Family Law
There is much excitement and anticipation when a couple exchanges the vows that create the bond of matrimony. Another wave of excitement is validated when a child is born to a couple. Children are born to both married and unmarried couples equally within society today, and this has become an acceptable form of a family unit. A breakdown in the family dynamic is the end result for many reasons. Divorce and custody cases are common in family courts as well as cases requiring a judicial disposition on the issues of child support, visitation, and the division of marital property and its distribution. Family court dockets are often flooded with individuals seeking clarification and closure.
When a couple marries, the words till death do us part are exchanged during traditional wedding nuptials. Sadly, this is not always the case. Spouses and couples decide daily to seek out the dissolution of marriage for various reasons. It is common in divorce cases, excluding a no-fault divorce, that a court must determine the proper division of all marital property. Marital property refers to all property acquired throughout the legal boundaries of the marriage. A court then decides how to assign the property. This action is referred to the Uniform Marriage and Divorce Act (UMDA). The other form of legal division of marital property is equitable distribution.
An important key point and provision allowed in the UMDA provides that all marital property be split fifty-fifty between each spouse despite how it was possessed. This method of property distribution is not often favored, but rather separate property division through equitable distribution is a more likely choice.
Equitable distribution is a more fair and flexible means to divide the property of a marriage. Separate property is determined by how it emerged. It is usually excluded in all phases of equitable distribution. This type of property is commonly gained via an inheritance, gift, legal agreement between spouses, or compensation for personal injury. The process of distribution in a divorce proceeding is based on many considerations. The financial position of each party is weighed heavily due in part to past standards of living, custody of children if children are involved, and offerings made by both spouses. If the wife were primarily a homemaker, then she is still viewed as having made an ample contribution to the marriage. Similar factors included are the age and health of each spouse and the value of the property in question. Another important issue considered during the process of equitable distribution involves any outstanding debts held by one or both spouses during the course of the marriage. Although equitable distribution takes a little longer, it is clearly fairer than the UMDAs provision allowing a fifty-fifty split of all property.
The second dispute seen frequently in the family court system involves questions surrounding custody and the decision making factor. Custody decisions are primarily based on information provided to the court through several accredited sources. These sources include but are not limited to counsel for either the mother or father, a guardian et litem appointed to protect the best interest of the child(ren), counselors, school officials, and sometimes family and friends. The mother has generally been granted custody of any child in the past, but this practice is quickly becoming the rule of yesteryear. Mothers are most looked upon to provide the necessary nurturing and caregiving needed to help the child overcome the trauma of the separation and divorce of the parents during and after the fact. The father has been viewed in the past as not having the necessary time to devote to the rearing of the child. Fathers were usually the breadwinners of the household which required many hours to be spent away from home, unavailability to attend school functions, and the need to employ outside caregivers for the child in his absence. For these reasons, a father was typically deemed unfit as the primary custodian of a child. The family court still holds firm in striving to do what is in the best interest of any child involved in a custody dispute, however the past criterion used to render this decision has changed to include the wishes of the child.
The parents past and present conduct allows the family court to draw a more founded conclusion concerning the fitness of a parent. Topics involving domestic violence, any sexual misconduct records, abuse and neglect of a child, and drug and alcohol addictions are some of the most urgent matters addressed . Mothers and fathers have a very different list of pros and cons whereby custody matters lie. Mothers tend to become more easily burned out due to the demands of undertaking the role of both parents in the absence of the father. Mothers have become more self-reliant financially requiring employment outside of the home. This quickly dismisses the past role as a stay-at-home mom. Peer relations and romantic interests have caused areas of concern as the childs needs are often overlooked in order for the mother to reignite a once lost social life. Fathers are now recognized as wanting to take on a more active role in the parenting process. Many fathers are employed and have returned to school for additional training and skills as a means to better financially support the child. The mental health of the father has been noted to be more stable in essence providing a more stable and structured environment. Mothers and fathers are both given fair opportunity within the court to verify why he or she is more adept to meet the physical, emotional, and financial needs of a child. During past decades it has become apparent that the Tender Years Doctrine is outdated much of the time. Fathers are standing up for their rights recurrently, while the mothers are giving way to standing down.
The third and final matter to be discussed is that of visitation and child support. This is an ongoing theme in the family court system and is rarely decided with just a few appearances. In this focus, the child is sometimes allowed to voice his or her wishes as to what kind of visitation is desired. Visitation can be worked out between the parents without mediation in some occurrences, but the final approval and disposition must always be endorsed by the family court. It is a misconstrued belief that in order for the non-custodial parent to receive visitation, then he or she must be current on all child support payments. These two issues are separate and not correlated in any way. Visitation meets the emotional needs of a child while child support meets the financial needs of the child.
When a non-custodial parent has failed to meet the child support ruling of a court, the custodial parent will sometimes try to with-hold visitations with the child until the debt is paid. This is neither legal nor is it emotionally productive for the child. Visitations are intended to strengthen the parental relationship.
According to Gold, visitations provide a positive correlation between a childs self-esteem and a good father mother-child relationship. Unfortunately, with-holding visitations from a parent who has fallen behind in paying child support, is usually done so out of retaliation and anger. This becomes an argument between the parents whereby trapping the child in the crossfire.
Rare instances permit the parents to create a child support agreement to be submitted and approved by a family court, but ultimately the child support order is handed down by the presiding court with jurisdiction. A state agency has been fashioned to handle issues of child support. Each state employs a Bureau or Division of Child Support Enforcement (DCSE). This agency is bound to uphold all court orders of support, but it also has the legal ability to bequeath administrative orders of support based on information collected from either parental party. The DCSE is able to implement specific methods for establishing a regular receipt of support. The agency can locate an absent parent, initiate a wage withhold, intercept any federal and state tax refunds, place liens on personal property, revoke a business or driver license, impose jail terms for continued non-payment, and establish support orders administratively as well as within the family court. The Omnibus Budget Reconciliation Act of 1993 has denoted the power of establishing paternity through the DCSE as a means of instituting a support order. An absent parent who refuses to pay support may find it more difficult to hide from the obligation. The Uniform Interstate Family Support Act (UIFSA) was established to follow and find parents who flee the state boundaries in order to evade making payments. Employers are now mandated to screen new hires through a process that checks for outstanding child support debt. If it is found that a new hire owes back child support payments, a wage withhold can be imposed sequentially to begin collecting the court ordered payments.
The family court is over burdened with issues that seem intrusive into ones personal life, however these courts are needed to remedy issues that require mediation and resolve. Divorce not only legally voids a contract of marriage, but when children are involved, it also breaches a family dynamic. Material property is amicably divided to satisfy the needs and rights of the disputing parties. Visitation and support are obligations and responsibilities held by both parents. They are not legal tools to be used to torment and harass one another. Custody is always sought for the best interest of the child, although what may be in the best interest of the child today can change tomorrow as financial, physical, and mental circumstances may also vary. Consequently, ones list of priorities may change as well. Nothing is guaranteed to last forever.
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