Divorce By Publication

Sometimes a spouse disappears out of carelessness, and sometimes out of spite. A spouse leaves town or state without leaving a forwarding address. In some cases, the couple lives apart for a long time without divorcing, so they drift apart. Sometimes disappearing spouses believe they can hold up an action if they cannot be personally served. But it is not so. When all else fails, a petitioner may legally notify a respondent of a divorce in a newspaper advertisement.

Divorce by publication joins the spirit and the letter of the law in a procedure that has ended the marriages of thousands of people who cannot find and serve personally a missing spouse. Service by publication insures that a party is aware of litigation pending against him or her.

Divorce by publication frees spouses who would otherwise be chained to marriages that exist in name only.

Each divorce starts when a plaintiff (or petitioner) spouse files a petition (or complaint) for divorce against a defendant (or respondent) spouse. The plaintiff spouse files in the court clerk’s office. The clerk’s office normally gives the plaintiff a summons, a legal document that puts the defendant on notice of the case. The summons requires that spouse make an appearance in the case. Courts require plaintiffs to serve the summons to ensure they have the opportunity to defend themselves. This notice is called “service of process.” It insures that no one is blindsided by litigation and a defendant has adequate time to prepare for action.

Normally the plaintiff’s attorney or a neutral third party delivers the petition and summons (“the divorce papers”) directly to the defendant by hand or mail. In all jurisdictions, the most common type of service is “personal service,” where the divorce papers go directly to the defendant. In many jurisdictions, the sheriff or constable serves the summons. Sometimes, a plaintiff spouse can deliver the divorce paperwork directly to the defendant spouse. In other cases, a plaintiff spouse or the plaintiff’s attorney hires a professional process server to deliver the paperwork to the defendant spouse.

The person who delivers the divorce papers completes an affidavit verifying that service has happened. In many cases, the defendant spouse acknowledges receipt of the summons. For the plaintiff, this eliminates the cost of a process server; for the defendant, it eliminates being served at work or in another public place. The defendant completes an acknowledgement of service form that goes back to the clerk. In addition to personal service, most jurisdictions also allow substitute service, where the defendant receives the summons at home, a place of business, or by certified mail.

When a plaintiff cannot locate a defendant, the court may allow service by publication. In this regime, the plaintiff notifies a defendant of a lawsuit by publishing a notice in a court-approved newspaper or other publication. This type of notice is called “a constructive notice.” While the defendant may not have actually received notice, (or even see it or read it) publishing information about the lawsuit publicly fulfills the notice requirement, so the lawsuit may begin. Normally service by publication results in a default judgment for the plaintiff since the defendant fails to answer the summons.

Service by publication is a last resort; courts require a plaintiff to make “a diligent effort” and exhaust all other options of service before permitting it. The plaintiff or his or her attorney submits an affidavit stating the efforts taken to locate the defendant and requesting permission for service by publication. When the court grants the request, the plaintiff submits a notice to the court-approved publication. The plaintiff pays a small fee to the publication for publishing the notice. In most states, the notice must appear a certain number of times or for a certain time period.

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Who Needs a Prenuptial Agreement?

Very often couples planning marriage face a moment when one asks the other, “Will you sign a prenuptial agreement?”

The decision to ask for a prenuptial agreement is based on the very real possibility that the marriage may flounder. In a way, a prenup, as it is called, is often referred to as a  prearranged divorce. Some people might think of it as parachute that you hope they never use. A prenuptial agreement, according to Black’s Law Dictionary, is one “entered into by the prospective spouses prior to marriage by in consideration thereof, by it, the property and other financial rights of one or both …predetermined or secured to one or both of them or their children.”

A prenuptial agreement can be very important when a couple spins that roulette wheel of romance a second and/or a third time, when both the husband to be and the wife to be each have accumulated assets they wish to convey to adult children.

A prenup is a contract between two people — a husband and wife – by which, with reasonable limitations, they establish in advance the terms and conditions of their divorce. Without a prenup, the court divides contested property by the laws of the jurisdiction. With a prenup, the couple can in advance decide who gets what.

The prenup documents each partner’s separate property and protects it as such. Prenups are used in support of estate plans. They distinguish between marital and separate property, and document any special arrangements between the partners.

However, the prenuptial agreement must deal with financial affairs, not “personal preferences,” such as chores or schools that the children attend.

Of course, some people balk at the thought of a prenup, after all, does not love last forever even when 60 percent of second marriages capsize?

Obvious it does not.

Many family law lawyers recommend a prenuptial agreement if a party owns real estate or any part of a business, has $50,000 in assets, earns more than $100,000 a year, has more than one year’s worth of retirement benefits. A prenup should also be considered if one party plans to go on for an advanced degree.


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When Alcoholism Factors Into a Child Custody Dispute

Few considerations in divorce proceedings are more emotionally charged than the health, welfare and safety of the children. Courts let couples settle the terms and conditions of a divorce but will intervene if  one parent disagrees with the other regarding an assessment of drinking and the ability of safely caring  for the children.

Alcoholism is a large problem in the United States. About 14 million Americans meet the diagnostic criteria for alcohol abuse, and one in four children under the age of 18 is exposed to alcohol abuse or dependence in the family. Some states specify alcohol abuse as a factor in determining custody, and others give the courts more discretionary power to deal with it on an individual basis.

Courts consider alcoholism seriously, not just when awarding custody arrangements but afterwards. For instance, a custodial parent wrestling with alcoholism can lose custody when the noncustodial parent proves that alcoholism makes him or her an unfit parent. Proving this can be a daunting task, but any type of police records that support such a claim are the go to resource by lawyers.

Courts in all jurisdictions consider the “best interest of a child” in a custody battle; however, often it falls to the judge to determine the exact weight that alcohol abuse plays in the decision, and thus the onus is on the judge to make a determination. In exercising discretion under the best interest standard, courts generally consider, first, the safety and welfare of the child in balance with frequent and continuing contact with both parents.

For example, in California’s codified policy reinforces legislation that the “perpetration of child abuse or domestic violence in a household were a child resides is detrimental to the child.” Drunkenness becomes a heavy consideration and makes a strong case for sole custody. However, courts consider that when a former spouse helped raise the children, custody or visitation award must consider joint parenting, and thus assure that children have frequent and continuing contact with both parents. Also keep in mind that supervised visitation is always an option the court may exercise in the custody order.

In such a holding, a court might require independent corroboration, such as written reports from law enforcement agencies, medical rehabilitation facilities or other organizations providing drug and alcohol abuse.

The court can order alcohol testing so long as the court has credible and independent corroboration the accused parent is abusing alcohol or using drugs, and generally lawyers gather this evidence before the hearing and present it to the court through documents and testimony.

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When Only One Spouse Wants a Divorce

Divorce creates situations that tax the wisdom of Solomon. Judges struggle with nearly insoluble questions involving child custody and visitation, but no judge has the answer for the most common problem created by no-fault divorce: the sad reality that it takes two people to make a marriage, but only one to get divorced.

No-fault divorce works like a Doomsday machine because only the person who starts it can stop it. The party who wants out (normally called the “petitioner” or ”plaintiff”) has a right to divorce without permission of his or her spouse. Not wanting to be married to a person (which may be called “irreconcilable differences” or “irretrievable breakdown”) are grounds to end the marriage. No longer do couples have to go to war like the bad old days (the 1950s) where a spouse had to prove fault (such as adultery) in order to extract himself or herself from a marriage-gone south.

Under the law, marriage is a contract and laws protect the one who wishes to break it, not the one who wishes to continue.

In the United States today more than 80 percent of no-fault divorces are unilateral. This means that one party (normally called the “respondent” or “defendant”) objects to the divorce, yet has no say about ending the marriage. “It is easier to divorce my wife of 26 years than to fire someone I hired one week ago. The person I hire has more legal clout than my wife of 26 years. That’s wrong,” says Family Court Judge Randall Hekman.

The party who wishes to remain married has all the chances of success that Gen. Custer had at the Battle of Little Big Horn. The party has no legal recourse. He or she can drag out the action, or make it more expensive, or more unpleasant – but not stop it.

The antecedent causes for no-fault divorce reform happened when judges and divorce attorneys came to view the fault regime as a threat to the integrity of the Family Court System. Judges were tired of watching battling couples perjure themselves in order to receive a fault-based divorce. One longtime Pennsylvania judge called divorce court “liars’ club.”

Needless to say, unilateral divorce makes for great pain and suffering to the unwilling participant who often feels like he or she has tumbled head over heels into the Grand Canyon.

At the end of day, as is said, if one spouse wants out (call him or her the “dumper”) and the other spouse does not (call him or her “the dumped”), and no one changes his or her mind, there’s nothing to do but let go.

Hard as it is to accept, no one can force someone to love someone. And no one can force someone to stay married.





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Stalling a Divorce

An angry spouse may believe otherwise, but he or she cannot stall a divorce by not signing the divorce papers. The court grants the divorce. All jurisdictions now recognize no-fault grounds, so the judge signs the decree, officially terminating the marriage. Thus the filing spouse does not need his or her partner’s agreement or signature.

When one spouse wants to end a marriage, no-fault divorce makes divorce, like death and taxes, inescapable.

Despite the inevitability of a divorce, sometimes the opposing party acts in bad faith when facing an unwanted divorce. This can happen because people sometimes go over the edge when facing a divorce. Realizing they are losing someone they love or time with their children or their money, they become bitter and twisted with anger. Moreover, sometimes overzealous attorneys join in to help the party obstruct the proceedings or use the legal system to punish his or her estranged spouse. Judges call such maneuvers in bad faith.

The most common tactic is delay. Delaying the proceedings drives up the cost of the action for both sides. A party may fail to respond to the divorce petition, and then ask the court for more time. He or she may ignore requests for documentation substantiating assets, so negotiations or the trial might be delayed. Running up legal fees may not be apparent until a pattern establishes itself over time, such as motions asking a judge to address minute details or endless correspondence that cost money to answer. Stalling tactics are usually pretty obvious.

More serious forms of bad faith conduct involve secreting marital assets. Sometimes when someone plans a divorce, he or she hides an asset in advance, which makes it more difficult to detect. Once a divorce is underway, litigants and their attorneys usually try to identify and value marital property. Discovery requests can include documents that date back years. A brokerage account may be transferred long before filing for divorce, but statements going back years may reveal the transfer.

Lying about income is another form of bad faith. A spouse misrepresents income to reduce child support or eliminate alimony. Detecting this deceit may involve checking credit card records or a monthly budget. A self-employed person may siphon off cash receipts, pocketing them rather than depositing them into a business account. A divorcing spouse  may even ask an employer to withhold bonuses until the divorce is over.

Children can become proxies when parents battle over custody issues. The uninvolved parent who demands full custody may be dodging child support. It is not uncommon for a parent to allege domestic violence in an attempt to portray the other spouse as bad parent. Custody issues also drag out court actions.

In the end, bad faith stalling and delaying at best becomes a Pyrrhic victory that costs money and magnifies the pain and suffering for both spouses. Courts have other ways to deal with hiding assets, lying about income, and making false accusations.

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Conflict and Child Custody Disputes

Conflict is the most critical determining factor in children’s adjustment post-divorce, not the divorce itself or the residential parenting routine of custody.

High-conflict custody and visitation cases are often fueled by irrational emotional behavior, and children, exposed to high conflict custody conflicts, suffer tremendously because they are caught in a crossfire between two parents they love.

During the fight for custody the children are pulled from one side to the other and often results in the children feeling emotionally distant from both parents. They become isolated in a time when they need companionship more than ever. This phenomenon is called Parental Alienation Syndrome (PAS), a concept developed by child psychiatrist Dr. Richard Gardner in the 1970s. Dr. Gardner reviewed the scientific and legal literature about adults alienating the affections of one adult from another. When Dr. Gardner studied cases about alienation of children from a previously loved parent, there was ample evidence that this terrible process occurred all too often.

Children rate conflict between their parents as one of most stressful aspects of divorce because conflict is associated with child maladjustment. Children in divorced families, where the parents have low levels of conflict, adjust better than children in intact families with high levels of conflict. Conflict that is hostile, aggressive, lacks a resolution, and is related to the child is more upsetting to children, but this is unfortunately often the case.

Parents often divorce after unsuccessful attempts to resolve spousal conflict, and after a divorce, much of the conflict is related to issues of custody and visitation. This is further complicated when parents express their anger at their former spouse through the issues related to the child.

Children caught in the crossfire of custody conflict appears to be the factor that most accounts for associations between parental conflict and children’s adjustment problems after divorce. Children’s psychological reactions to their parents’ divorce depend on 1) the quality of the parent-child relationship before the divorce; 2) the intensity and duration of the parental struggle; and 3) the parents’ ability to prioritize the needs of the children.

Children learn at home how to resolve conflict and how to relate to others. The more conflict there is between the divorcing parents, the longer children hold on to the notion of their parents’ reconciliation is possible. Hence, healthy, constructive conflict resolution skills and processes such as collaborative divorce or divorce mediation benefit the divorcing parents and their children during and after the divorce.

While there are many well-intended parents, divorce is a difficult and stressful process. From the point of view of the child’s development and well being, the parents’ focus is clear: maintain a focus on the child’s best interests when they are vulnerable to disappointment, confusion, anger, anxiety, and guilt.

The children of divorcing parents can overcome their parent’s separation and learn to form healthy relationships as long as their parents demonstrate constructive conflict resolution skills and create workable co-parenting schedules, responsibilities, and priorities.

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Loneliness and Divorce

Divorce loneliness is part of pain and suffering of a failed marriage. “I feel so empty and alone” is the theme and refrain that the mourners know when burying a marriage that has died. This deep aching loneliness can seem unbearable. Man or woman, the leaver or the left, adulterer or faithful partner, loneliness infiltrates the heart and soul, and it hurts.

The crushing loneliness often inundates people who find themselves single again.   A song from the past happier times, the sight of a couple walking arm in arm, the overheard conversation of loved ones greeting each other at the airport – all can trigger a suffocating loneliness.

According to the Rev. Pastor Reydon Stanford, the emotional and mental pain that often accompany divorce can be unbearable.  It is not uncommon for these types of emotional strains to lead to further destructive behaviors — substance abuse or other addictions, alternative ‘soothing relationships,’ severe depression or anxiety…and sadly, even suicide.

Divorce is one of the most internally damaging experiences a man or woman endure because it is one of the greatest losses in life that can be experienced.

Almost no one handles divorce alone.  Divorce means the loss of an intimate relationship, the loss of a life-long dream, the loss of trust, the loss of security, the loss of self-esteem and the loss of loved ones.

Many professionals as well as anyone who has personally experienced divorce agree that the “loss of a partner through divorce is worse than loss of a partner through death.”  Death ends a marriage in the natural way; divorce ends marriage in an unnatural way.  Most times when death ends a marriage, the deceased did not want to die and both spouses still love and comfort each other.  In divorce, love is lost and that knowledge haunts thoughts and emotions for many years to come.

A person can cope with the loneliness of divorce by facing it. After acknowledging the pain, he or she can wait it out, fight it, or embrace it.

Waiting it out enlists the Great Physician – Time. For many, time heals the wounds of divorce. Some experts say it can take somewhere around 3-4 years and the healing process begins immediately. The divorced do not forget about former spouses several years after separation, of course, but most of the healing work for a spouse who’s gone through a typical divorce is complete within about 3 years. Some people simply endure the loneliness they feel, and some people decide to live with it, knowing that it won’t last forever and though painful is not fatal.

For some time helps them forget just how miserable they were in the wake of the divorce and some people resolve to fight loneliness.

Grief counseling helps in dealing with loneliness. A therapist helps analyze the loneliness and understand how threatening it is. Counseling works because shared pain is half the pain, shared joy is twice the joy.

Ernest Hemingway said loneliness can be very productive. Some people turn to volunteer work at a homeless shelter or visiting people in a nursing home. There are any number of other places to use the free time of divorce in a useful way.

Very little about divorce is good, but it does offer the chance to embrace loneliness, which can be a life changing discovery. A healing person can learn to make a friend of himself or herself through the battle in dealing with loneliness.

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Termination of Parental Rights (TPR)

Termination of Parental Rights (TPR) is taking away a parent’s rights and he or she is not legally a child’s parent anymore. When a parent’s rights are terminated, that parent looses all right to visit or even talk with the child. The parent can no longer have any input as far as how the child is raised and the child can be adopted without any input from the parent whose rights have been terminated.

Courts may take away parental rights as a way to protect a child or children who are in a bad situation with the parent. It is rare that a parent can start a process to take away the parental rights of another parent, but parental rights sometimes are terminated during a divorce or as part of stepparent adoption.

Termination of parental rights can be voluntary or involuntary. Voluntary termination means a person agrees to terminate his or her rights as a parent because the parent agrees it is the best thing for the child and there is a good reason to do it. This is often the case in a stepparent adoption. Parental rights termination can also be used if a child has been in foster care for a long time and there is no reasonable means to place the child back with his or her biological parent or parents. Parental rights cannot be terminated just because the parent does not want to pay or is unwilling to pay child support.

Involuntary termination is when a parent does not agree to give up his or her rights as a parent. In this instance, the court will decide the parent’s rights should be terminated. Courts do not often terminate a parent’s rights through involuntary termination. The court uses this type of termination where the child may be in danger if in the parent’s care or the parent cannot properly take care of the child. Some instances where parents rights have been involuntary terminated are when the parent abandons the child or children, if the child is neglected, if the parent is unfit to take care of the child, or if the child is in egregious harm.

Mom cannot simply have Dad’s parental rights terminated (nor can Dad have Mom’s parental rights terminated).  Courts believe the child or children are better off with both parents in the child or children’s lives and would rather not terminate a parent’s rights unless there is a very good reason or extreme case of abuse. This is true even if both parents agree to the termination.

Normally, in the case of a remarriage, a parent’s rights may be terminated when the stepparent wants to adopt the child or children. If the other parent agrees to the stepparent adoption, usually one party will ask the Court asking to terminate the other parent’s rights so as to allow the new spouse to adopt the child or children. The parent whose rights are being terminated must consent to the termination of his or her rights; and do so in writing.

Terminating parent’s rights is not easy. There are only certain circumstances where termination may happen. If a parent does not want his or her rights terminated, those rights cannot simply be taken away.

Removing a parent’s rights also takes away their responsibility to support the child or children. If there is any chance a parent can afford support, the state is unwilling to terminate parental rights if it means the other spouse or the children need public benefits.

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Mending a Marriage After an Affair

An affair doesn’t have to mean a marriage is over.

Few marital problems cause as much heartache and devastation as infidelity, which assaults the foundation of marriage itself. However, when both spouses commit to authentic healing, most marriages survive. Many marriages become stronger with deeper levels of intimacy.

To a certain extent, defining infidelity depends on the people and the circumstances. Many married women consider an emotional affair by their husband, where there is an emotional connection without physical intimacy, to be a much more threatening form of infidelity than one with sexual relations. Each person and couple needs to define for himself or herself what constitutes infidelity in the context of their marriage. When one spouse says that the contact is faithless, it is faithless.

Discovering an affair jolts the victim spouse and may trigger powerful emotions, such as anger, betrayal, shame, depression, guilt, fear,  or remorse. Thinking clearly enough to make long-term decisions becomes very difficult, and the moment of discovery is not a time for rash decisions.

The victim spouse should seek support. It can help to share the experience and feelings with trusted friends or loved ones who can offer support. Any friends or family who tend to be critical or judgmental of the situation should be avoided. Negative outside influence is almost always detrimental to the cause of saving ones marriage. 
 Setting up an appointment with an experienced marriage and family therapist is typically the first step in the repair process.

It is a good idea to go slowly. Even though the victim spouse might have a deep desire to understand what or why this has happened, he or she should avoid wanting to know all the details. A fixation on the details of the affair in the early stages of the repair process will make it next to impossible. One should focus more on solving the issues that caused it in the first place.

Fixing a broken marriage or relationship is one of the most daunting tasks in a person’s life because it involves a path that has been rarely traveled in the past. However, as a person rebuilds trust, admits guilt, learns how to forgive, and the strength is gained to love even more. The road to repair is long and hard, but the rewards can be overwhelmingly positive.

Divorce or reconciliation is not a decision to make at the height of an emotion typhoon. Before choosing to continue or end the marriage, the victim should take the time to heal and understand what was behind the affair. 
Professional help with a counselor who specializes in marital therapy can be invaluable.

The unfaithful spouse must be accountable. He or she must own-up to his or her actions and take responsibility for the affair.

Ending the affair is a must!

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How Joint Physical Custody Arrangements Effect Children

Is there an association between joint physical custody and psychosomatic problems in children?

In many Western countries, an increasing number of children with separated parents live in a joint physical custody arrangement, that is, live equally (or close there to) as much in their parent’s respective homes. In Sweden, joint physical custody is particularly common; between 30 percent and 40 percent of the children with separated parents live in joint physical custody regimes. Some believe that the frequent moves and lack of stability in parenting may be stressful for these children, but a new study, published in April 2015 in the Journal of Epidemiology & Community Health, suggests that children fare better when they spend time living with both of their parents.

Children in a joint physical custody arrangement suffered from fewer psychosomatic problems than those living mostly or only with one parent but reported more symptoms than those in non-broken families. Satisfaction with their material resources and parent-child relationships was associated with the children’s psychosomatic health but could not explain the differences between the children in the different living arrangements.

Regarding the well being of kids with divorced parents, the debate over what kind of custody arrangement is best rages on, but the Swedish study goes against some current thinking that kids in shared-custody routines are exposed to more stress due to constantly moving back and forth and the social disruption that can come along with it. Children are best in an environment with consistent routines. The lack of routine can cause instability, which is result from moving from one house to the other.

“Child experts and people in general assumed that these children should be more stressed,” says study author Dr. Malin Bergström, a researcher at the Centre for Health Equity Studies in Stockholm, Sweden. “But this study opposes a major concern that this should not be good for children.”

Joint-custody parenting has risen dramatically in Sweden in the past few decades; 25 years ago, only 1 percent of children of divorced parents lived in joint-custody arrangements, but that number increased to 40 percent in 2010. These types of child custody arrangements are less common within the United States, says Dr. Ned Holstein, founder and acting executive director of the National Parents Organization.

Dr. Holstein estimates that shared/joint physical custody arrangements make up less than 20% of all custody orders. Still, he says that the research in favor of shared parenting for kids is overwhelming positive. “You’ll hear opponents say, ‘You’ll turn them into suitcase kids; they don’t want to be dragged back and forth,’” Dr. Holstein says. “Clearly, taking the suitcase back and forth once or twice a week so that you spend a lot of time with both parents is way better for the kids than the alternative of basically losing an intimate and closely loving relationship with one parent.”


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