divorce poses specific challenges, when dealing with a divorce with a special needs child, the focus should be on strategic long-term disability care planning to ensure a financial support for children who will need long-term services. Unlike other children who will one day outgrow their parents, special needs children will require assistance with basic life skills such as decision making, daily activity and self-care well into their own adulthood.

When negotiating during a divorce, it is important to take into consideration the child’s disability when making agreements. For example, children with Autism or Sensory Processing Disorder might not be able to handle transitioning from one house to another therefore only one parent might have physical custody rather than both. As always, all custody discussions should be handled with what is in the child’s best interest but in this case, what is the best long-term interest of the child. Also, agreements should clearly define responsibilities when it comes to physical therapy, tutoring, specialized medications and education.

Another unique aspect of divorce with specials needs children is that children aren’t always minors. In the event that the child is above the age of 18 and is disabled and not incapacitated, then they can issue what is called a General Durable Power of Attorney to one parent or both parents. They might also dictate who will be the Health Care Proxy to help make informed health care decisions. If the child who is over the age of 18 does not have the capacity to make informed decisions guardianships are a possibility. Guardianships are usually awards to one parent who will make decisions on what is best for the child.

Divisions of assets become tricky in these cases because when the child reaches a certain age because in order for the child to receive Medicaid and Social Security Benefits they must make below a certain income. This might seem contradictory because it is always the parents’ goal to make sure that their child will be financially secure in the future. It is recommended that assets that wish to be given to the child be put into a separate trust and appoint a trustee to use the funds at their discretion. This way the child can still qualify for things like Medicaid and Social Security Income. It is important to note that the trustee cannot be one of the parents.

If you are going through a divorce and have a child with special needs, contact one of our divorce attorneys to help you through this difficult process to ensure a successful financial future for yourself as well as for your child.

How Can Social Media Affect Your Divorce?

Posting on social media has become a daily or even hourly activity for a lot of people. While some users are conservative, others will share their personal lives with the masses, updating them on what they are doing, seeing, hearing, and so on. As you may know, social media can affect all aspects of your life. When you are going through a divorce, what you post o social media can affect the outcome of the case. It is important that you keep some things personal and refrain from giving your ex-spouse ammunition to use against you in divorce court.

How Can Social Media Negatively Affect your Divorce?

Social media can affect your divorce in a variety of ways, including:

  • Uncovering Hidden Assets – While you ex-spouse may think they are slick hiding assets from you, they may not be slick enough to keep their single life off of social media. For example, if your ex-spouse is claiming that they cannot afford alimony payments, but is posting pictures on Facebook of their vacation at a 5-star resort or the brand new luxury car they just bought, the pictures can be used as evidence to show that they have more money than they are leading on.
  • Dating Life – Dating can be tricky after a divorce. While one party might be making an effort to make the marriage work, the other might be out and about, going on dates with other people. If you decide to start dating during the separation process, it can create a bad optic. Your ex-spouse may be able to use pictures of your dating profile or from your social media accounts to put the fault on you. If your divorce becomes an “at-fault” divorce, it can have a significant outcome on the ruling of the divorce or the financial obligations of the divorce.
  • New Job/Higher Income – When someone receives a new job or promotion, it is often celebrated by a post on Facebook or LinkedIn. Even if you do not log on to post a celebratory status, you may add the new job/position to your LinkedIn resume. A new job or a promotion may mean an increase in income, which can affect the amount of spousal support or child support you are ordered to pay. Additionally, if your new position requires regular traveling, it may have an impact on child custody rulings.
  • Negative Comments – Sometimes, when someone grows angry with someone or something, they take to social media to air out their feelings. If you are going through a divorce, posting your feelings on social media or airing out your exes dirty laundry can have a negative impact on rulings like child custody. If you are creating a hostile environment, a judge may rule against you in a custody hearing. The reasoning behind this ruling is that judges try to place children in an environment where the children will have the best quality of life and avoid any hostility against the other spouse.

If you are going through a divorce, it is a wise decision to take a break from social media. If you are hiding something from your ex, make sure your mutual friends do not post it on social media either, as you may have blocked your ex-spouse but forgot about your mutual friends.

Tip On Managing Your Finances During A Divorce

One of the most difficult decisions a person makes is the decision to get a divorce. And with decision comes many other decisions including child custody, child visitation, child support, spousal support and division of property. Without the guidance of a legal expert, the amount of decisions, especially when it comes to finances can feel insurmountable. We’ve created this list of helpful tips on how you can manage your finances while you are going through the divorce process.

Tip 1: Close all joint accounts

Whether it’s a joint checking account or a joint credit account, it’s important to close these accounts immediately. You do not want to be gaining income or racking up debt in both of your names while you are trying to split the assets equally.

Tip 2: Create a budget

A lot of the times in the event of a divorce, you are going from a two-income household to now just a single income household. By creating a budget, you will make sure that you do overspend on things that are not necessary and you will be able to afford your new lifestyle. The budget should include things like your monthly expenses, mortgage payments, car payments, retirement funds and tuition if applicable.

Tip 3: Find healthcare insurance

Especially if you are the spouse that is covered under your soon to be ex-spouse’s plan, the sooner you can get on your own health insurance the better. This will prevent a lapse in coverage and you can work the new expense into your budget.

Tip 4: Update your insurance policies and other estate planning documents

While we do not like to think about our own mortality, making sure your children are provided for in the future. It’s also important to make sure your power of attorney and health care proxy are updated to the correct person so you ex-spouse is not in charge.

Although this is just the small tip of the iceberg of everything you need to do during the divorce process, we hope that we can make your lives a little easier. If you are seeking a divorce attorney do not hesitate to contact us.

Common Reasons for Divorce

When a couple gets married, their intentions are to have a happy marriage, with a wonderful family, that lasts forever and ever. A growing number of couples are getting married; unfortunately, not to their soul mate. More and more couples are choosing divorce over sticking it out with someone they can’t bring themselves to live with any longer. Divorce has become a common theme amongst young couples in their 20s and couples within the first 10 years of their relationship. There are a number of different factors that weigh into the decision to get a divorce. An article from marriage.com supplied the information we used to create this list.

Some Common Reasons for Divorce

Infidelity – We see it in TV shows and movies all the time, but that’s just dramatics for the big screen, right? Wrong. Extra-marital affairs are one of the most common reasons for marriages that end in divorce. People cheat for a variety of reasons, maybe they’re looking to spice up their sex life, maybe they’re angry with their partner, maybe they just feel detached from the person they once lived deeply. Whatever the reason is, it can be a crushing blow to a marriage that was already shaky.

Money – Money, money, money, mooo-ney. Everything about money can make a relationship toxic. If the two partners have different financial goals, the spending habits of the other partner may put an immense amount of strain on the couple. Money can also factor in if one partner makes more than the other. This can create a power struggle between the two partners.

No Communication – Communication is key in any relationship whether it’s between a friend and you, a coach and his/her players, a boss and his underlings, and your spouse and you. Without communication, one party may become frustrated and feel left out. Practicing good communication is key to a successful marriage. You should never be afraid to talk to your partner. Tell them how you feel and share your feelings with your partner.

Arguing – A sign of a relationship going south is constant arguing. Constant arguing can make each spouse feel like they’re not being heard or appreciated. Sometimes a fix to this can be taking a step back and looking at it from the other person’s point of view.

Weight Gain – We know, this reason is messed up. But it’s true, weight gain is one of the most common reasons that couples get divorced. It’s not because there is a change in personality, but it can be as simple as one person isn’t as physically attracted to the other anymore. This can also have an effect on yourself. If you have gained weight, your self-esteem may drop making you less physically intimate.

Unrealistic Expectations – Often, people enter a marriage and think that everything is going to be cupcakes and rainbows. Unfortunately, that’s more than likely not going to be the case. There are going to be some rough times and some issues you have to push through. Don’t go into marriage with the idea you and your spouse are never going to argue, it’s unrealistic and can cause a rift between the two of you.

Absence of Intimacy – The responsibility, for this reason, falls on both parties. This isn’t always about physical intimacy, emotional intimacy can also play a role. If one party is acting cold or disconnected from the other, it can leave the other party feeling under appreciated. Practice little acts of kindness and affection to constantly remind your loved one that you appreciate them.

Shortage of Equality – This reason comes into play if one party feels like they are making more of an effort to the marriage. This can lead to resentment, which can lead to extra-marital affairs or divorce.

Not Ready for Marriage – Sometimes, you’re just not ready for married life. Divorce rates among couples who get married in their 20s are high. Almost half of the couples that get a divorce are within the first ten years of the marriage.

Abuse – Abuse covers not just physical abuse, but emotional abuse as well. Emotional abuse can stem from a reason that is unsettling to one party whether it is a deeper emotional issue or something within the marriage. No reason for abuse is acceptable and no one should be forced to tolerate it.