Divorce In Chicago and Florida – A Comprehensive Guide

It is not uncommon for people to have two homes and for people in Chicago, Illinois, that second home is often somewhere in Florida.  Florida has many advantages: great weather in the winter, no income tax, and low property taxes. Chicago has its own advantages: high wages, job opportunities, lots of culture. So, people who have a home in each state eventually have to be a resident of one of the states for various purposes, usually taxation.  But what about divorce in Chicago? Which state’s laws are advantageous for you in your divorce? Do you have the ability to choose which state you will file and prosecute your divorce?

As a divorce attorney in Chicago, Illinois and a Divorce Attorney in Naples, Florida, I will walk you through the options available to you if you have a home in Chicago and a home in Naples, Florida.

Where Can I File For Divorce in Chicago and Florida?

If one party to the divorce lives in Chicago, Illinois, the divorce can proceed in Chicago, Illinois.  The Illinois statute requires that you be a resident of Illinois for 90 days before filing for divorce but in reality, if you file for divorce and then stick around for 90 days, you will be allowed to proceed with your divorce in Chicago.

Florida is a lot stricter.  You absolutely positively have to live in Florida for at least six months continuously before you are allowed to file for divorce.  

Chicago Divorce Lawyer

Russell D. Knight
1 North State #1500
Chicago, IL 60602
(773) 334-6311

Naples Florida Divorce Lawyer

Russell D. Knight
3375 Pine Ridge Rd #201
Naples, FL 34109
(239) 202-0455

The subsequent question is “Which courthouse in Chicago and Naples Florida do I file my divorce?”

If you live in Cook County, Illinois or your spouse lives in Cook County, Illinois there are six courthouses where you can file your divorce in Chicago.  As a Chicago divorce lawyer, I only file at the Daley center in Chicago, Illinois. There are a variety of judges at the Daley Center (it’s the largest single courthouse in the world) and you have the option of substituting the judge if you’d like to exercise that right.  The other courts within Cook County often only have one judge and you cannot substitute that judge without removing the case to Chicago’s Daley Center.

If you live in Naples, Florida there is only one courthouse to file your divorce in, the Collier County Courthouse. As a Divorce Attorney in Naples, Florida I only file divorce cases in Collier County when I file for Divorce in Naples for my clients.

You or your spouse are not locked into the particular court within which the case was first filed.  Either of you can plead “forum non conveniens” wherein you explain to the court that you don’t live there, your spouse doesn’t really live there, that your children don’t live there, and that your marital property is not there. This usually requires that you file for divorce in Chicago in the state and county that you actually want the case to be heard.  Typically, the judges from the two different counties get on the phone with each other and discuss where the case should actually be held. If the question is between Cook County, Illinois and Collier County, Florida, the judges will be familiar with me as a Chicago divorce lawyer and as a divorce lawyer in Naples, Florida.

Knowing where you can file (or can’t) you will now need to consider where you should file to put yourself at the greatest advantage based on the respective states.

Mediation for Divorce in Chicago

In both Illinois and Florida mediation is mandatory when there are children involved in a divorce. If the parties’ incomes are below a certain threshold Cook County, Illinois or Collier County, Florida can provide mediators.  Parties with means can and should hire private mediators.

In Naples, Florida, financial mediation is required whereas in Chicago, Illinois it is merely optional (and rarely exercised).  

In Florida, divorce attorneys are intimately involved with the mediation proceedings. The lawyers help with the negotiations as they proceed with the help of the mediator.

In Chicago, Illinois divorce lawyers usually tell their clients, “Good luck with the mediation.  Let me know how it worked out.”

Child Custody After a Divorce In Chicago, Illinois and Naples, Florida.

Unlike the other aspects of a divorce, divorce in Chicago where your selection of venue can impact the results of your divorce, child custody does not allow for a much selection.  

49 of the states in the United States entered into a treaty amongst themselves called the The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  This agreement provides a very specified layout of how to determine which state issues as to the children shall be determined.

The first test is always, “Where have the children been living for the last six months?”  If the children have been living in Florida AND nothing has been filed, then Florida shall have jurisdiction over the children.  If the children have been living in Florida for less than six months and one of the parents files a petition for custody (now known as a petition to allocate parenting responsibilities and parenting time) in Illinois then both the court in Florid and the court in Illinois must follow the regulations of the UCCJEA in determining which state will hear the case.  

The UCCJEA can become extremely byzantine.  The UCCJEA has rules for what happens when a child has been moved back and forth from a state within six months, for example.  Typically, the two judges from the two different states get on the phone and discuss the matter cordially.

Keep in mind that even if a court decides that Florida or Illinois is the state within which custody matters shall be heard, both courts will consider what is best for the child in determining where the child will eventually live or who will have custody of the child.  In my experience, there is clearly a “home court advantage” to whomever gets the case heard in their state. This is primarily due to the fact that contested custody cases are the worst kind and judges typically want to keep an eye on them. That requires the case, the parties and the children to stay in the state the court is located in.  

A big difference in determining child custody and child visitation issues between Florida and Illinois is that Illinois judges will often say, “I can’t determine such personal issues such as where a child should spend the night and with who.  Therefore, I will appoint a third attorney called a Guardian Ad Litem or Child Representative to represent the best interests of the child, investigate the situation and report back to me.”

In Florida, guardian ad litems are usually only available for children with no parents.  Florida judges will rely on the representations made by the divorce attorneys in Naples, Florida.  

Child Support after a Divorce In Chicago, Illinois and Naples, Florida.

Child support is typically determined by the laws where the child lives.  But, if the divorce case is being heard in a state where the child does not live, the court will be likely to apply their own laws regarding child support because that is what the courts are empowered to do.  

But once the child support is entered and the divorce is finalized, either parent can register the divorce in Chicago in the state where the child lives and ask for a modification of child support under the laws of that state.

In order to modify child support, a court in both Chicago, Illinois and Naples, Florida will require something in addition to just mentioning that the child lives in their state.  The court will often require “a substantial change in circumstances.” This usually means a twenty percent change in the income of either party. Courts have a strong bias to dismiss cases that cannot prove the substantial change in circumstances because courts are there to settle conflicts.  Courts love to say, “there is no conflict here. Therefore, there is no case.” For this reason, it is imperative that you employ a divorce attorney in Naples, Florida or a Chicago divorce lawyer if you file in either jurisdiction.

Child support is determined in a similar fashion in both Chicago, Illinois and Naples, Florida.  The first step is to determine the income of both of the parents. Upon determining the income of the two parents, a number is calculated as child support payable to the parent with whom the child spends the most time with.  In lieu of going through the guidelines tables for each state which will compare every foreseeable income between the two parties, I would direct the reader to find one of the many online calculators available throughout the internet for Illinois and Florida.

There are some differences between the Naples Florida and Chicago Illinois in determining the amount of child support beyond what I’ve described above.  

In Illinois, the primary parent’s child support is not diminished until the non-primary parent has at least 146 overnight visits with the child.  

In Florida, all parents who have the child spend 20% or less of their overnights with them pay “guidelines support.”  Again, just use an online calculator to determine guidelines support.

If the non-primary parent has more than 20% of the overnights with the child, a new calculation is made.  The non-primary parent with more than 20% of the overnights with the child shall calculate his child support as the guidelines support multiplies by 1.5 and then multiplied by the percentage they have with the child.   This is not simple. Do not merely rely on an online calculator in this scenario. Hire a Chicago divorce lawyer or a Divorce attorney in Naples, Florida.

In both Florida and Illinois, children’s expenses beyond food and shelter are typically split between the parents proportionally to their income.  

Florida has an additional requirement that the payor of daycare and/or health care expenses be extended a proportional credit to their child support obligation.  This could increase or decrease a parent’s child support depending on who is paying what.

Alimony after a Divorce in Chicago Illinois and Florida.

Illinois calls alimony “maintenance.” For the purposes of comparing the Illinois and Florida’s laws, I will refer to the support a party receives from another party that is not child support as “alimony” for both states.  

Illinois has very specific and predictable alimony laws.  The greater earner pays the lesser earner 33% of his or her net income.  This amount is then reduced by 25% of the lesser earner’s net income. The amount of support to be awarded is capped at 40% of the total of the two parties’ incomes.  

This is not mandatory in every case.  The court can make exceptions to this calculation for any of the following reasons or factors:

• • If one party has a great deal of assets, they may not be entitled to maintenance because they can presumably support themselves with those assets after a divorce in Chicago.

• • The needs of each party.

• • The realistic present and future earning capacity of each party.

• • Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage.

• • Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought.

• • The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment.

• • The standard of living established during the marriage.

• • The duration of the marriage.

• • The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party.

• • All sources of public and private income including, without limitation, disability and retirement income.

• • The tax consequences of the property division upon the respective economic circumstances of the parties.

• • Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse.

• • Any valid agreement of the parties.

• Any other factor that the court expressly finds to be just and equitable. (See, it really is anything)

Despite the above exceptions covering almost every possible scenario, Illinois courts prefer to apply a nice clean formula when determining alimony.   

The length of the alimony in Illinois is more unchangeable.  The length of alimony in Illinois is determined by the length of the marriage before the filing of the petition for dissolution of marriage.  

Illinois courts apply the following percentages of the length of the marriage for the respective lengths of the marriage:

Less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.

Even though Illinois’ alimony statute seems predictable, it is imperative that you retain a Chicago Divorce Lawyer to guide you through this process and ensure that you are paying and/or receiving the right amount of alimony.

Alimony in Florida works completely differently from Illinois.  Florida has no statutorily specified amounts of alimony and Florida’s rules about the lengths of alimony are also not nearly as specific as Illinois.

In Florida, the courts consider whether the alimony requester is eligible for any and all of the four different kids of alimony.

There is rehabilitative alimony where the courts try to determine what it would cost to restore the spouse to their earning capacity had they never been married.  This almost always means, sending the spouse to college (if they didn’t go).

Next is bridge-the-gap alimony which is a general acknowledgement that the transition from being married to being single is going to be harder financially for one spouse than the other.  Therefore, in Florida, the spouse for which the transition will be easier may have to pay the other party alimony. You can see how this would be appropriate for a college educated housewife or househusband as they re-entered the work force.

Next is durational alimony. This is Florida alimony that has a set end date no matter what.  Whether the receiver gets back on their feet or not. Durational alimony is typically only ordered for marriages that lasted longer than 7 years and less than 17 years.  The amount and the length of durational alimony is determined by courts with no guidelines from the statute.

Finally, there is permanent alimony.  In Florida, if you were married for more than 17 years you will be paying or receiving permanent alimony if there is a significant dichotomy in your incomes.  But, if you’ve been married for 17 years, you probably are relatively close to retirement age. In Florida at age 65 you are entitled to modify or terminate alimony.  

This is not simple! A divorce in Naples FL could include none to all of these kinds of alimony at the same time.  If facing an alimony claim or asking for alimony get a divorce attorney in Naples, Florida.

In all considerations of alimony as described above, the first consideration is the payor’s ability to pay.  A spouse may very well need support to go back to school, get back on their feet, and live the lifestyle they were living before the divorce in Chicago or Naples but if the other spouse has no ability to pay, they shall not be required to pay. This is why it is so important to have a divorce attorney in Naples, Florida.  You must keep in mind your legal abilities as well as your legal obligations and adequately communicate those to the court before the system takes over.

In both Illinois and Florida, alimony orders shall be observed with the force of law.  Alimony orders must be complied with or the courts can enforce compliance via a separate court order that can garnish wages, bank accounts or issue a civil writ that is essentially an arrest warrant.  

Division of Assets and Debts in Naples, Florida vs. Chicago, lllinois divorces

Marital assets and debts work the same in both, a divorce in Chicago and Florida divorces.  If you accumulated the asset or the debt during the marriage, it’s marital and thus divisible in the divorce.

The exception to this rule is if the asset was a gift from an outside party. Then the asset is non-marital and thus non-divisible with a divorce in Chicago.

If both parties names become associated with a non-marital debt or asset (example: refinancing a house) then the debt and asset becomes non-marital.

As you’ve read so far, in one state things will be very specific in a divorce in Chicago while in another state the rule will be really loosey-goosey.  Division of assets and debts is no exception.

Florida requires that all marital debts and assets be divided 50/50. A Florida court is obligated to explain why it did not divide the assets 50/50 if the court did not, in fact, do so.  

This makes the definition of what is a marital asset or debt all the more important in Florida because once an asset is declared “marital” it must be divided 50/50.  There is no negotiating, really. Even an award of a whole marital asset to one party must be equalized with an award of a similarly valued marital asset to the other party.

Illinois divides assets “equitably” which means “fairly” but really means whatever the judge wants it to mean.  This creates enormous wiggle room which often results in more practical settlements like, “I keep the house and you keep the 401(k).”  The more variance that the law allows the more important it is to have a Chicago divorce lawyer who can work at the margins to have that variance work for you for your divorce in Chicago.  

The difference between the two states’ rules creates a very stark dichotomy for younger divorcees: student loan debts get divided in Florida.  In Illinois, there is no statute or case law, at this time, regarding student loans debts. Most Illinois judges say, “All the information you learned is in your head, therefore you are responsible for the debts associated with that information.”  After all, this is the reasoning behind why you cannot discharge student loans in a bankruptcy. In Florida, student loans are readily divisible and not dischargeable in bankruptcy which makes whoever has the student loans a figurative walking time bomb in the case of divorce in Chicago.  

Of course, in both Florida and Illinois, if both parties agree, the court will approve the division of assets and debts so long as the result is not unconscionable.  But, why would anyone accept anything less than 50/50 in Florida if a strict accounting and division is required?

So, if I can file my Divorce in either Naples, Florida or Chicago, Illinois, Where Should I file?

Despite all the rules and advantages that I have laid out above, you probably want to file in the state where you have regular access to the court.  All these rules really only apply if you cannot agree with your spouse and you have to let the court decide who will get what. If you are in a truly contested divorce your ability to be present in court and active in your case will have a big impact on the result of that case.  Especially if you have minor children. It is simply easier for the judge to disappoint the party that is not there.

Beyond your presence, you’ll need to consult a Chicago divorce lawyer and a Divorce Attorney in Naples, Florida to review the facts in your case and suggest a jurisdiction to file in.  There are very few of us who practice in both places.

2 years ago Divorce , Child Custody , Family Law No comment

7 Signs it is Time For a Divorce

Every relationship is different. No one can tell you when it is time for a divorce, only the individuals in the relationship understand its complex dynamics, and whether elements of your relationship are beneficial or detrimental for everyone involved. As much as friends, family, or even acquaintances think they know what is good for you, only you can decide when divorce is the right answer. There are questions that you can ask yourself to decide if your relationship is hitting a rough patch or if your marriage has become an unhealthy relationship in need of real change to put your life on a more positive path. If you are experiencing two or more of the 7 signs it is time for a divorce, it may be time to do some serious thinking and potentially separate for good.

1. Who Am I in My Marriage?

In every relationship, there is a level of compromise. As your relationship grows in your marriage, you assume certain roles. As time goes by, the roles that you have assumed in your marriage can slowly change you into a person that you no longer recognize. You become the moneymaker, the child caretaker, the chef, the house cleaner, the person who makes sure that everything stays status quo. Your partner is also going through these transitions – they are natural and inevitable.

In stronger relationships, people grow through this journey of transition together and continue to find balance in their partnership. In other situations, you may begin to grow apart and as you grow apart, you lose touch with whom you were originally and who you were at your core when the relationship began. Your relationship may have changed you to a different person, someone you no longer recognize. This problem is compounded by the fact your partner has become a different person and the reasons you were originally drawn to each other may not exist anymore. You start to sacrifice your time, your beliefs, your passions, and more to address other priorities to sustain the marriage. Then as problems arise, to keep the peace you compromise well beyond your comfort zone and stop standing by your original passions and convictions.

Priorities in your marriage become maintaining your image and lifestyle as a couple and a family. The more the relationship evolves, and busy schedules send you in different directions; the more the individual and mutual passions and feelings get lost and the marriage becomes a business rather than a romantic relationship.

Marriage can be a lonely place when you no longer know whom you are or how you feel. In most cases, you do not realize that you have lost your identity in the marriage until it is too late.

2. I Have Lost Hope That Things Can Change.

When your relationship has gone through strife and turmoil and the solutions you have tried do not seem to fix the problems, you slowly begin to accept that there is no solution to the problems. Soon you may find raising legitimate issues and having open dialogue about problems gives way to just wanting to keep the peace or just the opposite. You may have never fought and now you find yourself fighting all the time with your partner. Regardless of how you handle problems that arise in your relationship – open dialogue, vacations, counseling – one thing becomes a constant you have lost hope that things will ever get better.

You have resigned yourself to accepting things will not improve and you try to make the best of a bad situation by ignoring the fact that you have stopped trying to fix your marriage. You are just trying to survive your marriage.

3. I Have Become Complacent With Unhappiness.

After trying every method to resolve the strife and unhappiness, you have now accepted things will not change and you may not even care if they change. You are now resigned, and you start to look for things to fill the void outside of the marriage. This is usually the time when couples take on new interests to avoid spending time with each other. In some cases, this unhappiness in your relationship can lead to choices that are more destructive. These choices can include purposeful avoidance of your partner or home, more time spent with friends (some you normally would not spend significant time with or have their own agendas), or you may begin abuse drugs or alcohol.

This is also the time in the marriage when couples begin emotional and sometimes physical affairs. Regardless how the affairs begin, the reason they start is because you feel a disconnection with your partner and are no longer trying to fix it. You are trying to keep the business running at any cost.  Depending on how unhappy the marriage is, in some cases couples agree to allow each other to date outside of the marriage. The goal is often to keep the business of marriage running even if the romance has died and you are openly agreeing with each other that there is no point to resolving the unhappiness. You both agree that whatever the other person must do to remain happy, and most importantly to keep the business running. You agree to date other people openly or without sharing details.

4. I Am Tired Of Pretending That Everything Is “OK”.

Managing a family, a career, a home, and everything that goes with it can be incredibly taxing and sometimes overwhelming job for anyone. Managing a struggling relationship can make these daily efforts daunting and if not resolved, can lead to anxiety, depression, and worse.

The people in your life that truly know you and care about you can see that you are struggling and want to help but the idea of also having to manage your friends and family along with everything else feels impossible. Rather than take this help, you avoid contact with these people, develop complex stories, excuses, and fabrications just to maintain appearances. The goal is to keep appearances for the sake of your relationship and to keep the business running smoothly.

You now find yourself having to manage your deceptions (including the ones you create for yourself) rather than your relationship. Your real friends and family (the ones who really care about your well-being), will see right through the deception and increase the pressure to resolve your relationship problems. Ultimately, this house of cards you create will inevitably come crashing down and somewhere deep within you; you know it.

Your health and stability are more important than “saving face”. If all else has failed in your relationship, you may have started lying to friends, and family for the sake of keeping up appearances. When you cannot be honest with yourself or your family, then separation from your spouse may be the only answer available to you.

5. I Am Tired Of Resentment And Feeling Angry in My Marriage.

As issues in your marriage build and time passes, you slowly find yourself resentful of your partner and your marriage. You start to lose interest in the relationship and working on problems seems like a burden instead of a positive aspect of your relationship. You find yourself angry with your partner most of the time and you resent that the relationship has taken you from the person you use to be and the enjoyment you had in life. You may start to fantasize about what life would be if you were no longer married. You are less interested in working on the relationship and you see that your partner is also uninterested which can lead to more anger and resentment.

You stop spending time with friends or even argue over certain relationships you have with others as they are a “bad influence” on you. Things that you used to be passionate about fall by the wayside. You may also stop spending time on your relationship, becoming more like roommates than best friends and partners.

You may start to wonder why you are sacrificing yourself for an arrangement that no longer makes you happy. You tell yourself that your feelings and ideas are not important, just the family, and possibly the appearance of familial stability. If you voice your thoughts or feelings, it may lead to tension and fighting, and as a marriage deteriorates, it is easier to suppress your feelings for the “good of the marriage” and to keep the peace.

6. I Realize “Staying For The Kids” Is Unhealthy For Everyone.

When you have problems in your marriage it’s apparent to everyone around you regardless how well you think you hide them. Your children are smarter than you think and quickly notice the behavior of their parents. The idea of putting your children through a divorce sounds like your worst nightmare. You want your children to feel safe, loved, and have every opportunity, but if your home and marriage is filled with tension, fighting or awkward silences you are creating the opposite environment for your children. Unhappy parents cause children to have anxiety and act out in ways that sometimes parents do not notice until it is too late.

The truth is your children know you are unhappy. Your children fear the stress and tension in their parents and begin to mirror their parent’s behavior through avoidance and creating false realities to keep up appearances for their friends and other family members. Your children see the false pretenses and mimic their parent’s behavior in their own lives.

In reality, people do not stay in bad marriages because they believe it is what is best for their children. They stay in bad marriages because they personally do not want to be separated from their kids or feel that a “stable home environment” inherently means mom, dad, and the kids all live under 1 roof. Children want their parents to be happy above all else. If you have been unsuccessful in resolving your marital challenges, it may be time to consider what is truly best for your children.

7. I Am Not Afraid to Acknowledge That My Marriage Did Not Work, and I Am Ready To Move On.

Finally, if you have experienced some or all of these topics, you may have already concluded that it is time to move on and separate. Moving on means choosing a healthy path for your sake and the sake of others including your spouse, family and children. A transition like this is significantly emotional and it’s difficult to fathom the effects of such a significant life change. Your spouse may disagree with the idea of separation and may make it difficult often guilting you into staying. Financial considerations often keep couples together regardless of how unhappy the relationship may be. You may be afraid to tell family and friends out of fear that the separation will hurt them and cause more strife. While you are focused on the needs of your family and planning for your future, you may need legal help to guide you through the complexities of separating from your spouse. There are free resources made available to people who need advice on the first steps of separation from your spouse.

You need to be able to focus on you first so you are able to take care of the rest of your life – especially if you have children. If there is one thing above all that you need to know is that separation and divorce is not failure, and it’s not something you should feel ashamed of. Staying in an unhealthy relationship out of fear is far more detrimental than accepting your marriage did not work, and you are now choosing the healthiest path for everyone involved. In the end, you are doing what is right for you, your spouse and your children. Delaying separation for years can cause more pain and family issues. Resolving the problem sooner than later is the healthiest choice to put everyone on a happier path for a successful future.

2 years ago Family Law , Child Custody , Divorce No comment

How Long Does a Divorce Take in the US?

When people tie the knot, the last thing they’d ever have imagined was it ending in divorce. However, married life is not a smooth road, and sometimes the best option is calling it quits, especially if children are involved. If you’re looking to get a divorce, there are various options available. You must take in all the various factors, though, before serving the papers for a divorce, such as how much the divorce will cost and how long before the divorce is final. If you’ve tried everything from marriage counselling to spending time apart, only for your marriage to continue not suiting you and your partner, here’s how to get a divorce in the US.

Why Can a Divorce Take so Long?

Marriage laws and divorce laws are decided on by state governments, which is why getting a divorce can take anything from a matter of months to a couple of years. Issues such as property, debt, custody of children and spousal support can all impact the timeframe of you getting a divorce, and all the factors mentioned above will need to be decided on by the court. If you’re serious about getting a divorce, be prepared for it to take some time.

What are the Different Types of Divorce?

Divorce laws do vary, however, there are three approaches that can be made. They are as follows:

No-fault divorce – No allegations or proof of fault have to be made. Couples can file for a no-fault divorce due to incompatibility, irremediable breakdown of the marriage or irreconcilable differences.

At-fault divorce – This is when one party is taken to be at fault. Various claims can be made such as adultery, inhuman or cruel treatment. An at-fault divorce usually takes longer because the allegations must be proven at a hearing or trial.

Uncontested divorce – This type of divorce is considered the quickest, where it can take from one to a few months. However, both parties must sign the required papers, including a marital settlement agreement. Mediation will be available to help them come to an agreement, which can then be put in front of the judge. Legal advice is not necessary for this type of divorce. However, seeking the help of an Oceanside spousal support attorney will ensure your best interests are taken care of when it comes to being properly supported once the divorce is over.

The Steps Involved in an Uncontested Divorce

First, the person requesting the divorce must file a Summons with the court. The other party in the marriage is also served the Summons. If they agree to the serving of this document and sign an affidavit, the divorce papers can be filed with the court straightaway. They have 20 days in which to reply. Papers are filed with the court clerk’s office in the county where the plaintiff lives. Once this has been done, it is down to the court to finalize the divorce. The time varies but can take from several weeks to a whole year.

If you’re worried about the timescale for your divorce, the best thing will be for you and your spouse to co-operate with each other as much as possible. Being prepared to resolve legal issues together will also help with the expedient timing of the final order.

2 years ago Child Custody No comment

The Effects Divorce has on Children

Divorce is often an ugly word, but it may be the ugliest when used in the context of children.

Unfortunately, the effects of divorce has on children is an ever-present entity in today’s culture.  Couples often times simply cannot make a marriage work and the only choice is to get a divorce.  Many couples try for years to salvage a marriage gone wrong, to no avail.

Research shows that 40% of marriages end in divorce and there are many reasons why.  Some can no longer be in the same room, some battle domestic abuse issues, some can’t stop arguing about finances, and some simply just don’t want to be in a marriage anymore.

Either way, divorce is extremely common and it affects many people when it happens.  Mainly it affects children. According to an NCBI study, the effects divorce has on children are long-lasting.  The main reason for this is because it happens during the child’s formative years.  This shapes their views on relationships for many years to come.

Aftermath of Divorce

When experiencing the aftermath of divorcing parents children often lash out.  They have problems at school both in discipline and falling or failing grades. Younger children tend to become more aggressive and also uncooperative.  While some older children tend to seep into a deep sadness, feeling a heavy sense of loss.

Studies show that the emotional trauma a child suffers when their parents go through a divorce typically remain present their entire lives.  Whether they are aware of the issue or not. It stays with their subconscious to some degree practically forever.

Why?

Children see their parent’s as an almost indestructible entity.  They feel their Mom and Dad should be able to work through or accomplish anything.  Parents are seen as superheroes to most children and when their superhero doesn’t come through and save the day things get very fuzzy and confusing.  When this happens at such a young age, children just don’t have the mental strength and wherewithal to handle this complicated event.

What happens is the safety net that children feel from day one is gone or at least has holes in it.  With this new understanding of life and what their parents may or may not be is very detrimental to any kids psyche.

Comparison

When you compare children who come from a divorced household to those who do not, the following trends are present.

Children from divorced homes are significantly more likely to be put in jail as a juvenile compared to those in a non divorced household.  It is five times more likely for a child from a divorced home to live in poverty, than those who are not. Children from divorced homes struggle greatly in school and are less likely to even graduate.  Teens from split homes are far more likely to engage in sexual intercourse, and drug and alcohol abuse, in comparison to teens from stable marriages.

The effects divorce has on children is never a pleasant topic, and neither is a terrible marriage, however, according to these findings it pays for parents to do their absolute best to reconcile or mend a broken relationship before it ends in divorce, for the kid’s sake.

2 years ago Child Custody , Family Law No comment

5 Factors That Affect Child Custody Decisions

Many separated parents wonder whether they can complete the child custody process on their own through trial and error. Despite their best efforts, it almost never works out. Census data shows that child custody rights are established by the court nearly 88% of the time.

The idea of custody courts inserting themselves into your home life may sound overwhelming. After all, who knows your family better than you? But child custody courts aren’t interested in pitting one parent against another; they’re interested in upholding your children’s best interests.

Are you about to go in front of a judge? Keep reading to learn what things judges look for in a child custody case.

5 Things Courts Look for in Child Custody Cases

Beyond fundamental child custody rights, there are no hard and fast rules in child custody because every custody case is different and each state has different statutes governing custody issues.

Moreover, no court wants to force a child into a poor custody arrangement.

Instead of consulting legislation or a rigid checklist, a custody court will consider a range of characteristics that point towards the right custody agreement for the child and the family.

You’ll see a theme throughout these characteristics: the child. The child or children involved remain at the center of the process because their overall well-being is what’s most important to the judge.

Here are five of the most heavily-weighted factors in a child custody case:

1. What the Child Wants

A child’s custody preferences are almost always considered in the proceeding. Though, no laws currently regulate how the judge should weigh the child’s choice.

Judges take great care in ensuring the child’s preference is truly what they want. In some states and cases, a judge may interview the child privately to get to know their thoughts and feelings on custody. These meetings are formal, but judges use informal conversation to gain their trust and read their whole reaction (verbal and non-verbal) to the question.

In some cases, a custody evaluator takes over the process.

Children’s opinions tend to carry more weight when they’re older. A six-year-old child’s opinion, while valued, is likely to factor less in the decision than that of a 16-year-old.

2. Parent-Child Relationships

Not all parent-child relationships are straightforward. A custody case aims to keep the child with the parent they already spend the most time with and with whom they may have the most profound bond.

A judge may ask parents questions like:

• What is your child’s favorite food, book, program, activity, etc.?
• How has the child reacted to the divorce? How will you support them after the divorce?
• Do you feel your bond with your child is stronger than your spouses?
• How would your child describe the ways you demonstrate love for them?
• Who is the child more likely to come to with a problem? A triumph?

Other essential questions may revolve around daily routines:

• Who does the cooking?
• Who makes sure hygiene chores are done?
• Who stays home from work on sick days and why?
• Who is most involved in the child’s formal education?
• Who spends the most time socializing the child, teaching them manners, etc.?
• Who puts the child to bed?

Courts prefer to avoid upending a child’s daily routine more than necessary, so questions about daily rituals may be more important than they initially seem.

3. Parents’ Health

Parental health becomes a major factor when one or both parents find themselves physically or mentally unwell. An illness may impact a parent’s ability to care for a child full-time and issues associated with illness may impact the stability of the household.

Short or long-term mental health issues will play a role in custody decisions because states consider mental health to impact the best interests of the child. Mental health issues aren’t written off. Instead, a judge thinks about the health issue in combination with parenting capacity, parenting skills, and the overall parent-child relationship.

A mental illness won’t disqualify a parent from custody. Instead, judges consider all the evidence and then determine whether a mental illness damages a child’s best interests.

4. Parental Preference

Courts don’t want to place children in a situation where they have only one parent most of the time. Two parent agreements are preferable. That being said, not all parents want to participate equally, and one parent may prefer that the other parent is kept away.

Courts want to know about a proposed custody or visitation schedule and whether both parties find it agreeable before granting a custody order.

5. Parental Employment

Parental employment is weighed in several ways because while employment often means better financial ability to care for the child, it also means spending time apart from the child.

A court may consider whether each parent is:

• In full or part-time employment
• Location of employment/commuting time
• Benefits (insurance, paid time off, etc.)

Merely being an earner doesn’t qualify or disqualify a parent from their custody preferences on its own. As with all other factors, judges consider employment among all the evidence to produce a balanced decision centered on the best interests of the child.

A Few Other Factors Impacting Child Custody

The five factors listed above are some of the most heavily weighted in the decision. But other factors are considered including:

• Criminal records
• History of substance abuse
• History of child neglect
• History of domestic violence
• One parent’s desire to move the children away from another parent
• Child’s relationships with extended family, school, and community

Other factors may also be considered. Your family lawyer will highlight everything about your case that a judge may weigh in their decision.

Judges Want Quality and Consistency for Children

Gone are the days where mothers received priority above all else in child custody cases. Custody courts now prioritize the quality of parenting and maintaining consistency for children in their purview.

A judge weighs all the factors equally to find the best solution for a child. But sometimes parents need help highlighting what they bring to the table. If you’re about to go through a child custody case, you may need a family law attorney’s help.

Click here to search for a potential advocate in your area.

2 years ago Child Custody , Divorce , Family Law No comment

The Different Types of Child Custody, Explained

American marriages have about a 50% survival rate, which means the other half end in divorce.

While divorce can be stressful, it can be even worse when children are involved. No parent wants to put their children through a messy child custody case. Family law battles can be even more painful than the divorce itself.

If you’re reading this article, it’s likely that you want custody of your child. However, there are many types of child custody.

Before you end up in family court, learn more about the types of child custody in the guide below, brought to you by Kirkland Family Law.

Legal Custody

Who is allowed to make major life decisions on behalf of the child? This is where legal custody comes in.

This is a common type of custody, and oftentimes, legal custody will be shared jointly. This allows both parents to make decisions for the child, like for their schooling, medical treatment, or religious upbringing.

Unfortunately, unless you have a flawless relationship with your ex-spouse, conflicts can arise from joint child custody. Parents don’t always agree on how a child should be raised. Joint legal custody can get expensive when you need local attorneys to step in and resolve disputes.

Physical Custody

Physical custody is exactly what it sounds like – it determines who the child will live with.

Again, this type of child custody can be allowed jointly. That means the child will spend time in each household. It is important to note that joint physical custody does not always mean each parent will have the child exactly 50% of the time.

In fact, having joint physical custody does not necessarily mean you will have joint legal custody. One parent may have the child live with them half-time or part-time, but not be allowed to make major life decisions for the child.

Sole Custody

This type of custody is also self-explanatory. Only one parent in the “custodian,” granted full custody of the child, while the only parent may only have visitation rights. In this case, only one parent has legal and physical custody.

This method may be less disruptive than shuttling a child between two households, but family court does not prefer it. In sole custody cases, one parent has extremely limited contact with the child, which can negatively affect their development. Of course, in dangerous cases, this method may be necessary.

Bird’s Nest Custody

Bird’s nest custody is the most unusual and least common form of custody. It involves the child staying in the home, with the parents moving in and out.

Of course, both parents must have another place to stay when they are not in the child’s home. Although it sounds complicated, this arrangement is the most stable for the child.

Help with Child Custody Cases

Understanding the types of child custody is essential to winning your custody case. It will help you articulate what you need from your lawyer, which helps them achieve the result you want.

Custody cases are no walk in the park. You need experienced family lawyers in your corner. If you’ve got questions, use our Law Directory to find someone with answers.