If you and your husband can come to an agreement on child custody and support, division of the assets and debts, and any potential spousal support, getting an uncontested divorce is an option. Discover the benefits.
Read More –>
One of the hardest parts of divorce is separating one family into two households. What’s difficult is digesting the fact that you’re not going to be able to see your children all the time. I don’t think couples can ever really imagine what that is like until it becomes their reality.
I was the mom that ran the show.
I handled the day to day caretaking while dad was running a family business full-time. But during my separation that all ended abruptly. Instantly, I was mom only 50% of the time. I never really processed what that was going to be like— having to let go of the mom I used to be.
I’ll never forget the painful transitionary period, from the date of separation to the time my eyes finally filled with life again. I call this time divorce purgatory. It’s a place of limbo. So much confusion was swirling around inside of me. My body had no idea which way was up and which way was down. It felt as if I was waiting, wondering, trying to figure out who I was without the label of being someone’s wife. The awkward feeling of trying to define who I am without him, and letting go of being the kind of mom I once was accustomed to being.
During this transitional phase of divorce purgatory, I could honestly say it was not my finest moment in time.
How could it have been?
It was a time of great suffering, mourning the death of a family unit that was my everything. In the eyes of those closest to us, we were the picture of perfection. Because I was the one that wanted out of the marriage, I was left with having to defend and prove myself worthy, as a woman and as a mother.
When you are unsupported by those around you, something inside you awakens. A moment of clarity washed over me in a fleeting instant. At the time I didn’t realize that it was an opportunity to grow into the powerful woman I was created to be. I wasn’t ready to see that just yet. At that moment what I felt at the depths of my soul was an aloneness in a world that didn’t feel safe anymore.
How could I feel safe when those closest to me whispered… “Nobody knows you anymore, Marisa?”
How could they know who I was? I didn’t even know who I was.
I was raised to believe I needed to be what everyone else needed me to be. I was told that my husband and children come first, which meant my needs had to be last on the list. I was never allowed to discover who that was because I was conditioned to believe the world was only safe when I met the expectations of those around me. So, I shrunk myself and silenced my spirit in order to be the good girl.
I severed generational chains, broke the mold, and left the “good girl” behind.
But those whispers were haunting. They are words that to this day I have never forgotten, “Nobody knows who you are anymore, Marisa.” I owed it to myself and my children to find out. I was done believing that I had to “sacrifice” who I was in order to be the perfect mother. It occurred to me that this is what generations of women had to do in my family, sacrifice and go without in order to keep their family together.
This was not the legacy that I want to leave my children, that they had to go without—without their own passions, without their own voice, without their own dreams and desires, in order to be loved and accepted. I knew that breaking generational chains were going to require courage, strength, and trust.
It was not going to be easy, to do what many women before me didn’t have the courage to do, but this is the kind of mother I wanted to be. The kind of mom that stands in her truth, without fear of being judged or criticized.
Growth can be scary, and it’s uncomfortable, which is why most people choose to stay silent. I couldn’t do it anymore. I was drowning in my own silence, fearful that there would be nothing left of me to give my children. My children now have a mother who has let go of the mom she used to be in order to become a mom who stands in her truth. There’s nothing more powerful than that.
Whether you are contemplating divorce or you are wanting help to heal through your divorce, I would love to be there for you. My own divorce was messy and there were days I didn’t think I would ever be able to get through it, but I did, and so can you.
Click on the link to get a complimentary 45-min session with me! I would love to know your story mailchi.mp/34385f68f47f/wk73dswc3s
And if you want to know more about my journey please visit my website marisalupocoaching.com/
The post Letting Go Of The Mom I Used To Be appeared first on Divorced Moms.
Getting a divorce can be a taxing and tenuous task for all parties involved but can be even more so when your child is involved. When the couple split up in a divorce with a child, the issue of child custody comes up.
Child custody cases resolve who will take care, custody, and control of the child. This can be assigned to one or both parents. A parent with custody of a child takes care of their upbringing, education, place of living, and even scheduling time with the other parent if necessary.
However, no matter how your divorce case plays out, there are many mistakes you can make that can affect your custody case over your child. If you are dealing with a divorce or custody case and need a divorce lawyer, contact us at Simonetti & Associates to help represent you.
When in a custody case, you would want to do everything you can to achieve a favorable outcome. However, there are some mistakes that you can make that will sabotage your chances of a good outcome from your child custody case.
If you are looking for quality representation to help you in your custody case, finding the right divorce lawyer can make or break your case. Some critical mistakes made in custody cases include:
Why a Divorce Lawyer Can Help
Divorce cases can become complicated and emotional and can be very taxing on your day to day life while in one. But to get favorable custody, you should try to be calm, reasonable, and responsible. Working to assure the best possible future for your child is the goal of custody court, and should be yours as well.
A divorce is never an easy circumstance to face in life. Not only are you parting ways with someone who you once loved deeply, but you must face an assortment of issues that go along with divorce, such as custody battles.
During this deeply stressful time, it can be difficult to make important decisions with a clear head. That is why the help of a divorce lawyer is critical in helping you win your case and facilitate all important matters regarding your divorce. Take the time to find the best representation for your case so that you can walk away knowing that you did everything you could to reach a proper settlement.
The post 5 Common Mistakes Made In Child Custody Cases appeared first on Divorced Moms.
Do you find yourself having difficulty letting go and relaxing about what your children do while they are with their other parent? Focusing too much on your children’s time or activities at your ex’s house can potentially damage your relationship with them and undermine their connection with both parents. When a parent communicates anxiety and becomes too vigilant about custody exchanges (or parenting time) they may be taking on the role of a gatekeeper.
According to child custody expert Robert Beilin, P.h.D., a gatekeeper is a term often used in a negative way to describe how parents (usually a mother) attempts to control their children’s time with the other parent. Since traditionally mothers tend to be gatekeepers, this article will focus on mothers but the term could apply to fathers as well.
According to author Kerri Kettle, the term “gatekeeper” is generally brought up in child custody cases. Kettle, an attorney, advises mothers to beware of being a gatekeeper and to avoid adversarial interactions with their ex. After all, it could lead to additional legal costs and have a negative impact on children. She writes, “If you think you might be acting a little like a gatekeeper, try saying “yes” more often than saying “no” for a while. Start with something small, like giving up a few hours of your custodial time for a special occasion or simply not asking questions about what happened at their dad’s house.” She also advises parents that they will save legal fees by being a cooperative co-parent.
Let’s face it, it’s easy to see how a parent could slip into the gatekeeper role. After my divorce, I had trouble adjusting to our co-parenting schedule and I found myself overly concerned about what my children did when they were with their father and the amount of time they spent with him. It took several years for me to realize that this was my way of trying to gain control over the situation. While I never did anything consciously to sabotage my children’s relationship with their dad, my questions, and concerns about their activities with him didn’t demonstrate confidence in our parenting plan.
Further, children have a way of sensing tension and worry and so a mother’s fear or concerns about time spent away from her may be a red flag that heightens their anxiety. Without awareness, a parent could be bringing undue stress on your children without intending to. My research shows that the two variables that had the most negative impact on children of divorce into adulthood were limiting their access to both parents and experiencing high conflict between their parents post-divorce.
A crucial aspect of healing after divorce is realizing that you can’t control what goes on with your ex and so need to respect the decisions that he makes regarding his time with your children. You can’t change him and are wise to let go of unrealistic expectations. For instance, you might not approve of him taking your eight-year-old to a movie rated PG 13 – but in the end, it’s not going to make or break their emotional development. So it wouldn’t hurt to simply let it slide sometimes.
On the other hand, if you have legitimate concerns about activities that your kids participate in with their father, it’s a good idea to send him a friendly, business-like e-mail expressing your concerns. Divorce expert Rosalind Seddacca CCT writes, “If you’re intent on creating a child-centered divorce that strives for harmony between you and your ex, you need to initiate the conversation and model win-win solutions. If your ex doesn’t want to cooperate, that’s when your patience will certainly be tested. Look for opportunities to clarify why working together as co-parents as often as possible will create far better outcomes for your children.”
Eileen Coen, an attorney, and trained mediator states that one reason mothers tend to be gatekeepers is that trust is often lost in a marriage. Other reasons cited by Coen are economic and a lack of confidence in their ex’s parenting skills. However, she cautions us that on-going conflict between parents is the primary reason why mothers are gatekeepers – making it virtually impossible to have adequate, healthy parenting time with their children.
Studies show that kids benefit from access to both parents. There is evidence that cooperative co-parenting actually reduces conflict between divorced parents – which has a beneficial impact on children into adulthood. Scheduling appropriate parenting time for both parent’s post-divorce and keeping lines of communication positive can be a challenge but it’s paramount to building resiliency in your children. When a parent takes on the role of gatekeeper, they communicate discomfort and anxiety to their children and diminish their sense of belongingness with both parents.
Joan Kelly, a renowned researcher who has conducted decades-long studies on divorce, found that the more involved fathers are post-split, the better off the outcomes for children. Children benefit from strong relationships with both parents post-divorce. According to Linda Nielsen, author of Between Fathers and Daughters, the child’s relationship with their father is often the one that changes the most after marital dissolution. Sadly, Dr. Nielsen notes that only 15% of fathers and daughters enjoy the benefits of shared parenting.
There are many compelling reasons why mothers are wise to encourage their children to have strong bonds with their father post-divorce. Studies show that these reasons include: Better grades and social skills, healthy emotional development, higher self-esteem, and fewer trust issues. Lowered self-esteem and trust wounds are especially a concern for girls who may be more vulnerable to the breakup of the family home because they are socialized to be nurturers and caretakers. Your kids may also have better access to extended family members and therefore intergenerational support if they spend close to equal time with both parents.
1. Your children will gain trust in both parents and feel more confident about their relationships with both of you.
2. You will build trust in your ex’s ability to effectively parent your children.
3. There’s a possibility you’ll have the added benefit of more leisure time – when you can relax and worry less about your children’s well-being.
4. You’ll create a new story for your life built on reclaiming your personal power rather than letting your divorce define who you are or the choices you make.
Focusing your energy on what’s going on in your home and encouraging your children to have a healthy connection with their father will pay off in the long run. Another important reason to avoid being a gatekeeper is to respect your child’s and ex-spouse’s boundaries. When your children are with your ex, honor their time together and try not to plan activities or partake in excessive communication with the other parent (phone, text, etc.). Since parental conflict is a factor that contributes greatly to negative outcomes for children after divorce, keeping disagreements to a minimum is a key aspect of helping your child become resilient. You owe it to yourself and your children to avoid playing the role of a gatekeeper.
More From Terry:
Follow Terry Gaspard on Twitter, Facebook, and movingpastdivorce.com
The post 4 Reasons To Avoid Being a Gatekeeper Mom Trap During Divorce appeared first on Divorced Moms.
If you are going through a divorce, a primary concern is often your children and your child custody arrangements. It’s difficult for any parent to contemplate not having their children living with them all of the time, but it can be even more difficult for mothers who have a close bond with their children.
If you and your husband cannot come to custody terms that you both can sign off on, the court will need to decide the matter for you. While many people think that mothers have a natural advantage in such disputes, the truth is far more complicated. Understanding the basics related to child custody can help you navigate the process while standing up for your own parental rights.
Legal Custody
Custody is divided into two major concerns that include physical custody (related to with whom the children reside at any given time) and legal custody. It’s important to recognize that in the vast majority of divorces, both parents share legal custody, which refers to a parent’s rights to make important decisions on behalf of their children. These decisions include:
These are fundamental issues that shape your children’s lives, and it’s very likely that you and your divorced spouse will continue to make these important decisions together, although one parent is sometimes given tie-breaking authority.
Physical Custody
Physical custody relates to with whom your children reside primarily and to their visitation schedule with the other parent. While many people believe that mothers have an advantage when it comes to physical custody, this really isn’t an accurate assessment in many cases.
The Court’s Stance
If you and your divorcing spouse cannot come to mutually acceptable terms regarding your children’s custody arrangements, the court will intervene and make a determination of how you will split custody rights.
The court will always favor what is in the best interest of your children, but this is obviously open to interpretation, and it’s important to remember that the court has considerable discretion in the matter. You obviously know your children in a way that the judge never can, and you know what’s best for them.
Courts often favor the status quo when making child custody decisions. In other words, if the mother has been the primary caregiver and she and the children are living in the family home while the case is pending, the judge may be hesitant to upset the balance and may be more inclined to award the mother primary custody.
This is generally more a function of how things are commonly arranged than it is a function of favoring the mother or of the mother having an advantage in the matter.
The Considerations at Hand
In determining child custody arrangements, the court is guided by the children’s best interests, but in the process, it takes a wide range of variables into consideration, including:
None of these issues are gender-specific and, as such, the court’s decision cannot favor the mother. Many mothers, however, are already providing primary custodial care, and courts are not fond of dramatically disrupting children’s lives when they’re already going through the emotional challenge of divorce. After all, divorce is hard on everyone, but children are especially vulnerable.
Your Children’s Voices
Many parents wonder if their children’s preferences will guide – or should guide – the court’s custody decisions. The fact is that many judges will speak to your children privately (especially older children) and will take their preferences into careful consideration, but the decision is simply not up to your children.
The court is making determinations related to your children’s custody exactly because they are children who need custodial care. When your children are adults, they’ll make their own important decisions, but for now, those decisions must be made for them. Your children’s voices, nevertheless, may help guide the court’s ruling.
Reaching a Resolution
If you’re going through a divorce, emotions are inevitably running high. The stress and heartache of divorce leave many couples unable to reach mutually agreeable terms on many important issues. Both of you, however, naturally put your children first, and if you can find a way to hammer out custody arrangements that you can both live with, the court and its considerable discretion won’t need to be involved in the process.
Reaching a compromise with your children’s father can come in many forms. If you aren’t able to work together personally (which isn’t uncommon), your attorneys can attempt to negotiate an arrangement, and you can also address the issue via mediation – with the legal guidance of your respective divorce attorneys.
The post Do Mothers Have an Advantage in Custody Disputes? appeared first on Divorced Moms.
There are several concerns in divorce cases, depending on your circumstances. These can include child custody arrangements, child support, the division of your marital property, and spousal maintenance – also known as alimony.
While a spousal maintenance award is never a given and the issue doesn’t come into play in every case, there are divorces in which maintenance plays an important role.
Whether your husband can seek spousal support or not will depend on a variety of variables. Understanding the basics as they relate to spousal maintenance can help you make decisions that protect your rights throughout the divorce process.
Maintenance Awards
Spousal maintenance is generally predicated on financial disparity. If, for example, you are the primary breadwinner and your husband was the primary caregiver for your children throughout your marriage, he might be able to successfully seek alimony until he is able to begin working and supporting himself. There are, however, a number of considerations to take into account. Generally, the longer you were married and the greater the difference in earning ability and assets between the two of you, the greater the chance that your husband will be eligible to seek spousal support.
Will Your Husband Be Awarded Alimony?
Every divorce comes with its own highly specific financial circumstances, but the general rule is that if your husband lacks the means to provide for himself and is incapable of attaining appropriate employment right away, he might be awarded maintenance.
This means that if your spouse is unemployed or simply doesn’t earn enough, if his portion of the marital assets aren’t sufficient to make up the difference, and if he doesn’t have the education, skills, or experience to obtain a job that would provide him with the necessary means to support himself – the court might look to you to help him move forward post-divorce with financial support.
It’s important to recognize, however, that alimony is very rarely a permanent proposition. Instead, alimony is a stopgap measure that will be used to help your ex find his financial footing after the divorce. Generally, the longer your marriage and the greater the financial disparity, the longer the alimony period.
Determining Spousal Maintenance
Every determination regarding alimony is specific to the individual situation, but there are some basics that almost universally apply. The court will take a variety of factors into careful consideration in determining whether alimony is appropriate and, if so, what its duration should be. These factors can include:
if the court determines that your husband is entitled to maintenance, it will then go about calculating the appropriate amount and duration, which will be predicated on your ability to pay while still satisfactorily supporting yourself.
What Does Maintenance Cover?
Maintenance can be a mechanism for making property division more equitable, a means of short-term support to help your ex-husband become financially self-sufficient, or a permanent support strategy for a spouse who has a limited ability to earn that cannot be rectified or who is outright unemployable (because of a disability, for example). Permanent maintenance is far less common than temporary maintenance.
When it comes to the division of marital property, there are instances when maintenance can help make the distribution more equitable. For example, if you own and manage a business that supported your family throughout your marriage, it can be very difficult to value and/or divide the business for divorce purposes.
If you keep the business, the court may award your ex-husband maintenance to help smooth out any disparity in the property division. Further, if your husband didn’t work or was underemployed during the course of your marriage, the court may award him temporary maintenance while he finds his way back into the work world and begins earning a sufficient salary.
Mitigating Circumstances
In most situations, there simply is no guarantee of maintenance. If the judge finds, for example, that your ex was taking advantage of your generosity by not working throughout the marriage, he or she could deny maintenance.
Further, if your husband’s marital misconduct – such as overly lavish spending or an extramarital affair – brought about the dissolution of your marriage, the judge can take that into consideration in determining whether maintenance is appropriate or not.
Perhaps more than any other divorce issues, the question of maintenance is highly specific to the situation at hand and often hotly contested. If you have maintenance concerns, you need the professional legal counsel of an experienced divorce attorney on your side.
The post Can Your Husband Seek Spousal Support? appeared first on Divorced Moms.
Success!
You’ve received an Order from the Court that requires your Ex to pay you child support each month, as well as an Order that your Ex pay some percentage of costs for things like extracurricular activities and extraordinary medical expenses for your child. The long legal battle is over, and you can rest.
Then, a few months later, the inevitable happens.
Your Ex does not pay.
Now what?
Fortunately, for those parents who have been awarded child support and/or reimbursement for extracurricular or extraordinary medical costs, the law provides several options for enforcement against the non-paying parent (“Obligor”).
Unfortunately, this process can be confusing, and many legal practitioners – and even Judges – struggle to understand which options apply in certain scenarios. (In any case, a party may seek a Citation for Contempt against a party that has failed to comply with a Court Order, but the focus of this article is enforcement, i.e.; how to get money in-hand).
To provide some guidance on enforcement options, the most common scenarios are addressed below:
Under Colorado law, a child support payment is converted into an enforceable support judgment on the day that it is due and not paid, and immediately begins to accrue interest at a rate of 12%, compounded monthly. In cases where payments have not been made for many months or even years, the amount of interest owed on the unpaid child support can exceed several thousand dollars.
However, the operation of law that converts a missed payment into a support judgment does not magically deposit funds into your bank account. In order to obtain actual funds from the Obligor, you will need to file a “Verified Entry of Support Judgement” with the Court reflecting the timeframe at issue, the amount that should have been paid, the amount that was actually paid, and the interest accrued thereon.
Once this document is filed with the Court, you may seek enforcement against the Obligor’s employer, bank accounts, and property by way of liens or a Writ of Garnishment. There are pro’s and con’s to each method of enforcement, however, it is important to remember that support judgments are not dischargeable in bankruptcy.
While it may take some time to recover all of the funds owed to you, you will continue to accrue interest on the principal amount owed and the Obligor is unlikely to escape ultimately paying the judgment over time.
In the case of garnishment with an Obligor’s employer, you will begin receiving payments directly from the employer each time that the Obligor receives a paycheck. However, Colorado law sets limits for the percentage of earnings that may be garnished, so you may receive smaller payments towards the total amount owed until that amount is paid off.
When garnishing a bank account, you will be limited in the amount that you recover by how much money the Obligor has in the account. For instance, if you seek to recover $1,000.00, and the Obligor only has $100.00 in the account, you will only receive $100.00 until/unless the Obligor places more funds into the account in the future.
Alternatively, a lien against property is a viable option and may result in a lump-sum payment, however, you may not receive the funds until the property is sold or otherwise transferred.
A distinction has been made, however, between amounts owed that are “sum certain,” such as the set monthly amount of child support, and payment of expenses that may fluctuate over time. Most often, this situation presents itself in cases where a party is ordered to pay a percentage amount owed towards extracurricular or extraordinary medical expenses for a child.
For example, if an Order requires that a party contribute 50% of the cost of extracurricular or extraordinary medical expenses for a child, the actual dollar value of that amount may fluctuate from month to month. Certainly, there will be months when there are no extraordinary medical expenses, and other months when there may be significant expenses (perhaps a child has broken an arm). The same is true for extracurricular costs.
This issue becomes even more complicated when there is specific language in the Court’s Order regarding notice to the other party about the amount of the expense, timelines, and requirements for exchange of receipts and/or invoices, and whether the agreement of both parties is necessary for the expense to be reimbursable.
When dealing with this scenario, the very first step is to ensure that you have complied with all of the notification and exchange of documentation requirements necessary under your specific Court Order. If you have done so, then any failure by the opposing party to pay the amount owed will result in a support judgment, subject to the same interest and enforcement procedures as described in the previous section.
However, because the amount owed can be subject to debate (the other party may claim that you failed to provide documentation or notice as required, or may even dispute the actual amount spent or owed), you cannot simply file a Verified Entry of Support Judgment and immediately seek enforcement. Instead, you must file a “Motion for Entry of Support Judgment” and request that the Court enter an Order awarding you the support judgment and certifying the amount owed.
In this scenario, the Obligor has a due process right to file a Response with the Court, disputing the amount at issue and/or your compliance with the notice and documentation requirements, and may even request an evidentiary hearing regarding these issues. Unlike enforcement of a “sum certain” amount of child support owed, you cannot seek a Writ of Garnishment or enter a lien against property in this scenario until you have received an Order from the Court regarding your Motion for Entry of Support Judgment.
However, once you receive an Order granting your Motion, you may seek the same enforcement options described above.
My Ex has failed to pay both the monthly child support amount AND their contribution to extraordinary expenses.
In the case that your Ex has failed to pay both a “sum certain” amount of child support and has failed to pay their portion of extracurricular and/or extraordinary medical expenses, you will need to seek enforcement under both options outlined above.
You will need to file a Verified Entry of Support Judgment for the amounts owed and not paid as specific child support, and a Motion for Entry of Support Judgement for any amounts that would have been subject to debate or fluctuation over time and seeking a Court Order establishing the amount owed as a judgment.
The post Child Support: Options For Enforcement Against The Non-Paying Parent appeared first on Divorced Moms.
When I moved to a new state and my ex showed up after 3 years of not seeing our children with a lawyer and a petition for custody of our younger son, I was lost. I was also broke, with no money to hire an attorney.
Being unfamiliar with the laws and procedures of my new state, I started doing my homework. I also began to worry because a custody case was far more legally treacherous than anything I’d done on my own before. I knew I needed help making sure I was filing the appropriate paperwork with the appropriate court.
I found out, via my own personal experience, that a paralegal can be a valuable asset if you are not using an attorney. If you’re going through a divorce, but don’t want to break the bank, you might be asking yourself, can I use a paralegal instead of a divorce attorney? In most states, it is legal to use the services of a certified paralegal to help with the paperwork generated by the divorce process.
In some states independent paralegals have been given legal right to serve as “legal document preparers,” so if you have a motion to file or a petition to draw up, you are within your legal right to hire a paralegal.
Things Paralegals can do
Paralegals can legally prepare divorce forms for you, and they can tell you where those forms need to be filed. Paralegals can also tell you how to serve divorce forms to your spouse, and help you fill out state-specific forms for modifying child support or alimony.
Things Paralegals can’t do
Paralegals can’t give you legal advice. They also can’t go to court and advocate for you the same way a divorce attorney will. If you are experiencing a fairly simple, uncontested divorce, you can save money by using a paralegal instead of a divorce attorney.
If your divorce is highly conflicted, with issues such as a custody battle or large assets to split, a paralegal is not something you want to consider. Their knowledge of court procedure and state divorce laws are limited, which makes them less valuable in a high conflict situation.
How to Find a Paralegal
As with a divorce attorney, you should not contract with a paralegal without first doing research into their background. Check with your Better Business Bureau for any complaints, and ask prospective paralegals about their experience and education. Making sure your paralegal is qualified is imperative when using one in place of a divorce attorney.
Sometimes Paralegals Know More
If your divorce is highly conflicted with issues such as a custody battle or large assets to split a paralegal is not something you want to consider. Their knowledge of court procedure and state divorce laws are limited which makes them less valuable in a high conflict situation.
As with a divorce attorney, you should not contract with a paralegal without first doing research into his/her background. Check with your Better Business Bureau for any complaints. Ask about their experience and education. Experience and qualifications are imperative when choosing a paralegal!
In my case, the paralegal I found looked over the case paperwork, and help me get everything done appropriately for a small fee. Here is the kicker: My paperwork was in good order, and my ex’s attorney had filed the petition for custody with the wrong court.
Thanks to the paralegal, we slowed down the process a bit, and when I did show up in court, all of my documents were properly filed and in order. Help can come from unexpected places. If you aren’t able to hire an attorney but need to use the court to protect your legal rights, a paralegal can guide you through the process and alleviate a lot of stress and anxiety.
The post Why I Used a Paralegal Instead Of an Attorney During a Custody Dispute appeared first on Divorced Moms.
As an experienced Somerset, NJ divorce and family law attorney, I can tell you that the answer is yes, of course! But I don’t advise it, because when you and your ex alter your child custody arrangements on your own, you are creating more problems than you are solving.
Who suffers? Ultimately, your children. Read on to find out how you can best protect your children and your parental rights.
The Child Custody Agreement
How a child custody agreement is reached varies by state, but in general, it is negotiated as part of your divorce and a court decree is entered setting forth the child custody terms. When parents agree on what living and legal arrangements are best for their children, the process goes smoothly.
When parents disagree, this is where the court steps in, attorneys negotiate, and a compromise is reached. Most often, compromise satisfies neither party and there are continuing ill feelings. But at least there is a court order in place, and either you or your ex could ask the court to step in if one of you fails to comply with it.
Generally, the initial child custody agreement will establish who has physical and legal custody, and whether there is joint custody shared between the parents or one parent has sole custody.
Physical vs Legal Custody
In most states, legal and physical custody are different rights. The child lives primarily with the parent who has physical custody. Either parent or both may have the right to make decisions for the child, and this is called legal custody.
When parents are married, both have physical and legal custody of their children. When married parents divorce, these rights must be either divided or shared.
Joint Custody vs. Sole Custody
These are what they say they are: where children live with both parents, this is called Joint Custody. In this situation, both parents as a practical matter often retain joint legal custody.
Sole Custody is the term for when one parent has both physical and legal custody of a child. Usually, for the other parent to lose these rights, there is a hearing and the judge will make that determination based upon factors that vary by state.
Asking the Court to Alter The Child Custody Agreement
Parents who change the terms of child custody through the courts are doing the most they can to protect their rights as parents because the court issues an order memorializing those changes. Thereafter, the new child custody terms can be enforced by the court should one party fail to keep to them.
Altering the Terms of Child Custody on Your Own
Of course, you and your ex can agree to change the child custody arrangement outside of court. It’s quick, easy (assuming you both agree), and cheap in that there no attorney fees or court filing fees. But beware of the following pitfalls of changing the child custody agreement on your own:
The court will not and cannot enforce your new child custody terms.
If your ex wakes up one day and decides not to stick to the new child custody arrangement, there is nothing you can do about it. Only a court order is legally binding on your ex. There is no way to enforce your informal agreement with your ex.
Your ex can get the court to enforce the terms of the original child custody agreement.
You might be acting in good faith and sticking to the changes you and your ex worked out. But your ex could still haul you in front of the judge and demand that the court enforce the original child custody order. That would be well within his rights, and the court would find that you are the party who violated the order.
Changes in child custody may work out at first, but if you allow one informal change, where does it end?
It is common for an ex to take advantage of the situation when you are willing to make informal changes, either planned or on-the-fly. Your life could become a hell of variables and resentment, with your ex constantly demanding little changes to the child custody schedule and you feeling powerless to say no because you allowed such changes in the past.
In short, making informal changes to child custody might seem convenient and harmless at the time but you end up laying the groundwork for future conflict between you and your ex. Didn’t you go through the pain of divorce to end that conflict? Your children also suffer, not only from the revived conflict between you but from the uncertainty in their parenting schedule. Parents who remain civil, a calm, stable environment, and a predictable schedule all help children heal from divorce.
Let the court help you and your children, and your ex, move forward in an orderly and predictable way by memorializing any needed change to a child custody agreement with a court order.
The post Can I Modify My Child Custody Agreement Myself, Without Going to Court? appeared first on Divorced Moms.
When going through a divorce with minor children or determining paternity, one of the many decisions you will need to make is how much time each parent will spend with the minor children.
It is important to note that the amount of time spent with the children can also affect child support.
The goal of any agreement affecting children should be to protect the children’s best interest.
However, due to the emotional nature and financial implications of custody and visitation, many parents struggle to reach an agreement.
In the event parents are unable to find an agreeable solution the Court will intervene and create child custody and visitation orders based on several factors, including the children’s best interest.
Once the Court determines child custody and visitation, it will then use guidelines dictated by statutes and a child support worksheet to determine which spouse owes the other child support.
Child Support
In California, both parents are financially responsible for minor children. However, child support can be ordered to help provide for the children’s housing, clothing, food, extracurricular activities, and other needs.
Child support is based on several factors including each parent’s gross income, mandatory deductions, tax deductions, amounts paid for healthcare, time spent with each parent and more.
Most often, the higher-earning parent will pay child support as they have more disposable income. For families who have 50/50 or close to equal timeshare with the children, the parent who claims the minor children as dependents could be ordered to pay the other parent support.
With so many factors and variables in determining support, it is important to speak with a professional to review all available options and develop the best child support agreement for you and your children.
Imputing Income
If you or the other parent is unemployed or underemployed, the Court can still order child support. In either situation, the Court will review employment records and education history to determine if gainful employment is feasible and determine what their earning capacity may be.
The Court may also consider other factors, including the length of time you have been out of work and the current state of the job market.
If the Court finds one parent is underemployed or willfully not working, the Court could assign income to that parent based on previous salary or current earning capabilities determined by work or educational experience.
The assignment of income, also known as imputing income, can result in Court-ordered child support.
If a parent fails to meet their financial obligation and does not pay child support as ordered, arrears will accrue, and the parent could face additional penalties.
State Disbursement Unit (SDU)
In the past, child support was paid directly to the receiving parent. When a child support order dictated automatic deductions, the paying parent’s (payor’s) employer would withhold the amount ordered and send it directly to the other parent.
However, in 1996 the federal government passed the Personal Responsibility and Work Reconciliation Act, requiring states to create a centralized location where parents pay child support. The creation of State Disbursement Units facilitated payment by collecting child support and distributing to the receiving parent.
When a child support order utilizes SDUs to facilitate payment through employers, payors can have up to 50 percent of their wages deducted.
In addition to facilitating payment, the 1996 Act changed how payment was distributed if a payor had more than one child support order.
Prior to the implementation of the SDUs, child support orders were prioritized by date. For instance, if a payor had orders to pay child support for children from a previous relationship and for the most recent relationship, and the amount ordered for the first relationship more than 50 percent of their income, the first family would get the full amount while the second family would receive partial payment or nothing.
After 1996, a paying parent’s child support amount can change based upon how much the payor parent earns or if there are other child support orders or arrearages are owed by the payor parent.
The SDUs can adjust the distribution of child support to ensure all children receive support. This can result in a reduction of child support received if the amount owed for all orders exceed 50 percent of the payor’s income.
However, the original amount ordered is still due and arrearages will build up unless the paying parent pays the difference directly to the SDU.
Child Custody and Visitation
California recognizes two types of custody: legal custody and physical custody. Legal custody refers to the ability to make decisions that affect the child’s health, welfare, and safety. Legal decisions include what doctors the child sees, what school the child attends, participation in religious activities, when the child can get a driver’s license, and more.
If one parent has sole legal custody, they are not obligated to consult the other parent when making decisions.
However, if parents have joint legal custody, they will both be able to make decisions. Ideally, both parents would communicate and agree on any decisions that affect their children.
Physical custody refers to the time spent with each parent and where the child resides. Joint physical custody, when children live with both parents, is the most common arrangement and the goal of California Courts.
However, it is not the best solution for all families, especially if domestic or substance abuse is an issue. If one parent has primary or sole custody, the other “non-custodial” parent has visitation.
Visitation schedules can vary depending on the relationship between parents and their children and work or school schedules. Common visitation schedules are unsupervised visits every other weekend, bi-weekly visits, alternating major holidays, or supervised visits once a week.
It is highly suggested that both parents work together to create a parenting plan detailing visitation, pick up/drop off times and more. If you are unable to reach an agreement, a family law attorney can help you create a parenting plan that not only benefits the children but considers the parents’ schedules. In the event, you are unable to come to an agreement the Court can hear your concerns and create custody and visitation orders.
However, court orders will dictate the amount of time each parent spends with the children, which can result in orders that neither you nor the other parent agree with and have financial ramifications for many years.
Custody Disagreements
In some cases, the parents may not be able to come to a custody agreement. Regardless of how you feel about your spouse, you should not bring your children into the argument.
Nor should you try to dissuade your children from seeing the other parent. The Courts will consider this when making a custody decision.
In most cases, the Court will not let a child testify as to which parent the child wishes to stay with as it is not fair to make the child choose.
When determining custody, the Court will review several factors such as the amount of time each parent spends with the children, domestic violence issues, substance abuse, involvement in educational or extracurricular activities, and general care.
Child Custody Evaluations
In some situations, the Court may order a child custody evaluation to help resolve a custody dispute. If ordered, the court can appoint an evaluator, or the parents can choose a private evaluator.
In either situation, both parties are responsible for the cost of the evaluator. The evaluator’s role is not to treat patients, but to provide an objective evaluation with informed opinions to help the Court determine the most appropriate custody outcome. The evaluator will conduct an investigation and interviews to decide which parent can provide the best situation for their children.
Evaluators weigh several factors to make their decision, including reviewing interactions between parents and their children, if the parents allow contact or visits with the other parent, and how the children behave in front of each parent.
Spoiling a child will not get you extra points! Once the evaluator has completed their investigation, they will submit their opinion to the Court for consideration.
An Attorney for the Child
In addition to a child custody evaluation, or in place of an evaluation, the Court may appoint an attorney for the child, referred to as Minor’s Counsel.
The role of Minor’s Counsel is to protect and advocate for the child’s best interest. As with the evaluator, both parties share in the cost of the child’s attorney. While the Minor’s Counsel generally has wide discretion in their investigation, it often involves multiple interviews with the children, and sometimes the parents.
Upon conclusion of their findings, Minor’s Counsel will present their recommendation and the children’s wishes to the Court for consideration when creating orders.
Following Court Orders
Parents who fail to follow court orders can be in contempt of the Court, resulting in fines or worse.
Parents of children who refuse to visit the other parent according to their visitation orders can also be held in contempt and face financial fines or even jail.
However, the success of contempt charges depends on several factors, including the child’s age and the concept of parental control. If your children are refusing to see their other parent, it is imperative you contact a family law attorney as soon as possible.
An experienced attorney can listen to your situation, advise the proper course of action to protect parental rights, and against contempt charges.
The Best Outcome
Even if you and your spouse cannot get along, it is better if you are able to create a parenting plan with the help of your attorneys.
The focus of any agreement should always be protecting the best interest of your children.
Consistent, cordial communication with your co-parent can help you and your children transition to the new family dynamic.
Additionally, discussing decisions surrounding the children’s health, safety, and welfare together can help avoid the stress of costly court appearances. In the event an agreement can’t be reached, an experienced family law attorney can help you protect your children and your parental rights.
The post Guidelines The Court Uses To Determine Child Support, Custody, And Visitation appeared first on Divorced Moms.