Category Archives: Family Law

Here are some of the most frequently asked questions regarding divorce. In basic terms, a divorce is an action sanctioned by law that ends the marital relationship between two parties. Sometimes known as a dissolution, it legally brings a marriage to a conclusion before either spouse dies.

According to Justia, “A divorce is a legal decree that ends a marriage before the death of either spouse. During a divorce proceeding, a court may resolve issues of child custody, division of assets, and spousal support or alimony. After a divorce becomes final, the parties are no longer legally bound to one another, and are free to remarry or enter into a domestic partnership with another person.”

Uncontested Divorces

This is the best choice if both parties are agreeable. The parties work alongside each other regarding the terms and file the appropriate court papers to solemnize the divorce proceeding. Most likely you will not be required to attend court and there will be no trial, no judge, no waste of time or money.

Contested Divorces

When an agreement cannot be reached because of there being too many disputed matters, a judge makes the final call when you proffer the issues to him or her in court. Information will be exchanged, and settlements will be negotiated. If no resolution can be reached, it will go to a court trial and it will be essential to speak with a lawyer to help you advance your case.  Get ready to spend money.

Collaborative Divorces

In these cases, both parties each hire legal representation and they work in active and mutual cooperation to try to settle the outstanding issues. Each party agrees to the 100% disclosure of information for negotiations and meets with one another with the purpose of obtaining agreeable terms.  Most collaborations can conclude within three to four group meetings.  If this fails, both parties will agree to use different legal representation if you go to trial to resolve your case.

No Fault Divorces

This is often known as divorce because of “irreconcilable differences.” – The genesis of this was the thought one of the parties may vacate the marriage and can do so independently of the other party.  Put another way, if one party wants a divorce, you cannot force them to remain married.

Default Divorces

When one party fails to respond to the divorce petition, the court may grant a divorce by default. For example, when one party cannot be located and takes no part in the legal proceedings eventual a default decree can be entered against the non-participating party.

Legal Separation

Overwhelmingly similar to a divorce, papers are filed with the court and a court will make outstanding decisions for both parties and allocate all assets and liabilities. When this has been completed, both parties are still married but separated from a legal standpoint, therefore abrogating responsibility for one another.  Many couples choose this option to maintain healthcare insurance for the other party post-separation.  At any time during a legal separation, either party can ‘convert’ the case to a marital dissolution.

Purpose And Process

So, a marriage can be ended, the parties and the court have to handle property division, issues of child custody, child support, alimony as well as the splitting of assets and debts. It is the presumption of state laws that each party is responsible for fifty percent of everything including debts. Property that is non-marital and meant for just one person will not be split during the divorce.

Marital Property

Unless otherwise shown all property acquired during marriage is considered to be marital community property – even if held in just the name of one party. Property brought into the marriage relationship is considered the same dependent on the duration of the marriage and the kind of property it may be. In certain circumstances, the court may attribute it to one party or the other. Courts have the aim of being fair to both sides and each party has the responsibility of fully disclosing all the relevant information so the court can make that determination to allocate the marital estate.

Spousal Support

Alimony, also known as spousal support may be ordered by the court in circumstances where the health and age of the parties as well as the marriage duration and living standards come into question. This is separate from child support. Spousal maintenance may last for only a few years or for a period with no end date. Should circumstances change for either party it may be further reviewed, or be terminated by the court.

The Attorney

Although a party may always represent themselves, if there are outstanding issues regarding a child, children, property, debts, assets, or alimony, it is incredibly wise to have the assistance of an attorney. Keep in mind an attorney can only represent one of the parties involved in the divorce or legal separation.

Source: Emily Doskow, Attorney. “The Different Kinds of Divorce.” Www.divorcenet.com, Nolo, 7 Apr. 2013, www.divorcenet.com/resources/divorce/the-different-kinds-divorce.htm.

With the exception of when a restraining order is in play that orders a person to stay away from their property, child, children, or spouse, anyone can legally keep living in their house that they either own on their own or co-own with their spouse. Read on to learn more.

People have different comfort levels and obviously many will choose to leave to prevent further marital problems. But if you are on the title or lease to the property, you have the right to stay there from a legal standpoint as long as there is no evidence of harassment, domestic violence, or criminal activity.

Moving Out Can Be A Mistake

When a man moves out, he may have just opened himself up to problems especially if papers are yet to be filed – this is, even more, the case when the man has a child or children. It is vital not to leave on a voluntary basis as that can sometimes be seen as abandonment – even if you think your reasons are justifiable. It may be suggested it is a good idea to leave to reduce the amount of stress to a child or children by your spouse. They may also promise ample parenting time but none of this can be guaranteed and if you are on the mortgage or lease, you have a right to stay at your home.

Even with a protective order in play, there is far more potential for conflict by removing yourself from the home as well as the breakdown of family routine than can impact a child or children.

When you leave the home on a voluntary basis it can send the message to the court that daily interactions with your child or children are not a high priority for you. However, it looks particularly good when you can show the court how much you are involved in the lives of your child or children and how that is the main priority by staying and having the other parent leave.

When you leave the home that may carry over into court orders while the divorce case is getting underway and may work against you if the present arrangement works when shown to the court. This may result in you paying far more in child support and having limited access to your child or children.  Put simply, stay put, until your lawyer says otherwise.

Comfort And Safety

If you are at risk of domestic violence in the home, leaving maybe the safest thing to do and that may include taking a child or children with you. But a temporary custody order must be obtained from a court as soon as possible, so kidnapping accusations cannot be leveled against you. In situations where there is no violence, it is still of primary importance that child custody be foremost. It may be necessary for a court to approve parenting time when a parent moves out. As soon as this can be done the better it will be for your future parenting prospects.

Custody Of A Child Or Children

In instances where a child or children has remained in the family home, it increases the chances the Judge will maintain that position to prevent disruption. This can be avoided with a parenting agreement written by the parents before one of them leaves, the establishment of a schedule for parenting, and the agreement that no parent is giving up their rights.  The parenting agreement however must then be submitted to the Court for the judge’s signature to be binding and enforceable.

My Spouse Wants A Divorce Should I Move Out?

When possible stay in the marital home, in the long run it increases your likelihood of the best possible outcome. If you can find a way to coexist it really is for the best. Move to a new room, avoid un-needed interactions, and keep being part of the lives of your child or children.  Do not bring new romantic partners to the home, this confuses the children and causes your current spouse to likely escalate the litigation.

Source: Cordell, Joseph E. “The #1 Divorce Mistake Men Make.” HuffPost, HuffPost, 19 Aug. 2014, www.huffpost.com/entry/moving-out-after-divorce_b_5510895.

In every lawsuit, a person has to be notified when a legal action has commenced against them – be it taking an issue to court, or if they are being sued. Copies of pertinent official legally binding documents are filed with the courts in the correct manner. This is known as “service of process.”

The plaintiff (who starts the action) has to demonstrate evidence to the court that the defendant has been timely served the underlying legal documents by completing and filing a Proof of Service form. Read on to learn more.

Proof Of Service Definition

This is an official affidavit, that must be signed under oath and then filed with the courts by a person following the successful service and personal delivery of legal documentations to another party.

The reason for having a Proof of Service is to ensure legal proceedings run smoothly, with notice to all parties to assure due process, and according to the established protocol. It gives both parties the opportunity to prepare and defend the case. Sometimes you will hear a Proof of Service referred to as “Affidavit of Service.” It always has to be completed and filed with the court within specific chronological parameters for it to be valid.

The Proof Of Service Form

Although they can vary from place to place as well as in some cases for varying actions being taken – each Proof of Service incorporates the following details:

• The official name of the court where the documentation has been filed.
• The case number and name.
• The name of the defendants.
• A manifest of documents timely and physically served.
• The time and date of the serving of the documents.
• The method of service.
• The place where the documentation was served.
• Clarifying if the documents were served in person, by drop service or by mail.

The person responsible for serving the documentation must put their signature of an affidavit, under penalty of perjury, that the documents were served in the method and manner started in the Proof of Service form. This can be written or typed as long as it contains the pertinent information and a valid signature from a licensed process server.

Usually there are check boxes you can mark off so the documentation can be easily identified. Categories may include summons, complaint, alternative dispute resolution package, the cover sheet for the civil case, the cross-complaint and other.

The serving of legal documents must be completed by a non-party to the case and is normally performed by a county Sheriff, Constable or Marshall, a licensed process server greater than eighteen years of age.

Service Methods

Although laws can differ depending on your location. In all cases the documentation must be personally served – this equals the server handing the papers to the party wherever the defendant may be located. It may be at the workplace of the person, their home, a store, a restaurant or on the sidewalk or street. The person responsible for the serving of the papers must ensure they have verified the identity of the individual they are serving the documentation too and to let them know these are court documents.

However, the defendant does not have to accept the documents. They can be left at their feet or even at the front door. Should the individual being served destroy the documents – they still count as being served. The proof required must include, the time, date, and location where the documentation was handed to the party they are intended for.

Service By Mail Delivery

Further documentation can be served via mail. The documentation must be contained in an envelope that is securely fastened and has the address of the party on the envelope that matched the address the court has, or the address where the party has asked for documentation to be delivered. This may be an office used by the attorney of the person being served. The cost of mailing must be covered in full. It is also vital to note the date of the mailing as in many areas it takes five days before they are considered to be served.

Substituted Service

When delivery has not succeeded, some courts allow a form of substitute service. There are very certain rules that must be followed regarding previous delivery attempts and they must be documented. For example:

• One must demonstrate at least three prior attempts at delivery.
• Personal service tried at the home of the recipient on multiple days of the week and at times of the day that differ.
• If their place of employment is known, attempting to serve them there has met with a lack of success.

In these circumstances, so long as you have court approval to do so, the papers may be left with an individual who resides in the same home as long as they are greater than eighteen years of age. Or a person of authority, also over the age of eighteen at the place of employment of the recipient. The server has a duty to inform the person where and with who the documents have been left and that they are legal documentation for the party. The server has an additional obligation to mail a copy of the documentation to the address where the documents were dropped off.

Source: Team, by: Content. “Proof of Service – Definition, Examples, Processes.” Legal Dictionary, 19 Aug. 2015, legaldictionary.net/proof-of-service/.