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Mar 18
Love0
Divorce

Five Key Financial Dos to Follow in a Divorce Case

By Family law

The distribution of assets and the division of debts represent among the most important and challenging aspects of a divorce case. Typically, issues involving property and debt tend to be the most contentious in many divorce cases, after only those matters associated with child custody. With this in mind, there are five key financial dos to bear in mind and following a divorce case:

  •   Organize all relevant financial records
  •   Itemize debt
  •   Document assets
  •   Understand asset distribution and debt division laws in your state
  •   Update estate documents and instruments

Organize All Relevant Financial Records

At the commencement of a divorce case, both spouses will need to prepare and submit to the court a document itemizing property and debts. This written submission is made to the court under penalty of perjury. 

In order to be prepared to make accurate submissions to the court, and to be able to effectively stake out your position regarding property distribution and debt division in a divorce case, you need to make sure you identify and then organize all-important financial records. Financial records needed for divorce proceedings include everything from bank account statements to tax records (going back at least three years). An experienced divorce lawyer can assist in making certain that you identify and organize all financial records vital to marriage dissolution proceedings.

 

Itemize Debt

In addition to organizing all key financial records, you also need to make certain that you itemize all outstanding debt. As part of the debt itemization process, you need to pay particular attention to any debt that you legitimately believe is not jointly owed by both you and your spouse. 

Only marital debt – debt incurred during the marriage – is subject to division in divorce proceedings. Any debt you or your spouse garnered before the marriage typically is not subject to division in a divorce case. With that said, if marital assets were used to pay down a preexisting debt, the amount of money from the marriage that paid down a preexisting debt does become involved in the overall asset distribution and debt division in a divorce case.

 

Document Assets

 

You also need to thoroughly document assets. This can involve a number of different processes:

  •   Depending on the nature of particular assets, you may want to take photos or even video them.
  •   Certain assets may also require an appraisal as part of the property documentation process. For example, the marital residence (your home) will likely need to be appraised. In addition, any jewelry thought to be more valuable may need to be appraised as well.

Understand Asset Distribution and Debt Division Laws in Your State

In a considerable majority of divorce cases, the parties are wise to seek legal counsel. Even if you do hire a divorce attorney, you are wise to have a basic understanding of the key provisions of fundamental divorce laws in your state. This includes laws relating to child custody, child support, and the distribution of assets, and the division of debts.

There are two schemes used by different states to address property and debt in a divorce case:

  •   Equitable division of property standard
  •   Division pursuant to community property standard

Most states in the country utilize the equitable division of property standard in divorce cases. Pursuant to this standard, assets, and debts in a divorce case are to be divided between the parties in a manner that is equitable and fair based on the specific facts and circumstances of the case. 

The community property standard is used in about a dozen states in the country. With that said, these states include California and Texas. When the community property standard is in place, the court presumes the assets and debts accumulated during a marriage should be divided equally between the divorcing spouses. Good cause must be demonstrated to deviate from the equal division of assets and debts.

 

Update Estate Documents and Instruments

Finally, at the conclusion of a divorce case, you need to update your estate documents and instrument. This includes everything from your last will and testament to your power of attorney for healthcare 

As mentioned previously, the distribution of assets and division of debts in a divorce case can be challenging. This includes legal complexities associated with this task. Consequently, when assets and debts are an issue in a case, legal representation is recommended.

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Mar 17
Love0
CustodyChange

5 Factors a Court Considers when a Change of Custody is Sought

By Family law

Parents in divorce settings often desire to obtain a change of custody. In some cases, the parents are able to mutually agree to a custodial change. In other instances, the parents are not able to reach an agreement regarding a change of custody. In that type of situation, the parent seeking to change custody must file what typically is known as a motion or petition with the court. The court then considers a variety of factors when considering a custodial change. These considerations are unique to each situation and custodial determinations are made on a case-by-case basis. In this regard, a parent needs to understand how the best interests of a child’s standards are applied in a change of custody setting. In addition, there are five fundamental factors a court considers when faced with a request to change custody:

  •   Application of the best interests of a child standard
  •   How much time elapsed from the last custody order?
  •   What change in circumstances warrant a change of custody
  •   What are the living situations of each parent?
  •   Is the parent seeking custody likely to encourage contact between the child and the other parent?
  • What is the preference of the child?

Application of the Best Interests of a Child Standard

In all states across the country, courts apply what is known as the best interests of a child standard when making custody decisions. The best interests of a child standard require a judge to consider the specific facts and circumstances of a particular case in which custody is an issue.

 

In ascertaining what is in the best interests of a child, a court considers an array of different factors. There are some factors that more routinely are used by a court in making a decision pertaining to the best interests of a child in a situation in which a change of custody is desired.

 

How Much Time Elapsed from Last Custody Order? 

One of the factors considered by a court when weighing and balancing a request to change a custody arrangement is how much time elapsed from the issuance of the last custody order. Some states have specific timeframes within which custody can be changed (in the absence of some sort of emergency).

 

Otherwise, there is a pervasive public policy that centers on maintaining a sense of stability for a child. Unnecessary gyrations regarding custody arrangements have the very real potential to negatively impact the overall stability of a child’s life.

 

What Change in Circumstances Warrant a Change of Custody?

A parent needs to demonstrate that a notable change in circumstances has occurred that supports a change of an existing custody order. Oftentimes, this is referred to as a material change in circumstances. Examples of a material change in circumstances include such issues as a current custodial parent laboring under substance use disorder or some type of debilitating health issue. A custodial parent who frequently interferes with the noncustodial parent’s parenting time can also be considered a material change of circumstances.

 

What are the Living Situations of Each Parent?

In determining the propriety of changing an existing custody arrangement, a court will want to examine the living situations of the parents. The court might order what is known as a home study of the residence of the parent seeking custody to get a full understanding of the living situation at that location.

 

Is the Parent Seeking Custody Likely to Encourage Contact Between Child and Other Parent?

A court will also examine which parent is most likely to encourage contact between a child and the other parent if granted custody. As a matter of public policy, courts favor a custodial parent who demonstrates an ability and willingness to ensure a child develops a meaningful relationship with the noncustodial parent.

 

What is the Preference of the Child?

Depending on the age and maturity level of a child, his or her preferences can be taken into consideration when a parent desires to change custody. A parent needs to understand that the laws do vary from one state to another when it comes to the role the preference of a child may play in changing custody.

A contested motion to change custody can prove to be a legally complicated and emotionally challenging endeavor. As a consequence, a parent seeking to change custody or a party defending against such an alteration typically is best served seeking legal representation.

 

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Mar 16
Love0
Child Custody

5 Factors a Court Considers in Child Custody Case

By Family law

Divorce cases are legally complicated and oftentimes emotionally charged legal proceedings. When child custody is at issue, a divorce case can resemble an ominous battlefield in some instances. Understanding the complexity and emotionality of custody disputes, an attempt is made to tamp down passions by developing factors a court can consider in determining the best interests of a child in a divorce case. 

In applying the best interests of a child standard in making a custody determination, a court can consider any number of different factors. The more frequently considered factors in determining the bests interests of a child in a custody matter include:

  •   Consideration of which parent has been the primary caretaker of a child
  •   Physical, mental, and emotional health of the parties
  •   Consideration of which parent is most likely to encourage a relationship with the noncustodial parent
  •   Child’s preference regarding custody
  •   Residential status of parents

Understanding the Best Interests of a Child Standard

Before diving deeper into a discussion of some of the more commonplace considerations used by a court in determining the best interests of a child in a custody, a person is wise to have a clearer understanding of what is meant by the best interests of a child standard. Although parents do have certain rights themselves when it comes to matters involving child custody and parenting time or visitation, in the final analysis, the most important rights are those associated with a child. While parental preferences and protecting valid parental rights are important, in the grand scheme of things, the best interests of a child reign supreme.

A court makes a determination as to what is in the best interests of a child on a case-by-case basis. The unique facts and circumstances of a case govern a court’s decision-making when it comes to matters related to custody and parenting time. A cookie-cutter or one-size-fits-all standard is never applied in all child custody matters.

 

Consideration Which Parent Has Been the Primary Caretaker

Long gone are the days in which a mother is presumed to be the primary caretaker of children. Awarding a mother primary residential custody of a child is no longer the legal default position of the law in any state in the U.S.A.

A court will consider which parent historically has been the primary caretaker of a child. In a considerable number of cases, a court is apt to conclude that the parents shared relatively equally in providing care for a child.

 

Physical, Mental, and Emotional Health of the Parties 

In considering the best interests of a child in a custody matter, a court is likely to consider the overall physical, mental, and emotional health of the parents and the child. A health issue is not likely to preclude a parent from a favorable custody decision. An issue with substance use disorder very well may. Consideration of physical, mental, and emotional health issues very much is done on a case-by-case basis.

 

Consideration of Which Parent is Most Likely to Encourage a Relationship with the Noncustodial Parent

A judge will consider which parent is more likely to encourage a relationship with the noncustodial parent. A parent more willing to encourage the other parent to maintain a strong, close relationship with a child garners favorable consideration in regard to this factor when it comes to a custody determination.

 

Child’s Preference Regarding Custody

In many jurisdictions, the preference of a child regarding custody may be considered by a court. Whether a child’s preference is considered depends on the age of the child as well as the maturity level of that young person.

 

Residential Status of Parents

Finally, among the five factors, a court routinely elects to consider when determining the best interests of a child is the consideration of the residential status of the parents. The focus is on both parent’s homes with an eye to considering which residence will be most conducive to healthy growth and positive development of a child. This can include a reflection of not only the physical structure of the residence and its location but also on a close consideration of who else lives at the residence.

 

When parents recognize that the primary objective in the development of a custody and parenting time order in a divorce case is to enhance the best interests of a child, parties oftentimes temper their own emotions. When the focus is kept on a child, parents are more apt to try to maintain open lines of communication. In addition, they are less inclined to routinely or even consistently go to battle over even the smallest of issues.

 

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Mar 01
Love0
Custody

Basic Overview of the Best Interests of a Child Standard in a Custody Case

By Family law

Disputes involving child custody oftentimes prove to be some of the most contentious aspects of divorce, separation, and paternity cases in the United States. There is some variation in the laws governing child custody from one state to another. With that noted, all 50 states generally utilize the same standard when determining child custody issues. This guideline for determining custody is known as the best interests of a child standard.

Essential Definition of the Best Interests of a Child Standard

The best interests of a child standard necessitate a specific consideration of a variety of factors unique to a particular situation in which custody is an issue. The best interests of a child standard do not take a cookie-cutter or one size fits approach to custodial determinations.

 

Factors Utilized to Ascertain the Bests Interests of a Child

As mentioned, the best interests of a child standard are applied on a case-by-case basis. There are some more commonplace standards that are utilized by a court in applying the best interests of the child standard in making custodial decisions. These include:

  •   Consideration of which parent historically has been the primary caretaker of a minor child
  •   Physical health of the parties
  •   Mental health of the parties
  •   Emotional state of the parties
  •   Consideration of which parent is most likely to ensure appropriate parenting with the other parent
  •   Living environments of the parties
  •   Location of each parents’ residence
  •   Preference of a child (in some cases, as discussed in more detail in a moment)

 

Best Interests of a Child and Custody Agreements

There is a public policy preference for parents to be able to come to an agreement when it comes to issues surrounding custody of minor children. In many divorce, separation, and even paternity proceedings, the parties are able to reach an agreement in regard to child custody.

The laws in all 50 states require a court to approve a custody agreement reached between parties before it becomes the order in a case. A judge will review a custody agreement reached between parents to ensure that it is in the best interests of a child subject to the court proceedings.

 

Child’s Input in Custodial Decision Making

In some cases, input from the child that is subject to a custody proceeding is considered by a judge. Generally speaking, a child’s preference is not absolutely determinative in a custody case but can be significantly persuasive.

States laws do vary in regard to how a child’s input impacts custodial decision-making. The most common practice is for a court to consider the preference of an older child when it comes to custodial placement in a divorce, separation, or paternity case. The maturity level of a child is also taken into consideration when it comes to that’s child preference in regard to custodial placement.

 

Change of Custody and Best Interests of a Child

The day may come when a desire or need arises to change custody. When a change of custody is desired or needed, the best interests of a child standard comes into play in the same manner as it does when custody is being established.

If the desire to change custody is disputed, a hearing typically is held before the court. The parent desiring to change custody must demonstrate to the court that the alteration in a custodial order is in the best interests of a child or children.

If parents have a mutual desire to change a custody arrangement, their plan must obtain approval from the court. A judge must review the proposal to ascertain whether or not it is in the best interests of a child or children. 

On a concluding note, public policy and the laws of each state maintain that stability is in the best interests of a child when it comes to custody. For that reason, changes in child custody cannot occur in a haphazard or even unnecessarily frequent manner. In addition to applying the best interests of a child standard, a court also considers whether there has been some sort of material change since the last custody order that supports an alteration in an existing custodial arrangement.

Disputes involving child custody oftentimes prove to be some of the most contentious aspects of divorce, separation, and paternity cases in the United States. There is some variation in the laws governing child custody from one state to another. With that noted, all 50 states generally utilize the same standard when determining child custody issues. This guideline for determining custody is known as the best interests of a child standard.

 

Essential Definition of the Best Interests of a Child Standard

The best interests of a child standard necessitate a specific consideration of a variety of factors unique to a particular situation in which custody is an issue. The best interests of a child standard do not take a cookie-cutter or one size fits approach to custodial determinations.

 

Factors Utilized to Ascertain the Bests Interests of a Child

As mentioned, the best interests of a child standard are applied on a case-by-case basis. There are some more commonplace standards that are utilized by a court in applying the best interests of the child standard in making custodial decisions. These include:

  •   Consideration of which parent historically has been the primary caretaker of a minor child
  •   Physical health of the parties
  •   Mental health of the parties
  •   Emotional state of the parties
  •   Consideration of which parent is most likely to ensure appropriate parenting with the other parent
  •   Living environments of the parties
  •   Location of each parents’ residence
  •   Preference of a child (in some cases, as discussed in more detail in a moment)

 

Best Interests of a Child and Custody Agreements 

There is a public policy preference for parents to be able to come to an agreement when it comes to issues surrounding custody of minor children. In many divorce, separation, and even paternity proceedings, the parties are able to reach an agreement in regard to child custody.

The laws in all 50 states require a court to approve a custody agreement reached between parties before it becomes the order in a case. A judge will review a custody agreement reached between parents to ensure that it is in the best interests of a child subject to the court proceedings.

 

Child’s Input in Custodial Decision Making

In some cases, input from the child that is subject to a custody proceeding is considered by a judge. Generally speaking, a child’s preference is not absolutely determinative in a custody case but can be significantly persuasive.

States laws do vary in regard to how a child’s input impacts custodial decision-making. The most common practice is for a court to consider the preference of an older child when it comes to custodial placement in a divorce, separation, or paternity case. The maturity level of a child is also taken into consideration when it comes to that’s child preference in regard to custodial placement.

 

Change of Custody and Best Interests of a Child

The day may come when a desire or need arises to change custody. When a change of custody is desired or needed, the best interests of a child standard comes into play in the same manner as it does when custody is being established.

If the desire to change custody is disputed, a hearing typically is held before the court. The parent desiring to change custody must demonstrate to the court that the alteration in a custodial order is in the best interests of a child or children. 

If parents have a mutual desire to change a custody arrangement, their plan must obtain approval from the court. A judge must review the proposal to ascertain whether or not it is in the best interests of a child or children.

On a concluding note, public policy and the laws of each state maintain that stability is in the best interests of a child when it comes to custody. For that reason, changes in child custody cannot occur in a haphazard or even unnecessarily frequent manner. In addition to applying the best interests of a child standard, a court also considers whether there has been some sort of material change since the last custody order that supports an alteration in an existing custodial arrangement.

Related Link:
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