Ask a Lawyer: Divorce and Child Custody

Overview

Know your legal rights without spending a fortune in legal fees; get the advice of an expert for the cost of a book.
It happens to everyone. You need legal help, but you have no idea what you're getting into or where to begin. The thought of hiring a personal attorney-and shelling out outrageous amounts of money in hourly legal fees-makes you cringe. Isn't there a better way?
The Ask a Lawyer series arms you with practical, usable advice about ...

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Overview

Know your legal rights without spending a fortune in legal fees; get the advice of an expert for the cost of a book.
It happens to everyone. You need legal help, but you have no idea what you're getting into or where to begin. The thought of hiring a personal attorney-and shelling out outrageous amounts of money in hourly legal fees-makes you cringe. Isn't there a better way?
The Ask a Lawyer series arms you with practical, usable advice about common legal situations, answering your questions and familiarizing you with legal procedure before you ever set foot in a lawyer's office. Each book walks you through simple explanations of the law, legal definitions, tips, and sample scenarios, describing what will happen and what your options are. In some cases, these books can keep you from spending money on a lawyer you really never needed.
Whether you ultimately decide to handle the matter by yourself or use an attorney's assistance for the completion of your plans, these books can easily save you thousands of dollars in the process.
You've heard the stories about messy divorces and protracted child custody battles. You can lessen the trauma and survive divorce with your sanity intact by knowing what to expect. Topics covered include getting a good lawyer and keeping legal fees down, division of property, alimony and child support, getting custody of your children or deciding visitation rights, mediation, what a typical settlement might look like, what could happen in a trial, and life after divorce.

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Editorial Reviews

Library Journal
The "Ask a Lawyer" series is designed to provide "the advice of an attorney at a fraction of the cost." Practicing California attorney Strauss organizes his material well, with important legal concepts at the end of each chapter, a glossary of terms highlighted in the text, and a comprehensive index. Although these books certainly provide a decent overview of legal issues, readers should be cautioned that law varies significantly from state to state, that tax laws have been drastically revised since the divorce volume was written, and that the author frequently oversimplifies for the sake of efficiency. For example, while endorsing mediation as a constructive process, he has a highly particular view of the mediator as a professional "prodding, cajoling, pulling and sometimes yanking the parties toward settlement," effectively dismissing the thousands of mediators who strive conscientiously to facilitate discussion but leave the decision-making process up to the parties themselves. To be used with caution in larger public libraries.--Julie Denny, Alliance for Mediation & Conflict Resolution, Inc., New York
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Product Details

  • ISBN-13: 9780393317299
  • Publisher: Norton, W. W. & Company, Inc.
  • Publication date: 5/17/1998
  • Series: Ask A Lawyer
  • Edition number: 1
  • Pages: 192
  • Product dimensions: 5.50 (w) x 8.30 (h) x 0.50 (d)

Meet the Author

Steven D. Strauss is an attorney practicing in Sacramento, California.

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Interviews & Essays

On Saturday, June 6th, barnesandnoble.com welcomed Steven Strauss to discuss ASK A LAWYER.


Moderator: Welcome, Steven Strauss! Thank you for taking the time to join us online this evening. How are you doing?

Steven D Strauss: I am doing very fine, thank you.


Dorian from New York City: Is there any legal way to get out of a lease? Am I absolutely committed to paying through November, even though I know the landlord will have no problem renting the apartment? What's the best way to get out of a lease, and how should I protect myself so that I don't have to pay double rent for the next six months?

Steven D Strauss: There are three ways: The first and best is called an assignment, when you find someone to take your place and take over your obligations. Normally, you need the landlord's approval for the assignnee. The second way is to sublease to someone, but the problem with sublease is that you remain liable -- with an assignment, you do not. Again, you normally need the landlord's approval. The final way is just to leave. The landlord has an obligation to relet the apartment; then you are only liable for that one month's rent.


Cheri from Sausalito, CA: What's the quickest way to get a divorce? I recently found out my husband has been having an affair, and I want to divorce him as quickly as possible. No kids, a house.

Steven D Strauss: The best way is to enter into a marriage settlement agreement, and in that agreement you agree to divide up assets and divide up debts, and then you submit it to a judge for his approval. If you guys can agree, it shouldn't take more than six months to get divorced.


Anthony from Sacramento, CA: What is the potential the fate of a pension plan with a single beneficiary within a bankruptcy proceeding? In the same context, can the IRS attach pension plan funds?

Steven D Strauss: With regard to bankruptcy, each state is different with regard to how much property is involved in a bankruptcy. In California, a pension would be completely exempt, which means you would be able to keep it. As far as the IRS goes, sometimes they are able to attach a pension, but not very often. You'd best speak to a tax attorney with regard to that issue.


Pete Z. from Long Island, NY: Good evening, Mr. Strauss! How did this project come together? Why did you decide to write these books?

Steven D Strauss: Good evening, Pete! Thanks for the question. About ten years ago, my later-to-become-wife was having some problems with her divorce. We went to see an attorney to get some advice, and the attorney wanted a $5,000 retainer. Needless to say, I was shocked. So while in law school, I started thinking about writing easy-to-read guides on individual legal topics. I submitted the idea to about 30 publishers, and Norton quite liked the idea, fortunately for me.


Mike from MMuntz@YAHOO.COM: At what age do you recommend somebody getting a will? Or should this be taken on a case-by-case manner?

Steven D Strauss: I think once you have children, you must have a will because you want to be able to name a guardian for that child, should something ever happen to you. Also, once you have any signifigant assets that you want to leave to someone, a will is good idea, but in any case, a living trust is almost always a better idea than a will.


Nelson from Fairfield, CT: What should one look for in a hiring an attorney to put together a will? I guess what I am really asking is, How should I go about getting a good lawyer to help me set up my will here in Connecticut?

Steven D Strauss: The best place to find a good lawyer is from a satisfied customer, so if you know somebody who has put together a will or living trust, ask that person how they like their attorney. Outside of that, look in the Yellow Pages or on TV, and schedule an interview with a few different attorneys. The initial interview should be free. You should make sure you hire an estate-planning specialist. It is also good to get some references and give them a call.


Jordan from Flint, MI: What's the difference between a will and a trust? What is a revocable living trust? When is a will appropriate, and when is a trust the better of the two? Thank you for taking my question.

Steven D Strauss: Great question! A will is OK if you are young and without significant assets, i.e. a house. The problem with a will is that it ensures that your property will go through probate, a time-consuming ordeal for your heirs. Probate can be avoided by using a living trust. A living trust is nothing more than a separate legal entity that you set up, which owns your property for you. While you are alive, you are both the beneficiary and the trustee of the trust, but when you die, you don't "own" anything. (The trust does, so there is nothing to probate.) Therefore your heirs get their inheritance promptly and without spending thousands of dollars in probate fees.


Cara from Darien, CT: How hard is it to write this book for an entire country? Aren't laws different from state to state?

Steven D Strauss: Where there are differences in state law, I try to point those differences out. For example, divorce law is essentially the same, except when it comes to propriety division. Some states, for example where you live, are called equitable distribution states; upon divorce, judges try to divide property fairly. Other states are community property states, where judges try and divide property, but even there it is not the same thing. So I try to take account of the differences while writing these books. Bankruptcy law is federal, so it applies evenly for the most part throughout the country. Wills and trusts are similar throughout the country, and landlord-and-tenant law is fairly similar.


Samantha from Atlanta, GA: I have been trying to get a divorce for seven months now. My husband is from the Middle East, I am American. He wants joint legal custody, and my lawyer insists that sole custody is in my best interests. I have two children, 8 and 11. I don't have any family here, and I would like to move out of state to be closer to family. My husband said I can move, etc., but he wants legal custody. He is very controlling. I have always taken care of the kids, household, etc. What do you think? We are going to go to trial this summer. I am worried about cost.

Steven D Strauss: As well you should be. I think it is very important to get physical custody of the children. There is a difference between physical and legal; physical is where the children live, and this is awarded to one parent. Legal custody relates to the right to make decisions for the child -- religious, medical, etc. Legal custody is almost always split 50-50. Since the physical-custodial parent ends up making most of the decisions, if you can get custody it would be in your best interest and probably worth the cost of going to trial so you can be sure that the children will live with you wherever you go.


Jennifer from Westminster, MD: Do you feel that all couples should get a prenuptial agreement, even if their assets are pretty modest?

Steven D Strauss: No. I do think any second marriage should have a prenuptial agreement, because once you have been divorced you don't want to pay for another one, and a pre-nup negates the need for a nasty divorce. But for a first-time marriage, where the assets are equal, there is no need to incur that legal expense.


Maria from Sacramento, CA: My contractor's name is Roman. He's having family troubles and is unable to finish the job he has started remodeling our family's bathroom. Any suggestions? We've already paid him a good deal of money for the job.

Steven D Strauss: You should never pay a contractor more than 10 percent before he starts, and you shouldn't pay him the balance until the job is completed to your satisfaction. If you have already paid him, then all you can do is threaten him with a lawsuit or sue him.


Nicole from New York City: If you don't mind, can you please help with a small debt problem I have recently come in contact with.... Basically, I was on a former health plan, Aetna, and I was happy as can be. However, I was seeing a dermatologist that was horrible. He ran people through his clinic like they were cattle, but that is not the point. I saw him for about a year and then I saw him for the last time in April 1997, but I then switched jobs in May 1997. I then get this bill for $200 from his office. Apparently he turned in his report too late to Aetna, and since I was no longer employed at the Aetna job, they didn't cover this. I sent a note to the doctor saying I will never pay this. Not only do I need to pay more because of their negligence and delay, but they stunk! I now see another dermatologist under my new plan, but I have recently been getting letters from some lawyer in Queens telling me I have to pay or else they are going to ruin my credit. What do you recommend I do? I really don't want to pay these guys, not only because they submitted the forms late, but I really though they were the worst doctor's office I have ever been to in my life. Any suggestions?

Steven D Strauss: You should write the lawyer a letter called a "cease and desist" letter. In that letter you tell the creditor exactly the problem and why you refuse to pay it, you then say "pursuant to the Fair Debts Collection Practice Act (15 US 1592) you are hereby notified to cease all further communication with me about this debt." Thereafter they can no longer harass you without violating federal law. I cover that in my DEBT AND BANKRUPTCY book.


Sue from Florida: My daughter is divorced, and her visitation rights to her kids are restricted. Do I have any rights as a grandmother? How can I make sure that they are enforced? I miss my grandkids, and it was an ugly divorce.

Steven D Strauss: You do have rights, but you will need to go to court to get those right enforced. What I suggest is hiring an attorney to file a motion to ensure you some regular visitation with the grandkids. A judge would be hard pressed to turn that down.


Doug Beekman from Brattleboro, VT: My wife and I were divorced nine years ago. The Vermont courts granted her primary custody or our daughter, who was then seven years old, but I retained jurisdiction over her education. She left the state four years ago and moved to Oregon. Since that time, getting my daughter's school records has been nearly impossible. Do I need to have joint custody in order to legally gain access to her school records? She has missed 30-45 days a year of school and has had numerous problems, including a recent suicide attempt. I feel that her mother has not done a satisfactory job of caring for her or seeing to her education. Is it advisable to reopen the custody case now, when she is 16, and would I need to contact an attorney in Oregon to do so?

Steven D Strauss: Yes, it would be advisable, especially considering her emotional state. Judges will look at what is called "the best interests of the child" when redetermining custody. If the judge thinks it would be in your child's best interest to be with you, then you can get custody. You do need a lawyer for this, and you should expect to pay several thousand dollars. Also, since your child is 16, the judge will give great weight to what she wants to do.


Paul from Pac87@aol.com: What are the tennants rights as far as the security deposit go? I am leaving my apartment and I think it is in fairly good condition. However, I thought the same thing with my last apartment, and the landlord took out a pretty large amount of cash. I am tempted to not pay the last month's rent and have him use the security deposit for that rent. What are you views on this subject as a lawyer? Does your book cover this?

Steven D Strauss: Yes, my book sure does cover this in detail. And not paying the last month's rent is not a bad idea (it should equal your security deposit for this to make sense). If you decide to pay your last moth's rent, you can always invoke my five rules of security deposts: 1) Give proper notice of your intent to move (30 days); 2) Pay all rent that is due; 3)Fix what you broke. 4) Leave the unit spotless; and 5)Most important, document the condition the day you leave -- videotape it or photograph it or bring a pal along to view it. Thus you can document the condition if your landlord starts to get greedy.


Shep from Bolton, MA: What other titles can we expect from you in this series? Anything on jobs and discrimination?

Steven D Strauss: No, as of now these are the four books in the series, but if you all buy some, maybe Norton will order up a couple more.


Bella from Wichita, KS: Hello, Steven Strauss. What exactly is mediation? Who does the mediation, and how expensive is it?

Steven D Strauss: Mediation is an impartial process whereby a neutral third party tries to bring the two parties together to create some sort of settlement. The mediator is picked by the parties and should have no relationship with either party. Their job is to try to find common ground and create a win-win scenario. The mediator should not charge more than $50-$100 per hour, and one session can last as long as one to eight hours.


Ann Bond from Mississippi: I was married to a lawyer and am now divorced with two children from the marriage. I went to court and won an increase in child support, but he has appealed it, and the Supreme Court will not hear it until 1999 -- it was the same way with the divorce.... Do I have any recourse? He also has filed for custody as a threat to me but dropped it when I followed his plans.

Steven D Strauss: My profession really attracts some jerks. Unfortunately there is not a whole lot you can do. He knows how to use the system, and it costs him nothing to tie you up in court. In most cases the cost is prohibitive to hire an attorney, but not in your case or his. Try and work something out.


Cuckold from Orlando, FL: I'm about to go through a divorce, and I'd like to find out what I can expect to pay. Do you have any advice on keeping the costs down (aside from reading your book, of course)?

Steven D Strauss: Yes. First of all, see if you can get an attorney who will do it for a "flat fee," a set amount of money (say, $2,500). It will also save expense if you and your mate can work things out and both give in a bit. Divorces get expensive when both sides try to win, and nobody ever wins in a divorce. Settlement is almost always better than trial.


A. from New York City: I'm ashamed to say that I recently took out a loan from a shady creditor, and now they're charging me extremely high interest (21 percent). Is there anything I can do about this?

Steven D Strauss: Credit cards very often charge 21 percent, so your creditor will be able to get away with this too, but if you stop paying, what will they do? It may not be economically feasible for them to sue you (depending on how much you owe). If it is significant ($10,000 or more), you could always discharge it in bankruptcy.


Amanda Bueller from Hoboken, NJ: Did you have a lawyer look over your publishing contract for these books?

Steven D Strauss: No, but I did have an agent. Because I knew very little about publishing law before this, but I did review it myself, and there were some things that I had never encountered before that my agent was able to help me with.


Mike from Sudbury, MA: Kind of a general question, but is there ever a good time to file for bankruptcy? Or should it be avoided unless impossible to avoid?

Steven D Strauss: Well, more than a million people a year are filing for bankruptcy these days because most see it, as corporations do, as a viable economic choice. Most people know when to file -- the phone won't stop ringing from angry creditors or they are no longer able to service their debt load. For most people, it is excessive credit card debt that brings about bankruptcy. Bankruptcy is not all that bad, and you will get good credit again after two or three years and will be able to get a mortgage after a few years as well.


Moderator: It was a pleasure hosting you online this evening, Steven Strauss. Do you have any final comments for our online audience?

Steven D Strauss: Yes, I would like to thank everyone for participating and would like everybody to know that I am in the process of setting up a web site where I will be providing people with free legal advice -- www.stevenstrauss.com. It should be up next week, and I hope to see you there.


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