Child Custody and Visitation

Child Custody and Visitation

Types of Child Custody

In a child custody situation, parents' rights will depend on the type of custody that is agreed upon or ordered by the court. Below you will find tips on the key differences among legal custody, physical custody, sole custody, joint custody,

What are the Types of Child Custody

Legal Custody
Physical Custody
Sole Custody
Joint Custody
Joint Legal and Physical Custody FindLaw Bookshelf

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Physical Custody

Physical custody is one of the most commonly known types of child custody. If a parent has been granted physical custody of a child by a court or other ruling body, this means that the parent has the right to have the child live with him or her. In some states, an award of joint physical custody is possible when a child will be staying with both the mother and the father for significant periods of time.

Legal Custody

If a parent has been awarded legal custody of a child, this means that the parent has the legal authority to make decisions about the child's education, health and upbringing. The parent with legal custody of a child will have the authority to decide which school to send the child to, which religion the child will practice, and what sorts of medical care the child will receive. Many states regularly award joint legal custody after a divorce. This means that parents will have to cooperate and make joint decisions about their child's upbringing.

Sole Custody

It is not unheard of for a judge to award sole legal or physical custody of a child to one parent. Sole physical custody is often awarded in divorce proceedings when it can be shown that one parent is unfit to be a parent, often due to financial, drug or alcohol problems. In addition, if one parent has taken to living with a new partner, and that new partner is deemed unfit to care for the child, then sole physical custody may be awarded to the parent that is in the better position to care for the child.

Joint Custody

If the parents of a child do not live together but share the responsibilities of making decisions about the child or housing the child, they are engaging in joint legal or physical custody of the child. Joint custody can be joint legal custody, joint physical custody, or both joint legal and physical custody.

Joint Custody Arrangements

When parents share joint physical custody of a child, they will often draw up a joint custody arrangement that they will present to the judge to be ratified. This arrangement is based upon the parents' work schedules, the child's school schedule as well as the needs of the child. For parents that live close together (meaning that getting to school for the child is not a problem from either house), it is pretty common for parents to rotate weeks or months with the child.

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Divorce and Property FAQ Family Law

  FAQ: Divorce and Property

What is the Marital or Community Property

Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions. The states of the United States that recognize community property are primarily in the West; it was inherited from Mexico's ganancial community system, which itself was inherited from Spanish law (a Roman-derived civil law system) and ultimately from the Visigoths. Even Louisiana, in a rare departure from the Napoleonic Code, was forced to adopt the ganancial community system while under Mexican rule (renamed "community of acquests and gains"), thus ousting the traditional French community of movables and acquests.


In a community property jurisdiction, most property acquired during the marriage (except for gifts or inheritances) is owned jointly by both spouses and is divided upon divorce, annulmentor death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property. The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of thefamily unit.


Division of community property may take place by item, by splitting all items or by value. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statute,

 meaning that the focus then shifts to whether particular items are to be classified as community or separate property. In other jurisdictions, such as Texas, a divorce court may decree an "equitable distribution" of community property, which may result in an unequal division of such. In non-community property states property may be divided byequitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (i.e., not community property). See division of property. Division of community debts may not be the same as division of community property. For example, in California, community property is required to be divided "equally" while community debt is required to be divided "equitably".

Property that is owned by one spouse before the marriage is the separate property of that spouse, unless the property is "transmuted" into community property. The rules for this vary from jurisdiction to jurisdiction.

How to List Marital or Community Property

Real Property

• Marital homestead
• Vacation home
• Business property
•  Rental property
•  Undeveloped land 

Personal Property

•  Home furnishings
• Rugs
• Antiques
•  Artwork
• China
• Crystal
• Coin collections
• Stamp collections
• Collectibles
• Guns
• Computers
• Home office equipment
• Jewelry
• Clothing
• Furs
• Motor vehicles
• Boats
• Campers
• Recreational
• ATVs 

Financial Assets

Cash on hand Checking accounts

Savings accounts

Christmas club accounts

Educational accounts

Retirement accounts

Pensions

Profit sharing

IRAsStocks and bonds

Mutual funds

Certificates of deposit

Annuities

Life insurance policy cash value

Trusts 

Business Assets

Sole proprietorships

Partnerships Professional practice

Professional degree Others

How Inheritance Becomes Community Property

Inherited real estate can also easily become owned by both spouses. If any money owned by both spouses is used for the upkeep or improvement of the property, it can be considered community property and thus must be divided in the event of a divorce.

It can be difficult to keep inheritance money or property from becoming community property and therefore subject to division in a divorce. For example, if your spouse helped pay the taxes on your inheritance (with a joint bank account, for example), the inheritance becomes community property. Another way that inheritance money can become jointly owned is if you allow your spouse ready access to the funds - for example, by letting your spouse use it to purchase a car, or to repair or build property.

Inheritance Laws

Each spouse owns one-half of the couple's property in community property states, and, therefore, when a husband or wife dies only one-half of the marital property is inheritable since the surviving spouse owns in his or her own right one-half of the marital property.

How woks the Inheritance and Divorce

Do they go together?

Dividing property is one of the most difficult parts of a divorce for many couples. Inheritance begins as the sole property of only one spouse.But indeed there are ways that it can become the property of both spouses. You can understand how this is possible, but first is necessary to understand the two types of property in a marriage:  Community property is property which is owned jointly, by the marriage rather than by the individual. This applies to property purchased by joint funds. Nine states in the Western United States have provisions about community property. In many of these jurisdictions, including California, a 50-50 split of the community property is mandated by law. Separate property is property owned individually by the members of the marriage. This often includes property that was owned prior to the marriage, or property gifted to one of the spouses. Inheritance is separate property, although there are many actions that can transmute it to community property.

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All what you need to know About the Divorce Process

All what you need to know About the Divorce Process

Residency Requirements for Filing for Divorce

State Laws vary regarding fault divorce and no fault divorce, so you have  to understand where you or your spouse could  file for divorce. Most states have a residency requirement, meaning that at least one of the spouses must have been a resident of that state for a specified length of time in order to file for divorce there. In  US States like this South Dakota, Alaska and Washington,  have no required length of time. To file in one of those states, you just have to be a resident of that state at the time you are filing for divorce.


What is a No Fault Divorce and How it works

A no fault divorce is type of divorce in which the spouse that is filing for divorce doesn't have to prove any fault on the part of the other spouse. All what the spouse has to do is give any reason that the state honors for the divorce. The most frecuently  reason given is:  irreconcilable differences. A spouse cannot object to another's petition for no fault divorce, as that objection itself is viewed by the court as an irreconcilable difference. All US States recognize no fault divorces, but some states require that the spouses live separately for a designate period of time before either of them can file for a divorce.

What is a  Fault Divorce and How it works

Fault divorces are not as common, in the matter of fact, many states no longer even recognize them. In the states that do recognize them, one of the spouses requests that a divorce be granted based on some fault of the other spouse. 

What are the most common grounds for granting a fault divorce

Inflicting emotional or physical pain (cruelty)
Adultery
Prison confinement
Abandonment for a certain length of time
A spouse is physically unable to have sexual intercourse

No state requires the spouses seeking a fault divorce to live apart for a specific period of time, unlike a no fault divorce. Proving fault also often provides the spouse without fault with a larger portion of the marital property or support. These two characteristics make a fault divorce more attractive to some people.


Do Divorce Orders of One State are valid in all the States

Courts of all states like to honor decisions made by courts of other states, because courts want the same respect paid to their decisions. Therefore, going back to the preceding example, if your spouse files in Illinois, this divorce and all of the court orders related to it, apply to you in your Missouri home.

Sometimes the court may not have personal jurisdiction over the nonresident spouse at the time of the divorce proceeding, rendering certain court decisions invalid. Then the Court gets jurisdiction over someone by that person being present in the state when he or she is personally served with the divorce papers, or when he or she consents to the jurisdiction by appearing at the court proceedings, signing off on receiving the legal papers, or fulfilling a court-ordered duty. A lack of personal jurisdiction means that although the divorce decree is valid, other related decisions, such as child custody, support, and property division, may be invalid.

It is always best to consult an attorney if you receive documents from a foreign state, but especially if you receive papers from a foreign country. There are many jurisdictional issues, such as what country is involved, where the spouses live or have lived, and where the children (if any) live. A lawyer will be the best person to help you sort through all of these issues and advise you on what to do.


What is an Uncontested Divorce and How it works 

It's the easiest way to filling for divorce if both members of a couple agree to divorce, filing for an uncontested divorce always save time and money through streamlined court procedures. Though more complicated divorces may fall outside a state’s uncontested divorce parameters, when both sides of the couple are informed and agree to the big issues in most divorces – child custody and support arrangements, property distribution and spousal support – uncontested divorce can save much time and money.

Eligibility for Uncontested Divorce How it works

Uncontested divorces are generally available to couples who have no remaining disagreements regarding the basic divorce issues like property division, child custody or spousal support. Like a contested divorce, an uncontested divorce begins by one side filing for divorce. Uncontested divorces usually have streamlined paperwork, in which property and child custody information is filed, along with a statement of the grounds for divorce.

What are the Benefits of Uncontested Divorce

The best benefit of uncontested divorce is the savings in divorce costs, not just save money but time, so it's worth for.While attorney representation will often be advisable even in an uncontested divorce, the streamlined procedure includes lowered court costs, as well in lowered lawyers fees.

Alexander Racini & Associates

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If you are thinking about filling for divorce and you need legal representation in any State of the United States of America, Canada, New Zeland, London UK, Hong Kong, Venezuela or any country around the world you can contact us here and we will provide you the best legal advise no matter where place in the world you are. You can also use our Service of Legal Advise online here to talk to our Lawyers.