May 4, 2010

Common Family Law Myths Explained

Posted in Family Law, Uncategorized tagged at 4:19 pm by demetriagraves

As a Family Law Attorney, I often find myself sitting in the hallways of the courthouse waiting, and usually I come across many different people.  In these hours of waiting, I often hear unrepresented parties discussing their legal matters and I’ve come to realize that there are a lot of misconceptions when it comes to what the law actually is.  I’ve decided it’s time to address these myths, and bring some clarity.  So here’s some common Family Law myths explained:

Myth: Having Joint Legal Custody means that each parent is financially responsible for half of everything the child needs.
Truth: Whether or not a parent has legal custody (versus physical custody) of a child has nothing to do with whether or not he or she has to pay support, or how much that parent will have to pay.  Legal custody dictates who gets to make major decisions for your child, like where your child will attend school, which doctor the child will got to etc. In most circumstances, Parents tend to “share” joint Legal Custody, which can change if the Parties cannot mutually agree to the important decisions.
Child Support it totally different then the Legal Custody issue, which is more based on the time or physical custody that each parent has,  the gross incomes of both parents, and and other financial factors, which assists the court in determining the state “guideline” based on the above mentioned factors.
Further, both parents may not be responsible for all of a child’s expenses.  Child Support is about covering the necessities in a lump sum.  Things like food, clothing, rent or mortgage payments.  There are plenty of things that aren’t considered necessary expenses, or that are covered by orders separate from a Child Support order.  There may be separate provisions for health care expenses, or extracurricular activities.  Often times, when it comes to discretionary spending that the parents don’t agree on (for instance, one parent feels it appropriate to buy the child a brand new car and the other parent doesn’t agree), the parent who disagrees may not be responsible for any portion of the purchase.
Myth: Whether or not a parent pays Child Support determines whether or not he or she has a right to see his or her child.
Truth: The obligation to support your child and the right to spend time with your child are totally separate issues.  A parent who puts his or her child at risk may be required to pay support, even though he or she is not allowed to see the child.  Likewise, a parent who cannot pay support may have an order allowing him or her frequent visits.   In the Family Courts, judges are looking at what is in the best interest of the child.  Most of the time, this is the child having both of his or her parents in his or her life, making financial contributions as stated by statewide “guideline” calculations.
Myth: You have a right as a parent to see your child.
Truth: To a certain extent, this is true, but not the way most parents seem to think about it.  As mentioned above, the Family Court is really protecting the rights of your child; your child’s right to be safe, happy, and healthy—emotionally, mentally, and physically.  Most of the time, this interest is best served when everyone who loves your child gets to play a part in his or her life.  This is why a court will order a visitation schedule.  Not because you as a parent have a right to that time with your child, but because your child has a right to that time with you.
Myth: You should tell the judge about every time the opposing party has wronged you.
Truth: Judges are busy people with full schedules.  One of the things they appreciate is brevity.  Some facts are relevant, others are not.  Chances are, if you recall every detail of every argument you’ve had with your ex-spouse or partner for the past three years, you’re doing yourself a disservice.   This is one of the many reasons why having representation in the  Family Courts is so important.  Attorneys understand the law, so that they can present the information the judge needs to make a decision without presenting information that might be harmful to your case, or simply irrelevant.
Myth: When a couple divorces, each person automatically gets half.
Truth: This is interesting because we do live in a “Community Property” state, but this is not always true.  If the decision is left up to the court (see next myth), the judge will consider a variety of factors in divvying up property.  What matters?  The list is long but includes who owned what before and during the marriage and how those things were acquired.  For instance, if one party owned a home prior to the marriage, the other spouse does not automatically get “half” of the house at divorce.
Myth: It’s best to just let the judge decide.
Truth: There are very few occasions when it is best to just let the judge decide.  Usually, people say this for one of two reasons:  they’re uncertain of what they want and how to ask for it, or; they’re so certain that they’re in the right that they’re unwilling to compromise.   Yet another reason why the assistance of an attorney can be crucial when it comes to Family Law matters.
An Attorney can let you know what expectations are reasonable when it comes to Family Law, and can express what you want in a way that makes legal sense.  More importantly, an attorney can let you know what expectations are unreasonable when it comes to Family Law, so that you don’t end up with an order you hate instead of an agreement you could have lived with.
There are very few times when the Family Court would be unwilling to accept an agreement the parties have come up with themselves.  As long as it’s fair, and the parties have touched upon all the relevant issues, a Judge is likely to approve an agreement.  Isn’t it better for a family to make decisions for itself, rather than asking a relative stranger to do so?

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