family law

Divorce or Legal Separation: Pros, Cons, and Differences

October 17, 2019 by Guest Contributor Leave a Comment

It can be difficult to see where to go when your marriage is in trouble. All options can seem daunting or set in stone, and each relationship is unique. When a marriage is seemingly beyond repair there are two main options for the couple: divorce or legal separation. Divorce is largely for couples who see no opportunity for repairing their relationship, while separation, legal or otherwise, gives the couple an opportunity to try and repair their marriage with the assistance of distance. If you’re looking into options for how to proceed with your relationship, it’s important to understand the implications of both options.

Legal Separation

There are various degrees of legal separation, from separating living spaces and finances to dividing areas of shared living space and filing joint taxes, but the process is often similar to that of filing for divorce. While the process varies from state to state, legal divisions of assets consistently need to be approved by the court. Even if it is not required by the state, having legal assistance while dividing property and assets is highly recommended. It should also be noted that legal separation is required by some states before the divorce procedures can be completed.

Pros

The benefits of legal separation change from couple to couple, and what works for one couple might be disastrous for another. Legal separation can give the couple some space to sort out their problems, it can provide a non-permanent solution for couples who still love each other, and it can help both parties maintain benefits. Some employer-provided health insurance will cover legally separated spouses. Military benefits often extend to separated spouses, as well. Some may receive tax or social security benefits if they remain married, but these are best researched by each couple individually, as tax laws surrounding this area are complex.

Cons

Legal separation can be complicated, with all of the difficulties of divorce without all the court-mandated guidelines for life after separating. This means that child custody decisions might be slowed down or made more difficult without court-mandated mediation, along with other aspects of property divisions. Should the separation have no end in sight, whether the end is repairing the marriage or filing for divorce, the parties would not be legally allowed to remarry.

Divorce

Divorce, or absolute divorce, describes the legal termination of a marriage. It requires legal action and court approval. A number of problems in a marriage can lead to divorce, including but not limited to:

Having different values regarding money
Getting married without thinking through the implications
Infidelity
Different values regarding parenting
Abuse, physical or sexual
Substance abuse

All states offer no-fault divorce, meaning no one party will be legally blamed for causing the grounds for the divorce. 33 states currently offer options for filing for divorce with at least one party being at fault.

Pros

If the relationship is over, it is better to end it and move on than to separate but hope something comes back. Both parties will be legally allowed to remarry and will no longer have to file joint taxes. Couples without children can move on with their lives without ever needing to speak again if that’s what they want.

Cons

Filing for divorce can be time-consuming. If your state requires a waiting period or period of legal separation, it could easily take over a year before you even begin filing the serious divorce paperwork. Mediation on child custody cases are often required, and topics of alimony and child support are keeping the family law business alive. Absolute divorce will also cut off dependent spouses from social services they may rely on, such as military benefits. Just because you’re getting divorced doesn’t mean you don’t still care about your spouse.

Marriage is a commitment that isn’t always beneficial for those involved. This is why divorce rates rise during periods where couples tend to spend more time together. Divorce and legal separations are serious decisions and shouldn’t be taken lightly, but should be considered if your marriage is feeling damaging.

Things to Keep in Mind During a Child Custody Case

September 26, 2019 by Guest Contributor Leave a Comment

Divorce is a stressful and complicated time, made more complicated when child custody is involved. Tensions can run high and it can be difficult to reach a mutually beneficial agreement out of court. Here is a rundown of what to keep in mind when involved in a child custody case.

Types of Custody

Custody can often be split into two non-mutually-exclusive types: legal custody and physical custody.

Legal custody allows the parent to be a part of major decisions in their child’s life, such as their education, health, and religion. Legal custody is often shared by both parents, and allow both parties to be a part of the child(ren)’s life. Mutual legal custody is optimal in most divorce cases.

Physical custody relates to permanent residence and parental access to the child(ren). Physical custody can be partial, shared, or sole, and has a number of determining factors relating to the health, education, and disposition of the child(ren). Physical custody can be denied to a parent while legal custody is still allowed, but this is not ideal in most cases.

Determining Custody

The process for determining custody can be straining, especially if both parents want sole physical custody or are unhappy with shared custody. This can make taking a custody case to court seem inevitable, even though settling out of court tends to be better for the wellbeing of the family. Despite the general preference for out of court settlements, both individual and in court decisions can benefit the family.

Out of court decisions are better for families with uncontested decisions. They allow the papers to be filed faster and for the family to move on more easily. Some states and counties may require at least one mediation session to ensure both parties fully agree with the settlement they have written before presenting to the court. Classes on how to respond and interact with your child(ren) after being divorced may also be required.

In court decisions are required when a settlement cannot be reached between the parents. This may be because one or both of the parents are accusing the other of being unfit to be the primary custodial parent of the child(ren). The judge, when faced with such disagreements, will decide which parent is to get primary custody and may restrict the visitation rights of a parent they see as unfit to provide a safe environment for the child(ren). Factors the judge may consider include whether a parent is actively using and/or abusing substances, has been convicted of a violent or child-related crime or has been accused of parental alienation. If none of these are relevant factors, the court will look into individual relationships both parents have with their child(ren), ability to provide, geographical location, and the child(ren)’s personal preferences.

Parent Plans

Parent plans are mutually agreed upon terms as signed by the parents and the court. They are in-depth plans of where the child(ren) will spend weekdays, weekends, holidays, and birthdays. They are also known as child custody arrangements and should be followed and respected unless a variation is mutually agreed upon by the parents. Having a written down plan and having both parents follow that plan will help to ease tensions and let the family continue with their new life.

Child Support

As of the 2010 census, the average monthly child support payment was $430. The individual amount decided on by the court and the parents will be dependent on factors such as their ability to provide, the cost of living in the region, and the amount of physical custody the parent has. Child support must be paid, and if the parent responsible for paying does not provide it for an extended period of time, legal action can be taken against them.

When going through a child custody case, it is important to keep the best interest of all parties at heart. It is easy to get caught up in a battle of who deserves what and who is at fault when the focus should be the best outcome for the child(ren). A good family lawyer will help keep discussions on track while also fighting for the most mutually beneficial outcomes for their client as well as the child(ren).

Why is Summer the Most Common Season for Divorce?

August 27, 2019 by Mike Nason Leave a Comment

Summer: the season of watermelons, long days at the beach, fun family trips, and something unexpected—divorce. Surprisingly, new research out of Washington state claims that summer is the most common season for divorce. By analyzing annual trends, experts have come to understand what makes people more likely

What the Research Says

A study conducted by University of Washington sociologists looked at divorce trends in Washington state, finding that divorce filings increased substantially in both August and March. These dates are in line with school breaks and holidays. During this time, couples often spend more time together, which often highlights issues within the marriage and leaves both spouses thinking about their options. Family vacations and holiday trips, which take families out of their school and work routines, often make it all too easy for unhappy spouses to notice and reflect on their partner’s shortcomings.

How to Prepare for Divorce

While spring and summer breaks may be a significant source of stress for those in unhappy marriages, it’s important to take your time, consider your options, and prepare for the next step—whether or not that next step is divorce. Waiting until a marriage has reached the point of no return can lead to rash decisions, a rush to find legal representation, and animosity on both sides. If you think divorce may be inevitable, get everything in order before making a final decision. Schedule appointments with a divorce attorney and your financial advisor. It’s good to have an idea of how much debt you have, how much equity you have in your home, and the value of any other assets you may have.

If you want a divorce, it’s important to communicate clearly and openly with your partner. This discussion should be had when both parties are calm, rather than during the middle of a heated fight. While divorce is never easy, you can take steps to make it less painful for everyone involved.

Protecting Your Children

Children are one of the most common reasons that couples hold off on divorce. There’s no doubt that divorce can be traumatic to children, but in many cases, it’s less traumatizing than living in an unstable household with unhappy parents who are always fighting.

Working with a divorce attorney and going through mediation with your soon-to-be-ex-spouse can help you act in the best interests of your children. Many divorcing couples have chosen to move away from the traditional adversarial divorce model in which everything from custody to asset division is used to try to get revenge on the other party. A solution-focused divorce model allows both parties to advocate for their rights during the divorce process while maintaining open communication and laying the groundwork for a strong coparenting relationship.

The Benefits of Legal Counsel

Even if you and your partner are on the same side regarding how you want to proceed with the divorce, it’s crucial to hire competent legal counsel. An experienced divorce attorney can explain the long-term implications of any agreements or concessions you make during the divorce process, allowing you to make more informed decisions. If there are areas where you and the other party cannot come to an agreement, allowing divorce attorneys to do most of the difficult negotiation allows you to minimize your direct involvement and preserve your coparenting relationship.

Dedicated legal counsel can also save you a considerable amount of time during the divorce process. Divorce is a complicated legal process that requires a substantial amount of paperwork and documentation, which can be difficult to manage on your own if you’re also moving, learning to parent on your own, and juggling work responsibilities.

The Supreme Court Will Decide an International Custody Case

June 24, 2019 by Mike Nason Leave a Comment

When a relationship ends, it leaves lots of loose ends—particularly when there is a child involved. Under the best circumstances, determining child custody and visitation is difficult; when the parents have a contentious or volatile relationship, the stakes are even higher.

Such is the case for Michelle Monasky and Domenico Taglieri. The termination of their relationship was so fraught with controversy that their custody battle continues five years after it started.

The Timeline

After marrying in Illinois in 2011, Monasky and Taglieri relocated to Italy. Three years later, in 2014, they welcomed a daughter. Monasky alleged that Taglieri had been physically abusive to her. As a result, she left Italy and returned to Ohio with her two-week-old daughter.

Taglieri strove to protect his parenting rights, and an Ohio district court ruling sided with him. The appeals court judge noted that, in almost any situation, a baby should be a habitual resident of the country in which the matrimonial home exists.

Since then, the child has lived in Italy with her father. The mother, however, has continued exploring her legal avenues. The Supreme Court agreed to hear the case and determine whether or not the mother had a right to bring her to the United States—and, consequently, where the child will live after the ruling.

What Does the Supreme Court Case Mean

According to Anthony W. Kirby, a family law attorney, the Supreme Court is analyzing two elements: how to establish habitual residence and the standard of review appellate courts should apply.

“Analyzing the first, does a child have the ability to form such a strong connection with surroundings that removal would cause harm? Or should the Court look at the shared intent of the parents on where to raise the child prior to one party absconding? Lower Courts have implemented a slew of hybrid approaches to balancing these ideologies. The Supreme Court will likely put more emphasis on shared intent while creating exceptions for intent to be overcome if enough time has elapsed or if unnecessary trauma would be caused by removal.

Analyzing the second, should they be concerned only with clearly erroneous findings of fact, or should latitude be granted to allow them a clean slate? The majority of the lower courts have decided to review habitual residence on a de novo basis. The Supreme Court will likely follow the path of the majority, stating that while the parents’ intent is a question of fact to be overturned only if clearly erroneous, the overall decision of habitual residence is a question of law to be reviewed de novo.”

Complicated Custody Cases

This international case highlights a number of issues that plague divorcing couples across the United States. While the international aspect of the custody issues are relatively uncommon, there are many other factors that can make a domestic custody dispute challenging.

When one parent wants to move with the child, they may be setting themselves up for a lengthy court battle. If the other parent agrees to allow them to move with the child, it’s usually as simple as signing some paperwork and switching the child’s legal residence. If the non-moving party disputes the other parent’s request, the court must go through the difficult process of determining what is in the child’s best interests. Laws and standards vary by state, but in general, a parent interested in relocating has an uphill battle ahead of them.

Another issue touched on in this custody case is abuse. The role of domestic abuse in custody situations varies between states. While a state cannot compel a party to interact with their abuser, the victim may still have to provide access to their shared children, unless they can demonstrate that the other party also poses a threat to the children. If the victim is required to share parenting time with the alleged abuser, the court may set up supervised visits or use a safe third location as a drop-off point. In many cases, a third party collects the children from one party and later transfers them to the care of the other party, ensuring that the ex-partners do not have to interact.

Ideally, in any custody case, both parties will be able to set aside their differences to benefit the children. That’s why many states require that divorcing couples go through a coparenting course—the communication techniques and standards needed to successfully coparent are often substantially different from those used in a romantic relationship. A lot is at stake when custody issues are up for debate; divorcing couples should make custody discussions a priority and come to a mutually beneficial agreement that serves the needs of the children.

What About Fluffy?: Custody of Pets in Divorce

May 28, 2019 by Mike Nason Leave a Comment

Those who own pets know the deep bond that you can form with an animal—and unfortunately, too many know the pain of being separated from a beloved pet during divorce. In most states, pets are simply treated as property during a divorce. The court may look into who purchased the pet, whose name is on the microchip, and who has previously paid for veterinary care. However, most states do not look at the well-being of the pet; pets are simply treated as another asset to be split up.

This is changing in several parts of the country as more and more states introduce laws outlining how the court should consider pets during divorce cases.

Pennsylvania Gets Ready to Protect Pets

Pennsylvania legislators recently proposed a law that would change how courts view animals. When choosing who should receive guardianship of a pet, the court would look at a wide range of factors, including:

Who provides the majority of the pet’s daily care
The source of the pet’s social interaction
Financial ability of each party to support the pet’s needs
Who covers the expenses of veterinary care
Whether or not the animal was acquired during or prior to the marriage

H.B. 1432 has received substantial support from legislators, who recognize that treating animals as property often leaves their needs unmet. In the past, divorcing spouses could agree on a custodial agreement in court. If one spouse later chose to stop following the agreement, though, the court would not enforce the terms of the agreement, rendering it useless.

If this law passes, it could benefit divorcing parties who prioritize custody of their pet over the financial assets of the marriage. This occurs in a surprising number of divorce cases. Rather than having their love for their pet exploited for the other party’s financial gain, pet owners can feel confident that the court will consider the pet’s needs while determining who receives guardianship.

However, Eric Gibson, a divorce attorney with a family law firm in Pennsylvania offers a counterpoint. “Divorces are already complicated enough given the emotions involved,” said Gibson. “Counseling clients through the process often requires helping them separate the emotion from the case. Given the no-fault aspect of divorce and the factors for equitable distribution, divorces have largely been reduced to something akin to a business transaction that focuses on the economics of the parties. This is a good thing.”

“While animals can cause a point of contention, in my experience, in the end the party who truly wants the animal and is capable of caring for it is ultimately awarded the animal. Rarely have I had a case where the parties cannot reach agreement on the pets. Adding this as another component, in my view will only serve to create more problems, more ability for the parties to fight over difficult and subjective determinations like the ‘source of the pet’s social interaction.’ When litigation is made more complicated, it typically means more expense. More chance for the case to end up in court versus being settled.”

California, Illinois, and Alaska: Pioneers in Pet Custody Law

The proposed law in Pennsylvania is fairly similar to those passed in several other states, including California and Illinois. In early 2019, a new California law designed to find the middle ground between pets as property and pets as children went into effect. The law established special assessments to determine who receives pet guardianship when both partners claim ownership. The law looks at questions similar to those in Pennsylvania H.B. 1432, including “Who walks the dog?” and “Who takes the pet to vet appointments?” If appropriate, the court may even decide to award joint guardianship to the divorcing spouses.

The Illinois law is slightly older, dating back to 2017. The law puts guidelines in place for the treatment of animals that are marital assets. Rather than simply giving the pet to one spouse or the other, the judge can look at a number of guidelines to figure out what best serves the needs of the pets. This legislation mirrors a law passed in Alaska.

What Other States Say

While most states still look at pets as property, the tide could be turning. A growing number of divorce cases involve disputes over pet ownership, and legislators in many states have started to realize that it is inhumane to treat pets the same way you would jewelry or a retirement fund during divorce. Some experts expect a rush of pet guardianship laws to reach legislative floors in a number of states in coming years. In the meantime, divorcing pet owners should feel empowered to advocate on their pet’s behalf and fight for them to get the best care possible.