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DIVORCE
& CUSTODY
~
Avoiding Common Mistakes ~
Disclaimer: The information provided herein is for informational purposes only and not to be taken or presented as 'legal advice'. Due to the individual nature and circumstances of each individual case persons are advised to seek actual court appointed Facilitator, Paralegal or Attorney's services before taking action in their own case. This information is presented as guidance and suggestions concerning the issues at hand and not as binding legal counsel or representation in any way, shape or form.
THINGS TO KEEP IN MIND FROM THE START
It's what you don't know that can hurt you the most, especially when it comes to legal issues. Here are a few notes and tips to keep in mind as you deal with divorce, child support, harassment and other situations in court.
Be Organized.
Even if you are not usually the organizational type, be organized when it comes to your legal papers. For about five dollars you can get a plastic file folder to keep your papers in. At the very least get a packet of five, 9"x12" manila envelopes to keep your paperwork separated. Originals in one, copies in another, forms in another, current stuff in another, you get the idea. There's nothing worse than knowing you have a copy of your spouse's pay stubs, but can't find them to show the judge in court. The night before a court appearance check to see that you have papers involved, any supporting evidence such as copies of pay stubs, tax returns, vehicle registrations, proof of service sheets, police reports, etc.
Make Copies Of Everything.
If you fill out, mail, serve or receive anything.. make a copy and keep it in your 'Copies' folder just in case you need it for later. This can be a real time-saver if ever you fill out some forms that end up either lost in the clerk's files or get stained with coffee before you have a chance to file them.
Apply For A 'Fee Waiver' With The Court.
If you are unemployed or of low-income you may qualify for a fee waiver with the Clerk's Office. Fee's can range from $25 and up for various filings so you can save yourself some money by going to their Financial Assistance desk and getting the form to see if you qualify. If you do, any future filings you make with the court will be made free of charges or fees. This applies to filing fees, does not apply to a legal attorney however there are legal 'clinics' and workshops that will help you free of charge. You can inquire about these at the Clerk's Office as well.
Do Not Procrastinate.
If you know you need to file or serve some papers, do it. Don't wait until the last minute and then try to rush through it. Make use of your library if what you need is a quiet, neat place to concentrate on what you're doing. They have copy machines, typewriters, phone books and other reference items you'll find handy while you're there as well.
Find The Clerk's 'Help Desk'.
Each county usually has a separate office where you can ask for help on filling out forms or what forms you need to accomplish a certain task. These people are not allowed to give you legal advice, but they are there to guide you and answer questions you have about how the court system works, what to expect at your next hearing, paperwork you need to fill out and things along those lines. If you have a lot of questions about a certain issue, ask to have an appointment with a Facilitator. A facilitator can sit down with you and give you more attention on whatever motion or request you wish to make with the court and help you with filing it.
As a side note, never trust the other party as a source for legal advice or the restrictions of your rights. Unfortunately too many people will not file for custody, support or other items because they listen to misinformation given them by their spouses. If you have questions, go to the Facilitator, Help Desk or District Attorney (concerning issues of child support they will provide you with a free caseworker) and get your answers there.
Stay Focused.
If you are divorcing and there are -no- children involved, make it your main objective to part ways as peacefully as possible with property divided fairly. If you are divorcing and there -are- children involved, you main objective should be the safety of yourself, your children and securing future financial support for their needs.
Try not to get sucked in to the usual temptation of turning property into a battleground. Be willing to keep half and part with half. It will not always come out exact, but be willing to be fair without cheating you or the other party. The sooner you can find an agreement and finalize the divorce the sooner you can fully begin your life without the other party involved.
Keep A Notebook Handy.
A small notebook, big enough to keep note of dates and times relevant to your case. Write down your upcoming court date, when service dates must be met, instances of harassment or threats, etc.
Ask For Police Report Copies.
If you are harassed once the temporary restraining orders are in place, do not hesitate to call the police and ask that a report be made. Generally unless an arrest is made on a specific charge such as battery, assault, disturbing the peace, trespassing, etc., even if the police come and talk to the other party no report will be made. But if you have been hit or suffered vandalism to your property it is your right to request that charges be pressed and make request for a police report. Many times the police are too willing to dismiss such instances as a 'domestic dispute'. But if you have suffered an attack on your person, damage to property or sexual assault you will at least have grounds for a modified Restraining Order. (We'll discuss Restraining Orders and how to make full use of them in another article.)
Do Not Tolerate Abuse.
The Temporary Restraining Orders, or a full Restraining Order as a result of a motion, state that -peaceful- communication may be made by either party in regards to arranging child visitation. This may be done over the phone. If the other party can speak in a moderated, peaceful tone then there is no problem. But if you receive constant phone calls where no one speaks, or threats, arguing, yelling, berating, name-calling or any such harassment.. do not tolerate it by trying to reason with such a person. The moment you see that the communication does not qualify as being -peaceful in regards to arranging visitation- you have the right and responsibility to simply hang up the phone.
Do not argue, do not reason.. just hang up. If calls persist, simply lift the receiver and hang it back up. Don't sit and listen to threats or demeaning comments. Hang up. If it continues, change your number and be sure it is unlisted as well as having Caller-I.D. blocking. If at this point you do not have a Restraining Order, write down these instances and use them to justify before the court the need for one. If you have a Restraining Order in place do not hesitate to place a motion before the court that the other party is in violation of the judge's order concerning harassment.
If the other party shows up at your work, school or home uninvited and with intent to make you uncomfortable, state they must leave. If they do not, phone the police. Your rights only exist on paper until you take the action to own them. If you do not wish to be harassed with unwelcome visitation by the other party the police and courts are at your disposal to see that the peace is kept. But only if you call or motion these instances to their attention. Don't make the mistake of 'letting it go' until it escalates into a dangerous situation for your safety.
Speak Up In Court.
You never want to get into an argument with the judge, but you don't want to just sit there and let the other party make untrue statements without defending yourself either. If you disagree with something stated by the other party or have some other piece of information, don't hesitate to speak up. Don't knit-pick every statement made, but just try to keep a balanced presentation of the true situation to the judge so that a good decision can be made. If you have an attorney, whisper your comments to them and let them decide whether it needs to be brought before the court for consideration. If you are without an attorney usually a bit more license is granted in speaking on your own behalf.
Here is an example of a wrong and right way you might do this;
Let's say your children live with you and the other party has not visited them in the last six months.
The judge asks the other party, "How much time do you spend caring for the children?", and the response made is, "Fifty percent of the time, your honor." You however know this to be untrue.
The Wrong Response would be phrased, "(Looking at the other party) That is SO not true! Your honor, he's lying! He doesn't see the kids for nothing."
The Proper Response would be phrased, "(Looking at the judge, speaking in an even tone.) Actually, your honor.. the truth is not one request for making arrangements to see the kids has been made in all of the last six months."
You are saying the same thing, but with more emphasis on simply stating the facts rather than reacting negatively or losing composure. You want to speak to the judge, not to the other party. Your goal is to state the truth, not so much attack the other party.
Protect Your Finances.
If you share a joint account with your spouse, realize that the moment you separate one of the first things a vengeful mate may do is empty out your bank account. Legally there is very little you can do if this happens. Joint accounts are made with the allowance that either party may make withdrawals. Unless you have a lawyer who is skilled in getting judgments on this issue as part of the final marital settlement.. it would be wise to pull your half of the savings out and deposit it into a different bank under your sole name. If you have automatic payroll deposit, be sure to ask your employer for a form to have it transferred to your new account.
If you have either joint credit cards or think you may have left one of your credit cards where the other party might get hold of it.. call the 800 number (listed in the phone book White Pages) to get your credit card number put on hold until they can issue you a new card sent to a different address. If you have a joint checking account, call the bank and put the account on hold, stating the situation, so that any checks written will not be held against your future credit history for non-payment.
Keep Cancelled Checks & Money Order Receipts.
If you are the non-custodial parent and are voluntarily paying child support be sure to pay all child support with a personal check from your own account. When your cancelled checks return with your statement keep them in a single, safe place so that if ever you need proof that child support was in fact made you can present copies of the fulfilled checks. If the District Attorney has already begun garnishing your wages, keep your pay stubs so that you'll have proof that child support was with held from your check for the time in question.
Do not pay child support in cash. If an emergency arises and you are willing to give cash to help out your children, do not feel it too presumptuous to make out a receipt on a sheet of paper for the other party to sign. The sheet should have the date, amount given, and the fact that it is for child support and a place for their signature as having received that amount. Keep this in your records in case needed for future reference.
~Henry Velez / Copyright 1999; all rights reserved.
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