Divorce Lawyers Directory Blog

Child Custody and International Law

2010-01-25T10:56:00.000-08:00

A recent case in New York highlights some interesting points about child custody cases involving international law. In Sanjuan v. Sanjuan, the courts granted the father's motion to dismiss a divorce and custody action in the state of New York, stating that the appropriate jurisdiction for the divorce action was the Philippines.

This case involves various aspects of international law, as well as the Uniform Child Custody Jurisdiction Act (UCCJA). Under the terms of the UCCJA, a child's "home state" is defined as the state (in this case, the country) where the child has legally resided for at least the past six months. The important term here is the word "legally." If the child were kidnapped or otherwise illegally removed from her home state, her new home state would not be recognized as a legal jurisdiction for a divorce action.

In this particular situation, the father had moved with his daughter to the Philippines approximately 13 months ago and proceeded to initiate a divorce action over there. Shortly thereafter, the wife tried to file for divorce in New York, but her original action was dismissed for failure to obtain proper jurisdiction. In other words, she failed to serve her husband properly with a summons in the Philippines.

Since there was no prior custody order and the mother knew of her child's whereabouts, the father left New York with his daughter legally. The mother then failed to commence a custody action within the required six month period (her original action was dismissed, and she did not bring another one until a year later). Once their daughter's residency had passed the six month mark without a valid filing for divorce and custody in New York, her legal residency became the Philippines.

As a result, the courts ruled that the mother's long-delayed action in New York should be dismissed in favor of the father's action previously filed in the Philippines. Generally, the courts do not favor competing actions seeking the same relief, and they will always try to find some statutory mandate to resolve the conflict. In this case, the UCCJA provided the proper legal guidelines.

This particular case was brought and decided in the New York courts. The Philippine court had nothing to do with this decision, although they will undoubtedly have the responsibility of ultimately deciding which parent gets legal custody over their child.

International Child Custody Case Resolved after 5 Years

2009-12-28T11:56:00.000-08:00

Last week, a five year international child custody battle was resolved when New Jersey resident David Goldman was reunited with his 9-year-old son Sean. Sean's mother, a native of Brazil, took him there in 2004. She never returned to the United States; instead, she stayed in Brazil, divorced Goldman, and remarried. Goldman has been trying to get his son back ever since.

Last year, after Sean's mother died in childbirth, Goldman sued in both American and Brazilian courts to obtain custody of his son. However, Sean's stepfather refused to give up custody. Unfortunately, it took a tremendous amount of pressure on the part of U.S. politicians for the Brazilian courts to finally reach the correct decision in the matter. On December 22, Brazil's chief justice ruled that Sean should be returned to his father.

While Sean's mother was alive, the decision of which parent would retain custodial rights to Sean was up for debate. Both parents would have been considered fit parents in the eyes of the court. Therefore, Sean's mother and father had an equally valid claim to custody of their child.

It is important to note that since Sean's relocation to Brazil occurred without the express permission of David Goldman, it could be considered abduction, as governed by the Hague Convention. As a result, Sean's mother was unfairly denying Goldman the right to spend meaningful time with his son, and she would need to prove in court that this relocation was in the best interests of the child.

However, once Sean's mother died, David Goldman legally had an indisputable right to retain custody of his child. Sean's stepfather could not legally challenge this issue. When only one biological parent is living, that parent is the only person under American law who can hold a valid custody claim to the child. In order to deny David Goldman custody, Sean's stepfather would have to prove that Goldman was an unfit parent. According to American law, he would have to either be:

Adjudicated a criminal
A child molester
Proven to pose a real and serious danger to the child

Since David Goldman was not considered unfit by these standards, he should have been awarded custody of his son immediately following his ex-wife's death. The fact that the Brazilian courts took so long to release Sean to his biological father was an absolute travesty of justice. Fortunately, they eventually got it right.

When both parents are still alive, custody will generally be awarded based on what is in the best interests of the child. In the United States, child custody issues are gender neutral, and do not favor either the father or mother. The following questions will be used to determine who receives custody if both parents contest the issue:

Who is the more nurturing parent?
Who can provide the warmer, more loving home?
Who can provide the best supervision?
Who can provide the best education?
Who will make the best decisions regarding the child's well-being?

If one parent is taken out of the picture, either by death or imprisonment, the remaining biological parent has priority over any other individuals, including grandparents, step-parents, aunts and uncles, or siblings, unless the other parent is proven to be unfit by the standards listed above.

NY Appellate Court Rejects Expansion of Constructive Abandonment to Include Social Abandonment as Grounds for Divorce

2009-11-30T10:28:00.001-08:00

New York is the only state in the country that still requires one spouse to prove fault to obtain a divorce when the other spouse refuses to agree to it. Currently, New York only grants a divorce for the following fault grounds:

Cruelty
Abandonment for one year or more
Adultery
Confinement to prison for three years or more

Judicial decisions have expanded abandonment to include "constructive abandonment," or the failure and refusal of one spouse to engage in sexual relations with the other for a period of one year or more, thus constituting an "abandonment" of marital obligations.

Recently, the appellate court heard a case that attempted to expand constructive abandonment to include "social abandonment" for one year or more. In Davis v. Davis, the wife claimed constructive abandonment as grounds for divorce. However, she did not accuse her husband of refusing to engage in sexual relations for one year or more, which is the traditional cause for this fault ground. Instead, she claimed that her husband refused to engage in social interaction by:

Refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and her birthday
Refusing to eat meals together, attend family functions, or accompany her to the movies, shopping, restaurants, and church services
Leaving her at the hospital emergency room
Generally ignoring her

A lower court had granted the husband's motion to dismiss the cause of action for constructive abandonment, affirming that he was not guilty of this action. The court asserted that constructive abandonment is limited to the refusal of sexual relations despite repeated requests to resume relations for one year or more. The court rejected the grounds of social abandonment, which the wife argued took place in this situation, asserting that it represents a claim of "irreconcilable differences" between spouses, which would in effect establish a "no-fault" divorce in New York.

The court argued that it was up to the legislature, not the courts, to establish a no-fault divorce. The appellate court agreed with the lower court's ruling, effectively ending the debate over whether social abandonment was an appropriate fault ground for divorce.

Currently, the only way to obtain a no-fault divorce in New York is for both spouses to sign a written separation agreement, file it with the courts, and live separate lives abiding by the terms of the agreement for one year or more. At this time, the terms of the separation agreement may be transferred to an official divorce agreement.

Determining Child Custody through Litigation

2009-10-28T10:43:00.000-07:00

A child custody battle, whether as part of a divorce action or a separate action (generally after the divorce, where one of the parents is seeking a change of custody terms), can be one of the most contentious and unnerving forms of litigation you may ever experience.

The law does not favor either parent by gender, and each case is driven by the unique facts involved. The sole question to be answered in an initial custody action is, "What is in the best interests of the child?"

In an action to modify a prior custody ruling, there is an additional question to be answered: "What has changed since the prior custody order (or agreement) that would warrant a change of custody at this time?"

The courts will often seek the aid of unbiased health care and educational professionals to help them reach the best possible decision. Often, forensic psychiatrists or psychologists will be called on to conduct a thorough investigation and evaluation of each child and each parent involved in the custody litigation. This evaluation may include "significant others" such as grandparents or other caretakers who have contact with the children.

This investigation will attempt to determine:

Who is the better parent?
Which parent, if any, is attempting to exercise mind control over the children to the detriment of the other parent?
Which parent may be interfering with the other's visitation rights?
Any other factor that might have an impact on answering the question, "What is in the best interests of the child?"

The court will also appoint a Law Guardian, or attorney for the child, who is an independent lawyer charged with the responsibility of representing the child's interests, separate and apart from either parents' interest in the litigation. If the child is old enough and mature enough to express his own desires regarding which parent he wishes to live with, the Law Guardian will make that viewpoint known to the court. The Law Guardian will advocate for the child's wishes as long as he believes this viewpoint was not the result of parental brainwashing.

In most cases, if a child has reached the age of 13 or 14, his wishes will be factored into the court's final decision, provided he demonstrates appropriate levels of maturity for his age.

The cost of all professional fees, including the forensic evaluators, Law Guardian, and any other professionals appointed by the court, will be paid by the mother and father, proportional to their respective income and other financial conditions. These fees, in addition to each parent's own attorney's fees, can quickly escalate, resulting in an enormous financial cost to each party.

The litigation of a custody proceeding often also results in enormous emotional costs to both parents as well as the children involved.

For all of these reasons, it is in the best interests of everyone involved to try and negotiate a balanced settlement agreement crafted by the divorce attorneys for each parent so that the financial and emotional costs of litigation can be avoided entirely.

New York Passes New Child Support Legislation

2009-09-29T10:20:00.001-07:00

The state of New York has recently passed new legislation expanding the base income for mandatory child support
from $80,000 to $130,000. Any income above $130,000 may or may not be subject to the court awarding child support. This will be left entirely to the discretion of the court.

Prior to this new legislation, the courts have customarily awarded child support up to a discretionary base income of approximately $200,000. Any income above this level has generally been exempt from child support. However, with the expansion of the mandatory base income from $80,000 to $130,000, the discretionary cap is likely to rise as well. It is still uncertain how high it will go.

When the courts exercise discretion to go beyond the mandatory base, they consider lifestyle and standard of living factors. Sending children to private school, consistently taking extravagant vacations, and providing children with extracurricular activities such as music lessons, dance lessons, or summer camp will often influence the court's decision as to whether to award child support on a higher income than the mandatory base of $130,000.

While there is a basic formula for awarding child support, it is important for your divorce lawyer to be aware of these additional factors which may lead the court to use discretion in altering the ultimate dollar figure. Hiring an inexperienced divorce lawyer may result in a child support award that poses a serious financial burden on you and your family.

Legal Separation

2009-08-27T10:21:00.001-07:00

In most states, a legal separation can be achieved in one of two ways:

Through a comprehensive agreement between the two parties
By court decree

Whenever possible, you want to avoid the second option, since a court trial can be just as involved and expensive as a divorce trial. For the most part, the issues are the same, and once you're going through a trial, you might as well go for the divorce. It's the same work and the same cost, so you may as well finalize it and make it official.

In most cases, a legal separation is achieved through a negotiated settlement between both spouses, leading to a Separation Agreement, which is a formal contract that covers issues such as:

Child custody
Visitation
Child support
Spousal support
Equitable distribution of marital property
Life and health insurance
A waiver of estates rights

Essentially, this agreement will cover any issue necessary to enable the couple to put their lives on separate tracks and move forward as individuals. Naturally, the agreement provides that the couple will live separate and apart, free from the authority and control of one another, as if each were single and unmarried.

It is a contract where the terms must be strictly followed. The only restriction for each party living under the terms this agreement is that they may not get re-married because they are not yet legally divorced. However, each person is free to date and even live with someone else, since all of the issues of the separation have already been dealt with. A court may not change the terms of a written separation agreement unless it determines that the terms of the original agreement are unconscionable.

Most states have laws that allow either party involved in the separation agreement to obtain an uncontested divorce after living separate and apart for a required period of time. At this time, the terms and provisions of the separation agreement will become the basis for the divorce agreement. The judge will simply have to sign the final divorce decree.

If you and your estranged spouse are able to work out a separation agreement amicably, it is a much better way to go about your divorce. You and your spouse will have negotiated all of the terms without the intervention of the court. This enables you to maintain control over the entire process.

Don’t Lose Sight of What’s Best for Your Child

2009-07-30T11:35:00.001-07:00

It is easy to get caught up in the bitterness and animosity you feel for your estranged spouse during a divorce proceeding. Often, feelings of anger and betrayal may drive a person's motivation during such a difficult time. Unfortunately, in many cases, the person you end up hurting is not your spouse but your child.

When a divorcing couple has young children, it is important to make sure that their best interests are kept in mind when deciding issues of child custody. While feelings of bitterness and spite might motivate you to want to "stick it to your ex," in the long run, this behavior will only cause your children to suffer.

Children deserve to maintain positive, close relationships with both parents, provided neither parent is abusive or negligent in any way. To attempt to deny your ex his or her right to spend meaningful time with your children is unconscionable.

Clearly, child custody may be one of the most contentious issues you will have to deal with in your divorce. For most divorcing couples, both parents will want to spend as much time as possible with the children. Frequently, scheduling issues make custody arrangements extremely complicated. However, it is important to keep a level head during this difficult process and always remember that your priority when deciding custody should be to make the transition to divorced life as smooth as possible for your children.

A good divorce attorney will always try to help remove any animosity from this discussion and guide you and your estranged spouse through the custody process in a way that works to keep the best interests of your children at heart. If your divorce attorney fails to do this, you are most likely working with the wrong lawyer, because in the end, it is in your best interests to always put what is best for your children first.

Spousal Support

2009-06-24T15:55:00.001-07:00

The payment of maintenance, sometimes referred to as spousal support or alimony, is entirely up to the discretion of the courts in most states. Unlike child support, which is mandated by statute as to the amount (based on a specific percentage of each parent's income), spousal support may be granted or denied at the judge's discretion, and the amount of this payment is not fixed based on statutory laws.

Years ago, before most states enacted Equitable Distribution laws, a spouse could be granted alimony based on a disparity of incomes between each party, and based on the financial needs and accustomed standard of living achieved during the marriage. If spousal support was granted, it would last for the life of the needy party, or until his or her remarriage.

Before 1980, spousal support would be denied, as a matter of law, in the event a divorce
was granted on grounds against the needy party. For example, if a wife, who never worked, were found to be guilty of cruelty or adultery, she would be barred by law from ever collecting spousal support, no matter how egregious the conduct of the husband was during the marriage.

In the early 1980s, most states rectified this inequity by establishing Equitable Distribution laws. Today, most states grant spousal support according to genuine need. It is designed to be rehabilitative in nature in order to provide the needy spouse sufficient time to complete an education (or re-education) so that he or she may be able to return to the workforce and earn a decent living. Therefore, spousal support is generally limited to a short period of time, depending on the duration and circumstances of the marriage.

It is not uncommon for spousal support to only last for one year when the marriage was short. For a longer marriage, spousal support may last for as long as five years. The presence of young pre-school children at home is often a factor in determining spousal support, since the custodial parent may need to stay home with the children for a number of years.

In situations where the couple filed for divorce after a very long marriage, a spouse who stayed at home for many years and who is beyond the age where he or she could reasonably retrain for employment might be granted lifetime spousal support. Regardless, marital fault will no longer disqualify you from receiving spousal support; it is determined on the basis of need.

The court will consider the following factors when determining the amount and duration of spousal support:

Income disparity between each party
The lifestyle and needs of the "poorer" spouse
The ability of the "wealthier" spouse to support him/herself after paying maintenance
The ability of the needy spouse to gain or regain full employment
The duration of the marriage

Of course, you do not have to leave this issue up to the courts. You and your estranged spouse can negotiate these issues with the help of your divorce lawyer. This will save you a great deal of time, aggravation, and legal expenses.

Do I Need A Prenuptial Agreement?

2009-05-28T14:30:00.001-07:00

One of the most common questions asked by couples about to enter into a marriage is, "Do we need a prenuptial agreement?" Unfortunately, the answer to this question is very vague: "It depends."

First, let's talk about the typical situation where a prenuptial agreement is not necessary. When both partners are at relatively the same stage in life, a prenuptial agreement is generally not important. The same life stage can be defined as:

Both people are marrying for the first time
Neither has any children from a prior relationship
Both have similar incomes
Neither party has acquired any significant assets

A prenuptial agreement is necessary in situations where there is a disparity in assets or wealth between the marrying parties, or where one or both parties has children and wants to ensure that his or her wealth goes to the children.

In a typical prenuptial agreement, one or both parties agree to give up certain property rights that would be bestowed upon that party by law as a result of marriage. A prenuptial agreement allows each party to be able to dictate where his or her wealth will be distributed in the event of an untimely end to the marriage, whether through death or divorce.

The marrying couple can agree to just about anything in a prenuptial agreement. It can be unfair or imbalanced, as long as it is not unconscionable. In order to ensure that a prenuptial agreement will be upheld in court, both parties must have equal representation in the negotiation and execution of the agreement, and the agreement must contain as an exhibit a comprehensive financial statement of each party.

These agreements are highly technical documents, and it is important to have an experienced matrimonial law attorney draft it. Also, it is important to never sign a prenuptial agreement without having it reviewed by your attorney.

Equitable Distribution

2009-04-23T15:21:00.001-07:00

Years ago, ownership of title to property was the determining factor as to which spouse would receive the property after a divorce. For example, if the marital residence was purchased during the marriage but only one spouse was listed on the title to the property, that spouse would always receive the house in the divorce, regardless of which spouse contributed the money to purchase the home. Similarly, a bank account, pension account, 401K plan, or business that was titled in one spouse's name would be awarded to that spouse in its entirety.

During the 1970's and 1980's, the philosophy of "marriage as an economic partnership" began to develop. As a result, many states passed legislation modifying divorce laws so that title would no longer be the determining factor in the distribution of marital property during a divorce.

Today, in most states where Equitable Distribution is the law, property is defined in one of two ways:

Marital property
Separate property

Any property acquired during the marriage, regardless of who holds the title, is considered marital property. The only exceptions to this are:

Gifts
Inheritances
Personal injury awards

The above exceptions as well as any property or assets acquired prior to the marriage and kept separate (not co-mingled) are considered separate property.

Some assets can be partly marital and partly separate. For example, if a husband was enrolled in his employer's pension plan for 5 years prior to the marriage and then for 20 years during the marriage, then 80% of the pension would be considered marital property and 20% would be considered separate property. The 20% would be distributed to the titled spouse, while the 80% would be distributed equally to each party.

Equitable Distribution does not necessarily require equal distribution. For example, if a business was established during the marriage but was worked exclusively by one spouse, the value of the business does not necessarily have to be split equally. If the husband worked the business with no contributions from the wife, the court can look to the wife's other contributions to the marriage (i.e. homemaking, child rearing, entertaining clients) and determine an "equitable" percentage of the business to award to the wife. That percentage will often be less than half.

Normally, assets such as homes, cars, boats, bank accounts, pensions, IRAs, 401Ks, and other forms of savings and investments will be distributed equally. Businesses where there is unequal active participation of each spouse will generally be distributed unequally, similarly to businesses where only one spouse participated.

As a result of Equitable Distribution laws, couples entering a marriage should consider a prenuptial agreement, especially in situations where there has been an unequal accumulation of assets prior to the marriage.

Child Support

2009-03-25T14:40:00.001-07:00

The concept of child support stems from the principle that it is the duty of both parents to adequately support and provide for their children according to their means and ability. Frequently, the issue of child support is one of the central focal points in a divorce case.

Several decades ago, child support was entirely subject to the discretion of the court, and the results were inconsistent across the country. States, counties, and individual judges within the same judicial districts differed drastically in the way in which they awarded child support. No one knew what to expect in any particular case.

However, this changed in the 1980's, when every state passed legislation following a federal model Child Support Standards Act. The child support statutes enacted by each state were nearly identical, ensuring that child support awards would be consistent throughout the country.

The new uniform child support statutes are based on the premise that both parents must support their children in proportion to their respective incomes. While the non-custodial parent will always be required to pay child support in a fixed, stated percentage to the custodial parent, theoretically the custodial parent will likewise be expected to utilize the same percentage of his or her income toward the support of the children. Typically, state child support laws regulate child support based on a percentage of gross income.

For example, in the state of New York, the non-custodial parent will pay:

17% of gross income for the support of one child
25% for the support of two children
29% for the support of three children
35% for the support of four or more children

While these percentages may vary slightly from state to state, all states mandate roughly similar percentages to this. It is important to consult your divorce lawyer to find out the exact percentages in your state.

The above-stated percentages are mandatory and are usually referred to as "basic child support." In addition to basic child support, both parents are also required to contribute to "extras" or "add-ons" in proportion to their respective incomes. These "extras" include:

Unreimbursed medical expenses
Educational expenses
Prescription drugs
Dental expenses
Extra-curricular activities
Child care expenses

The apportionment of these "extras" is based on relative income, so that if one parent earns $100,000 and the other parent earns $50,000, the ratio of the apportionment would be 2:1. If their incomes are equal, then the split is 50/50.

The majority of states require child support to be paid until the child is 18. However, there are a few states that require it until age 21.

Co-Parenting

2009-02-25T11:10:00.001-08:00

Co-parenting enables children to reap the benefits of being raised by both parents in the event of a divorce. The archaic belief that custody should be awarded to the mother is no longer viewed as the standard by the courts. Today, it is widely acknowledged that fathers are just as qualified to raise children as mothers. Therefore, to benefit the children and save the divorcing couple thousands of dollars in litigation fees, many divorce lawyers encourage their clients to settle custody issues by agreeing to joint custody, or co-parenting.

Frequently, co-parenting plans will divide the time children spend with each parent relatively equally, providing each parent an opportunity to raise their children and enjoy spending large amounts of time with them as they grow up.

In order for a co-parenting arrangement to work, certain factors must exist:

Both parents must live close to each other, either in the same school district or close enough so that the children may be easily transported to school from either parent's house. This will also allow children to participate in extra-curricular activities and enjoy social time with their friends, regardless of which home they are staying in.
Both parents must be able to agree on important parenting decisions concerning schooling, extra-curricular activities, religious training and upbringing, and medical care. Both parents must be willing to attend parent/teacher conferences, sporting events, and other school sponsored events. Parents must also be able to agree on disciplinary measures when necessary.
Holidays and school vacation time will generally be shared, where appropriate, or alternated from year to year.
Each parent must provide financial support proportional to his or her income. Since co-parenting arrangements generally provide each parent with relatively equal time with the children, time shouldn't be a major factor in allocating child support.

Ultimately, the people who benefit most from a co-parenting arrangement are your children. They will receive all of the emotional and intellectual support that each parent can provide, which can be a salvation for them in the midst of a traumatic divorce.

Divorce Mediation

2009-01-12T15:42:00.001-08:00

Divorce mediation is an alternative to a traditional divorce that is becoming a very popular way for couples to settle their marital dispute. It offers couples a way to retain complete control over their divorce while resolving all disputes in an amicable way.

Mediation works best for couples who have a desire to maintain a positive post-divorce relationship, and who are able to communicate and work together well enough to reach an amicable solution to their dispute.

The mediator is a neutral party who is approved by both spouses. He will help both couples work together to resolve all of the major points of the divorce. The mediator does not have the authority to make any decisions in this process. His role is just to facilitate the discussion between both spouses.

Divorce doesn't have to bleed you dry of your life savings, but it can if you go to trial and engage in a bitter and protracted divorce proceeding. In mediation, the two people who know their own personal situation best can plan out their future without the adversarial process of a traditional divorce.

The result of a successful mediation is a better divorce agreement that is beneficial to both parties. The mediator knows the law and will help guide the couple into an agreement that will be approved by the court. Mediation will also take much less time and cost much less money than a traditional divorce.

Mediation can work out all facets of a divorce agreement, including child custody, child support, spousal support, and distribution of marital assets.

Forget About Marital Fault

2008-12-29T14:08:00.001-08:00

Just about every jurisdiction in the country now views marriage as, among other things, an economic partnership. Furthermore, New York is the only state that has not already adopted no-fault divorce in one form or another. So why even worry about the issue of marital fault?

Getting bogged down in issues of marital fault serves no productive purpose in your divorce proceeding. It is wasteful of your marital assets, and raises the level of acrimony in your divorce action.

Instead, you should spend your time and resources focusing on financial and child custody issues. A skilled divorce lawyer can guide you through the complexities of division of marital property, spousal and child support, custody and shared parenting, and preparing for a future living in separate households. These are the important issues in a divorce. Harping on who is at fault does not help you resolve them, and it delays your ability to move on with your life.

In this day and age, it is important to resolve the issue of "fault" as quickly as possible so that the real issues at stake can be tackled directly and solved intelligently. If your lawyer spends too much time talking about the issue of fault, you may want to consider different representation. With proper legal guidance, your divorce can be achieved quickly and without bankrupting your marital estate.

Equitable Distribution

2008-11-18T14:49:00.001-08:00

There is a growing trend across the country to view marriage as an economic partnership. As a result, most states have adopted the philosophy of "Equitable Distribution" in determining the division of marital property and assets in the case of a divorce. In most states, this has become the law, along with "Community Property."

Under Equitable Distribution, title to the property does not determine ownership. If an asset is acquired during the marriage, even if one spouse holds the sole ownership of the title, it is treated as "marital property." In the event of a divorce, both spouses will be able to share the asset.

There are two exceptions:

If the asset was purchased completely with the pre-marriage funds of one spouse, and the funds remained separate and identifiable at all times prior to the purchase of the asset.
If the asset was acquired as a result of a gift to one of the spouses from a third party (such as a parent), and the title always remained in the name of the spouse who received the gift.

However, assets that were acquired with pre-marriage funds can still be treated as marital property in certain situations. For example, if a couple purchases a house for $500,000, and one spouse uses pre-marriage savings to put a $100,000 down payment on the house, then the remaining value of the asset will be split between both spouses. So if by the time of the divorce, the house has appreciated in value to $800,000, then $700,000 will be split between both spouses after the $100,000 down payment is credited to the spouse who provided it.

Your divorce lawyer should be able to predict the division of assets fairly accurately. By analyzing assets in advance and determining the dollar distribution mandated by the law, your lawyer can guide you to a more amicable settlement agreement with your estranged spouse. This will save you a great deal of time, money, and headaches from protracted litigation. Ultimately, you will end up with the same amount of money regardless of the course of action you choose.

How to Deal with Spousal Abuse

2008-10-10T10:42:00.001-07:00

Spousal abuse can be a very traumatic experience. Often as a marriage unravels and moves towards divorce, the incidence of abuse can increase, making daily life all the more difficult to endure.

It is important to never tolerate abuse from your spouse, or from anyone for that matter. In abusive situations, there are both legal and practical steps you can take to remedy your situation.

The most effective legal option is to get a restraining order on your spouse. This is a court order preventing your spouse from engaging in certain conduct, and it often delineates physical boundaries which cannot be crossed by your spouse. Frequently, your abusive spouse can be forced to move out of the house without the right to return for any reason.

If your children are being abused as well, your lawyer can establish visitation agreements allowing your spouse to see the children only at specified times and in specified places. In extreme cases, supervision of visitation may be ordered. These agreements can occur before divorce proceedings are finalized.

It is also a good idea to contact the police whenever you have been abused. It is important to establish a record of these events to be used as evidence in your divorce. Unfortunately, the police are sometimes reluctant to get involved in domestic disputes, so they may not be of great help to you. But at the very least, you will start building a case against your spouse.

There are also people you can see in your community for help and assistance. Counselors and support groups can be very helpful in cases of abuse. If your children have been abused, you may want to contact social services. Also, don't be afraid to lean on family and friends. They can be your strongest allies and help you get through one of the toughest times of your life.

To Divorce or Not Divorce? That is the Question

2008-02-04T06:04:00.001-08:00

Before moving on with what you need to know about divorce, the next few paragraphs will ask you to look before you leap if you find yourself wanting out of your marriage. Choosing to divorce might ultimately be your decision, but it should be one made in a state of calm with little doubt and few regrets.
Decisions made in haste can take on lives of their own, and before you know it, there may be no turning back to save your marriage. Deep down we all know when we are at peace with the decisions we've made whether big or small. Sometimes we listen to our gut and sometimes we don't.
When we make decisions and take action while our doubt mechanism is in full gear, we know we will eventually pay for it. To avoid this scenario, respect the little voice inside you, if it says "wait." Your gut instinct is asking you to reevaluate the situation before making your decision. Before making this significant change in your life take a good look at yourself and your concept of marriage.
When you're looking at the choice to divorce, forget all about the idea of the romantic fairy tale. It's time to take a good look at marriage and understand what it really takes to make this type of partnership work. Depending on how realistic and honest you are when evaluating your situation, when it comes to a divorce, you may find that the grass may not always be greener on the other side. For a good dose of reality, sit down and write out a pro and con list of staying married vs. the realities of divorce and being single.
Consider the following: children, your career status and ability to make money, finances, life style changes, cost of divorce, being single again and the threat of sexually transmitted diseases once you're back on the dating circuit.
Consider the following:
· Have you gone to marriage counseling?
· Have you and your spouse taken the time to talk and isolate the real problems of the marriage?
· Do you really listen to each other or just nag, complain and tune out?
· How well do you compromise and try to find time for enjoying quality time together?
· How productive or destructive are your methods of fighting?
· Do you kiss and make up without holding grudges?
· Are you teammates working toward the same goals?
· Are you both willing to work on your issues together?
Writing out the answers to these questions will help guide you in making an educated, rational decision. Divorce is difficult, but it might be your best option and worth the temporary discomfort of transitioning into a new life. The process of honest evaluation will help you experience more peace and have fewer doubts regardless of your decision.

To Divorce or Not Divorce? That is the Question

2008-01-03T08:09:00.000-08:00

Before moving on with what you need to know about divorce, the next few paragraphs will ask you to look before you leap if you find yourself wanting out of your marriage. Choosing to divorce might ultimately be your decision, but it should be one made in a state of calm with little doubt and few regrets.

Decisions made in haste can take on lives of their own, and before you know it, there may be no turning back to save your marriage. Deep down we all know when we are at peace with the decisions we've made whether big or small. Sometimes we listen to our gut and sometimes we don't.

When we make decisions and take action while our doubt mechanism is in full gear, we know we will eventually pay for it. To avoid this scenario, respect the little voice inside you, if it says "wait." Your gut instinct is asking you to reevaluate the situation before making your decision. Before making this significant change in your life take a good look at yourself and your concept of marriage.

When you're looking at the choice to divorce, forget all about the idea of the romantic fairy tale. It's time to take a good look at marriage and understand what it really takes to make this type of partnership work. Depending on how realistic and honest you are when evaluating your situation, when it comes to a divorce, you may find that the grass may not always be greener on the other side. For a good dose of reality, sit down and write out a pro and con list of staying married vs. the realities of divorce and being single.

Consider the following: children, your career status and ability to make money, finances, life style changes, cost of divorce, being single again and the threat of sexually transmitted diseases once you're back on the dating circuit.
Consider the following:

Have you gone to marriage counseling?
Have you and your spouse taken the time to talk and isolate the real problems of the marriage?
Do you really listen to each other or just nag, complain and tune out?
How well do you compromise and try to find time for enjoying quality time together?
How productive or destructive are your methods of fighting?
Do you kiss and make up without holding grudges?
Are you teammates working toward the same goals?
Are you both willing to work on your issues together?

Writing out the answers to these questions will help guide you in making an educated, rational decision. Divorce is difficult, but it might be your best option and worth the temporary discomfort of transitioning into a new life. The process of honest evaluation will help you experience more peace and have fewer doubts regardless of your decision.

Paternity and Divorce

2007-11-27T11:21:00.000-08:00

Sometimes, with divorce, come arguments over child custody and even paternity. Paternity cases focus on establishing that the presumed father is the biological father of the child. In addition, a paternity suit can determine custody and visitation of the child, order a parent to be monetarily responsible for the birth of a child, and can order a parent to pay for day care expenses that were incurred because of work.

Paternity cases are often filed by the mother of a child in order to establish financial assistance, such as childcare. In other circumstances the father of a child can file a paternity case in order to establish visitation or custody with their child. Mothers who file for paternity are in effect giving rights to the father for visitation with the child. On the other hand, a father who files paternity will also be required to pay the mother for child support and other expenses related to the upbringing of the child. In instances when there is a question as to who the biological father of the child is, accurate and reliable DNA paternity tests can be done.

To find out more about paternity, child custody, and child support, click here.

Why Get a Prenuptial Agreement?

2007-07-20T07:06:00.000-07:00

A prenuptial accord is a contract between two people about to wed that details how assets will be distributed in the event of divorce or death. There are two types of prenuptial agreements (commonly called "prenups"): a marriage contract for people who are about to be married and a cohabitation agreement for unmarried couples. A variation for people who are already married is called a postnuptial agreement.

Most people think that only the very wealthy seek prenups, but that is not the case. Couples of modest means are increasingly turning to them for their own purposes. For example, a couple about to be married may use a prenup to outline what will happen to their property when they die so that they can pass on separate property to their children and still provide for each other. Without a pre-existing prenuptial agreement, a surviving spouse might have the right to claim a large portion of the other spouse's property leaving much less for the kids.

Prenups are most often used for the following purposes:

Keeping finances separate. If a couple divorces or when one spouse dies, the marital property will be divided between them, either by agreement or by a court. If you want to avoid this, you can do so in a prenuptial agreement.

Protecting each other from debts. If a prenup is not in place, then creditors can sometimes turn to marital property to satisfy the debts of just one spouse. A prenup can limit your liability for a spouse's debt.

Provide for your children from a previous marriage.

Keep property in the family.

Define who gets what if you divorce. This is probably the most common use for a prenup, especially when one or both spouses is very wealthy.

Outline child support, custody and visitation issues.

Relinquish the right to alimony.

If you or a loved one has been involved in a divorce or is about to get married in New York City, Long Island—including Nassau or Suffolk Counties, please contact the experienced Divorce Attorney Law Offices at Silberstein, Awad & Miklos.

Domestic Violence Victims Find Bravery Through Judicial System

2006-09-02T15:44:00.000-07:00

Although there are still few reported cases of domestic violence in specific states, it is becoming increasingly more common nationwide for domestic abuse victims to prosecute their abusive spouses in the civil justice system. Men and women who have suffered from living with abusive spouses are often (especially in the case of men) submissive about their abuse, ashamed or afraid of the recoil society may have against them. Even though it takes a great deal of bravery to admit to have been battered by a wife or husband, many people feel as though they are exposing an awkward weakness about themselves, and so they never seek the justice they deserve. There is also a lingering fear that the spouse will continue to stalk the victim. Many cases of personal injury and domestic violence involve stalking through use of phone wires, video cameras, disrupting private property, and physical invasion of personal privacy. After the victim has been stripped of privacy, they often find it terrifying to attempt to gain help, thinking that the spouse may easily discover the move and attack before any real help is gained. Cases have also been found where a spouse will follow the victim to work or social events.

Despite all these terrifying odds, men and women are now stepping up against their oppressors in a slow mass horde. According to Jeffery R. Dion, the director of the National Crime Victim Bar Association in Washington, "Domestic violence victims are increasingly using the civil justice system to hold their perpetrators accountable.... If a batterer is arrested, the victim often loses a key source of financial support and may need medical help, counseling or to move." Hiring a divorce attorney to prevent these disasters may help a victim gain proper compensation from their abusive spouses to cover moving fees, financial support, child support, pain and suffering, and medical fees. Many men and women who face a domestic abuse case in court without a divorce attorney wind up having to survive in a much less habitable environment due to a lack of child support or medical fee compensation - they continue to feel the pain of the abuse, even after being brave enough to face their perpetrator.

If you or someone you know is suffering from domestic violence or domestic abuse, call the police immediately. Be sure to locate a reliable divorce attorney to help prevent further damages - feel free to contact divorce lawyers in your area such as Palidori, Franklin, and Monahan, L.L.C. in Denver, Colorado.

Your Needs and the Government

2005-10-25T16:30:00.000-07:00

Despite the common fear, there is no reason for anyone considering divorce to fear the legal system. Its only purpose is to help those in need of divorce. At Jacoby and Meyers in San Diego, CA, it's all about giving people greater access to the legal system. It is their job to ease you of your worry, not cause more. They are there to answer any questions you might have, help settle you issues, and represent you in court. They specialize in dissolution of marriage, custody & support, name changes, guardianship of children, and adoptions. Do not be afraid of lawyers, they will prove to be an incredibly valuable asset to your family.

Is Divorce a Caustic Trend?

2005-10-18T17:05:00.000-07:00

For struggling families, this question may become predominant in everyday life. When a ruction occurs in the natural order of families, guilt and tension rise to frightening levels. People fear divorce not only because of personal psychological affects, but because the divorce around them seems to grow at an exponential rate as time goes on. When people get married nowadays there is often the joke of "getting the first one out of the way". Whether the future of society as we know it is at stake or not cannot truly be told. If you're considering divorce, think of the people around you. If you have children, what benefits them the most?

While studies have shown that divorce almost always affects children in a negative behavior, it has also been proven that children can lead normal, happy lives after the divorce, better than they were before, if the situation is handled well. This doesn't require that a parent become neurotic about their child's mental condition; it has been shown that simple honesty, sympathy, and kindness goes a long way in helping a child through a tough divorce. A parent that shares their fears with their children often helps them get over their own as well.

Resources:
DivorceNet
BBC - Separation and Divorce