Divorce Lawyer: When There Is Domestic Abuse

divorce lawyer in cases of abuse

Divorce Lawyer: When There Is Domestic Abuse

 

It makes a lot of sense to hire a divorce lawyer if there is a real problem with abuse – spousal, child, sexual or substance abuse in the marriage.

 

In these situations, it may be impossible for the abused spouse to negotiate effectively: A lawyer can help arrange the necessary protection for an abused spouse and the children, if any.

It can also make sense to hire a lawyer if your spouse is being dishonest or vindictive and you just can’t cope with it. In that case, you may need someone to protect your interests.

Finally, it’s prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.

 

If you can’t afford a divorce lawyer, consider calling your local legal aid office.

 

If you qualify financially, a lawyer will (at a minimum) discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings while you represent yourself. Ask whether the legal aid office has a pro bono program. The office may have a list of private attorneys who are willing to take on cases referred by legal aid at little or no cost.

If you don’t qualify for legal services or pro bono help, you’ll have to shop around for someone to represent you.

 

If You Fear Violence

 

If you fear that your spouse might harm you or your children (or abscond with your property), take action immediately.

Move to a safe place, and, if necessary, get a temporary restraining order to keep your spouse away.

It’s very important that you also get a temporary order for custody of your children so that you’re not accused of kidnapping.

If you need money, you have the right to use your joint accounts. Take the amount of money you realistically need plus some extra for emergencies (but try not to take more than half of what’s there unless you absolutely have to), and immediately file an action in court for support.

 

Divorce is never an easy decision to make, but sometimes it’s necessary, especially in cases of abuse, as listed above. There’s a lot to do in order to get a divorce, including tons of paperwork and various procedural rules to follow.

It’s a good idea to hire an experienced divorce lawyer, like Attorney Mishak, who is familiar with the divorce process and can advocate on your behalf, both in and out of the courtroom, inevitably getting you the best result possible for your situation.


Divorce is hard.
Attorney Matthew Mishak simplifies it.
Contact him today.
440-678-0000


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FAQ: Child Custody and Divorce

If one parent moves out and leaves the kids with the other parent, does it hurt the moving parent’s chances of getting custody at a later date?

 

In a word, yes.

Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody at a later time it’s unwise to leave the children behind. The parent who leaves sends a message to the court that the other parent is a suitable choice for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children’s regular routines.

If a parent must leave the familial home (and wants to be the primary physical custodian), the moving parent should take the children along and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without that parent’s consent or knowledge.

Family law judges frown on a parent who removes the children from the home without seeking the court’s recognition. A judge may order that the children be returned to the family home, pending future proceedings to determine physical custody.

 

Are courts more likely to award custody to mothers than to fathers?

 

In the past, most states provided that custody of children of “tender years” (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children.

No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine child custody on the basis of what’s in the children’s best interests, without regard to the parent’s gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children’s daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what’s best for the children.

So if you think that you should have primary custody and that you can persuade the judge that it’s in the kids’ best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

 

Does child custody always go to just one parent?

 

No. Courts frequently award at least partial custody to both parents, called “joint custody.” Joint custody takes one of three forms:

  • joint physical custody (children spend a substantial amount of time with each parent)
  • joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
  • both joint legal and joint physical custody.

 

Are there special issues if a gay or lesbian parent is seeking child custody or visitation rights?

 

In a number of states, a parent’s sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.

As a practical matter, however, lesbian and gay parents — even in those states — may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent’s sexual orientation to deny custody or appropriate visitation.

If you are involved in a custody case and are concerned about bias against you because you are gay or lesbian, make sure you consult a lawyer about protecting your rights. 

 

Is race ever an issue in child custody or visitation decisions?

 

The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody.

In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the mother was awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision.

 

Who determines how much visitation is reasonable and fair?

 

When a court awards physical child custody to one parent and “reasonable” visitation to the other, the parent with physical custody is generally in the driver’s seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.

Unfortunately, it sometimes translates into little visitation time with the noncustodial parent, resulting in disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children.

 

Is mediation the best approach to solving disagreements about child custody?

 

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute.

The mediator does not have the power to impose a solution on the parties but assists them in creating an agreement of their own.

In some courts, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement. If you’re concerned about whether the mediation is confidential or whether the mediator will be reporting to the judge, find out how your court does things before you get started.

There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.

  • Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
  • Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
  • Mediation enhances communication between the parents and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

 

Original article on Nolo.com

 


Seeking a divorce and have questions?
Attorney Mishak can help you.
Contact him today.

 


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Facebook Divorce: Overview & Tips

Information found on popular social networking sites has given divorce lawyers new tools in their divorce toolkits.

 

Find out how Facebook and other sites are changing the legal landscape in divorce and child custody cases, and what you can do to protect yourself in the event of a Facebook divorce.

 

What is Facebook Divorce?

The term “Facebook divorce” refers to the increasing number of marital breakdowns that have occurred as a result of information found or discovered on social networking sites like Facebook, MySpace, and Twitter.

While social networking sites allow users to connect with old and new friends, they also create circumstances that may lead to a divorce or child custody battle. Moreover, social networking sites allow divorce lawyers to discover information they might not otherwise find using traditional methods of “discovery” (the process used to gather supporting facts and information in a case.)

In the recent past, the number of divorce lawyers who use Facebook and other social networking sites to uncover potentially damning evidence has grown. According to a 2010 survey by the American Association of Matrimony Lawyers (AAML), two-thirds of American lawyers say Facebook is the primary source of evidence used in divorce cases.

While there are no specific laws concerning the use of Facebook in divorce proceedings, the existing rules of evidence support the use of alternate forms of media to gather evidence, and this may include information found on social networking sites (via email, cell phone, or computer data retrieval, for example.)

 

What May Be Found on Facebook

There are several bits of divorce-related evidence that can be found on Facebook. Generally, a person’s overall history and whereabouts are just a mouse click away from public eyes – despite Facebook’s privacy settings (which are not always reliable.)

Furthermore, people often mistakenly believe that their actions online do not carry the same consequences as real-life events. For example, they may believe that online flirting is not the same as flirting in a bar. The reality, however, proves that what a person says or does online can have serious repercussions in a divorce or child custody case.

 

Below are examples of damning evidence that may be found on social networking sites, which may potentially be used against you in a “Facebook divorce” situation.

 

  • A friend “tags” a compromising photo of you drinking beer at a party or vacationing when you claim you have no time to see your children or dispute allegations of infidelity
  • Posts that refer to high-end purchases when you claim unemployment and money issues
  • Posts about your whereabouts that conflict with business trips or child visitation matters
  • Posts that suggests infidelity or deception, such as a Facebook status change to “single, but looking”
  • Keep in mind that even if the content on Facebook is deleted, it can later be retrieved by forensic experts and potentially used in court as evidence in divorce proceedings.

 

Facebook and Divorce: Legal Issues

Legal issues concerning the use of Facebook data in divorce proceedings varies. For instance, adultery is still grounds for divorce in some states and is defined in state laws as “the voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” In most adultery cases, direct proof is not required – based on the mere nature of secretive relationships. Adultery in a Facebook divorce situation, however, might be inferred through photos and information posted on Facebook.

Note that while evidence-worthy photos and information exchanged on Facebook on their own may not be grounds for divorce, but information combined with other forms of proof may create an undesirable outcome.

 

Tips for Facebook Users Facing a Divorce

 

  • Be careful what you post on Facebook.
  • Know that what you say or post may be used against you in court, and divorce lawyers use Facebook as a matter of fact when gathering evidence.
  • You do not own the content on Facebook. Facebook has the right to do certain things with your content even without your knowledge.
  • Even if you are savvy enough to not post certain photos and information on your Facebook page, other friends and family members may post something potentially damaging about you on their Facebook page.
  • Do no secretly access your spouse’s Facebook page hoping to find damaging information to use against him or her. Not only is it a violation of the law to access someone’s computer or electronic device you do not have permission to use, the information you may find may be inadmissible in court.
  • Finally, if you suspect adultery or other wrongdoing by your spouse found on Facebook, you may wish to hire a divorce lawyer in your area who can help answer any specific questions you may have.

 

Is Facebook a Factor in Your Divorce? Make Sure You Get Professional Legal Help

Even the most amicable divorce can be a profoundly stressful experience — especially in this age of social media and the unenviable “Facebook divorce.”

Attorney Mishak can safely guide you through the process to ensure your financial security and peace of mind. 

 


Divorce is hard.
Attorney Matthew Mishak simplifies it.
Contact him today.


 

Original article as seen on FindLaw


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