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Common Divorce Law Terms Defined

 

Properly understanding and becoming knowledgeable in anything takes time. Research, studying and fully immersing oneself into something is the only way to truly pick up all the relevant information needed to know enough on anything. Divorce is no different. Attorneys who specialize in family law have studied for years to become as well informed on the subject as they are. Filing for divorce can be an emotionally trying event and process in general. However, going into it, knowing some of the basics is a much better way to enter, than going in and not knowing anything about anything. There are terms, laws, details and specific stipulations that are unique to each individual state. Some courts rule differently on the same issues due to this. Knowing some of the lingo and the processes for some of the most common occurrences in Family Law is a good way to get filled in and begin to understand just how divorce works. So, here are a few terms explained and dissected to help you along the way.

Petition for Dissolution of Marriage
This is a pleading document, filed with the court that initiates the divorce process. The person filing the Petition is called the Petitioner and they are the ones who are asking the court to dissolve their marriage or to legally sign off on the divorce requested.This petition must be filed to get the divorce process started. Without this form, no filing can begin, this is single-handedly the most important document in the process.

Marital Settlement Agreement (MSA)
This document, commonly known as the MSA , is the end goal of every divorce.  It is a contract entered into between the parties in question in the divorce filing.  It’s purpose is to draw specific guidelines between both parties as to how all of the community and separate assets and debts will be divided amongst them. It also addresses alimony if this is necessary, this varies on a case to case basis. The Marital Settlement Agreement is usually adopted as an order of the court by entry of the Final Decree of Dissolution of Marriage, which means that it can be enforced not only as a contract, but as a court order. In the event that the parties cannot agree on the terms of the MSA, the case will be set for trial by the courts. In cases such as this, assets and the like are divided up as the courts see fit, and sometimes both parties do not come away with property that they had hoped or expected to. This is another reason why the MSA is beneficial.

Final Decree of Dissolution of Marriage
This document is filed at the end of the divorce process; this is essentially the closing of the book, whereas the petition for dissolution is the opening. It is an order entered by the court granting the Petitioner a divorce from the Respondent. The final decree generally describes each party’s rights and responsibilities after the divorce with respect to property, debts and custody of any children. It essentially maps out absolutely everything for both parties, wiping out any type of discrepancies, concerns or anything of that nature. The details of those rights and responsibilities are typically laid out in an MSA or Parenting Plan, which the Final Decree incorporates by reference and adopts as an order of the court.

These terms and definitions should help you along the way. Getting to know the law is far from an easy process, however, learning small pieces of information such as these can really help you as you go through the process. It’s your duty to yourself to fully understand just what is happening in the entire filing process. Legal representation will be there to help you along the way should you opt for it, but it will do nothing but bolster your side of the case if you know the lay of the land.

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Divorce Law Explained: the Uniform Interstate Family Support Act

 

Many spouses seeking a divorce have a multitude of questions concerning paperwork, lawyers, fees and a laundry list of other things. When children are involved in the mix, the amount of questions and concerns between spouses increases tenfold. Each state has standard guidelines, rules and stipulations concerning custody and child support. However, when it comes to the matter of children and child support when parents are in different states, the rules change a little. There are a number of different laws and addendum’s that have been put in place to ensure that the rights of the children in these cases are not overlooked.

Uniform Interstate Family Support Act
The UIFSA was put into place to limit the jurisdiction that can properly establish and modify child support orders and address the enforcement of child support obligations within the United States.The act provides a new framework for states to use in collecting child support where the child and the parent reside in different states. It made it easier for state courts to exercise jurisdiction in establishing and collecting child support.

Under the legal definition of the act, support is broad enough to include child support, spousal support, health care, and related costs and attorney fees. More significant, the Act refers to a “tribunal” rather than a court, because its provisions apply to any administrative agency that has the power to establish and enforce child support orders. Many states have child support enforcement agencies with these powers. Each state’s’ Family Law Court will decide who is to rule on matters such as these.

Statewide Implementation
In cases where more than one state is involved in the establishing, enforcing or modifying a child or spousal support order, the Act is implemented to determine the jurisdiction and power of the courts in the each of the states. The Act also establishes which state’s law will be applied in proceedings under the Act. The Act establishes rules requiring every state to defer to child support orders entered by the state courts of the child’s home state.

The Act also provides various direct interstate enforcement mechanisms. This means that, it allows a caretaker parent to have an order mailed to the employer of the obligated parent, which will require that employer to withhold pay for the benefit of the child. Furthermore, it allows the caretaker parent to have an order mailed to an out-of-state court to get the other state to enforce the order. This is only done in severe cases or cases where a parent has failed to pay support for a lengthy period of time.

Child custody and child support laws are some of the strictest and highly enforced. When divorce proceedings take place, these are usually the issues that are highly debated amongst parents. The separation of spouses can sometimes come with an out of state move, for whatever reason. This Act ensures that any child in this circumstance, is protected. The best interest of the child is the priority of the court, no matter which state.

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Can Divorce Be a Private Affair?

 

For the rich and famous, being in the public eye, twenty four hours a day, seven days a week is normal. However, we mustn’t forget they are still people too. They go through the same trials and tribulations as anyone else that we may know. Their issues are just magnified because of the lens that they can never escape. So, is it fair that their lives are publicized for the world to see? What, under the law is to remain private? When divorce is thrown into this mix, its safe to say that nobody wants to air their dirty laundry to the world, famous or otherwise. So is it even a possibility for divorce filings to remain out of the public eye, for anyone?

Divorce Behind Closed Doors
Keeping divorce information private is something that in most cases, both spouses and lawyers would like to keep from being plastered on the front page of the local newspaper. The Good news is this is very much a possibility. Court records can be sealed and divorce documents can remain private. However, unless a juvenile case is the focal point of any filing, it is impossible to seal an entire judgment. This means that no matter what, reports will be filed and the majority of those are public record.

There are different laws in different states in terms of allowances of what and what cannot be filed in terms of a judgment pertaining to divorce. One way to keep judgments private is by going to “private judges.” To clarify, through arbitration and divorce mediation, orders are made by the arbitrators or mediators and these orders reference certain divorce related documents. It takes some effort if both parties want things private but as soon as one says no, it’s public.

Child Custody & Privacy
Regarding child custody and support issues, if both spouses cannot decide on an agreement and sign off on a legally binding contract saying as such, then they would need to go to a courtroom to have a judge decide the outcome of the issue. This would in turn, decrease the likelihood it would remain private. Typically, when there is a child involved, both parties usually want to keep things private, as this is in the best interest of the child.  When this is the motivating factor, it is more likely both parties will work together to achieve that.

Keeping divorce a private affair can be hard, but it also can be done. When small children, assets, property and anything of a personal nature are involved, many people want to keep the decisions being made to one another and handle it in house. Civil and private divorces are usually the most successful and  offer the most hassle free method of filing  for divorce.

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Common Law Divorce: Myths Debunked

As more states begin to adopt into their laws the notion and recognition of common law marriage, naturally the notion of divorce is also going to appear. The U.S has an alarmingly high rate of divorce, and those of the same sex who are joined in matrimony are no exception. In some states, individuals can live together for a particular number of years and will be recognized by the state as “married,” even if they’ve  never had a legal wedding ceremony. Therefore, when those couples split up, it’s necessary to receive a common law divorce. By understanding the basics of common law divorce, individuals can learn how to obtain one.

Full Faith & Credit Clause
FFAC is the name usually given  to Article IV, Section 1 of the United States Constitution. This Clause addresses the duties that states within the United States have to respect the “public acts, records, and judicial proceedings of every other state.” The clause’s application to state recognized and legal, same-sex marriages, civil unions, and domestic partnerships is however, unresolved, and so too is its relationship to the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. As of the present, 39 states passed laws and constitutional amendments that define marriage as consisting solely of a man and a woman. Most explicitly prohibit the state from honoring same-sex marriages performed in other states and countries

Obtaining a Common Law Divorce
Now, even though there are some states that do not legally recognize common law marriages, there are states that do, all under certain circumstances. Only eleven states in the U.S. have provision for common law marriages, so unless you live or previously lived in one of those states with your partner under the conditions described by that state’s laws for the formation of a common law marriage, you’re not legally married and thus don’t have to file for divorce. Once a couple has been recognized as married through the common law marriage, they must obtain a divorce in exactly the same way a legally married couple would. They will have to petition the courts to work out issues such as child custody, division of assets and property.

Many hear “Common Law” and automatically think that the divorce process will be different for divorce amongst same sex couples. The opposite is true of this. In fact, obtaining legal certification of marriage between same sex couples is far more difficult than dissolving a marriage. This is due to the fact that many states simply do not legally recognize the act. There are so many myths and falsities floating through the subject of this, and to set the record straight, is to say that divorce, no matter who the spouses are, is entirely the same.

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Technology: Changing Family Law Forever

Technology rules the world, plain and simple. Technology has its hand in everything in today’s day and age. It was only a matter of time before new laws were drawn up and integrated into the new and rapid growth of electronics and technology in the world. Divorce rates continue to grow in the U.S, just as the laws do. So it should be no surprise that new

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Disability & Divorce

The law has often been behind the times as far as rulings go on specific cases. Family Law is no exception. Many of the laws do not account for special and rare circumstances. There are many disability laws and regulations implemented in other areas of law, however, there are next to none when it comes to the matter of divorce. That is until now. The Illinois Supreme Court opened the door to divorce for people who need guardians because of mental disabilities just this month, and the realm in which Family Law now covers has broadened because of it.

For years, Illinois has been against guardians seeking a divorce on behalf of the mentally disabled people under their protection. That meant the disabled person could not get a divorce unless his or her spouse started the process. To say that this is a double standard would be an understatement. However, guardians were still looked upon as just that, and in no way were they an extension of the disabled person in question.

Before the Law was Implemented
The ban, when in place, affected people with severe brain damage, but it also covered those who could make their wishes known; for example those with Alzheimer’s, or anyone with a mental illness whose effects are not 100% permanent on a daily basis.

The court’s new ruling said an outright ban is no longer appropriate. It could leave vulnerable people “at the complete mercy” of spouses who abuse them or exploit them financially. Guardians will now be able to file for divorce and then a judge will decide if there is clear and convincing evidence that it would be in the disabled person’s best interests. In some cases, that will mean weighing the evidence without any help from the person directly affected. But in others, the people with disabilities will be able to speak for themselves. This obviously depends on the type of mental illness and the severity.

Who is Affected?
At first the restriction on divorce was meant to only affect people with severe brain damage, such as might be sustained in an accident, but ultimately the law affected people who had the ability to make their wishes known. Such individuals’ mental illness may come and go, or perhaps the person’s condition was Alzheimer’s disease. Mental disability rights advocates say that those conditions in themselves should not automatically bar people’s guardians from filing for divorce on their behalf.

Many of the advocacy groups feel that this recent ruling is a step in the right direction toward fully protecting the rights of the disabled. Under the new rules, the guardian of a disabled person will be able to file for divorce on that person’s behalf, and it will be up to a judge to determine on an individual basis what is in the best interest of the disabled partner.

Incorporating disability into laws, such as the ones under the Family Law statute, is a sign that the laws are coming into their own and becoming more adaptive to everyone. With a broader scope under the law, more and more people will have equal rights when it comes to the dissolution of marriage.

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Massachusetts Alimony Law Changes

Each state has its own specific and detailed laws in regards to anything that falls under the Family Law tree. Obviously these laws vary state to state, depending on certain instances that only occur and apply to that state, for whatever reason that may be. So, it’s only natural that the state of Massachusetts has its own laws concerning such things as child support and alimony.

However, up until September of 2011, the laws and stipulations concerning alimony were not too kind to those who had to pay it, simply because of the fact that the rules were set in stone and certain circumstances affected those in a divorce quite negatively. That is, of course, until  Governor Deval Patrick signed Chapter 124 of the Acts of 2011. By doing so, the Commonwealth of Massachusetts effectively abolished most lifetime spousal support, thus joining several other states where alimony payment laws have changed. Many of these changes occurred because those who were forced to pay it could not, due to the fact that they were struggling in the current economy.

Significance of the Change
This new change in the measure generally ends alimony either when the payer reaches retirement age or when the recipient has cohabited with a another romantic partner for at least 90 days. With this new law comes a change in how alimony is properly calculated, based on the length of the marriage in question.

This being said the law does still allow judges to award indefinite alimony for long-term marriages. A long-term marriage is defined as a marriage lasting 20 or more years. In the case of short marriages, judges can order “reimbursement alimony” in such situations as when one spouse put the other through school during the length of the marriage.

Why the Change?
This is adjustment to the Massachusetts law was done so to end the previously common practice of judges awarding alimony as a permanent entitlement; such practice is becoming an increasingly rare practice across the U.S because it was seen as highly unjust and unfair. So now, the law sets guidelines for determining the amount of alimony payments. Signed in September 2011, the changes took effect in March 2012, which allows people who are currently paying lifetime alimony to file for modifications starting in 2013.

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Grandparents: Keep Out!

Divorces often creates a divide when it comes to families and extended families alike. Due to the fact that not all divorces can be amicable and have families fully agree with the situation, and go on living as they did before, divorces can be damaging both mentally and physically sometimes.

Division of families brings the choice of how to go on after the divorce. This is true for everyone directly and indirectly involved. One big decision can change the way in which an entire family lives their lives. Assets are divided, property is distributed, but so too are family members. So many questions are asked, “Do I live with mom or dad?”, “Where do we go for Thanksgiving?” and many more.

One landmark case also changed the face of visitation for extended family forever on June 5th, 2000.

In the case concerning Troxel vs. Granville, the Supreme Court invalidated a Washington State law that allowed third parties to petition for child visitation rights over parental objections. Simply stating that the parents of the children in question were the only ones to decide who could and couldn’t have visitation rights to their children. The Supreme Court said that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court,” noting that such petitions are an unconstitutional intrusion into a parent’s right to raise a child as they see fit.

The ruling effectively eliminated grandparents’ visitation rights when parents object to the visitation. This also extended to any other third party directly involved, such as stepparents or other closely tied relatives. The Supreme Court struck down the Washington grandparent visitation statute because it unconstitutionally infringed on the fundamental parental right to raise their children as they see fit.

Due to this case, the law now requires courts to give parents’ decisions concerning whether, when, and how grandparents will associate with their children. Even though Troxel vs. Granville does not define “special weight,” previous Supreme Court precedent indicates that “special weight” is a strong term signifying very considerable deference to any particular person being allowed visitation with children in question.

Parents will ultimately always have the right to govern who their children can see whilst under the age of 18, and rightly so. This ruling only further makes this natural governing all the more legal and final in the eyes of the law. Divorces do unfortunately take their toll on families in a multitude of different ways. Extended family are sometimes just as affected as those directly involved. However, keeping the best interest of all children involved at the forefront of all decisions is something that the courts have done even more so with this ruling.

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Strange Divorce Ruling

There have been a number of landmark cases that have set precedents for divorce and divorce laws. However, the majority of those were positive and propelled divorce into the 21st century. This being said, across the world, divorce is still seemingly catching up, and in a few rare cases, falling behind, thanks to the laws that were decreed so long ago before the new age of technology.

One instance of a set back in divorce laws is that of Mr. and Mrs. Prest, a case coming out

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Pregnant Man Files for Arizona Divorce

 

You know times have changed when you see a headline starting with “pregnant man.” But in today’s world, where gender roles are continually being debated over, and the institution of marriage is being redefined state by state and law by law, it is no surprise that new scenarios in divorce will eventually come to the forefront.

The Blurred Lines of Marriage, Gender, and Divorce Laws

Transgendered couples’ laws are still in their infancy when it comes to marriage and divorce. So it’s no wonder that when it comes to a divorce in this type of situation, the lines are still completely blurred. Thomas Beatie, a transgendered man, was born a woman in his native state of Hawaii. He underwent an external sex change to become, for all intents and purposes, a man before he married his partner, Nancy, in 2003.

After learning that Nancy was unable to bear children, and still having female reproductive organs, Thomas bore their 3 children, making headlines when photos of him pregnant with a mustache were leaked online. Legally married in Hawaii, which recognizes same sex marriages, the couples have since moved their family to Arizona.

The Difference a State Makes

After moving to Arizona, to live the couple recently decided to file for divorce. While Hawaii recognizes their marriage as legitimate, they also recognize Beatie as a man. Arizona’s law, however, does not recognize same sex marriage and the courts have questioned the validity of their marriage. While Beatie’s lawyer has admitted that this scenario was new territory for Arizona law, he argues that if one state recognizes the legality of the situation, who is Arizona to refute the validity?

While it would technically be cheaper for Thomas to have the state not recognize his marriage and bypass having to pay any spousal support, he and his lawyer state that the case is not about the divorce laws themselves, but about validation for Thomas concerning his marriage.

This case, as with many others concerning either same-sex couples or transgendered couples, will continue to make headlines as they push the boundaries of the court courts and law structures. The social pressure on law makers to allow for same sex couples to experience the same rights in marriage as well as sharing in the divorce procedure has greatly increased in the last 10 years. Stories like this and others will grow more common as a collective push is made to increase the rights couples and transgendered marriages like Thomas’.

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