Questions About Divorce

FAQs

Q: What is Joint Legal Custody?

A:  When parents share joint legal custody, this means that both parents share the right to make important decisions relating to the health, education, and welfare of their children.  Joint legal custody does not necessarily mean a 50/50 timeshare with the children - any number of different parenting schedules can be implemented while still sharing "joint custody".  


Joint legal custody can still be flexible to meet your concerns.  Parents with joint legal custody may still enter into an order that one parent has the right to make educational decisions for example, or make routine medical decisions, or may also dictate that both parents agreement are required for these decisions.  


Q: How is Joint Legal Custody different from Sole Legal Custody?

A: When a parent is granted sole legal custody, this parent alone is charged with making the important decisions relating to the health, education, and welfare of the child(ren).  Sole legal custody is much less common than joint legal custody, which recognizes the joint role that parents usually have in raising a child (even parents who do not agree on what is best for the child).  For example, sole legal custody may be appropriate in cases where one parent has abandoned the child, repeatedly interferes with the other's parenting time, or is abusing joint legal custody by obstructing the other parent's ability to keep the child safe and well cared for. 


Q: What is Joint Physical Custody? 

A: Joint physical custody refers to the fact that both parents share the physical care and parenting of the child. Parents who share joint physical custody do not necessarily have an equal timeshare with the child, but rather each parent is acknowledged to have substantial and frequent contact with the child.  For example, parents may share joint legal and joint physical custody, but one parent has the children during the week and the other on weekends.  


Q: What impact does joint physical custody have on my case?

A: A joint physical custody designation is primarily relevant to requests to move away with a child.  A change in physical custody is not usually made when a parent is simply seeking a modification of the parenting schedule.  Even a parent who has very minimal time with a child may have a joint physical custody designation in the parenting orders or judgment. 


Q: My ex is a "jerk".  Can I get sole custody of my child?

A: We are often asked whether a court will grant sole custody based on various acts of misbehavior on the part of the other parent.  The truth is that many parents feel that the other parent is hurting them emotionally, or hurting their child, after they separate.  Many times with good reason.  The question you need to ask yourself is how is this behavior hurting my child?  Is this hurt worse than the hurt of losing that parent? 


The court starts with the assumption that it in the best interests of children to have positive and frequent contact with both parents.  To convince them otherwise, you will need strong facts demonstrating that the best interests of the child are better served by sole custody.  Other options also include structuring your parenting orders to minimize contact between parents, limiting the other parent's parenting time, or even requiring that visits be supervised.  


This does not mean that you shouldn't take steps to protect yourself and your child if you are in danger.  Please remember, if you have reason to believe that you are in physical danger, or your child is being abused or neglected, seek help right away! 


Q: I was served with a Petition, now what?

A: In family law, the first documents filed are called the Petition and Summons. The Petition may ask for a dissolution of marriage (divorce), legal separation, annulment, establishment of child custody or establishment of paternity.   In each case, one party will serve the other with the Petition and Summons, and that party is called the Petitioner.  The other party then has 30 days to file and serve his or her Response, or risk having his or her default taken by the Petitioner.  This party is called the Respondent.  The Response is a judicial council form, and is fairly easy to complete.  A blank copy will be served on you along with the Petition and Summons.  Although the form is intended to be simple - this does not mean that the boxes you check now do not have consequences. If you have been served with a Petition, you should consider meeting with a family law attorney to discuss your best course of action. 


Q: I don't have money to hire an attorney - what can I do?

A: The family court has the authority to make an award of attorney fees to ensure that both parties have access to legal representation.  The court may order your spouse to make a contribution to your fees, or may order that a bank account or credit card be made available to you.  If you feel that you need an attorney and cannot afford one, you can file a request for order seeking access to attorney fees.  Your request may be granted if the other party has engaged in conduct that frustrates settlement and prolongs the litigation, if there is a substantial disparity in access to funds to retain counsel, or where a community asset in your spouse's exclusive control may be made available to you for payment of fees.


Q: I can't find my spouse.  Can I still get a divorce? 

A: Yes!  You are required to make reasonable and diligent efforts to locate the other party to your divorce, but if that party is evading service, or simply cannot be located, the court may authorize you to serve the other party by publication or at a last known address.  Once you have effected service and your spouse has failed to respond, you may then move to take his or her default.  This means that you may pursue a judgment without the other party's participation. 


Q: My spouse is the primary wage earner in our family. How can I file for child or spousal support?

A: If your spouse or former partner earns more than you do, he or she may be required to pay you child or spousal support.  If you were not married, except in very limited circumstances (i.e. palimony), you are not entitled to spousal support, but you may be entitled to child support.  If you have recently separated from your partner, you should file for support as soon as possible to obtain the soonest possible hearing date and preserve your right to spousal support.  If you are unable to retain an attorney, you may open a case with the Friend of the Court, and they can assist you in filing for, and collecting, child support.


Q: My wages are being garnished for child and spousal support.  Can I fight it?

A: Many support orders do require that a wage assignment order (or earnings withholding order) be issued by the court, while many others provide that the wage assignment order be 'stayed' (i.e. held and not served on your employer) so long as payment is timely.  Timely payment is typically on or before the 5th of each month for monthly payments.  If you already have an order for support, you will need to review the terms to see what your order requires in relation to serving a wage assignment order.  


Many people believe that there is a stigma attached to wage garnishment, that it suggests a failure to pay voluntarily.  However, this is no longer the case.  Wage assignment orders (garnishment orders) are more common than not, and should not negatively impact your job or your reputation.  If you require assistance modifying the terms of your order, you should contact a family law attorney.


Q: Is my file public? Can anyone see the documents I file?

A: If you are involved in a divorce, legal separation, annulment or guardianship proceeding, your documents are in a public file.  This means that if a person goes to the courthouse with your name or file number, they can pull your file and review your documents.  People are often horrified to learn this, as their documents may contain embarrassing or damaging information.  If you are concerned about keeping your personal business private, you should discuss with your spouse the possibility of mediation.  This option will allow you to keep the messier aspects of your life out of the public eye.  You may also be able to file certain documents in the court's 'confidential file' which is not released to the public. 


Q: I don't want to go to court.  Are there other options available? 

A: Yes! Nobody likes going to court, and you often end up with hasty orders that do not fully meet the needs of your family.  We strongly recommend mediation in most family law matters, and especially those that involve disputes over child custody and parenting. This doesn't mean that these options are a good fit in every case.  Contact us to learn whether an alternative means of dispute resolution, such as mediation may be right for your family.