LegalMatch: Family Law

"My Ex Won't Let Me See My Kids!"

Not all child custody arrangements work out the way we want them to. Visitation hours are too rigid, we don’t see our kids enough, rescheduling becomes a laborious chore… But even these frustrations become minor annoyances in the nightmarish light of a stubborn ex-spouse.

An uncooperative ex can spell heartbreak for even the most determined parent. You arrive to pick up the kids and your ex isn’t home. You arrange to drive your son to his soccer game and your once-spouse has packed him off in a neighborhood carpool. You call to wish your daughter a Happy Birthday, and your ex slams the phone into the receiver.  

The court has granted you visitation rights under child custody laws, and your ex-wife or ex-husband has done everything in their power to violate them. And all you want to do is see your kids.

 

When Your Ex Won’t Cooperate

Difficult exes are one thing, but an ex who denies your child visitation rights is on the fast path to becoming a criminal. No matter what state you’re in, where you’re living, or how far away your spouse is living, you are guaranteed the visitation rights that were granted to you by the court. 

Unfortunately, the enforcement of those rights isn’t as simple as placing a phone call, and a bull-headed ex can make your life a living hell. In this case, your strongest option is sheer determination. If you want to make a case that holds up in court, you’re going to need to make the following a regular routine:

• REGISTER your Visitation Order with the State you live in, especially if it is not the state that issued the order.
• DOCUMENT all instances in which your ex violates your Visitation Order with the police, and keep copies of your police reports on hand.
• FILE collected police reports with the court and ask for a Contempt Violation, then repeat your previous documentation if your ex continues to give you trouble.

Once you have one or more Contempt Violations issued against your ex, you can ask the court to rule for modified custody or, in the case of repeated violations, to rule against your ex as an unfit parent. Either way, the court is very likely to rule in your favor and may even grant you primary custody. In some cases, parents have also been successful in suing an ex for withholding child visitation.

Talking To Your Ex About Child Custody Laws

If you feel like your ex might be responsive to a civil conversation, you can also discuss with them the legal implications of their continued Visitation Order violations. Some individuals don’t realize that their actions are criminal, and that they are putting themselves at risk of losing their own custody.

However, you should also be careful to avoid threatening your ex-spouse, especially if you are afraid that they might flee the State. While it is illegal for them to move without first consulting the court (and such an action is a felony in 38 states!), the reality of the situation is that it can be difficult to track an ex who has fled the State. As such, it is always best to try to keep a civil relationship with your ex—even if they’re the one acting like a child.

Find a Child Visitation Rights Lawyer

For up-to-date and accurate information on child custody and visitation laws, please visit the LegalMatch Law Library. Access is open to everyone.

You may also use our free legal matching tool to find a family law lawyer in your area.

A Brief Guide to Divorce in California

One of the most common questions about divorce, or any legal procedure, is “how does this work?” That is, what is the divorce process? In California, divorce follows a streamlined process similar to most civil lawsuits, though it has some differences.

1) Filing the Petition

One of the spouses must file a petition for divorce. The parties may or may not be legally separated, but they must reside in the state for at least 6 months and in the county they are filling in for at least 3 months. The petition should cover all major issues of a divorce, which are: child custody, child support, spousal support, and property division. Child custody and support are not relevant in all cases since not all couples have minor children,

2) Financial Disclosures

Spouses must disclosure their finances to their spouse. The rationale is that for the divorce to be “fair,” both spouses must know what the other spouse has or owns. Once all the disclosures have been made, spouses can divide community property in a fair manner. Disclosures must include, but are not limited to:

1. Last three paycheck stubs
2. Tax returns from last two years
3. An income and expense declaration
4. A schedule of assets and debts\

3) Discovery

As finances are being disclosed, parties are allowed to make discovery requests towards one another. Questions and demands for bank account statements, mortgages, and other evidence of finances may be forthcoming. The biggest issues will likely be whether a property is separate or community property.

4) Judicial Settlement/Child Custody Settlement Conference

Like all legal matters, the endpoint of a divorce petition is a trial on disagreements. Just like all legal matters, most divorces end in settlement. In California, divorce settlements are divided into two parts: child custody settlements, where child custody is agreed upon; and judicial settlement conferences, where property and support disputes are settled.

5) MSA or Judgment

As discussed above, divorces end at settlement, or the parties settle most issues and the remaining one or two issues are decided by a judge during trial. Parties should sign a Marital Settlement Agreement (MSA) with the court retaining jurisdiction so that the court can enforce the agreement, if necessary.  The divorce decree is typically granted after the MSA has been signed, but parties can agree or ask the court to separate granting the decree from the other issues.

If the spouses have minor children, the case will not end. Child support and custody issues remain until the minors become an adult (turn 18, join the military, or become married). Parties can ask the court to modify support or custody arrangements at any time, provided that good cause exists.

Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law

How are Retirement Benefits Divided After Divorce?

Retirement benefits can be tricky to divide during a divorce. Unlike other assets, retirement benefits are often intangible – they are not physical objects that can be given or kept from the other party, they are often controlled by third party administrators, and any dividends they yield may not be realized for decades. Nevertheless, due to the time accruement associated with retirement plans, they are often among, if not the most, valuable assets a party may own. If a divorce goes to trial, a retirement benefit is often involved.

How Do Courts Split Retirement Benefits?

Some states, like California, are community property states. Under community property, each spouse is entitled to half (50/50) of every property obtained during the marriage. Most states follow “equitable distribution,” where the judge divides property in a manner that the judge deems fair and equitable, though not a 50/50 split.

Regardless of the state you file for divorce in, you will likely be using a Qualified Domestic Relations Order (QDRO). A QDRO is a court order dividing retirement benefits such as 401(k) s, IRAs, and petition plans. You must have a QDRO to divide a retirement benefit, or the plan administrators will not be able to legally partition it.  The QDRO must contain the following information for it to be legally valid:

• The formal name of the plan,
• The full name and last known mailing address of both parties,
• The amount or portion of the plan benefit payable to the alternate payee and the method to be used to calculate such amount,
• For a defined benefit plan, the duration for which the benefit is payable to the alternate payee,
• The social security number of both parties; for privacy, the numbers may be on separate cover sheets.

After the retirement plans are divided, receiving spouses can either opt to receive a cash payment immediately or wait until their ex-spouse cashes out his or her plan. The cash payment is a onetime offer only – if the receiving spouse chooses not to exercise it, he or she will not receive a payment until the spouse who owns the plan begins collecting on the plan. Note that if the receiving spouse takes the cash payment before he or she turns 59½, the cash payment is subject to a 10% tax penalty.

What About Social Security?

Unlike private retirement benefits, social security cannot be divided between (ex) spouses. Instead, each individual can collect social security based on an ex-spouse’s record. The benefits do not come from one spouse to another; the spouses draw from the federal government, but use each other’s information to maximize their gains. Furthermore, your spouse doesn’t need to be collecting social security for you to collect yours; as long as your former partner qualifies for social security, you will be able to draw based on his or her record.

In order to receive benefits based on an ex-spouse’s record, you must meet the following requirements:

• Your marriage was a long term marriage (10 years or more);
• You are not currently married;
• Your ex-spouse is age 62 or older;
• The benefit that you are entitled to receive as an ex-spouse, is greater than the benefit you would receive based on your own work record; and
• You would normally be entitled to Social Security retirement benefits

These requirements may change how spouses approach a divorce. For instance, if you’ve been married for nine months, you may wish to delay your divorce so that you can qualify for social security benefits as a long term marriage.

Social security benefits can be worth tens of thousands of dollars, so parties should seriously consider these benefits before making a major decision such as filing for divorce or getting remarried.

Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law

How Can Social Media Impact Your Divorce?

Divorce has always been contentious, but social media has added a new twist. During the divorce, couples may find their e-mails, text messages, tweets, and Facebook postings used against them. These social media posts will often be attached to legal briefs and memorandums as exhibits and evidence for the public record. Over the last several years, three major issues have come up around social media that divorcing couples should be aware of before they click “send” on their phone or laptop.

Issue #1: Messages To and From Opposing Parties

The first major issue is that parties often text or send messages to their ex-spouse can be used against them during the hearings or trial. Even a message as innocent as “WHY WON’T YOU REPLY?!” can be introduced as evidence of stalking to obtain a restraining order. The simplest response is to avoid sending messages to the other side while the case is ongoing, but this isn’t always easy or even possible. In child custody cases, parents are often forced to communicate about pick-up times, vacation days, and illnesses. If parents have to communicate, they are also typically under court order to be civil and polite to one another. Under a court order, sending disrespectful e-mails or text messages to the other parent may result in contempt of court charges, especially if the parent sending the messages has been warned.

Issue #2: Lifestyle Postings

The second issue is that parties often post messages about their lifestyle which are often used as evidence against them. One common tactic to stop spousal support requests is to show the supported spouse is financially better off than he or she portrays.  If a spouse claims she needs support because she makes less than her husband, her Facebook Page should not show her traveling to exotic locations. Even a picture of a shopping spree might sway the judge to rule against a temporary support request. Similarly, if one parent is under court order not to contact a child, that parent should not be using social media as a means of circumventing the order. Such messages will most certainly be used against the parent at the next custody hearing. Of course, the best way to address this issue is to avoid posting any picture or making any comments about one’s financial circumstances until after the divorce has been completed and all the assets have been divided.

Issue #3: Third Party Messages

The last issue is that social media such as Facebook allows third parties to engage or even harass the parties. During a divorce, friends and family members often feel compelled to choose a side, resulting in social media posts that can improperly influence a court case. Statements often range from outraged concern such as “how could you do this to her? She’s been nothing but good to you!” to outright threats, such as “if you don’t stop spreading these rumors, you’ll never see the kids again!” What can you do if (former) friends and family are sending harassing text messages or inappropriate Facebook postings about the divorce?

 In some instances, the best play might be to ignore them. The messages might be annoying, but other than being stressful, they can’t cause any real harm. Furthermore, family law judges have limited jurisdiction and cannot order a family member living three states away from doing anything. The second option might be to have your attorney send a threatening letter asking the person to stop the messages. The court might not be able to back up the letter, but in many instances the bluff is often enough to convince the family member or friend to stop. Finally, if the harassing party is in fact living in the state, the presiding judge can issue a restraining order ordering the offending party to cease and desist.

Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law

Obtaining a Restraining Order in Houston

A restraining order is a court order placed against a person. It instructs (requires) the individual to either do, or not do a specific action. There are typically for types court orders that are used in situations that involve domestic violence, stalking, harassment, and sexual assault.

In most instances you will need an attorney to file a restraining order . According to this LegalMatch Law Library Article “Kinds of Restraining Orders”:

“Civil law orders are obtained directly from a lawsuit brought by the victim against the defendant. The victim must file a complaint in court and go through hearings in order to obtain the order. It may be wise for the victim to obtain an attorney to ensure the process goes smoothly. Criminal law orders, on the other hand, are sought by district attorneys on behalf of the victims. The criminal law orders typically have more authority than civil law orders, so if a criminal law order and a civil law order conflict, the criminal law order will be the binding one.”

In Houston, one may file a protective restraining order with out the assistance of a Houston Lawyer by contacting the Houston Police Department Family Violence Unit - Protective Orders.

Divorcing Couples Continue to Battle Over Legal Issues Surrounding Frozen Embryos

Nearly 40 years ago, the world’s first IVF baby was conceived. For many couples, having a child on their own isn’t possible and turning to alternative methods of having a child is their saving grace.  The success rate of IVF procedures has increased over the past 30 years, from 10% to 30% with more than 65,000 births resulting from assisted reproduction, and with that increase in success comes an influx of couples wanting to complete the treatment. As these numbers continue to increase, so do the potential complexities and legal implications.

Certainly not the first, Risa Levine and her ex-husband are just one example of a couple that went through the IVF procedure and, before they could conceive a child, split up. The couple was left with 4 frozen embryos to dispute over in the resulting divorce. Levine wanted to keep the embryos, but her ex-husband wanted them destroyed.  Now, this isn’t your typical point of contention in a divorce proceeding and you may be wondering why this would even be an issue. A little history on the IVF process might be helpful.

In Vitro Fertilization (IVF) is a process in which eggs are extracted from a woman, manually fertilized with sperm in a laboratory dish (which creates an embryo), and then the embryo is transferred back to the female uterus. Embryos can be cryopreserved so they can be thawed and used at a later date.  Herein lies the issue for divorcing couples.  When you have a preserved embryo with the DNA of both spouses, what happens when one spouse doesn’t want to use it anymore? 

In this case, the ex-husband didn’t want a child out there, presumably, that would legally require him to pay child support. That seems like a pretty fair argument but, at the same time, the embryos were half Levine’s and she still wanted the chance to have a baby of her own. Levine eventually conceded to her ex’s wishes and the embryos were destroyed. 

Regulations Are Few and Far Between

What would have happened in court if Levine hadn’t agreed to destroy the embryos? Although it’s been around for nearly 40 years, it’s still a relatively new area that isn’t heavily regulated. Currently, Canada, France, Finland, Germany, and the UK are the only countries with laws and statutes covering the legal issues that surround fertility treatment.  

Here in the U.S., the federal government has removed discriminatory barriers to access IVF treatments, requires laboratories to be certified and to report their data to the CDC, and 5 states have laws that offer guidance in terms of donated embryos, but everything else is pretty much fair game. Many clinics require consent forms, but since most couples going through the IVF process plan to stay together, what happens to the embryos when the couple splits aren’t issues typically addressed.

So, again, where does that leave couples who spend thousands of dollars to go through the process of freezing their embryos and then wind up getting a divorce? The big question is, what exactly is an embryo?  Who owns them?  It’s not just a matter of a property question in terms of who it belongs to; it’s also a social issue. 

With Little Guidance from Legislation, Decisions Seem to Sway One Way Over Other

Levine isn’t alone. As more and more couples begin using IVF treatments, more issues are beginning to pop up surrounding embryonic custody once couples split up. These cases are gradually starting to make their way into the courts and they seem to be favoring one side over the other.

A Michigan judge ruled in favor of the husband in a similar situation and found that the husband, although the wife wanted to keep their embryos to possibly have more children, had a right not to have more children if he didn’t want to. In Washington, a couple formed embryos by using donor eggs with the husband’s sperm.  When they divorced, the husband wanted to donate the embryos to a couple outside their state for adoption, but the wife wanted to raise the children on her own. The court again, sided with the husband. Just last year, a California judge ruled in favor of a husband to destroy embryos because the couple had signed a binding contract with the clinic, which called for their disposal in the event of divorce. 

Although the majority of cases seem to favor towards the party wanting to destroy the embryos, a recent ruling shows just how split this topic is getting. Just this year, the U.S. Supreme Court refused to hear an appeal from an Illinois court, which ruled against Jacob Szafranski, who was trying to prevent his former girlfriend from using frozen embryos the two had created together during their relationship.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law