Paternity Fraud: Tennessee Considers Letting Duped Men Off The Hook

Paternity fraud is once again in the news, as the state of Tennessee is on the brink of becoming a trend-setter state with proposed legislation that would allow for the disestablishment of parentage. Paternity fraud is the popular name for the situation where a man is “duped” into fatherhood for a child that is not biologically related. The big issue with paternity fraud is that a man is forced to pay child support for these children even after DNA evidence proves that he is not the biological father. The majority of states rely on an English common law doctrine that creates a presumption of fatherhood when a child is born during a marriage or 300 days after divorce. The current purpose of this doctrine is to prevent the state welfare system from paying to support the child.

While the mother-child relationship is generally established at birth; the father-child relationship is harder to establish. When the common law doctrine of paternity was first established over 500 years ago, there was no scientific test that could prove paternity. With the advent of DNA testing, the old presumption has become antiquated. The majority of states have failed to reevaluate their paternity laws and have kept the old presumption in place.

Tennessee is currently considering a law that would allow for the disestablishment of parentage. The proposed bill would amend the current law and allow a man to escape child support obligations if he can show through DNA evidence that he is not the biological father. The new paternity law would not allow reimbursement for child support that has already been paid and would only apply to future child support payments. In addition, the law would not allow disestablishment of parentage in three situations. These are:

1. If the father legally had adopted the child. 2. If the father has entered into a voluntary acknowledgement of paternity. 3. If at the time a child support order was granted by a court, the man had actual knowledge that he was not the father.

If the paternity fraud bill becomes law, Tennessee would be one of a handful of states that allows a man to stop paying child support when he can prove he is not the biological father. Attempts to change the presumption of paternity have met with strong resistance from groups in many states. The majority of the arguments against changing the law address that if the duped dad is let off the hook for child support, it is the child that becomes the victim. Opponents to the new law submit that the child’s best interest should be the only concern.

Supporters of the paternity fraud bill argue that fraud should never be rewarded. They point out that these cases often arise because the woman has concealed a sexual relationship from her husband. They submit that the current law excuses the woman’s conduct and creates a new victim.

Scott Justice is an attorney practicing family law in Tennessee. He is the author of Tennessee Divorce and Family Law located at http://www.justiceondivorce.com

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Rhode Island Divorce Lawyers: Modifying Rhode Island Child Support!

* * * What is Rhode Island Child Support? * * * In Rhode Island, child support is most typically a monetary amount of money that is paid by the parent having visitation with the child or children. It is an amount that the court deems the child(ren) is entitled to from both parents for the child’s support. The parent having visitation is then generally ordered to pay his or her percentage share of the total support amount that is calculated to be due to the child(dren) based upon that parent’s percentage of his or her income to the combined gross income of both parents of the child.

* * * How is Rhode Island Child Support calculated? * * *

Rhode Island Child Support is set pursuant to the Rhode Island Child Support Guidelines with adjustments by the Rhode Island Family Court judge as provided in the guidelines or within the Judge’s discretion as allowed by law since the Rhode Island Child support guidelines could never anticipate every factual set of circumstances under which adjustments should be made.

* * * When are Motions to Modify your Child Support typically filed? * * *

A Motion to Modify a Child Support obligation is typically filed with the Rhode Island Family Court when there is a “substantial change in circumstances”. Generally speaking a substantial change in circumstances occur when the combined gross income of the parents of the child has changed by 10% from the time when the Rhode Island Family Court last entered an order for child support.

* * * What could cause a 10% “substantial change in circumstances”? * * *

1. Loss of a job or layoff. 2. Loss of paid medical benefits through your employer. 3. Hospitalizations 4. New job that pays more or less money. 5. Birth of a new child to either parent. 6. Discontinued overtime from your employer. 7. Child is working and contributing to the placement household. 8. Unemployment 9. Out on TDI, are hospitalized 10. Any other circumstance that causes a change of at least 10% in the combined gross income of both parents.

* * * Will the Rhode Island Judge give me retroactive credits? * * *

Under Rhode Island Domestic Relations Law the family court judge assigned to hear your case has the authority in his or her discretion to grant you credit retroactive to the date you filed your Motion to Modify Child Support. Therefore, if you get laid off or experience any substantial reduction in income that may prevent you from paying your child support as required by the court then you should hand-file your Motion to Modify Child Support with the Rhode Island Family Court because the date of your filing is the farthest date that the judge may award you retroactive child support.

* * * What if I can’t make my payments as periodically ordered? * * *

If you have to pay child support on a weekly basis but you are unable to do so, it is generally best to file a Motion for Relief. This is different from a Motion to Modify Child Support because a Motion for Relief does not require that you meet the “substantial circumstances” test. The Motion for Relief would simply request a Modification of the terms under which your payments are made.

For instance, if you are ordered to pay your child support on a weekly basis but your income fluctuates substantially such that you may have no income in any given week then it may be better to pay your child support bi-weekly or even monthly (in advance) in order to account for your income fluctuation.

A Motion for Relief can be very helpful, especially when you are looking more for an accommodation of an existing condition and you have a justifiable basis for it.

* * * What should I watch for when calculating Rhode Island Child Support? * * *

Child Support is not nearly as simple as some Rhode Island Divorce and family law attorneys make it out to be. Unfortunately some lawyers choose to oversimplify child support and how it is calculated rather than running through it with their client.

It is also very easy for a layperson to misunderstand the guidelines themselves. Though the Rhode Island Child Support Guidelines and the worksheet provided by the court are intended to inform lawyers and pro se individuals about the use of the form and the manner in which the calculations are to be made, there is a significant amount of practical application that is not explained in the guidelines. The guidelines also won’t help you to understand each family court judge’s philosophy.

Always make sure you check the “Mandatory” deductions that are set forth on the Rhode Island Child Support Guidelines worksheet and include them on the worksheet.

Per the Rhode Island Child Support Guidelines you are entitled to these deductions off your gross income and it could make a significant difference in your child support obligation. Double check your attorney’s calculations if you like but make certain that you receive those deductions if you are entitled to them.

Authored By: Attorney Christopher Pearsall Pearsall Law Associates 571 Pontiac Avenue, Cranston, RI 02910 Website: http://www.ChristopherPearsall.com Phone: (401) 354-2369

Alternatives to Divorce for Christians

Divorce for everyone is a long and painful process. Divorce does not only affect one aspect of your life, it affects all of them. In some situations, there is apparently no option other than divorce but religious or moral beliefs may prevent abused or maltreated spouses from seeking legal counsel. This is especially true for the Memphis lawyer who serves a fairly conservative community. The legal alternatives to divorce come mainly from the period before the easy availability of modern divorce. They maintain basic duties of support and the status of man and wife but relieve the spouses of the duty to live together and serve to separate property interests. In Tennessee, remember, in case of a divorce, all property acquired up to the time a divorce is filed is usually considered marital property. The first option for those trying to avoid divorce is marriage counseling. While not a legal option, it should be your first step if nothing else to ensure a clean conscience. You may have considered this before, but simply concluded it would not make a difference. Marriage counseling is effective because it makes all the underlying issues of your marriage come to the forefront. For counseling to work, you must evaluate your marriage for improvement. You cannot realistically expect for a one time 30 minute counseling session to save your marriage. Instead, it will take time, hard work, and dedication from each spouse to commit to changing their lives for your marriage. Marriage counseling can come from your pastor, family, friends, therapist, or other counseling service dedicated to saving marriages.

The second option is annulment. Traditionally, certain acts such as co-habitation, setting up households, or being able to bear children were requirements before a marriage ceremony created a valid marriage. So if you’ve realized you made a bad decision, but are unable to seek a divorce for a religious or moral reason, then immediately seek legal advice. A divorce may not be necessary.

A third option is separation or divorce from bed and board. The legal duties of fidelity remain. A legal separation for two years without minor children gives the other party grounds for divorce and a court may sua sponte order the parties divorce, but if you cannot ask for a divorce, then this may be the only option available to you. The legal issues of child custody, support, and property can all be dealt with accordingly. A separation order can be temporary or permanent.

A fourth option is an order of protection. Unfortunately, in Memphis these are granted in the inferior general sessions criminal court unless a divorce or perhaps a legal separation is concurrently sought. This means support and custody issues frequently are not dealt with at this stage. This is an effective way to keep an abusive spouse away from the home without seeking a formal divorce.

The important thing is to contact a Memphis lawyer or a lawyer in the appropriate area who usually works with family law issues. Most lawyers aren’t just divorce lawyers but work with custody, adoption, and other family law issues. A good family lawyer will always be willing to discuss alternatives keeping your religious and moral preferences in mind.

Summary: Christianity and other Religions frequently don’t allow adherents to seek a divorce. This article discusses alternatives from a legal standpoint.

The author David Sandy practices law including Memphis divorce and publishes articles concerning divorce with a Memphis bent at www.memphisdivorceblog.com .

Divorce lawyer NYC can efficiently handle divorce cases

Divorce is one experience which can turn out to be traumatic and emotional for a person. Well this is one experience that no one wishes to undergo, but circumstances force people to undergo this. Due to the fragility of the situation, it is very important that a person seeks the services of a divorce lawyer NYC who has vast experience in handling such cases. Well if you happen to reside in NYC, you have to make sure that you hire services from a divorce lawyer that is based there. You would not like to travel every now and then to consult any important impending matter with your lawyer. This can turn out to be an expensive affair for people who are seeking divorce from their spouses. One of the best ways to deal with this is to make the whole process speedy. Each state in the United States has different laws regarding divorce, so clients will have to make sure that the divorce lawyer that they hire to do their work has the correct knowledge about the laws prevailing in that state. Often, divorce lawyers may also have to deal with the issue of child custody. If there is a child custody angle involved in the divorce, things can really get complicated and full of tensions for the attorney and the client as well. There are several divorce lawyers who practice in NYC and one will not find it difficult to hire the services of a good lawyer in the city.

It will be a good idea for people who are seeking divorce from their spouses to hire a divorce lawyer who has over 20 years of experience in handling such cases. People can be assured that they will get the best services, because he knows all the nuances related to a divorce case. There are many small legal matters that must be handled carefully. Different things like property distribution, custody of a child and such other things must be handled efficiently. It will be helpful for person to hire lawyers who come with client reference. In this way, at least you can come to know that the lawyer is capable of doing good work. The web is one source through which you can find out about divorce lawyers in NYC.

Immediately after hiring the services of a divorce lawyer, the person must sit with the lawyer and discuss at length about the various aspects related to the case. Well he will be representing that person in court of law and so he must be aware of all the things related to this. One must not make the mistake of hiding any facts from the lawyer, or this factor may work out in factor of the opposing party. Divorce is a sensitive issue and all the matters associated with it are also sensitive. The lawyer will first try to make an out of the court settlement and if things work out well, the victim can get over with the entire thing in a short time.

Damyel Flower is an expert divorce lawyer. He has the ability to handle most complicated issues of divorce. He works for Malcolm S. Taub LLP and gives advice to clients who are looking for Art lawyer, divorce lawyer, pre-nup lawyer. For legal advice and to hire services of a lawyer in New York visit www.mtllp.com

Divorce Under Texas Tax Law

Normally, women in Texas suffer more financially than the men. This is especially true when both parties decide to a divorce. Why? Because by the time the couple decides to separate ways, the husband already has a stable job and the woman has already made a career as a perfect housewife –dish washing, cleaning, massaging the husband, and changing diapers. Thus, the woman’s standard of living decreases while the man’s increases. Most couples think that when they lead separate lives from their spouses, there’ll be no more financial difficulties. Actually, there are lots of financial matters involved in divorce. Consequently, most women suffer more when they are already separated than when they were still in the relationship. This consequence causes women not to pursue the divorce, thus, bears the pain of being in an unhappy relationship. Well, what women need to know to avoid this horrible event in her life is to seek legal counsel and learn about Texas tax law. Among the important Texas taxes that every couple must know is the area of divorce.

The divorce tax law is among the basic knowledge in the Texas tax law that everyone must know. Primarily because most young women of Texas do not realize that getting a divorce requires an extensive financial support; they just never thought that there might come a time that they need to be separated from their “loving” husbands. However, divorce is not automatic. Even the lawyers do not immediately file the case as long as they can still settle the issue between each party. If the lawyers see that the conflict would only bring more affliction to the family, then they would finally file the case. Needless to say, the attorney stands as the mediator of the two parties and their legal counsel. If no settlement is achieved, the case will be brought to court — surely causing thousands of dollars to be spent.

In Texas tax law, Dependency Exemptions are important. This law is only applied to the person who has custody of the children. This law means the tax deducted from the individual is lesser than the ordinary rate, depending on how many dependents that the person has. Another law is about the Selling of Personal Residence wherein the divorcing couple will not be taxed as much as $500,000 upon sale if they own the house for at least 5 years. Meanwhile, partnerships in the Transfer of Business Bonds, have certain tax issues like partnership gains and debt allocation. The transferee will only be taxed once the transferring process is done. The most important matter in divorce tax law is the Child Support System. The deduction of tax depends on the number of children that the person has. It ranges from 20%-40% of the person’s taxable income. Other payment that a voluntary party gives is not taxable and not considered as alimony.

Understanding the Texas tax law is not hard for all women who worry about their future without the support of their husband. It is also imperative to know the different Texas taxes to ensure financial security. Today, a lot of women in Texas are striving to increase their standard of living, separated or not, by finding ways on how to sustain their financial status. These women do these not only for themselves, but also for their children. Even though men usually support the children’s financial needs, more women strive to stand on their own to enable to give their children extra support when the spouses separate.

If you want more texas taxes and texas tax law resources such as this one, check out our website http://www.taxtexas.com

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A Helping Hand From Custody Lawyer In Missouri

For every child custody dispute, there are seldom winners because more often than not, everyone is a loser. However, the greatest burden is on the children… This is a devastating fact that only few people can understand. Can you charge the parents for becoming selfish? Can you give them the prejudice that they are being cruel towards their children?

Conceived notions like such cannot be avoided. This is indeed a harsh reality but whether you accept it or not it should be accepted by the society. The truth is that, not all couples always end up with pleasant-sounding relationship.

Probably, this is the reason for some countries and states who do not advocate divorce. The bottom line is the preservation of the rights of every child who dreams of having a family. Yes, because child custody is an argument that usually takes place when divorce case exist.

It is a matter of choosing the best parent who can give the needs of the child. When the court decides, the parents cannot do anything against it because this is their own choice. Now, you have to realize the sad fact that the children are the ones suffering the consequences of your action.

Good thing because the government of the different states start to do something about it. They still want to uphold the very essence of family as a basic unit of society. Most of all, if the government can’t intervene with the decision of the couples anymore their intention is to render aid for the affected children of the divorced parents.

As part of the child support program in Missouri, it has enacted laws that conform to the general welfare of the children who are under this program. This pop up due to the increasing cases that deal with child custody. It is also made available for free for children who need guidance and assistance.

However, if the complaints particularly when it already talks about child custody cannot be handled administratively by the Child Support Program, this is the time when they already refer the case to the Prosecuting Attorney’s Office of the place.

The office is comprised of the child custody lawyers that can tender services for free. Of course, the office does not initiate cases of its own but work as an agent for the necessary pleadings and processes that will be made and conducted during the court proceedings. It also mediates when certain problems arise.

Missouri Lawyers also make sure that the right of a child is well protected especially in the entire duration of the proceeding. Sometimes, they prefer to send the child in custody of a Child Support Program so that they are certain that there are no prohibitive actions that take place. They are open to the fact that a parent may force the child to do unpredictable decisions.

There are several ways for referring to a child custody lawyer in Missouri. You can go directly to the child support office or the Prosecuting Attorney’s Office so that your complaint can be immediately heard. Or you can also send it through mails. After that, said offices will have a thorough study about your case and do the appropriate legal moves that are needed. In Missouri, their child custody lawyers are offering a helping hand just to fight for your rights.

This content is provided by Low Jeremy. It may be used only in its entirety with all links included. For more information on child custody & where to find one in your state, please visit http://child-custody.articlekeep.com

The Role Of The Family Lawyer

Family law matters can be stressful for all parties involved. Most family law matters are resolved through negotiation, so it is important that you are aware of your legal rights. This is where a family lawyer can help. A lawyer can assist you obtain the best outcome and prevent potentially ongoing and costly legal complications. What is a property settlement?

This is the division of all “property” between married or de facto couples who seek divorce or separation. “Property” is quite widely interpreted in the family law system and includes pretty much everything that is capable of being owned. This can include land, houses, businesses including partnerships, motor vehicles, bank accounts, shares, household goods and furniture, tools of trade or other equipment, trusts and superannuation. The property settlement includes all property belonging to you and your partner, regardless of whose name the property is in.

Even if these items were owned by one of you prior to the start of the relationship, or they were left in a will to one of you, they may still form part of the “pool of assets”. Any debts also need to be calculated and taken into account in a property settlement.

Why do we need a lawyer when we have already agreed upon what property we will each receive?

Relying on an informal property settlement is quite risky as it may lead to you getting caught up in further property disputes down the track. For instance, there is a possibility you’re your partner will change his or her mind or even conceal something which should rightfully be in the agreement. Speak to us at LAC about formalising your agreement, so that you don’t get a nasty shock down the track.

Can’t we just skip the visit to the lawyer and go straight to court?

The courts can often assist with more complex disputes, such as how to equitably divide a monetary “gift” which was given to your partner by his or her parents.

However, going to court is not always the most pleasant way to reach a settlement. It may not guarantee the result you want and it can be costly both financially and emotionally. It is often simpler and cheaper to use your lawyer to help you reach an agreement with your partner outside of court, and go to court only as a last resort. By consulting a lawyer, you and your partner have the option of exchanging offers of settlement and conducting negotiations at any time.

Do we have to split everything equally?

All is fair in love and war, which doesn’t mean there will always be a 50:50 division of the property. The proportions will vary according to your personal circumstances.

A lawyer will assist you reach a property settlement by advising you and your partner’s legal entitlements over your joint pool of assets.

Firstly, a lawyer will advise you on the nature and amount of contributions made by you and your partner. These can be financial contributions such as wages, or non-financial contributions such as undertaking parental responsibilities.

Secondly, a lawyer will assist you determine the future needs of you and your partner. Factors taken into consideration include the duration of the relationship, the age and health of the parties, educational qualifications relevant to future work prospects and the need to care for any dependent children.

Once the analysis is completed, a lawyer may then assess any gaps in the information and conduct further investigation if necessary.

I think my partner is hiding assets, how can I investigate?

Relationships can bring out the best in people, but occasionally they can also bring out the worst. Asset hiding is quite common in the course of property settlements, especially when one partner adamantly believes that he or she has rightfully earned and thus owns a particular property interest.

If you suspect that your partner has assets, but you don’t have any details of them, a lawyer can also put sufficient pressure on your partner to meet his or her “full and frank disclosure” obligations, and will advise whether it will be necessary to resort to bringing an application before a court requesting a subpoena, which is a court order demanding production of documents or witness from a third party source. Speak to us at LAC lawyers to determine the most appropriate way of gaining access to your partner’s financial details.

Are we negotiating an emotional settlement or a property settlement?

In order to negotiate the most effective property settlement, lawyers must distance from the emotional issues that arise in family law disputes. However, a good family lawyer will listen empathetically to all your concerns and give objective advice as to your entitlements and legal obligations up until you reach your desired property settlement. At LAC lawyers, we can thoroughly assess your concerns and tailor your settlement negotiations according to your individual circumstances.

Frank Egan is the Chief Executive Officer of LAC Family Lawyer Sydney and has over 27 years of experience as a lawyer.

Family Law – Cohabitation Agreement Pursuant To Section 285 Of The Property Law Act 1958 (vic.)

Partners and spouses will be aware of the 3 types of financial agreements under the Family Law Act (Cth.). These financial agreements are as follows:

– Pre-Nuptial Agreements (Section 90B)
– Post-Nuptial Agreements (Section 90C)
– Post-Divorce Agreements (Section 90D)

Post-Nuptial Agreements are commonly used to formalize property settlements after a breakdown of marriage, as an alternative to Family Court consent orders and to make a binding provision in relation to spousal maintenance.

Post-Divorce Agreements, on the other hand, are not as common. This is an agreement made after the parties have divorced. Such agreements deal with property acquired up until the time of divorce.

Whilst Victoria, along with other State Parliaments, save for Western Australia, have agreed to refer their powers over defacto and same-sex property matters to the Federal Government, Victorian courts still exercise power over cohabitation agreements entered into between two partners who intend to live together. This power is exercised in Victoria under Section 285 of the Property Law Act 1958 (Vic.). This section gives Victorian courts the authority to adjust the interest of domestic partners in property which either or both may own in terms that appear just and equitable having regard to a number of factors such as:

– Financial and non-financial contributions made directly or indirectly by the domestic partners to acquiring or improving any property; and

– Contributions made by either of the domestic partners as to the welfare of the other domestic partner or to the welfare of the family including any children.

Increasingly, partners considering cohabitation (as opposed to formal marriage), and either have no children from previous relationships or who do not wish to have any children from the current relationship, are entering into cohabitation agreements pursuant to the Victorian Property Law Act 1958.

The primary purpose of such a cohabitation agreement is to protect the assets of each party in the future. The agreement provides that should the relationship end, each party will leave the relationship with those assets which he or she brought into the relationship. Only jointly acquired assets fall into the asset pool for distribution by Victorian courts pursuant to the powers provided by Section 285.

Cohabitation agreements under the Property Law Act 1958 are often sought by partners to relationships who own substantial assets and who wish to preserve those assets if the relationship ends unexpectedly quickly.

These cohabitation agreements are not as formal as their counterparts under the Family Law Act. The State cohabitation agreements, however, can be just as influential. They should be treated by the domestic partners (and by their respective legal advisors) as serious documents.

State courts are more likely to uphold cohabitation agreements pursuant to statutes like the Property Law Act 1958 than are either the Family Court or the Federal Magistrates’ Court when requested to uphold the three types of financial agreement possible under the Family Law Act. This is primarily due to the fact that financial agreements under the Family Law Act will often need to make provision for spousal maintenance in the context of a marriage which may have lasted for many years and also make financial provision for the education, welfare and support of children under the age of 18.

Clients should be advised, however, that agreements under Section 285 of the Property Law Act are not definitive. Such cohabitation agreements will not necessarily finally determine the distribution of assets in the event of a relationship breakdown. However, the cohabitation agreements may be taken into account by Victorian courts in their determination of what is a just and equitable resolution of the distribution of property when the domestic relationship has ended.

Clients should be advised that the longer a domestic relationship lasts, the less likely it will be that Victorian courts will enforce a cohabitation agreement which was drafted, for instance, many years previously when the domestic relationship was only just commencing in circumstances where one partner has been the effective homemaker, or where, contrary to initial plans, the partners did decide to have children. In those circumstances, clients would be best advised to enter into a pre-nuptial agreement under Section 90B of the Family Law Act or, at the very least, enter into an updated cohabitation agreement under Section 285 of the Property Law Act 1958 (Vic.).

Clients must also understand that any type of pre-nuptial agreement (whether under the Family Law Act or the Property Law Act) are subject to the normal contractual rules of enforceability. In other words, if the agreements have been entered into by virtue of duress, undue influence, fraud, or mistake, no court will enforce the agreement and property will be divided in accordance with relevant legislation.

Clients should also be aware that financial agreements under the Family Law Act and cohabitation agreements under the Property Law Act should be accompanied by effective estate planning. At a minimum, clients are best advised to effect wills when entering into pre-nuptial agreements to ensure that their individual property is divided in accordance with their specific wishes rather than in accordance with the statutory formula set out in the Administration and Probate Act 1958 (Vic.).
Michael Pickering is a solicitor employed at LAC Family Lawyers Melbourne. He has nearly 20 years experience as a lawyer.

Problems With Divorce

Applications for divorce are processed by Registrars of the Federal Magistrates Court, who sit in the federal court buildings at Sydney and Parramatta . The court process is quick and easy for most people, and if there are no children under the age of 18 attendance at court is unnecessary for either party. An Application may only be filed in the court after you have been separated for more than 12 months. For example, if you separate on 1 August then the documents cannot be filed until 2 August or later. The standard fee paid to the Court is $352.00 (set to increase in October), with any lawyer’s fees on top of that.

Separation under the one roof.

The divorce application is not quite as simple when part or all of the 12 month separation period is spent living together in the same household. The Court will require further information to enable it to be satisfied that there has in fact been an irretrievable breakdown of marriage and it is a genuine application. An affidavit (sworn statement) has to be prepared by the person applying for divorce which details evidence of the parties’ intention to end the marriage. This would have to address such questions as whether or not the parties still share the same bedroom, whether or not one performs any household duties for the other, financial arrangements between them, the extent to which there are other shared activities, why it is there is still a sharing of accommodation, and the like. In some instances, correspondence with Centrelink or similar government department may assist the court in determining the matter. This material would usually be attached to your affidavit. In addition, the court would expect to see an affidavit from an independent witness, such as a family friend or neighbour, to verify the changes in living arrangements.

Your lawyer is in the best position to advise what is required and to assist in preparation of the necessary documents required by the Court. It is advisable to consult your lawyer at an early stage as the Court is likely to refuse applications that are not accompanied by sufficient evidence of the separation and as a consequence the divorce will be delayed, perhaps for several months.

Unable to locate the other party?

In an ordinary case, the Court Rules insist that the divorce application, once it has been filed and stamped by the court’s filing clerk, be delivered (served) to the other party. This often is done in person (by someone other than the applicant) or by post. In regard to postal delivery, it will usually be necessary to have receipt of the document acknowledged in writing by the other party on the proper form. Service of the divorce application on a person outside Australia is no different if done by mail except that a longer period of time must be allowed for postal delivery. Sometimes it will be necessary to pay for a service agent in the overseas country to serve the application.

Even if the whereabouts of the other party are not known, the Court will still expect an Applicant to have carried out reasonable enquiries with a view to locating the person to be served. An affidavit setting out such enquiries will have to be provided to the court in due course. If all else fails, the Court may still consider granting the divorce without the need to serve the application, referred to as ‘dispensing with service’.

A case in which the author was recently involved illustrates some of the issues to be considered by the Court in an application to dispense with service. In that case, the husband and the wife were married in 1965. After a period of only 3 weeks, they separated and the husband disappeared, not to be seen since. To further complicate matters the wife was some time later involved in a serious accident which caused memory loss. The wife did not know the husband’s relatives or where they came from. The starting point was an electoral roll search undertaken through a mercantile agent and phone book searches. Further enquiries by a private investigator may have been useful but beyond the means of the wife. Any other avenue of enquiry was exhausted. An affidavit outlining these enquiries was prepared for the Court. A separate application, apart from the divorce application, is required because the Court is being asked to make procedural orders relating to service of a document (the divorce application). In this matter the Court was satisfied that everything possible had been done to locate the husband and made the anticipated order that the wife place advertisements in daily newspapers for both Sydney and Melbourne in a specified format. In time and once proof of lodgement of the advertisements could be supplied, the divorce was granted. This case emphasises the need to consult a lawyer with experience in these matters to avoid problems and delays in the divorce being granted.

Another typical case might be where the other party cannot be located easily but it is a fair assumption that he or she will be in regular contact with a parent or sibling, whose whereabouts are known. The author can recall a number of cases in which the court has allowed service to be effected on a parent of the missing person. This may seem a little unusual but for any number of reasons one of the parties to a marriage may not wish their contact details to be known to the other. Every case has to be considered on its own facts and what is appropriate for one will not be for the next. The Court has a wide discretion and is flexible in these types of cases, but it must be borne in mind that it is not just a ‘rubber stamp’ and there has to be compliance with the Rules of court.

Frank Egan is the Chief Executive Officer of LAC Divorce Lawyers Sydney and has over 27 years of experience as a lawyer.

Who Gets The Kids?

The vast majority of separating couples who have children under 18 are generally able to work out their own arrangements in relation to the amount of time their children will spend with each parent. They sensibly recognise that the interests of their children are best served by them spending quality time with both their mother and father, leaving a degree of flexibility in the arrangements and able to discuss any associated problems without undue friction. In considering what arrangements are appropriate for their particular circumstances, such couples have no doubt been guided by long established practices. For example, courts have traditionally ordered in the past, where parties have not agreed otherwise, that either the father or the mother (usually the latter) have custody of the children and the other partner have access or contact on alternate weekends and half school holidays. Rarely in our experience did parents entertain the modern notion of shared parenting and children were considered by most experts as preferred nurturers of their children. This mind set has now been shattered by the changes to the Family Law Act that came into force on 1 July 2006.

The changes give effect to what many perceived to be a bias against fathers in the past, but further recognise a shift in community attitudes in looking at separation from the childrens’ perspective. We have heard it said: “They’re my kids and I will decide what is best for them.” No longer can this be the case. We have now entered the realm where each parent must share the duties and responsibilities, and the joys of bringing up their children, in separate households.

Ideally, under the new regime, children should be spending equal time with each of their parents. For practical purposes such an arrangement will not always be the best option, for reasons such as the distance between the residences of each parent and the ability to communicate with each other. Alternatively, the children should spend substantial and significant time with each parent, which would include days during the week and on weekends and attendance at significant events, in order that the child has a full range of experiences with each parent. A primary consideration of a child’s best interest in the Act is that the child benefits from having a meaningful relationship with both parents.

The notion of parental responsibility is essentially unchanged, although redefined. This is the concept that both parents have overall responsibility for the children, despite the separation. Traditionally, decisions about day to day matters such as food and clothing are to be made by the parent with whom the child currently lives and any longer term issue such as the child’s health, where he or she is to be schooled or religious upbringing are to be made jointly after discussion between the parties.

Where separating couples need assistance to resolve any issue regarding children or indeed cannot agree at all, then the federal government is in the process of providing a free counselling and mediation service (up to 3 hours free) in the form of shop front Family Relationships Centres. Unfortunately these are only available at Penrith and Caringbah in the Sydney area at this time, but further Centres are planned over the next 2 years and a telephone service is also available. Parties are encouraged at these Centres to agree, write up and sign a Parenting Plan containing all details of the living arrangements for their children and any other issue that is likely to arise.

We strongly recommend that your lawyer be consulted at or prior to the time of signing any proposed parenting plan to avoid any future problems arising from a less than thorough drafting of the plan. In many cases it will be necessary to provide for a variety of contingencies, such as overseas travel, which the experience of your lawyer in these matters can bring to your attention. This would also have the benefit of averting any need for a court to intervene to resolve any unforeseen difficulty in the future.

When negotiations have failed, the Family Court may be called upon to make a Parenting Order, adopting the principles already outlined ie. that the Court must consider equal time for each parent or at least substantial and significant time. Every case is different and, to allay concerns in those few intractable matters, the overriding consideration for the Judge in the case is that the best interests of the child or children are of paramount importance. In fact, it is clearly written into the law that children are entitled to be protected from violence abuse or neglect when the Court is making parenting orders and the usual presumption of joint parental responsibility is rebutted in such cases. Allegations of violence or abuse are dealt with at an early stage of the Court’s proceedings and may result in a costs order against a party making any false allegation.

It is far too early to see how effective these changes will be in improving the lives of children to separated couples or indeed whether or not the general public, without judicial intervention, will take up on the government’s lead. Clearly, many will prefer the old ways, for all their faults, but over time, after decisions have been handed down by the Family Court on aspects of the legislation, the mind set will likely change.

As always, whether or not couples have been able to come to some agreement regarding the children, it is better to seek legal advice to ensure you rights are protected. For any family law enquiry feel free to contact LAC Lawyers.
Frank Egan is the Chief Executive Officer of LAC Family Lawyer Sydney and has over 27 years of experience as a lawyer.