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Family Law FAQs
Family Law FAQs
By Maury D. Beaulier, Esq.
Index
What if I
don't want a Divorce?
Should I
file first?
When is a child old enough to decide where he/she will live?
How can I reduce alimony?
What if my spouse fails to disclose or hides assets?
How do I lower my child support?
My ex wants to move out of state with our child. What can I do?
My ex quit his job and seeking to terminate alimony/child support. What
can I do?
What does it
mean when a divorce is called "No Fault?"
In the not so distant past, divorces could only be granted for specified
reasons such as infidelity or abandonment. This resulted in much highly
emotional litigation that pitted one spouse against another with each painting
the other as the "bad guy." Most states have eliminated fault from it’s
statutes. Currently, for a divorce to be granted there must only be an
irretrievable breakdown of the marriage.
What if I Don’t want the divorce?
You may ask your spouse to attend counseling. However, you cannot force that
person to attend counseling or to cooperate. If your spouse refuses, the divorce
will move forward. In most counties, a Judge will grant a divorce if one party
believes that an irretrievable breakdown of the marriage exists.
Once a divorce has been filed, it is important to promptly address the
issues. Delay and foot dragging may impair your rights and result in an order
requiring you to pay your spouse’s attorney’s fees if the Court finds that you
have unreasonably contributed to the length and delay of the proceedings.
Should I file for divorce first?
There is very little advantage to filing first. One possible advantage is the
ability to choose the county in which the case is filed. Where the parties have
established two separate residences there may be two potential jurisdictions.
Your attorney may have insight into the subtle biases of each county and the
different processes used allowing him./her to choose a the more favorable forum.
When is a child old enough to decide where he/she wants to live?
In most states a child can never decide where he or she will live. Instead, a
determination with regard to physical custody is made based on what is in the
child’s "best interests." Certainly the child’s wishes may be considered as part
of that analysis and as the child matures that opinion carries greater weight.
At the time of my divorce, I was ordered to pay alimony. Since then, my ex has
doubled his/her salary. Must I continue to pay alimony?
If a Court order requires payment of alimony, the alimony may only be
terminated when the Court issues another order terminating the obligation.
Generally, this may be accomplished by filing a Motion seeking a termination (or
in the alternative, a reduction) of alimony. The motion is usually supported by
an affidavit describing for the court the financial circumstances at the time
alimony was awarded contrasted with the current circumstances. If there has been
a substantial change in the financial circumstances of the parties, the alimony
may be reduced or eliminated.
My
ex hid assets during the discovery phase of my divorce. New facts have come to
light. What can I do?
A divorce decree may be reopened with regard to the division of assets if is
determined that assets were not fraudulently concealed. If a determination is
made that fraud has occurred, the Court will often punish the party concealing
the assets by awarding the asset to the other party and/or awarding attorneys
fees. Generally, as part of the discovery process each party signs disclosures
under oath indicating that they have disclosed all marital assets. These
disclosures may take the form of Interrogatory Answers or Sworn Statements as to
Assets and Liabilities.
I
think my child support is too high. How do I get it lowered?
In order to reduce your child
support, you must bring the matter before the Court by filing a Motion with
supporting affidavits which demonstrate that a substantial change has occurred
in your financial circumstances. It is important to remember that, in most
states, child support cannot be lowered retroactively. As a result, you must
file your motion as soon as a change occurs in your finances.
My ex wants to move out of state with my children. Do I have any rights, or can
he/she just take my children away from me?
State statutes generally require that the custodial parent must reach an
agreement with the other parent or seek court permission by filing a motion
before regarding relocating with the child out of state. If a Court agrees to
allow the relocation, the visitation schedule and payment of costs related to
visitation are also likely to be modified to reflect the changed circumstances.
This may result in longer periods of visitation for the non-custodial parent in
the summers, holidays and during school breaks.
My ex recently quit his job and is seeking to reduce child support and alimony
payments. Can he do this?
Imputation of income is a harsh result where the Court requires a party to
pay spousal maintenance (or child support) based on earning capacity rather than
true income. For example, if one party quits a job and reduces his/her income
voluntarily or if a party fails to seek gainful employment though able-bodied,
the Court may base that person’s income on earning capacity. Oftentimes, the
person’s prior work history plays a pivotal role in determining what they have
the ability to earn.
The Court may determine that imputation of income is not appropriate where
the unemployment or underemployment:
- is temporary and will ultimately lead to an increase in income; or
- represents a bona fide career change that outweighs the adverse effect
of that parent's diminished income on the child."
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