Domestic Relations Law – A Brief Overview

Featured

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , ,

As with any area of law, family law or domestic relations is specific to the state and/or jurisdicition in which one lives.  For this reason, a lot the quasi-legal websites hosting generic forms (tailored to state requirements) are adequate but far from ideal.  The level of expertise and knowledge required to competently address the termination of the marital contract, re-visit a divorce post decree, ensure a comprehensive and holistic plan for shared parenting, or deal with any other situation that may arise is so great that one stop websites do almost more harm then good. 

This blog will avoid that pitfall by providing general information and helpful tidbits throughout.  It is not intended for sole reliance but as a non-exclusive aid and guide for questions that often arise during a very trying time.  Any information specific to a locality will be duly noted.

While this information is the product of a practicing attorney in the aforementioned field, none of it is intended to substitute for the necessity of a real attorney.  The posts herein are provided merely for general information and where appropriate, answers to specific questions.  They should not be relied upon as substantive legal advice and independent counsel should be sought for any individual dealing with issues addressed in this blog.

The UCCJEA

Tags

, , , , , , , , , , , , , , , ,

The Uniform Child Custody Jurisdiction and Enforcement Act is quite a mouthful.  Judges and attorneys well versed in the law may still become toungue-tied while referencing it.  The law is as important as it is verbose.

Every state in the country has adopted the UCCJEA which means that matters of custody between the states are able to be settled by a uniform set of laws no matter how distinct those two states may be in terms of custody within their own boundaries.

In today’s mobile society, it is more important than ever to have certain laws that promote judicial efficiency and economy to prevent any further harm to families. The UCCJEA lays out basic definitions such as ‘home state’ of a child that help establish a legal baseline.  Without it, custody between the states would be seem more like the wild west than anything else.

There is more to restrain than the name

A recent blurb by Lawyers.com provides a nice starter for those seeking a Restraining Order.  Here is the meat of that piece:

How to Get a Restraining Order

        Lawyers.comsm

There are any number reasons why you may need a restraining order. Your spouse or partner may be abusing you or your child, or someone you once dated is stalking you. In cases like these and hundreds of others, a restraining order may be the key to your safety and peace of mind.

Once you’ve made the tough decision that you need one, it’s time to act. Knowing how to get a restraining order and how it will be enforced is the only way to get the protection you need.

Getting a Restraining Order

The process for obtaining a restraining order varies from state to state, but the same general steps usually apply.

First, you need to get some paperwork. You can get the forms at your local courthouse, or they’re often found online. Many shelters and domestic abuse prevention organizations also have the forms. Once you have the forms, the process goes like this:

  • Complete the forms, describing the abusive or harassing behavior in as much detail as possible
  • Take your forms, your ID and identifying information about the person you seek protection from to your local courthouse
  • The court clerk takes your forms and information to a judge, who decides if a temporary restraining order is needed until a hearing on your application
  • A hearing date for the permanent restraining order is set
  • Arrange for service of process to the alleged abuser. It gives that person notice of the application and hearing details
  • Hearing and decision. At the hearing, you must show the abuse or harassment, and your need for protection. The judge decides whether to issue the permanent restraining order, usually that same day

Enforcing a Restraining Order

Once a restraining order is granted, you should make several copies and keep one with you at all times. Also leave a copy of the order at work and your children’s school or daycare. An abuser or harasser breaks the law when they don’t follow the restraining order’s terms.

But it’s up to you to make sure the order is enforced. Call the police immediately if the person violates the order. The police should make a report of the incident, and if necessary, enforce the order by ordering the person to leave you alone or by arresting that person. In cases where the police refuse to act, usually you can:

  • File a civil lawsuit for contempt
  • Talk to your local prosecutor about pressing criminal charges

Either way, the person faces jail time, a fine or both for violating the restraining order.

No one actually tries to get into sticky situations where restraining orders are needed. It just happens. When it happens to you, stand up for your safety, property or a loved one by using the law to get the protection you need.

Questions for Your Attorney

  • What are my options if a judge refuses to issue a restraining order?
  • Can I use physical force to to stop someone from violating a restraining order?
  • Are police officers legally liable if they refuse to enforce a restraining order and I’m later injured by the person named in the restraining order?

——————————————————————————————-

What the article does not say is just as important.  ‘Restraining Order’ is a relatively generic term.  In fact, most Courts have wide variety of different types of restraining orders depending on the circumstances of the allegations!  Take Hamilton County (Cincinnati, OH) for instance – there are 9 different orders that can restrain someone.  The primary distinction is a civil order versus a criminal order.  Someone currently going through a divorce who feels that their spouse has become unstable or erratic but may not believe that their personal safety is yet at risk should look to their court for a civil order.  Victims of domestic violence, or other types of endangering acts, need to seek the criminal variety.  The subdivisions of these two categories are technical and usually based on a specific statute. (E.G. Most states that have passed a law protecting alternative lifestyles have additional orders stemming specifically from allegations arising out of those laws.)

The most important thing to remember is to tell someone about your fear and to take the initiative for protecting yourself!  Don’t wait for a call back from an attorney if the case is severe, seek the forms at your local law enforcement office or Court.

If you have any other questions about this issue or others like it, contact me through the ‘About’ link at the top of this blog!

Inheritance and Support

Tags

, , , , , , , , , , , , , , , , , , ,

It is well established that an inheritance to one party in a marriage is separate property.  If that property can be traced, then that party is entitled to recoup that amount.

But what about an inheritance as it relates to child support?  There, the law is much foggier and states vary as to how they may treat that money.

The District of Columbia Court of Appeals overviewed the problem in a recent opinion, saying in a footnote,

In some jurisdictions, the entire amount of the inheritance is included as gross income for the purposes of determining child support.  Other states, however, have held that only the interest generated by the inheritance constitutes gross income.  A third approach, adopted in NEw york, is to treat inheritances as a factor in deviating from the basic child support obligation and awarding additional child support.  At least one jurisdiction {Colorado} adopted a hybrid approach, treating only that portion of an inheritance that a parent withdrew and spent as gross income, and the remainder of the inheritance as an interest-generating asset.

While the answer is not straightforward, it is plain enough to see that an inheritance of a relatively significant amount is something that the obligee (custodial parent receiving support) should inquire about with legal counsel.  Failure to do so could hurt the parties’ children more than anyone else!

Please click on the about link for contact information.  I will be happy to answer other questions and provide referrals.

Social Web Media and Divorce

Tags

, , , , , , , , , , , , , , , ,

A blogger from Forbes said, after noting that a CT Judge ordered parties in a divorce and custody case to disclose Facebook and other dating site passwords, that all the phrase ‘all’s fair in love and war’ seems to apply.  When judges are issuing those types of orders to help determine custody then one can bet, it is war.

Everyone should be aware that a Facebook (MySpace?), dating site account, have very flimsy privacy safeguards.  In this instance, a lawyer was able to convince the judge that the opposing party’s statements (made on Facebook and some dating websites) about the children, would be pivotal in determining the best interests of the child for custody.  (Thanks for nothing Mr. Zuckerberg!)  Even though Facebook is designed to protect users’ privacy.  When a judge orders one person to disclose a password to another, then all the safeguards built into the site are irrelevant.

What is posted on the web is public domain for all intents and purposes.  Now, more than ever, web site accounts are playing a pivotal role in defining the outcome of cases in family law!

For more information on divorce and the net, go to the about page and contact me!

State Incentivized Divorce?

Tags

, , , , , , , , , , ,

Can the state ‘grease the skids’ on one of the toughest and most personal decisions one may confront in a lifetime?  It sure sounds that way.

Some state’s have always been characterized as alimony friendly.  A divorcee who married into money can usually count on more support if he or she may avail themself of that jurisdictions’ law.

However, the influence is often more subtle than Hollywood stereotypes of Anna Nicole Smith and her life’s love.   (Incidentally, in 2010 a Federal court held that Anna Nicole’s estate was not entitled to a share of her late husband’s fortune – it took nearly 15 years to settle the matter and the primary parties, Anna Nicole and her ‘step’ brother both died in the interim.)

The inconspicuous incentivizer: child support guidelines.  Many states use the concept loosely and child support may often mean something more akin to ‘family support’ meaning that the payor/obligor does simply pay their share of the cost to raise the child in the most equitable way.  Instead the obligor pays an amount intended accomplish more, provide support to the custodial parent.  An undecided parent torn over their decision to pursue divorce may be swayed by ‘generous support’ under state guidelines.

The problem is that the intention of the jurisdiction is usually to provide ample support for the custodial parent who, in some cases, may be wholly reliant on that support payment to raise the parties’ child.  In an effort to ensure healthy amounts, the jurisdiction inadvertently incentivizes the break up of families.  Is the occurrence common, definitely not.  But even one instance of an incentivized decision on this basis is one too many.

What does your state say about child support?  Can you marry into money?  For contact information visit the about page of this site!

 

The High Profile Separation, Part ‘Deux’

Tags

, , , , , , , , , , , , , , , ,

As sure as the sun rises, a 2nd major breakup steals recent focus from the Demi/Ashton termination.  The Kardashian union, thought by some to be a publicity stunt, appears headed for short lived status even by the standards of Hollywood.

While divorces and personal drama may in fact actually be good for brand business (that is not necessarily the case here), a divorce in the Court system is no flippant matter.  Even in the case where a marriage of less than 10 months is terminated, their is no guarantee of a simple process.  The relative weatlh of our current Hollywood split du jour ensures that there will be some long, private discussions about dividing the revenue generated from their marriage and this past season of the television show that featured the newly wed couple.

The ‘pre-nup’ concept is not as common as one would think depending on the jurisdicitions.  In many instances, an ante nuptual can do little more than simple identify property brought into a marriage and already separate.

If you have questions about Kris and Kim and their marital termination, like who gets the 20.5 carat monstrosity, or legitimate questions of your own, see the About page for contact information.

The High Profile Separation

Every year, a handful of Hollywood couples part ways.  A rare few even reach the, “I thought they would never split” status.  Money and publicity are not exclusive to the Hollywood divorce.  Featured in the ‘Tweet’ section is another story of a famous J.Crew executive.  The CEO, athlete, doctor, and so forth may all have to deal with the added dimension of publicity to once degree or another.  Depending on the jurisdiction, parties keep most documents from the prying eye.  However, a determined journalist is almost always able to secure Court documents.  Why?  The answer is much simpler than you would think.  The Court is not a private entity.  It is public and keeping things private in a domestic relations civil case (no jury, no fear of prejudice) is very hard unless there are safety concerns justifying a sealed record. 

How does one keep everything quiet?  Don’t go to Court.  The parties, and their attorneys, can negotiate privately so long as the please.  Their plans can be carefully concocted and hashed out.  There are no 3rd parties or deadlines unless the parties wish them.  This approach, often called dissolution, is abundantly superior to the traditional divorce but unfortunately it is not always possible or realistic.  Take for instance Ashton and Demi – not a particularly long marriage, no children of their own, easily traceable separate estates, some dispute as to her share of his income since the marrying but otherwise straightforward.  Dissolution would seemingly be perfect except for the fact that addresses none of the emotions, a potential need or want for publicity (it is after all central to careers such as theirs), and the trust factor to negotiate was completely eviscerated by adultery.

So keeping things private and clean is not always desired, but where is it – the Court is not usually the best 1st option.  For more information go to the About page of the site.

Liar, Liar

Tags

, , , , , , , , , , , , , , , , , ,

Whether in a marriage or in a court room, sometimes it is not easy to determine if someone is being deceptive.  Cultures have attempted to root out the lies over centuries and through countless methods.  Ancient China required the accused to place a handful of rice in their mouth.  If it was returned dry then the speaker was adjudged guilty of lying since a dry mouth was thought to be a tell-tale sign.  European and African cultures developed other tests but all were meant to expose involuntary reactions by a person when they were being untruthful.

Today the ‘eyes’ have it.  The saying begins, ‘look me in the eye and tell me . . .’  The problem: less than a third of conversation even incorporates direct eye contact.  Eye contact is culturally subjective and not even as good an indicator as some of the more antiquated methods referenced above!  Now directions of the eyes or involuntary facial expressions that so many thriller novel addicts read, called microexpressions or microbursts are currently thought to be the most accurate physical indicators of truth or not.  The problem, they can last less than a second and require a good deal of training and knowledge of the speaker to interpret.

You may be dealing with a gentleman.  That gentleman may be a liar and cheat but unfortunately, there is no fool-proof way to tell.  Still, proper research and training may make you a better judge of the truth since the average person only detects about half the lies they are told!

Social Security and Property

Tags

, , , , , , , , , , , , , ,

Like an Individual Retirement Account, 401(K), or a house, Social Security payments are something that parties married the requisite amount of time must divide.  Social Security is not something wealthy individuals will spend much time considering but it is a factor that many must account for.

If someone is getting SS retirement benefits then a former spouse who is 62 years of age, was married to the beneficiary for at least 10 years, and is currently unmarried  should be receiving them.  There are other exceptions that allow for an Ex to receive the benefits even before a the party from whom they are drawing.

If you have questions about Social Security and the role it plays in the termination of a marriage feel free to contact me under the ‘about’ page.

Domestic Violence

Tags

, , , , , , , , , , , , , , , ,

What is Domestic Violence?  Whom does it affect?  What are the consequences?  This is an issue that remains in that shadows in spite of many good efforts to draw it into the open.  It is a common theme in divorce and is something that any family law practitioner should be familiar with in order to screen for it and to address it when appropriate.

Domestic Violence (DV) is essentially harming or threatening to harm a family member, spouse, or anyone with whom the perpetrator has had an intimate relationship.  Sadly, its effects can be as diffuse as its definition.  DV may precipitate a a divorce, or where the victim live in fear, may be the primary reason a divorce has not yet occurred.  Even where DV is not present, abuse may still be a factor in the relationship.

Domestic Abuse (DA) is a pattern of abusive and controlling elements that generally cause the victim to change their behavior.  It can be psychological, emotional, financial in form.

In either case, it is the job of the attorney or other involved party to ask the right questions in order to determine the nature and scope of the abuse/violence.  This process is generally referred to as ‘screening’.  Screening requires first awareness and secondly, it is not accomplished without proper training.

Anyone contemplating terminating a marriage who is a victim should seek out someone whom they know has received the necessary training.  Victims need and deserve assistance at every level, not just the courtroom.

If you have questions about this topic or anything related please click the ‘about’ link for contact information.

Follow

Get every new post delivered to your Inbox.