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Frequently Asked Family Law Questions

Munson and O'Connell Provide Guidance On Family Law Questions

Dealing with legal issues in the family context can be a difficult and emotional process. Having accurate information about divorce, child custody, and related issues, however, can help. For this reason, our family law attorneys have prepared brief answers to frequently asked family law questions. If you have additional questions, please do not hesitate to call any of the Woods Fuller family law attorneys.

Q1: I want a divorce or I have just been served divorce papers, do I need to hire a lawyer?

Unless you have a simple, uncontested divorce, hiring a lawyer is highly recommended. If there are any disputes about child custody, visitation, property distribution, taxes or alimony, and especially if your spouse has hired a lawyer, you will likely need a professional to protect your interests.

Q2: How will property be divided?

The judge will make an equitable division of the marital property by considering several factors, including the duration of the marriage, the value of the property, the age of the parties, the health of the parties, the parties’ competency to earn a living, the contribution of each party to the accumulation of the property, and the income-producing capacity of the parties’ assets. Presenting arguments to the judge regarding each of these factors is important in obtaining an equitable property division.

Q3: How will the judge decide who gets custody of our children?

Custody decisions are based on the best interest of the child. The judge looks at a number of factors to determine the best interest of the child, including: (1) which parent is better equipped to provide for the child’s temporal, mental, and moral welfare; (2) who can provide a stable and consistent home environment; (3) who is more committed and involved in parenting the child; and (4) has there been any parental misconduct that has had a harmful effect on the child. There are additional factors and sub-factors the judge will consider, and understanding each of the factors is vital to presenting your custody argument to the judge.

Q4: How is child support determined?

Both parents are obligated to provide for the support of their child(ren) in accordance with their respective means. The amount each parent is to contribute is set according to support guidelines established under South Dakota law. While it is based on a formula, there are deviations and abatements that may apply to your situation.

Q5: At what age will the judge consider who my child wants to live with?

If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining custody. However, the courts have not stated a specific age that is sufficient, because it depends greatly on the child involved. Also, it is not always in a child’s best interest to put a child in the position of choosing between parents. This is handled on a case-by-case basis.

Q6: Can I terminate visitation if I am not being paid the support I am owed?

No. The right to visitation is not conditional on payment of child support.

Q7: Can I relocate with my child(ren) after the divorce?

Before you decide to relocate with your child(ren) after a divorce, you must provide written notice to the non-custodial parent in the manner and within the deadlines set by statute or your specific custody order. It is prudent to contact an attorney to make sure you are providing sufficient notice. Also, the non-custodial parent may ask the judge to block relocation of the child(ren) if relocation is not in the best interest of the child(ren).

Q8: How long will it take to get a divorce?

South Dakota law requires a 60-day “cooling off” period before a divorce can be granted. However, the process generally takes longer if there is need to determine, for example, the value of property in the marital estate or work through custody issues. Ultimately, the parties dictate how long it takes to obtain a divorce, depending on whether the parties agree on issues involving child custody, child support, division of assets, division of debts, and spousal maintenance (alimony), just to name a few. These disagreements generally require additional time negotiating and sometimes require a court determination.

Q9: What is the difference between legal and physical custody?

Legal custody is the right to determine the child’s upbringing, including education, health care and religious training. Generally, both parents are entitled to legal custody. Physical custody is the routine and daily care of the minor child. In some circumstances, parents can share joint legal and physical custody of the children.

Q10: Will the court award alimony?

Alimony, also referred to as spousal maintenance, is the payment of future income or earnings from one spouse to the other. The types of alimony include permanent, rehabilitative, and restitutional alimony. The judge will decide the amount and type of alimony awarded, considering the length of the marriage, earning capacity of the parties, financial condition after the property division, age, health and physical condition of the parties, the parties’ station in life or social standing, and fault.

Q11: Can I recover my attorneys’ fees?

Perhaps. The judge has the discretion to award attorney fees in cases of divorce, annulment, paternity, separate maintenance, support, or alimony, depending on the facts and circumstances.

Q12: Does marital misconduct, such as adultery, affect who is awarded custody of the child(ren)?

Depends. When awarding custody, the judge will consider parental misconduct, which is different than marital misconduct. Also, the parental misconduct must have been harmful to the child(ren) or show the parent is unfit to have custody.

Q13: Do grandparents have any rights to visitation?

Yes, but the judge will decide whether grandparents are entitled to visitation with their grandchild(ren) using the best interest of the child standard, and the judge must give special weight to the parents’ objections to grandparent visitation.

Hopefully this has been helpful to you in regards to family law. While we cannot address all family law questions, we do invite you to contact us if you have further questions.

May 28, 2014