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Posted by on in Child Support

b2ap3_thumbnail_download-1.jpg Every state recognizes that each parent is responsible for providing support for their children, whether the child lives with each parent or not. However, there are many circumstances when the family court should no longer have jurisdiction of the case or when child support should otherwise end.

By Court Order

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b2ap3_thumbnail_lgbtDivorce.jpgMany in the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community celebrating a victory, not only for them, but for the Court’s interpretation of the constitutional rights of all Americans.
In the majority decision of the Court, all states must perform and recognize same-sex marriages, even if the marriage was performed outside of the home state of residence. Citing the protections offered by the Fourteenth Amendment Due Process Clause, the Court has given same-sex marriages the equal constitutional protection that heterosexual marriages are granted.

Justice Anthony Kennedy authored the Court’s opinion stating that the fundamental ideals of marriage are the same for both same-sex marriages and those between a man and a woman. Marriages based on love, fidelity, devotion, sacrifice, and family apply to both types of marriages and should be available to two consenting adults who respect that union. He added that same-sex couples want the same type of committed and respected marriage that heterosexuals enjoy where two people come together and become greater than before. To deny them of that right is unconstitutional in the eyes of the law.

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b2ap3_thumbnail_child-support-13.jpg State laws determine how and when a person can be ordered to pay child support. Additionally, these laws dictate the window in which a person can collect arrearages.

Legal Duties

Every state denotes that both parents are responsible for supporting their children until the child reaches the age of majority. This often means that child support remains due until the child turns 18. However, many states permit child support orders to last longer than the child’s 18th birthday.

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b2ap3_thumbnail_20121116202428-9.jpg Family courts around the country recognize that spouses own some property that is separate from what they accumulated as a marital couple. Those assets that comprise the marital estate are subject to division at the time of divorce while separate property is generally excluded from a divorce award.

Premarital Property

The property that a person brought into the marriage is usually off-limits to the other spouse. However, this can change if the old property has comingled with marital property. For example, a bank account can become comingled property if the other spouse was added to the account or funds were used from the account that make transactions indistinguishable between separate transactions and marital transactions.

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b2ap3_thumbnail_download_20160428-003849_1.jpgThe Supreme Court has acknowledged the validity of same sex marriage throughout the country. Of course, after parties get married, some of those parties decide to divorce. However, not all divorces are treated equally, because some of the doctrines surrounding divorce have traditionally been applied only to long standing heterosexual marriages.

For example, one of the grounds often asserted to obtain a divorce is that of adultery. However, adultery has traditionally been given a limited and narrow definition, involving vaginal intercourse between a married person and someone other than his or her spouse. Because of this limited definition of adultery, typically interpreted to apply to sexual intercourse between a man and a woman, by definition it is technically not applicable to infidelity in a same – sex relationship. As a result, this limited definition may deprive same sex couples of this ground for absolute divorce. It would be appropriate for the legislature to consider expanding the definition to be applicable to physical relationships between persons of the same sex.

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b2ap3_thumbnail_parar-de-beber_.jpgImagine a woman is so infuriated with her husband for his philandering, gambling and drinking that she disinherits him. Upon her demise, the husband commences an application for support under Part V of the Succession Law Reform Act (the “SLRA”).[1] The husband qualifies as a dependant because he is a spouse and his wife had a legal obligation to support him. What impact, if any, would his past behaviour have on his entitlement to dependant’s support?

By way of background, claims for dependant’s support are governed by Part V of the SLRA. Within Part V, section 57 contains the definition of a “dependant,” which includes the spouse of the deceased. The definition also provides that the deceased must have either been providing support or been under a legal obligation to provide support to the dependant immediately before his or her death.[2] Section 62 of the SLRA contains an extensive, but not exhaustive, list of factors the court will consider in determining the amount and duration of support to be awarded to a dependant. Section 62(1)(r) contains factors considered specifically for a dependant spouse, and subsection (i) therein contains the phrase “a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.”[3] This leads to the first question that a disinherited spouse might have: what will be considered unconscionable conduct sufficient to preclude or lessen the amount or duration of support awarded?

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child-custody_california In addition to remedies that are available at the state level, such as garnishment of wages and state tax offset programs, the Deadbeat Parents Punishment Act creates a federal criminal cause of action for parents who refuse to make court-ordered child support payments.

Issuance

This federal act was signed into law in 1998 by then-President Bill Clinton. After Clinton passed the act into law, he publicly stated that a central reason why many single mothers have to rely on welfare programs is because the fathers of their children have failed in their responsibilities to support their children. He said that the act was established so that children could have a higher quality of life.

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b2ap3_thumbnail_o-DIVORCED-WOMEN-facebook.jpgDrafting settlement and separation agreements is an important part of any family law practice because only fifteen-percent of divorce cases eventually go to trial.

Written settlement proposals can be exchanged at any time. They, like interrogatories, may help determine if an agreement can be reached now or in the future. Obviously, you need your client’s direct input and authority when drafting a settlement proposal and it is absolutely vital that they review and approve the proposal. Many times, the first settlement proposal will be quite broad, while subse quent iterations can pin down the details of the agreement.

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Tagged in: court divorce family law
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Posted by on in Legal Separation

b2ap3_thumbnail_img.couple-yelling-silhouette-alberta-law.jpg In some circumstances, one spouse may consider suing his or her spouse for particularly egregious conduct. However, whether the spouse can bring a viable claim against his or her spouse depends on the nature of the behavior, the nature of the relationship, state law and the particular circumstances involved.

Common Law Considerations

At common law, suing one’s spouse was generally outlawed. The legal reasoning behind this is because a married couple was sometimes viewed as a single entity. Therefore, by suing one’s spouse, an individual was really suing himself or herself. This concept was largely known as the “spousal immunity” rule.

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Tagged in: divorce family law
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b2ap3_thumbnail_divorcedparents.jg_.jpgIn some, sad divorce cases, when parents continue to quarrel, long after the divorce papers have been signed, the Court is required to appoint a lawyer for the children. That lawyer is called a Guardian ad Litem. That lawyer conducts a thorough investigation and reports to the Court.

In a recent case the Guardian filed a report which seemed to touch the parents when all other efforts had failed. The report should be shared, and I share it, in part, with you:

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b2ap3_thumbnail_87604643.jpgIn high conflict divorces, those that never seem to end, abandonment is a common factor.
T
hese days, when we see divorced spouses returning to court two or more years after the divorce process was technically completed, we inquire into their early childhood experiences, and we frequently find abandonment trauma in their family histories.

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b2ap3_thumbnail_child-support-23.jpgThe Federal Child Support Enforcement Act has developed guidelines covering a state child support formula that varies in each state. This means that child support ordered in one state may be much more or less than that ordered in another state.  The status of parental custody is taken into account by each family court judge when determining the amount to be paid.  Additional factors include:

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b2ap3_thumbnail_Texas-Family-Law-attorney.jpgWhen a person receives an order in a divorce case, this order is backed up by the power of the court. If a spouse refuses to comply with the instructions included in the court order, there are usually ways to compel the spouse to follow the judge’s instructions.

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b2ap3_thumbnail_atmjpg-9909600726670f12.jpgThe non earner spouse can withdraw funds from joint accounts prior to the time one of the parties files for dissolution. Once a petition for dissolution has been filed, automatic temporary restraining orders (ATRO's) go into effect. These orders forbid either party from dispating a community asset, absent a court order.

 

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Posted by on in Child Support

b2ap3_thumbnail_ChildSupport-iStock_000017765447Small.jpgMost people believe that when a child turns 18, they can stop paying child support.  The laws regarding child support vary in each state.  Graduation and ending child support may not go hand in hand.  Some states provide that in divorce actions, the courts may order the paying parent to continue child support until the age of 21.  Most require support payments to continue until the child has graduated from high school and in some cases, the child may be over the age of 18.

Lump Sum Child Support

Child support differs from spousal support.  In many states, a waiver of the right to seek a modification of alimony is legally enforceable.  On the other hand, a waiver of the right to seek a modification of child support is not, even if the waiver was given in exchange for a lump sum child support payment amount.  Even if the parents enter into a binding contract regarding a lump sum child support payment, a judge can choose to enforce or not to enforce a child support agreement.

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b2ap3_thumbnail_10-Reasons-To-Have-A-Prenuptial-Agreement-image-1-of-1.jpgWe live in a culture where marriages are not always “till death do us part.” Although most engaged couples imagine that their marriage will be a lifetime of shared bliss and cooperation with finances, the truth is that approximately 20 percent of marriages end within five years and more than 30 percent end within 10 years. This is why it is important to consider all possibilities for the future before you get married

 

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b2ap3_thumbnail_child_support_title.jpgWhen individuals think about child support, they usually think about fathers supporting their children while the mother maintains primary custody. However, there are instances when fathers are entitled to child support.

 

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Posted by on in Domestic Violence

 

b2ap3_thumbnail_Domestic-Violence-Stats.jpgAssault occurs when an individual intentionally threatens another person with violence, placing the victim in fear of an imminent attack. A person commits battery when they actually commit the violent act. Domestic violence statute incorporates both assault and battery, along with other offenses, such as stalking, kidnapping, and false imprisonment.

 

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Posted by on in Divorce

b2ap3_thumbnail_divorcepapers.JPGSometimes divorce is finally filed after years of separation and is well anticipated. In other cases, it comes as a complete surprise to the person receiving paperwork. After receiving divorce papers, individuals must take immediate action to protect their legal rights and future.

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divorce-legal-requirementsThere are a few legal requirements which must be met to file for a divorce in most states.
Under most state laws, a divorce (or "dissolution") action must be filed and decided in court. Many states have a "no-fault divorce" policy. In other words, these courts are not concerned about which spouse was wrong or guilty of marital misconduct.
There are a few legal requirements which must be met to file for a divorce in most states:

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