Essay On Divorce: Legal Approaches, Dispute Resolution, And Defenses.

Introduction to Divorce Changes in North America

Changes in the culture of divorce

Divorce changes started in north america, during the american revolution, where personal liberty contributed to different views on marital vows.  Traditionally divorce cases were based on evidence of physical abuse and adultery. However, lawyers became creative in the interpretation of the law with time which led to the adoption of omnibus clauses that allow courts to give verdicts on divorce-related cases on its best judgment. While using the fault-based filing in divorce laws in 1800 -the 1900s, divorce cases continued to rise and caused various issues such as the clean hands' doctrine meaning the party filing the divorce could not have contributed to the annulment of the marriage. It led to a fault–based issues in  illinois whereby the judges accepted evidence from other people saying they had seen physical marks on abused parties, this would have been regarded as 'hear say'  in the current courtrooms as there is no proof at the time of the hearing.

The introduction of family law in california, enhanced 'irreconcilable differences' making a way for the common law based on no-fault divorce laws used in most countries in the world.  

Legal approaches for appropriately altering the marital status

According to family law for one to appropriately alter marriage through divorce one needs to;

Prepare an original divorce petition

Prepare temporary divorce orders

Divorce discovery mechanisms

Mediation for the divorce

Divorce court if mediation fails

Bifurcated divorce is granted by the court before resolving economic challenges that are associated with the divorce. It is occurs based on three grounds

A fault divorce is very expensive

Where both parties give consent of their affidavit files

Parties agree to live 'separate and apart  

Divorce dispute resolutions

Mediation – it is also referred to as facilitation as control of the results is based on the parties

Arbitration – through this process parties involved are not allowed to make any decision

Conciliation- in this process a positive bond is created amongst parties in dispute, it is normally applied in consumer and labour disputes.

Neutral evaluation- parties present their cases and evidence to a neutral party that gives insights on the strengths and weaknesses of each party and predicts the results.

Settlement conferences- depending on the judge the settlement meetings are voluntary or compulsory. In this case, the referee who is the judge does not make the decision he or she advises the parties on the best way to settle their issues until they reach an agreement.

Community dispute resolution committee-this programs are designed to handle very privately and public issues but are cheaper than the court processes

Personal jurisdiction -this is the power that the court has on a defendant as a person compared to the defendant's interest in a property

Rem jurisdiction –this is an action taken by the court regarding a defendant’s property.

The primary difference between fault and no-fault grounds for divorce

No-fault is a divorce where the spouse filing the divorce has no charges or evident reasons over his or her partner an example is a divorce based on irreconcilable differences, the party receiving the petition cannot object to it and both spouses are supposed to be separated before the petition is filed. While a fault divorce involves a partner petitioning the other party based on faults such as adultery, life imprisonment, abandonment for a long time, and many others.

Legal Approaches for Appropriately Altering Marital Status

Potential defenses to a divorce action

Connivance- this is where there is evidence of a set -up from one of the parties

Condonation-in this case the petitioning party knew about their partner's unacceptable behaviors but forgave and pursued the marriage.

Recrimination- this is when both parties are viable to charges included in the petition.

Provocation-this is when one spouse forces his or her partner to commit an unacceptable act that brings forth the petition

Collusion-this is a result of fabricating basis or reasons to be divorced.

Nature and purpose of a complaint

A complaint is a request or a plead that initiates a case.

The claimant initiates a court process by pleading a complaint, which contains all the claimant's demands against a respondent and must state the compensations the claimant's demand. After stating the respondent must answer acceptance or denial of the claims.

Primary ways of serving process and describe the nature and purpose of the long-arm statute

A long-term statute gives the court a chance to get personal jurisdiction over a claimant who is out-of-state on the grounds of particular actions made by a claimant out-of-state as long as the claimant maintains enough connection with the state.

A court is said to have a long-arm jurisdiction when it receives jurisdiction due to a long-arm statute. The process through which a lawsuit party provides a suitable notice of beginning a legal procedure to another party, or an administrative body in the process of applying a jurisdiction over a person to compel him or her to attend to a court or tribunal proceedings. 

2 common responses of the defendant to an action for divorce indicate the differences between them

Objection response- if a defendant objects to a divorce order presented to him or her by the partner, the defendant might win or lose the judge determines the case based on the evidence available. This is referred to as a contested proceeding.

No response- it is also a response whereby the proceedings are referred to as uncontested proceedings and the judge rules according to the information presented to him or her.

Temporary orders attend to immediate requirements before entering a final order to a case. They offer guiding directions in uncertain legal matters.

Motions filed in divorce actions while the litigation is pending

Emergency motions

Preliminary lite motions

Utilization of discoveries and evidence motion

Motion of deposition

Creating a basis for post-trial motions

Ex-parte

This is an order made while one of the parties is not aware. They offer immediate relief temporary when it is not feasible to provide a notice of a scheduled hearing.

A discovery or discoveries ensure that before going on trial all parties comprehend fully the issues and facts purposed for the lawsuit.

This is a document that marriage partners apply while separating their properties and commitments while prefacing a permanent separation or divorce. It involves terms such as children custody, parental commitments, spousal responsibilities, properties, and debts

Standardization test documents

Practical imputation documents

The decision of the second circuit

Divorce Dispute Resolutions

Kinds of divorce-related to legal proceedings brought past divorce

Contested divorce

Summary divorce

Collaborative divorce

Default divorce

The role of the paralegal in the various stages of the divorce process

A paralegal prepares legal documents for the court for divorce and separation

Under lawyers supervision paralegals conducts legal research

A paralegal conducts interviews as divorce cases take much time to speak with the client

They assist in making courts schedules and appointments

They also take the role of helping a lawyer in the divorce court

Formal and informal discovery

Formal discovery is a process that is regulated by common law and statute. An example of formal discovery requests for producing documents. While informal discovery involves the exchange of information between an attorney and the parties involved in discovery without filling or serving formal requests on either party.

Interrogatories- they are written questions answered through writing under an oath

Depositions-both parties answer verbally under an oath and they must pay the court reporter for attending the hearing and transcribing

Subpoenas duces tecum- they are mostly used when getting medical records, bank records, and school records

Requests for production and inspection documents used in the corporate sector  

Strengths and weaknesses of each of the formal discovery methods

Interrogatories- strengths are; they are cheap, they can be used to design other discovery requests, they enhance an efficient way for witness identification. Weaknesses are only applicable in parties and not third persons and they may offer very little and significantly damaging pieces of information.

Strengths of depositions are they involve third persons, and it is easy and fast to obtain information since they are answered orally unlike the wring methods, it is also easy to assess the sincerity of the respondent under an oath weaknesses include; they are costly, they do not protect the identity of the disposing part’s theory and they pave a way for negotiations and trial.

Strengths of requests for the production of documents are that they are both useable by both parties and third witnesses, it is easy to obtain critical information from employers and other crucial entities. Its weakness is that it is time-consuming.  

Objections that can be made to discovery requests

Objections to discoveries

Disputes of discovery

Nature and purpose of financial statements/affidavits

Affidavits are used by corporates and businesses to issue statements that might be required by others they are applied as pieces of evidence in criminal prosecutions and civil actions. Examples include statements of financial stability

Ways of concealing assets

Use of virtual private network

Application of informal value transfer systems

How to detect them.

Demanding documents through an attorney

Writing requests for admissions

Inspecting demand

Giving testimonies under oath

E-discovery- this refers to the initial period of litigation in which all parties must provide to each other all pieces of proof that are significant to the case file. Legal examples include; cad and cam files e-mails, databases, and websites.

Significance of social networking sites in the family law context

Helps attorneys and judges to collect evidence

The Primary Difference Between Fault and No-Fault Grounds for Divorce

Protects customers from themselves

Use of easy soft legal soft wares to preserve social media evidence

Role of the paralegal in the discovery process

Paralegals audit imminent discovery requests

Personal and attorney's record-keeping

Preparation of initial draft discoveries for attorney’s review

Court roles in the discovery process.

Ensuring exchange of information between parties

Enabling the parties to be aware of the evidence that will be presented

Determinants of legal parentage

The signing of a legal declaration

Court orders through the help of a local children support agency

Court presumptions

Examples of parenthood through adjudication

A father who has been determined by the court as the father through a judicial process and has proceeded to paternity judgment.

When a child has adjudicated dependent the court orders various services for the child while evaluating drugs and mental disorders for parents

The process of adjudicating paternity

Contact a local attorney

Filing a petition

Hearing of a pre-trial order by the court

Testing of genetics

Equitable parental doctrine allows a parent that is not related biologically to a child of their partner but has formed a healthy bond should be regarded as a parent

Resolving surrogate disputes

Maternity tests

Infertility tests

Posthumous reproduction is the process through which assisted reproduction is used to develop pregnancy and create biological offspring after the demise of a parent. This is made possible by retrieving a person's eggs or sperm shortly after their death.

Ways in which gays and lesbians can become legal parents

Adaption

Co-parenting

Surrogacy

Donor insemination and

Foster care

Types of custody

Physical custody

Joint custody

Legal custody

Sole custody

Grandparent custody and visitation

Child custodial awards

Maternal and tender year’s doctrine award

Connecticut

Uccjea and pjpa

The uniform child custody jurisdiction and enforcement act- its basis for jurisdiction is created on the grounds of which state should determine a contest in custody.

The parental kidnapping prevention act is a federal law and its basis are formed on ensuring that the home state is the only state to give jurisdiction exclusively

Hague's convention in custody cases is to safeguard harmful impacts of global abduction by a parent by facilitating the instant restoration of children who have been abducted to their home countries

Hoe standards for evolving custody awards

Social factors such as race and gender orientation

Adoption

Termination of parent’s rights

Jurisdictions and courts

Parental kidnapping

Custody termination

Gender-neutral standards

Sexual neutral standards are only observed where there is no abuse if the child custodian is of the opposite sex with the child and they have developed a bond strong healthy bond then the parent retains the custody. I do not agree that custody decisions are sexually neutral because a homosexual couple can only be granted the right to custody of a child of a specific age. Men have also been deprived of the custody of their children for a certain age limit which does not apply to women. They are granted full custody of babies regardless of their age until the child is of a certain age to decide who he/she want to be with.

Potential Defenses to a Divorce Action

When there are disagreements on the primary caretaker of the child the court normally grants the custody to the person who has spent most of the time taking care of the child from. This is because he or she can take care of the child in the right way, and has taken time to know each other better.

The majority position would be based on the age of the child for very young children availability would have the majority followed by stability is the custodian able to provide basic needs for the child, and others vary depending on the age of the

Visitation is a checkup granted by the court to an interested party, usually the secondary custodian. Supervised is where the primary custodian is required to observe the visitation with the help of an officer while unsupervised the child is free to be with however is visiting them. The common visitation schedule is during the weekends or holidays and there is an agreement for the period it will last as long as the child is comfortable. It can also be online through skype and other media where they can see each other talk and maybe bond.  

It is applicable for parents that do not live together they agree on sharing the responsibility of bringing up their child together while living separately.

Guardian ad litem (gal) functions as the investigator for the court. She researches all aspects of case records forms a report on the findings and gives recommendations to the court on the next suitable action or judgment it should make.

Roles of a paralegal in a custody case

Lighting and organizing courts timeline

Researching and investigating

Facilitating teamwork

Child policy

Child support is temporarily paid in various states to help poor families parents pay through child support executive expenditure and (tanf) temporary assistance for needy families this policy is advantageous to taxpayers

Termination of child support payment- occurs when the child reaches majority age or when a minor is emancipated

Child support is paid for the benefit of any child not necessary the once under one’s custody to help them access basic needs while spousal support is paid as alimony to support a marriage partner.

Iv-d agencies- means a particular independent organizational sector within the government that is responsible for monitoring the implementation of iv-d plans

Importance of child support guidelines

Helps to decrease poverty levels

Reduces the costs of future economic-factors

Three types of income in child support

Trust income

Gross income

Capital gains

Modification of child support

Filing a change request with the court and providing evidence on why the modification is necessary.

Extraordinary expense-these are expenses that are paid for as a result of an illness, disability, or education and enjoyment for your child especially if the child spends the most time with you. It is usually higher than basic expenses catered for by the child support charges. Collaborative lawyers help to determine which expenses are necessary and reasonable depending on one's situation

The following factors are some of the factors considered

Nature and Purpose of a Complaint

Possibility of a parent living with child influencing the cots requested

Child’s contribution in the process of acquiring education cost

Parent’s ability to pay the cost

Availability of financial resources and many others

Methods of enforcing child support obligations

Income tax refunds

Securities and bonds

Reporting through the credit bureau

Levies and liens

Denial of license benefits

Tax implications on child support

All payments made for child support are taxable income. Child support payments can be deducted by neither the payer nor the payee tax system.

Drafting of child support provisions a paralegal should include;

Which parent is taking custody of the child?

Visitation schedules

Issues related to religion should be addressed

A clause that guides the parents on making changes of the agreement of child’s custody

Alimony is payment made by one spouse for the other. It is usually meant for helping out a partner whose marriage did not work out

Premarital influence on alimony

No law obligates spouses to commit to each other based on their agreement and plans before marriage.

Orr decision- it enhances gender equality by making the liability of alimony to be offered by either the wife or the husband. Before it, only the husbands could pay alimony for the wife but not vice versa.

Reimbursement alimony- is the type of alimony granted to a spouse that supported their partner to achieve a higher education during their marriage.

Alimony determinants

Future financial capabilities

Living standards

Physical and mental health

Termination of alimony obligations

When the partner being supported gets married to another person even though the paying party must file a petition for termination.

If the supported partner dies

If the supported partner pardons the paying partner by filing a motion with evidence

Basic tax rule applicability

The party receiving the alimony payment does not have to report it as income but the party paying has got a right to claim it

Bankruptcy treatment

The husband is expected to provide for his wife and children solely in common law, even if bankrupt, he must find a way to meet his share of child support responsibility and for alimony, it could be exempted if the partner is stable.

Phrases of the property division process

Property identification

Classification

Value

Equitable division

Change of property ownership in marital status

Commingling separate properties with other marital properties

Transmutation

Separate property is the assets acquired when there was no marriage and is solely owned by one partner while marriage property is the asset acquired during marriage when both spouses were together and during separation, it should be divided between them.

The majority of treatment of disability, professional degree, personal injury, and the others depends on the valuation in terms of time and money.

Valuation is the process of evaluating the cost of properties acquired. During separation and divorce valuation is necessary so that both parties get an equal share of their assets.

Active appreciation means that a property has grown its value due to the contribution of both parties while passive appreciation is the growth of assets due to other factors such as market forces

Property division methods

Common law property distribution

Equitable distribution

Personal property

The community approach states that there is an automatic 50/50 division of all assets acquired during the marriage, while inequitable divisions more properties may be evaluated as marital assets but division must not be 50/50

Factors considered by the court during property division

The age factor of each spouse

Physical and mental health for both parties

Standard of living obtained in marriage

Each party’s income capacity

Value of assets in marital homes

Consequences of tax

Qdro-qualified domestic relation order

It is an order that acknowledges the availability of other payees that are eligible to receive a benefit portion that can be paid in respect to a specific retirement plan.

Tax issues related to property distribution

Division of marital assets

Distribution of equitable states

States of community properties

Functions of a paralegal in division cases

Scheduling attorneys calendars and appointments

Preparation of drafts for the motions

Conducting legal research

Liaising between the clients and the attorney

Separation agreement

This is an agreement written and signed willingly between spouses without involving the court. It creates time for partners to take sometimes away from each other while working to repair an almost breaking marriage.

Characteristics of an effective separation agreement

Arrangements of children management

House agreement terms

Reasonable individual effects

Financial property management

Payments of lump-sum

Roles of a paralegal in separation agreements

Liaising between the clients and the attorney

Preparation of drafts for the motions

Scheduling attorneys calendars and appointments

Conducting legal researches

Boiler place is a standard clause that is usually located at the bottom section of a contract. It includes conditions that must be adhered to, the date of contract termination, and how the disputes were resolved

Topics addressed in a separation agreement

Real assets, cars, houses, financial accounts, houses, and children.

A severability clause is a provision in a legal agreement that declares that if some statements are accounted for illegally or not enforceable there should be created a reminder.

Factors considered by courts in the separation agreement

Accommodation

Finances

Lifestyle and its effects on other members of the family

Conduct

Children’s welfare