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Legal Separation
When parties decide to separate without an immediate divorce, it may be necessary for them to obtain what is often called a “legal separation.” A legal separation can generally be achieved in two ways: first, a couple can simply agree to draft a contract between themselves, which sets forth all of the terms and conditions of their separation. This contract or “separation agreement” can include provisions pertaining to separate living arrangements, support for each other and the children, custody and visitation arrangements, the use of property, taxes, insurance, and other important matters. In most states, there is no requirement that such a settlement agreement be filed with the court, or that the court be involved with the process at all.
A second, more formal approach to achieving a “legal separation” entails filing a legal action in the court system. This may be known as a "Complaint for Separate Maintenance" or some variation of those terms. The filing of such a legal action ultimately obtains the endorsement of the court. The parties still have the right to settle their case, and to sign a contract or settlement agreement setting forth all of their wishes. If they cannot settle, then the judge will be asked to fix the terms and conditions of their separation arrangement. Whether the case is settled by agreement or decided by the judge, a court order or final judgment will ultimately be issued at the conclusion of the process.
Many important legal consequences arise from living separately. For example, in many states, if one spouse dies while the parties are married but living separately, the other spouse may be prohibited from claiming an elective share from the estate because he or she is not included in the deceased spouse’s will. Therefore, it is important to seek sound legal advice before proceeding with a legal separation. For assistance, please contact us at 1-866-337-2900.
Grandparents Rights
In recent years, the United States Supreme Court and other courts throughout the country have made grandparent’s visitation rights much more difficult to obtain. In years past, it was relatively easy for loving grandparents to get the right to see their grandchildren, even if their children were divorced or separated. It was necessary only to prove that such grandparental visitation rights served the children’s best interest.
Unfortunately, federal courts, state courts and legislatures have recently been modifying their laws to make it more difficult, on the average, for grandparents to see their grandchildren, when the children’s parent’s object to such visitation rights. Much greater power has been given to the children’s parents to determine whether the grandparents can have any access to the grandchildren. In some cases, grandparents present dangerous or unsavory influences, and it is appropriate for the parents to prevent the grandparents from seeing the children. In other cases, however, the grandparents and the grandchildren have a well-established bond, and the children’s parents are unjustified in blocking the grandparents from seeing the children. Occasionally, these cases can be resolved in settlement negotiations, or with the assistance of a trained mediator. Equally as often, however, it is necessary to hold a hearing or a trial on the issues. Because the law has been changing, grandparents are well advised to research the current state of grandparental visitation rights in the location where their case is being presented. A skilled family lawyer should be retained for this purpose.
Child Support
How much a person pays in child support depends principally on how many children there are, and how much money each parent earns. Every state uses a grid, matrix, or chart generally known as the Child Support Guidelines or the support table. The child support guidelines or support table indicates the amount of obligation of the parents for child support, based on the number of children and the combined earnings of the parents.
In virtually every case, both parents will be required to complete a financial statement to advise the court of their various sources of income, their expenses, and other financial circumstances. These financial statements have various names, such as Statement of Net Worth (New York), Case Information Statement (New Jersey), Financial Affidavit (Florida). Usually, parties are required to supply their tax returns, pay stubs, and W-2 forms to the court as well. These days, child support is calculated using computer software programs. The programs will apply certain tax information, and make appropriate deductions for health insurance contributions, extraordinary expenses, and such mandatory payroll deductions as union dues. Although there is some uniformity in the way child support is calculated, each state has its own peculiar procedures, and the guidelines and tables used in each state differ because of diverse economics conditions across the country.
If you are involved in a child support case, and especially if you have specific financial circumstances requiring attention, you should consult a competent family lawyer to assist you in preparing the necessary submissions to the court.
What is Pendente Lite Relief?
Waiting until the end of a divorce to receive child support or alimony might seem like an eternity. As a result, most courts will award temporary child support or alimony while the case is pending. This kind of relief is known as “pendente lite” or relief pending the litigation. For example, a dependent spouse who cannot support herself while the divorce is pending and while the parties are living separately, may qualify for alimony pendente lite. Likewise, a parent who assumes responsibility for the children, but does not have the financial resources to support the children on his own may obtain a pendente lite order requiring his spouse to contribute child support. Such pendente lite orders are important because they allow the parties to pay their bills, maintain balance and financial equilibrium while the case is pending. Pendente lite orders also prevent one party from asserting a financial advantage over another party who may have lesser means and fewer financial resources at his or her disposal.
Pendente lite relief comes in many forms. For example, a court can order one party to contribute to another party's attorneys' fees on a pendente lite basis. It might order one party to be responsible for mortgage payments, utility bills, tax and insurance bills, and other obligations on a pendente lite basis. A court can also issue a pendente lite order which restrains the parties from dissipating marital assets or from invading certain bank accounts or tampering with certain assets until a final divorce hearing is held.
A motion or request for pendente lite relief should be filed early in a divorce case, to ensure that financial obligations are met on a timely basis and to protect each party’s rights while the case is pending.
Not every person who demands pendente lite relief is entitled to it. In some cases, the court will deny pendente lite alimony or other support to a party who has other assets, or financial resources, or who refuses to work despite her capacity to do so. In fact, in an appropriate case, a party may ask a court to impute income to a spouse seeking pendente lite relief, and to treat that spouse as if she were earning more money than she actually earns because of her failure to obtain employment at her true potential.
Presenting a pendente lite motion to a court can be very complicated and can entail an understanding of the laws of alimony, child support, injunctions, property distribution, and many other areas. Please contact us if you need help. Please call us at 1-866-337-2900.
Property Division
There is no magical formula for dividing property acquired by the parties during their marriage. Generally speaking, courts treat any property owned or acquired during the marriage as a marital asset. Therefore, the parties must reach an agreement on how to divide that asset, or else ask the court to make that decision for them. You should first determine what property division procedure applies in your state. In most states, the court applies an equitable distribution law, which requires the judge to effectuate a fair and equitable division of property between the parties, which may or may not be a 50/50 split. In other states, primarily in the West and Southwest, the courts may apply a community property law. Some jurisdictions also abide by a title procedure, which conveys property to the title holder.
In equitable distribution states, a party can generally assume that he or she is entitled to fifty percent of the real estate, personal property, bank accounts, retirement funds, and other assets acquired during the marriage. However, this is not a hard-and-fast rule. Depending on how much has been awarded in alimony and child support, and what other personal and financial circumstances exist; a court may award a greater or lesser portion of the property to one spouse or the other. There are very complicated rules for dividing pensions and retirement benefits, and for splitting stock options and other employment benefits.
Similarly, there are many complicated rules for dividing real estate and other property that may have been acquired by one of the parties prior to the marriage, but which may have increased in value during the marriage. A party may have an “equitable” interest in property, even if she does not own the property, and even if her name appears nowhere on the title.
Parties getting divorced must be careful when they incur debt or purchase property after separating. In some states, any action taken after the date of separation will be attributable only to the spouse taking the action. In such states, if a party purchases a car after separating from his spouse, he will be responsible alone for the costs associated with the car. On the other hand, he may not be required to share the winnings from a lottery jackpot if he purchases the winning ticket after separating from his spouse. In other states, the cutoff date is the day on which either party files the complaint for divorce or the petition for dissolution of marriage. In states that apply this rule, both parties may be responsible for debts and obligations as well as assets and income acquired right up until the first paper is filed in court, regardless of whether they separated at an earlier point in time. Yet another approach is to treat all assets and liabilities as being marital until the case is concluded, and until the judge enters a final judgment or decree in divorce. Thus, under this approach, any property purchased, or debts incurred, until the parties are legally divorced would constitute marital assets or marital debts.
Pensions and Retirement Assets
Pension and retirement benefits acquired during the course of a marriage are generally distributable between both of the parties upon divorce. Retirement benefits come in many forms, and therefore there are many rules governing how these assets are divided. Some assets can be divided immediately at the time of the divorce, by simply liquidating an investment account or withdrawing money from an employer-sponsored savings plan. Other accounts cannot be liquidated until the age of retirement, or some other age limit. There may also be severe tax consequences and penalties for early redemption.
Generally, the person is not required to divide pension or retirement funds that were accrued before marriage. Likewise, he or she is not required to divide retirement assets contributed to a retirement fund after the parties separated or filed for divorce (depending on what state law applies). However, if a retirement account increases or decreases in value while a divorce case is pending, both parties may enjoy the benefit of the increase or suffer the detriment of the decrease, even if they were separated, while the matrimonial case was pending.
If one party wishes to “buy out” the other party by paying him or her a portion of the pension benefits, it may be necessary to determine the present value of pension funds that would not ordinarily be available until the age of retirement. In this regard, it is sometimes necessary to engage the services of an actuary or another financial expert to assist in determining the value of a pension benefit for distribution purposes. In some cases, parties agree to simply waive their rights to each other’s retirement benefits. It is also possible for one party to give up their share of their spouse's pension in exchange for a higher amount of alimony or support, or in exchange for a greater portion of the property.
One of the things that makes pension and retirement issues complicated is a federal law which governs qualified pension plans. The federal law is known as the Employee Retirement Income Security Act of 1974 (ERISA). This is the federal law that contains many of the procedures for dividing retirement funds and making sure that each recipient is taxed proportionately on the share of retirement money that he or she will be receiving. ERISA was drafted in such a way as to prevent a pension plan participant from assigning his or her interest in the pension plan to another person. However, the Act also introduces the idea of a Qualified Domestic Relations Order (QDRO) as one of the few limited exceptions to the anti-assignment and alienation rules contained in ERISA. A QDRO may assign some or all of a participant’s pension benefits to a spouse, a former spouse, child or other dependent to satisfy family support or marital property obligations. In order for a QDRO to become a qualified order, a domestic relations order must first be approved by a pension plan administrator. The formalities of draftsmanship for a QDRO may vary from case to case, from plan to plan, and from time to time.
The way a QDRO works is by setting up an “alternate payee” who, by virtue of the divorce judgment or property settlement agreement, is permitted to receive all or a portion of the benefits payable to a participant under his pension plan. Although ERISA delineates a number of technical requirements, QDRO’s must, at a minimum, contain a name and last known address of a participant and each alternate payee, the name of each plan to which the order applies, the dollar amount or percentage, or the method of determining the amount or percentage, of the benefit to be paid to the alternate payee, and the number of payments and time period to which the order applies. A QDRO cannot provide an alternate payee any benefit or right not otherwise provided under the plan. Nor can the plan be required to provide for increased benefits, or to pay benefits in the form of a qualified joint or survivor annuity for the lives of the alternate payee and his or her subsequent spouse.
This is obviously a very technical area of law. If there are pension benefits to be divided in your divorce case, please contact us for assistance at 1-866-337-2900.
Splitting Up A Business
Sometimes, it is necessary to divide the assets of a family business when two parties are getting a divorce. If a husband and a wife are co-owners of a business, it is probably impossible for them to continue to run the business together after their divorce. It probably will make sense for them to go their separate ways—dividing the assets of the business at the time that their divorce becomes final. Often, the best approach is for one party to keep the business and to “buy out” the other party, or to give the other party some other asset in exchange.
Usually, only one spouse runs the business or works in the business. However, this does not mean that both spouses lack a financial interest in the business. Regardless of who works in the business, both spouses may have a claim to the assets, inventory, stock, and other value in the business. Placing a specific financial value on a business, or on a spouse’s share of the business is very technical. Ordinarily, an accredited business evaluator, certified public accountant, or other financial specialist is engaged as an expert witness to determine the value of the business. Such an expert explores not only the value of the business property, equipment, assets, and so forth, but also the value of the business name, client list, and other goodwill. The process of setting the value can become quite technical, involving the application of discount rates, premium rates, capitalization rates, and other financial formulas. The process is made even more difficult when there are other owners of the business besides the husband and wife. One should never attempt to divide a business or its assets as part of a matrimonial proceeding without the assistance of an attorney and/or a financial expert. For more information call, 1-866-337-2900.
Prenuptial Agreements
A prenuptial agreement is a contract made between two persons in contemplation of marriage. The contract goes into effect once the parties get married, but may not require any action or have any legal consequences until after they get divorced. Prenuptial agreements are sometimes referred to as “antenuptial” agreements. Regardless of what they are called, their purpose is to establish ground rules for distribution of assets and payment of support when and if, the parties subsequently get divorced.
Prenuptial agreements are considered a useful premarital planning device for previously divorced parties endeavoring to secure assets for their children of a prior marriage. Particularly in cases involving substantial premarital assets, prenuptial contracts offer a decisive mechanism for ascertaining and protecting the assets subject to sharing and commingling during the marriage.
Unfortunately, prenuptial agreements are viewed with great skepticism by legal scholars and lawyers. They are frequently attacked in divorce proceedings. In some cases, parties are forced to sign prenuptial agreements without receiving a full disclosure of the other party’s assets. Many states now require that a full financial disclosure be made in order to validate a prenuptial agreement. Concealing assets or failing to give a party a fair and reasonable opportunity to examine the assets, has often been cited as grounds for invalidating an agreement.
Prenuptial agreements are also frequently challenged on the grounds of fraud, duress, and coercion. Thus, when a husband asks his wife to sign a prenuptial agreement only days before the marriage, it is impossible for her to rationally consider the possibility of canceling the wedding, the catering hall, the band and contacting more than one hundred guests to rescind the invitations. In such circumstances, a would-be wife might feel pressured to sign a prenuptial agreement, a decision she would later regret, and presumably attack as having been a product of duress or coercion.
Prenuptial agreements should never be signed until a party first obtains independent legal advice. A party should never consult an attorney recommended by his or her spouse, or paid for by the spouse. An attorney is “independent” only if the person hiring the attorney finds the Attorney on his or her own, pays for the Attorney on his or her own, and seeks independent advice from that attorney.
Many states have adopted a law known as the Uniform Premarital Agreement Act. The UPAA defines prenuptial agreements, requiring them to be in writing, signed by both parties, and enforceable without consideration. Parties are permitted to enter into contracts setting forth each of their rights and obligations, including their right to buy, sell, use, transfer, exchange, abandon, lease, consume, expand, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property. The prenuptial agreement may also modify or eliminate spousal support or alimony. It may refer to the making of a will, a trust, or any other arrangement to carry out the parties’ financial wishes. It may also address the ownership rights, and the disposition of death benefits, from a life insurance policy. A prenuptial agreement may indicate which state law governs the agreement and this may, in fact, become an important provision if the parties move from one state to another after the agreement is signed.
The UPAA includes a provision that prenuptial agreements may not adversely affect the right of a child to be supported. Generally, a prenuptial agreement is not enforceable under the Uniform Act if a party executed the agreement involuntarily, or if the agreement was unconscionable at the time enforcement was sought. Likewise, an agreement may not be enforceable if the party did not consult with independent legal counsel or did not receive a full and fair disclosure of the earnings, property, and financial obligations of the other party.
Interstate/ International Child Custody Issues
Perhaps no area of family law has grown so complicated in recent years as interstate child custody disputes. In this era of overcrowded divorce dockets and backlogged court systems, more spouses are uprooting their minor dependents, leaving town, and relocating over state lines. This trend is leading lawyers into unknown jurisdictions where they frequently encounter different courtroom procedures, conflicting rules of evidence, and inconsistent laws.
It has also thrust lawyers into a confusing statutory practice. Every jurisdiction has now adopted the Uniform Child Custody Jurisdiction Act (UCCJA) or The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), but there are significant variations in how these laws are applied from state to state. For example, in Zappitello v. Mosses, the Supreme Court of South Dakota required that the UCCJA’s jurisdictional requisites be satisfied under the state’s Domestic Abuse Act in a civil proceeding brought by a father who suspected his visiting children were being abused by their non-resident mother. However, in Curtis v. Curtis, the Mississippi Supreme Court held that emergency jurisdiction under UCCJA did not give Mississippi power to permanently modify a Utah custody decree.
Quite apart from the procedural complexities, interstate custody litigation is one of the most expensive forms of domestic relations litigation. Both child visitation across state lines and potential litigation in more than one court can be quite costly. This cost is compounded when litigants employ experts who must appear for depositions in various jurisdictions or testify in foreign courts. Interstate custody cases are also costly in the toll they take on the parents and children who participate in them.
Children are on the move today, from state to state, neighborhood to neighborhood, and school to school. These children and their parents often find themselves embroiled in long transcontinental legal rights that balance custodial residences in competing states and test the safety of neighborhoods, the adequacy of schools, and the general quality of life. Thus, breaking up the marital relationship and awarding custody may come down to a fierce battle between races, religions, personal philosophies, geographical preferences, spending habits, school districts, communities, family relationships, relatives, and companions. Virtually no social, economic, medical, or spiritual consideration can be excluded in the test of parental fitness or in the search for a proper home for a child. Yet making these judgments between states is a tactical challenge for everybody involved. No other area of litigation is so plagued by procedural differences between courts and by jurisdictional hop-scotching by parties as interstate custody.
Child custody disputes are further complicated by child-snatching across state lines, custodial interference, and other parental torts. Despite federal laws against parental kidnapping, it is much larger problem than originally estimated. Almost half of family abductions, or an estimated 163,200 cases, involved attempts to conceal the whereabouts of a child, transportation over state lines, or an intent by the abductor to permanently alter custodial privileges.
The interstate case may thus involve state and federal laws, civil and criminal statutes, and a wide variety of geographical uncertainties. More often than not, the interstate cases will require sifting through bitter charges of infidelity, bad parenting, neglect, or nonsupport. It is almost always a fact-sensitive proceeding that is made more difficult by the pressure placed upon the courts to select or design a safe and nurturing environment for the child.
The Hague Convention on the Civil Aspects of International Child Abduction was adopted by the Hague Conference on Private International Law on October 25, 1980. The United States signed the Convention on December 23, 1981 (1988) (ICARA).
The fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons attempting to obtain physical or legal custody. Contracting states are obligated by Article II of the Convention to take all appropriate measures to implement the objectives of the Convention as set forth in Article I: (i) to secure the prompt return of children wrongfully removed or retained in a contracting state; and (ii) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states.
The Convention deals only with the return of the child and does not provide for criminal penalties or deal with international extradition on criminal charges. It does not criminalize any particular conduct, nor does it prevent any country from doing so. However, since the Act deals with “wrongful” removal or retention, a party’s conduct may implicate both civil and criminal laws in one or more countries.
The Hague Convention contains 47 articles in six chapters. Chapter I deals with the scope of the Convention; Chapter II with central authorities; Chapter III with the return of children; Chapter IV with the rights of access; Chapter V with general provisions; and Chapter VI with final clauses. Lawyers attempting to invoke the Convention should read it carefully first. It does not attempt to comport with state law in the United States, and in fact, often relies on rules, procedures, or policies which are somewhat, if not completely, contrary to state law. For example, the Convention applies only to children under the age of 16. Even if the child is under 16 at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches age 16.
The Hague Convention is a nonexclusive remedy in cases of international child abduction. Article XVIII provides that the Convention does not limit the power of a judicial authority to order return of a child at any time, presumably under laws, procedures, or committee, regardless of the child’s age. Indeed, Article XXXIV of the Convention says that it shall not restrict the application of any law in the country addressed for purposes of obtaining the child’s return or for organizing visitation rights. The age of the children in question may therefore prompt an attorney to consider whether to apply the Hague Convention or some other law or procedure.
The Convention has been ratified by Argentina, Australia, Austria, Bosnia-Herzegovina, Canada, Croatia, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Former Yugoslav Republic of Macedonia, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Great Britain, Northern Ireland and the United States of America,. In addition, the following nations have acceded to the Convention with regard to the United States: Bahamas, Belize, Burkina Faso, Chile, Columbia, Cyprus, Ecuador, Honduras, Hungary, Mauritius, Mexico, Monaco, Panama, New Zealand, Poland, Romania, Slovenia and Zimbabwe. These are known as the contracting states. In order for the Convention to apply, a child must have been “habitually resident in a contracting state immediately before any breach of custody or access rights.” In practical terms, this means that the Convention may be invoked only where the child was habitually residing in a contracting state and taken to or retained in another contracting state. Once again, the orientation of the Convention is directed toward returning children who are wrongfully removed. Hence, if a child were removed from New Jersey to Canada, application under the Convention could be made to secure the child’s return since Convention has been adopted in both the United States and all Canadian provinces. An alternative remedy might also lie under Canadian law. If the child had been removed from Canada and taken to the United States, the aggrieved custodial parent in Canada would seek to secure the child’s return by invoking the Convention. Alternatively, the parent in Canada could petition for enforcement of the Canadian custody order under the UCCJA or UCCJEA, which is adopted everywhere in the United States. It states that the provisions of the law relating to recognition and enforcement of custody decrees for other states apply to custody decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunities to be heard were given to all effective persons.
The Hague Convention establishes civil procedures to secure the return of the so-called abducted children. The Convention is not concerned with the question of whether the person found to have wrongfully removed or retained the child returns to the child’s country of habitual residence once the child has been returned himself. This is in contrast to the criminal extradition process which is designed to secure the return of the fugitive wrongdoer. The Convention’s first stated objective is to secure the prompt return of children who are wrongfully removed from or retained in any contracting state. What constitutes “wrongful removal or retention” is spelled out in the Convention. The law speaks of a “breach of custody rights” and it includes judicial and administrative orders, legal agreements, and other forms of custody rights. The Convention goes so far as to include custody rights arising by operation of law, where no court order or written agreement has been reached between the parties.
When a person’s custody rights have been breached by the wrongful removal or retention of the child by another, he or she could seek the return of the child pursuant to the Convention. The aggrieved party can make an application directly to the Court in the contracting state to which the child has been taken, or he can apply to the Central Authority which must be established by every contracting state under the Convention. In fact, the aggrieved party may invoke both of these remedies simultaneously, while pursuing other legal remedies elsewhere.
There are many incentives for commencing an action under the Hague Convention as soon as possible after an aggrieved party learns of the wrongful removal or retention of the child. For one thing, the child may be near the age of 16, at which time the contracting states would be divested of jurisdiction to adjudicate the matter under the Convention. In addition, acting quickly to protect one’s rights under the Convention will preclude the risk of adjudication of custody on the merits in a country other than the United States. If the return proceedings are commenced less than one year from the date of wrongful removal or retention, Article XII of the Convention requires the Court to order the return of the child forthwith. If the return proceedings are commenced one year or more after the alleged wrongful removal or retention, the Court remains obligated by Article XII to order the child returned unless it is demonstrated that the child is settled in its new environment.
Prior to ordering a child returned under the Convention, Article XV permits a court to request the applicant to obtain from the authorities of the child’s state of habitual residence a decision or other determination that the alleged removal or retention was “wrongful” within the meaning of the Convention. Article XV does not specify which “authorities” may render such a determination.
The Hague Convention provides that each contracting state must designate a “Central Authority” to carry out the duties imposed by the Convention. States with a federal system or territorial units are free to designate more than one, but must designate one of them to which applications may be sent for further transmission. In Canada, for example, each province has designated Central Authority. In the United States, the State Department has been designated as the United States Central Authority. Article VII of the Convention sets out the duties of the Central Authorities to secure the proper return of children, to discover the whereabouts of a child who has been wrongfully removed or retained, to prevent further harm to the child, to secure the voluntary return of the child, or to attempt to bring about an amicable resolution of the issues. The Convention also requires the Central Authority to exchange, where desirable, information relating to the social background of the child, and to provide information of a general character and on the law of their state in connection with the application to the Convention. The Central Authority itself may initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, may make arrangements for organizing or securing the effective exercise of rights of access. This may include providing or facilitating the provision of legal aid and advice, including the participation of lawyers and other advisors. The Central Authority is required to provide administrative arrangements for the safe and secure return of the child.
Considering the provisions of the Hague Convention collectively in the context of a seasoned abductor, one can envision the possibility of circumventing the Hague Convention and successfully removing a child to a country whose own courts will not otherwise enforce an American custody decree. The longer the abductor is successful in keeping a child hidden, the greater the chance that a court will put concern for the child’s stability in its new environment first. This is, in fact, a clear policy consideration in the Convention. If the proceedings are commenced after one year, the judicial authority in a foreign country may, but is not required to, order the return of the child if “it is demonstrated that the child is not settled in its new environment.” Moreover, the longer the abductor is successful in keeping the child hidden, the greater the risk that the child will reach the age of 16, thus divesting the contracting states of jurisdiction under the Convention.
Chapter IV of the Hague Convention deals with the rights of access or simply visitation rights. The Central Authority is obligated to address the issue of visitation, and it has the duty of “organizing” access rights by establishing visitation not already specified in any court order.
The Convention has many unique procedural and administrative aspects. For example, Article XXIV requires a translation of an application into the language of the requested state or into French or English, with the understanding that any contracting state may object to either French or English but not to both. Under this rule, the United States has said that it will require all documents to be translated into English and may only be requested to use French as a translation on outgoing documents if that language is required by a contracting state.
Overall, the Hague Convention is probably not as broadly applicable as the contracting parties initially perceived it would be. But both the American Bar Association and the National Center for Missing and Exploited Children have issued recommendations for guarding against international child abductions and avoiding Convention litigation in the first place. Many of these recommendations are directed to cross-cultural marriages where the risk of international abduction is apparently the greatest.
The Hague Convention is not the only international child custody and abduction treaty. A number of European nations also subscribe to the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and Restoration of Custody of Children. Patterned after the Hague Convention, the European Convention links its European signatories in a uniform scheme for ensuring the speedy return of abducted children to their country of habitual residence.
Interstate/International Child Support Issues
Collecting child support across state lines or international borders can be a very difficult task. One of the biggest problems is determining which court has jurisdiction over the case. Once a particular court assumes jurisdiction over a child support case, it may be very difficult to get another court to modify the court order. Out-of-state courts may enforce the court order, but they may be reluctant to change it in any way.
Interstate child support is governed by the Uniform Interstate Family Support Act (UIFSA). Under UIFSA, a court may be able to get personal jurisdiction over an individual for any number of different reasons. For example, a court may have jurisdiction over a person who lived in the state, even if they have now moved out of state. It may have jurisdiction over a person simply because he or she files a pleading in a court of law. It may have jurisdiction over a person if he or she had sexual relations with the opposing party, which may have resulted in the conception of the child in question. Jurisdiction may be conferred upon a court where the person contributed to prenatal or postnatal expenses for the child.
Getting personal jurisdiction over the person who owes support, however, may not be enough to get a court to hear your case. A court will reject a case if another court still has jurisdiction over the matter. This is known as “continuing exclusive jurisdiction,” and it is an important rule in UIFSA. However, if you and the opposing party now live in different states, you may be able to enforce an out-of-state support order in a different state by following the statute’s registration and confirmation procedure. This procedure allows you to transfer court orders from one state to another, for purposes of enforcing them against the person who is obligated to pay support. Under UIFSA, employers are obligated to garnish wages in order to pay support to the appropriate child support agency.
A variety of federal and state laws now make it difficult for a child support obligor to escape. Banks and employers are required to disclose account information and obligors’ names and addresses. Social security numbers are routinely required in courthouses. Outstanding child support obligations are reported to credit reporting agencies, and drivers’ licenses, sporting licenses, and professional licenses may be suspended if child support is not paid. Unsatisfied child support debts can be reduced to judgments in favor of the person entitled to the money. Those judgments can be used to levy on assets and accounts.
Although there are many laws and procedures now to assist parents in collecting unpaid child support, there are also many procedures available to parents who have been overcharged for support, or who are not being given credit for the amounts paid. Different laws enable child support obligors to petition the court to reverse their arrears, audit their accounts, and adjust the amounts due. A change in circumstances, such as a physical injury or loss of job, may qualify somebody for a reduction in child support. Likewise, when the other parent has enjoyed a significant increase in her earnings, income and financial resources, the court may lighten the burden on the parent required to pay child support. International child support collection is much more difficult than interstate child support enforcement. While UIFSA recognizes international claims, it does not necessarily assist parties who are trying to collect money from parents living abroad. The United States has very few agreements or compacts with foreign countries relating to child support. Language translation problems, and diverse legal systems often make it difficult to transfer court orders or to collect payment from overseas.
The law offices of Mark S. Guralnick prides itself in overcoming these obstacles. Besides writing several books on child support, Mr. Guralnick is licensed to practice law in many states throughout the United States, and, in fact, is authorized to practice law in several foreign countries as well.
Termination of Parental Rights
When a parent has been found guilty of violence, abuse, child neglect, or other offences, and when the circumstances are severe enough, a government agency may petition the court to terminate the parental rights of that parent. A termination case is much more severe than cutting off custody rights. When a party’s parental rights have been terminated, that party permanently loses the rights to have any relationship with the child. While the party is excused from supporting the child, the party has no legal rights of access or communication with the child either. A termination proceeding is, therefore, a very severe proceeding, which should be invoked only in the most severe cases.
Unfortunately, in many states termination actions are filed by over-zealous agents and lawyers representing the state child protective agency. These agencies come in many names such as the Division of Youth and Family Services, the Department of Child and Youth Services, the Division of Health and Human Services, and Child Protective Services. Across the board, many of these agencies are very poorly run and managed, and many of the case workers and prosecuting attorneys associated with them yield great power with limited skill, education or experience. Many parents facing termination proceedings have complained publicly and privately that they felt that they were “railroaded” by these agencies.
If you or somebody you know is involved in a termination of parental rights case, you should not hesitate to retain legal counsel and to defend your rights aggressively.
Locating Hidden Assets
Mark S. Guralnick is a licensed private detective, board certified in forensic examination. He is a former investigative news reporter; he is now a board certified trial lawyer. If there is anything he knows, it is the fact that many people going through a divorce are engaged in some kind of scheme to hide money, assets, or property from their spouse. It is, therefore, very important that you fully investigate all of the assets, money, and property, at the earliest stage possible.
Assets may be hidden under other people’s names, in company bank accounts, or in foreign bank accounts. Sly and crafty people may use fake names, alter egos, and legal documents to misdirect their spouses, so that they do not discover hidden assets. It is important, as soon as possible, to issue the necessary subpoenas, file the appropriate petitions, propound the necessary pretrial discovery, interview witnesses, and gather the necessary evidence to establish all of the assets and funds which are available for distribution in a divorce.
For more information, please call 1-866-337-2900.
Cheating Spouses
Infidelity and unfaithfulness is, unfortunately, one of the most common grounds for divorce. When a person is cheating on his or her spouse, he is susceptible to a divorce based on “adultery.” A divorce based on adultery is just one of the “fault” kinds of divorce. It requires the party filing the divorce to prove that his or her spouse broke the marital vows by committing adultery with another person.
However, in common practice, few courts ever really take testimony concerning the adulterous affair. Like most other fault grounds for divorce, the marital misconduct is pleaded by the lawyer in the complaint or petition for divorce, but little attention is given to the pleadings thereafter. Indeed, it is rare that one person would allege adultery as part of a divorce, and the other person would deny it, followed by a trial to resolve the issue. In many cases where adultery exists, lawyers advise their clients to choose a less controversial, easier, “no fault,” grounds for divorce. Adultery by itself does not entitle the victimized spouse to a greater share of the property or a higher amount of support. In some cases, however, a person committing adultery, may have wasted marital assets or dissipated money on his adulterous conduct. This situation could be quite obvious where the unfaithful spouse has moved out of the marital home and has begun cohabiting with his mistress. In such a case, the court will take interest in knowing how financial issues are addressed. If marital money is finding its way to the mistress, or otherwise being diverted away from the marriage, then the offending spouse may be required to pay spousal support, maintenance, or some other financial arrangement to restore the missing money to the marriage. As mentioned, however, there is generally no financial penalty to a spouse who simply has a sexual relationship in violation of his marital vows.
In some states, where a divorce is based on adultery, the party filing the divorce is required to serve a copy of the divorce papers on the mistress or paramour with whom the spouse is cheating. The mistress or paramour then has the right to file appropriate papers in the case, although this rarely occurs.
Sometimes, a husband will want to demonstrate that his wife has been committing adultery during the marriage as a device to defeat her claim for alimony, spousal support, or maintenance. In some jurisdictions, such proof may have an impact on the amount paid by the husband to the wife, or by the financially stronger spouse to the financially weaker one. In most places, however, marital misconduct of this sort will not defeat a claim for alimony, spousal support, or maintenance. Rather, it will be examined by the court to determine the extent to which the cheating spouse is being supported by her new boyfriend, and the extent to which her financial affairs and the new boyfriend’s financial affairs are intertwined.
For more information about these kinds of circumstances, please call 1-866-337-2900.
Freezing Assets
There are many different ways to freeze assets as part of a divorce case. However, the best way to freeze assets is to obtain a court order at the very outset of the case. In most places, assets can be frozen by obtaining a temporary restraining order or a preliminary injunction. This is often accomplished automatically by the filing of a complaint or a petition for divorce. More often, however, it is necessary to file an emergency petition for a restraining order or an injunction, or an Order to Show Cause seeking temporary restraints. These legal devices are aimed at maintaining the status quo—that is, preventing each spouse from removing property, bank funds, or other assets while the case is pending.
It is important to serve restraining orders and injunctions on all parties, persons, banks, brokers, agents, and other business representatives who may control the disposition of assets. A court order freezing bank accounts is no good if the bank never learns about it.
In order to obtain an order freezing assets, a court may require some evidence that there is a risk that the assets would be spent, diverted, re-named, transferred, converted, or dissipated, unless a restraining order is entered. The court may agree to freeze assets only for a limited period of time, forcing you to renew your request or to settle and distribute the assets prior to the expiration date. Sometimes, when assets are frozen, it becomes necessary to petition the court to “unfreeze” some portion of the assets in order to use them while the divorce is pending.
Reconsideration and Appeals
In family court, it is a common practice to ask the judge or hearing master to reconsider the evidence, and to modify a prior order. Thus, people frequently file motions seeking to modify child custody and visitation arrangements, child support arrangements, or deadlines in the divorce case. A motion for reconsideration usually requires some evidence that the court overlooked when the original court order was issued, or some proof that one or both of the parties are experiencing a change in circumstances. When a issue is presented to a court on a motion for reconsideration, it usually means that the same judge in the same courthouse is being asked to take another look at the issue and to modify his prior order. However, when an issue is presented as a part of an appeal it generally means the case is being referred to a higher court where another judge or panel of judges will be considering whether the lower court judge made an erroneous decision.
Each state has a different system for filing appeals. An appeal is generally initiated by the filing of a notice of appeal, the payment of a filing fee, and the submission of various documents. There are deadlines for filing an appeal, and it is often very difficult to have those deadlines extended. When an appeal is filed, the appellate court will require the person filing the appeal to submit a copy of the transcripts of the proceeding of the court below and eventually to file a brief in support of the appeal, along with an appendix of documents or records to support the legal arguments. In some states, some of these steps are completed by a court clerk; in other states, the party filing the appeal or her lawyer are required to undertake all of these steps. For more information about appeals, click here.
Going to Trial
Only a small fraction of family law cases end up in trial. A trial is a much larger proceeding than a mere hearing. A trial involves the presentation of evidence usually through pre-marked exhibits and witnesses giving testimony from a witness stand. While a hearing might last for a matter of minutes or hours, trials generally last for several hours, days, or weeks.
In a typical divorce trial, the plaintiff will have the first burden of proof. He or she will be required to call witnesses, present evidence, and move forward with whatever proof the court needs to see to understand their legal positions. As each witness for the plaintiff takes the witness stand, the attorney for the plaintiff will have the opportunity to examine the witness and ask the appropriate questions. Then, the attorney for the defendant will have the opportunity to cross-examine each witness. Usually the plaintiff’s attorney can ask additional questions, known as re-direct examination. And, if necessary and appropriate, the defense attorney may then get a second opportunity to ask questions of the witness, known as re-cross-examination. Occasionally, the judge himself will interject questions along the way. After all of the plaintiff’s witnesses have testified, the defendant will have the opportunity to call his witnesses. Each of the defendant’s witnesses will likewise be subjected to direct examination, cross-examination, redirect examination, re-cross examination, and/or questions interjected by the judge.
As each of the witnesses testifies, certain documents will be admitted into evidence. Once admitted into evidence, the documents are available for review by the judge. After the case is concluded, the judge will consider all of the testimony by all of the witnesses as well as all of the documents admitted into evidence. Based on this evidence, the judge will render an opinion.
Depending on the state in which the case is being heard, trials entail different technical procedures. Some of these procedures require the submission of trial briefs, pretrial motions, and certain disclosures prior to trial. Some states require the submission of written summations or proposed findings of fact and conclusions of law after trial. It is important to understand what the local procedures are and to follow them closely.
If your case is headed for a trial, you should be represented by an experienced matrimonial trial attorney. For assistance, call 1-866-337-2900.
Guardianships
Guardianship is a legal device allowed in most courts to provide for the care of a person who, because of his physical or mental disabilities, is not capable of caring for himself. Some courts recognize “limited guardianships” in which the legal guardian is appointed with limited power to manage a person’s property or financial affairs. Many courts also recognize a full guardianship or “plenary guardianship” in which the guardian is given broad power to regulate and manage all aspects of a person’s life, health, decision-making, property and financial affairs. Guardianships may be temporary or permanent and they may come with many procedural requirements. Legal guardians are usually required to maintain records, and to file reports with the court.
Before a person can be appointed as a guardian, he or she generally needs to file a petition or complaint for guardianship. A court may require medical reports, affidavits, or other documentation attesting to the need for a guardian and the appropriateness of the applicant to be appointed as the guardian. The “ward,” or person for whom the guardian is needed, may be examined by an independent physician to determine his or her physical or mental condition. Often, the court requires an attorney to be appointed for the ward, and requires that all papers filed in support of the guardianship be read by (or read to) the ward so that his or her own due process rights are preserved.
A guardianship is sometimes the appropriate approach to a living arrangement in which child custody is not possible, or in which some other relationship between the parties exists. Guardians are appointed for children as well as seniors, and any number of circumstances may create the need for the appointment of a guardian.