The Process of Divorce - Paper Example

Rita and John have been married for a period of ten years and have two children. Off late, there have been misunderstandings between the couple. Rita complains that John is preoccupied with his job such that he does not spend enough time with his family while John complains that if he does not spend time in his profession, the family will suffer financially. Rita had had rumors that John was having an affair in the workplace and after confronting John, he admitted to it and hence Rita filing for a divorce. The main challenge is that both individuals want sole custody of the children with the view that Rita has medical problems while John is preoccupied with his work. They also base their arguments on alimony, child support and the division of property.

Is your time best spent reading someone else’s essay? Get a 100% original essay FROM A CERTIFIED WRITER!

Order now

The documents that would be necessary to be obtained from Paul and the function of each document;

Since Pauls name is the one found in the houses title deed, he has to present the documents indicating the purchase of them house to the court. They include the title deed, the title deeds affidavit and the bill of sale if anything else came with the house; things like security systems, air conditioner, and appliances. Paul also needs to present documents illustrating their joint accounts and the total amount of money that the couple has together. Paul also needs to present his previous pay slips and documents showing the benefits he obtains from his profession such as the pension. He also needs to present his license that shows that he is a certified professional able to manage his own practice in addition to tax documents that show his financial credibility.

How property that was acquired or improved during the marriage would be anticipated to be divided between the parties;

According to the federal law, the pension received by as spouse can be viewed as separate property and hence does not require division (Diduck & Kaganas, 2012). In other words, it is considered a sole property and not a community property by which there exists an absolute right. However, courts, as per the instructions of the Uniformed Services Former Spouses Protection Act, are expected to view disposable pay in terms of community property (Diduck & Kaganas, 2012). In this case, while Paul can have a full entitlement to his pension, the other assets owned by the family are subjected to division. They include the house, car, and money in the joint accounts.

Before the court meetings, the couple had had disagreements on custody of children, child support, alimony and the division of property. According to Paul, his pension is being treated as a community asset without any form of argument on his entitlement and that Rita also receives a pension that has not been indicated in the agreements made between them. Paul is willing to provide evidence showing that Rita obtains a pension in regards to support responsibilities and hence under the 10 U.S.C. 1408 (7) (c) (Waller, 2009), his pension should be treated as a sole property and not a community property. Since equal division is what the couple expects, then Rita may be requested to obtain credit such that there is balance in the pensions.

Spousal support;

As per the court order, Rita receives $700 as spousal support and earns a monthly salary of $ 1300. If the court views Pauls pension as sole property despite Ritas monthly salary being limited, under the Family Code Section 4321(a), the court may stick to denying the entitlement of the pension. According to the section: "In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:

(a) The party has separate property or is earning the party's own livelihood, or there is community property or quasi-community property sufficient to give the proper party support" (Waller, 2009). The spousal award may be increased if the wife is denied entitlement to the perceived community property by which the Court terms it as the sole property of the husband (Waller, 2009). In Rita and Pauls case, Rita may be awarded the house due to the sole property ownership of Pauls pension.

Child support;

For the joint custody, a parent with the highest income is expected to engage in child support (Estin, 2009). Therefore, with Ritas health condition and limited salary, Paul gets the responsibility of providing child support.

Child custody;

Both Rita and Paul want full custody of their children by which they have had huge disagreements. The court may consider the occupation and the physical health of the parents. Paul appears to be preoccupied with which he operates his own practice and is also an employee and hence having less time to spend with his family. Rita, on the other hand, has a medical condition that requires attention and care. The court may issue a joint custody to the parents whereby both Rita and Paul share in parenting rights and the living environment of the children. Such a decision will allow both parents to spend equal time with the children (Estin, 2009). However, both have to be keen on child support such that laws are not broken in regards to meeting the needs of the children. Paul due to his financial stability, will have to provide child support due to Ritas condition that might interfere with her employment.

The enforcement of the divorce decree when one of the parties fails to comply with any part of the decree.

An enforcement motion may be issued by one spouse if the other party fails to comply with any part of the decree (Estin, 2009). For example, if Paul does not abide by the demands issued regarding child support, Rita may present the issue to court by which the court will order Paul to adhere to the obligations in addition to being fined for non-compliance. However, if he has a reason for not meeting up to his duties, Paul may present an affirmative defense to explain his reasons (Estin, 2009).

References

Estin, A. L., (2009). Sharing Governance: Family Law in Congress and the States. Cornell Journal of Law and Public Policy, 18(2).

Diduck, A., & Kaganas, F. (2012). Family law, gender and the state: Text, cases and materials. London: Bloomsbury Publishing.

Waller, M. W. (2009). California family law for paralegals. New York: Aspen Publishers/Wolter Kluwer.