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Family Law FAQ

Find some frequently asked questions for employment law.

 

Divorce

Here are the answers to the most frequently asked questions about divorce and divorce representation:


Q. How much will it cost to get a divorce?

A. There is no standard answer to that question, although it is one almost everyone asks. Just as every couple, and every troubled marriage, is different, so too are their divorces.

 

For that reason, we never estimate the cost to handle a divorce for any potential client until we have first met with them to discuss their situation and have understood what they are trying to achieve. We do this during the initial consultation, during which we identify what the initial retainer will be to begin working on their case. Even so, we cannot guarantee that the total cost will not exceed the initial retainer because the amount of time needed to bring a case to conclusion varies wildly from case to case.

 

However, we work hard with clients to assist them in being a judicious user of our time and we keep them constantly apprised of how costs are progressing.


All that said, the following will try to provide some perspective on what affects the cost of a divorce. The first thing to keep in mind is that every dollar spent on the divorce comes right out of the “marital pot” (unless you have a rich uncle willing to pick up the tab!) and, thus, is one less dollar to divide between the two participants, or to spend on their children.


By far, the largest expense in a divorce is the attorney’s fees, although cases with complex issues can also expend significant amounts on experts such as child psychologists, business valuation experts, and real estate appraisers, with each side hiring their own set of experts. Since virtually all attorneys bill based upon the time spent on a case, cases that take the most attorney time cost the most.


So, you’re probably asking, what takes so much time? Here is a short list:

 

Child Custody

 

Q: What is custody?


A: Custody is the physical care and supervision of a child (under 18 years of age). Physical custody is used to describe the person with whom the child lives on a day-to-day basis. Legal custody is used to describe the person who has the right to make major decisions concerning the child, including decisions about the child's education, health care, and religious training.

 

Q: What are different types of custody arrangements?

A: There are two different types of custody arrangements: Joint/Shared custody and Sole/Exclusive custody.

Joint custody 
or shared custody means that both parents make the major decisions in the child's life. Minor day-to-day decisions such as bedtime or what the child will wear are up to the parent who is with the child at the time. Joint custody does not mean that a child must live half of the time with one parent and the other half with the other parent. It does mean that physical custody will be shared in such a way to ensure that the child has continuing contact with each parent. Usually, the court will specify with which parent the child will be primarily residing. Joint custody works best if parents can set aside their differences and discuss what is best for their child.

Sole custody
 or exclusive custody means that one parent has the final decision-making authority concerning the major decisions in the child's life. The child also lives with the parent who has sole custody, also referred to as the "custodial parent." Generally, the court will order that the non-custodial parent will have continuing contact with the child. It is possible for the court to order that the non-custodial parent see the child as often as a parent who has joint custody.

Visitation
 means that the non-custodial parent has a right to see the children. The amount and type of visitation granted will depend on the ages of the children, how far apart the parents live from each other, and other specific factors relating your child. The court usually likes to set a visitation schedule for the child to spend time with the non-custodial parent. Fixed schedules can include sleepovers, weekends, weekday evenings, shared holidays, school vacations, and summers. A judge may order supervised visitation if the safety of the child is an issue. If there has been domestic violence between the parents, a judge may also order that the exchange of the child take place in a supervised setting or in a public place.

 

Q: Who can get custody of a child?


A: Custody can be awarded to the person, agency, organization or institution that will best promote the interest and welfare of the child. An order for custody of a minor child may grant:

Q: Do I need a lawyer to start a custody case?

 

A: You do not need a lawyer to file for custody. However, custody cases are often complicated, and a lawyer can help you through it. It also may be difficult for you to file the proper paperwork without the help of a lawyer. Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well.
You can talk to or get a lawyer at any time during the course of your custody case, BUT getting a lawyer at the last minute usually will not be grounds for postponing your case. Also, many lawyers will not take a custody case at the last minute.



Q: How will a judge make decisions about child custody and visitation?

 

A: Custody is based on what the judge believes is in the best interest of the child. The judge will consider all available evidence and all relevant factors such as any special needs of the child, the quality of care the child is receiving, the child's educational performance, the child's involvement in extracurricular activities, and the child's physical and emotional state.


The judge will also examine both parents' ability to care for the child, employment history, living situation, substance abuse issues, mental health issues, and dating relationships. The judge may also ask to hear from people who have information about either parent's parenting abilities or information about the child.


Lastly, if the judge finds that domestic violence has occurred, the judge must enter an order that best protects the children you who were the victims of domestic violence. The factors the judge must consider are the same as they would be if you were filing for temporary custody as part of a DVPO.


When you go to court, you want to be prepared with as much information as possible about yourself, the other parent, and your child. In order to show the judge that you deserve custody of your child, it is important that you have a good knowledge of your child's interests, abilities, and care.


Once the trial is over, the judge will sometimes make his or her decision verbally while still in the courtroom. However, sometimes the judge will not make a decision right away; rather he or she may issue a written decision on a later date. In either case, the judge will eventually issue a written decision. This decision is called on order. You must comply with the order as it is written or you could be "held in contempt of court". When a judge holds someone in contempt of court, the judge is punishing that person for not doing what the court said to do.


If you are confused about anything in the order, ask the judge to explain the terms of the order.

 

Q: If there is a custody order in place, can I take my kids out of the state?

 

A: It depends on what your order states. The custody order may allow you to take your child out of the state, prohibit you from taking the kids out of the state, or not address this issue. The judge may require that you post a bond or other security conditioned upon the return of the child to the state.

 

Q: Who is responsible for providing child support?

 

A: Any parent, person, agency, or institution having custody of a minor child can bring a motion to the courts for the support of the child. Generally the father and mother are responsible for the support of a child. Considerations for child support include:

 

Uniform state guidelines are used to determine the child support obligations of each parent. If there is a change in circumstances of either parent, you can petition the court to modify or cancel the order for support.

 

Q: Can I get financial support for my child(ren)?

 

A: First of all, you do not need a custody order to get child support. Even if you do not have a custody order, the other parent of your child has an obligation to help support your child. If your child is living with you, you can go to Child Support Enforcement and ask them to start a child support case on your behalf. Starting a custody case in order to get child support can backfire because the defendant may ask for custody of the child(ren).


If you are seeking custody of your children and need help supporting the children, you may want to ask for child support. You can do this by going to Child Support Enforcement or by asking for child support as part of your custody case. If you are requesting the court to give you both custody and child support, you need to specifically state this when you start your custody case.

 

Bankruptcy

 

Q: What is bankruptcy and will I be debt free if I go through a bankruptcy proceeding?

 

A: Perhaps a bankruptcy overview will answer the first part of the question. Bankruptcy is a generalized term for a federal court procedure that helps consumers and businesses get rid of their debts and repay their creditors. If you can prove that you are entitled to it, the bankruptcy court will protect you during your bankruptcy proceeding. In general, bankruptcies can be categorized into two types: "liquidations" and "reorganizations."


Among the different types of bankruptcies, Chapter 7 and Chapter 13 proceedings are the most common. Chapter 7 bankruptcies normally fall in the liquidation category. This means that if you own property, it could be taken and sold in the process of liquidation in order to pay back your debts. Conversely, Chapter 13 bankruptcies generally fall under the reorganization category, meaning that you will probably be able to keep your property, but you must submit and stick to a plan that will allow you to repay some or all of your debts within three to give years.


When you file for bankruptcy, the bankruptcy court will issue a protective order, called an "automatic stay," that will prohibit most creditors from seeking payment from you for your debts. This protective order binds the creditors that are covered by it, and only the court can lift the automatic stay and allow a creditor to collect from you.


There are certain types of debts that cannot be wiped out through a bankruptcy proceeding. For example, while credit card debt, unsecured loans and other debts can be forgiven, things like child support, taxes that are due and alimony payments cannot be wiped out. As well, student loans are not dischargeable through bankruptcy unless it can be shown that paying off the loan would place an undue burden on the debtor (this is very hard to show and is why student loans are rarely discharged through bankruptcy). In addition, if a creditor can show a court why a debt should not be discharged, that debt will also survive a bankruptcy proceeding.

 

 

Q: Is there a difference between Chapter 7 bankruptcy and Chapter 13 bankruptcy? I have property that I want to keep, which bankruptcy option will allow me to do so?

 

A: Yes, there is a difference between Chapter 7 bankruptcy and Chapter 13 bankruptcy. As mentioned above, a Chapter 7 bankruptcy is classified as a liquidation bankruptcy. You may have guessed that, like a sale at a department store going out of business, your property (except property that is exempt) may be sold by the bankruptcy trustee. In exchange for discharging many of your debts, the proceeds from these sales will be disbursed to some, or all, of your creditors by the trustee.

 

Unlike a Chapter 7 bankruptcy, a Chapter 13 bankruptcy is classified as reorganization bankruptcy. If you choose to file a Chapter 13 bankruptcy, you will also have to file a repayment plan that shows how you will repay your debts based off of your income. You will have to work with the court to determine how much you will repay. This is based off of your income, your assets, the amount of your debt, and the value of the property you own.

 

If you choose (and are eligible) to file for Chapter 13 bankruptcy, you will not have to sell off any property in order to satisfy your debts because your repayment plan is based from your income. However, under a Chapter 7 bankruptcy, you will have to choose the property that will be sold. There are certain types of property that are eligible to be sold, and other properties that are considered safe (not eligible to be sold) under state laws. Here is a general breakdown of the types of property that are eligible and not eligible to be sold (check your state's laws for more detailed guidance).

 

Property that may be non exempt in your state and eligible to be sold under Chapter 7 bankruptcy:

Q: Can I choose either Chapter 7 bankruptcy or Chapter 13 bankruptcy? Which one is best for me?

 

A: The answer to the first questions is dependent on whether you meet the eligibility requirements for both types of bankruptcy. If you do meet the requirements for both Chapter 7 and Chapter 13 bankruptcy, then you can choose the one that is best for your particular situation. However, there are times when you may not have a choice in the matter.


As a bankruptcy overview for Chapter 7, if you have an income that is higher than the median income for a family of your size, then you may not be able to file for Chapter 7 bankruptcy if your disposable income (taking out certain, allowed expenses and required debt payments) would allow you to pay back a portion of your unsecured debt within a 5 year period.


Likewise, Chapter 13 bankruptcy is only available to debtors that have less than $1,010,650 in secured debts, and less than $336,900 in unsecured debts (debts that are not secured by property or other collateral). If you do not meet these requirements, you cannot file for Chapter 13 bankruptcy. Note, these amounts are currently accurate but they may change over time as the laws are amended. You may want to consult with attorney to verify these dollar amounts.


In most situations, people will opt to file for Chapter 7 bankruptcy. They do this because if they meet certain eligibility requirements, they may not have to pay back any portion of their debts (except with the proceeds from the liquidation). In addition, Chapter 7 can also be faster than Chapter 13, which normally runs between three and five years and is more complicated to set up.


On the other hand, Chapter 13 may be a better option for you if you are just behind on some of your debt payments. For example, if you have fallen behind on your automobile payments, but you do not want your car to be repossessed, you may consider Chapter 13 bankruptcy. This would allow you to include the missed payments in your repayment plan, which would allow you to pay them off over the course of three to five years. If you filed for Chapter 7, your creditor may want to repossess the car and sell if off to repay the debt.

 

 

Q: How Do I Stop Creditor Harassment?

 

A: As you may already know, creditors can be persistent and annoying.


You should know that you may have the power to silence them!
Should you decide to file bankruptcy, you can silence your creditors and reclaim your phone, voicemail and mailbox. This is because a bankruptcy filing results in a court order called the automatic stay, which makes it illegal for creditors to attempt to collect on your debt.

 

 

Q: Will Filing Bankruptcy Hurt My Credit?

 

A: Bankruptcy can be an effective way to regain control and tackle mounting debt. Many people find that their credit scores improve not too long after they file bankruptcy.


Filing bankruptcy can leave an impact on a person's credit, but the effect may not actually be that severe. Many people who file bankruptcy already have lousy credit, and filing bankruptcy allows them to wipe the slate clean rather than continuing to have dozens of accounts in collection.


But you should also know that most types of bankruptcy will stay on your credit report for a period of at least ten years. (In some cases, the time period can be reduced.) During that time, it may negatively affect your credit.


But bankruptcy can also provide you with a chance to "start fresh" and rebuild your credit.


Keep in mind that how your credit will be affected will depend on a number of factors, such as where your credit level is at today and which type of bankruptcy you file.

 

 

Q: How Does Filing Bankruptcy Help People?

 

A: For all the negative publicity bankruptcy can get from credit card companies there is little talk about the positive side of bankruptcy.
Millions of people have filed for bankruptcy protection.

Personal bankruptcy was designed to:

Many people have been able to eliminate their bills by filing Chapter 7 bankruptcy and others have been able to stop foreclosure and save their homes by filing Chapter 13.

 

For more information, ask an attorney at The Firm Law Group about your case.

 

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