The Issues of Divorce and Paternity – Getting Off to a Good Start
by Shane Flait (2010)

Unfortunately, many will go through a divorce or a paternity suit. But most don’t have a clue about fighting for their rights at court. Learn what you must know to better fight for what you want – with or without a lawyer. This article explains the issues of these suits and the importance of preparing well for the first hearing.

You must go to family court to get divorce, or, if unmarried, to seek your right to parent your child. How you ‘go to court’ for a divorce or unmarried custody issue is essential knowledge if you want to exercise your rights. It begins with you or your spouse (the mother or father) – or your lawyer - filing a complaint for divorce (or paternity custody).

The court will resolve your complaint after at trial on the issues with a resulting judgment. You and the ‘other side’ may agree to settle all issues instead, but the judge will have to ratify your settlement agreement.

So much depends in family court on what happens early in your court action. That’s because so much is decided at the first hearing – i.e. the temporary order hearing.

The first two steps in a divorce/paternity suit are:

• 1.      Filing the complaint

• 2.      Going to the first temporary hearing

Filing begins the ‘action’ or ‘suit’. If you filed it, you’re the plaintiff; the other side becomes the defendant. It doesn’t matter who’s the plaintiff or defendant.

There are formal ‘notification’ procedures to make sure and establish proof that both litigants have been notified.

Hearings are where you present suggestions – called ‘motions’ to the judge on resolving a variety of the divorce-related issues. You may have many hearing before things are settled.

Based on the how the litigants – or their lawyers – argue in favor of their motions, the judge will issue a ‘temporary order’ to resolve that issue until a final agreement is made or a final judgment (i.e. a list of permanent orders) after a trial.

The first hearing - called the Temporary Order Hearing – is extremely important.  That’s because most all the important issues of a divorce must be addressed and 'temporarily set' pending the final judgment or settlement.

Either the plaintiff or litigant can set up (mark) a hearing. But he or she must make proper notification to the other side.

The issues of divorce are:

1.      Who gets custody? i.e. legal and physical or shared or sole custody of child.

2.      Who will be the noncustodial parent? i.e. the one not having physical custody

3.      What amount of child support must be paid by the noncustodial parent?

4.      What will be the extent of visitation (of the child) by the noncustodial parent?

5.      Who lives in the house and who gets kicked out? 

6.      How should the marital assets be divided?

7.      How should life and medical insurance be handled?

8.      Who should pay for college?

If there’s was no marriage – and you’re not in a ‘common law marriage’ state then there is not marital assets to divide. What’s in your name is yours!

The Need for Critical Preparation for First Hearing

The first four divorce issues above generally need to be resolved – temporarily – at this first hearing. These 4 set up much of the future circumstances of both parents. So, good preparation for this hearing is of the utmost importance.

Legal custody means you’re to make major decisions in the child’s life. These would be decisions regarding religion, medical, and education. Physical custody means you will make the day-to-day decisions of your child because you’re living – and parenting- him.

Know the issues and argue strongly how they should be resolved in your favor. Don’t leave all this up to your lawyer to handle. It’s your kids and your life that’s at stake.

There’s a saying that your temporary orders will harden like cement into your ‘final judgment orders’.  That’s because once some arrangement is set up, the judge doesn’t like to change things since the kids will be accustomed to the arrangement.

Unfortunately for fathers –and their kids - the family court judges overwhelmingly prefer to give physical custody to the mother. He follows only what he says is the ‘best interest’ of the children. Your parental rights as a father or your equal rights under the constitution are simply not considered primary – if at all.

So you must make every effort to push that you should have at least equal custody – both legal and physical – of your child(ren) at the first temporary order hearing. Don’t let your lawyer talk you out of this. And don’t let him say you can work for it later, because the cement will be hardening fast.

END

 

Shane Flait is a writer and educator