Nolo's Essential Guide to Child Custody & Support

Nolo's Essential Guide to Child Custody & Support

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Nolo's Essential Guide to Child Custody & Support

Named one of Library Journal's "Best Law Books"

, Attorney & Mediator

, 3rd Edition

Get the answers you need for your family. Nolo's Essential Guide to Child Custody & Support will teach you how to:

  • negotiate agreements with your ex-spouse
  • enforce custody and support orders
  • modify agreements when your circumstances change
  • find custody and support rules for your state
  • avoid a destructive court battle

See below for a full product description.

 

Custody and Support: Get the Answers You Need

When you’re getting divorced, you can make a tough time easier for your children (and yourself) if you work with the other parent to draw up a custody plan and agree on child support. If you can’t work out custody and support, you’ll have to head to court and ask a judge to step in.

Either way, Nolo’s Essential Guide to Child Custody & Support can help. You’ll learn:

  • how negotiation and mediation can keep costs down, ease the transition for kids, and improve future dealings with your ex
  • where to find your state’s child support guidelines
  • how judges make custody decisions
  • how to enforce and change custody and support orders
  • how court trials work
  • what military families need to know
  • when you need a lawyer and how to work with one

You’ll also find specifics about each state’s laws, including what factors courts consider when they rule on custody arrangements, what happens when one parent wants to move away with the children, and how you can change custody or support orders.

 

“Nolo is a pioneer in both consumer and business self-help books and software.” -Los Angeles Times

“When it comes to self-help legal stuff, nobody does a better job than Nolo.”-USA Today

“The nation’s largest publisher of self-help legal books and software.”-The Wall Street Journal

 

 

ISBN
9781413321968
Number of Pages
392

Introduction: Your Child Custody and Support Companion

1. Basics of Divorce

  • The Big Issues: Child Custody and Support
  • When You Separate
  • Annulment
  • The Court Process
  • Kinds of Divorces
  • Parentage Actions for Unmarried Couples
  • Divorce for Same-Sex Couples

2. Basics of Child Custody

  • Physical and Legal Custody
  • Creating a Parenting Plan: Out of Court
  • Sample Parenting Plans
  • When Parents Can't Agree: Going to Court
  • Contentious Issues
  • Making Shared Parenting Work

3. Basics of Child Support

  • Who Pays Support?
  • How Child Support if Calculated
  • How to Estimate Child Support Obligations
  • Deviating from the Guidelines
  • Creating Your Own Written Agreement
  • Going to Court for a Support Decision
  • Temporary Support While the Divorce Is Pending
  • Taxes and Your Children
  • Health Insurance and Medical Child Support Orders

4. When You Decide to Divorce: The First Month

  • Talking to the Kids
  • Figure Out Immediate Housing and Custody Issues
  • Make A Temporary Parenting Plan
  • Start Addressing Money Issues
  • Get Organized
  • File Court Papers
  • How to Get Your Agreements Made Into Orders
  • Take of Yourself and Your Kids

5. Avoiding Custody or Support Trial: Alternatives to Court

  • Why You Should Avoid a Court Fight
  • Negotiating with Your Spouse
  • Mediation
  • Collaborative Divorce
  • Arbitration
  • Private Judging
  • Going to Trial

6. Dealing With the Court: Paperwork and Court Hearings

  • Types of Court Hearings
  • Scheduling a Hearing
  • Dealing With the Other Parent's Attorney
  • Preparing Court Documents
  • Documents You Might Need
  • Declarations
  • Serving Papers
  • Gathering Evidence: Disclosures and Discovery
  • Preparing for the Hearing
  • At the Hearing
  • After the Hearing

7. Going to Trial

  • Should you have a Lawyer?
  • Getting a Trial Date
  • Issues in Child Custody Trials
  • Issues in Child Support Trials
  • Courtroom Procedures at Your Trial
  • After the Trial

8. Custody Orders: Living With, Enforcing, and Changing Them

  • Sharing Parenting After a Custody Hearing or Trial
  • When the Other Parent Violates a Court Order
  • When the Other Parent is Just Annoying
  • When the Kids Don't Want to Go
  • If You Suspect Child Abuse
  • When the Other Parent Doesn't Take the Children
  • Traveling With Your Child
  • Changing Your Custody Arrangements
  • When One Parent Is Out of State
  • If You Move to Another State: Registering Your Custody Order 

9. Child Support Orders: Living With, Enforcing, and Changing Them

  • Arranging for Payment
  • If You're Paying Support: Changing the Amount
  • How Long Child Support Lasts
  • When Circumstances Change
  • Enforcing Support Orders Across State Lines
  • If Your Spouse Goes Missing
  • Bankruptcy and Child Support

10. Worst Case Scenarios: Kidnapping, Abuse, and Interferences With Custody

  • Kidnapping
  • Child Abuse
  • Interference With Parental Relationship
  • Domestic Relationship
  • Supervised Visitation for Difficult Situations

11. Custody and Support in Military Families

  • Delaying Court Decisions: The Servicemembers Civil Relief Act
  • Custody and Visitation
  • Child Support
  • Medical Benefits for Children
  • Other Benefits
  • Tax ISsues
  • Locating a Service Member
  • Serving Papers on Someone on a U.S. Military Base
  • Domestic Violence and Other Abuse

12. The Law: How to Work With a Lawyer and Do Your Own Legal Research

  • Should you Lawyer Up?
  • Working With a Lawyer
  • Looking for a Lawyer
  • Paying a Lawyer
  • If you have problems with your Lawyer
  • Getting the Other Parent to Pay Your Attorneys' Fees
  • Help With Self-Representation: Legal Document Preparers
  • Knowledge Is Power: Learn the Law
  • Quick Guide to Legal Research

Appendix: 50-State Charts

  • Residency Requirements
  • Grounds for Divorce
  • State Child Support Calculators
  • Court and Court-Related Websites
  • State Custody Best Interest Statutes
  • State Custody Modification Statutes
  • State Relocation Statutes
  • State Child Support Modification Statutes
  • State Child Support Enforcement Agencies

Index

Chapter 1
Basics of Divorce

The Big Issues: Child Custody and Support................................. 4

  Custody...................................................................................... 5

  Child Support............................................................................. 5

When You Separate...................................................................... 7

  Trial Separation.......................................................................... 7

  Permanent Separation ............................................................ 13

  Legal Separation...................................................................... 13

Annulment................................................................................... 14

The Court Process...................................................................... 15

  Residency Requirements—Where Can You File for Divorce? 16

  Waiting Periods........................................................................ 17

  Must You Prove Your Spouse Is at Fault?............................... 17

  Family Court............................................................................. 19

  Starting Your Divorce............................................................... 19

Kinds of Divorces........................................................................ 20

  Summary Divorce.................................................................... 21

  Default Divorce........................................................................ 22

  Uncontested Divorce................................................................ 22

  Mediated Divorce..................................................................... 24

  Collaborative Divorce............................................................... 24

  Contested Divorce................................................................... 24

Parentage Actions for Unmarried Couples................................. 25

Divorce for Same-Sex Couples................................................... 26

  Marriage Equality and Divorce................................................. 26

  Same-Sex Parenting and the Courts....................................... 27

 

If you are considering divorce—or are already headed down that path—you have a lot on your mind. Probably the first thing you’re thinking about is how divorce will affect your kids: How and when will you spend time with them, what will change about your parenting life, and how will you deal with the finances of raising them when you and your spouse are no longer together? There’s no way around the fact that when you have children, the divorce stakes are high, and you want to do everything you can to protect your kids.

The best single thing you can do for your kids is to keep the divorce process as civilized as possible. As you go through your divorce, over and over you’ll be required to make a choice between escalating conflict or compromising. Each time you choose to create or continue a dispute with your spouse, you are making it more likely that you’ll end up in court in front of a judge, who will then make decisions about your family instead of leaving them to you and your spouse. So when you have a choice—and sometimes you don’t, if your spouse won’t back down from an unreasonable position—try to take the compromise route. It will make your divorce less expensive, faster, and less painful for everyone.

Before jumping into the details of how custody works and how support is calculated, you need an understanding of the divorce process. This chapter explains how the process generally works and some of your options along the way.

Unmarried couples. If you and the other parent are unmarried, you won’t need to get a divorce, but you will need to establish your shared parental rights and get a court order related to parenting time and support payments. See “Parentage Actions for Unmarried Couples,” below.

The Big Issues: Child Custody and Support

You and the other parent will either need to work out the issues of custody and support or turn them over to a judge to decide. Working them out yourselves will yield huge benefits, both emotionally and financially.

 

Here’s a brief overview of the questions you’ll be looking at. As you review this information, don’t forget that all of the issues in your divorce can be resolved without going to court if you and your spouse can reach an agreement.

Custody

There are two kinds of custody: physical and legal. Physical custody is the right to have a child live with you; legal custody is the right to make decisions about the child’s welfare and education. It’s common for divorced parents to share one or both kinds of custody. For example, a parent can have sole physical custody, with the other parent spending time with the children according to a parenting plan, and both parents can still share legal custody, making decisions together about things like where the kids go to school. It’s also possible for one parent to have both sole physical and legal custody, or for the parents to share both.

One of the first things you and the other parent need to do is come up with a temporary agreement about how to share time with your kids while the divorce proceeds. (There’s more about this in Chapter 4.) Do it as quickly as you can, to ease your children’s insecurity. If you can’t agree to a temporary schedule, you’ll end up in court right away—an expensive and uncertain way to begin your divorce. Chapter 2 describes custody issues in detail.

Child Support

Chances are that one spouse will pay child support to the other. When the children spend more time with one parent than the other, or if one parent earns more money, the court will award child support to make sure that the kids are taken care of. Every state has its own guidelines for child support, and while you and the other parent can make agreements about child support that differ from the guidelines, you will have to explain your decision to the court and provide assurance that the kids will be adequately supported. Details about support are in Chapters 3 and 4.

 

Other Divorce Issues: Property and Alimony

Property. If you and your spouse can agree on how to divide your property, the court will simply approve your agreement. If you can’t agree, the court will divide things for you. How property is divided depends to some extent on whether you live in a community property state or an equitable distribution state, but the basic rules are these:

Your “marital property” is everything you and your spouse have acquired during your marriage, including money, real estate, investments, pension plans, and so on. Marital debts are obligations you took on together during your married life. You must divide both the property and the debts between you.

Assets or debts that either of you had before your marriage, or that you acquired after the permanent separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, but in some states separate property can be divided at divorce.

Alimony. In some divorces, courts award spousal support, also called alimony or maintenance, to one spouse. The longer a couple has been married, the more likely it is that some support will be ordered, especially if one spouse gave up career plans to support the other or care for kids.

For more about property, debts, and alimony, see Nolo’s Essential Guide to Divorce, by Emily Doskow, and Divorce & Money, by Violet Woodhouse with Dale Fetherling, both published by Nolo.

 

 

When You Separate

A separation is not a divorce—it’s just living apart from your spouse. You’re still legally married until you get a judgment of divorce from a court. However, a separation does affect your legal and financial responsibilities toward your spouse. And if you live in a state where courts consider the issue of fault (see “Must You Prove Your Spouse Is at Fault?” below), then initiating a separation might be used against you later.

There are three kinds of separation.

Types of Separation

Trial

Living apart to decide whether to divorce. May or may not affect property rights, depending on length of separation and activities during separation.

Permanent

Living apart permanently, with or without the intention to divorce. Property and income acquired, and debts incurred, after separation date belong to the spouse who acquires them.

Legal

Legal status different from being married or being divorced; includes distribution of property; spouses are not free to marry again.

 

Trial Separation

If your relationship is in trouble and you and your spouse aren’t sure you’re going to stay together, you may choose to live apart while you decide.
A trial separation is really any period of time that you’re living apart from your spouse without having decided how you’re going to move forward.

This kind of separation doesn’t change anything in terms of property ownership or the obligation to care for your children. For example, money you earn and things you buy are likely to still be considered jointly owned by you and your spouse, depending on your state’s rules about property ownership (in a community property state, everything is jointly owned; in other states, the rules vary). The same is true for debts either of you incur. You can make informal arrangements about caring for your children, or put together a written coparenting schedule and an agreement about support.

Even during a trial separation, it’s a good idea to write an informal agreement covering all of these issues. For example, you’ll need to decide:

how and when each of you will spend time with your kids

whether or not you will continue to share a joint bank account or credit cards

how you’ll budget your spending

which of you will stay in the family home

how expenses will be shared, and

whether you intend to continue to be bound by state laws on property and debt while you are separated—in other words, whether your state’s rules about ownership of marital and separate property will apply to you during the separation or whether your separation marks the end of your sharing property and being responsible for each other’s debts.

Two sample separation agreements are shown below.

If you’re not able to reach temporary agreements about these things pretty quickly, then you may need to make a clear decision one way or the other about whether you’re staying together or splitting up, instead of using a trial separation as a time to consider your options.

Sample Separation Agreement (Continuing to Share Income)

This agreement is between Danica Donaldson and Mark Markham. We have agreed to live separately while we decide whether to divorce or to reconcile. As long as we live separately, these are our agreements:

Mark will move out of our family home at 5500 Normandy Street. Danica will continue to live there with our children. Mark’s paycheck will continue to be deposited into our joint checking account at Community One Bank. Danica will continue to deposit any money she earns from part-time work into the joint checking account. Danica will pay the mortgage and other household bills and personal expenses for her and the kids with those funds, and will transfer $2,500 per month into a separate account for Mark to use for his rent and expenses. If there is a shortfall in the joint account, Danica will transfer any additional amounts needed to meet our expenses from our joint savings account at Community One Bank, and will notify Mark of the date and amount of the transfer. Mark won’t access this account without talking to Danica first.

Both of us can access information about our joint accounts online, and we agree not to change any passwords on our joint accounts.

During our separation, we’ll still be subject to marital property law, and anything we earn or acquire and any debts we take on, will be treated just as if we were still living together. If one of us files a petition for divorce in court, this paragraph will no longer apply.

Mark will come to the house every morning at 8:00 to pick up the children for school. Danica will pick them up from school or aftercare and bring them home every day. Mark will have parenting time with the children every other weekend from Friday after school until Monday dropoff at school, beginning the weekend after we sign this agreement. In addition, he will come over every Wednesday and the family will have dinner together.

 

Neither parent will pay any child support or alimony because we are still sharing our income and paying all expenses out of joint accounts.

Neither of us is waiving any rights to ask for a different parenting schedule or amount of child support should we decide to divorce. We agree to reconsider the terms of this agreement in three months.

Danica Donaldson

Danica Donaldson

Mark Markham

Mark Markham

Sample Separation Agreement (Separating Income)

This agreement is between Danica Donaldson and Mark Markham. We have agreed to live separately while we decide whether to divorce or to reconcile. As long as we live separately, these are our agreements:

Mark will move out of our family home at 5500 Normandy Street. Danica will continue to live there with our children. Both of us will open separate checking accounts and deposit our respective paychecks into those accounts. In addition, we will each take half of the funds in our joint savings account at Community One Bank to use for our own expenses, and then close the account. Mark will deposit $2,000 per month into our joint checking account at Community One Bank, and Danica will deposit $1,000 per month into the same account. Danica will pay the mortgage and other household bills with those funds. If there is a shortfall in the joint account, we will contribute additional money in the same two-thirds/one-third proportions to cover the shortfall.

Both of us can continue to access information about our joint accounts online, and we agree not to change any passwords on our joint accounts.

As of the date we sign this agreement, everything that each of us earns will belong entirely to that person, and any debt that either of us incurs will be the sole responsibility of that person. If we reconcile, we must agree in writing to resume sharing property according to marital law.

Mark will come to the house every morning at 8:00 to pick up the children for school. Danica will pick them up from school or aftercare and bring them home every day. Mark will have parenting time with the children every other weekend from Friday after school until Monday dropoff at school, beginning the weekend after we sign this agreement. In addition, he will come over every Wednesday and the family will have dinner together.

Neither parent will pay any child support or alimony as long as we are paying household expenses from the joint account.

Neither of us is waiving any rights to ask for a different parenting schedule or amount of child support should we decide to divorce. We agree to reconsider the terms of this agreement in three months.

Danica Donaldson

Danica Donaldson

Mark Markham

Mark Markham

Permanent Separation

A permanent separation is for people who live apart for an extended period of time without intending to reconcile but also without completing a legal divorce. A permanent separation means that you are no longer responsible for any debts that your spouse incurs. Similarly, you’re no longer entitled to any share of property or income that your spouse acquires or earns.
If you are very resistant to the idea of a divorce, you can use a permanent separation (or a legal separation, discussed below) to keep your legal life separate from your spouse’s without getting a divorce.

If you don’t go to court and get an order of legal separation, described below, you’ll have to write an agreement that covers your property division and child custody and support questions. You would separate all of your finances and most likely one parent would pay child support to the other. If you’re not able to agree on how you want to structure your separation, then you’ll need to get an order of legal separation, or move forward with a divorce.

Legal Separation

In most (but not all) states, you can go to family court and get a judgment of legal separation that ends your legal responsibilities to each other, but isn’t a final judgment of divorce—you are still married when you are legally separated. Because it’s not a divorce, a legal separation doesn’t allow you to get married again. The court’s order granting the legal separation does include orders about property division, alimony, and child custody and support, just as a divorce would. Why not just get a divorce, then? The reasons include religious beliefs, a desire to keep the family together legally for the sake of children, the need for one spouse to keep the health insurance benefits that would be lost with a divorce, or simple aversion to divorcing despite the desire to live separate lives.

 

The Law in Real Life

 

A North Carolina mother filed a petition for child support and custody before separating from her husband. She intended to end the couple’s marriage, and argued that it would be in her children’s best interests if the court would make a decision on temporary and permanent child custody and support, as well as postseparation support.

The first court to hear the case—called the trial court—dismissed her request because there was no divorce action pending. But when she appealed, the appellate court held that physical separation wasn’t necessary to allow a court to make decisions about child custody and support, and that public policy supported allowing the court to make such a decision. However, the court refused to grant alimony, because the alimony laws required “separation” before an award of support could be made.

 

Annulment

There are two kinds of annulment: civil and religious.

A civil annulment ordered by a court not only ends a marriage, it creates a legal fiction that the marriage never existed. A person whose marriage is annulled by a court is legally single, not divorced. In most states, civil annulments are granted for one of these reasons:

Fraud or misrepresentation. One spouse lied about something that was important to the other in getting married, like the ability to have children.

No consummation of the marriage. One spouse is physically unable or unwilling to have sexual intercourse, and the other didn’t know it when they got married.

Incest, bigamy, or underage party. Either the spouses are related by blood so that their marriage is illegal under the laws of the state where they married, one of them is married to someone else, or one of them is under the age of consent and didn’t receive a parent’s approval.

Unsound mind. One spouse (or both) was impaired by alcohol or drugs or didn’t have the mental capacity to understand what was happening at the wedding.

Force. One of the parties was forced into getting married.

Although most annulments take place very soon after the wedding, some couples seek an annulment after many years. In that case, the court considers all of the same issues as in a divorce, divides property, and makes decisions about support and custody. Children of a marriage that has been annulled are still “lawful” offspring of the marriage.

A religious annulment is usually sought by those who want to be remarried in a religious ceremony, commonly Roman Catholics who can’t remarry in the church without an annulment of a previous marriage. A civil annulment is still necessary, but it isn’t enough—a Catholic who wants to remarry in the church needs a religious annulment as well. After a religious annulment, the Catholic church still considers children of the marriage legitimate.

The Court Process

Although divorce procedures vary enormously between states and even between counties and courtrooms, there’s a general order of things that you can reasonably expect.

 

The Divorce Process

Starting the process

One spouse files the document that begins the divorce. In some places it’s called a petition; in others it’s a complaint or affidavit. It contains basic information about the marriage, children, and property and debts.

Notification of the other spouse

The person who filed the initial document must have it “served” on the other spouse, meaning it must be delivered to that person using a method approved by the court—either personally or by mail.

Temporary agreement or court hearing on temporary support or custody order

If spouses can’t agree on temporary agreements about finances and parenting, there is a court hearing on temporary support or child custody.

Exchange of information

Spouses must exchange financial information documenting their property and debts, and additional information that might affect property division, support, or custody.

Negotiation and settlement or trial

Spouses try to negotiate a settlement, either directly or with the help of lawyers or a mediator. The case will either be resolved through a settlement or proceed to a court trial or arbitration.

Judgment of divorce

If spouses come up with an agreement on property, custody, and support, they submit it to the judge for approval. If the judge approves it (which is what usually happens), they get a judgment that ends the marriage. If they can’t agree, there is a trial, and the judge decides and issues a judgment.

 

Residency Requirements—
Where Can You File for Divorce?

You don’t have to get divorced in the same state where you got married, but you do have to live in a state for a certain length of time before you can get divorced there. A few states have no specified requirement; some require only six weeks; some require a one-year residency, and many more use six months as the required period. Each state’s requirement is listed in the “Residency Requirements” chart in the appendix.

 

caution

Special issues for same-sex couples. Same-sex couples who married in states where it’s legal can have other residency problems if they don’t live in a marriage-equality state when they decide to divorce. See “Divorce for Same-Sex Couples,” below.

Waiting Periods

Most states have a waiting period before your divorce can be finalized. The date the nonfiling spouse is served with the initial petition is the date that starts the waiting period running. For example, California, New Hampshire, and many other states have a six-month waiting period, meaning that if you file papers and serve your spouse on May 1, you can get a final judgment entered on November 1. In other states the period is much shorter and in a few states it’s as long as a year.

For anyone who has a disputed custody case, the waiting period won’t be an issue—your divorce will take longer to complete than any waiting period in the country. You’ll probably be busy with hearings and negotiations for more than a year. If your divorce is less contentious, you may get all of your paperwork finished before the waiting period ends; in that case, you generally can submit your paperwork to the court and either get a judgment that shows a later date for the divorce to be finalized, or wait until the time passes and the court sends you the final judgment. If you have some issues to work out but don’t expect a major battle, you can expect your divorce to take anywhere from six to 18 months. There’s no average amount of time to complete a divorce—some uncontested divorces can be done in a matter of a few months, while very contentious cases drag on for years and years.

Must You Prove Your Spouse Is at Fault?

In the old days, someone who wanted a divorce had to show that the other spouse was the cause of the divorce—in other words, that it was the other person’s fault. Even when both people wanted to divorce, they had to decide which of them would take the legal blame, and pick some basis to use for why they were divorcing. Adultery was the most popular choice, but abuse, abandonment, extreme cruelty (inflicting unnecessary emotional or physical suffering on the other spouse), and the physical inability to engage in sexual intercourse that wasn’t disclosed before marriage also made the list—even if none of these things had actually happened.

Now, couples can get a “no-fault” divorce in every state. In a no-fault divorce, instead of proving that one spouse is to blame, you merely tell the court that you and your spouse have “irreconcilable differences” or that your relationship has suffered an “irremediable breakdown.” In some states, in order to get a no-fault divorce you must have lived apart for a specified period of time.

In many places, no-fault is the only option, but in some states you can choose either fault or no-fault grounds for divorce. You probably won’t want to choose a fault divorce if your divorce is uncontested. You might, however, choose a fault divorce if you don’t want to wait out the separation period, or if you anticipate a major fight over property or support.

Even if you choose no-fault, some states’ courts will still consider fault when dividing property and determining custody and support. So a spouse may accuse the other of misconduct and argue that it should affect support awards or who gets to have custody of the children.

 

Covenant Marriage and Divorce

If you entered into a “covenant marriage” in Arizona, Arkansas, or Louisiana, you must request a divorce on fault grounds—you may not use no-fault procedures. You’re required to get marital counseling before you can file for divorce, and the waiting period before your divorce is final may be longer than that for a noncovenant marriage. You’ll definitely need a lawyer’s help, especially if you and your spouse disagree about getting a divorce.

 

A table in the appendix (“Grounds for Divorce”) shows whether or not each state offers fault divorce. It also shows how long you must be separated before you can get a no-fault divorce.

Family Court

In every divorce case, a judge has to sign a final judgment—that’s the piece of paper that says you’re officially divorced. So even if you and your spouse agree about everything, the court still has to be involved in getting your divorce completed.

In most states, divorce cases are handled by a special court, called “family court,” “domestic relations court,” or “divorce court.” This doesn’t mean that the court is in a different place from courts that handle other civil (noncriminal) matters (though in some places it is), but just that certain judges deal only with family-related cases such as divorce, child custody and support, and sometimes, adoption.

Having a separate court for family cases means that the judges are knowledgeable and experienced. The court clerks and assistants tend to be knowledgeable as well, which will be especially important if you are representing yourself. Many family courts have self-help centers, where you can get some assistance with filling out your papers and making sure you get things filed and served properly. Many also have very useful websites, where you can find the forms you need as well as some instruction on how to proceed with your divorce. Find your county’s court website and you should be able to find the relevant information.

Starting Your Divorce

Your official court divorce begins when one spouse files a form called a “petition” or “complaint.” This form tells the court when you were married, when you separated, the names and birth dates of your children, the basics of your property and debts, and that you want a divorce. There will be a filing fee of between $100 and $400 to get the divorce started; when the other spouse files a “response” or “answer,” there will be another filing fee in the same amount. There’s more about filing and serving (delivering) papers in Chapter 6.

Kinds of Divorces

When it comes to divorce, you have a lot of choices to make. You will decide whether your divorce will be uncontested, contested, or default, and whether you’ll use mediation or collaboration, or go all the way to a trial. In addition, there are differences between state laws, like fault or no-fault.

No matter how you choose to make your way through it, divorce is expensive, emotionally challenging, and time-consuming. The most important variable is how well you and your spouse are able to put aside your anger and grief and cooperate on the big issues of money and children. The better you are at working together to make decisions for your changing family structure, the better it is for your financial bottom line—and for your chances of emerging from the divorce with a decent relationship with your ex and a parenting plan you can work with and that will work for your children.

However, some couples are simply not able to come to agreement, especially about parenting issues. This book will help you whether or not you and your spouse can work out a settlement or must turn these decisions over to a judge.

 

Kinds of Divorce at a Glance

Kind of Divorce

How It Works

Hassle and Expense

UNCONTESTED

Summary or Simplified

Spouses, who haven’t been married long and don’t have children or many assets or debts, file together

Relatively simple paperwork; lawyer usually not necessary; often only one filing fee

Default

One spouse files for divorce, the other doesn’t respond

Relatively simple paperwork; lawyer may or may not be necessary

Mediated

Trained mediator helps spouses work out settlement agreement without court fight

Less expensive than a contested divorce; can help spouses communicate

Collaborative

Each spouse hires lawyer, but agrees to settle out of court using negotiation and four-way meetings

Can take longer than mediation, but cheaper, nicer, and quicker than contested case

CONTESTED

Arbitrated

Spouses hire arbitrator or private judge to hear evidence and decide contested issues outside of court

Faster and slightly less expensive than trial; can be less combative than court trial and provides greater privacy; not allowed everywhere

Contested

Spouses hire lawyers and fight out issues, sometimes all the way to a court trial

Enormously expensive, stressful for everyone (especially children), guaranteed to ruin chances of civil relationship in future

 

Summary Divorce

In many states, an expedited divorce procedure, often called summary or simplified divorce, is available to couples who haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses need to agree to the divorce, and they must file court papers jointly. Summary divorces are easy to do yourself, without the help of a lawyer.

Default Divorce

A default divorce is a way to end your marriage when you don’t know where your spouse is (after making a serious effort to find out) or when your spouse won’t or can’t participate in the process. One spouse files divorce papers and then, when the other doesn’t respond within a certain period of time, asks the judge to grant the divorce. In some states, you can also agree, at the time you file for divorce, to submit to a default judgment, which usually has the advantage of avoiding a second filing fee.

Uncontested Divorce

An uncontested divorce is the best option from both financial and emotional perspectives. There’s no question that it’s best from your kids’ point of view, because it protects them from having to deal with parents who are in serious conflict. In an uncontested case, you and your spouse work together, possibly with the help of some third parties, like mediators or therapists, to agree on the terms of a divorce and parenting plan. Once you’ve done that, you file court papers that you both agree on to make the divorce happen.

Uncontested divorces don’t involve any kind of formal trial, and in many places you’re not even required to go to court. Instead, you file court forms and, possibly, a “marital settlement agreement” that details your agreements about how you want to divide your property and debts, what your custody arrangements for your children will be, and whether support payments will change hands. Your settlement, and your final divorce, will have to be approved by a judge. The judge will usually approve a settlement agreement unless it’s clear that the terms are completely unfair to one person or were arranged when one person was under duress.

 

An uncontested divorce is the least expensive way to go, but it will still take a bite out of your wallet. If you decide to go it alone, without a lawyer, you’ll need to gather information, and some of it—like books that will help you—can cost money. There will be court filing fees as well, and those are getting more and more expensive. (In some places they’re up to $400 and climbing, though other courts still charge only $100 or so.) And it’s entirely possible that you might decide to hire a lawyer for some help or coaching, as well as other professionals like accountants or real estate experts. Many couples use a counselor or a mediator to help them come to agreement on property and custody issues. If you or your spouse has retirement benefits through work, you might need to hire an actuary to value them or a lawyer to prepare the special court order you’ll need to divide them.

Even if you do get help from some or all of these professionals, your uncontested divorce should cost less than $5,000. And if you move along efficiently and cooperatively, you should be able to finalize your divorce as soon as your state’s waiting period (discussed above) is over.

You can also get help with an uncontested divorce from a legal document preparer, paralegal, or legal typist (different names for the same job), who can help you prepare the court forms for a divorce. A legal document preparer is not a lawyer and isn’t allowed to give legal advice, but can direct you to websites, books, and other resources that can help, and then make sure the forms are properly filled out so that your court process goes smoothly. Make sure your legal document preparer is registered with your state’s agency that oversees the profession.

You can also complete an uncontested divorce using online services. You submit answers to a questionnaire tailored to your state, and then the online service prepares your paperwork and sends it to you with instructions for service and filing. Some online divorce services are www.legalzoom.com, www.ourdivorceagreement.com, www.completecase.com, www.divorcetoday.com, www.divorcesource.com, and www.onlinedivorce.com. This approach isn’t recommended if you have a pension, 403(b), or other retirement plan that requires a special order to divide, or if you have any other complications in your divorce.

Mediated Divorce

In divorce mediation, you and your spouse work with a neutral third party, called a mediator, to try to resolve all of the issues in your divorce. The mediator doesn’t make any decisions; that’s up to you and your spouse. Instead, the mediator helps you communicate with each other until you can come to an agreement.

Mediation is much less expensive than going to trial. Even more important is the fact that mediation can help to preserve and even improve your relationship with your spouse, which benefits both of you as well as your children. Mediation is discussed in detail in Chapter 5.

Collaborative Divorce

Collaborative divorce involves a lawyer for each spouse, but the divorcing couple and the lawyers, who have special training, agree to try to settle your case cooperatively. The process can be much faster and less expensive than going to trial—and much more conducive to a civil relationship between you and your ex after the divorce. There’s a complete discussion of collaborative divorce in Chapter 5.

Contested Divorce

A contested divorce is one in which the spouses can’t agree about property, custody, or support, and instead take these issues to a judge (or an arbitrator or private judge) to decide after a trial. The trial might be short, but the entire process is long—and far from pleasant. It can take years, and it will take a huge emotional toll on you, your spouse, and certainly your kids, and also cost you financially. A contested divorce, even one that ends in a settlement rather than a trial, can cost each spouse tens of thousands of dollars.

 

Parentage Actions for Unmarried Couples

Unmarried parents face the same custody and child support questions as married parents (with the exception of some unmarried same-sex parents; see “Divorce for Same-Sex Couples,” below). However, unmarried parents don’t use the divorce process to establish orders for custody and support. In fact, because they are not required to use the courts to change their legal status, some unmarried parents who agree on issues of child custody and support don’t use the courts at all when they end a relationship. Instead, they make a verbal or written agreement about how they’re going to continue parenting together, and follow that agreement (or modifications of it).

As long as things continue to work out between those parents—in other words, as long as they don’t have any disagreements about custody, parenting time, or child support—everything will go smoothly. But just as is true with married parents who disagree about custody, parenting time, or support payments, the absence of a court order may come back to haunt them. It’s better to submit agreements to the court and get a judge’s order confirming them. Unmarried couples do this through a parentage action rather than a divorce. Every state has laws governing parentage that allow a parent to establish parental rights in court. Most of these cases involve fathers and are called paternity actions, because maternity is rarely in question, but sometimes it does come up in surrogacy cases or cases involving same-sex parents.

Many unmarried parents establish a child’s paternity at birth using a voluntary declaration form. That form has the force of law, and a parent who has signed it can establish paternity by filing a court petition and attaching the form. A parent without a voluntary declaration will file the same court petition and assert paternity; if the other parent agrees, the court will be able to enter custody, visitation, and support orders. If the other parent disputes paternity, a father seeking parental rights can ask the court to order a paternity test—probably with the help of an attorney.

 

Once parentage is established, unmarried parents will use the court system the same way married parents do—they can ask the court to enter orders based on agreements they’ve made, so that that the orders are enforceable, and they can also ask the court to make decisions for them when they’re unable to agree on custody or child support.

Divorce for Same-Sex Couples

On June 26, 2015, the United States Supreme Court issued its landmark opinion in Obergefell v. Hodges, holding that there is a constitutional right to marry a person of the same sex, and all states must allow such marriages to take place.

Marriage Equality and Divorce

Obergefell changes the legal landscape for same-sex couples everywhere. The right to marry brings with it the right to divorce, and couples who were previously “wedlocked” in states that did not recognize or allow same-sex marriage will now be able to end their legal relationships without having to move to another state and establish residency there. All states must now allow joint tax filing, the right to inherit without a will, and all of the other state and federal rights that come with a legal marriage.

In some states, like California, it’s still possible to enter into a domestic partnership. In general these marriage-equivalent relationships provide most of the same rights as marriage on the state level but do not qualify couples for federal benefits such as joint tax filing and Social Security benefits. In some of the states that offer marriage-equivalent relationships, the arrival of marriage equality automatically converts the domestic partnership to a marriage, but in others that is not the case, so if you are unsure of your status, check with a knowledgeable attorney right away.

Whether you have a marriage or a marriage-equivalent domestic partnership or civil union, you must get a legal divorce to end the marriage or equivalent relationship.

Same-Sex Parenting and the Courts

Because married same-sex parents, and those in domestic partnerships and civil unions, have access to the courts to end their relationships, they can also operate just as opposite-sex couples do when it comes to custody and child support decisions. In other words, they can ask the court to affirm their agreements in a court order or make decisions when they’re not able to agree.

However, there are two situations in which same-sex parents need to find attorneys with experience in this specialized area. The first is when one partner is challenging the validity of the marriage, domestic partnership, or civil union. The other is when one partner—or someone else—is challenging the other partner’s status as a parent. Even with the arrival of full marriage equality, there is still not full parentage equality. Every state presumes that a child born into a marriage is the child of both spouses, but—and this is a big but—in many states the marital presumption can be reversed if it can be proven that the non-birth parent is not genetically related to the child. In other words, a non-biological parent’s rights are not secure without completing an adoption or other parentage action—and if not secure, could potentially be challenged by the biological parent in a divorce action. If you find yourself in that situation, hire an experienced, knowledgeable lawyer right away.

 

resource

To find a local attorney with expertise in LGBT matters, contact a legal organization like the National Center for Lesbian Rights (www.nclrights.org) or Lambda Legal (www.lambdalegal.org).

 

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