How to Avoid Divorce Mistakes
Divorce and Child Custody Support Proposal
Initial
Proposal |
Analysis By MAFIA Doc |
| MARRIAGE 1. All adult persons should be free to contract marriage as their conscience shall lead them, in whatever ceremony, religious or secular, that they choose. Such contract shall be registered with the appropriate civil authorities. All parties to a marriage shall be fully informed as to their rights and responsibilities within the context of the marriage, and their continuing rights and responsibilities in the event of dissolution of the marriage. The parties to a marriage shall attend counseling for a period of not less than one (1) year prior to the marriage. |
The major problem
with this Section is the last sentence - which requires parties to attend counseling for a
period of not less than one (1) year prior to the marriage. This could be considered
to be "unconstitutional" as it places an unreasonable burden on
individuals. Marriage is a "right" - not a specific privilege that is
granted by the state. When the alternative to marriage is not being married - then
there is not equal application of the law - as there is no prohibition against people just
"living together" without the same type of requirement. Should this be considered constitutional - then it would create a division in our society - which would result in more people just "living together" rather than obtaining the blessing of the State. This in turn would result in more children being born out of wedlock, and create a larger social problem than what is experienced today. |
| 2. The parties to a marriage hold in common all property acquired during the marriage. Likewise, the parties are jointly and severally liable for the debts incurred during the marriage. | This is the basic
tennant that we have in all of today's divorce laws. There are, however exceptions
to this type of requirement. What is the penalty if one party does not pay the debts that have been incurred in the marriage? How do you enforce that? It happens every day - one party does not pay their share of the debts after the marriage. Loop Hole An argument against this type of clause: My soon to be ex wife knows that she is going to leave me - and goes out and gets major plastic surgery done and puts it on my credit card. As soon as she is healed up - she files for divorce. Why should I be required to pay for her plastic surgery - or even half of it? Loop Hole From a "legal standpoint" - only the person who has signed on the dotted line can be held responsible for a debt. One party enters into the marriage with credit - the other party never gets credit in their name. If the party without credit does not pay their share of the debts - the person with the credit is still responsible. |
| 3. The parties to a marriage are
jointly and severally liable for nurturing, educating, caring and providing for, and in
all things attending to the well-being of any child(ren) resulting from that marriage. |
This is already
written into the laws of all states in one form or another. What happens when one person does not do what is expected? Where are the penalties? How is it determined if a party isn't doing what should be done? What are the standards? As written this provides for a lot of LOOP HOLES. |
| DIVORCE 1. Divorce shall be granted: a. where sufficient grounds for the dissolution of the marriage exist: 1) Adultery. 2) Battery. 3) Abandonment. 4) Desertion. 5) Cruelty. Trial for divorce on such grounds shall be by jury unless the defendant waives right to trial by jury, in which case the court shall try the case. |
What if two people
just simply have grown apart and want to go in different directions? The proper
legal term is "irreconcilable differences". According to the
proposal - this would not be a justifiable cause for divorce. What if one person refuses to share any of the responsibilities - stays out every night drinking with his buddies - then comes home quietly and goes to bed? No violence. No battery. Just a good natured drunk - every day. Grounds for divorce? In short - the grounds are too narrow and do not take into account all of the possibilites as to why a marriage should not - or cannot remain intact and be beneficial for all parties. |
| b. upon the agreement of both parties, where counseling for a period of not less than one (1) year has rendered it obvious that no reconciliation is possible. | This raises a number of constitutional issues as well as practical issues. When does the counseling take place? Can a parent move out during the counseling period? What are his or her financial responsibilities during that period? Needs more definition. |
| IN THE EVENT OF DIVORCE: PROPERTY 1. Each individual shall retain any and all property (s)he had entering the marriage. |
That is the general
law today. However - there can be some exceptions: The parties lived together for a period of time before the marriage. Whilst living together they acquired property together. How will that be divided? Needs more definition. |
| 2. All property acquired during the marriage, being their joint property, shall be divided in equity unless one party shall waive their right to a particular piece of property. Waiver of rights to one piece of property shall not be construed as a waiver to any other property or rights. | This is a basic
concept of the law in Community Property States - and very difficult to employ in real
life situations. There has to be trading back and forth of various pieces of
property - which is what causes the major problems in many divorces. Also - can money - cash, stocks, bonds, etc. be considered "property"? What if one party inherits money or property? The way this section reads inherited property and money would become part of the "joint property". |
| 3. Whether divorce occurs under a. or b. above shall not affect the disposition of property. | No comment necessary. |
| 4. If the parties cannot agree on specific pieces of property, that property shall be sold at public auction, the cost of the auction being paid from the proceeds, and the remainder being equally divided between the litigants. | This is unduly harsh - and allows for some major abuse of the law. Party A wants to make Party B suffer. So, Party A will convolute the proceedings completely - just so that Party B ends up with little or nothing. Loop Hole |
| 5. Property having been acquired for the exclusive use and benefit of the children of the marriage shall remain the property of the children. | This needs a bit more definition before it can have any substantial applicability, especially in situations of "joint custody". One party remains in the home of the marriage - the other person moves out. In the backyard there is a swing set. Which party takes the swing set? |
| CUSTODY 1. There shall be a presumption of joint custody of the minor children of the marriage, except where some grievous obstacle exists to such a presumption and is so judged in a court of law. Such grievous obstacles include: a. Neglect. b. Gross physical abuse. c. Gross emotional/psychological abuse. d. Sexual abuse. |
This needs a number
of clearly defined definitions: First of all - what is the definition of "joint
custody"? You can not toss out a term like this without creating a definition
and establishing what the rights, requirements and privileges of each party are. This also applies only to children of a marriage. How about children that have been born out of wedlock? In those cases - how about the situation where the biological father says "get an abortion - I don't want the kid" and the mother says "no way"? If we are going to discuss custody and so forth - include all the possibilities. What constitutes neglect? What constitutes "Gross" physical abuse? Whose - or what standards is this judged by? What constitutes "Gross" emotional/psychological abuse? Whose - or what standards is this judged by? Who makes the determinations? Judge? Jury? In making that determination - are the same standards that are applied to criminal law applied - or the standards that are applied to civil law? These are two very different standards - one is harder to prove than the other. With the presumption of "joint custody" there is also the presumption that both parents will share equally in the costs associated with the child(ren). What if one parent doesn't share any of the costs? Alternatively - one parent has greater resources than the other parent who is unable to share equally - or is unwilling to share equally? What is equitable - how is it determined - and how is it enforced? |
| These shall be judged in a trial by
jury. The findings of a State bureaucracy shall have no standing in court, parties are not
obliged to communicate with these agencies, agents of the state bureaucracies may not testify to anything they have not personally witnessed (hearsay, and speculation not allowed), and these agents/agencies can be held liable, jointly and severally, under law for malpractice, perjury, violation of the public trust, conspiracy, and are subject to criminal and punitive damages. |
Major
Problems! Generally, when there is abuse involved concerning children - it is the State
agency that investigates this type of allegation. If we adopt that the findings of a
"State bureaucracy shall have no standing in court" - then any findings of a
state agency can not be testified to - even if the findings are accurate.
Example: State investigates a complaint of sexual abuse of a child. State
takes child to a doctor. That doctor is at that point an agent of the state.
Therefore - if the doctor finds evidence of, for example, penetration, he can not testify
to that fact since he did not personally witness the act of penetration. The abuse
is not proven, so therefore can be considered to have not happened. Since the findings of a state bureaucracy shall have no standing in court, then that state bureaucracy can not testify, which then means that there is no need for the penalties that are included in this section. |
| 2. Such an obstacle can be removed
through counseling or other treatment for a period of not less than two (2) years, and a
subsequent period of supervised visitation of not less than one (1) year, if the court finds this sufficient. Under extreme or peculiar circumstances, the court may elect not to remove such obstacle. |
Many complain that the courts have too much control over the entire process already. In legal terminology, when the phrase "the court may elect" - that means the judge only. Since many complain that judges are biased toward men - we still have the same problem. If we say that a jury shall decide - who pays the costs? If we buy into the theory that non-custodial parents are "broke" - especially one who is supposed to be paying for counselling as well as paying child support - then this is not workable - unless we ask the taxpayer to foot the bill. To ask the taxpayer to foot the bill for all of this is against "public policy". |
| 3. Where primary physical custody
resides with one parent, that parent shall: a. make the child(ren) available at the appointed places and times to the other parent. Failure to do so will result in a reversal of the physical custody arrangement. |
First of all - we
need to know under what conditions physical custody resides with one parent. It is
presumed that such would happen only when joint custody is not awareded - which is when
certain abuses have been determined by the court. (#1 above). So - the way
that reads is that if Parent A is not given joint custody for a grevious reason - and
Parent B doesn't make the child(ren) available for visitation - then Parent A gets the
child(ren)? I think not! What constitutes not making the children available? Who makes this determination? How is this claim pursued? Do we go back to court - or do we go to the police? What are the "standards" and how are they applied? |
| b. not interfere with the
establishment and perpetuation of a relationship between the child(ren) and the other
parent. Such interference will result in a reversal of the physical custody arrangement. |
What are the
standards that a parent will be judged by? What constitutes interference with the
establishment and perpetuation of a relationship betwen the child(ren) and the other
parent? Since "children's rights" are a big issue - what if the child does not want to have a relationship with the parent? Example: Divorce happens where a teenager is involved. Teen's make decisions - and often side with one parent against the other. Does the child have any rights here? |
| c. consult with the other parent on matters of education, practice of religion, medical care (except that necessary emergency medical care can be obtained prior to such consultation), and other matters fundamentally affecting the growth, development, and well-being of the child(ren). | Parent A wants to
raise the child as a Lutheran. Parent B wants to raise the child as a Mormon.
Who has the final say? Parent A want the child to go to a private school. Parent B doesn't want the extra expense. Who has the final say? |
| d. behave in a seemly and upright manner, setting a proper example of good citizenship. | One parent does not behave properly? What happens then? Are both parents required to do this - or just the parent that has primary physical custody? Who determines what is "seemly and upright" and setting a proper example of good citizenship? How is this enforced? What are the penalties for not doing this? |
| e. be gainfully employed, providing a proper example to the children of responsibility. | When is it proper not to be gainfully employed? How long is it proper to be "unemployed"? What are the sanctions when a parent is not employed? If this is written to apply only to the custodial parent, then it is wholly unconstitutional. |
| f. not remove the minor children
from the jurisdiction of the court without prior express written approval of that court
and proper prior notification of the other parent. The court shall properly consider the right of the other parent to have a meaningful and ongoing relationship with the child(ren). Where the court grants the move, the custodial parent shall be liable for one-half (1/2) the cost of transportation, whether for the child(ren) or the non-custodial parent, on at least a semi-annual basis, in order to foster a proper relationship between the child(ren) and their other parent. Failure to comply will result in a modification of custody. In no case shall a custodial parent be liable for any transportation costs resulting from a move by the non-custodial parent. |
This raises a
constitutional issue - as to whether a court has the power or authority to refuse a parent
the opportunity to move out of its jurisdiction. The custodial parent is being
transfered because of a job - if the transfer is not taken - the parent loses the job.
The court denies permission to move. Fair or unfair? Or, the custodial
parent has re-married - and the spouse is transferred. Custodial parent is denied
permission to move because the rights of the other parent take precedence. What
happens now? Do we have another broken family? When we look at the sharing of the costs of transporation - we must also look at the financial abilities of the custodial parent. What if that parent can not afford to pay half the costs of transportation? What if the other parent can afford to pay the full costs of transportation? Custodial parent is earning $10 per hour and raising 3 children. Non-custodial parent is earning $20 per hour and has no other children or family. This can become a very important issue especially when we look at the next section which addresses the payment of child support. Failure to comply will result in a modification of custody. Here we have another problem. Remember - the only way that there is not joint custody is when certain grevious acts or actions have been committed. So - custodial parent does not comply - does this mean we put the child with an abusive parent??? |
| SUPPORT 1. There shall be no permanent, or long-term, award of Spousal Support or Alimony. A rehabilitative support award can be made, at the discretion of the Court, not to exceed the cost of enrollment and tuition at a local Community College, for a period not to exceed two (2) years. |
Can't quite go
along with this one here - due to the fact that it does not take into the reality of the
situation. Parent A has 2 years of college when the marriage to Parent B takes
place. After the marriage, Parent A worked full time whilst Parent B attended a
three year graduate school. Parent B graduates - and Parent A has the first the
child after graduation. Parent A stays home with the child for 3 years - and then is
divorced. Parent A can not attend any community college to finish her degree. Is this type of law "fair" to Parent A? See also the comments for Number 3 below. |
| 2. All prior awards of Spousal Support and alimony shall be brought within the above guidelines, and remain in effect not longer than two (2) years from the date of enactment. | From a legal and constitutional perspective - this will not fly. |
| 3. Any rehabilitative support award
is rendered immediately null and void by the death, remarriage, or cohabitation of
the recipient. Failure to reveal changes of circumstances on the part of the recipient constitutes fraud. Such fraud will be tried in court and, if convicted, the person guilty of such fraud will be liable for return of all monies paid plus interest at the then prevailing rate. This will be accomplished by garnishment of wages. |
First of all -
cohabitation must be defined. What constitutes cohabitation? Boyfriend sleeps
over on the week-ends? To some - that may be cohabitation. Because the so called rehabilitative support award only covers tuition for 2 years - I revert back to my initial argument against it. I also point out that to get a two year degree at a community college - one is required to attend school full time. What is the person supposed to live on? Perhaps the only way that someone can complete the schooling and get a degree is to live with a boy friend or girl friend. Remember - the award is only for tuition - and for rehabilitation to take place - then the individual must be able to obtain full benefit from the program without enduring additional hardships. There is no such thing as "civil fraud" - so therefore, it becomes criminal. (You can have civil contempt as well as criminal contempt but different rules apply to each.) Wages can not be garnished for criminal activities. In the event of a finding of fraud - wage garnishment is not going to be available in most states - unless the laws are rewritten. To re-write those laws to make an exception for fraud in this type of situation and allow garnishment will open the door to wage garnishments for other types of fraud - such as the non-payment of bills. Be careful of what you ask for - you may get it in more than one way. |
| 4. Failure to pay a proper award of
rehabilitative support constitutes contempt of court and fraud. Such will be tried in
court and, if convicted, the person guilty of such fraud will have their wages garnished for the amount of the award plus interest on the arrearage at the then prevailing rate. |
To have a finding of contempt of court and fraud would constitute double jeapordy, and thus, is prohibited. There is no such thing as "civil fraud" - so therefore, it becomes criminal. (You can have civil contempt as well as criminal contempt but different rules apply to each.) Wages can not be garnished for criminal activities. |
| 5. In the event of Joint Physical
Custody of the minor child(ren) of the marriage, there shall be no award of Child Support,
the parents of the child(ren) shall be expected to provide for them from their own
resources while in their care. Medical, dental, and child care expenses for the children shall be paid in equal shares by each parent, including the costs of insurance and deductibles. Failure to obtain, or pay for, necessary medical care, or proper education, shall be considered neglect and tried in court. If convicted, custody shall be modified accordingly. |
MAJOR
LOOPHOLE The rules for Joint
Physical Custody must be established. Unless those rules are
established - this will allow people to walk away from their children and have them in
their care only when it suits them. This would in turn place a bigger burden on one
parent than the other - and can relegate the children to a life of poverty. Parent A has the kids 5 days a week. Parent B - because of employment or whatever - has the kids only 2 days a week. Where is the equity here???? As for the medical, dental and child care expenses - Parent B claims he can't afford it. What happens then??? Since we have laws on the books in every state that no person can be denied medical care because of their inability to pay for that care - the failure to pay for necessary medical care can not be considered to be neglect. The clause that "If convicted, custody shall be modified accordingly" creates a new standard that does not conform with the initial standards established for situations where joint custody shall not be permissible. |
| 6. In the event that Physical
Custody is awarded to one parent, Child Support shall be awarded for the maintenance of
the minor children at a rate not to exceed the one-half(1/2) the fee paid by the State for the care and maintenance of Foster Children. Awards will be modified only as the State fees are modified with prior notification going to the payor not less than thirty(30) days prior to the modification. Awards terminate when: |
What the State pays
for foster care to foster parents is a mere pittance. Good foster parents
continually subsidize what is paid in foster care with money out of their own pockets.
Being a foster parent is a labor of love - and it is not done for the money.
It costs to be a foster parent. The costs of raising a child are in direct proportion to the income of the Physical Custodian. The less money that there is - the less the child has, and fewer opportunities for the child. The Physical Custodian of the child has an annual income of $12,000 per year. Assuming that one-half of the foster care payment is $200 per month - total income for the home is raised to $14,400. The non-custodial parent - having been denied the ability to have joint custody for good cause - has an annual income of $50,000. Why should the child be denied the opportunity to experience a better life that would be available to him or her if there had been an award of Joint Custody??? Now we are punishing the child because one of his parents is "unfit" for joint custody. Is our concern here what is best for the child - or what is best for the person that has to pay child support??? This needs a greater level of equity for the child. |
| a. the minor child(ren) reach the
age of nineteen(19) years or graduates from High School, whichever occurs first. b. the child(ren) is(are) emancipated if it occurs sooner than in a. c. there is a change in custody. |
This is standard
language - but needs more definition. "Emancipation" needs to be defined
clearly. From a legal perspective - only a court make make a determination that the
child is emancipated. The procedures to "change custody" must also be defined - as well as a definition of what change of custody is. Does a child living with a grandparent constitute a change of custody? How long must the child be living with the grandparent? Must a court be involved in that? |
| All of these cases take effect immediately, with no special filing requirements. Non-payment of awarded Child Support is neglect, fraud, and contempt of court, and will be tried accordingly. If convicted, the guilty party shall be liable for arrearages plus interest at the then prevailing rate and have her(his) wages garnished for the remainder of the term of the award. | Again - you can not have neglect, fraud and contempt of court rolled together in this. Each of these is a separate offense - with different levels of proof. Since all of this is civil - only contempt of court will be applicable. |
| 7. In the event that the State continues garnishment past the termination of an award, the State shall be liable for repayment of the overage plus interest at the prevailing rate compounded daily. The State shall also be liable for punitive damages in particularly grievous cases. | A burden must be placed upon the person whose wages are being garnished to notify the State a minimum of 60 days prior to the termination of award. Since this entire proposal is based upon the concept of "personal responsibility" the individual does have a presumption of duty. As for repayment of the overage plus interest at the prevailing rate - no problem there. However - to compound the prevailing rate daily is usurious, and illegal. All prevailing rates allowed by statute are based upon a per-annum calculation. You can not hold the State to a higher standard than what it's citizens are held to. |
| 8. In no case shall a parent be
liable for an expense not required of parents in an intact family. The court may not make
any award or judgement requiring payment for children past nineteen(19) years of age (i.e. college, Child Support, etc). |
Here again - I have
problems. Remember - we are supposed to be interested in the children and their
welfare first, foremost and above anything else. Whilst I can argue the issue of college expenditures - as I believe that parents do have a moral obligation to assist their children with advanced education - I will let that one go for the time being. However - take the case where the child is born with severe physical or mental limitations. Don't parents of that child have a moral responsibility to continue to provide care for that child? Or - do we just take care of that child until he or she is 19 - and then dump them on the taxpayer??? A child with severe mental limitations may not be able to become self sufficient until he or she is 25 years old. |
