The goals of the litigation

There are several aspects to a family law case and several elements to be considered. What I am talking about here are the goals of the litigation. What you are fighting for? What it is that you asking the court to do? I will cover some key points using terminology that is used in the jurisdictions in which I currently practice (Georgia and Florida). This discussion will serve as a guide and a point of reference for you as you speak with your attorney and strategize concerning the goals for your case.

Divorce

Divorce is a concept that essentially means that the parties marriage contract is declared void or no longer in existence. In other words, post-divorce the parties will be considered separate legal entities, with no legal ties to each other.

There are generally several grounds for divorce. The primary ground is that the marriage is irretrievably broken, or that there are irreconcilable differences between the spouses. This is the ground usually characterized as a “no fault” divorce.

In most jurisdiction, you can get a divorce without the consent of the party. I recently had a case in which the opposing party (husband) absolutely refused to divorce his wife (my client). He filed motion after motion to “abate the divorce”; essentially, he wanted to force the wife into marriage counseling. He filed motions to require multiple mediations. To be certain, I am a believer in marriage counseling, reconciliation and mediation, but after suffering years of abuse and failed counseling attempts with her husband, my client was understandably and absolutely unwilling to consider further counseling and reconciliation. Ultimately, this abusive husband did not have a lawyer who was good enough to tell him he would not be successful in his attempts to stave off a divorce. In the words of the renowned United States Supreme Court Justice Oliver Wendel Holmes, “The best advice that some lawyers can give a man is that he has no case…and that he’s a damn fool for pursuing one.” This was just such a case. Ultimately, the husband only opened himself to liability for wife’s attorney fees for defending those frivolous motions. The moral of the story is that if your spouse wants a divorce, ultimately, he/she will get one.

Child Custody

Most states have shied away from the concept of “custody” in favor to the concept of “parenting time”. In other words, courts in most states like to define parenthood not in terms of who possesses a child, but in terms of the amount of time that a party spends parenting a child.

Parenting time will be defined by a parenting plan that identifies when a parent will have the child. In some states and in some counties, a child will presumably be with one parent one week, and the other parent the next week (also called “week-on/week-off”). Other states lean more toward the “non-custodial parent” spending every other weekend with the child. Regardless of the state, almost all states generally favor a split holiday or alternating holiday arrangement.

For purposes of your case, you should focus on who is designated as the “final decision maker” or who is designated as the “residential parent” for purposes of education. I generally find that in today’s world, the parent who holds the majority of power as it relates to education of the child has greater control over child as compared to the other parent. While parties are still required to confer with one another on all major decisions affecting the child, the parent designated as “primary custodian” or “parenting time most of the time” or “the educational guardian” or “the residential parent”, is the parent who has the most say over the child. Therefore, ask your attorney about these designations in your state, and pay careful attention to which designation gives you the most say in education. That will probably be your best option.

Child Support

Child support in most states has become very formula-driven…but the devil is in the details. While there are child support calculators online, a good lawyer can help you tweak the numbers and the data to get you the best possible result in terms of support.

For instance, the father’s income may literally be $2,000 per month, but if the father has a medical degree and a license to practice medicine, then he is grossly underemployed. A good lawyer can persuade the judge to “impute” additional income to the father for purposes of calculating child support.

In a recent case, I helped a mother obtain a significant increase over guideline child support by demonstrating that the father had an income earning capacity far over that which he currently reported. I showed evidence of his previous years of income, and I showed that he lost his high paying job due to his own misconduct. The judge ultimately added $2,000 per month to the father’s income and gave mother several hundred dollars more in support each month over that which guideline support.

There are other amounts that enter into the equation that can be used to reduce or increase the child support guideline amount. Child care expenses should be considered when calculating child support. Extended parenting time exercised by the paying spouse can decrease child support. Health care insurance premiums paid by the child support obligor should be considered in the child support calculations. There are even some little used factors such as the alimony, child tax credit, earned income credit, tax refunds, and other government benefits that should be considered when determining a parent’s income.

Alimony

Alimony is also called spousal support. Alimony is generally not controlled by formula but is left to the discretion of the trial judge, who considers the paying spouse’s ability to pay and the receiving spouse’s need for the support. Even if state law does eventually move to a formula for calculating alimony, I believe that the paying spouse’s ability to pay and the need of the receiving spouse will continue to be key elements in determining alimony.

As a practical matter, what this means is that if you are the spouse who traditionally made the lion share of the money during the marriage, then you have an exposure for spousal support. Your goal then should be to show that your post-divorce financial obligations (i.e. marital debt, child support, tax obligations, etc.) eliminates your available resources to pay alimony. You may also argue that your spouse’s post-divorce resources are sufficient to satisfy her monthly financial needs. If the receiving spouse has a large lump sum of money from the divorce settlement, then she may not need monthly support.

I recently had a case in which wife had a trust fund from her late uncle. Although husband was not entitled to any of the trust fund as “marital property”, I did persuade the court that the trust fund made it unnecessary for husband to pay wife the alimony that she was seeking. I successfully argued that her entitlement to funds from the trust was more secure than husband’s employment and future job opportunities. I also showed that the trust fund paid her more than she needed each month to live.

While need and ability to pay may be considerations, marital misconduct can also be used to increase the paying spouse’s liability or eliminate the receiving spouse’s claim. Recently, I was able to overcome wife’s claim for alimony against her husband, who was a successful medical doctor. Even though her husband was very wealthy, I was able to show that the wife had engaged in an extramarital affair that resulted in the demise of the parties’ marriage. Therefore, her claim for alimony was successfully defeated. In essence, alimony is a complicated subject that requires careful legal analysis from a seasoned, quality lawyer. The arguments for and against spousal support are limitless, and the availability, structure, amount, and duration of spousal support is largely driven by legal custom, the judge, and the conduct of the parties leading up to divorce.

Distribution of Marital Assets & Liabilities

There are generally two types of states—equitable distribution states and community property states. Community property states simply divide everything the parties have in half—which is probably an overly simplistic statement but will serve for purposes of discussion. In equitable distribution states, the court will seek to do “equity”, or fairness, in distributing marital property to the parties. While most states incorporate elements of both into their law, the jurisdictions in which I practice (Georgia and Florida) are generally characterized as equitable distribution states, which represents the majority of states.

In equitable distribution states, the first step in the analysis is to determine what property is marital and what property is non-marital (also called pre-marital). Marital property is generally that which was acquired during the marriage…and generally through the joint efforts or resources of the parties. Now that question can be a lot more complex than it appears at first glance. Is the $100,000 per year women’s cosmetic business, which was started by wife during the marriage, marital property? Well, if the inventory was acquired with marital funds, then it probably is. But if the inventory was acquired using wife’s inheritance from her late uncle’s estate, and if wife built that business in the evenings after she got home from work, and if she did not rely on husband to watch the children while she was out working her business, then she may have a good argument that her business is not marital property subject to distribution. She will probably be awarded all of that business and the benefits that derive from it.

Another common scenario is represented by a case that I recently won. Wife had a home that she acquired prior to the marriage. Both husband and wife had their own high-paying jobs, and wife always paid the mortgage on the home out of her bank account. Nonetheless, I artfully and successfully argued that husband paid the taxes on the home out of his account, that he paid the utilities on the home out of his account, and that he improved the home with his “sweat equity” by adding carpet, cabinetry and deck repairs. The judge determined that he was entitled to a portion of the equity in the “pre-martial” home and awarded him 40% of that equity.

A couple of considerations to keep in mind—although you have your separate money/stuff/debt and she has her separate money/stuff/debt, a court generally considers you as a single legal entity while married. A court considers that husband may not have been able to build that business with his own money and efforts if the wife was not at home caring for the children while husband went to work. Likewise, a court may be persuaded that wife’s “non-marital” inheritance grew in value through husband’s wise investment of that money or his efforts in improving the real property that wife inherited.

Equitable distribution of marital debt is a similar analysis. However, in equitable distribution states, a judge may order the party who makes the most money to take most of the debt. The court may also allocate debt to the party that keeps the property associated with that debt. In other words, the party that gets the family sedan will likely pay the debt associated with that sedan.

So, there are arguments within arguments as it relates to what property/debt is considered marital. The general overriding question is, “What was acquired during the marriage?” and, “How that property was acquired and used during the marriage?” Your attorney should help you navigate the nuances of the equitable distribution question.

Attorney Fees

An award of attorney fees is generally in the discretion of the trial judge. Generally, a trial judge will consider the relative incomes of the parties. Often the trial judge will award attorney fees to the spouse that has a much lower income than the other spouse. As covered earlier, however, attorneys will usually collect their fees upfront. In most states, it is impermissible (and can subject an attorney to disciplinary action by the state bar) in most family law cases to agree to collect fees only if the judge orders fees from the opposing party. That would generally be a prohibited contingency fee on a family law case. Likewise, an attorney also cannot say, “I will take my fees when you are awarded money in your family law case.” That too would be a prohibited contingency fee agreement.

One exception to that rule is the collection of arrearage. If you have been previously awarded child support or alimony (or really any money or property), and the other party has failed to pay that, then (and usually only then) can an attorney agree to take a cut of what that attorney recovers. That enforcement action to collect this arrearage is generally referred to as a contempt or enforcement action.

I once represented Mary, who had difficulty collecting alimony from her husband. She was destitute when she came to me for help. As it turns out, Mary’s ex-husband owed more than $50,000 in alimony arrears. When I took her case, I did an investigation and tracked him down. He was a chief financial officer for a successful manufacturing company with a six-digit income. Needless to say, Mary got paid…and I did too. In fact, the judge even added attorney fees incurred in the collection action to the amount of the arrearage. So, Mary was very happy.

Ask your attorney about an attorney fee claim. You may find that you have a good case to collect attorney fees.

Legitimation/Paternity

Generally, when a child is born out of wedlock, that child is considered “illegitimate” by state law. In other words, the father has little or no rights until that father legitimates the child. Some fathers have come to me thinking that they have rights because they pay child support. However, paying child support does not convey legitimation rights to the father. In essence, a father may pay child support and still have no right to visitation, decision-making or any other rights or benefits regarding the child until the father has been declared the legitimate father of the child in a legitimation action.

Some fathers believe that if they signed the birth certificate or if the child has the father’s last name then the child has been legitimated. That is not necessarily the case. While some states provide for an “administrative legitimation” by signing a birth certificate, this usually does little more than make it easier to prove legitimation in a later court action. Even states that recognize “administrative legitimation” (Georgia and Florida do not), as a practical matter, there is very little if any benefit at all to administrative legitimation without a formal court action.

In summary, if you are seeking rights to your child who was born out of wedlock, then you really need to consult a good family law attorney. You may be entitled to have custody and parenting time of your child, and to even have the child’s last name changed. In fact, the longer you wait the more risk you run to permanently losing rights to your child…and a court permitting someone else to adopt your child. Therefore, do not delay if you are in this situation.

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