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                    :: Child Custody                      :: Uncontested Divorce

                    :: Property and Debts        :: Separation Agreements

 

 

During a divorce proceeding, the court will determine the custody provisions based on what is in the best interest of the minor children.  The court can take many issues into account in their determination of custody.  Custody will be determined on all children under the age of 18 which were either born or adopted by the both parents subject to the divorce proceeding.  If the wife is pregnant at the time the divorce is filed, this should be stated in the divorce documents.  The 4 types of custody are listed below:

 

Legal Custody:   Legal custody of a child is the right and obligation to make decisions about a child's upbringing. Decisions regarding schooling, and medical and dental care, for example, are made by a parent with legal custody. In many states, courts now award joint legal custody to the parents, which means that the decision making is shared. If you share joint legal custody with the other parent and exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the original 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 -- and it may harm the children. What's more, if you're represented by an attorney, it's sure to be expensive.

 

Physical Custody:   Physical custody is the right of a parent to have a child live with him. Some states recognize the concept of joint physical custody where the child spends approximately half the time in each parent's home. The latter arrangement is tricky and should be considered only if you have an amicable, respectful relationship with your ex. Also, it works best if you live near the other parent. This lessens the stress on children and allows them to maintain a somewhat normal routine.

 

Sole Custody:   Sole custody means that only the custodial parent has physical custody and legal custody of a child, and that the non=custodial parent has visitation rights. In most states, courts are moving away from awarding sole custody to one parent, and they are often enlarging the role a father plays in his children's lives. This translates into physical custody for one parent with joint legal custody shared by both -- plus a generous visitation schedule. Courts may not hesitate to award physical custody to the father if the mother is deemed unfit -- for example, because of alcohol or drug dependency, an unfit boyfriend or child abuse or neglect charges. It's understandable that there may be animosity between you and your ex-spouse, but sole custody shouldn't be sought unless the parent is a direct harm to the children. Even then courts may simply order supervised visitation, while still allowing joint legal custody.

 

Joint Custody:  Parents who don't live together have joint custody (also called shared custody) when they agree, or a court orders them, to 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, no longer cohabiting or even if they never lived together. Joint custody may be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent) or both. It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

 

Usually, when parents share joint custody, they work out joint physical custody according to their schedules and housing arrangements. If the parents cannot agree, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house. Other joint physical custody arrangements include alternating years or six-month periods, or spending weekends and holidays with one parent while spending weekdays with the other.

 

Joint custody has the advantages of assuring the children continuing contact and involvement with both parents, and alleviating some of the burdens of parenting for each parent. There are, of course, disadvantages -- children must be shuttled around, parental non-cooperation can have seriously devastating effects on children and maintaining two homes for the children can be expensive.

 

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How is the property divided during a divorce?

It is common for a divorcing couple to decide about dividing their property and debts themselves, rather than leave it to the judge. But if a couple cannot agree, they can submit their property dispute to the court, which will use state law to divide the property.

Division of property does not necessarily mean a physical division. Rather, the court awards each spouse a percentage of the total value of the property. (It is illegal for either spouse to hide assets in order to shield them from property division.) Each spouse gets items whose worth adds up to his or her percentage.

Courts divide property under one of two schemes: equitable distribution or community property.

  • Equitable distribution. Assets and earnings accumulated during marriage are divided equitably (fairly). In practice, often two-thirds of the assets go to the higher wage earner and one-third to the other spouse. Equitable distribution principles are followed everywhere except the community property states listed just below.

  • Community property. In Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, all property of a married person is classified as either community property, owned equally by both spouses, or the separate property of one spouse. At divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property.

How do we distinguish between community and non-community property?

Very generally, here are the rules for determining what's community property and what isn't:

  • Community property includes all earnings during marriage and everything acquired with those earnings. All debts incurred during marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are community property debts.

  • Separate property of one spouse includes gifts and inheritances given just to that spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested (that is, the pensioner became legally entitled to receive it) before marriage. Property purchased with the separate funds of a spouse remain that spouse's separate property. A business owned by one spouse before the marriage remains his or her separate property during the marriage, although a portion of it may be considered community property if the business increased in value during the marriage or both spouses worked at it.

  • Property purchased with a combination of separate and community funds is part community and part separate property, so long as a spouse is able to show that some separate funds were used. Separate property mixed together with community property generally becomes community property.

Who gets to live in the house during the divorce?

If children are involved, the parent who spends the most time with the kids, or provides their primary care, usually remains in the marital home with them. If you don't have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave.

If, however, you don't have children and you own the house together, this question gets tricky. Neither of you has a legal right to kick the other out. You can request that the other person leave, but he or she doesn't have to. If your spouse changes the locks, or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door. When you both own the home, the only time you can get your spouse to leave is if domestic violence has been committed and a judge grants a restraining order.

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An uncontested divorce is one in which both parties agree to the divorce and the terms of the settlement, without going to trial. This does not mean that there are no arguments or disputes between the spouses - it simply means that the spouses were able to reach an agreement without going to court and having the judge rule one way or the other. Uncontested divorces move much faster through the court system and are therefore less expensive. In addition, by bypassing the lengthy litigation and trial process, an uncontested divorce typically leads to reduced hostility and resentment among the ex-spouses, and both are able to resume their lives more quickly.

At the heart of every divorce are three issues:

1. How to divide the community property,
2. Who will have custody of the children, and
3. How much child and spousal support should be paid.

While no divorce is truly "uncontested" in the sense that there are no disagreements, these disagreements do not always have to be resolved in court. That's what we mean by an uncontested divorce - one where the spouses can reach a decision as to the terms of the divorce without going to trial. Uncontested divorces move much faster through the court system and are therefore less expensive.

We recommend that every couple seeking a divorce first use all means possible to work out mutual terms for the separation, without going to court. If the spouses cannot work things out on their own, we recommend arbitration and mediation, with or without attorney representation. Not only will this save time and money, but by bypassing the lengthy litigation and trial process, an uncontested divorce typically leads to reduced hostility and resentment among the ex-spouses, and both are able to resume their lives more quickly.

Contested divorces, on the other hand, often involve complex issues, high financial stakes and technical legal procedures in court. While an uncontested divorce can often be performed without an attorney, we believe that it is best to retain experienced counsel in a contested divorce due to the litigation involved. Furthermore, if one spouse is represented by an attorney or if there are difficult or major financial issues involved in the divorce, we recommend seeking an attorney.

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A marital settlement agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. These agreements usually cover property division, child custody and child plans, debt division, spousal support, and any other relevant issues related to the divorce.

Although not required, filing a martial settlement agreement has many advantages. First, because it lays out all of the agreements in writing, there are no ambiguities. Second, the spouses will probably never have to go to court because the judge will most likely honor the written agreement if written correctly and if it covers all material aspects of the divorce. Third, it shows the court that the issues were thought out, and the case will move more quickly though the system.

Marital settlement agreements can be entered into at any time before the final judgment. They are typically filed with the final judgment. If a spouse is receiving welfare, the District Attorney's office may need to review and sign the marital settlement before it is filed with the court.

 

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