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New York’s New Strange Divorce Law

New York has never played by common divorce laws adopted by basically every other U.S. state, so it’s no surprise the little stubborn state is making waves again. This time the Empire State is getting flack for their alimony laws. More specifically, the way New York divorce courts recognize degrees obtained during a marriage is under scrutiny.

Case in Point

In a Wall Street Journal article on the subject, an example of the unfair New York alimony laws was found in the divorce case between Tanya Finch and Kenneth Quarty. The couple married in 2000, around the time Finch started working on her nursing degree. The couple divorced in 2009, by which time Finch had received her nursing degree. During the divorce, Quarty requested and was eligible to receive a percentage of the money Finch would potentially earn as a direct result of the degree she earned during their marriage.

Quarty was able to obtain this “potentially” earned money upfront because of the New York divorce law that recognizes a degree or professional license as marital property. New York courts calculate the lifetime worth of the degree, and divide that value into two as a part of the marital estate. This practice and New York’s other strange divorce laws have been petitioned and submitted for review.

Who Really Owns Your Degree?

When people enroll in any college, university, trade or skilled craft course, they anticipate the moment when they will receive a certificate of completion with their name on it. However, based on the New York law, that certificate or diploma might as well be reprinted to state the alumnus’s spouses’ name as well as the alumnus’s. In fact, any employee may as well include their spouses name on their payroll account because the state of New York also views any profits from any career as marital property.

New York’s law is not unfounded completely because any spouses income is in theory supplemented and supported by the other spouse’s support, which can be as menial as washing dishes while the student spouse is studying.

Why, Oh, Why?

However, New York lawyers and divorcees are not fighting the order to pay spousal support or maintenance. New Yorkers are astonished by and fighting the courts’ ability to grant “potential income,” which is money a person has not earned yet. New York citizens are frozen stiff at the sheer amount of money they “owe” their divorced spouse, most of which they are not even expected to have at the time of ruling.

The New York alimony regulations were originally fashioned to level the playing field for low-income, dependent spouses of a divorce. Yet in these changing times, the inequality of the laws and regulations have been exposed. Currently, New York law makers are waiting for the Law Revision Commission report before taking measures to change this piece of legislature.

North Dakota’s Divorce Bill Revisited

North Dakota divorceDivorce is a hot topic in any society because it involves family values, religion, and personal beliefs. Some people find divorce a non-option, while others view is as a sign of an evolved society. Divorce is, however, as personal a choice as religion; therefore, it should be left for the individual to decide on. But apparently, some North Dakota senators haven’t received that memo about free will.

The Original Senate Bill 2367

The good people of North Dakota dodged a legislative bullet in 2011 when Senate Bill 2367 was rejected. Bill 2367 was brought to the Senate by Senators Larsen, Sitte, and Wanzek, and supported by Representatives Grande, Koppelman, and Ruby. The bill originally recommended a two-fold change in North Dakota divorces with children involved:

  1. Extend the waiting period to 1 year, which would mean spouses would have to wait 1 year after filing for divorce before continuing the divorce process. If there is “substantiated allegations of domestic abuse,” the waiting period may be waived.
  2. Instate mandatory marital counseling of 10 hours, which must be provided by the spouses themselves. The spouses may undergo marital counseling together or separately as long as the sessions are with a “paid or volunteer counselor, clergy member, or any state-certified or licensed marriage mediator.” Four sessions must focus on post-marital finances.

The bill was rejected by the Senate, but was allowed to be revised into “[a] bill to provide for legislative management study relating to divorce reform and education.” In other words, instead of letting the unwanted bill die in the Senate, the Senators decided to turn it into an opportunity to study divorce on children in North Dakota.

Recently, a revised Senate Bill 2367 has found its way back into the Senate and currently awaits deliberation.

Is the New Senate Bill 2367 Good Enough?

The new Senate Bill 2367 has one major revision, but will it be enough to pass the Senate? The revised bill cut the proposed waiting period in half, so now spouses with children seeking a divorce only have to wait 6 months to finalize the divorce after filing the divorce petition. The spouses must still go through 10 hours of marital counseling, and pay for it out of pocket. However, if there is “substantiated” domestic violence in the marriage, the waiting period is waived.

The downsized waiting period is a step in the right direction, but there are still a number of vaguely written sand traps waiting for unsuspecting divorcees to fall right into.

  1. What constitutes a “substantiated allegation”? Sure, if one was a victim of domestic violence and they went to the hospital for treatment, they could use hospital records as evidence or proof; if the victim called the police, they could use the police report or 911 call transcript. But not many victims seek medical attention or help. In fact, it’s estimated only about 25% of domestic violence incidents are reported or documented. Before this bill is passed, it should be clear what constitutes a “substantiated allegation.” If this vagueness is overlooked, the state of North Dakota could be sentencing a victim of domestic violence to 6 months of torment and fear.
  2. Marital counseling is expensive, and not available to everyone. The average cost of marital counseling is $100, and that’s per hour. $100 is a conservative price for counseling, which would bring the (conservative) cost of North Dakota divorce to an additional $600. It’s commendable the authors of Bill 2367 recognized the cost of this additional legislation and noted the counselor could be a “paid or volunteer counselor” or “clergyman.” However, the additional cost makes divorce out of low-income spouses’ reach; does that sound like a violation of civil rights to anyone else?
  3. A bill for the children should think of the children. Senate Bill 2367 was drafted out of regard and in consideration of the children of divorce. But I ask the authors if forcing parents, who clearly want a divorce, to continue to be married is beneficial for the children. Court-administered co-parenting classes would be a better option of looking out for the children of divorce than making the children live in a toxic, stressful home.

Have anything to contribute to the discussion of North Dakota’s Senate Bill 2367? We’re all ears (or eyes, since this a written medium).

The Logic Fallacy Behind Iowa’s Divorce Bill

logical fallacy in Iowa divorce billIn the past month, the U.S. has seen some strange marriage and divorce legislative moves from various states. In early February, North Dakota revisited an old House Bill that would force parents to observe a 6 month waiting period and undergo counseling before finalizing the divorce. The bill had been introduced a year earlier, but it was rejected because it originally had a year waiting period.

Apparently the divorce reform is an infectious virus, and Iowa has got it bad.

Divorcing an Absent Spouse

200259869-001Divorce is a difficult enough process between the court fees and dealing with your spouse. However, divorce without a spouse is just as difficult, if not more stressful. No, you didn’t read that wrong, divorce can be done without knowing where your spouse is.

While some people may be thinking “If only I didn’t know where my spouse was…” those who are in this unique situation are wishing it were otherwise. But the American judicial system is not that cruel as to deny a person a divorce just because their spouse is nowhere to be found.

Search for the Absent Spouse

It is easier to complete divorce process with an absent spouse in some states than others. Most states with the no-fault option, like California, have provisions for spouses seeking a divorce who do not know the whereabouts of their spouse.

It is recommended to make all efforts of locating your spouse, and record your efforts before filing the divorce forms. Essentially, you will have to prove to the court you have exhausted all options of finding your spouse. If you’re at a loss for where to begin, we have compiled a list of the recommended ways of attempting to locate your spouse.

  • Search the phone book

  • Contact their last known employer for information about their current whereabouts

  • Check with the post office to see if they left a forwarding address

  • Check at their last known residence

  • Contact any and all friends or relatives you can for information

  • Send emails or social media messages to their email or profile

  • Check with the DMV, voter registry, and other public records offices

  • Hire a private investigator, if absolutely necessary

File the Divorce Petition

If you have exhausted your search options and still have not found your spouse, then their is one option left: Divorce by publication. The filing process is very similar to a regular divorce proceeding, except for a few things. Included in the regular paperwork is an application for a divorce by publication. To proceed with the divorce by publication, you must provide the court with the evidence of your extensive search.

If the judge accepts the proof of your search, they will grant you a divorce by publication. Then, the court will place an ad in the local newspaper in the area where your spouse is either believed to be or in your spouse’s last known location. The ad will be of the divorce summons, and will include all information about your case, including where your spouse should respond to the divorce summons.

The ad will run in the newspaper for a certain number of weeks, depending on which state the search is taking place. In California, the divorce by publication ad will run in the newspaper once a week for 4 weeks in a row. After the running of the ad, your spouse has 30 days to respond to the court regarding the divorce.

If the spouse does not respond within the grace period, you will be granted a default divorce. However, in California, the courts will not make judgements about any joint property, assets, or child-related matters.

Can I Use an Online Divorce Forms Service?

The divorce by publication process can be completed by an online divorce forms service, like MyDivorceDocuments.com, as long as the aforementioned steps are taken. However, it is advised to research the divorce by publication process in your specific state before beginning the divorce process.

Can NC Manufacture “Healthy” Marriages

82770193There are many laws and bill in the works that would make it more difficult to get a divorce in various states. The most recent state to make motions to impose stricter divorce laws on their citizens is North Carolina. Senator Austin Allran of Hickory, North Carolina, and Senator Warren Daniel of Morganton, North Carolina are the main supporters of House Bill 518. HB 518 is also known by the monicker of The Healthy Marriage Act, which lends itself to some interesting arguments against the “Healthy” Marriage Act.

HB 518

HB 518 is some very interesting legislation that seems to be working from the wrong side of a healthy marriage. This bill proposes to make a divorcing couple observe a 2 year waiting period before any action to divorce can be taken.

The spouse instigating the divorce must file an intent to divorce with the court, and notify their not-too-soon-to-be-ex of the beginning of their 2 year waiting period. HB 518 graciously makes no demand upon the couple to live separate and apart for the 2 years; and wouldn’t you know, the provision allowing couples to have “isolated incidents of sexual intercourse” in the current divorce law would remain intact in HB 518.

However, the couple must complete a few courses during the waiting period. Firstly, the couple must complete an improving communication skills course, and a conflict-resolution course. These courses have no requirement concerning time of completion, or length of course. Additionally, the couple may complete the courses separately.

If the divorcing couple has children, then there is one more stipulation. The couple must complete a course at least 4 hours long about the impact of divorce on children.

Fostering “Healthy” Marriages?

The “Healthy” Marriage Act basically describes laughable attempts at patching up a marriage. Senators Allran and Daniel could have really benefited from the counsel of the twins from the Parent Trap. But alas, HB 518 is not some hare-brained scheme from a family frolic film; HB 518 is a real piece of legislation officials are currently considering.

I’m sure the intentions behind HB 518 are pure and from the goodness of the Senator’s hearts, but a bill that extends the waiting period so long, and allows cohabitation and even sexual relations is just too much to be believed. If the Senators wanted to make a dent in the high divorce rate and foster healthy marriages, they should put their efforts into the other end of a marriage: the beginning.

No one wants to pose restrictions on love, ideologically. But lets be adults and face the fact that marriage is regulated through bureaucracy and legislation. If we wanted to give starry-eyed lovers the best chance at marriage, we would pass laws imposing things like marriage counseling and conflict resolution courses on prospective newlyweds.

Getting a Divorce in a Covenant Marriage | www.MyDivorceDocuments.com

covenant marriage divorce

If you’ve never heard of a covenant marriage, or if you know very little about covenant marriage, it’s probably because it is only offered in 3 states. Covenant marriages are offered in Arkansas, Arizona, and Louisiana, but the concept of the covenant marriage has been around for quite some time.

What is a Covenant Marriage?

A covenant marriage is different from a “regular” marriage because the couples in covenant marriages essentially waive their rights to a no-fault divorce. Covenant marriages are said to be more binding than regular marriages because they are based on covenants, not contracts.

A covenant is a solemn, usually religious, agreement, whereas a contract is a legal agreement. Proponents of covenant marriages believe “regular” marriages are contract-based marriages, which do not hold marriage as sacred and permanent an institution. Due to the deep religious affiliation covenant marriages have, covenant marriages have certain laws imposed upon them that make it difficult to divorce.

Guidelines of a Covenant Marriage

A covenant marriage requires couples to attend premarital counseling, and to fill out special covenant marriage paperwork. During the premarital counseling sessions, the couple is advised of the severity of committing to a lifelong marriage, the legal restrictions on divorce, and how to deal with marital issues.

The prospective spouses then must file an intent to enter into a covenant marriage. The intent (or declaration) involves a few documents that demonstrate both parties’ willingness to enter into a covenant of marriage. All this paperwork includes disclaimers about the stipulations of a covenant marriage, like the difficulties of divorcing out of a covenant marriage and more.

Divorce in Covenant Marriages

The first step in seeking a divorce in a covenant marriage is to seek marriage counseling. The covenant both parties agreed to when they wedded includes a clause about always seeking counseling should issues arise.

There are stringent divorce grounds in a covenant marriage; but since only three states offer the covenant marriage option, here are the specific grounds:

Arkansas: There are 4 grounds for divorce.

  1. Adultery

  2. Conviction of a felony or serious crime

  3. Physical or sexual abuse of one of your children

  4. Living separate and apart for at least 2 years; living separate and apart for 2 years and 6 months, if there are children; or living separate and apart for at least 1 year if there has been a form of abuse

Arizona: There are 8 grounds for divorce.

  1. Adultery

  2. Abandonment for 1 year or more

  3. Imprisonment or death sentence due to conviction of a felony

  4. Physical, sexual, or emotional abuse

  5. Living separate and apart for 2 consecutive years

  6. Being legally separated for 1 year

  7. Substance and/or alcohol abuse

  8. Both spouses agree to the divorce

Louisiana: There are 5 grounds for divorce.

  1. Adultery

  2. Imprisonment or death sentence due to conviction of a felony

  3. Abandonment for 1 year or more

  4. Physical or sexual abuse

  5. Living separate and apart for 2 years; under legal separation, living separate and apart for 1 year, or 1 year and 6 months if there are children.

The Evolution of Child Custody

history of child custodyLittle more than a decade ago, it was estimated that 90% of child custody was settled with the mother gaining full custody of the children. This obvious imbalance in custodial arrangements has made fathers all over America wonder at the horrible injustice and sex discrimination perpetrated by American courts.

But the courts didn’t just wake up one day and decide mothers were better parents; and family court judges are not battling Oedipus complexes. The reason about 90% of mothers received child custody in the past is due to a little thing called the Tender Years Doctrine. But we’ll get to the Tender Years Doctrine in a bit; first we have to make our way through a short history of the evolution of child custody law.

From Ancient Rome to 2013 America

Roman common law, established around 439 B.C., dictated that children of a marriage were the property of the father. This meant if a Roman husband and wife divorced, the children stayed with the father and the mother left.

Jump ahead hundreds of years to English common law, established around 1000 A.D., which upheld the same child custody outline as Roman common law. Simply carry the same basic common laws over into the founding of America, and you have the basis of American custody laws. The law theory pertaining to child custody was that the father was the only suitable parent to teach the children the ways of the world.

However, hundreds of years later during the time of the Industrial Revolution in the late 1800′s, the question of what was best for the child became the focus.

Tender Years Doctrine

The Tender Years Doctrine replaced old Roman and English common law child custody arrangements by giving mothers custody of children, until the age of 6. This change was spurred by the Industrial Revolution’s impact on family structure.

The Industrial Revolution caused men to seek jobs away from the remote villages the English people lived in up until that point. The absence of husbands and fathers forced women and mothers to handle the housekeeping and child rearing completely by themselves. When divorces occurred during this time, the courts saw how impossible it would be for fathers to continue to take full custody of the children.

The Tender Years Doctrine stated that children under the age of 6 were too young to leave their mother’s love and care. However, once children grew older, they were of sufficient age and maturity to follow their fathers to industrial towns to work. In America, the Tender Years Doctrine extended the mother’s custody indefinitely, which is the cause of the statistic describing mothers retaining child custody 90% of the time after a divorce.

Do We Have a New Doctrine?

The 1960′s marked the beginning of the divorce spike, which peaked in the 1980′s; but the divorce revolution also sparked a child custody revolution in the U.S. The new child custody doctrine is defined not by the gender of the custodian (a.k.a. the parent granted with child custody), but by the best interests of the child.

So far, this new “best interests” custody doctrine adopted by American family law courts has created the joint custody option. The first joint custody statute was implemented in California in 1979; by 1991, joint custody was written into more than 40 state statutes.

But here’s the catch: Many people are still seeing mothers gaining preferential custody rights in the divorce process. This claim produces many questions, like “Is this still true today?”

Check back with us later this week for the answer to that question.

Do Fathers Have Custody Rights?

fathers rightsParents: Have any of you parents found yourself with your foot shoved far into your mouth? Yeah, so has every other person at one point in time. But trips to the playground seem to coincide with sudden cravings for the taste of feet. The huddle of parents watching their children play is a breeding ground for innocent-enough small talk, until one person makes the assumption that the divorced father just has visitation.

Each person in the group suddenly is interested in the look of their shoes, eyes widen, and lips slowly are pressed into a thin line. If the seemingly-innocent comment was fresh of your lips, your eyes mirror the apology currently flowing from your mouth.

The Truth About Father Custodians

If the father had heard this before, and is aware of the statistics, they probably were not too offended. After all, the 2009 U.S. census reports only about 17.8% of fathers gain full custody rights of the children after a divorce. It was just your luck that you bumped into the 1 father out of 6 who was the custodial parent. But, if you are the father fighting for custody, don’t let past statistics guide your choice to fight the good custodial fight.

Historically, fathers were the preferred custodian of any children in a divorce or marital split (which we discussed at length in a previous blog); but at the turn of the century, mothers became the championed custodial parents. Ever since the switch in child custody doctrines (read the blog and you’ll understand), the number of custodial mothers have all but stomped out the number of custodial fathers.

In custody battles, fathers may dejectedly say or think, “What’s the point of fighting for custody? The courts never favor the father.” But we are here to say, “Buck up, soldier. These days, fathers have just as many rights to custody as mothers.”

Fighting the Good Fight

We don’t normally endorse any kind of animosity or battling, but when a child’s true best interests are at stake, we fully support fighting the good fight. And besides, single fatherhood is quickly gaining momentum in American society.

In 1993, Indiana became the first American state to pass a child custody law in favor of joint parenting plans. Since then, the other U.S. states have passed similar custody laws championing joint parenting plans. As a result, the amount of single fathers grew by 37.9 percent between the years of 1990 and 2000; the rate continued to increase by 27.3% between the years of 2000 and 2010.

The Pen is Mightier

Although the world we live in might seem to enjoy horrific wars, the pen really is mightier than the sword; this is true especially during a custody battle. Nowadays, courts are focusing more on the best interests of the child, instead of the genders of the parents and child involved.

The courts generally consider the best interests of the child to be factors like:

  • maintaining the same standard of living

  • living in a stable, familiar environment

  • living with the parent who cared and provided for the child on a daily basis

If the father provide examples of all the factors above (and the other state-specific requirements), then he has a good chance of gaining custody. However, don’t take our word as divorce law. If you’re embroiled in a heated custody battle, you should probably seek legal guidance.

We try our best to be helpful and informative at MyDivorceDocuments.com, but we can’t cover everything without hearing from you. If you have a question or comment, let us know in the comment box below. We’ll do our best to get you the best information available.

Collaborative Divorce: Stuck Between Contested and Uncontested

78630844The availability of the collaborative divorce process is gaining steam as more states sign it into law. A less adversarial form of divorce, collaborative divorce still allows the couple to make all separation agreements without sitting, or heatedly standing, in a courtroom.

Although uncontested divorce is the most ideal case in which spouses can settle things peacefully on their own, a collaborative agreement involving two lawyers keeps the situation out of any court drama that often ensues during contested cases. Thankfully, a new collaborative divorce law was just passed in Washington, solidly making available a more peaceful divorce experience for all involved.

Terminology Lesson

Just so we’re all on the same page, here are definitions of most kinds of divorce:

Uncontested Divorce: A divorce in which the couple agrees on all allocations of marital property, child custody, child support, and/or alimony. Uncontested divorce essentially eliminats the need for lawyers or a judge in court. An uncontested divorce usually gives a no-fault grounds for divorce.

Contested Divorce: The opposite of uncontested, contested divorce means the couple cannot make a settlement agreement on their own due to disputes. Lawyers and a judge are needed to make the settlement for them. The process is longer and more expensive.

Mediated Divorce: A divorce where the couple hires a mediator, who is usually a divorce attorney trained in mediation, to help them settle allocations agreeably.

Collaborative Divorce: Similar to mediated divorce, except the couple hires two lawyers, one for each spouse, to help them come to an agreement and draft the divorce settlement.

Good News for Washington

Despite its effectiveness, the collaborative divorce option is only enacted in a few U.S. states. One state that just made it available and signed it into law is Washington, to the joy of many supporters.

Called the Uniform Collaborative Law Act, it enables couples to utilize mental health professionals and child specialists as well as lawyers to make the out-of-court option run even smoother. Child therapist Kristin Little remarks, “You’re helping people to be good parents through the divorce, so you’re actually preventing a lot of the damage that can occur during the divorce.”

Indeed, going through divorce is especially hard on children, who tend to be caught in the eye of the storm. “I have been doing family law litigation 25 years and court is no place for families,” says Washington based lawyer, Cynthia First. When disputes need to be resolved themselves, leaving them out of the court’s hands means less hassle and more peace.

Amicable Splitting

The best way to settle any conflict or disagreement is through reasonable compromise and speedy resolution. That kind of attitude and problem-solving leads to feelings of goodwill for the ex-spouse and life after divorce. Even though spouses often have serious disagreements over what will happen to their life’s possessions during divorce, they can find a way to temper them independently through options like collaborative divorce. The collaborative divorce process frees up more time and resources for the divorcee to focus on other things, like moving on.

Divorce Sting: When Religious And Federal Laws Collide

rabbi divorce torture stingIn one of the more bizarre (non do-it-yourself divorce) cases we’ve read about lately, two rabbis and eight other men were recently arrested for kidnapping men and forcing them into unwanted divorces. The sting was conducted in New York and New Jersey and first broke in to the national news this month.

 

Divorce Is Torture, But This Is Ridiculous

Rabbis Mendel Epstein and Martin Wolmark were said to be the masterminds behind the operation, which would have included using a cattle prod on “certain parts” of a male victim’s body. Apparently, this type of coercion happens often in Jewish culture, with the two rabbis being allegedly responsible for 20 over the last several years.

“Basically what we are going to be doing is kidnapping a guy for a couple of hours and beating him up and torturing him and then getting him to give the get,” Epstein said in a videotaped conversation with undercover investigators.

(A get is a religious divorce.)

Epstein also said that he had conducted one of these coercions “every year to year-and-a-half,” and that it cost $10,000 for a rabbinical court to approve the action and $50,000 to $60,000 for enforcers to carry out the torture.

The arrests were made after undercover agents wired a $20,000 down payment to Epstein.

Federal Vs. Religious

Religious law gives a woman the right to “sue” in a rabbinical court if the husband is unwilling to file for divorce. Authorities stated that the use of violence was authorized at such a proceeding on October 2. While much of these actions stem from religious culture, the perpetrators will not have an easy time avoiding significant jail time as a result of their actions.

When it comes to the division of property, child care, and other important aspects of human rights, religious freedom takes a back seat to the laws of the land.

As a result, all or some of the 10 men arrested could end up facing life in prison for kidnapping and conspiracy to commit violent acts.

Where do you believe the line should be drawn between family law and religious freedom?