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Family Law

Divorce (Contested and Uncontested)

The divorce attorneys at the law firm of Shumway Van work to make certain every client has the divorce information and family law resources they have to understand the divorce process and comprehend exactly what to expect prior to a consultation with one of our family law attorneys. A divorce can be a long procedure, and preparation is key in decreasing the length of your case.

Divorce proceedings can unleash a torrent of emotions ranging from anger to stress and anxiety to depression. But as challenging as this experience is, you cannot simply walk away because your future and that of your children may hinge on your capacity to press on and get reasonable accommodations. Keep in mind your divorce attorney will be your advisor, however most of the critical considerations are not his or hers to make for you. For that reason, it is generally valuable to get in touch with friends and family whose recommendations and judgment you respect, and ask them to provide you with guidance during this difficult time.

Spousal Support, Alimony, Maintenance

In many cases a spouse will request alimony, which is the court-ordered payment of money to a spouse after the divorce is finalized. The bigger the difference in incomes between two spouses and the longer they were married, the bigger the alimony payment will probably be at the end of the case.

Is maintenance awarded in every case? In the majority of jurisdictions courts hold that maintenance can be granted to a spouse if he or she lacks sufficient property to provide for reasonable needs and expenses (based in part on conveniences that existed during the marriage), and is unable to support himself or herself through meaningful employment.

Is there a way to decrease exposure to maintenance obligations? If the divorce is not going to occur for quite a bit of time, a spouse may be able to limit his or her exposure to alimony by:

  • reducing the existing household expenditures;.
  • developing a history of the spouse providing his or her own support with little or no financial help from the other spouse;
  • reducing debt as much as possible; or
  • assisting the spouse with obtaining employment and/or education.

How is alimony determined? Generally there are specific factors that a court will consider when determining whether to order a spouse to pay the other spouse alimony. Courts typically contemplate the items listed below when identifying appropriate maintenance:

  • length of the marriage;
  • division of property (real and personal);
  • education level of each party at the time of the marriage and at the time the action is commenced;
  • earning potential of each spouse;
  • feasibility that the spouse seeking alimony/maintenance can become self-supporting at a standard of living reasonably equivalent to what existed during the marriage, and the time needed to achieve that standard;
  • pre-marital and post-marital agreements; and
  • contribution of one party to the education, training or increased earning power of the spouse.

When can a spouse stop paying alimony? There are myriad other situations that could allow for a stoppage or, or minimize, support obligations. Generally, if there is no longer a need for support for whatever reason, then a paying spouse could argue that the obligation ought to be cancelled. Usually support may stop upon the receiving spouse getting remarried, cohabitating with another individual in a manner that is marriage-like, or if the receiving spouse becomes deceased.

Property Division

The dissolution of almost any marriage requires the division of property. As you may have heard, specific assets may stay the exclusive property of one of the spouses, and some property must be divided. Financial obligations incurred while the parties were married are also often shared upon divorce. It is important to remember though that even though the divorce decree establishes obligations between the spouses, it does not alter the contractual responsibilities of one or both partners to a lending institution. Therefore, even if one spouse is required to pay off credit cards, if he or she fails to do so then the credit card company may still be able to pursue the other spouse.

Marital or Community Property

Marital or community property is usually comprised of all of the possessions and debts incurred throughout the marriage, either jointly or by one spouse, other than by gift or inheritance to one spouse or the other. Most states do not have a specific mathematical system that cleanly divides the property so the court will determine a fair distribution based upon a mix of elements as set forth in a state’s statutes. Many spouses prefer to settle their cases simply because the division of property is so risky when left in the hands of a third party that doesn’t understand the value of such.

Non-Marital or Separate Property

Non-marital or separate property is generally comprised of the assets and obligations possessed by one spouse prior to the marriage that continue to be unchanged during the marriage, or gifts or inheritances during the marriage to one spouse.

Premarital Agreement

Also commonly known to most as a prenuptial agreement, a premarital agreement is the primary method by which one spouse can keep property from becoming joint property after marriage. A premarital agreement details the treatment of the separate property of each party, identifies any property agreed to be joint property, and directs how property acquired throughout the marriage will be dealt with.

Contempt Proceedings

Have you ever wondered what happens when a court has issued judgments, orders or decrees to govern the behavior of spouses, and the other party fails or refuses to obey such? The court can then hold that spouse in contempt, which can happen at any point throughout the divorce process.

As soon as a court issues a ruling, it is important for you to comply with the ruling to the very best of your capability and, at the same time, to document any potential violations on the part of your former spouse. Judges in a variety of jurisdictions have been known to take certain actions very personally when a spouse ignores the requirements of their orders. If a spouse and his or her attorney can produce sufficient evidence that the other spouse has willfully neglected a court decree, then they can file a motion asking the court for a contempt ruling. If the court rules in your favor then the judge could also hand down modified orders binding the spouse whom it found to be in contempt to less favorable requirements.

A contempt action is appropriate anytime a spouse “contemptuously” violates any aspect of a court order or the divorce decree. However, a violation often needs to be substantial in order to obtain a contempt ruling from a judge. Oftentimes, for a court to find someone guilty of contempt it cannot simply conclude that the accused spouse violated the divorce decree or other court order. The court often has to also conclude that the spouse being accused had the ability and/or capacity to comply and breached the judge’s order both deliberately and willfully. After a spouse has filed a motion seeking a contempt order the defending spouse must provide evidence that he or she did not have the capacity to comply with the order, or that it was an honest mistake of some sort.

Of course, the proof for a contempt ruling frequently does exist, and if you and your attorney can produce it then you will likely enhance your case significantly. In fact, your attorney will typically submit a motion for contempt in tandem with a motion to modify the decree.

Remember that contempt is a civil (not a criminal) offense, so the court could just hand down orders for the purpose of forcing your spouse’s compliance with existing orders, not merely to penalize him or her. In summary, contempt can be an extremely effective tool but it requires proof.

If you find yourself in need of a divorce attorney to assist you with obtaining compliance from your former spouse, or if you need to defend yourself in such a situation, call one of our family law attorneys now for a free consultation.

Establishing Paternity in a Divorce or Child Support Case

When the parents of a child are not wed at the start of the pregnancy or at the birth of the child, the dad is often legally without the rights and responsibilities of a parent. The biological parents, or a third party on behalf of the child, may want to seek a declaration of paternity to legitimately establish a parent-child relationship with the father. This procedure offers the father particular custodial rights while imposing upon him a legal obligation to provide certain financial backing for the child.

The simplest way to establish paternity is for both the mother and dad to sign an affidavit stating the child is theirs. To further secure your rights, you also need to think about filing an affidavit with your local division of vital statistics, putative father registry office, or various other relevant state office. The more difficult way is to get a court order establishing paternity.

By signing the affidavit, the mother and father verify that he is the biological father of the child. The dad’s signature additionally verifies that he will be responsible for the child’s monetary and medical support until his or her adult years.

After developing paternity, a court could order child support payments and medical insurance for the child, basing the quantity of child support primarily on both parents’ earnings using standards set by state law.

Challenging paternity must be done within particular time frame depending upon the state with jurisdiction over the child.

Modification of Divorce Decrees

It’s not unusual in divorce matters for an ex-spouse to seek the modification or alteration of a prior decree with respect to the child custody and spousal support obligations. A spouse looking for to modify his or her decree generally has the obligation to show a significant and continuing change of circumstances, which is often not easy to do. A few examples of those situations would be: (i) a dramatic change in income; (ii) moving to another state or country; or (iii) difficulty or trouble related to providing an sufficient or appropriate level of care for his or her children.

The divorce attorneys at Shumway Van seek to ensure that each of our clients’ goals are accomplished in light of the new circumstances, while still maintaining those rights offered in previous decrees. Custody terms are binding, but they are not so set in stone that it would be impossible to have them altered, and such terms often are modified to better fit the situation. In the majority of states, the court order for a modification is called an “adjustment.” Keep in mind though that the ex-spouse seeking a modification must usually demonstrate that a considerable modification of circumstances has taken place since the entry of the initial order, or a prior order that he or she is seeking to modify.

Even if the court agrees with the ex-spouse that a modification would be appropriate, it will not necessarily approve a modification without the spouse seeking the modification demonstrating a considerable change in circumstance, with the word “considerable” being highly subjective. The logic behind this is that if one or both parties were to constantly seek modifications then such actions would bog down the judicial system and subject the other party, or the children, to emotional distress. Therefore, most motions submitted within six months of the issuance of a divorce decree are often viewed as suspect at best.

Child Custody

Child custody, in a legal sense, refers to the rights and responsibilities between parents concerning their children after a divorce, legal separation, or paternity decree. Listed below are the two general types of custody arrangements:

Physical custody describes the amount of time each parent is allowed physical custody of a child. This usually comes in the form of single, primary, or joint custody.
Legal custody refers to a parent’s decision-making rights relating to a child’s wellness, education and learning and well-being. Legal custody can also come in the form of sole, primary, or joint custody.

Most commonly a court designates one parent as the primary physical custodian of the children. Generally the other parent is allotted a routine of short-term custody and visitation. In some cases courts will order joint legal and physical custody, by which, both parents have substantial access to their children. A court’s choice is usually based upon, among other things, the child’s wishes, each parent’s historically established pattern of nurturing, and the relative situations of the parents in the future.

What are the elements associated with determining custody? You most likely have heard that family courts are always seeking to protect the “best interests of the child.” Practically every state determines custody and visitation based upon the best interests of the child standard. Many state statutes and case law define this standard in different ways; however, there are often common sense elements that appear in the majority of states. The list of elements fall under four basic categories:

  • the historical picture examining each parent’s role in nurturing the child since birth;
  • the prospective picture considering each parents’ foreseeable situation in the future;
  • concerns about the personality or behavioral traits of each parent; and
  • the preference of the child.

Child Support.

Regardless of the battle over child custody, child support will be an issue that is resolved during your case. Either you will be required to pay an amount or you will be receiving an amount of money.

Notwithstanding anything that you have heard to the contrary, courts generally have little discretion in setting the amount of monthly child support that is paid to one party or the other. This is because states are required to follow specific standards in their child support statutes. Although the exact determination of child support varies from state to state, there is a particular pattern no matter what state has jurisdiction over your case.

Based upon the foregoing you might assume that child support is computed in an extremely formulaic manner, which is the case. In many states, the calculations are based upon three main elements: (i) each parent’s income; (ii) the percent of time each parent has the children; and (iii) the number of children involved in the case. Courts have attempted to create solutions that remove the subjective nature of this aspect of family law.

What If You Can’t Pay Child Support? In many cases a parent is able list a number of reasons why he or she is unable to pay child support; however, most such difficulties will not entitle that person to reduce child support obligations. For example, just losing a portion of your earnings will not often suffice to reduce your child support responsibilities. In some states, you must have a dramatic change in circumstances before a judge will agree to modify a child support obligation.

Adoption Law

When you are considering adoption, it is important to understand the various types of adoption available. Whether you are a birth parent or a prospective parent, working with an established adoption attorney can truly help you to determine the course of adoption that will provide you with the opportunities that you desire. At Shumway Van, we are proud to say that we have actually helped families complete successful adoptions, and we would be pleased to help you or someone you love complete an adoption as well. Our law firm offers legal services in Utah, Nevada and Texas, and our adoption attorneys are always willing to meet with the potential parents to discuss the various options available.

The following are the various types of adoptions that our family attorneys can assist with:

Domestic Adoptions. As the name implies, domestic adoptions involve the placement of children from the United States families also located here. There are many types of domestic adoption, and the laws vary greatly from state to state.

Agency Adoptions. Adoption agencies are often licensed adoption organizations that are able to provide a broad range of adoption-related services. These services often include, but are not limited to, matching, homestudies, counseling, placement, and post-placement supervision and reporting.

Private Adoptions. Private adoptions are birth parent to adoptive parent adoptions that often occur with no intermediary responsible for overseeing the placement or taking custody of the child. Private adoption cases often require the parties to implement the various steps required to complete an adoption, such as planning the course that will achieve our clients’ goals. Other steps include: (i) preparing, negotiating and explaining adoption documents; (ii) advocating for our clients’ wishes with third parties such as hospital and prenatal providers; and (iii) securing medical assistance and any public benefits that are available to our clients.

Same-Sex Adoptions. As you might expect, same-sex families may face unique challenges to securing equal and full parental rights to their adoptive children because of the disparate nature of state laws, especially in the past few years. Our adoption attorneys work together with clients to ensure that their children have all of the rights available in any two-parent family to which they are entitled.

Stepparent and Second Parent Adoptions. In today’s society many families are raising, loving and parenting children who are biologically and legally related to individuals from prior relationships. Parents finding themselves in these situations often desire to have their legal status match the value of their actual role in a child’s life. As everyone would agree, establishing step-parent parental rights can be important for a child’s emotional well-being and financial future, and to equalize status among the siblings who are being raised in the same home.

Contested Adoptions. In some adoption cases a parent may object to the termination of rights or adoption by third parties. While state law, in most cases, has made great strides in defining deadlines and requirements for parents to respond to a termination of rights, litigation may occur and cause significant stress and uncertainty to the family’s future. In these situations, our clients appreciate working with experienced attorneys that can carefully and effectively handle the matter.

Adoption is a wonderful opportunity for our clients to achieve their dreams of having a family while also fulfilling those of children in need of parents. Kristina B. Otterstrom, one of the family law attorneys at our law firm, is an adoptive mother and understands the dreams and goals of our adoption clients, and some of the struggles that they experience during and after the process. If you are seeking to build your family through adopting a child, we would encourage you to schedule a consultation with one of the adoption attorneys at Shumway Van. Our law firm can help you determine the best course of action based on the facts of your case and ensure that the adoption process proceeds as smoothly as possible.

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