Marriage and Divorce

UNDER WHAT CIRCUMSTANCES CAN CUSTODY AND VISITATION ORDERS BE CHANGED?

After a final decree of divorce or other order establishing custody and visitation is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement may be made without court approval if consented to by both parents. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child, and if approved a new order will be issued which will be enforceable.

If a parent wants to change an existing court order and the other parent won’t agree to the change, he or she must file a petition for modification asking the court that issued the order to modify it. Usually, courts will modify an existing order of custody only if the parent asking for the change can show a “substantial change in circumstances.” This requirement encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.

Here are some examples:

Geographic move. If a custodial parent makes a significant move, or the move will seriously disrupt the stability of the child’s life, the move may constitute a changed circumstance that justifies the court’s modification of a custody or visitation order. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children. If no agreement is reached, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.

Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent’s lifestyle threatens or harms the child. If, for example, a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case.

Income changes may not qualify as a substantial change unless a significant matter such as a disability arises; however, a significant change in income will qualify for a change in child support.

REALITIES OF DIVORCE

• Divorces can be final in as few as 30 days, although very complex divorces and those that go to trial may not be final for months or even years
• Once a divorce is filed and one party wants to go through with it, you can’t stop it from happening. Unless you and your spouse reconcile, your assets will be divided and you will be divorced.
• Contentious, litigated divorces are more financially devastating than agreed upon settlements.
• Your property may be divided in a way that is not equal. The judge or a jury may look at future earning capacity, fault for the divorce and other criteria when making a disproportionate division.
• If one spouse proves that an asset is his or her separate property, the judge must award that asset to that person, although it might later be awarded to the other spouse as alimony.
• Unless you have no significant assets or means to support yourself and you have been married for a significant time, or you and your spouse agree to it, in most cases there will be no alimony once the divorce is final.
• The spouse who does not have primary custody of the children will, in practically every case, pay child support.
• If the other side requests your financial information you have to comply unless you settle.
• Your spouse may file for bankruptcy after a divorce leaving you responsible for certain debts; however, bankruptcy cannot eliminate alimony or child support.
• It is difficult to reopen a case or prevail on appeal so get everything you can the first time around.

KNOW YOUR CONSTITUTIONAL RIGHTS

1. You have the right to REMAIN silent even before you are arrested, anything you say or do (such as roadside sobriety evaluations) CAN and WILL BE USED AGAINST you.

2. You have a right to consult privately with an attorney, and if you request to exercise this valuable right, all interrogation must stop and no police officer can question you further. Remain silent.

3. If you cannot afford a lawyer, once you are brought before a court official, a lawyer will represent you at no cost. Don’t get impatient and talk to anyone else in jail or at court.

4. Assume that every word you speak–in a police station, police car, to a jail inmate or in a jail cell is being RECORDED. It probably is! REMAIN SILENT! Only talk with your criminal defense attorney.