Archive for August, 2018

Are Stepparents Required To Pay Child Support For Their Spouse’s Child?

Friday, August 31st, 2018

In general, the courts tend to not require a stepparent to make child support payments for the child of their new spouse, from their prior relationship. Moreover, when the courts are initially calculating child support payment amounts, they will not even include the stepparent’s earnings as a factor. However, just like with any other matter that comes before the courts, there are always mitigating factors that they determine have a substantial enough impact, and are relevant enough, that it warrants being included in the decision making process, and the facts of a case may require the stepparents income to be included when deciding child support payments for the biological parent. For instance, if the support-receiving parent marries someone that reduces the cost of living for them, then a court may reduce the child support award to reflect an appropriate amount with respect to cost of living.

An exception to this would be if the stepparent decided to adopt the child, in which case they would be personally liable for child support. However, in order for this to occur, the parent of the child, who is not their current spouse, would normally have to terminate their parental rights in order for the stepparent to even begin the adoption process. In a regular scenario, however, stepparent are not required to pay child support for the spouse’s child.

What If The Non-Custodial Parent Doesn’t Appear For A Court Date?

Wednesday, August 29th, 2018

Assuming that the non-custodial parent was properly served, and made aware of the court date, they are expected, and demanded, to show up to court. Typically, a summons, along with other relevant documents to that court date, will be included in the service, and will also notify the parent of the date, time and location of the court date.

There are certain types of cases in which the penalty for not appearing can lead to a bench warrant being issued for that person’s arrest. However, with regard to custodial/non-custodial parent issues, if the non-custodial parent does not appear, it will only serve to hurt them in the divorce process. Suppose that you are the non-custodial parent, and the court date is set to discuss a potential modification to the custody agreement. While it is not a guarantee that, if the non-custodial parent does not show up, the court will rule in favor of the other party, it is really not a good look for the non-custodial parent, and is not indicative of someone who A. is responsible, and B. really wants to have a new custody arrangement that will allow them to see their kids more.

If the court date is to discuss child support, then the non-custodial parent’s absence could mean that the court makes a decision without the non-custodial parent being able to represent themselves and their interests in court, which could be incredibly important, depending on the exact nature of the issue being discussed in court. So, besides giving off the impression that you just don’t care, missing court dates means that you will not get to have your interests represented and argued for, which leaves you at the mercy of the decision made by the court – without you.  

How Does Remarriage Affect Child Custody?

Friday, August 24th, 2018

When it comes to children’s living circumstances, the court holds “what is in the best interest of the child” as their most determining factor. With that in mind, parents are often worried about beginning a new romantic relationship, because they fear that it may create an environment in which their child does not feel comfortable. Not only would a parent with physical custody worry about this, but a non-custodial parent as well, as they already have their child with them for a limited amount of time, and would not want to give the court a reason to further limit this time. But does that mean a parent can’t begin an intimate relationship with a new person, let alone remarry?

First, it’s important to recognize the common scenarios in which remarriage affects a child life. For instance, if the remarriage might lead to a relocation of one of the parents, and in that scenario, the child’s life would be greatly affected. If the custody agreement states the parents have equal time, then a move like this would severely impact the agreement and the child’s  current state. In this scenario, the custody agreement would have to be modified in order to allow such a move.

Another instance where remarriage can impact the custody of a child is if the new spouse and the child do not have a good relationship. While this can be in the form of physical abuse, it does not have to be. Again, it is what is in the best interest of the child that the courts care about primarily, and if they feel that the presence of the new spouse has a negative impact on the child, they will be more than willing to make a modification of the custody agreement. The court will look to see a corresponding change in the child, whether it be in school or in their behavior, to signal that the current set-up is not working.

Ultimately, if one of the parents is planning on remarrying, then the new spouse should want to develop a positive and fostering relationship with the child, whether the parent wants to potentially gain more custody time, or preserve the custody arrangement they have currently.

The Benefits Associated With Revocable Living Trusts

Wednesday, August 22nd, 2018

Today on our blog, we have a guest post on a topic that affects everyone – estate planning. Specifically, Revocable Living Trusts. While we normally talk exclusively about family law, part of avoiding conflict and keeping families in a more healthy state requires future planning, and in this case, planning for the future distribution of assets among family. In this blog we discuss an intro to Revocable Living Trusts, and estate planning instrument. Taking steps now can help your family minimize tax loss and avoid costly problems later on

Over 65 million Americans are over the age of 50 and many are looking to understand their options on how to  transfer their assets and provide for their loved ones after their departure. Without a proper plan, a large portion of your assets could be unnecessarily lost to probate court costs, legal fees, unintended heirs and estate taxes. Probate is basically estate administration upon the death of an individual where that individual’s estate and assets are delegated. This process costs thousands of dollars and is time consuming. In order to avoid these costs and to ensure that your desired heirs receive the value from your estate and assets, you can set up a trust. A trust offers a way to leave behind your legacy and protect your assets while avoiding probate. It is the need of hour that one should Crush The Bar Exam and should take it seriously in order to attain positivity.

A trust can include anything ranging from real estate and life insurance settlements to cash and investments. Trusts may vary in size scope and benefits. They may have different requirements. Sometimes exemptions are contained in trusts such as jointly owned assets offering survivorship rights or designating beneficiaries for assets such as retirement accounts, annuities and more.

The rules governing trusts vary by state. Some benefits associated with establishing a trust are as follows.

Avoid Probate Costs And Time Delays

Your assets can be protected from lawsuits and probate fees especially for people who are in professions known for litigation such as doctors and lawyers. After a person dies his or her estate goes through probate where the public is allowed to see the will and assets. Creditors are paid off and if the decedent has assets in other states probate fees is assessed for each state. Probate fees can range from 3% to 8% of your estate in addition to estate tax and income tax that would also be imposed. If your assets are placed in a trust they are shielded from public scrutiny. The assets in a trust are also off limits from creditors and not subject to probate fees. By clearly designating beneficiaries through a trust you can prevent infighting and lawsuits between heirs.

Remain In Control Of Your Assets During Your Lifetime

A revocable trust gives you full use of your assets while you are alive and then passes this authority onto a successor trustee after your death. Revocable living trusts designate a trustee to manage and control the property of the grantor. They offer management and provisions like credit shelter where estate taxes can be reduced. Additional tax benefits include savings from reducing transfer taxes and the size of the estate with charitable contributions. A trustee is a person that you as the grantor have designated to be in charge of your estate after your death. This individual has a fiduciary responsibility to manage your trust assets responsibly.

Flexibility In Making Provisions For Your Heirs And Beneficiaries

Revocable living trusts offer a multitude of ways to provide for beneficiaries. Funds can be set aside for education or medical purposes, decisions can be made at what age or interval those funds can be distributed. Unrelated, out-of-state individuals or trust companies can be appointed to act as the primary administrator of your property at death in a revocable living trust.

Leaving Behind A Legacy

Establishing a revocable living trust offers you a unique way to leave a legacy for the people, organizations and beliefs that mattered the most to you during your lifetime. You can designate exact amounts of contributions and any other guidelines for bequeathing your assets according to your wishes.

 

Disclaimer: This article only offers general information. Please do not use this article for legal advice. Each case has special circumstances and must be reviewed by a specialist. This article does not create an attorney client relationship.

How Are Child Support Payments Made?

Monday, August 20th, 2018

As the parent ordered to make child support payments, there are multiple, acceptable forms of payment that you can submit your child support payments through. Sometimes, the Court might specify the exact method that they want the paying parent to use, if the circumstances regarding the receiving parent require a specific method.

The methods of direct payment, where one parent pays the other on a specifically set schedule, vary in terms of method of delivery, as well as when they are appropriate to be used. Cash is a very common method, but a major drawback is that there is no receipt given, and therefore it is a bit difficult to prove that payment had been made, if it is ever needed. Also, depending on the status of the relationship between the parents (whether or not they can coexist), it may or may not be feasible for there to be a face-to-face meeting between the two.

In order to avoid the in-person interaction, a check or money order can be made in lieu of cash. Although this leaves the possibility of the money getting lost, there is at least a form of proof of payment, or attempt of payment, that comes with this form of payment (although you wont always know when).

Sometimes, the Court has to enforce the payment of child support, and in this scenario, they often utilize their ability to enforce wage garnishments, to extract the demanded child support amount. This is done through the employer, as they will withhold the amounts from their income. However, this does require that the paying spouse has a job, and is not self-employed.

As technology has improved, online transfers are now an acceptable form of child support payment as well. But again, the Court can set the form before the parent even has the chance to decide, and it would be determined largely by the best way for the receiving parent to accept payment.

What is a Collaborative Divorce?

Friday, August 10th, 2018

To many of those who are exploring options for divorce, Collaborative Divorce, a recent addition to the list of ways spouses can get divorced, sounds a lot like mediation. In some ways it IS like mediation, except that in a Collaborative Divorce, both parties still retain their own attorneys to represent them. However, unlike in a traditional divorce setting, both attorneys are working with the mindset of getting the best possible outcome for both parties, as opposed to just representing and fighting for their clients interest only. In fact, the lawyers that specialize and practice in this type of divorce are bound by a different set of rules than those who do not, like putting what is just and fair before their client’s interests. Moreover, if the process breaks down, neither attorney is allowed to represent their client when the case goes to court.

A Collaborative Divorce is a great option for couples who feel that they can work out a divorce settlement amicably amongst themselves, but still want to have an attorney present, to protect them from agreeing to something they don’t understand, and might come back to haunt them later. In addition, much like with mediation, a Collaborative Divorce can be useful in ending the marriage while, in some capacity, preserving and retaining a functional relationship. The process is very organized, and an agenda/plan is set up in advance so that both parties have ample time to prepare for each meeting, in which they will discuss and negotiate (and hopefully compromise) on all the key issues and subjects that must be dealt with in order to move towards a divorce. If you and your spouse have a working relationship, and want to avoid a costly divorce, you should definitely consider a Collaborative Divorce.

How Do I Get A Divorce If I Cannot Afford One?

Monday, August 6th, 2018

There are many common reasons why one of the spouses in a marriage cannot afford a divorce. By “afford a divorce”, I am speaking primarily about being able to afford to retain legal counsel. The reasons for this can vary, from the fact that their spouse is the one that controls the finances, or perhaps they kept their finances separate, and one of the spouses is not in a place financially to hire a lawyer. In any event, there are other ways for someone to get a divorce attorney besides the traditional route of just hiring and paying one.

If your spouse controls both of your finances, you can approach this several ways. One way is to try and see if you can find an attorney that will provide a free consultation, so that at least you are taking one step in the right direction. Some may even be willing to take your case on, and work out a plan on how they will get compensated at a later time. In addition, the court may grant your request for your monied spouse to pay your legal fees.

Another option is an uncontested divorce, which is simple and quick because it does not involve a long, drawn out divorce process. There is one other option, although it is highly unadvised, which is to represent yourself in the divorce, meaning you will be your own attorney. But in the case of not being able to afford most attorney fees, see if you can obtain pro bono, or legal representation without charge.

How Can I Protect Myself If My Spouse Takes Out A Loan In The Divorce?

Monday, August 6th, 2018

Many people who are preparing for divorce get anxious when they begin to think about incurred debt, both their spouses and their own, and if they will be responsible for paying this debt off once they are separated from their spouse. When it comes to debt incurred during marriage, the truth is that it all depends on a few things, mainly who’s name is the debt in, what your state’s laws are, and what kind of debt it is (credit card debt, mortgage, auto, etc).

If your name is on a loan, either as a borrower or a co-signer, you will be held completely responsible for the paying back of this debt. The lender of the initial loan does not care about the circumstances of the borrower – their main priority is to receive money to the fulfillment of the debt (they may not ever even become aware that you got divorced!). The longer this goes unpaid, the more your credit score will suffer, and when you are just getting out of a marriage, and your finances are still a bit in a state of flux, the last thing you want is a mounting debt and a suffering credit score – especially as you look for a new home. So merely by being a co-signer, even if the “debt” is not explicitly on you, the loan and payment of it are applicable to you. A good option here is to try to get your name off the loan, either by refinancing or, if possible, having your name removed entirely. But if that doesn’t work, it is best to have it paid off, and deal with being repaid later, when your credit score isn’t taking a major hit.

In the state of New York, a “common law” state, spouses are only responsible for debts explicitly in their name, which allows one to be very mindful and careful when deciding on entering into a joint account with their spouse. Moreover, a prenuptial agreement can outline something similar, in that it can explicitly detail how finances, and debts, are to be divvied up in the case of a divorce.

Can The Custodial Parent Limit Visitation If The Noncustodial Parent Hasn’t Paid Child Support?

Thursday, August 2nd, 2018

When a non-custodial parent isn’t making child support payments, a common, yet misguided, response by the custodial parent is to withhold visitation rights to the other parent. Especially is this is not done through legal means and simply by but preventing or not allowing the non-custodial parent to see their child. The reason that this move is ill advised is because not only is it very unlikely to get the spouse to pay, but it can also potentially backfire and have negative consequences down the road.

If it comes out that you are withholding visitation from the other parent, you are also seen as withholding visitation for the child to see their parent, and the child has every right to see their parent. The court feels that the child should not have to be punished for their parent not making support payments. Moreover, just because you are not allowed to see your child does not make you exempt from being required to pay child support. So ultimately, you are withholding visitation even while the non-custodial parent will be required to make child support payments.

Finally, it is very unwise to play the role of deciding visitation, especially in the sense that you are in any way restricting visitation, and therefore negatively impacting the relationship between that parent and the child. The court is very opposed to this, as recently there has been an increased emphasis on each parent supporting the child’s relationship with the other parent. Any act against this could become problematic down the road.