Legal disputes and their details can often be confusing for people who are not trained in the law. This is chief among the many reasons litigants are often advised to not only retain the services of a qualified attorney, but also someone with considerable experience and a track record in the specific area of the law at issue. In the case of a divorce, this means a capable and knowledgeable family law attorney.
The process of divorce subsumes a number of legal concepts which many people may recognize by their names, but which they would be hard-pressed to define accurately. This is one of the reasons it is so difficult for lay people to navigate civil court without counsel, as the true ramifications of each part of a case are unlikely to be well understood without first-hand experience.
One of these concepts is something called an “uncontested” divorce. To understand how such a case works, it is necessary to review exactly what is involved in litigating a civil matter generally and a divorce specifically.
Generally speaking, any civil case that is brought before a court of law involves some kind of dispute. The purpose of litigation in such a case is to present to the court arguments for or against the claims brought by a plaintiff. The plaintiff’s role is to petition the court for relief based on their assertion the defendant is responsible for some kind of injury or damage to the plaintiff. This is known as a “tort.”
The defendant’s role is to contest the plaintiff’s claim, and establish they were not responsible for whatever calamity the plaintiff is basing their suit on. The process of adjudicating the case then becomes a contest between the plaintiff and defendant to see which side makes the more credible argument and presents the evidence or cites the most relevant case law. It is up to either the judge or a jury to decide. The overarching definition of this kind of legal framework is an “adversarial” system.
The contest between plaintiff and defendant is conducted before the court at a civil trial, which is more or less a set of rules under which each side can present their arguments and evidence. The purpose of a trial is to boil away all the irrelevancy in the matter until there is hopefully nothing left but facts. Upon those facts, it is believed, a jury or judge can make the decision as to which side’s case is stronger, at which point judgment is entered and the two sides are required to abide by the court’s decision.
Litigation can be an extraordinarily prolonged and complex process, depending on the facts at issue and depending on the overall complexity of the case. In a divorce, for example, the scope and breadth of the family’s assets and the custody details of any minor children can take months or even years to settle.
The sweetest music to a judge’s ears is when the parties to a legal action like divorce announce it is “uncontested.” This means the process of litigation is not necessary, no evidence will be presented and there is no need for adjudication of a dispute. Which side’s arguments and evidence are stronger is no longer relevant. The reason is because in an uncontested divorce, for example, the petitioner and respondent already agree on the details of questions like division of assets and custody of minor children. All they require is the assent of a judge empowered to dissolve the marriage.
This is not to say spouses can do as they please. Even an uncontested divorce must adhere to the laws of the state where the marriage took place, and must also take place within any other laws governing the process of divorce. These are questions the judge must take care to enforce on his or her own, as occasionally spouses will attempt to craft their own unorthodox solution to a problem and miss the mark legally.
One example from elsewhere in the legal world similar to an uncontested divorce is something called a “pre-packaged” bankruptcy. This is a case where a petitioner and his or her creditors have already agreed to financial arrangements and simply need a court to make it official. In such cases, petitioners enter and emerge from bankruptcy all at once and are simply presented with a legally enforceable order matching the arrangements they had already made. Uncontested divorces can evolve in much the same way, where the parties prefer to avoid excessive legal expense in favor of perhaps compromising on their own interests.
Do I Have to Pay Him Child Support If the Divorce is Not Final?
If you are in the midst of a divorce that is not yet finalized, you may find yourself facing a temporary order for child support. During a divorce process, parents may disagree as to how much should be paid for the care of a child. As such, the judge will take the child’s interests into account and may issue a temporary child support order. The temporary order ensures a child’s needs are continually met while the divorce proceeds.
How Does the Court Calculate Temporary Child Support?
The court will always consider the interests of a child when it comes to the calculation of temporary child support. In other words, the needs and interests of the parents are considered secondary in comparison to the needs and interests of the child. Of course, there are certain factors the judge will take into consideration when determining the amount required to fulfill the temporary child support order. Factors considered include:
- Income and assets belonging to both parents
- Number of children and age of each child involved
- Which parent has custody of the child
- Cost of expenses required for the child’s care, especially when there are any special needs involved
Keep in mind that a temporary child support order focuses on a child’s basic needs, which usually includes:
When the time comes for the court to decide on a final child support order, the judge may review additional expenses pertaining to luxury and entertainment.
When Can Your Spouse Request a Temporary Order?
If you choose to move out of the house during divorce proceedings, you can attempt to make arrangements with your spouse on the way to share expenses related to the support of your child. If you and your spouse are able to come up with an agreement, you can write it up as a temporary agreement. From there, you can focus on the remaining issues surrounding your divorce.
If, however, you and your spouse are unable to agree on child expense related issues, the two of you will need to head to court to resolve the problem. A judge will provide a quick resolution to ensure the needs of the child are continuously met. If your child continues to live with his or her father while you choose to live elsewhere, you will have to pay him child support before the divorce proceeding is finalzed.
What Can Change in the Final Child Support Order?
Keep in mind that your final child support order may have you paying the same or more for your child. There are a few things the judge will take into account when reviewing the temporary order to determine the outcome of the final child support order. For instance, the judge will determine:
- If the amount set for the temporary child support order was enough to ensure the child’s needs were continually met
- Whether the parents provided for the needs of the child as ordered
Make sure you let the judge know if anything changed between the temporary child support order and the finalization of your divorce. For instance, if you changed jobs, lost or gained income, or the needs of the child changed, you will need to tell the judge. Each parent is in charge of presenting changes so the judge can consider recalculation requests.
The way to present any changes to your situation will be through documentation. If you lost wages, offer bank statements or check stubs that clearly show the decrease in income. Make sure you do the same if you gain wages. If you move, offer paperwork that clearly states the address for your new residence.
Is an Attorney Necessary for a Temporary Order of Child Support?
Whether you are seeking to obtain a temporary order of child support, or your spouse is seeking one against you, it is to seek the help of a qualified attorney. A lawyer can assist you in determining if the amount set upon you by the court is a fair amount based on certain conditions. Keep in mind that in some situations, child support cases can turn into a complicated mess.
Fortunately, a knowledgeable attorney can assist you in straightening everything out. An attorney can also explain the entire process to you so you know what to expect. It is always better to know what might happen during the temporary order proceedings so you are not caught off guard. Allow your lawyer to provide you with proper representation to ensure that everything turns out as as possible for you, your spouse, and your child.