Thursday, February 23, 2012

Custody Battles: Children in the Vortex

The maelstrom of conflict between parents in a divorce or custody battle often catches up the children and dashes them against the same rocks that brought the marriage to destruction.

Even the mildest custody conflict can damage children and their relationships with one or both parents, but the injury can be severe when the conflict is intense and where one or both parties bring the children into the vortex.

Judge Larry Primeaux, Chancery Court, 12th District of Mississippi has some great advice for parents. He says:

1. A custody dispute is not about winning or losing. Custody is decided on the basis of what is in the best interest of the children. No matter what the judge decides, his or her decision will be based on what is best for the children. Help your client understand [the relevant factors], how they apply in her case, and how to maximize her strong points while minimizing her exposure on the weak points.

2. Hate and revenge do not help. If your client’s motivation for custody is hate and/or revenge, he will be operating under a considerable disadvantage because (1) those are not positive factors under Albright for custody, and (2) they communicate to the children that they are spoils of war to be won instead of children who are to be loved no matter what the controversy is between the parents.

3. Never allow the children to make the custody decision. Children do not know what is best for them. They are subject to all sorts of influences, the strongest of which appeal to what they believe they want. It is appropriate to ask a mature child’s opinion, but only as input, never as a final decision. The parent or lawyer who tells a child “You will get to decide when you reach x age” is doing the child a great disservice because the law never gives the child a right to finally decide; that decision is always up to the judge.

Children who are made to decide often feel that they have betrayed one parent or the other. Making a child decide is putting the child squarely in the middle of the conflict.

4. Children who are placed in the middle learn to manipulate. Parents who put their children in the middle usually find that the children become master manipulators, playing both sides against each other to gain whatever it is that the child wants or thinks he wants.

5. Putting the children in the middle complicates the case. When the parties put the children in the middle, the resulting conflict spawns contempt proceedings, modifications, more discovery about all kinds of peripheral matters, and adds expense, stress, conflict and injured relationships to everyone’s plates.

6. Drop the drama. The only enjoyable thing about a divorce or custody battle for most people is the attention and sympathy they derive from others over the suffering and pain they have to endure. So when they find their friends’ and family’s attention wandering, they will ramp up the drama to regain the spotlight. That’s self-defeating because it usually takes some kind of negative action to stimulate the other side into conflict. The best and most productive policy is to drop the drama and act like an adult and a caring parent.

7. Act like an adult. The best behavior you can model for your children is to act like an adult. Treat the other party with the respect he or she deserves as parent of your child.

Eschew juvenile name-calling. Turn your back on invitations to argue. Avoid sarcasm and profanity. No threats, veiled or otherwise. Your children are watching and learning from your every move.

Friday, February 10, 2012

Do I need a Process Server?

In most Arizona family law cases you must prove to the court that the other party has been given their copy of the legal documents you filed. The faster you can have this proof filed with the court the better. Most family law cases must be completed within 120 days or the court will dismiss the case for "lack of prosecution".

With that being said typically most cases do not need to involve a process server if the other party is willing to sign that they received a copy of the legal documents. If the other party for example signs an "Acceptance of Service" then that can be used as proof of service. Discount Divorce provides the Acceptance of Service in all cases at no additional charge.

However, if the other party proves to be difficult or uncooperative then one alternative is have them severed by a process server.

What is Service of Process?

Service of Process is when court documents are delivered to the individual to whom the legal document is directed. Service of Process must be served by an individual who is not a party to the case. This may mean handing the documents to the defendant personally or sub-serving to someone in the same household. Once the documents are delivered, the process serving agent must provide proof that the papers were served. This is done through a document call an Affidavit of Service, also called a Proof of Service, which must be notarized in some cases and given to the party who requested service. In Arizona and most states, someone who performs service of process is required by law to be licensed.

Even if a process server does not need to be licensed in the state where you need service, you should keep in mind that a process server is someone who is experienced in serving legal documents efficiently. More importantly, professional process servers are knowledgeable of the legislation surrounding service of process in their state or county. There are several requirements and constraints associated with serving legal documents that vary from state to state, or county to county. If the service is not performed in accordance with the law, this can hinder your case from going forward or result in the dismissal of your case.

Discount Divorce has process servers in all 50 states and in 3,140 counties. We can serve your legal documents almost anywhere in the United States.

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Monday, February 6, 2012

Difference Between Chapters 7 & 13 Bankruptcies

Going Bankrupt: Repayment of Your Debt

The biggest difference between Chapters 7 and 13 bankruptcies is the repayment of your debt. Chapter 13 bankruptcy involves a court-ordered repayment plan where a portion of your debt back is repaid to your creditors. In a Chapter 7 bankruptcy, there is no repayment plan and certain debts can simply be eliminated.

Length of Chapter 7 and Chapter 13 Bankruptcy Process

The second major difference between the two chapters is the time it takes to complete each chapter’s filing process. While a Chapter 7 bankruptcy filing usually only takes 4-6 months to complete, a Chapter 13 bankruptcy is a much longer procedure and usually lasts 3-5 years.

Protecting Assets v. Possible Liquidation

Your assets are protected in a Chapter 13 bankruptcy and the bankruptcy can even help you save assets that are facing foreclosure or repossession -- such as a house or car. Since a Chapter 13 bankruptcy in not a liquidation bankruptcy, you are able to keep your assets even if your states exemptions do not completely protect them. In a Chapter 7 bankruptcy, although it rarely happens, the Bankruptcy Court can liquidate your assets if they are not protected by your state’s bankruptcy exemptions. Your state probably has a specific exemption to protect a portion of equity in your house or car.

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