The Texas Legislature updated provisions to the Standard Possession Order making the parents' "exchange date" during the Christmas holidays December 28th rather than December 26th. See Texas Family Code Section 153.314. Commentators suggest the date change involves Texas school districts' trend in dismissing school later in December than in previous years.
What you need to know about your taxes if you pay or receive child support.
For federal income tax purposes, child support is tax-free to the recipient, meaning neither the ex-spouse nor the child owes taxes on it. However, child support payments are not tax-deductible by the parent who makes the payments -- unlike spousal support payments. (Spousal support is tax-deductible for the person who makes the payments and taxable to the recipient.)
Be careful how support is characterized in your marital settlement agreement, as it may have significant tax consequences.
What Qualifies as Child Support?
In order to qualify as child support, the payments received by an ex-spouse must be designated as child support in the divorce or separation agreement. If the agreement lumps the payments together as "family support" or "alimony," or doesn't otherwise designate a specific portion of each payment as child support, none of the payment will be considered child support for tax purposes.
This can have adverse tax consequences for the recipient of child support payments, because family support or alimony is taxable to the recipient. So instead of receiving nontaxable child support, the ex-spouse will be receiving alimony, which is taxable to the payee, regardless of what the payee actually uses the money for.
Generally, in order for someone to claim a child as a dependent, he or she must provide at least 50% of the child's support during the tax year. For couples who are still married and living together, claiming kids as dependents is usually a slam-dunk.
Things get complicated, however, when parents divorce or separate. Now, only one of you can claim the dependent exemption. (The IRS will come down hard if both of you try to claim it; they cross-reference dependents' Social Security numbers to make sure taxpayers aren't doing this.)
Special Rule for Parents Living Apart
If the parents lived apart at all times during the last six months of the calendar year, or if they have a written divorce decree, maintenance agreement, or separation agreement, there is a special rule that applies.
In this case, if the child received more than half of his or her total support for the year from one or both parents and was in the custody of one or both parents during the year, the IRS rules assume that the custodial parent (defined as the parent who has custody of the child for the greater part of the year) should get the exemption for the dependent. However, the parties may change this presumption and allocate the exemption to the noncustodial parent if either of the following are true:
The IRS is very picky about Form 8332, and can (and often does) disallow the dependent exemption for the noncustodial parent if this form isn't signed and attached to the tax return, even if the divorce decree or separation agreement allocates the exemption to the noncustodial parent. That means it's very important for the noncustodial parent to attach a copy of this declaration to his or her return in every tax year in which he or she claims the exemption.
If the custodial parent refuses to sign Form 8332, the noncustodial parent can attach part of the divorce decree or separation agreement (the cover page, the page that discusses the exemption and the signature page) to his or her tax return to prove that he or she is entitled to the exemption. However, the IRS will accept this only if the decree or agreement doesn't require that certain conditions be met before the noncustodial parent can claim the exemption. If there are conditions, the noncustodial parent must use Form 8332 or not get the exemption.
Rule for Unmarried Parents or Those Still Living Together
If the parents are not married, did not live apart during the last six months of the calendar year, or do not have a written document, the test for determining which parent can claim the child as a dependent is that the parent who provides more than 50% of a child's support during the tax year can claim the child as a dependent.
Rules for Parents Who Contribute Equal Amounts of Support
If neither parent provides more than half of the child's support for the year, things get even more complicated. For more information on how to handle this situation, see IRS Publication 504, Divorced or Separated Individuals, which you can download for free from www.irs.gov.
Copyright © 2006 Nolo
Paternity must usually be established before child support can be collected.
The question "Who is the father?" is not as simple a question as you might think. There are important legal distinctions between different situations relating to paternity.
Acknowledged father. An acknowledged father is a biological father of a child born to unmarried parents for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support.
Presumed father. If any of the following are true, a man is presumed to be the father of a child, unless he or the mother proves otherwise to a court:
In some states, any of these presumptions of paternity is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child.
A presumed father must pay child support.
Equitable parent. In Michigan (Atkinson v. Atkinson, 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H., 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent. Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child or where the biological parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.
Alleged father. An unmarried man who impregnates a woman is often referred to as an alleged father, or sometimes simply as an unwed father. An alleged or unwed father will be required to pay child support if a court determines or he acknowledges that he's the father; in addition, an alleged or unwed father has the right to visitation with his child and may seek custody.
Stepfather. A stepfather is the spouse of a legal mother and is not also the biological father of the woman's children. A stepfather is not obligated to support the children of the woman to whom he is married unless he legally adopts the children.
A paternity action, a court suit filed to have a man declared the father of a child, can be brought by either the mother or the father. Paternity actions are sometimes called establishment hearings, filiation hearings, or parentage actions.
Most paternity actions are initiated by welfare officials who provide TANF (Temporary Aid to Needy Families) to the mother and are required by law to seek reimbursement from the father. The mother must cooperate in these proceedings; failure to do so can result in a reduction or loss of her TANF grant.
Today, blood and DNA tests can affirmatively determine paternity with a 99.99% accuracy and can rule out paternity with 100% accuracy.
If paternity is established following a paternity action, the court will order the father to pay child support and grant him custody or visitation rights.
Copyright © 2006 Nolo
When parents of different faiths separate, how do courts decide whose religion the children will follow?
When parents of different faiths separate, they don't always agree on whose religion the children will follow. With increasing numbers of interfaith marriages and high divorce rates, this topic has recently been argued in courtrooms across the country. The results? A hodgepodge of decisions that lack national uniformity, leaving parents at the mercy of a court's discretion.
When called upon to resolve disputes between separated or divorced parents who disagree about the religious upbringing of their children, courts attempt to balance competing concerns. On one hand, courts must protect an individual parent's First Amendment right to the free exercise of religion as well as the right to raise his or her child as he or she wishes, as long as those parenting choices do not endanger the welfare of the child. On the other hand, when making decisions about custody and visitation arrangements, courts must protect the best interests of the child.
When one parent complains that the other parent's religious activities are not in the best interests of the child, courts have the difficult task of deciding whether it is necessary to encroach upon the other parent's First Amendment and parenting rights by limiting religious activities.
Because the U.S. Supreme Court has not yet decided a case involving religious upbringing and custody, there is no uniform national law. Instead, the law varies from state to state. Most state courts apply one of the following three legal standards when deciding these cases:
Courts applying this standard will restrict a parent's religious activities only if the other parent proves that those activities cause substantial or actual harm to the child. This standard is used in many states, including California, Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont, and Washington.
The cases discussed in this section provide examples of how courts following the actual or substantial harm standard may rule in various situations. Keep in mind that these decisions do not have to be followed by courts in other states or, sometimes, in the same state that the decision came from.
Munoz v. Munoz: Exposure to two religions does not cause harm
In Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971), the state of Washington's highest court ruled that exposing children to two different religions (Mormon and Catholic) is not harmful in and of itself and therefore does not justify restricting a parent's religious activities.
Pater v. Pater: Restrictive religious customs are not necessarily harmful
In Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992), Ohio's Supreme Court ruled that religious customs (Jehovah's Witness in this case) that restrict a child's social activities -- even if they separate him or her from peers or go against community standards -- are not enough to justify court intervention unless the practices harm the mental or physical health of the child.
Kendall v. Kendall: Physical acts and verbal threats justify religious restrictions
In Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997), the highest court in Massachusetts ruled that a father's verbal threats and physical acts toward his children, which were designed to interfere with their Orthodox Jewish religious practices, were enough to warrant restrictions on his First Amendment and parenting rights. (A court-appointed doctor found that the father's actions -- cutting off his son's payes (the curls customarily worn by Orthodox Jewish males) and telling his children that anyone outside the fundamentalist faith was "damned to go to hell"? --caused mental and emotional harm to the children. The court barred the father from sharing his religious beliefs, praying, or studying the Bible with his children if those activities would cause the kids to reject their mother or their Jewish identity or cause them emotional distress.)
In a handful of states, including Minnesota, Montana, North Carolina, and Pennsylvania, courts have used a different legal standard to decide cases where religion and custody collide. In these courts, a parent seeking to curtail the other parent's religious activities need not demonstrate actual or substantial harm to the child, but only that there is a risk that the child might be harmed in the future.
In MacLagan v. Klein, 123 N.C. App. 557, 473 S.E. 2d 778 (1996), a North Carolina court ruled that, since a young girl had identified as Jewish since age three, exposure to the Methodist religion might interfere with her Jewish identity and adversely affect her emotional well-being. Based on its concern that the girl might suffer harm in the future, the court gave the Jewish father sole control over the child's religious education.
In a few states, including Arkansas and Wisconsin, courts do not apply the actual or substantial harm standard or the risk of harm standard. Instead, these courts use a simple rule: The parent with sole legal custody has exclusive control over the child's religious education. If a dispute arises over religious upbringing, the court will curtail the noncustodial parent's religious activities and enforce the custodial parent's desires. These courts reason that interfering with the noncustodial parent's religious activities does not violate First Amendment rights, because the restrictions apply only to the time period in which the parent is with the children. At all other times, the parent is free to practice his or her religion as he or she chooses.
When parents have joint legal custody (which a majority of states now award unless it would harm the child), teachings from both religions may be allowed.
Johns v. Johns: Father forced to bring children to church during visitation
In Johns v. Johns, 53 Ark. App. 90, 918 S.W. 2d 728 (1996), an Arkansas court deferred to the custodial parent's wishes. In this case, the father complained that the mother, who had legal and physical custody of the children, was preventing him from visiting with his kids. The mother said she was refusing visits because he didn't take the kids to church and Sunday school. The trial court ordered Mr. Johns to bring the kids to church. The father appealed. The appellate court agreed with the trial court, holding that because the mother was the custodial parent, her desire that the kids attend church each week was paramount.
Zummo v. Zummo: Joint legal custody equals two religions
In Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990), the divorcing couple's dispute about the religious upbringing of their children was resolved by ordering the father to take the children to Jewish services (the mother's religion) and also allowing him to bring the children to Catholic services (his religion). The court believed that, because the couple shared joint legal custody, they each had the right to instill religious beliefs in their kids.
Some States Follow More Than One Standard
In some states, like Montana and Pennsylvania, one court will use the actual harm standard and another may use the risk of harm standard or the no harm required standard. Because the U.S. Supreme Court has not ruled in this area of the law, state courts do not have to adhere to any one standard unless the highest court in the state (usually called that state's supreme court) has adopted a standard.
Parenting Agreements Regarding Children and Religion
When deciding a dispute about religious upbringing, courts might consider any oral or written parenting agreements that the couple previously made about how to handle the children's religious upbringing. However, if you haven't been able to stick to the agreement yourselves, a court won't necessarily enforce it for you. In fact, most courts reject agreements about which religion the children will follow when their folks separate. Here are the reasons they commonly use.
The agreement is vague. Often, couples make such agreements informally, prior to marriage, without considering a future divorce or separation. As a result, the agreements are vague. For example, many agreements fail to specify the degree of religious training (how often the child will attend services or whether the child will attend additional classes, Bible studies, and other church-affiliated programs) or whether the children will be permitted to attend the other parent's place of worship during special events.
This agreement is oral. The parties have different versions of the agreement and may disagree about the terms of the original agreement. A court will not enforce an agreement if it cannot determine what the parents originally agreed to.
The agreement is too old. Courts often hesitate to bind either parent to an agreement that was made many years in the past.
Courts don't want to curtail First Amendment and parenting rights. As previously mentioned, courts are loathe to tramp on an individual's First Amendment or parenting rights. Nor do courts want to get involved in ongoing supervision of parents' compliance with an agreement; this can look like excessive government entanglement in private affairs.
Not all courts dismiss religious upbringing agreements, however. For example, in September 1999, an Indiana court ruled that the terms of a divorce settlement agreement regarding the religious upbringing of the children was binding on both parties. (Wilson v. Wilson, 716 N.E. 2d 486 (Ind. App. 1999).)
The short of all this is that if you enter into an agreement about the religious upbringing of your children, it stands the best chance of being enforced by a court if it is in writing, very detailed, and no more than a couple of years old.
Because each state court can rule according to its own law, and the states profiled in this article can reverse their positions at any time, you may be better off settling your differences outside the courtroom.
However, if you are afraid that your child may be harmed by your ex's religious practices, consider taking your child to a mental health professional. By doing so you'll either calm your concerns or have real evidence that may help you to renegotiate with your ex. And, if all else fails, you can use the evidence in court.
If you must resort to the court system to resolve a dispute regarding your children's religious upbringing, keep in mind the following:
Copyright © 2006 Nolo
Learn the difference between legal custody, physical custody, sole custody, and joint custody.
Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won't get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you -- which may harm the children. What's more, if you're represented by an attorney, it's sure to be expensive.
If you think you have circumstances that make it impossible to share joint legal custody (the other parent won't communicate with you about important matters or is abusive), you can go to court and ask for a change in custody so that you have sole legal custody. But, in many states, you will have to overcome a presumption that joint legal custody is preferable.
Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
One parent can have either sole legal custody or sole physical custody of a child. In most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children's lives. Even where courts do award sole physical custody , the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.
Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.
It's understandable that there may be animosity between you and your ex-spouse. But it's best not to seek sole custody unless the other parent causes direct harm to the children. Even then, courts may simply allow supervised visitation, while still ordering joint legal custody.
Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements and the children's needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house or apartment. Other joint physical custody arrangements include:
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent. There are, of course, disadvantages:
If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.
Bird's nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own.
Copyright © 2006 Nolo
Practical steps to help you create a workable parenting plan with your child's other parent.
If you are divorcing and you have kids, the most important task ahead of you is to make an agreement with your spouse about custody and visitation. No matter how angry you may be or how difficult your communication with your spouse is, put your children first and do everything you can to make decisions together with your spouse, rather than letting a judge or court evaluator make them for you. This means keeping an open mind and getting whatever professional help you might need -- from a therapist, a custody evaluator, or a family mediator.
A written parenting agreement or parenting plan is helpful in setting the stage for a successful post-divorce relationship. Just the process of creating an agreement allows you and your future ex-spouse to discuss most or all of the issues that will come up during your children's lives. In addition, if, after you create and sign an agreement, the other parent continuously breaks the agreement, you will have proof that he or she originally agreed to the agreement in writing.
Factors you should consider in writing your agreement include:
Before you try to negotiate with the other parent or seek the help of any professional in developing a parenting agreement, it makes sense to collect and review all relevant documents. If you're in the midst of a divorce, or if you've already been involved in custody proceedings, these might include:
You won't necessarily need all of these documents to develop a parenting plan. Nevertheless, having them can help expedite matters, especially if you are going through a legal separation or divorce. For example, if you or the other parent have already initiated a court proceeding, you may have a deadline for submitting your parenting agreement.
Carefully read the documents you gather. If you need help in finding or understanding any of them, an attorney, court clerk, paralegal, marriage counselor, or mediator might be useful. Some of these folks might also be able to help you work with your spouse.
Copyright © 2006 Nolo
Learn how child visitation laws affect grandparents', stepparents', and caretakers' visitation rights.
Grandparents, stepparents, and other caretakers often form deep and loving attachments with the children in their lives. Yet when death, divorce, or estrangement tears families apart, these caretakers may find themselves without any legal right to maintain contact with the children they love.
All 50 states currently have some type of "grandparent visitation" statute through which grandparents and sometimes others (foster parents and stepparents, for example) can ask a court to grant them the legal right to maintain their relationships with loved children. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances.
Approximately 20 states have "restrictive" visitation statutes, meaning that generally only grandparents can get a court order for visitation -- and only if the child's parents are divorcing or if one or both parents have died. However, most states have more permissive visitation laws that allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation would serve the best interests of the child. Some states allow caretaking adults besides grandparents to make such a petition.
Both restrictive and permissive visitation statutes have been challenged in court by parents who argue that the laws are an infringement on parents' rights to raise their children as they see fit. Courts have made contradictory rulings.
In 2000, the U.S. Supreme Court tackled this critical problem of grandparent visitation rights. In the case of Troxel v. Granville, 530 U.S. 57 (2000), the Court reviewed a state court case from Washington State that struck down a permissive grandparent-visitation statute. The Supreme Court agreed that parents have a fundamental right to make decisions about raising their children, but it did not agree that the permissive visitation statute was unconstitutional nor that allowing a nonparent to petition for visitation rights would amount to an assault on the integrity of the family unit.
However, the Supreme Court did say that the lower court applied the statute incorrectly. because it presumed that the grandparents' request for additional visitation was in the children's best interests, rather than presuming that the parent was acting in the best interests of her children in refusing the grandparents more than brief visits. This led the lower court judge to conclude that visitation should be granted unless the mother could prove that the additional visits would have an adverse impact on the children. The Supreme Court thought that this approach did not adequately protect a parent's fundamental right to make decisions for her children.
Many states have permissive visitation laws similar to Washington's. These states don't see grandparent or caretaker visitation as a severe restriction on the right of parents to control the upbringing of their children. Instead, they classify visitation as only a slight burden on that right. Therefore, the states need only justify the burden with a "rational" reason. Preserving the right of children to maintain strong bonds with their grandparents generally qualifies as such a reason.
In addition, the Court in Troxel appeared to be swayed by the fact that the mother was not seeking to cut off the grandparents' visitation entirely. Instead, she chose to limit the visitation to one, nonovernight visit per month, plus some special holidays. If the mother had tried to bar the grandparents from visiting their grandchildren completely, it is possible that the Court would have reached a different conclusion.
The Supreme Court's decision in Troxel is not the final word on grandparents' visitation rights. It's likely that parents will continue to challenge how permissive visitation statutes are applied in each case. Judges in these states will certainly be more careful to take parents' wishes into account when resolving disputes.
Grandparents, caretakers, or parents involved in a struggle about visitation can find out more information on their state's current law by researching their state statutes from Nolo's website (search for "grandparent visitation").
Grandparents who face parental resistance to their contact with beloved grandchildren might consider requesting a mediation session with the children's parents. (In fact, some state courts won't consider your petition for visitation until the parties have attended mediation together.) Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with.
Copyright © 2006 Nolo
How to find property your spouse may be concealing when you divorce.
This list includes common ways in which a spouse may undervalue or disguise marital assets:
In addition, business owners may try to hide assets in these ways:
When you're looking for these items, you may have difficulty finding them or getting the proof you need to show they exist. Formal discovery procedures through litigation may help. For instance, you could take the deposition (legal interview) of your spouse's boss or payroll supervisor. But you may also need to hire a forensic accountant or a private investigator. (A forensic accountant is an accountant who is trained to look into accounting practices in order to gather evidence that can be used in court.) Usually an attorney can refer you to these specialists.
Document Your Finances Before Filing for Divorce
If you suspect that your spouse may attempt to hide assets, it's best to start investigating your household and business finances before initiating divorce proceedings. Make copies of important documents such as tax returns from the past several years, bank account statements, pay stubs, and any other documents that reflect joint assets or debts. Keep copies of these documents outside the home if you're still living with your spouse or partner.
Copyright © 2006 Nolo
What records you should keep when you pay or receive alimony payments.
Alimony, also called spousal support, means paymenta by one spouse to another following a divorce. Courts don't always grant alimony, but where the marriage was long and one spouse earns a lot more than another, or one spouse left the workforce in order to raise children or manage the household, alimony is fairly common.
You must keep adequate records if you are paying or receiving alimony. This point cannot be over-emphasized. Frequently after a divorce, the spouses dispute, or the IRS challenges, the amounts that were actually paid or received. Without adequate documentation, the payer may lose the alimony tax deduction and/or be ordered to pay back support if the other spouse makes a claim in court.
Here are suggestions of records to keep:
Be sure to keep these records for at least three years from the date you file the tax return deducting the payments.
Make a list that shows each payment received. Include the following information:
Copyright © 2006 Nolo
Learn when divorce mediation is likely to succeed -- and when it might not.
Even if you (or your spouse) don't feel ready to mediate, when you consider the financial and emotional costs of a contested divorce, you might want to give mediation a try. But before you do, consider your relationship with your spouse. You are most likely to have a successful mediation experience if all or most of the following statements are true.
Sometimes, the decision to divorce is mutual. Both spouses come to the conclusion, more or less at the same time, that the marriage is over. For other couples, the decision is more one-sided. One spouse decides that a divorce is necessary, while the other spouse is unprepared for, and perhaps opposed to, the idea of getting divorced.
When the decision to divorce is mutual, spouses usually find it easier to begin working together on a settlement in mediation than they would if one spouse initiates the divorce. Where one spouse makes the decision, it is natural for the other to resist cooperating with any requests to move along in the process, including a request to mediate. This usually changes with the passage of time, so factor timing into your assessment of your readiness. If the divorce was more one person's decision than the other's, more time may be needed before you begin mediating.
If you and your spouse have accepted (however reluctantly) the reality of your separation's being permanent, and if neither one of you has an overwhelming desire to reconcile, then the odds are that each of you has reached an emotional point in the divorce when mediation can be productive. This doesn't mean you must rule out the possibility of reconciliation. But you do have to be ready to focus on what happens if you and your spouse don't get back together.
Spouses who want to remain on good terms with each other, either because they have children together or because of their own values, can use this motivation to get through the rough spots in negotiating and compromising during mediation. It is not essential to a good mediation, but it certainly helps.
Do you have a high level of animosity toward your spouse that could undermine mediation? If so, you might find it helpful to work with a counselor on ways to keep this animosity in check while you go ahead with mediation. Another option is to find a mediator who will conduct some or all of the mediation in separate meetings so that you don't have to deal directly with your spouse.
It's natural at times to blame your spouse for things that went wrong in your marriage or for the decision to divorce. But, if you feel that your spouse is entirely, or almost entirely, to blame, you might find it hard to enter into any agreement in mediation that your spouse considers acceptable.
Also, if you want your spouse to acknowledge and pay for his or her wrongdoing in some way, such as giving you the bulk of the marital property, mediation may not succeed, because your spouse may not be prepared to accept any blame, let alone pay for it in some tangible way. If your state's laws allow you to prove fault as a ground for the divorce, and you have the emotional and financial resources for it, maybe a contested divorce is the right approach for you.
Financial issues are a big part of any divorce. In order to negotiate a good financial settlement, you need to understand the financial reality with which you are working. The mediation process can help you get a better handle on your financial situation, but the more you know to start with, and the more comfortable you are talking about financial matters, the more confident you will be going into mediation and the fewer surprises you'll encounter. If you know very little about your joint finances and your spouse is very knowledgeable, you may feel at a disadvantage going into the mediation.
If your spouse has lied to you in the relationship, you may need to take a close look at whether or not you can trust your spouse to be truthful and sincere during the mediation. If your spouse has lied to you about an affair, you may understandably be afraid to believe anything your spouse tells you, especially if you only recently discovered the deceit. But this doesn't necessarily mean that your spouse will lie about other crucial aspects of the relationship, such as finances and property.
If your spouse has lied to you about property or finances, you have a different problem. It might not be wise for you to rely on the voluntary exchange of information. You may want to consult a lawyer about other ways to verify important facts independently. You may even need to ask the lawyer to conduct legal discovery of the facts and records to give you a complete financial picture before starting mediation and attempting to negotiate a settlement. It may also be important to work closely with a lawyer or financial adviser during mediation to develop settlement options that don't rely on your spouse to provide information in the future.
If this statement is true, you have the ability to stand up for yourself during a conflict with your spouse without losing control of your own behavior. You don't need to be perfect to have a good experience in mediation. After all, helping you communicate constructively is one of the mediator's main jobs. But, if your emotional reactions to your spouse are so strong that even attempting this seems impossible, then mediation may not be the right thing for you just now.
In mediation, you will speak for yourself and negotiate your own agreement. If you find yourself easily intimidated in your spouse's presence, speaking up may be hard for you. Practicing in mediation, with the coaching and support of the mediator, can help you get better at this, but you'll need a minimum level of self-confidence just to start the process.
If physical violence is part of the relationship with your spouse, it may not be possible to keep the playing field level and tempers cool enough to negotiate an agreement directly in mediation.
An alcohol or drug problem can impair someone's ability to think clearly and make sensible decisions. It can also lead to out-of-control behavior. This can undermine the success of any negotiation, whether it is conducted between lawyers or during mediation.
Mediation is usually considered one of the best ways for divorcing parents to negotiate agreements about their children. You can talk, parent to parent, about what is best for your children, rather than leaving the decisions up to strangers. Differences in parenting styles or the amount of time each of you spends with your children can be addressed in mediation.
However, if you and your spouse strongly disagree about the ability of one of you to take care of your children, you may not be able to negotiate an acceptable custody arrangement until that issue is fully evaluated. This is especially true if the problem you are concerned about is so serious as to constitute child abuse. If your disagreement about parenting issues is so pervasive that you cannot agree about how to proceed, you may need to get things started through the court. Even so, you might be able to use mediation to negotiate an agreement after the evaluation phase is completed. In fact, you may be required by the laws of your state to attend mediation in a court-sponsored program before a judge will even hear your case.
Copyright © 2006 Nolo
by Attorney-Mediator Katherine E. Stoner
Who is at a disadvantage in mediation: men or women? An expert debunks myths about divorce mediation.
Myth: Mediation allows one spouse to dominate another.
Fact: A good mediator pays close attention to the power balance between the spouses and uses specific techniques to address any imbalance. If one spouse persists in dominating behavior, the mediator will call a stop to the mediation rather than allowing it to continue. One caveat: Even the best mediator can be unaware of a power imbalance if it only goes on outside of the mediation sessions and the spouses don't let the mediator know about it.
Myth: Women are at a disadvantage in mediation.
Fact: Women are no more at a disadvantage in mediation than in divorce court. In fact, women can often obtain a better result in mediation than they can in court, because the mediation process allows separating spouses to negotiate an agreement that considers nonlegal factors. Also, except for court-ordered (mandatory) mediation, a woman is free to stop the mediation and/or refuse to sign an agreement that seems unfair to her.
Myth: Mediation is more hassle than hiring a lawyer to handle the divorce.
Fact: Whether divorcing spouses mediate or hire a lawyer to handle the divorce, they have to do a certain amount of legwork in gathering information and making decisions. Mediation offers a streamlined approach to the information-gathering and decision-making processes. In contrast, using the courts is cumbersome and expensive.
Myth: Mediation is for wimps.
Fact: In mediation, the spouses stand up for themselves and what they want. They don't have lawyers speaking for them and telling them what to do. As a result, people who mediate often come out of their divorce with greater communication skills and self-confidence, as well as agreements they can really live with.
Myth: Mediation makes the divorce take longer.
Fact: Mediation almost always takes less time than litigating a divorce. Unless the spouses have worked everything out ahead of time, hiring lawyers to handle the divorce will almost always take as long or longer than mediating, even if the lawyers are able to settle out of court.
Myth: There's no place for lawyers in mediation.
Fact: Lawyers who understand and support mediation can help mediating spouses in several ways: by informing them of their legal rights and options, by coaching them through the negotiations, by coming up with creative settlement ideas, and by preparing the necessary divorce paperwork once an agreement is signed. Most consulting lawyers charge a reasonable hourly fee and don't require a large retainer (advance deposit). A spouse pays for only as much consulting time as is needed.
Myth: All divorce lawyers understand and support mediation.
Fact: Divorce mediation is still a relatively new phenomenon. Many adversarial lawyers have little or no experience with the nonadversarial approach used in mediation. Some even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through lawyers. These attitudes are slowly changing, as divorce lawyers become more aware of mediation and its benefits for their clients. Meanwhile, spouses wishing to mediate their divorce need to find consulting lawyers who are "mediation-friendly."
Myth: In mediation, the mediator decides what's fair.
Fact: Unlike a judge or an arbitrator, a mediator has no power to make decisions for the divorcing spouses. The mediator's job is to help the spouses negotiate an agreement that each of them considers fair enough to accept.
Myth: Mediation is always the best option for every divorcing couple.
Fact: Mediation works for most divorcing couples. As long as both spouses are able to speak up for what's important to them, and can behave themselves appropriately in mediation, the process can work for them. On the other hand, mediation may not offer enough protection and structure for some couples. For example, a couple with domestic violence or substance abuse issues may need to have lawyers speak for them instead of trying to negotiate directly. In addition, some spouses may prefer to assume the risks and cost of adversarial litigation in order to make a point or assert a legal right rather than compromise in a settlement.
Copyright © 2006 Nolo
by Attorney-Mediator Katherine E. Stoner
You can mediate without a lawyer, but here's how consulting a legal adviser can help you.
A legal adviser is a special type of lawyer -- one who is willing to consult with you as an integral part of the mediation process. While business lawyers have long served the role of consultant to their clients, divorce lawyers are accustomed to taking over and handling the entire case. For this reason, many lawyers who have special expertise in the divorce area are unwilling to stay on the sidelines as a consultant. As mediation is used by more and more divorcing couples, however, the need for consulting lawyers also increases. As a result, many divorce lawyers are becoming mediators, and these lawyers usually are happy to work as consulting lawyers on cases they aren't mediating.
At some point before or during mediation, you may want to consult with someone about your legal rights. While you can learn a lot about your rights from doing your own legal research, consulting with an actual legal adviser can help you get answers that are specifically tailored to your case.
Even before the mediation, a legal adviser/law coach can help you evaluate the option of mediation, select a mediator, and persuade your spouse to mediate.
During the mediation, a legal adviser can act as a law coach on an as-needed basis. Between sessions, you can consult with your law coach to clarify questions and prepare for negotiations. A good legal adviser can coach you in negotiating techniques and help you think up creative solutions to propose in the mediation that are better than or at least as good as what you could get in court.
A legal adviser can also help predict the range of possible legal outcomes if you were to go to court -- and the cost of paying a lawyer to fight for them. Knowing the possible outcomes can be essential to a successful negotiation.
Perhaps most important, a legal adviser can review any written agreement prepared by the mediator to make sure that it says what you want it to say and that it will be legally binding once signed.
Finally, your legal adviser can interface with the court, helping you prepare the papers needed for an uncontested divorce once your settlement agreement is signed, if your mediator does not do that for you.
It's a good idea to have a brief consultation with a legal adviser early on during the mediation process. If you wait until you've already negotiated an agreement to consult a legal adviser, you may be in for some surprises about your legal rights that could undermine your commitment to the agreement you've just negotiated. Going back to mediation and trying to renegotiate the agreement at that point is often disastrous.
If you instead start the process with solid legal information, you can negotiate an agreement that takes into account all of your legal rights. This makes it much less likely that the mediation will fall apart at the last minute.
As your mediation progresses, you should feel free to consult with your legal adviser on an as-needed basis between mediation sessions, whenever you have questions about your legal rights or proposed settlement terms.
Your legal adviser will most likely be a lawyer licensed to practice law in your state. But you will want to look for some more specific qualifications as well.
You want a lawyer with significant experience in the area of divorce law. In some states, lawyers can get certified as specialists in certain fields of the law. If this is true in your state, consider looking for a certified specialist in divorce law, family law, or matrimonial law. Many certified specialists are quite knowledgeable about mediation and are experienced as consulting lawyers. Their high hourly fee is often justified by the quality and efficiency of their advice.
In addition, your legal adviser should have a good reputation for competence, honesty, and respectful treatment of clients. Ask your referral sources about these qualities.
It is also critical that your legal adviser be experienced in and supportive of mediation. A legal adviser who is ignorant of or hostile to mediation can undermine everything you are trying to accomplish in mediating your divorce. For example, a lawyer who doesn't approve of mediation or who thinks mediation is a good idea but doesn't know enough about it could easily advise you to take a position that is legally correct but extremely adversarial. What you want is advice designed to inform you of your legal rights and to help you promote a reasonable settlement.
Most divorce lawyers charge an hourly fee. Most of them also expect to be paid an initial large retainer (advance deposit) of several thousand dollars to cover the cost of beginning a contested case. Because you hope that mediating your case will lead to an agreement for an uncontested divorce, you shouldn't have to pay a large retainer. Look for a legal adviser who will charge you only by the hour, without a big retainer. But be prepared for the hourly fee to range as high as $250 to $500, especially in or near big cities. When you find a legal adviser who charges by the hour without requiring a retainer, be sure to confirm the fee arrangement in writing.
Copyright © 2006 Nolo
What kind of temporary orders you can get in family court, and how.
Typical lawsuits take months, if not years, to make it to court. But if you're getting divorced and need a quick decision from a judge about who gets the kids, the car, the money in the bank accounts, or the house -- or if you need money for support right away -- obviously you can't wait that long.
You don't have to. When couples separate, important issues are often resolved in a short hearing before a judge, instead of requiring a full-scale trial. These hearings are usually held in a special court, called family court in most states.
Even though these quick hearings are less formal than standard court hearings, their brevity means that you must be prepared and know exactly what you want. You may have only a few minutes to ask for it.
Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.
Spouses can also ask a court to temporarily:
These temporary orders are usually valid until the court holds another hearing or until the spouses arrive at their own settlement through negotiation or mediation.
When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.
This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children -- often granting physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. This may sound extreme and unlike your future ex-spouse, but some people behave uncharacteristically when under duress and feeling threatened. And, if your future ex-spouse raises such a claim, the police or judge are usually obligated to hear her or him out. However, when you arrive with proof that you filed for custody and child support, the court will most likely dismiss a kidnapping claim.
To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states -- unfortunately, not many -- court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.
Here's what you'll probably need:
In some courts, you won't be allowed to file papers asking for a short hearing unless you've already filed for divorce. You can do both at the same time; it just means filling out even more forms to get your divorce started.
Your next step is to attend the court hearing where the judge will consider your request. In emergencies, the hearing can be held within a few days. In legal jargon this is often called an "order to show cause hearing."
The hearing may be held in a courtroom or just in the judge's office or "chambers." The judge may listen to a few minutes of testimony from you, your spouse, and possibly other witnesses. Or the judge may only accept written evidence. To support a request for temporary child support, you will probably need to produce copies of an income and expense budget.
The judge will:
Often this kind of hearing takes less than 20 minutes. At its conclusion, the judge will likely make an immediate ruling, usually either issuing the temporary order you requested or modifying it somewhat. If more information is needed, or your spouse wasn't given the proper notice before the hearing, the judge may issue an order that is effective only until another hearing can be held. In any event, orders such as these stay in effect only until the divorce is finally settled, either through a trial or when you and your spouse reach an agreement.
Copyright © 2006 Nolo
How to get divorced without using a lawyer -- and when you might really need one.
You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?
The answer can depend, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. The less you use the court, the less cost and heartache, and, in many cases, the better quality of the final result. But how do you avoid courts and lawyers?
In theory, at least, it's simple: You do best if you work out thorny issues yourselves, with help from a neutral third person, such as a mediator, if you need it. You don't let lawyers haggle over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you can work these issues out yourselves -- and many, if not most, couples can -- you will save yourselves time, money, and anguish. More important, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.
If you are able to solve the big questions of children, money, and property, you need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle the whole process without a lawyer.
But first, you've got to tackle those big questions. Can you and your spouse -- someone you may not feel much like cooperating with at the moment -- do it on your own? A surprising number of divorcing couples are eventually able to come to terms without outside assistance.
If You Fear Violence
If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep the spouse away.
Some people may advise you to close joint bank and credit card accounts, but this could be held against you during future court proceedings. Since joint bank and credit accounts are usually viewed as joint property, your future ex may accuse you of fraud or theft and a judge may agree, despite the fact that violence is raised as an issue.
Your best bet is to take the amount of money you realistically need (you do have this right, but try not to take more than half of what's there unless you absolutely have to), plus some extra for emergencies, and immediately file an action in court for support.
To an emotionally distraught or angry person, turning all the details and hassle of a divorce over to a lawyer may seem like a perfect solution. Unfortunately, it can turn out to be a deal with the devil. Most observers -- and people who have been through an acrimonious divorce -- agree that lawyers frequently make things worse, not better.
This happens because all lawyers operate under a prime directive: the zealous pursuit of their clients' interests. One lawyer can't fully represent both divorcing spouses, because each spouse's best interests are different. So, when one spouse brings a lawyer into a divorce, the other usually does likewise. There may even be a third lawyer to represent the children if there is a custody dispute. And then it can get ugly. When two or more lawyers are fighting for their clients' interests, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.
But, if there are children, the fight depletes not only your pocketbook but also your children's sense of security and self-esteem. And, once the legal fight is over, trying to establish normal ongoing relationships between both parents and the children through a flexible custody and visitation arrangement can be very difficult.
When a Couple Can Use One Lawyer
There's an exception to the rule that no one lawyer may work for both divorcing spouses (who are assumed to have different, if not conflicting, interests). This is allowed when:
However, if a disagreement arises between the couple, the lawyer ethically has to transfer at least one client to another lawyer. The lawyer may have to transfer both clients to other lawyers if the lawyer has learned some things about the couple that make it unfair for him to represent one of them.
If you and your spouses do hire lawyers, you have the power to stop your lawyer from engaging in lengthy, expensive arguments with your spouse's attorney. Simply tell him or her to stop and explain that a combative approach does not suit your or your children's needs. Most lawyers would rather have a satisfied client than feed their ego by fighting the other side's attorney. Better still, try to hire a lawyer who'll work to minimize conflict with the other side from the start.
Some family lawyers are also trying a new method called "collaborative law," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.
It makes a lot of sense to hire a lawyer if there is a real problem with abuse -- spousal, child, sexual, or substance. In that situation, a lawyer may help you get the arrangement you need to protect yourself and the children, if there are any.
It can also make sense to hire a lawyer if your spouse is acting dishonestly or vindictively and you just can't cope with it. In that case, you may need someone to protect your interests.
It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.
If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will at a minimum discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings. If the legal aid attorney's caseload permits, he or she may take your case, usually at little or no cost. Also, ask if the legal aid office has a pro bono program. The legal aid office may have a list of private attorneys that are willing to take on cases recommended by legal aid. These services are also at little or no cost.
If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you.
Mediators help you and your spouse get over the emotional barriers to negotiation and help you fashion a sensible divorce agreement that meets the both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate an ongoing negotiation between the spouses that in most cases results in an agreement satisfactory to both sides.
Copyright © 2006 Nolo
If you have children, you should choose a personal guardian -- someone to raise them in the unlikely event you can't.
If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the extremely unlikely event you can't raise your kids, they will be well cared for.
All you need to do is use your will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if a court ever needs to step in and appoint a guardian, the judge will appoint the person you nominated in your will -- unless it is not in the best interests of your children for some reason.
If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.
You should name one personal guardian (and one alternate, in case your first choice can't serve) for each of your children. Legally, you may name more than one guardian, but it's generally not a good idea because of the possibility that the co-guardians will later disagree.
Here are some factors to consider when choosing a personal guardian:
If you're having a hard time choosing someone, take some time to talk with the person you're considering. One or more of your candidates may not be willing or able to accept the responsibility, or their feelings about acting as guardian may help you decide.
Most people want their children to stay together; if you do, name the same personal guardian for all of your kids.
You can, however, name different personal guardians for different children. Parents may do this, for example, if their children are not close in age and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. Or, if you have children from different marriages, they may be close to different adults. In every situation, you want to choose the personal guardian you believe would be best able to care for each child.
Some parents name one person to be the children's personal guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money.
For example, you might feel that your brother-in-law would provide the most stable, loving home for your kids, but not have much faith in his abilities as a financial manager. Perhaps you have a close friend who cares about your kids and would be better at dealing with the economic aspects of bringing them up. Provided that your brother-in-law and your friend agree, you can name one as personal guardian and the other as custodian or trustee to manage your children's inheritance.
When you and your child's other parent make your wills, you should name the same person as personal guardian. If you don't agree on whom to name, there could be a court fight if both of you die while the child is still a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what's in the best interests of your child.
Again, talk with the people you'd each like to name. Candid discussions with your potential guardians may bring new information to light and help you reach an agreement.
If You Don't Want the Other Parent to Raise Your Child
If one of a child's parents dies, the other parent usually takes responsibility for raising the child. This, of course, is what most people want.
If you are separated or divorced, however, you may feel strongly that the child's other parent shouldn't have custody if something should happen to you. But a judge will grant custody to someone else only if the surviving parent:
In most cases, it is difficult to prove that a parent is unfit, unless he or she has serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.
If you honestly believe the other parent is incapable of caring for your children properly, or simply won't assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge may take it into account. Judges are always required to act in the child's best interests. In choosing a guardian, a judge commonly considers a number of factors; you may want to address them if you write a letter explaining your choice for personal guardian. Here are the big ones:
Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from religious teachings to what college you'd like a particular child to attend.
One option is to write a letter to the personal guardian, outlining thoughts and feelings about how the children should be raised. Try not to put in too much detail, though; it could cause your nominee much guilt and frustration later if unexpected circumstances thwart his or her attempts to carry out your plans to the letter.
The best guarantee of an upbringing you would approve of is simply to choose someone who knows you and your children well, and whom you trust to navigate life's complexities on your children's behalf.
Copyright © 2006 Nolo
A lawsuit to determine the identity of the father of a child born outside of marriage, and to provide for the support of the child once the identity of the father has been determined.
Copyright © 2005 Nolo
A divorce obtained in a different state or country from the place where one spouse resides at the time of the divorce. As a general rule, foreign divorces are recognized as valid if the spouse requesting the divorce became a resident of the state or country granting the divorce, and if both parties consented to the jurisdiction of the foreign court. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the nonconsenting spouse later acts as if the foreign divorce were valid, for example, by remarrying.
Copyright © 2005 Nolo
A situation in which the partners in a married couple live apart. Spouses are said to be living apart if they no longer reside in the same dwelling, even though they may continue their relationship. A legal separation results when the parties separate and a court rules on the division of property, such as alimony or child support -- but does not grant a divorce.
Copyright © 2005 Nolo
Any divorce in which the spouse who wants to split up does not have to accuse the other of wrongdoing, but can simply state that the couple no longer gets along. Until no-fault divorce arrived in the 1970s, the only way a person could get a divorce was to prove that the other spouse was at fault for the marriage not working. No-fault divorces are usually granted for reasons such as incompatibility, irreconcilable differences, or irretrievable or irremediable breakdown of the marriage.
Copyright © 2005 Nolo
A conflict in personalities that makes married life together impossible. In a number of states, incompatibility is the accepted reason for a no-fault divorce.
Copyright © 2005 Nolo
Like a divorce, an annulment is a court procedure that dissolves a marriage. But, unlike a divorce, an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce.
Grounds for annulment vary slightly from state to state. Generally, an annulment requires that at least one of the following reasons exists:
• Misrepresentation or fraud -- for example, a spouse lied about the capacity to have children, falsely stated that she had reached the age of consent, or failed to say that she was still married to someone else.
• Concealment -- for example, concealing an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease, or impotency.
• Refusal or inability to consummate the marriage -- that is, refusal or inability of a spouse to have sexual intercourse with the other spouse.
• Misunderstanding -- for example, one person wanted children and the other did not.
These are the grounds for civil annulments. Within the Roman Catholic Church, a couple may obtain a religious annulment after obtaining a civil divorce, so that one or both people may remarry, within the church or anywhere else, and have the second union recognized by the church.
Most annulments take place after a marriage of a very short duration -- a few weeks or months -- so there are usually no assets or debts to divide, or children for whom custody, visitation, and child support are a concern. When a long-term marriage is annulled, however, most states have provisions for dividing property and debts, as well as determining custody, visitation, child support, and alimony. Children of an annulled marriage are not considered illegitimate.
Copyright © 2005 Nolo
A divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.
Copyright © 2005 Nolo
QUESTION:
My daughter is almost seven months old. Her father will soon be 20, but he acts like he is 12. He's used drugs and has a criminal record (for assaults). Since my daughter's birth, he has only visited her once a month and given her a total of $120. But now he says he wants custody! We haven't been to court yet, but we have a mediation coming up. How can I make sure I keep my child?
ANSWER:
The key to keeping custody of your child is: document, document, document. That is, get court, police, and other records for as much of the father's misspent life as you can. You'll need these records whether you go to divorce court (you don't mention whether you married him or not) or a paternity court (which handles custody and support for unmarried parents).
Can you just waltz in and get a copy of someone's police record? Not exactly. Police and courts have different requirements for giving someone in your position records of arrests and crimes. Try going to the places where you suspect this guy has been arrested or brought to court. Look for the records office, hang out in the back of the lobby, and watch the clerks until you figure out which one is the most sympathetic. Then explain your predicament and ask what the clerk can give you to take to court. They might, um, bend a few rules for you.
For criminal incidents where you can't find an official record, see whether you can find a victim of one of the crimes to give you a handwritten note describing what happened. It doesn't need to be in fancy legal language, but should give as much detail as possible. Just above the victim's signature, he or she should write "I declare under penalty of perjury the foregoing is true and correct." Don't forget to add the date, too.
As far as the father's visitation and (lack of) support, get a little pocket calendar and write down exactly when he visits and how much money he gives you. Give him a receipt for every payment to show that you are a responsible bookkeeper.
After you've collected these various records, make several copies to leave with the agencies you may have to deal with. (But try to hang on to an original and/or certified copy for future use.) Once you have these documents in your hands, you'll feel much stronger when you get to mediation or court. After all, it won't just be your word against the father's.
Copyright 2005 Nolo
I took my husband's name when I married, but now we're getting divorced and I'd like to return to my former name. How do I do that?
In most states, you can request that the judge handling your divorce make a formal order restoring your former or birth name. If your divorce decree contains such an order, that's all the paperwork you'll need. You'll want to get certified copies of the order as proof of the name change -- check with the court clerk for details. Once you have this official documentation, you can use it to have your name changed on your identification and personal records.
If your divorce decree doesn't contain an order restoring your former name, check to see if it can be modified to include language restoring your name. In some states, this is possible even after the divorce is final.
Even if your divorce papers don't show your name change, you may still be able to resume your former name without much fuss, especially if you still have some proof of that name, such as a birth certificate or old passport. In most states, you can simply begin using your former name consistently, and request that it be changed on all your personal records.
If you're returning to a name you had before marriage, you're far less likely to be hassled about the change than if you adopt a completely new name, but you may still face some bureaucratic barriers in returning to a previous name. This is especially likely if you are a recent immigrant or do not have reliable documentation of your former name.
Copyright 2005 Nolo
How to find property your spouse may be concealing when you divorce.
This list includes common ways in which a spouse may undervalue or disguise marital assets:
* Antiques, artwork, hobby equipment, gun collections, and tools that are overlooked or undervalued. Look for antique furnishings, original paintings, or collector-level carpets at the office.
* Income that is unreported on tax returns and financial statements.
* Cash kept in the form of travelers' checks. You may be able to find these by tracing bank account deposits and withdrawals.
* A custodial account set up in the name of a child, using the child's Social Security number.
* Investment in certificate "bearer" municipal bonds or Series EE Savings Bonds. These do not appear on account statements because they are not registered with the IRS. (The government is phasing out these bonds, realizing that it is losing a lot of money.)
* Collusion with an employer to delay bonuses, stock options, or raises until a time when the asset would be considered separate property.
* Debt repayment to a friend for a phony debt.
* Expenses paid for a girlfriend or boyfriend, such as gifts, travel, rent, or tuition for college or classes.
* Retirement accounts that your spouse never tells you about.
In addition, business owners may try to hide assets in these ways:
* Skimming cash from the business.
* Salary payments to a nonexistent employee, with checks that will be voided after the divorce.
* Money paid from the business to someone close -- such as a father, mother, girlfriend, or boyfriend -- for services that were never actually rendered (asuming the money is given back to your spouse after the divorce is final).
* A delay in signing long-term business contracts until after the divorce. Although this may seem like smart planning, if the intent is to lower the value of the business, it is considered hiding assets.
When you're looking for these items, you may have difficulty finding them or getting the proof you need to show they exist. Formal discovery procedures through litigation may help. For instance, you could take the deposition (legal interview) of your spouse's boss or payroll supervisor. But you may also need to hire a forensic accountant or a private investigator. (A forensic accountant is an accountant who is trained to look into accounting practices in order to gather evidence that can be used in court.) Usually an attorney can refer you to these specialists.
tip
Document Your Finances Before Filing for Divorce
If you suspect that your spouse may attempt to hide assets, it's best to start investigating your household and business finances before initiating divorce proceedings. Make copies of important documents such as tax returns from the past several years, bank account statements, pay stubs, and any other documents that reflect joint assets or debts. Keep copies of these documents outside the home if you're still living with your spouse or partner.
Copyright 2005 Nolo
What kind of temporary orders you can get in family court, and how.
Typical lawsuits take months, if not years, to make it to court. But if you're getting divorced and need a quick decision from a judge about who gets the kids, the car, the money in the bank accounts, or the house -- or if you need money for support right away -- obviously you can't wait that long.
You don't have to. When couples separate, important issues are often resolved in a short hearing before a judge, instead of requiring a full-scale trial. These hearings are usually held in a special court, called family court in most states.
Even though these quick hearings are less formal than standard court hearings, their brevity means that you must be prepared and know exactly what you want. You may have only a few minutes to ask for it.
What Temporary Orders Are For
Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.
Spouses can also ask a court to temporarily:
* restrain a spouse from coming near or contacting the other (or, if he or she hasn't already done so, to move out of the family home)
* establish child custody and visiting arrangements
* provide for spousal support (alimony) and/or child support payments
* order either spouse not to sell valuable assets, and/or
* give possession of the family home or car to one of the spouses.
These temporary orders are usually valid until the court holds another hearing or until the spouses arrive at their own settlement through negotiation or mediation.
When to Ask for a Temporary Order
When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.
This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children -- often granting physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. This may sound extreme and unlike your future ex-spouse, but some people behave uncharacteristically when under duress and feeling threatened. And, if your future ex-spouse raises such a claim, the police or judge are usually obligated to hear her or him out. However, when you arrive with proof that you filed for custody and child support, the court will most likely dismiss a kidnapping claim.
How to Ask for a Temporary Order
To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states -- unfortunately, not many -- court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.
Here's what you'll probably need:
* A request for the court order you want. In some states, the forms you need are called an Application for Order to Show Cause (OSC) and an Order to Show Cause. An Order to Show Cause is a simple, fill-in-the-boxes legal form or short typed legal document that sets out what you are asking for -- for example, a temporary child support order. It orders your spouse to come to court at a specific date and time and explain ("show cause") why the court should not grant this request.
* A supporting declaration. This is a written statement, under penalty of perjury, setting out facts that legally justify the issuance of the temporary order -- for example, the need for money to support your children. You can also submit declarations of other people who have first-hand knowledge of the facts.
* A proposed temporary order granting you the relief requested. This order will be signed by the family court judge if he or she grants the relief you request.
* A proof of service. This is a document that proves to the court that the papers have been properly delivered to your spouse. Your best bet is to send everything to your spouse by U.S. certified mail, if your state allows it -- but some don't. Check for instructions that come with the proof of service form; if there aren't any you can check your own state's law about serving papers.
In some courts, you won't be allowed to file papers asking for a short hearing unless you've already filed for divorce. You can do both at the same time; it just means filling out even more forms to get your divorce started.
What to Expect at the Hearing
Your next step is to attend the court hearing where the judge will consider your request. In emergencies, the hearing can be held within a few days. In legal jargon this is often called an "order to show cause hearing."
The hearing may be held in a courtroom or just in the judge's office or "chambers." The judge may listen to a few minutes of testimony from you, your spouse, and possibly other witnesses. Or the judge may only accept written evidence. To support a request for temporary child support, you will probably need to produce copies of an income and expense budget.
The judge will:
* review the details of the requests and the underlying facts
* possibly ask you some questions
* ask your spouse, if present, for his or her side of the story, and
* in child support cases, refer to state guidelines on recommended support, given factors such as each spouse's income and who has primary custody of the kids.
Often this kind of hearing takes less than 20 minutes. At its conclusion, the judge will likely make an immediate ruling, usually either issuing the temporary order you requested or modifying it somewhat. If more information is needed, or your spouse wasn't given the proper notice before the hearing, the judge may issue an order that is effective only until another hearing can be held. In any event, orders such as these stay in effect only until the divorce is finally settled, either through a trial or when you and your spouse reach an agreement.
Copyright 2005 Nolo
What you need to know about your taxes if you pay or receive child support.
For federal income tax purposes, child support is tax-free to the recipient, meaning neither the ex-spouse nor the child owes taxes on it. However, child support payments are not tax-deductible by the parent who makes the payments -- unlike spousal support payments. (Spousal support is tax-deductible for the person who makes the payments and taxable to the recipient.)
Be careful how support is characterized in your marital settlement agreement, as it may have significant tax consequences.
What Qualifies as Child Support?
In order to qualify as child support, the payments received by an ex-spouse must be designated as child support in the divorce or separation agreement. If the agreement lumps the payments together as "family support" or "alimony," or doesn’t otherwise designate a specific portion of each payment as child support, none of the payment will be considered child support for tax purposes.
This can have adverse tax consequences for the recipient of child support payments, because family support or alimony is taxable to the recipient. So instead of receiving nontaxable child support, the ex-spouse will be receiving alimony, which is taxable to the payee, regardless of what the payee actually uses the money for.
Who Gets to Claim a Child as a Dependent?
Generally, in order for someone to claim a child as a dependent, he or she must provide at least 50% of the child’s support during the tax year. For couples who are still married and living together, claiming kids as dependents is usually a slam-dunk.
Things get complicated, however, when parents divorce or separate. Now, only one of you can claim the dependent exemption. (The IRS will come down hard if both of you try to claim it; they cross-reference dependents' Social Security numbers to make sure taxpayers aren’t doing this.)
Special Rule for Parents Living Apart
If the parents lived apart at all times during the last six months of the calendar year, or if they have a written divorce decree, maintenance agreement, or separation agreement, there is a special rule that applies.
In this case, if the child received more than half of his or her total support for the year from one or both parents and was in the custody of one or both parents during the year, the IRS rules assume that the custodial parent (defined as the parent who has custody of the child for the greater part of the year) should get the exemption for the dependent. However, the parties may change this presumption and allocate the exemption to the noncustodial parent if either of the following are true:
* The divorce decree or separation agreement contains a provision in which the custodial parent waives the right to claim the dependent exemption. (The rules are slightly different if the agreement was entered into prior to 1985; the noncustodial parent must also provide at least $600 of support to receive the exemption.)
* The custodial parent signs a declaration (using IRS Form 8332) relinquishing his or her right to claim the dependent exemption, and the noncustodial parent attaches this declaration to his or her tax return. Using this form, the custodial parent can relinquish the exemption for one year, a number of years, or forever, depending on what the parties agree to.
warning If you relinquish the exemption, you are also relinquishing eligibility for the child tax credit.
The IRS is very picky about Form 8332, and can (and often does) disallow the dependent exemption for the noncustodial parent if this form isn’t signed and attached to the tax return, even if the divorce decree or separation agreement allocates the exemption to the noncustodial parent. That means it’s very important for the noncustodial parent to attach a copy of this declaration to his or her return in every tax year in which he or she claims the exemption.
If the custodial parent refuses to sign Form 8332, the noncustodial parent can attach part of the divorce decree or separation agreement (the cover page, the page that discusses the exemption and the signature page) to his or her tax return to prove that he or she is entitled to the exemption. However, the IRS will accept this only if the decree or agreement doesn’t require that certain conditions be met before the noncustodial parent can claim the exemption. If there are conditions, the noncustodial parent must use Form 8332 or not get the exemption.
Rule for Unmarried Parents or Those Still Living Together
If the parents are not married, did not live apart during the last six months of the calendar year, or do not have a written document, the test for determining which parent can claim the child as a dependent is that the parent who provides more than 50% of a child’s support during the tax year can claim the child as a dependent.
Rules for Parents Who Contribute Equal Amounts of Support
If neither parent provides more than half of the child’s support for the year, things get even more complicated. For more information on how to handle this situation, see IRS Publication 504, Divorced or Separated Individuals, which you can download for free from www.irs.gov.
Copyright 2005 Nolo