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Dissolution/Divorce and Legal Separation
If you are married and wish to terminate your marriage, you may either pursue a legal separation, a divorce/dissolution of marriage or annulment. The only difference between a divorce and a dissolution is the state in which you reside. South Dakota labels it a divorce; Nebraska and Iowa label it a dissolution of marriage.
We can advise you on whether it makes sense to pursue a separation or a termination of your marriage, depending on your financial needs and religious beliefs. We can also represent you in the several matters that have to be resolved within a dissolution or divorce action, including spousal support, child custody, visitation and parenting time, child support, division of assets and liabilities, and other collateral matters.
Each state has a little different set of considerations and things to consider; for example, South Dakota is still a “fault” state, which means something different than “no fault,” which is the consideration in Nebraska and Iowa. The firm can appropriately represent you and give you competent advice in any of the three surrounding states as to how to proceed in your divorce or dissolution of marriage.
Child custody can involve both married parents and unmarried parents. The dissolution/divorce will deal with child custody within that action. Unmarried parents will need to file a separate action to establish custody of their child. Each situation involves a different set of rules to follow. There are both legal custody and physical custody/physical care decisions that need to be made. A parenting plan also has to be established. Custody and parenting time may greatly vary depending on the age of your children and the current situation for caregiving. A very young child will benefit more from seeing its parents frequently, whereas an older child may go longer periods of time in the care of either parent. There are considerations for parenting time based on distance between the families. Again, each state is different, particularly in South Dakota, where it has created the parenting guidelines that govern visitation and parenting time for its families. We can help with navigating this area to determine which custodial arrangement and parenting plan would be best for you and your children.
Visitation and Parenting Time
As the noncustodial parent, you may be required to pursue your legal right to visitation and parenting time with your child. Over the years, we have familiarized ourselves with many different kinds of parenting plans that may be helpful in your situation and can help you decide on what kind of plan would be best for you and your children.
In the instance of unmarried parents, a mother may need to legally establish a father as the father of her child, if he has not acknowledged his role in the child’s life. If that is the case, the father will need to submit to a genetic test to establish paternity. This can happen through either a child support action through the State or in a separately filed private action to establish paternity. The private action may also include an action for custody and/or support to be established in addition to the paternity finding. We can help you navigate through this kind of action if you need to have a person established as the father of your child.
Disestablishment of Paternity
In the converse to establishing paternity, as a father, you may need to prove that you are not the father of a child. You may be married to a woman who is pregnant with a child who is not your child. You may be listed as the father on the birth certificate of a child born out of wedlock and have later discovered you are not the father of the child. There is a very specific action that must be filed to disestablish the father as the legal father of the child. Again, the alleged father will have to submit to a paternity test to disestablish himself as the father of the child. We can help you file this specific action to protect your rights in this kind of situation.
Child support for your child may be established through the state recovery unit. The state may prompt a child support action on its own, if you have applied for state services, including FIP, ADC or Medicaid. You may also be defending yourself against an action filed by the state for support for your child, if you are the noncustodial parent.
As the custodial parent, you may also seek to establish your own child support order on behalf of your child, which may also be a part of a custody and/or paternity action. The state action for support is limited as to what can be resolved within the action, whereas more things can be addressed in a private action. We can help you decide which matter is more appropriate, given your situation, for you to get the results you need for your child.
Each state has its own set of child support guidelines and computes child support differently. Each state also has different guidelines for health insurance and uncovered medical expenses, in addition to the various ways child care is allocated between the parties. We are familiar with the child support guidelines in Iowa, Nebraska and South Dakota, as well as all of these nuances to the guidelines regarding medical expenses and other allocations, to ensure your child support is computed correctly and to maximize your claim or defense.
Spousal support and alimony are similar: it is an allowance paid from one spouse to the other, or paid on behalf of that spouse, after the parties separate and/or divorce. There are different kinds of alimony that apply depending on your situation, including a party’s income, length of marriage, and each party’s health and education. We are familiar with the governing factors that involve spousal support and alimony and can help you decipher whether a spouse is entitled to alimony in your case.
Wage Withholding Orders
A wage withholding order may be entered in any case where child support is ordered to be paid. An employer will withhold support amounts from each paycheck of the payor. The order may also include a separate payment for back-owed child support or for alimony and spousal support. Unfortunately, a wage withholding order cannot be entered if the only payment owed is alimony; there has to be a corresponding child support order included with the withholding. There are benefits to both the payor and recipient in having this kind of order. The payor is able to pay child support according to his or her pay schedule and the recipient is guaranteed a child support payment. We can draft these orders in any of these instances and submit them to the court for approval.
Division of Assets and Liabilities
This is another of the factors that have to be addressed in a dissolution or divorce of a married couple; how to divide up your assets and liabilities. There are many different issues that can arise in this area, including, in particular, how to value the assets you have. We have worked with many appraisers and expert witnesses in the area and can hire the appropriate person to value what needs to be valued, from real estate to personal property, and from a small business to a stock-owned corporation. These people will also be equipped, if necessary, to testify on your behalf at trial. We can also assist you in discovering assets, in the event you are not certain what assets may be owned by your spouse. Obtaining information like this will ultimately lead you to the equitable division of assets and liabilities that is required in a divorce or dissolution matter.
Property Division, Pensions and Retirement Accounts
During your divorce, you may need to value your pension plan through your employment. As part of your property settlement, you may agree you would divide your retirement account with your spouse. If so, you may be required to draft a Qualified Domestic Relations Order in order to divide that account. This is a very specific order that, if drafted incorrectly, can cause dire consequences, particularly if you have a defined benefit retirement account. There are also many loopholes that can be fallen into with your defined contribution account that need to be avoided. We have the resources to be able to appropriately represent you in preserving your retirement accounts, ensuring they are accurately valued and divided accordingly.
Modification of Decree
Once your divorce decree (court order) is entered, you may find the need down the road to have to change a portion of it, particularly the parenting plan, custody and/or the child support provisions, or the spousal support and alimony provisions. There is a whole other host of considerations that will have to be made in determining whether you are able to pursue a modification of your existing court order. We have extensive experience in the area of modifying parenting plans and support provisions and can assist you in determining whether it is cost-effective and appropriate to file such an action.
Contempt of Court
Another post-decree action that may have to be considered is a contempt of court citation. This happens when you have a court order, and the other party refuses to follow it. It can affect any part of your custody order, including physical care, parenting time, and child support. It can affect any part of your divorce decree, and in addition to the issues with your children, could include payment of spousal support, dividing up the assets and debts, and payment of any judgment contained in the order. The burden to prove a violation of the court order is very high. We can help you in analyzing whether filing a contempt of court action is appropriate and can seek the relief you need.
Domestic Abuse Protection Order
If you are the victim of domestic violence, you have a couple of options to protect yourself from your assaulter beyond filing criminal charges, depending on the state where you are located. You may elect to pursue a civil protective order, prohibiting that person from having any contact with you for up to five years. Depending on the situation, the protective order may also address custody of your children. In Nebraska and South Dakota only, there is also the option for a harassment protective order, in the event you have not been subject to assault, but have been the victim of harassment. We can assist you in determining what kind of protective order you may need and ensure you are protected from the Court in the instance of domestic violence or harassment.
If you are a grandparent, family member or other third party and have custody of a child, you need to pursue a guardianship to have legal rights to make decisions on behalf of that child. You will find road-blocks in several areas, including schooling and medical care, which will make it imperative for you to pursue a guardianship action. You may also be a concerned family member that would like to pursue custody of a child, despite the parent’s objection. In either of these cases, a guardianship action must be filed. The considerations of the court are very different and much stricter in this kind of custodial proceeding. We have both litigated these actions, as well as filed guardianships where all parties have agreed, and can help you in navigating this complicated area of law.
After your trial, you may disagree with the ruling of the trial court. The option that remains is to appeal that decision to the appellate court in the state you reside. This is a process that is substantially different from the trial process and includes many specific rules in order to appropriately comply and have your appeal considered. We have experience in the area of appellate law and can assist you in deciding whether to file an appeal, weighing the cost and chance of success. We can also provide you with competent representation within the appeal process to enhance the chances of your success on appeal.
Perhaps you are a party to a custody proceeding and would like an opportunity to sit down with the other parent and reach an agreement. Hiring a third-party mediator, who is trained in the mediation process, may be the ideal way for you and the other parent to assist the two of you in negotiating an agreement. In the State of Iowa, you may be required to mediate your case prior to submitting it to the judge, depending on which judge is assigned to your case. You may also elect to mediate, even if you are not required to do so. In Nebraska, the Court will require you to mediate your issues as they relate to custody of your children before you can submit the issue to the judge. In South Dakota, you are not required to mediate, but again may elect to do so. As your attorney, we can advise you on mediation and can assist you through the mediation process to help you select the right mediator for your situation and also ensure your rights are protected at the actual mediation session.
Michele is also trained as a mediator and is registered to mediate cases in both Iowa and South Dakota. You may hire her separately as the mediator in your case. She cannot, however, be the attorney of record for a party and also mediate the issues. She would have to be someone who is not already hired as an attorney to represent one of the parties. In Nebraska, you cannot hire a private mediator to mediate your custody issues; you have to use the Mediation Center to conduct the mediation, to comply with the rules in the Nebraska Parenting Act.