Custody and Divorce

What's the Difference?

Sometimes legal terms get confused when they are used interchangeably.  Divorce and Custody are good examples of that.  If you are getting a divorce and you have children, you will also be working on custody issues.  You could also seek custody of your child even if you were never married and are not in need of a divorce.

Custody as Part of a Divorce Action

When you have kids and you decide to get divorced, the Court has jurisdiction over those kids.  This means that as part of your divorce action, either you and your spouse, your attorneys through negotiation or the judge will decide who has the kids, when and under what terms.  This includes visitation, child support, custody, vacations, health care and everything else that goes along with having a child.  The court will also divide your property either on its own findings or based upon the agreement of the parties or mediation.  Ultimately, the court will also grant your divorce.

Custody as an Independent Action

If you were never married and have a child together, you can ask the court to determine paternity, custody, child support and all the other odds and ends of things that go along with having a child.  This action is essentially the same as the custody portion of a divorce.  The court has jurisdiction over children who have lived in the state for a period of greater than 6 months and therefore can decide who will have custody and what the visitation will look like.

Trends in Custody

It used to be that the mother was almost always given primary physical custody of a child pursuant to divorce or to a custody action.  Over the years the court has moved away from that presumption.  The court looks at the best interest of the child in determining what custody arrangement will be ordered.  The court looks at several factors in making that decision.  While I will discuss those factors in my next post, the important thing here is that custody arrangements these days vary greatly.  Many times the court will order a 50/50 schedule where the child changes households every seven or so days.  If the parties agree on what the custody will look like you can get all sorts of arrangements; basically whatever fits your schedules as well as the kids' schedule.

If you need to talk with a Boise Divorce Attorney give us a call and see what we can do for you. (208) 472-2383.

Mediation in Divorce

 The Role of Mediation in Divorce

I have spoken before about mediation in the divorce process before but I cannot stress enough the value of mediation.  Mediation is a process to help divorcing couples work out issues which they are unable to agree on.  Old school contested divorce consisted of arguing the conflicts in front of a judge and the judge deciding how things would be done or divided.  More and more the judges are not just asking, but sometimes demanding, that sensitive issues like custody, be worked out between the parties.

Why Mediation

You might say, "if the judge isn't going to decide what's the point?"  The point is very simple.  You and your spouse know your family best.  You know your kids, you know their schedules, their hopes and dreams and fears.  You know what makes your kids tick.  The judge is an outsider.  If push comes to shove the judge will decide based upon the criteria set forth in the Idaho Code.  That criteria, however, is sterile in the sense that it is simply a guideline.  To make a judgment as to how your minor children will spend their lives until they are 18 based on a guideline is a fail for your children.

Working Together

Sometimes it is all but impossible to work together and that is why you are getting divorced.  You can disagree as to the division of your property and your debt and the judge will apply community property laws to solve the issue if you can't agree.  If you have minor children, the business of divorce is a process.  There will be years of coparenting and, while you may not agree as to how your spouse does things, the parties need to work together for the benefit of the children.  On going disagreement and conflict will not change the other party or get back at them, it will hurt your children.  So many kids today live in homes where a divorce has taken place.  The schools are overwhelmed with custody battles and schedules.  In my opinion, the best way to resolve a custody issue is through agreement.  If you can't agree on your own mediation can help the parties see what is important and what isn't.

If you are seeking a divorce or custody and need to speak with a Boise Divorce Attorney, give us a call and see what we can do for you, (208) 472-2383 or visit us a our divorce page.

Military Divorce

Military Divorce

I get a lot of questions from folks about military divorce.  In general, these questions revolve around child custody with an active duty military parent, military retirement, service of process on a member of the military who is on active duty and child support.  Military divorce has many of its own issues that you don't find or which are handled differently than a regular divorce.

Service of Process

There are laws to protect service members who are deployed or on active duty.  In the civilian context, when you serve divorce papers on someone you can have them served at home or at work.  If you have them served at home there is not a requirement that they personally are served.  Anyone over 18 years of age in the household can be served the papers and that is effective service.  Once they are served, they have twenty days to respond to the complaint or a default may be taken against them.

Active military personnel are protected against this with the Service Members Civil Relief Act (previously known as the Soldiers and Sailors Civil Relief Act).  Not only can they not be served divorce papers, no divorce action may be taken against them while they are on active duty or immediately after the return from active duty.

Exercising Custody and Visitation While Deployed

Idaho allows a soldier to delegate their right to visitation and custody to another party by power of attorney.  What this means is that if a member of the armed services is deployed they can give their visitation rights to whomever they want (obviously within reason).  While it can and does cause irritation with the other parent, particularly if the right of visitation is given to a new partner or significant other, this allows a proxy to exercise regular and frequent contact while the service member is away on active duty.

Military Retirement

Military retirement and how it is divided is one of those things that have changed over time.  While a military spouse is entitled to half of the retirement acquired during their marriage, it hasn't always been that way.  At one point, maybe more, in Idaho law, military retirement belonged to the service member alone.

The division of military retirement requires specific paperwork to be divided correctly and for the proper accounting to be made.

Child Support

Believe it or not, there are issues with child support and military personnel.  These often revolve around the actual income of the soldier.  A soldier's income will include their regular pay, any disability the receive as well as any vouchers, housing or otherwise, that they receive.

If you need a divorce and want to speak with a Boise Divorce Attorney, give us a call at (208) 472-2383.  You will be glad you did.