South Carolina Family Law Blog : Spartanburg Divorce Lawyer & Attorney : Turnipseed, Brannon & Stevens Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

Some people choose to spend a lot of time, effort, and money fighting over personal property.  However, as experienced family law attorneys know, there is a better way to handle those issues.  The following post explains a common sense approach to dividing personal property in a divorce (or separation) case:

The division of personal property in a divorce can be one of the most expensive, emotional, and wasteful parts of a case. Parties will often spend thousands of dollars arguing over a very inexpensive piece of personal property.

Personal property, meaning furniture, art, family photos, pets, and other general property, in a divorce is treated no differently than the division of other assets. A dollar value figure is placed on the property and the allocation of property is dealt with as part of the general division of assets and debts. For example, if all of the personal property is worth $20,000 and one party takes all of it, they would owe the other party $10,000 as either a cash payment or out of the division of some other asset or by taking on a similar amount of debt.

The better way to deal with the division is for the parties to agree on who takes what piece of furniture and not assign a dollar figure to anything. This can be more complicated with valuable artwork. Family photos are generally given to one party with the other party having an option to make copies.

If there is a clear dispute over which property each party wants, the easiest method is to have the personal property appraised. The appraiser will make a list of all property and assign dollar values to each piece and then the judge can make a determination of how it is divided.

Some property is not included as a marital asset. Generally this happens with jewelry or other clear gifts that were intended to be given to the other party and not shared. In that case, there will be no offset and the property will go to the party whom received the gift. One example is that a wedding ring always stays with the party who received it.

Source: "How to Divide Personal Property in a Divorce" by Daniel Margolin, posted at The Oregon Divorce Blog.

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There is no substitute for planning, and planning for your divorce can make the process go smother, lower your lawyers fees, and help ensure you emerge on the other end of the case ready to move forward, and with the least amount of emotional and financial damage.  The following “Top 10 things to do if you are going to get divorced” is from The Oregon Divorce Blog for those considering divorce:

1. Consider your other options: While not appropriate in every case, consider if you really want to be divorced. If not, talk to a marriage counselor or other professional who can explore saving your marriage. If the process works, great! If the process does not work, you can at least get help discovering what went wrong, how to cope, and how best to move on.
2. Consult with and retain a family law attorney: Clients often make strategic mistakes prior to filing. For example, moving out of the family home, even briefly, can impact a custody and parenting time case. We blogged about the difference between consulting a lawyer and retaining a lawyer before. Make sure you at least consult so you know your rights, and how to avoid shooting yourself in the foot.
3. Copy documents: Your case will be smoother and your fees lower if you have a copy of all essential documents to provide to your lawyer. Obtain copies of pay stubs, tax returns, retirement account statements, bank statements, car and boat titles, real estate documents, insurance polices, etc. If you or your spouse uses financial software to track expenses, save a copy of the file.
4. Inventory your personal property: Go room to room and make a list of major items of value. You do not need to inventory every muffin tin, but you may end up out of the house for a period of months while the case progresses, and you may forget what is there.
5. Get a copy of your credit reports: Getting a credit report is very useful in identifying debt, accounts, and what accounts are open and closed. Pull a copy of your report from each of the three credit bureaus or a tri-merge report and your lawyer will thank you.
6. Establish your own credit and source of funds: If you do not have credit in your own name, apply for them and get several. You will need to establish your own separate credit history, and do not want to be in the position of having your access to funds cut off. If there is a joint cash account, consider splitting it and transferring ½ to a separate account in your sole name.
7. Keep the kids out of it: Getting ready for a divorce can take lots of time and energy. Make sure the kids don’t suffer any more than necessary by making them the first priority. Do not put them in the middle. Do not argue in front of them. Do not badmouth your spouse in front of the kids. Keep their routines as normal as you can. Stay connected (or get connected) to their activities at school and after school. Courts take a dim view parents that put kids in the middle of the conflict. Just don’t do it.
8. Know your finances: Make sure you know what you make and are capable of making, what your spouse makes and is capable of making, and where the money goes each month. What are the credit cards? How much is owed? Where are the retirement accounts? Can you earn enough in your current job or will you need your spouse to support you for a period of time? If your job involves travel, will you need a different job without travel if you don’t have a spouse to watch the kids while you are gone? The more you know about the finances the easier it will be to communicate with your lawyer. Knowing the finances and having a plan helps put you in the best position after the divorce is over.
9. Manage debt: This could be the worst time to increase your debt level. Unless your lawyer tells you otherwise, don’t make major purchases. Don’t go on shopping sprees. Some lawyers advise their clients to contact joint creditors and have accounts closed, or limits reduced to prevent the accumulation of new debt during the divorce.
10. Take care of yourself: Divorce can be a very stressful experience. Take care of yourself, even before anyone files. Work out. Find a support group, either through your friends or a formal divorce support group. Consider getting counseling. Many clients choose to get into counseling to help with the process, and report back that it was helpful.

Source:  "10 Things To Do If You Are Going To Get Divorced" by C. Sean Stephens, published at The Oregon Divorce Blog.

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Birthdays and holidays can be especially problematic for newly divorced parents who share custody of their children. Naturally, it will take some time for your family to adjust to the new parenting arrangement. Avoiding confusion, ambiguity and the resulting conflict is essential to maintaining healthy relationship with your children. Emily Doskow at Nolo has written an excellent article outlining 10 tips for recently divorced parents seeking to enjoy holidays without conflict and disappointment.

1. Be Flexible

Where your children are concerned, the best present you can give your child is to head off conflict about special days like birthdays and holidays. The collaborative rule for you in this situation is adjust your agreements to fit your kid’s needs.

For example, if the kids express a strong desire to spend a holidays or birthday with your ex, understand the importance of allowing them to do just that, regardless of whose time it is “officially.”

2. Be Proactive and Plan Ahead

Always keep in mind that your new family arrangements require much more planning than when everyone was living under the same roof. One way to avoid disappointment is to communicate early and often with the children and your ex. Give your children’s mom plenty of time to think about your proposals and to respond. And keep in mind that pushiness usually produces more resistance than cooperation.

3. Be Kind and Generous

Especially during holidays, keep any bitterness you still feel over the divorce between you and your ex. If you can’t say anything nice, just smile. Avoid putting the children in the awkward position of taking sides. Be as generous as you can with your kids about their relationships with their ex and the rest of the family. Encourage them to talk about the gifts they received and activities they engaged in with other family members they see over the holidays. Let them know they can show happiness with both parents. Help your children shop for the other parent, as well as their sibling, grandparent, or stepparent.

4. Keep Your Word

Be particularly careful to follow through on whatever promises you make related to the holidays. It’s extra important to keep promises to your kids around holiday times — the holidays are a big deal for kids.

5. Include the Kids In Your Planning

Whenever it’s reasonable, let your children help make the choices about when and where to celebrate the holidays, and with whom. But before asking their opinions, make it clear that all plans must be cleared with everybody involved. This will help teach your kids to be part of the collaboration between you and your ex.

6. Create Two Holidays or Birthdays

Having two holiday or birthday celebrations for the children — one at your house, one at Mom’s — is often a positive solution for extended families. Just make sure that the plans you make are collaborative and that they are made well in advance. This arrangement reinforces for the kids that they have two homes and cements new family rituals and holiday customs.

7. Avoid the Indulgence Trap

Many divorced parents, especially dads, are still reeling from their personal hurt and guilt over the divorce. They may be overwhelmed by these feelings and respond to the children’s pain with too much money or too many gifts. Try to stay away from this unhealthy dynamic with your kids.

8. Take Care of Yourself If You’re Alone

Holiday time can trigger a resurgence of memories and melancholy feelings, especially if you are surrounded by couples and families. As holidays or birthdays approach, if you know you’re not going to get to see your kids, be sure to make your own special plans for the day.

9. Build New Family Traditions

Divorced parents, especially dads, often make the mistake of trying to duplicate exactly the pre-divorce family traditions. But you’ll be much happier and more satisfied if you create your own traditions for your new family.

10. Nurture Your Blended Family at the Holidays

If you remarry or get into a committed relationship and your new partner has children, they will undoubtedly have their own ideas about how to celebrate holidays and birthdays. Discuss with your new partner ways that you can bring together the children from both sides of the family, and get all the kids involved with planning what you’ll do together and incorporating everyone’s traditions.

Birthdays and holidays are special times for you and your kids. Communicate clearly and stay calm and flexible, and your extended family will have something to celebrate.

Source:  "10 Tips for Divorced Parents" by Hugh W. Barrow, published at the Kentucky Family Law Blog.

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Cheating spouses now have one more way to get caught in their philandering.  Electronic toll collection systems are emerging as a powerful means of proving infidelity.  Attorneys can obtain records from these services and use that information to prove that a spouse was not where he/she claimed to be. 

The Associated Press reports that agencies in seven of the twelve states surveyed indicated that they would provide electronic toll information in response to court orders in criminal and civil cases, including divorces.  Even if the state agency refuses to provide the information, it can frequently be obtained from the other spouse through the normal discovery process.

Source:  "Toll Records Trip Up Philanderers" by Chris Newmarker, published at The Huffington Post.

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What happens when one parent wants to change custody after there is already an existing child custody order?  I have received several inquiries on this topic recently, which is very common this time of year, since school resumes in a few weeks.

In these cases, the parent wanting the change has basically two options, depending on the circumstances of each particular case:

• If both parents agree that custody should be changed from parent A to parent B, the best solution is usually to pursue a child custody agreement.  This process generally involves having an attorney draft a written agreement, which both parents then review.  If it meets with everyone's approval, the parents then sign it, and a hearing is scheduled to ask the Court to approve the agreement.  An Order is issued, which incorporates the agreement into it and most importantly, makes it enforcible if either parent attempts to violate its terms.
• If the parents do not agree, then the non-custodial parent will need to file an action asking the Family Court to change custody of the child.  Typically, the parent seeking custody must prove that there has been a significant or substantial change of circumstances since the parties were last before the Court on this issue.  Next, the Court must determine if the change of custody is in the best interest of the child.  As I have discussed previously on this blog, the Court takes many factors into consideration as part of its analysis, including the child's preference.

Of course, as I noted above, child custody cases are very fact specific, and each case is different.  If you are facing this situation, the best thing you can do for yourself and your child is to seek the advice of an experienced, qualified family law attorney who can help you analyze your case and determine what steps, if any, you should take.

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A psychological (or de facto) parent  can be defined as a person who has, on a day-to-day basis, undertaken a parental role through interaction, companionship, interplay, and mutuality, that fulfills a child’s physical and psychological needs and provides for a child’s emotional and financial support.

South Carolina has adopted a four-prong test for determining whether a person has become a psychological parent.  Specifically, in order to demonstrate the existence of a psychological parent-child relationship, one must show:

1. that the biological or adoptive parent(s) consented to, and fostered, the person's formation and establishment of a parent-like relationship with the child;
2. that the person and the child lived together in the same household;
3. that the person assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
4. that the person has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

In announcing this test, the Court of Appeals stated that [t]hese four factors ensure that a nonparent’s eligibility for psychological parent status will be strictly limited.  It also cautioned that psychological parents do not automatically have the right to demand custody in a dispute between the legal parent and psychological parent, as the limited right of the psychological parent cannot usually overcome the legal parent’s right to control the upbringing of his or her child.

The Court reasoned that once the bond between the psychological parent and child was established, it should not be unilaterally severed by the biological parent who fostered the relationship in the first place.  The standard to be applied is whether compelling circumstances exist to overcome the presumption that a fit, legal parent acts in the child’s best interest, and of course, visitation must actually be in the child’s best interest. The compelling circumstances standard encompasses a situation where, as here, a third party has attained psychological parent status.

You can read much more about the role and status of psychological parents in South Carolina in Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App. 2006).  This opinion includes a thorough discussion of this theory, including analysis of the decisions from other states.

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Reasons to consider filing your taxes separately from your spouse:

• You don't trust your ex. When you sign a joint return, you can be equally liable for all taxes, penalties and interest owed. If your ex-spouse doesn't pay, the IRS can come after you for the whole amount.  However, you might be able to claim innocent spouse relief if your spouse greatly understated his or her income and you had no way of knowing that when you signed the return.
  
• Your ex owes back taxes, back child support from a former marriage or has defaulted on federal student loans. If you file jointly under such circumstances, any refund you may be entitled to may be put toward your ex-spouse's debts.
• One of you has a low income but very high deductions. In this case, it may make more financial sense to file separately.

If you file separately, you forfeit the following credits and deductions:

• Earned income tax credit (EITC)
• Child and dependent care credit
• Adoption expenses credit
• Hope and lifetime education credits
• Qualified tuition deduction
• Student loan interest deduction
• Ability to deduce some of your Social Security benefits

The following factors determine which parent gets to claim the children as dependents on his/her tax returns:

• Unless there is an agreement or order stating otherwise, the custodial parent – that is, the parent with whom the child lives -- normally takes the dependency exemption when you file separately.
• The custodial parent can sign a formal release enabling the non-custodial parent to claim the child.  This often makes sense if the noncustodial parent earned the most income during the year.
  
• The dependency exemption cannot be divided, even if the children lived with each parent one-half of the year. Only one parent can claim the exemption for each child.
• Unlike with alimony payments, child support payments are not deductible to the parent who makes them, nor is it treated as taxable income of the parent who receives them.

Even if you decide to file separately from your spouse, you must still cooperate with him/her for these tax issues, for the following reasons:

• You must put your spouse's name and Social Security number on your return, so the IRS can match up both your returns to see if there are any discrepancies.
• You either both have to itemize or you both have to take the standard deduction.
• If you do itemize, coordinate who takes which deductions that you normally would have taken together as a couple.
• If you file jointly, decide before filing your return just how you'll divvy up the refund or the tax bill, and consider put any such agreement in writing or make it part of a court order.

Source:  "Recently Split? Avoid Costly Tax Mistakes" by Jeanne Sahadi, published at CNNMoney.com.

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A mother who lost custody of her three children in a divorce has argued to the Washington Supreme Court that she should have had an attorney appointed to represent her.  The woman, who only has a ninth-grade education, attempted to get pro bono representation, but she was declined because of the complexity of her case.  As a result, she ended up representing herself, while her husband had an attorney.

Her appeal focuses on the open courts provision of the Washington state constitution includes an open courts provision, which says that justice in all cases should be administered openly, and justice shouldn’t be delayed.  The argument being made by the mother's appellate attorney is that "access" in this instance means "meaningful access," which requires a lawyer.

You can read much more about this novel theory in the article referenced below.  You can also follow this case, King v. King, No. 57831-6-1, at the Washington Supreme Court's website.

Source:  "Mom Wants State to Pay in Custody Battle" by Stephanie Francis Ward, published in the ABA Journal eReport.

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Too often in child custody cases, children are asked the following questions or subjected to these comments:

• "Who do you love more? 'Mommy' or 'Daddy?'"
• "Was mom's boyfriend there?"
• "Your father is always late on payments."

Children should never be put in the position of having to deal with "adult" issues.  Just because their parents can't get along, their childhood should not be ruined by such inappropriate conduct. 

Some judges require feuding parents to attend parenting classes to attempt to resolve (or sometimes prevent) such problems.  These classes vary widely in their format, but they generally aim to teach parents how to deal with each other while protecting their children and also to make parents realize how their actions can affect their children.

Even celebrities can benefit from these classes, as evidenced by the ugly child custody battle between Chicago Bear Brian Urlacher and his former lover.  Both parents in that case were ordered to attend a four-hour parenting class to help deal with the problems in their case.

Source:  "Urlacher Custody Judge: Take a Class" by Rummana Hussain, published at The Herald News.

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For many people, conceiving a child is easy, but figuring out who should pay child support for that child can be complicated.  In South Carolina, if a child is born during a marriage, the husband is presumed to be the legal father of that child.  If the wife had an adulterous affair, the husband will need to bring add her lover as a party to the Family Court case so that the lover can be declared the legal father of that child.  Should the husband fail to do so, he could be stuck with all of the financial responsibility for that child, even though it isn't his biological child.

The National Center for Health Statistics reports that more than a third of children born in the United States are born to unwed parents.  The alleged father may (or may not) be the biological father, depending on the mother's sexual activity.  When one of my clients is alleged to be the father of a child, I typically recommend that he have a DNA paternity test conducted to be sure that the child really is his.

AskMen.com reports that there has even been a group founded to deal with such issues:  U.S. Citizens Against Paternity Fraud.  Its founder, Carnell Smith, has even proposed mandatory DNA testing upon the birth of a child, because, as he claims, “it's not a crime for someone to lie about which man is the father… [and] the mother doesn't have to return the money and rarely, if ever, is she prosecuted for perjury, for fraud."

I don't know that I would go as far as Mr. Smith has suggested, but I do believe that every child should have the right to know and have a relationship with his/her parents, as long as those parents act reasonably and responsibly.  What do you think about his proposal?

Source:  "Child Support When It's Not Yours" published at AskMen.com.

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Yes. Child support should not be confused with custody and visitation. Every parent has an obligation to support his or her children. With one narrow exception, no state allows a parent to withhold support because of disputes over visitation. The exception? If the custodial parent disappears for a lengthy period so that no visitation is possible, a few courts have ruled that the noncustodial parent's duty to pay child support may be considered temporarily suspended.

No matter what the circumstances, if you believe that your ex is interfering with your visitation rights, the appropriate remedy is to go back to court to have your rights enforced rather than to stop making support payments.

Copyright 2005 Nolo

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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 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.

Copyright 2005 Nolo

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Judges in most states are prohibited by law from retroactively modifying a child support obligation. This means if a person becomes unable to pay support, he or she may petition the court for a reduction, but, even if the court reduces future payments, it will most likely hold the parent liable for the full amount of support owed at the time. For this reason, if a parent with a child support obligation starts falling behind because the parent's income has decreased or debts have increased, the parent should immediately seek a temporary modification.

For example, let's say Joe has a child support obligation of $300 per month. Joe is laid off of his job, and six months pass before he finds another one with comparable pay. Although Joe could have sought a temporary decrease on the grounds of diminished income, he lets the matter slide and fails to pay any support during the six-month period. Joe's ex-wife later brings Joe into court to collect the $1,800 arrearage. Joe cannot obtain a retroactive ruling excusing him from making the earlier payments.

Copyright 2005 Nolo

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Divorce mediation is a process in which divorcing spouses try to negotiate an acceptable divorce agreement with the help of a neutral third party: the mediator. The mediator helps the spouses to communicate and negotiate but doesn't make any decisions for them.

Both mediation and arbitration involve a neutral third party who is not a judge. In mediation, the neutral party has no power to make decisions. In arbitration, the neutral third party -- the arbitrator -- listens to the facts and then decides the case, just as a judge would. Although the parties can present evidence and make arguments, they have no say in the final decision.

Copyright 2005 Nolo

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If you haven't been together long and don't own much, it's really not necessary to make a written agreement. But the longer you live together, the more important it is to prepare a written contract making it clear who owns what -- especially if you begin to accumulate a lot of property. And, if you buy a house together, it's a good idea to create a property agreement.

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Make rules about nonfinancial matters. For practical reasons, you should keep personal agreements out of your prenup. Here is a partial list of nonfinancial matters that sometimes find their way into prenups, but are better dealt with separately. Of course, the possible issues are endless and you may well think of many that aren't mentioned here:

* responsibility for household chores -- from laundry to cleaning to car care
* use of last names after you marry
* agreements about having and raising children, such as birth control, having children, children's names, child care responsibilities, and education
* how you will relate to in-laws or stepchildren, and
* whether you will have any pets and who will be responsible for them.

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"Encourage" divorce.

At one time, many courts viewed any prenup specifying how things would be divided up in case the couple splits as void and unenforceable because it promoted divorce. The modern approach allows such agreements, but judges in some states still take a hard look at them. If the agreement appears to offer a financial incentive for divorce to one party, it may be set aside.

Copyright © 2006 Nolo

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Give up the right to alimony, in a few states. A handful of states similarly limit your ability to give up your right to alimony -- also called spousal support or separate maintenance -- if there is a divorce. Other states permit such waivers, so you will need to know what your state laws say if you are considering this kind of agreement.(You can find the law for your state in Nolo's book, Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner, Attorney-Mediator and Shae Irving, J.D.)

Copyright © 2006 Nolo

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There are some things you just can't -- or shouldn't -- do with a prenup. State laws differ as to what matters are considered off-limits. However, as a general rule, any agreement to do something that is illegal or against state-defined public policy will be considered unenforceable -- and may even jeopardize other valid aspects of the premarital agreement. Here are some things that you can't do, at least in some states:

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In addition to the reasons listed so far, there are countless other uses for a prenup, depending on your circumstances. Here are some examples of other matters people include in their prenups:

• whether to file joint or separate income tax returns or to allocate income and tax deductions on separate tax returns
• who will pay the household bills -- and how
• whether to have joint bank accounts and, if so, how you will manage them
• agreements about specific purchases or projects, such as buying a house together or starting up a business
• how you will handle credit card charges -- for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments
• agreements to set aside money for savings
• agreements for putting each other through college or professional school
• whether you will provide for a surviving spouse -- for example, in your estate plan or with life insurance coverage, and
• how to settle any future disagreements -- for example, you might agree to hire either a mediator or a private arbitrator.

Copyright © 2006 Nolo

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Define who gets what if you divorce.

Without a prenup, state law will specify how your property will be divided if you ever divorce. These laws may dictate a result that neither of you wants. You can use a prenup to establish your own rules for property division and avoid potential disagreements in the event of a divorce. In most states, you can also make agreements about whether or not one or both of you will be entitled to alimony. Some states forbid or restrict agreements about alimony, however. That will be discussed soon on what you "can't" do with a prenup.

Copyright © 2006 Nolo

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Keep property in the family.

If your property includes something you want to keep in your birth family, whether it be an heirloom or a share in a family business, you and your spouse can agree that it will remain in your family, and you can specify that item in your prenup. This can even include property that you expect to receive in a future inheritance.

Copyright © 2006 Nolo

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Provide for children from prior marriages. A prenup is helpful (perhaps essential) if either of you has children from another relationship and you want to make sure that your children inherit their share of your property. In a prenup, one or both spouses can give up the right to claim a share of the other's property at death, perhaps in exchange for an agreed upon amount of property.

Copyright © 2006 Nolo

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Protect each other from debts. Some of us bring debts, as well as assets, to a marriage. If there's no prenup, creditors can sometimes turn to marital or community property to satisfy the debts of just one spouse. But if you want to make sure that saying "I do" does not mean saying "I owe," you can use a prenup to limit your liability for each other's debts.

Copyright © 2006 Nolo

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Prenuptial agreements are most often used for the following puposes, this week, the first reason:

Keep finances separate. Every state has laws designating certain kinds of assets accumulated during marriage as marital property or community property, even if these assets are held in the name of just one spouse. If a couple divorces, or when one spouse dies, the marital or community property will be divided between them, either by agreement or by a court. If you want to avoid having some or all of your individual accumulations during marriage divided up by a court, you can do so with a premarital agreement.

Copyright © 2006 Nolo

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A doctrine that grants the spouse least at fault a divorce when both spouses have shown grounds for divorce. It is a response to an old common-law rule that prevented a divorce when both spouses were at fault.

Copyright © 2006 Nolo

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A purchased policy that pays a fixed amount of benefits every year -- although most annuities actually pay monthly -- for the life of the person who is entitled to those benefits. In a simple life annuity, when the person receiving the annuity dies, the benefits stop; there is no final lump sum payment and no provision to pay benefits to a spouse or other survivor. A continuous annuity pays monthly installments for the life of the retired worker, and also provides a smaller continuing annuity for the worker's spouse or other survivor after the worker's death. A joint and survivor annuity pays monthly benefits as long as the retired worker is alive, and then continues to pay the worker's spouse for life.

Copyright © 2005 Nolo

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The act of freeing someone from restraint or bondage. For example, on January 1, 1863, slaves in the confederate states were declared free by an executive order of President Lincoln, known as the "Emancipation Proclamation." After the Civil War, this emancipation was extended to the entire country and made law by the ratification of the thirteenth amendment to the Constitution. Nowadays, emancipation refers to the point at which a child is free from parental control. It occurs when the child's parents no longer perform their parental duties and surrender their rights to the care, custody and earnings of their minor child. Emancipation may be the result of a voluntary agreement between the parents and child, or it may be implied from their acts and ongoing conduct. For example, a child who leaves her parents' home and becomes entirely self-supporting without their objection is considered emancipated, while a child who goes to stay with a friend or relative and gets a part-time job is not. Emancipation may also occur when a minor child marries or enters the military.

Copyright © 2005 Nolo

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A divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.

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"Tenancy in Common" is a way two or more people can own property together. Each can leave his or her interest upon death to beneficiaries of his choosing instead of to the other owners, as is required with joint tenancy. In some states, two people are presumed to own property as tenants in common unless they've agreed otherwise in writing.

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A special kind of property ownership that's only for married couples. Both spouses have the right to enjoy the entire property, and when one spouse dies, the surviving spouse gets title to the property (called a right of survivorship). It is similar to joint tenancy, but it is available in only about half the states.

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A divorce obtained in a different state or country from the place where one spouse resides at the time of the divorce. As a general rule, foreign divorces are recognized as valid if the spouse requesting the divorce became a resident of the state or country granting the divorce, and if both parties consented to the jurisdiction of the foreign court. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the nonconsenting spouse later acts as if the foreign divorce were valid, for example, by remarrying.

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A method for defining the ownership of property acquired during marriage, in which all earnings during marriage and all property acquired with those earnings are considered community property and all debts incurred during marriage are community property debts. Community property laws exist in Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, and Wisconsin.

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In community property states, property owned and controlled entirely by one spouse in a marriage. At divorce, separate property is not divided under the state's property division laws, but is kept by the spouse who owns it. Separate property includes all property that a spouse obtained before marriage, through inheritance or as a gift. It also includes any property that is traceable to separate property -- for example, cash from the sale of a vintage car owned by one spouse before marriage-and any property that the spouses agree is separate property.

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A document that provides proof of a marriage, typically issued to the newlyweds a few weeks after they file for the certificate in a county office. Most states require both spouses, the person who officiated the marriage and one or two witnesses to sign the marriage certificate; often this is done just after the ceremony.

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If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.

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All states require a spouse to be a resident of the state -- often for at least six months and sometimes for as long as one year -- before filing for a divorce there. Someone who files for divorce must offer proof that he or she has resided there for the required length of time. Only three states -- Alaska, South Dakota, and Washington -- have no statutory requirement for resident status.

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One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.

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When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

Nowadays, it's usually one spouse who files the divorce papers first; if the other person disagrees with the "fault" accusations, he or she can file an "answer" to the divorce complaint.

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Permanent separation. When a couple decides to permanently split up, it's often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. In most states, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them. However, debts that happen after separation and before divorce are usually joint debts if they are incurred for certain necessities, such as to provide for the children or maintain the marital home. Again, a couple's decision to permanently separate may not be considered a legal one unless one party takes the other to court for support or custody pending a divorce action. This then leads to a state of legal separation.

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Trial separation: When a couple lives apart for a test period, to decide whether or not to separate permanently, it's called a trial separation. Even if they don't get back together, the assets they accumulate and debts they incur during the trial period are usually considered jointly owned. This type of separation is usually not legally recognized, but is instead a specific period in a couple's relationship.

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In a handful of states (listed below), heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years.

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A paternity action, a court suit filed to have a man declared the father of a child, can be brought by either the mother or the father. Paternity actions are sometimes called establishment hearings, filiation hearings, or parentage actions.

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You and your child's other parent may agree to modify the child support terms, but even an agreed-upon modification for child support must be approved by a judge to be legally enforceable.

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n most states, the judge can examine a parent's ability to earn as well as what the parent is actually earning. The judge may order higher child support if there is a discrepancy. Actual earnings are an important factor in determining a person's ability to earn, but they are not conclusive where there is evidence that a person could earn more, if he or she chose to do so.

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A court looks at the payer's gross income from all sources, less any mandatory deductions (income taxes, Social Security, health care, and mandatory union dues). The result is the payer's net income.

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In order to qualify as child support, the payments received by an ex-spouse must be designated as child support in the divorce or separation agreement. If the agreement lumps the payments together as "family support" or "alimony," or doesn't otherwise designate a specific portion of each payment as child support, none of the payment will be considered child support for tax purposes.

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To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states -- unfortunately, not many -- court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.

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When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.

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Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.

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It is common for a divorcing couples to decide about dividing their property and debts themselves (with or without the help of a neutral third party like a mediator), rather than leave it for the judge to decide. If however, a couple cannot agree, they can submit their property dispute to the court, which will use state law to divide the property.

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

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The question "Who is the father?" is not as simple a question as you might think. There are important legal distinctions between different situations.

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Like a divorce, an annulment is a court procedure that dissolves a marriage. But, unlike a divorce, an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce.

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