Posts Tagged ‘divorce attorney’

3 Reasons Why You Should Get A Prenuptial Agreement

Saturday, February 2nd, 2019

Almost everyone has some type of asset: Regardless of whether an asset is personal or business owned, if it was acquired prior to the marriage, and you plan on continuing to own them during the marriage, it is advisable to get a prenup. In the event of a divorce, a prenup will dictate the distribution (or lack thereof) of premarital assets. A prenup also allows the original owner of said asset to retain it. In the event of a divorce, not only does this help to expedite the divorce process, since there is nothing to debate, but it also alleviates any stress or worry that you may not be able to keep the asset.

Divorce proceedings can take longer if finances need to be discussed: Since so many married couples end up co-mingling assets and other properties, it can be difficult to trace what is separate property and what is joint. A prenup can address whether or not there will be spousal support in the event of divorce, once again resolving a frequently battled topic without court intervention. Once again it helps to expedite the divorce process and alleviate any stress of ownership over the item. It is important to keep in mind, however, that the prenup must be deemed “fair” by the court at the time it is enforced.

Today, nearly half of all marriages end in divorce: Although it may not be the most romantic move, and brings into the realm of possibility that divorce can happen, it is important to protect yourself and your assets, since no one can predict how a marriage will turn out. Moreover, in the event of a divorce, you want to have some financial backing to fall on, as expenses and financial responsibilities can change drastically as a result of divorce.

Since the possibility of divorce exists, a prenup is a wise move because financial distribution is one of the most complicated and dragged out matters in a divorce, and having it figured out beforehand would be preferred. Ultimately, the prenuptial marriage agreement will spell out how the financial aspects of the marriage are to be dealt with, without the need for discourse in the courtroom, and removes all ambiguity.

Is An Attorney Necessary To Voluntarily Terminate Parental Rights?

Thursday, January 24th, 2019

If a parent desires to forfeit parental or guardianship rights to their child or have been requested to do so and approve of this request, they must meet with a lawyer along with the child’s other parent. In this meeting, the lawyer will ensure that all the necessary paperwork is correctly filled out and that the termination of rights is legally allowed.

The ins-and-outs of a parent’s rights being terminated vary, sometimes greatly, by state, which is why it is highly advised to seek assistance from a lawyer.

Not considering some of the uncommon variations, below are the general processes for termination:

  • The terminating parent must sign a termination document, which should be drawn up by an experienced lawyer to confirm all legal angles are covered. The signature of the terminating parent generally needs to be notarized and be done before a witness, then the papers will be filed with the court.
  • The court will want to examine the case facts, and decide whether or not the termination is legal and fitting based on their own review. In most cases, termination of parental rights is only allowed for the purpose of someone else adopting the child. However, if the terminating parent is consenting and/or wants to take the action, and there is a good reason for it, a judge should be willing to go give the all clear. A lawyer can also help you with stating your overall reasoning for the court in this type of situation.

Hiring a lawyer is vital in cases where the parent that gives up their parental rights because it is required that the parent gives their explicit informed consent, in order to give up those rights. If both parents have legal representation, then it is easier to ensure the parent terminating their rights does not later argue that they were not fully informed. There will be explicit proof that they had retained legal representation, and that the lawyer aided them in understanding their rights, and in making a deliberate, informed decision.

My Spouse Is In The Military, Is There A Special Procedure To File For Divorce?

Monday, December 17th, 2018

Although there is some overlap between military divorces and civilian divorces, the differences between them are distinct, and fall under the scope of matters regarding compliance with support payments, methods of service/process, residency, and relating filing requirements, or the division of military pensions. Jurisdiction is decided on by different rules as well; while the state the party resides in has jurisdiction in civilian cases, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else when it comes to a military divorce. However, most states will allow service members or their spouses to file for divorce, in the state in which they are stationed, regardless of whether or not they are legal residents of that state.

Similar to civilian retirement benefits, military pensions are subject to division, sometimes via equitable distribution, between spouses in a divorce proceeding. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA):

“State courts may treat military retirement pay as either sole or community property depending on the state.“

While the USFSPA doesn’t provide a formula for dividing the amount of retired pay, the amount is generally determined and awarded under the specific state laws. In addition, payment of the former spouse’s portion of the military retirement is paid straightaway by the Defense Finance and Accounting Service (DFAS) to the former spouse, only if there were at least 10 years of marriage that overlapped with 10 years of military service (known as the 10/10 rule).

In addition to military pension benefits, spouses of former military are also eligible to obtain full medical benefits, and exchange privileges after a military divorce, under the following scenarios:

  • The couple was married for 20 years or more;
  • The service member has performed at least 20 years of creditable service to retirement pay; and
  • There was at least a 20-year overlap of marriage and military service.

With regard to spousal and child support, the military is focused on ensuring a service member’s family support obligations after the divorce. A court also may require the providing spouse to maintain life insurance that would cover child or alimony support payments for an allotted period of time.

Can A Prenuptial Agreement Protect Future Earnings?

Monday, December 10th, 2018

A prenuptial agreement, or “prenup”, is a tool utilized by both parties to protect their individual rights, as well as obligations, in the event of a divorce. Moreover, prenups cover the distribution and handling of property, real and personal, marital and separate. For example, if one party owned a house prior to marriage, they are likely to include a provision stating:

  • Which party will the property be retained by,
  • Who will be responsible for the costs of maintenance of the property,
  • How money obtained either through the selling or leasing of the property will be distributed between the parties.

Another use for prenuptial agreements is to protect future earnings. Although a party may not have any significant assets before or during the marriage, it doesn’t necessarily mean that they don’t expect to acquire significant assets in the future. With a prenup, the spouse can pre-emptively protect any earnings from their professional career in the event of a divorce. A good example could also be someone who expects to inherit or take over a “family business” prior to getting married, and so this planning in advance negates a possibility of that ownership being in jeopardy.

In order for the prenup to protect your future earnings and potentially gained assets, the prenup should be drafted by an experienced attorney, who knows how to correctly articulate what you want protected and preserved in the event of a divorce. The last thing you would want is for a vague and unclear prenup to be drafted and agreed upon, only for the judge to interpret it differently than you had planned. The prenup must be in writing and signed by both parties. The enforceability of a prenup is decided upon by the court, so long as the agreement was signed by both parties voluntarily, and the prenup is considered fair to both parties, it will be enforced.

Can My Estranged Wife Petition The Court For Additional Child Support?

Friday, December 7th, 2018

Although child support payment is typically determined during the settlement process, there are instances where there is a modification that can be made post-divorce. The custodial parent, who is the parent receiving the child support, would have to file a petition with the court, to ask for a modification to the current child support order, which in this case is an increase in the amount paid.

The court will look for a significant “change in circumstance” in one or both of the parents’ lives, specifically one that would warrant a modification to the child support order. For instance, in a scenario where the custodial parent is seeking additional child support, the parent might cite the fact that the non-custodial parent has started to earn more money, and can now afford to pay more child support.

A change in income can also result in a modification, not only for an increase in support paid but in some cases a decrease. In some cases, the order might lead to a decrease in the amount paid monthly by the non-custodial parent if, for example, they lost their job. The resulting modification, in this case, would be a reduction in the amount the non-custodial parent has to pay.

Ultimately, a custodial parent can petition the Court for additional child support, and a non-custodial parent can seek a modification as well. In either scenario, to be awarded the modification they are seeking, they will have to show a significant change in circumstances in the child’s life or either parent’s life, financial or otherwise. Whatever the reason, it is the court’s decision to either accept or deny the modification.

What If My Ex Died Before A Divorce Settlement Was Fully Paid?

Monday, November 12th, 2018

If, in the event of a divorce, there is a settlement agreement drafted and signed by both parties, it stipulates and sets forth how the parties will operate post-divorce. This includes assigning custody of the child or children, child support, visitation, and spousal support. But, if the spouse paying child and spousal support dies, how can the other parent receive any support at all?

If the Court issued a financial Order, then there has essentially been a “debt” assigned, and therefore can be sued due to an unfulfilled obligation. In this scenario, the executors of the deceased spouse’s estate will be responsible for determining in what amount the estate will pay out.

If the divorce settlement and proceedings are finalized, and, for instance, the deceased spouse did not change the beneficiary from their spouse to another person in their Will, then that Will shall be enforced upon the conclusion of the divorce proceedings. In the event that there is no such Order issued, it is harder to argue that there was a “debt owed”. You can bring a claim under the Provision for Family and Dependents Act 1975, wherein the Court will determine based on these considerations:

  • the financial resources and needs of the applicant

  • the financial resources and needs of any other applicant
  • the financial resources and needs of the beneficiaries
  • any obligations and responsibilities of the deceased towards any applicant and any beneficiary

  • the size and nature of the estate of the deceased
  • any physical or mental disability of any applicant or beneficiary

  • any other matter, including conduct, which the court may consider relevant.

Beyond this, there is not much else the surviving ex-spouse can do. The Court will definitely take into account what could have been reasonably expected to have been received in the event of a divorce, without the death of the former spouse.

Will Dating While My Divorce Is Pending Affect The Outcome?

Tuesday, September 4th, 2018

By the time the divorce action gets entered into court, and the proceedings begin, it is not uncommon that one, or even both, of the spouses are either engaged in a new (or sometimes pre-existing) relationship, or at the very least they have started to “get out there again” and going on dates. Although most spouses who are getting divorced are separated, many wonder if having romantic and intimate relationships with other people will negatively impact their case in court. After all, they are still married, and many people become concerned that the judge may find this to be a reason to rule in favor of their soon-to-be ex spouse.

The answer to this question is complicated, because while there is no written rule of whether or not dating is allowed, their can be many ramifications that come as a result of the fact that you are dating, and so it is important to be mindful of the impact these relationships may have. For example, judges are not known to punish a spouse for dating other people, especially after they have become physically separated from their spouse. But, because you are still married, it is very likely that your current spouse will take some issue with this – even if they themselves are dating! Some go as far as accusing the “dating spouse” to have begun the relationship before the divorce was started, which would be an affair, and not look good to a judge.

Some rules of thumb to follow revolve around how and when you should go about dating. For instance, as mentioned earlier, it is more appropriate for you to start dating after you and your spouse have physically separated. Not only for how it would look with respect to your marriage with your spouse, but it helps keep it away from the children, who would not benefit in any way from witnessing it, nor should they meet your new person. Keep in mind that divorce is an emotionally taxing process and experience, and it may be wise to just refrain from engaging in an emotional relationship until things are more calm, stable, and when you are able to confidently and comfortably re-enter the “dating game”.

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.