Family Law Manual-Part Two
9. Jurisdiction and Venue
For the most part, issues of jurisdiction and venue are beyond the scope of this manual. Problems concerning these issues ought to be discussed with an attorney in your area. However, there are a few comments to make which may be helpful.
The court which initially has proper jurisdiction in a family law case retains jurisdiction even if both parents and the children move away. A new court might acquire jurisdiction over the case by mutual agreement of the parties or because one party files a motion to move the case. Courts try to avoid forum shopping, so there needs to be a good reason to move a case. Most states, if not all, have adopted at least parts of the Uniform Child Custody Jurisdiction Act (UCCJA) which tries to prevent custody fights from occurring in two states at the same time. For particulars about which state is the child's home state for purposes of the act, check with a local attorney.
There are situations where a court will grant a divorce to a person (because that person is a resident of that state), but not be able to award such person a share of the marital property or issue an order of custody or support because the other spouse is not a resident of the state. Again, check with a local attorney if you have this situation.
10. Pre-Trial Procedures
Parties in a divorce may avail themselves of certain procedures before the divorce papers are even filed and certainly before the trial or separation agreement. The most obvious procedure to follow is self-help. For example, if there is a bank account with joint money in it, one spouse might help herself or himself to half the funds and open a new account with those funds to which the other spouse does not have access. A somewhat more drastic form of self-help is to take all of the cash out of the account, instead of just half. The party who takes the money will later be accountable to the other party for their half. However, this is a way to preserve all of the funds against the possibility the other party will take them.
Frequently, parties will informally decide what personal possessions each will keep and not involve a lawyer or the court system in the division of their pots and pans and other minor household items. The parties know which car should go to which spouse, although there might be a disparity in value of the cars requiring a compensating payment of some kind. Parties can also often agree on a visitation schedule early on after their separation and stick to it.
In a case where there has been domestic violence, the most common form of self-help is a call to the police. If there has been abuse of children, child protective services should be called.
All states provide for emergency court orders to protect a party who requires protection. Sometimes called emergency protective orders or temporary restraining orders, these are court orders issued in an expedited manner to protect a spouse from harassment of one kind or another. Since they are usually issued against a party without the opportunity to be heard (ex parte), they are of short duration and are followed quickly with a hearing. The down side to emergency orders is that it is usually quite expensive to get a lawyer to go to court on an emergency basis to get the order. However, there may be a low cost legal clinic in your area which will help with the necessary paperwork for reduced fees or no fees. Also, keep in mind, the order is just a piece of paper signed by a judge. It does not enforce itself. Therefore, it does not always provide the protection people expect.
11. Custody of Children
First, in order to clear up some confusion, let us distinguish between legal custody and physical custody. Legal custody is something like having the pink slip (title) to a car. The pink slip matters since one cannot borrow against the car or sell it without the pink slip, but on a day to day basis the pink slip usually sits in a bank vault and is ignored. What matters most with cars is who has the keys and drives it. The person who has the use of the car, buys the gas, pays the insurance, etc. is what matters most of the time. Likewise, physical custody, not legal custody, is what is most important most of the time. The parent with whom the child is living and making the decisions for the child on a day to day basis is the parent who has physical custody and that is usually what matters most. The other parent (the non custodial parent) gets visitation rights.
When parents get along they may decide they do not want to specify exact terms for visitation, but are satisfied to have "reasonable" visitation. They recognize that what is reasonable for a three year old is not necessarily reasonable for a thirteen year old and what is reasonable if the parents live close by is not reasonable if the parents live a great distance from each other.
However, many parents prefer or require the certainty of a specific visitation schedule so both parents know in advance when the children will be with Mom and when they will be with Dad.
In almost all, if not all, jurisdictions the issue in a contested child custody case is: What is in the best interest of the child(ren)? It is not a matter of who wants the children more or who has more money and can provide more financial benefits. Also, it is not up to the child to decide.
Although the determination of custody is one of the most difficult, heart wrenching decisions a judge makes, it is a mistake to think of the contest as a winner takes all fight. In the great majority of cases, the "loser" parent will still be entitled to significant and substantial time with their child(ren).
Many factors are weighed in determining what the best interests of the child are, but obviously of primary importance is the stability offered by the parents. Consequently, if one parent has been the primary caregiver, that parent has a clear advantage in a custody fight. In this day and age, however, there are more and more families where both parents work out of the house and the child is in day care or school during the day and neither parent is really the primary caregiver or both parents are equal caregivers. As the child gets older more weight is given to the child's desires regarding custody, but most judges try hard to avoid placing a child in the position of having to decide between Mom and Dad.
We have discussed the usual situation where there is a good and loving parent on one side and a good and loving parent on the other side. Those are difficult cases. Where one parent is "bad" i.e. there is a problem with substance abuse or violence, for example, judges will usually not terminate visitation rights. Instead, courts will order supervised visitation. In addition, third parties, such as grandparents and even former step-parents, are sometimes granted visitation rights.
Usually, the responsibility for pick up and drop off of the child for visitation is with the non-custodial parent. However, when the custodial parent has moved to another location with the child, such parent may be required to pay for all or some of the additional costs of exercising visitation.
The parent with whom the child lives most of the time is entitled to take the child as a dependent for tax purposes, not the parent who pays child support. However, parties will sometimes agree to release their right to the deduction to the other parent. The reason to consider doing so is to save taxes overall and divide the
tax savings equitably.
12. Child Support
All parents must support their children. "Parents" includes the biological mother and biological father. "Parents" also includes adoptive parents. All parent-child rights and responsibilities are severed in the event of an adoption, so a biological parent is relieved from support duties after a child is adopted by someone else. A step-parent is not legally required to support a child.
When a woman seeks to prove a certain man is the father of her child, the legal proceeding is called a paternity suit. When a man seeks to prove he is the father of a certain child, the legal proceeding is called an inverse paternity suit. All states have laws relating to presumptions regarding parentage and the right to file paternity or inverse paternity suits. If parentage is an issue in your situation, you ought to consult an attorney in your state right away to find out what your rights are, because some states severely limit the right to contest parentage and waiting can cause a loss of rights.
All states have guidelines with regard to the amount of money a judge should award for child support. Although states differ in their guidelines, the most important variable in determining child support is the income of the father and the income of the mother. Other considerations which may be relevant are the amount of time the child spends with each parent, the ability to earn money on the part of the parent (as opposed to the parent's actual earnings), assets of the parents, expenses of the parents and of the child (especially child care), other later born children from a subsequent relationship or other children from a prior relationship which a parent is required to support. A new spouses' income may be considered in determining support in some states (not California). If a child has special needs, such special needs would be a reason to adjust the guideline figures.
Sometimes child support will be in a form other than cash. For example, a mother and child might be awarded use of the family home even after a divorce as a form of child support. Health insurance, especially if it is available through a parent's employment at a reasonable cost, will usually be made part of a child support order. Parties may agree to a cost of living adjustment to the child support payments to avoid having to go back to court in future years for an adjustment. Consult an attorney to more precisely determine the child support appropriate in your case.
Child support will usually terminate when the child is no longer a minor, however, some states may require the paying parent to continue child support payments while the child is in school. The "emancipation" of a child, by marriage or other means terminates the parent's responsibility for support.
Child support payments are not deductible by the paying parent and are not reportable as income by the receiving parent for tax purposes. The parent with whom the child lives more than half the time is entitled to claim the child as a deduction unless an agreement is made between the parents otherwise.
The formula for determining child support in California is set forth in Family Code section 4055. Since it is a complicated calculation, attorneys use a commercial computer program (such as Dissomaster TM) to make the calculations.
13. Spousal Support
In most states there is a distinction made between temporary support and permanent support where temporary support is available on an expedited basis for emergency help without the necessity of a full and complete court hearing on all of the issues. Permanent support, on the other hand, is support intended to last for some period of time and is awarded after a trial. However, the term "permanent" is misleading in many cases because it can be modified later due to a change in circumstances. If a party becomes disabled or is laid off, for example, such party would normally be entitled to go back to court for a modification of the amount of support, either up or down as the case may be.
The two issues regarding spousal support are: How much support and how long will it be paid? A skeptic might also add a third issue: How can I collect it?
The amount of support is determined by numerous factors. In states with a fault system, the "bad" spouse may receive less support as as result of the bad behavior or have to pay extra support because of it. However, in the majority of situations, spousal support is not intended to punish. Its purpose is to help with the transition from a marriage where one spouse is financially dependent (to a greater or lesser extent) on the other spouse, to a condition where the receiving spouse can be self-supporting. Besides fault (in those jurisdictions which recognize fault), other factors which the judge may take into consideration when ordering support include: the length of the marriage, the previous employment history of the receiving spouse, the needs of the receiving spouse (usually determined by the standard of living during the marriage), the age and health of the parties, assets of the parties, etc..
It is important to note the expenses of the parties may not be nearly as crucial in determining the amount of spousal support as the income of the parties. If expenses did count for a lot, the paying spouse would simply incur debts and ask for relief because of those debts or the receiving spouse would incur debts and ask for extra support to pay the debts. Also, spousal support is usually based on a party's actual income as opposed to their potential income. However, a court may impute income if it appears a spouse intentionally depressed their income.
Spousal support may be paid for a very brief period of time or for life (and in some cases spousal support rights and duties extend beyond death.) In the usual case, spousal support is ordered either for a certain period of time, such as a definite number of years, or it is ordered to be paid "until further order of court" i.e. indefinitely. There is usually a triggering event which would cause the obligation to pay support to end. Such a triggering event would be the death of either the paying spouse or the spouse receiving the support or the remarriage of the receiving spouse (and possibly cohabitation of the receiving spouse.)
Spousal support is almost always paid monthly or bi-monthly. It is possible, however, to have a one time lump sum payment of support. Far more common is the situation where the support is stepped down over time to encourage the supported spouse to become self-supporting or the support adjusted upward to account for cost of living and anticipated raises in pay.
Spousal support may also take a non-cash form such as when a spouse is given the use of an asset such as the family home.
Unlike child support, spousal support is deductible by the paying spouse and reportable as income by the receiving spouse for income tax purposes.
14. Division of Property
As far as this manual is concerned, if you have enough property to be concerned about how to divide it, you should obtain the help of an attorney to explain your rights to you. If you do not have much property (assets and debts), you can probably work out some kind of agreement with your spouse to divide your property yourselves.
In a case where there is little in the way of assets, mostly just household goods and a car or two, and little in the way of debts, just a few credit cards, the benefit of an attorney's assistance is probably not worth the cost. However, if there is a house (and mortgage), a pension plan or retirement benefits, and other assets and/or significant debts, it just makes sense to bite the bullet and hire an attorney. The fees you pay will be cost effective in most cases.
It is really important to realize even though one spouse agrees to be responsible for certain debts, an agreement between you and your spouse is not binding on your creditors. This means if one spouse promises to pay certain obligations and does not pay them, the other spouse remains liable for the obligation and may be sued.
Since states vary with regard to the laws on division of marital property, not too much can be said that will apply in all states. However, since I have already suggested the need for an attorney's advice if there is significant property or debts, here are some common issues that should be discussed with your attorney when dividing property:
Are gifts and inheritances marital property to be divided or are they considered separate property?
If you can trace the source of the acquisition of marital property back to separate property does that make the property separate?
Will property be divided equally or equitably?
Will fault be considered in the division of property?
Will property be valued for purposes of division as of the date of separation or as of the date of trial?
If the property is commingled, does it lose its character as separate property?
Does either spouse have a right to reimbursement from the other spouse or from the community as a result of payments made during the marriage or after separation?
Is there a right to reimbursement because of the education obtained by one spouse or both during the marriage?
Is there a premarital agreement or other agreement which purports to affect the rights of the spouses to assets or debts?
This list of questions to discuss with your attorney is obviously not exhaustive, but will cover a lot of ground and will no doubt lead to many other questions depending on your situation.
15. Enforcement of Judgments and Orders
Generally, there are two types of court orders people need to enforce. The first are restraining orders, and the second are support orders. Restraining orders usually, but not always, restrain a person from doing something. They may also require someone to do something. Typical is an order restraining someone from harassing, threatening, molesting, annoying, telephoning or disturbing the peace of another person. Once a court has issued such an order, the protected person may call the police or sheriff for help in enforcing the order. The courts do not enforce their own orders.
The court only has the power to hold the restrained person in contempt of court for failing to comply with its order. "Contempt" is a willful failure to comply with a court order. Courts are reluctant to use the contempt power by sending the guilty party to jail. In aggravated cases, the court will order jail, but usually only for a few days at most. A court may also impose sanctions, usually monetary, against a person who is in contempt of court. Contempt of court is not a particularly satisfactory solution to a problem.
It should also be pointed out that parents often feel they are justified in not paying child support if the other parent is preventing visitation, or, conversely, if a parent is not paying child support they should not be allowed their visitation rights. While there is a certain amount of logic to this way of thinking, the usual rule is that the right to visit with children and the obligation to pay support are independent of each other and, therefore, "two wrongs do not make a right."
Support orders may be enforced by a wage assignment (attachment) which requires an employer to deduct money automatically from an employee's pay check. Another way to enforce a monetary judgment from a court is by a writ of execution. A writ of execution directs a law enforcement official to execute the judgment by attaching property of the debtor. The debtor's property, including bank accounts or cars, may be attached. Someone owed money may also file a lien on the property of another. A lien is a notice of an obligation owed. Once a lien is filed against the property of debtor, the creditor may try to execute on the lien by selling the property.
Before a judgment can be enforced in a state other than the state where the judgment was rendered, it has to be recognized by the sister state. The procedure varies from state to state. Suffice it to say that if you have a judgment from one state and you want to enforce it in another state, you will have to follow certain procedures first.
The district attorney will enforce a support order for child support or spousal support. This is a free service and is a result of the Uniform Reciprocal Enforcement of Support Act (URESA.) Some people who do not respond to other methods, will respond to a letter from the district attorney.
Statistics indicate that about have of all support orders are obeyed. In most cases, therefore, it is dangerous to rely on a support order if you are counting on support to pay the rent or buy groceries. A goal for a spouse receiving support should be to become financially independent as soon as possible.
16. Modification of Judgments and Orders
All states provide a mechanism for modifying a judgment or order after it has been issued. Although there needs to be an end to litigation some day, the legal system also needs to be flexible enough to allow people to adapt to changing conditions. Therefore, family law matters are different from other civil cases in an important respect. In a typical case, once a trial is over and the time to appeal has run, the decision of the court is final. However, in family cases, decisions regarding child custody, visitation and support payments are subject to further court decision years after the initial determination.
If there has been a change in circumstances, a person may return to court to ask for a modification of an existing order. Support payments may be modified up or down to reflect an increase or decrease in a paying or receiving spouse's income. While some spousal support orders are specifically made non-modifiable, child support payments remain under the jurisdiction of the court and can be changed depending on the circumstances. Check with an attorney to find out if your situation qualifies for a changed order. The rules and guidelines in this area of the law are nebulous and only an experienced attorney can predict the result of an attempt to change a support order, except in the most obvious cases. Even in the obvious case where an adjustment to a support order is appropriate, you will still want to know what to expect as far as the amount of adjustment is concerned. A relatively small change in support, multiplied by twelve months a year times several years, can add up to a big number and it is worth the cost of an attorney to be properly advised.
Modification of child custody orders is another matter. While courts retain jurisdiction over minors to change custody, in order to prevent the losing parent from continually returning to court to re-litigate a custody determination, the standards for a change of custody are very hard to meet. Parents often believe that if their child, who has been living with one parent, now decides she or he wants to move in with the other parent, the courts will change legal custody. This generally is not the case. Of course, parents may make any agreement they want with regard to custody of their children, but courts are very reluctant to put the child in the position of having to choose between parents. The older a child is, however, the more a judge is apt to take the child's wishes into consideration. As all parents know, it is very difficult to get a sixteen year old to do something she or he does not want to do. However, judges know sometimes a child wants to move in with the other parent for the wrong reasons. For example, the non-custodial parent may be very lax and not require school work be done or that there be a curfew.
There is not the same reluctance to change visitation orders. In fact, visitation orders are changed quite frequently, especially in these days of a mobile society where it is common for parents to relocate. One of the issues currently gaining high visibility is the rights of a parent in a move away situation. There is generally no hard and fast rule on the right of a parent to take the child and move away, thereby affecting the other parent's rights of visitation. This situation is usually decided on a case by case basis balancing the rights of both parents and the best interests of the child.
17. Further Resources
E-mail Michael Hall Gray and check out the link to "Other Legal Sites" at the bottom of this page. There is also a page of links to "State Bar Associations" many of which provide a great deal of information. Your library may be a good source of information. However, state laws vary so you need to be careful to look at books written for your state.
18. Related Issues But Not Included In This Manuel
c. Crimes (interspousal)
d. Same sex marriage
e. Surrogate parents
f. Name change
h. Torts (interspousal)
k. Power of Attorney
E-Mail Michael Hall Gray, Attorney at Law