Archive for December, 2016

What’s The Difference Between Legal And Physical Custody In New York?

Tuesday, December 27th, 2016

In divorces that include children, there seems to be a misunderstanding, if not a total unawareness, of the difference between physical and legal custody. Moreover, when the term “joint custody” is added to the equation, many get lost in the wording. This article will hopefully help you understand the difference between legal custody and physical custody.

When legal custody is awarded to a parent, it refers to their ability or power to make decisions on behalf of the child. These decisions could regard the child’s religious upbringing (obviously you cannot force your child to believe in something, but can persuade them towards one), medical requirements, and their education (private school, public school, homeschool, etc.). In essence, legal custody gives the parent the authority to make decisions for the child that impact the child’s life directly. Obviously, this is a very important role, and the parent awarded this custody should be of very sound mind, and one who is a good decision maker.

Physical custody is much different and is much easier to understand. Put bluntly; physical custody is simply a determination of which parent the child will spend the most time with. This, in turn, decides which parents the child will most likely be living with for the majority of the time.

And because it is very uncommon that one parent will be satisfied with having little to no time at all with the child, we have what is known as custody battles. Sometimes, the court decides on joint custody, which attempts to balance the time spent with the child or children. However, regardless of how equal the time awarded to each parent may appear to be, one parent will always have more parenting time than the other, and by law, this parent will have physical custody of the child. And the parent that is awarded physical custody is also entitled to receive child support, regardless if the decision-making responsibilities are shared between the two parents.

How Can I Change My Divorce Lawyer During The Process?

Tuesday, December 20th, 2016

Changing your representation mid-divorce isn’t as uncommon as some think, especially in a divorce case. There is a multitude of reasons for why you feel the need to change attorneys and an even greater number of factors that have lead you to this breaking point.

Some of the more common reasons for switching are that a spouse rushed into choosing a lawyer, and have come to realize that this partnership will no longer work and that it is time to change your divorce lawyer. Or, maybe you just don’t like how your attorney is handling your case; whatever it might be, know that you have the right to have whomever you want to represent you. While it is your right, don’t exercise it at the expense of your case.

First, you must find and retain a new lawyer. Note that this is prior to terminating your relationship with your current attorney. This is because you shouldn’t be without legal representation at any time while in the divorce process. So, sign a new contract with your new attorney, and bring them up to speed with the case so far, and any upcoming court dates they need to know about.

Then, you must end your contract with your current divorce lawyer. This can be done either in writing or in person, but a good rule of thumb is that even if done in person, you should still have a letter of termination. This letter should clearly indicate the date on which you want to terminate, and should also include the name and contact information of your newly retained attorney. Most importantly, don’t forget to include that you want all relevant information the attorney has pertaining to your case sent to your new attorney and include a specific due date.

From there, it’s a matter of paying off any remaining outstanding bills, having the rest of your client file moved to your current attorney, and have your new attorney file with the court that they are now your new legal representation.

How To Change A Divorce Settlement Agreement?

Thursday, December 15th, 2016

After the divorce process is over, yours and your children’s life will change. Your life has to go on. Your kids will grow older, jobs (and their salary) change and divorce agreements that worked in the past are now obsolete. This is the reason why the law makes it possible to modify settlement agreements, as well as court orders made by a judge.

As time passes, you or your former spouse could at some point decide that the current terms of your divorce no longer fit with the existing living situation of your children. Your income probably decreased due to a salary cut, and so you need more spousal support or maybe now that your children are older, they have grown to the point that you need to cover more expenses.

If you and your former partner can agree that changes need to be made, as well as what changes, in particular, the process of modifying the agreement should not be that much of a hassle, especially if the court agrees with your request.

Just like when you and your former spouse got divorced, to modify the agreement you need to consult your lawyers, as they can ensure that your needs and best interests will be protected in the revisions.

A revised agreement must be created and filed with the court so that the new agreement can be court ordered. This is all under the premise that both parties agree with all the changes, because without this, you and your former spouse will end up in court again, with a new set of familiar battles.

The changes in your life and your children’s lives are the main ways you should go about proving that a change is needed as well as pointing out how the life of the other spouse might have changed for the better, and that a revision is needed to keep things fair.

Who Is Entitled To Spousal Support?

Saturday, December 10th, 2016

When a married couple decided to get divorced, the judge will consider, and most often award spousal support otherwise known as “alimony,” to one of them. This will be decided either before the trial, where the two parties can make an agreement, or after a trial is conducted before a judge.

The purpose of awarding alimony is to mitigate any unfair, economic advantage that one spouse might have as a result of a divorce. The “disadvantaged” party will receive a continuing income from the other.

An example where one party may receive alimony is when a spouse who puts his or her career on hold in order to start a family, which include sacrificing time that could have been used to develop career/job skills. Now, not only are they looking for work with no relevant experience, they don’t have the financial stability to withstand the interim, jobless period.

The court also tends to recognize the notion of “maintaining and continuing a standard of living.” In other words, if the spouse has been living a certain type of life for a significant amount of time on their spouse’s work, it can be a compelling enough argument for the court to award alimony.

When deciding on the amount of alimony, the court will look to The Uniform Marriage and Divorce Act in order to reach a fair decision for both parties. The length of the marriage and the age/emotional state of the spouses, along with financial conditions, are the main factors in amount, but also in determining the length of time.

In addition, the amount of time necessary for the receiving spouse to receive the necessary education or experience to restart their career is taken into consideration.  Last, but certainly not forgotten, is the ability of the paying spouse to actually make these payments and still have the ability to support themselves.

 

What You Need To Know About Uncontested Divorce

Monday, December 5th, 2016

Contrary to what many of us see in movies, or read about in papers and books, not all divorces are long, drawn out battles that go on in front of a judge, with the spouses dueling it out via lawyers and litigation. The term used for this type of separation is called an uncontested divorce, and it is pretty self-explanatory.

An uncontested divorce is when the two parties have no disagreements over any of the financial issues that are worked out during an average divorce process. In addition, there should be no disputes over other divorce-related issues as well. These include things like child custody, child support, the division of any marital property that may exist, and spousal support. There is another way that an uncontested divorce can happen, and that is if one of the spouses, or parties, fails to show up in the initial trial, known as the divorce action.

Although an uncontested divorce is ideal, and the way most divorces actually go, don’t assume that your spouse will be so willing. Although it is the least expensive way to get divorced, most spouses are very stubborn in terms of what they think they are entitled to, and what they want from the divorce. In this case, quite obviously, they will be contesting the divorce, at which point it will go to trial and proceed to the divorce process.

The benefit of an uncontested divorce is that it saves everyone a lot of money, and is usually quick and painless. This is especially true if there are kids involved, as a lengthy and angry divorce process can have lasting and damaging effects on the children, not to mention the emotional and mental toll it will take on you and your former partner. Of course, if you are presented with the divorce papers, it would be best to consult with an uncontested divorce attorney before agreeing, as they can help you understand what you might be giving up that you are actually entitled to.