Family Law: Alimony / Spousal Support Adoption Child Support Custody Divorce Grandparent's Rights Juvenile Paternity Prenuptial Agreements QDRO's Restraining Orders Visitation Rights Can one lawyer represent both parties? Though permitted in some states, it generally is a bad idea. Most good family law attorneys will not represent both spouses, as it is most always a conflict of interest and unethical conduct. An attorney who represents “both sides” prevents you from obtaining your own, independent legal advice.  Even worse, the agreement becomes vulnerable to an attack to set it aside. There are many better ways of conserving money, such as hiring a trained mediator to help you and your spouse work through your issues. Should I move out of the house? The answer depends on your individual circumstances. There is no one right answer that fits every case.  However, in making that decision keep in mind the following :  the person who moves out does not forfeit all claims to any marital equity in the property or entitlement to a division of the furnishings. However, it might be wise to list or photograph the contents before you leave.  Once a party moves out, a lawyer may have difficulty getting an order for him//her to move back later. If there are disputes relating to children and one person moves out without them before reaching an agreement regarding contract, there may be a time lag before arrangements are in place for that parent to see the children. If you believe your children should reside primarily with you, it is generally not a good idea to move out unless you have adequate and safe arrangements for your children to go with you. Can I bring a relative/friend to my appointment? This is usually not a good idea. The discussions you have with your lawyer for the purpose of receiving legal advice are confidential.  Including another person in the discussion waives that confidentiality and means you, your lawyer or the third person, could be compelled to disclose the substance of your conversation in court. Family law matters frequently involve embarrassing or private details of your person or financial relationship. Your lawyer may need to ask about matters that you would rather not discuss with a friend or relative in the room. How long will the divorce take? Check your state law, as there are different “waiting” or “cooling off” periods in many states.  It may be as little as 30 days or as long as a year.  Plus, your case may be delayed if you live in a jurisdiction that has crowded court dockets.  Finally, it is a rule of thumb that if you and your spouse cannot reach an agreement and your case becomes “contested”, it will take longer to complete. How can I help with my case? Check with your lawyer before doing anything you think might be helpful in the case to ensure that your actions will be useful and done in a way that is really productive.  As what you can do throughout the case to keep fees low and speed the case along.  As a general rule, collecting, organizing and indexing recent financial records may be helpful.  Keeping a log of your expenses and expenditures with back up receipts or statements also may assist your lawyer.  Likewise, your lawyer may want you to maintain a custody planning calendar or log reflecting when each parent is responsible for the children or attends their activities or events. Can I change lawyers? Yes, you have the right to work with the lawyer of your choice.  However, if your case is complex, keep in mind that you may incur additional expenses due to the time needed for your new lawyer to get up to speed on your case.  In addition, expect to address any issue of unpaid fees with your fist lawyer before he/she turns over the file to your new lawyer. How much will my case cost? Unfortunately your lawyer may be unable to answer that question at the beginning of your case, because the total fees will likely depend on the difficulty of the issues and the time involved.  As your case progresses, your lawyer may be able to give you estimates as to the cost for particular aspects of the case.  Discuss those costs with your lawyer in light of potential benefits to your case.  An exhaustive “leave no stone unturned” approach can be costly and may be unwarranted.  If a lawyer has quoted you a flat fee for a particular matter, make sure you understand what the fee does or does not cover. Do the wishes of a child have any effect on custody decisions? Some, but not all, states allow judges to consider the expressed wishes of a child deemed mature enough to communicate a preference on custody or visitation arrangements.  Judges will consider the child’s stated preference, if expressed, and the child’s reasons for the preference.  However, keep in mind that no child is requested to state a preference and those who do will not have the final say.  The judge will decide how much weight should be placed on the child’s wishes, depending on the age, maturity and quality of the child’s reasoning.  The overriding concern will always be what arrangement is in the child’s best interest. Should a child be asked where he/she wishes to live after the divorce? No.  Posing such a question effectively asks a child to choose between parents, and on one should put the child in that position.  Children who feel comfortable doing so may volunteer opinions on the issue.  However, keep in mind that most children are masters at telling apparent what the child thinks the parent want to hear.  As a result, the statements you hear from the child may be different form those made to the other parent. Isn’t a 50/50 time split the best way to be “fair” to both parents? When a time-sharing schedule for the kids is involved, the focus should be on what is best for the children instead of what is “fair” for the parents.  This is not liked dividing up the silverware or the bank accounts.  Ideally, the time schedule should be devised after considering your work schedule; your spouse’s work schedule; your child’s school and activity schedule; how far apart you and your ex will be living; and the age, development and personality of your child. Isn’t a 50-50 time split the best way to make sure I don’t have to pay any child support? No.  If your incomes are not equal, an equal time split will not eliminate the need for child support.  Other factors, such as the cost of day care or your child’s special needs or medical expenses, may affect child support Who decides how much support I pay? In response to federal legislation, each state has adopted official child support guidelines.  These guidelines establish the method for calculating child support in each case and whether more than the guideline amount is warranted.  Lawyers, judges and employees of the state child support enforcement office will use these guidelines to calculate child support. Guidelines are designed to ensure consistency and predictability in child support amounts. If I give up my visitation rights, can I stop paying support? Not generally.  This, however, depends on the circumstances.  Usually, states do not give parents the automatic right to “abandon” children in an effort to avoid a legal responsibility to support them.  Under some circumstances, however, children of “sufficient age” are deemed to have abandoned  the parent and can be declared “emancipated” for child support purposes.  Each state has its own rules and authority for terminating a parent’s economic obligations to support children. The children are with me for the summer, can I stop paying for those months? Probably not.  This will depend on whether you and your ex have an agreement on the topic.  For example, some written agreements specifically address when support payments will be made.  Some states do not allow cessation of child support when children are visiting or in the custody of the payor parent.  Other cases, however, use a proportional offset method for determining appropriate child support based on the specific time-sharing arrangement. In determining child support amounts and duration, courts in many states consider substantial time sharing and “extraordinary” visitation expenses (such as frequent air travel for a parent who has lost time with a child due to a relocation of the other parent).  If this is an issue, be sure to address it in your settlement agreement. The general rule is that child support does not automatically stop when the child is away from the primary custodial parent because the parent receiving child support must continue to pay the mortgage, taxes, insurance and maintenance of the family home even in the temporary absence of the child.  A more permanent absence is a different case entirely.  Changes in custodial arrangements may result in changes to child support. Who pays for extra activities and how? Every state views this issue slightly differently.  In some states, for example, child support covers the basics and then there are mandatory and discretionary “add ons.”  Medical insurance, unreimbursed medical expenses and child-care costs for working spouses (or those enrolled in full-time educational programs) are mandatory “add ons” to child support.  Tutors, lessons and extracurricular activities are discretionary and, depending on family finances, ay or may not be ordered by the court.  For instance,  a modest-income family may not be able to pay for many “extras” in addition to the basic child support, whereas, a family with high incomes (and an affluent lifestyle) may be able and, therefore, obligated to pay for these expenses.  Both parents are obligated to contribute to the support of the children.  Their respective contributions depend on the state and often the particular judge deciding the case. Does my spouse’s remarriage affect child support? Usually not.  The obligation to support one’s child comes before the voluntary decision to support a new spouse. When will child support end? Child support obligations end when the child reaches age 18 in some states and age 21 in others.  Each state has additional criteria for determining if and when the obligation to pay child support will end.  Most states consider a child’s marriage, the death of the child, and the child’s living permanently away from a parent’s home as terminating events.  Other terminating events may be entry into the armed forces, Vista, Peace Corps or other permanent events removing the child from the parental residence.  Some courts, for example, do not have the authority to order support of a child beyond the age of 21.  Parents are fee, however, to agree to extend child support beyond that age.  Other issues that are pertinent to the issue of emancipation are what if a child is deemed emancipated but, for some reason, circumstance change and the child is no longer considered emancipated?  For example, the child marries at age 18 and moves of the house.  Six months later, the child gets a divorce or annulment and moves back home. Because the child is still under age 21, in a state that requires support until age 21, must the child support obligation continue?  Can an emancipated child become unemancipated?  In the right set of circumstances, yes.  Emancipation should always be addressed in the written settlement agreement when custody and child support are at issue. Do I need a prenuptial agreement? Generally, prenups are signed by persons previously married who intend to pursue a career and have substantial family wealth. Do all states enforce a prenuptial agreement? No. State laws vary in some respects, however, 26 states have adopted the Uniform Premarital Agreement Act (UPAA) which provides uniformity among the states. How soon before the marriage must the agreement be signed? A good rule of thumb is that the agreement should be signed before the wedding invitations are mailed.  The less time there is between the signing of the agreement and the marriage, the more likely is a successful claim that the agreement was not entered into voluntarily. What form must a premarital agreement take? The agreement must be in writing and must be freely and voluntarily signed by both parties.  In some states, witnesses are necessary and the agreement must be acknowledged before a notary public. Must I hire an attorney for my prenuptial agreement? Not necessarily, but it is a good idea. An attorney will call your attention to the various issues that may be considered and how best to dealt with them. Also, agreements drafted without an attorney may be more likely to be subject to questions about whether the agreement was entered into free of duress and voluntarily. Should one attorney prepare the premarital agreement for both of us? No.  Each of you should hire your own attorney and your attorneys should be independent and should represent your interests alone.  An agreement drafted by one attorney representing both of you may later be subject to a claim of alleged erroneous advice by that single attorney. What will a prenuptial agreement cost? It is difficult to say.  There is no one form for such agreements.  Each family has unique issues.  The cost will depend on the terms, the necessary conferences, the complexity of the issues and the time required to negotiate the agreement.  Fees generally include a retainer plus the usual hourly rate of the attorney. Should I pay the lawyer for my fiancé? It is not a good idea to pay your spouse’s attorney fees because the lawyer for your fiancé should be completely independent.  Better to give the money to your fiancé to pay the lawyer directly. What does a premarital agreement cover? Such agreement can provide for any matter, including personal rights and obligations, as long as it is not in violation of public policy.  Generally, matters are addressed in the event of separation, divorce or death, the disposition of property, and modification or elimination of spousal support; although not every state permits agreements to control support. When does a premarital agreement become effective? It becomes effective when you marry. Are the terms of a premarital agreement effective even in a long-term marriage? Yes.  Sometimes, however, agreements provide a “sunset clause”, which makes some or all of the provisions ineffective after a number of years of marriage.
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