Sunday, September 23, 2012

Is joint physical custody the right decision for your divorce?

It is not uncommon for parties to a divorce to consider joint physical custody. A joint physical custody arrangement occurs when the children spend approximately equal time with each parent. In some cases, this is best for the children. In many cases, the parents seek this because it lowers child support or it satisfies the emotions of the parents regardless of the effect on the children. In many cases, joint legal custody is not beneficial to the children. Experienced divorce lawyers should be prepared to discuss the potential for joint physical custody with their clients.

Before a divorce occurs, the parents develop responsibilities and patterns within the marriage. If the parties equally share the parenting responsibilities then it is appropriate to consider joint physical custody. On the other hand, if the parents have an arrangement where one party has primary responsibility for the children, then that parent should continue to have primary physical custody.

Joint physical custody is much more difficult than one parent having primary physical custody. It requires more cooperation between the parents. Joint custody should not be considered under the following circumstances:

1. The parties are not close to each other geographically.

Joint physical custody works on the theory that the children have two homes in the same school district or close enough that they have a short commute to school. If the parties live so far apart that the children don't have a reasonable commute, the children suffer. Long commutes interfere with children's sleep, homework, extra curricular activities, and relationships with their peers. Child custody arrangements should encourage the children to excel in school.

An alternative to having the children move from one parent's home to the other is an arrangment called a “bird's nest.” In a bird's nest arrangement, the children stay in one home and the parents move in and out of the home. This even more difficult than having two homes in the same area. However, it does allow one parent to have a residence some distance away.

2. The parents cannot communicate.

Joint custody requires the parents to communicate and cooperate. Children's schedules are constantly changing. The parties need to communicate regularly to have smooth exchanges. The frequent exchanges require communication on homework, school books, clothing, and toys. If the parties can't communicate, joint custody usually fails. Communication is usually very difficult if one parent is overly controlling, has a history of drug or alcohol abuse or has been physically abusive.

Joint physical custody is very difficult for most couples. However, if the parties can overcome the obstacles and succeed with a joint custody arrangement, the children may benefit.

Wednesday, September 19, 2012

Joint credit card debt and divorce

A divorce needs to address all marital assets and liabilities. Included in the liabilities are joint credit card debt. The final divorce judgment should address the joint credit card debts and explain who must pay the debt. The debt can be split between the spouses or one spouse may have the responsibility to pay the entire debt.

While one spouse may be responsible to pay the debt, this does not mean that the other spouse is free from ramifications of the debt. Creditors are not parties to the divorce and are not effected by the divorce decree. Another way of stating this is to say that a divorce judge can't order a credit to stop trying to collect a credit card debt from both spouses. Creditors are free to continue to take action against both spouses including listing the debt on the credit reports of both. If the husband is ordered to pay a credit card debt, the wife may find that she can't borrow money until this debt is paid in full. If the husband pays the debt but consistently makes the payments late, the wife's credit report may suffer along with the husband's.

The situation is the same with other joint debt such as auto loans, home mortgage loans, and business loans. The best way to deal with this potential problem is to have a lawyer draft language that does more than just obligate a spouse to pay a joint debt. The language should require indemnification as well.