Often people find themselves at the point in their life when they must decide to go forward with their marriage or should they terminate their relationship. One impediment they might find that might decide their decision making in going forward, is the enormous divorce process that they face once they file divorce papers with the court. The legal process through the Court system is often daunting and will cause enormous stress to the parties.  Therefore, there is an alternative solution that many parties are using nowadays that might resolve the unnecessary stress with the divorce process. Mediation is an informal and less stressful divorce process that many people find very beneficial in going through the divorce.

This process involves the parties meeting at a lawyers office or even a nonlawyer if they so choose.  This type of setting is much more pleasant and does not involve going to court. Once in the office the parties can sit with the Professional and proceed going through the divorce process.  All of the documents and procedures are involved in this Mediation process however, there is no need to go to Court.  The Professional Mediator will do all the paperwork and do all the Court filings.

Now the difficult part of all divorces is coming to an agreement with all the issues of the divorce such as support payments, division of property and custody issues. In a Mediators office all these issues can be handled without conflict in the Mediation setting. When both parties can come to the Office with their prospective requests and desires the mediator often can find that middle ground that often cannot be found in Court. If the Mediator is an experienced family law attorney they often can explain the outcome of the issues to the parties and act as an effective intermediary to resolve all potential conflicts. They can explain how a custody schedule might work and what way would be more effective for the parties.  They can also resolve the financial issues involved in the divorce. The mediator can look at all the financial declarations of the parties and resolve the spousal support issues if any.  They can also divide assets without having to fight in Court.

If you ever wonder how Health insurance is covered during a divorce, child custody battle or a Paternity Lawsuit, the answer is not as complicated as it might seem.  The Family Law court system along with the Department of Child Support Services has a lot of authority to order a party to pay for Health Insurance of a minor child. As in the Case of Divorce, the Judge can order a party who employed and Health insurance is available through their employer that they ensure their child. In addition, if they are financially able to pay Health insurance for the minor child the Court can order them to pay Health insurance or purchase a policy for children.

The most common and probably the most cost effective means to insure a minor child of a Paternity or a Divorce is through the employer.  Often employers will cover not only the party but minor children.  After in inquiry by the Court of the parties employment and or economic situation can easily determine that that either the Mother or Father is able to ensure the children

The law provides under Family law Code section 3751 that “in any case in which an amount is set for current support, the court shall require that health insurance coverage for a supported child shall be maintained by either or both parents if that insurance is available at no cost or at a reasonable cost to the parent.” It further goes on to talk about a rebuttable presumption about who shall pay for the health insurance of the minor children.  The main issue of Health insurance is that it be reasonable for the parties.  And reasonable to according to the Judicial system is not to exceed 5% of the gross income of the Mom or Dad.

When people get a divorce there may be a variety of reasons for the termination of the relationship. One party may practice one religion and the other another.  If children are involved the issue of the upbringing of the children and which religion shall reign supreme becomes a hot topic.  How can both parties post marriage raise children to share and participate in each parties religious practices if any. This complex question seems difficult to solve at first, however, after careful planning and willingness by both parties, with an open mind, the problem can be easily resolved. How so? Well if both parties determine that religious practice is a positive learning tool for their children and that religion is seen as a form of education and inner spiritual development for the child whether the child is Christian, Muslim, Hindu or Jewish the child can flourish with the practice of both types of religions.

Our modern day society demands that we have an open mind to all religious practices.  As post marriage parents, the parties must divide everything up equally and fairly, including how we go about teaching religion to our children.  As children are shared between the parents on different Holidays and Vacation times so too can the parents divide the religious holidays and practices among themselves.  Each parent can equal time with their children in the practice of their religion.

If parties decide that they cannot decide how to divide up or decide who will be able to practice their religion with the children then the Courts will have to get involved.  As a result the Courts will order an often rigid arbitrary schedule that neither parent will feel is effective in adhering to their religious practices.  It would not be in best interest to have an arbitrary third party determine the fate of a child’s religious experience.

If you are thinking of getting a divorce to start the new year on new way of life.  I have several tips that you can use and plan about prior and during your divorce.  First, make sure you have money set aside to assist you financially during and after the divorce from your spouse.  The most important issue that arises for a person going through a divorce from a long term marriage is making sure there is enough money in the bank.  You need to create a budget for yourself post divorce. What are your expenses, make a spreadsheet.  If you are familiar with family law forms prepare an income and expense declaration.  This form will be truly helpful along the way during your divorce process.

If money is an immediate issue and your job does not financially give you the security you need you can hire a lawyer and go to Court and get an order, if there are children, child support and spousal support.  These two orders may well be the most important orders you can get in place during the divorce process.  It is important also to start separating your bank accounts from your spouse and putting your own money into that account.  Also along with a new bank account get your phone plan.  Privacy is very important during the divorce process and the other spouse does not need to know any of your business now that you are on your own.

Furthermore, you need to think about getting your own health insurance plan.  During the divorce process the law places a restriction on one spouse throwing the other off of the health insurance, including the children. However, that does not mean that once the divorce is final the other spouse is ordered to maintain health insurance for you, they don’t have to.  But they will have to insure the children by law.

I often end up in Court representing someone who either is filing for contempt or is on the receiving end on a contempt.  Most of the times the process is being misused by the other party who ignorantly filed a contempt action thinking the other party doing what they are obligated to do under the law. In my 18 years of practice rarely do contempt actions succeed unless child support is involved.  Most people however, pull the trigger and file a contempt on the other party when the child arrives late for a visitation or violates some custody order.

The elements of a contempt action are 1) a valid prior order 2) knowledge of that prior order 3)ability to comply with the order and 4) lastly willful failure to comply with the order.

Often the first element of contempt is easy to demonstrate to the Court that there is a valid prior order.  All you need to do is provide a copy of the prior Court to your affidavit for Contempt when you file the action.  There might be difficulty in the order if it is not clear, specific and “unequivocal.” This actually is a big problem in contempt actions.  The vagueness of an order can be a big sticking point with the Judge in finding any violation of a prior order if it is vague on its face.

Even politicians are susceptible to the laws and regulations of domestic violence. They too can be disciplined and even effected by the filing of restraining orders and Stay Away Orders.  One might think that because they are a politician and hold a public office and are voted by the people to represent them in the legislature that they are above the domestic violence laws of the United States.  However, this has proven to be untrue as in the case of South Carolina legislator Chris Corley who was indicted on felony domestic violence charges.  The South Carolina House Speaker suspended Mr. Corley after the domestic violence charges were done.

A 911 call was made from Mr. Corley’s house and in the background on the 911 call children’s voice were heard screaming as Mr. Corley allegedly was pointed a gun at his wife. Under California law Corporal Injury to the spouse under Penal Code section 275 is a felony and can send a person to state prison for 2, 3 or 4 years.  This charge occurs when it is inflicted upon a family member.  In Mr Corley’s case he allegedly attacked and beat his wife.

His children were heard on the 911 call telling their dad to stop the aggression.  This type of behavior as well will probably end up on criminal charges.  Exhibiting violence in front of the children can be a criminal charge as well.  Under Penal Code section 273a wherein if a person places a child in danger willfully or recklessly placing a child in a dangerous circumstance.

In Texas there  is a lawmaker who is trying to make a push in the legislature for a no fault divorce.  This would mean that there needs to be a reason for getting a divorce in the state of Texas.  What this Texas lawmaker wants to do is make the family stronger and less likely for people to go to court and get a divorce.  Usually in Texas people go to Court and just file for divorce and get their personal property divided and that is it.

However, one Texas lawmaker has decided it was time to change the no fault divorce in favor a more traditional and difficult way to get a divorce.  This lawmaker wants to uphold the institution of marriage and make if more difficult for people to dissolve the marriage.  The family has deteriorated over time with the easy access to the court system and its quick mechanisms for terminating the marriage relationship.  Is this a good idea? well, time will tell if this lawmaker gets his way.  A divorce that would need to be brought to court and have a judge decide the fate of a marriage can be both positive and negative.

The negative side of having to find a fault with a divorce would be that the court system would definitely be more crowded.  A court system that is already burdened by too many litigants will be further inundated by people having to present a divorce case in Court.  What if the Judge decides there is no fault? Does that mean people will remain married because one party doesn’t want to get divorced.  That would a rather heinous result of this fault based divorce.

Often in Family Law cases there is sensitive information that needs to be sealed in Court so that the Public and or other parties to the case to have access to the sensitive records.  Recently the Judge in the Prince case in Minnesota unsealed records it did not find to fit the legal analysis for keeping records sealed in Court. Prince apparently had records from a prior divorce sealed.  The terms of the settlement were kept confidential until recently when the public outcry for the information came before the court again.  Now that Prince is deceased the Court has now revisited these issues and determined that the records would be unsealed.

The Court when determining is a record needs to be sealed must determine if there is an overriding interest to the parties that the record cannot be made public. Often trade secrets of a company or some type of business issue that must be protected. Next the Court must consider that there is a substantial probability that if the document or issue is not sealed then the party to whom the record is maintained by will be prejudiced.   These type of prejudices would be if someone uses the document or record to their advantage in a new proceeding or future proceeding once knowing what the document or information is. In addition, the court once they determine to seal the document must seal the records specifically to what needs to be protected.  If there are a lot of trade secrets that are available but only one is secretive then the Court will Seal only the one that is pertinent.  Finally the Court will only Seal records where there no other way to maintain the privacy of the records.

In the case of Prince most of his divorce settlement was sealed.  Since his death much of his estate is unknown and the divorce he underwent divided millions of dollars and the Estate of Prince now needs to know where some of his money went during the divorce settlement.  Therefore the Courts must now unseal records and review the stringent legal analysis it underwent during his divorce from Testolini.

If anyone is wondering what happens when you go to court regarding visitation and custody I will explain to you several types of visitation schedules the parties often agree to or the Court offers to you.  The basic concept of family custody schedules is providing frequent and continuing contact for both parents.  So the Court often tries to shape visitation orders that allow both parties to participate in their children’s lives without leaving one parent out of the picture.

A standard visitation schedule not too long ago would have one parent as primary custodian and the other parent as the alternating weekend parent.  However, times have changed and a weekend parent now becomes the 1st, 3rd and 4th weekend parent.  In addition, the Wednesday or Thursday overnight or dinner visit has been implemented.  Moreover, with all the three day holidays children are getting in school a weekend often includes a Friday to Tuesday morning drop off at school. This type of schedule is common and is implemented when one parent does not have primary physical custody but more a visiting parent.  This type of typical visitation plan does give one parent significant more time than the other parent.  A more friendly visitation or custodial arrangement would be alternating weekends with one parent having every Monday and Tuesday and one parent having every Wednesday and Thursday.  Then each parent would alternate Friday, Saturday and Sunday.  This is a 50% percent schedule that is very good in that is gives frequent contact for both parents.  It involves each parent equally and no parent is without seeing the other child for more than a few days.  It is better than week on and week off because there is less time away form the children for each parent.

As far as Holidays are concerned the Courts always use the alternating years for Holidays such as Thanksgiving, Christmas and Spring Break. That means one parent can have Thanks giving in even years and the other parent has it on Odd years.  In addition, each parent usually gets to have visitation on their birthdays.  Holidays such as Halloween and Fourth of July and New Years eve or day can be negotiated alternating or sometimes one parent choose to have that Holiday as a priority and can request that Holiday. Much of the Holidays need to be negotiated more specifically because often family traditions are common and one parent would like to include the children in the family schedule.

Often parents caught in a custody dispute find themselves entering into custodial arrangements that fit their work schedule it may or may not work for assisting in your childs homework assignments.  Often the parent might get a day that is a busy homework day for their child. And if this happens the busy child and parent must somehow get the homework done.  That might mean late night hours when no one wants to stay up and burn the midnight oil.  Courts always state the custodial parent has the responsibility to  make sure the homework gets done.  What happens is the parent potentially gets a midweek visit and fails to follow through with the day to day activities of the child.  Often a parent might neglect these duties because they feel they are not the primary custodian of the child and do not have to help or make sure homework gets done.

A Court in New Jersey recently visited this issue when a parent getting a midweek overnight visit did not make sure his child got their homework done for school.  The Court did not like this type of behavior exhibited by the parent getting the midweek visit and determined that in the Best Interest of the child standard that the midweek could be cut from the schedule for that parent.

The Best interest Standard determines what is the best situation for visitation and custodial time for the child.  If one parent cannot maintain what is in the best interest of the child then the Court has broad discretion to alter or eliminate those midweek visits.  In fact, it is very important to become very interested in your child’s school activities.  This includes homework and also knowing the teachers and classes the child attends.  An interested parent becomes a more suitable parent for child custody purposes.  Despite having limited time with a child a parent should not neglect schoolwork.