Divorce Law and Annulment

Wednesday, December 23rd, 2009

An annulment is different than a divorce in that it legally makes a marriage null and void. An annulled marriage is considered to have never existed. There are two types of annulment, legal annulment and religious annulment.

Legal Annulment

In order to have an annulment, it must be shown that the marriage was never valid to begin with. Some common reasons a marriage can be invalidated are:

• One spouse was under the legal age to get married at the time of the marriage
• One spouse suffers from mental illness, or was under the effects of alcohol or drugs at the time of the marriage
• One spouse was already married to someone else at the time of the marriage
• One spouse withheld important facts, such as a desire not to have children, inability to have children or having a serious illness
• The marriage was never consummated
• The marriage was between two people that are too closely related to be legally married, such as a parent and a child or aunt and a nephew

Religious Annulment

Religious annulments have nothing to do with legal annulments. They are granted by your religious institution, not your state. In some cases people obtain a divorce, and are later granted a religious annulment. Religious annulment requirements vary with each religion.

Differences Between Divorce and Annulment

The process of an annulment is very similar to a divorce. Similar papers must be filed and similar hearings are held. An annulment can usually be finalized much more quickly than a divorce. While annulments usually apply to short marriages, the duration of the marriage is not a factor in determining if an annulment is an option. For example, if two people were married for 30 years, but one of them was married to someone else first, it would qualify for annulment.

Because an annulment essentially means the marriage never existed, unlike with a divorce, there can be no claims for alimony or spousal support. Any children that were conceived during a marriage that was later annulled are considered legitimate children and child support, health care and visitation must still be determined for them. Some states are reluctant to grant an annulment for marriages that had children.

This article is for informational purposes and does not constitute legal advice. Please contact an attorney in your local area for more information about divorce law.

Legal Information: Long Island Divorce Lawyer Elan Wurtzel. Serving clients throughout New York.

Tags: alimony, Divorce Law, legal annulment, long island divorce attorney
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Prenuptial Agreements may be a Smart Move

Monday, June 8th, 2009

A prenuptial agreement spells out the rights of each party and the assets that they are bringing into the marriage. Having this before a wedding may lessen the incidence of a messy divorce.

Since 40% of marriages usually end in divorce (based on Census data), it would be worth considering a prenup especially for people with significant assets, no matter how uncomfortable it sounds.

But before you draft this agreement, find out if a prenup makes sense for you by answering these questions:

1. Is it for me? – Prenups protect people at all kinds of income levels. They’re not just for the rich.

2. How much will I pay? – The cost would probably be a thousand dollars or more. Some attorneys may charge $1,500 to draw the document either for an hourly rate or a flat fee.

3. What does it cover? – A prenup’s objective is to sort out “who will own what” in case of a divorce as well as what debts or properties must be shared in marriage.

4. What should not be covered? – You can’t waive away children’s rights. However, you could state how the child must be raised.

5. How often should it be updated? – It is a good idea to update your prenup when there are significant changes in your situation or events such as career change, inheritance, or birth of a child.

Tags: attorneys, Census, Divorce, marriage, prenup, prenuptial agreement
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Functions of a Family Lawyer

Saturday, May 23rd, 2009

There are periods in marriages when the husband and wife disagree. And when such disagreements repeatedly occur and escalation of divisive tendencies comes out, these may lead to divorce. When this happens, the couple needs the help of a lawyer specializing in family law.

Family lawyers do not only handle divorce settlements, they also deal with jointly-held possessions (a home for example). If the divorced couple has children, the family lawyer will also push for custody. Typically, lawyers would recommend joint custody where each parent can enjoy time with the children.

Other family law cases may also be handled by these lawyers such as:

· Grandparents’ rights – sometimes, bad feelings between a spouse and the in-laws could sprout. In this scenario, grandparents could approach a family lawyer and seek their rights.

· Domestic violence – unfortunately, citing domestic violence as a reason for divorce is very common. The family lawyer may deal with a lot of personal issues in this situation.

· Request for asylum – there are cases where the lawyer should prove that a certain family would face grave danger if deported back to their home country. The lawyer may look for medical, religious, or political reasons why the family needs to get asylum.

· Request for adoption – this can also fall under family law. Lawyers typically get permission from couples to adopt children.

Tags: adoption, asylum, custody, Divorce, domestic violence, family law, family lawyers, grandparents rights, lawyer
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Where and How should Divorce be Filed?

Tuesday, May 19th, 2009

The legal process of divorce begins by filing a petition or complaint with the court. To file this case, you should take your documents to the proper family court. Most states require that either you or your spouse live in a particular state for a period of time before they allow divorce filing.

State laws vary but typically, you may file for divorce in the county where you or your spouse lives, or where you lived at the time before your separation. The petition or complaint is the main document that you’ll need to file for a divorce. For complaints, the “plaintiff” is the spouse submitting the complaint and “defendant” refers to the other party. While for petitions, the spouse filing divorce is called the “petitioner” while the other spouse is called the “respondent.”

You need to give notice to your spouse that you have filed for divorce. The preferred method is handing the petition or complaint personally to the other party. However, other forms of notice such as publications, for example, may also be acceptable.

It’s possible to file a divorce without a lawyer, however, it’s best to consult with a divorce lawyer to help you in filing the paperwork and explain the appropriate filing process in your state.

Tags: complaint, defendant, Divorce, Divorce Lawyer, lawyer, petition, petitioner, plaintiff, respondent
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Happy Divorce: Is it Possible?

Sunday, May 17th, 2009

You’ve heard of a happy marriage, but do you think it’s possible to have a happy divorce? The answer is yes, according to a huge number of lawyers. There’s such thing as “collaborative divorce,” which typically brings cooperation and civility to a bitter battle.

Instead of sparring in court, attorneys of both parties will agree to work towards an amicable divorce wherein both sides will be happy. Along the way, they can receive guidance from a financial adviser and neutral mental-health professional.

They say collaborative divorce is cheaper, less divisive, and faster than traditional divorce. Also, it’s more private since the parties will not step inside a courtroom unless the final paperwork was already filled.

An Orlando attorney, Richard West, said “It’s better for clients and for their families too.” Husbands and wives will have their own lawyers who are there only to give legal advice and meetings are presided by a mental health professional that should be neutral and not take any side. This counselor will also steer the discussion towards a productive direction to minimize sniping.

The goal of the meeting is to help design a plan and work out what’s best for the children. Barbara Kelly, Maitland psychologist, said “From the start, you’re focusing on the children, and ex-couples who came out through it say that their communication with each other also improved.”

Tags: attorney, attorneys, collaborative divorce, counselor, Divorce, lawyers, mental-health professional, Richard West
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Grandparents’ Right in Divorce

Friday, May 15th, 2009

One of the controversial issues in a divorce is the rights of the grandparents. Sometimes, a grandparent is denied access to the grandchild or sometimes communication just breaks down and no visitation schedules are discussed.

If you are facing this challenge, bear in mind that filing a case in court should be your last resort. Every effort should be made to communicate with the parents in order to spend time with your grandchild. If no agreement was reached, then mediation could be another option.

The requirements for visitation ordered by the court will vary by state. However, most states agree that grandparents are not entitled to visit if the parents of the child are still married. The following situation may be a cause for grandparent visitation:

• -Child is born out of wedlock
• -A parent is deceased
• -Parents have a pending divorce
• -Parents are already divorced

As you see, this is clearly a complicated issue. If you’re a grandparent being denied of visitation rights, you can decide to pursue a case or not. And when you choose to pursue it, the next step is to find a divorce lawyer who specializes in visitation and third party custody.

Tags: Divorce, Divorce Lawyer, grandparents, lawyer, third party custody, visitation
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Late Fees for Divorce Agreement

Wednesday, May 13th, 2009

The chief executive officer (CEO) of Credit Suisse Group, Brady Dougan, is complaining about divorce late fees. Recently, he was in Connecticut courts fighting almost $1 million claim of tardiness fee from his wife.

The 49-year old bank executive suffered a blow when state Appellate Court ruled that he must abide with the late penalty terms of his $7.5 million payment to Tomoko Hamada Dougan based on their 2005 divorce agreement. David Borden, Supreme Court Justice, wrote that Brady is a financially sophisticated and highly educated person but wants to avoid an obligation that he undertook. He said further that his estate is nearly $80 million – he could have easily made the payments as soon as signing the deal.

According to a message left with Gary Cohen, Brady’s attorney, it wasn’t clear if he is planning to appeal. Actually, he already paid his wife $7.8 million in 2005. However, the divorce agreement states that he’s supposed to pay another $7.5 million by June 16, 2006. He paid on June 28 but gave his ex-wife $25,000 to cover the interest for the 12-day delay.

But in a case that Hamada filed for her ex-husband, she said that he should be liable for more than a year’s interest which dates back from the date of agreement signing. Unfortunately for Brady, she got the Appellate Court on her side.

Tags: Appellate Court, attorney, Brady Dougan, Credit Suisse Group, Divorce, Gary Cohen, Tomoko Hamada Dougan
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Child Support vs. Alimony

Sunday, May 10th, 2009

Divorce is not just an emotional issue; it’s also an economic one. A good divorce attorney will save you more money than you realize. On the other hand, a bad one will cost you thousands just on the initial settlement.

Many financial issues revolve around the actual agreement for divorce. And the two main ones are child support and alimony. Child support payments are not deductible by the payer and not taxable to the payee.

On the other hand, alimony payments are completely different. These payments are deductible by the payer and taxable to the payee.

Fixed payments for child support are not considered as alimony. These are separate payments ruled by the divorce court as support for the child. Each state has guidelines that describe the inclusion of child support. Most of the time, the parent is willing to commit more support for the child than what’s required by the state.

But if the parent has very little income, then child support will be prioritized more than alimony. One important principle in divorce law mentions that the child’s best interest is more important. Therefore, alimony is discussed only after the needs of the child have been provided for.

Child support expenses include electricity, rent, food, and other general expenses needed to take care of your child such as repairs, laundry, and transportation. To make sure that your child is well provided for, ask the help of an experienced divorce attorney to guide you through the complicated divorce proceedings.

Tags: alimony, child support, Divorce, divorce attorney
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Final Divorce Order Changes

Saturday, May 9th, 2009

A divorce decree is often referred as “final decree” or “final order” in a divorce case. However, many aspects of this decree can still be changed under certain circumstances. Generally, if there are significant changes in the circumstances of either party, it can warrant a change in visitation order or custody. However, some states place restrictions on the reasons or number of times that any party can request a change.

For example, the non-custodial parent may petition the court to temporarily suspend or at least reduce the child support obligation if he or she loses his job. At the same token, if there is an increase in his or her income, the other party may petition for an increase in child support.

Also, if the existing visitation schedule is already unworkable (i.e. the parent moves or the child becomes involved in a new activity), then it can be modified too. The court retains jurisdiction for cases with minor children involved. It has the power to enforce visitation, custody, and child support orders through contempt actions.

To learn more about divorce modifications, ask a divorce attorney in your area. An attorney can explain to you how divorce laws may affect the process of modifying your final divorce decree.

Tags: attorney, child support, court, custody, Divorce, divorce attorney, visitation schedule
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Wage Distribution in Divorce Proceedings

Friday, May 8th, 2009

During divorce proceedings, the court will value a person’s exceptional wage earning abilities and distribute a part of it to the spouse. This comprehensive decision was written by a Supreme Court judge in New York. He concluded that the personal good will inherent in one’s career should be considered as a marital asset and must be subject to court evaluation and subsequent distribution upon divorce.

In fact, there have been many divorce decisions that recognized this – licenses and degrees were considered as valuable property rights. But it’s clear that whether corporate executives earned licenses or degrees during their careers, their career expertise would still be subject to equitable distribution.

For example, a corporate executive (even with an undergraduate degree) earns $35,000 in a year. But because of the experience and special skills acquired during marriage, the salary increased to $350,000 a year. In this case, the courts will determine the average pay of college graduates in the area (say $85,000), deduct it to the present value sum ($350,000 less $85,000 = $265,000), multiply the years before reaching retirement (say 15 years), and then discount the result to the present value sum.

So for our example, $265,000 multiplied by 15 years is $3,975,000 in enhanced earnings. The discount amount may only be $1,800,000 depending on the discount rate employed.

Most people are truly shocked by this. Nevertheless, this type of computation is often played in divorce courts. But since this evaluation process is more of an art than an exact science, selecting an experienced divorce lawyer will surely soften the blow.

Tags: court, Divorce, Divorce Lawyer, earnings, lawyer, New York
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Law and Court Expectations

Wednesday, May 6th, 2009

Maybe you have experienced or witnessed the power of the family court. It can transfer property to someone else, order violent people to leave their homes, or compel somebody to pay various sums of money. However, it also has its limitations.

Family law is a “civil” law dealing with disputes, not crimes. So for example, if you just had a divorce and your former spouse is not following court orders such as visitation, child custody, or child support, then he or she is not committing a crime. Only a non-molestation injuction was broken.

And since the court cannot monitor its orders, it’s up to you to check whether they’re being carried out. The only way you can make somebody follow the law is to take the case back to court again. That’s why it’s important to keep all your court papers on file.

Another limitation of family law or court is its inability to change the attitude or personality of your spouse. Don’t expect a nasty person to be nice and an unreasonable person to be reasonable just because the law ordered them to. So remember that the law can be a big help to settle your disputes and divorce issues, but you cannot expect it to do everything for you.

Tags: court orders, Divorce, family court, family law, law
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