How do I get a Divorce?
If I don’t know where my Spouse is.
What to do when you want a divorce, but you don’t know where your spouse lives.
It may seem strange to some, but there are many married couples out there that not
only live apart, they haven’t seen each other in years.
In one such case I had, the wife hadn’t seen or heard anything from her husband in over
25 years. I thought it sounded strange. I can’t imagine just separating from my wife
without going through the process of a divorce or legal separation. Although being able to say
at parties or gatherings that “I’m married, but I haven’t seen my husband in over 25 years” is a
great conversation-starter. And I can’t say I blame people too much for separating without going through a divorce – it’s not exactly a fun process. The trouble comes when trying to make long-term financial decisions, or when contemplating marriage to another person.
If this sounds like your situation, there is hope if you are seeking an official divorce and your spouse is MIA. The law allows a divorce by default which is basically a divorce after your spouse has been given n opportunity to respond and has failed to do so. To do that, though, you must go through the proper process:
You must file the proper paperwork with the court. I suggest hiring a knowledgeable family law attorney to help you with this process.
You must make a diligent effort to try and locate you spouse. You may try asking any family members you are still in contact with, or use internet services that track people down. These usually cost some money, but the court wants to see that you have done your due diligence.
If you cannot find him or her, then you must serve your spouse by publication. The locations, frequencies, and costs depend on the local rules of your jurisdiction.
If you serve by publication, you will need to wait longer than you otherwise would for a default. You must wait 20 days after personal service (in Arizona), but 60 days after publication (in Arizona).
After waiting that time, you may apply for entry of a default decree.
In Arizona, if there are no children of the marriage, you can get a default without going to court. If you have children, then you must show up for one court date where a judge will ask you some questions. As long as the judge is satisfied with your answers, you will become divorced that day.
It might sound unfair to allow a person to be divorced without their knowledge. But what if we didn’t have this procedure? A person would never be able to be remarried or know that nobody else has a claim on their assets if they could never locate their spouse. It is a necessary procedure.
Three tips for an effective parenting conference
If you are involved in a court dispute over child custody, chances are that one
of the first rulings the judge made in your case was to send both of the
parties to a parenting conference. First, what is a parenting conference?
A parenting conference is a lot like mediation, but instead of a mediator, the two of
you will be in a psychologist’s office. The psychologist’s office. Mediation is a settlement process that is typically
private. The things you say in mediation, the offers of compromise you make, are not shared outside of the mediator’s walls. A parenting conference, on the other hand, will produce a report to the court with the psychologist’s findings on several factors.
Here are 3 things to do before and during your parenting conference.
Have a compromise plan worked out in advance
Throughout your family law case, you should always be looking for win-win solutions to your dispute with the other parent. Having a plan in advance helps in a few ways. It shows the counselor (who will be filing a report with the court) that you are not unreasonable. It shows the other party you are willing to compromise which in turn, usually results in that party giving a little too. If you submit a plan first, it strategically shifts the conversation to your concerns in the case. Finally, for conflict-averse clients, it helps to know in advance what areas you are willing to compromise on and where your line in the sand is.
Use the phrase “I feel…”
If you are having trouble with how the other party is treating you or your kids, it is always better to couch your issues starting with the phrase, “I feel.” Why? Your feelings are not factual statements that can be attacked. The worst kind of phrases are “you always…” or “you never…” Factual assertions like this are easy to attack and almost automatically put the other party on the defensive.
Using this kind of language will also make you appear more compromising to the counselor, who is trained to tell her own clients to feeling words in conflicts with others.
Pause, breath, think
If things get heated, which they sometimes can, it is important not to speak while you are angry or provoked. Get in the habit of pausing just a bit before speaking. It doesn’t have to be a long, uncomfortable pause. But a pause will allow you to breathe which in turn allows more oxygen to your brain, which in turn allows you to think about your response. Even a few seconds may be enough to turn an ugly unproductive response into a rational measured response. It helps to remember the “I feel…” phrase here.
There are litigants and many attorneys that will say a parenting conference is a waste of time. It can be a very productive use of your time if you treat it that way and remember these three things. Even if you don’t come up with any compromises in the conference, it helps for the parties to open up about feelings as long as it’s done in a positive way. I advise my clients to take full advantage of the opportunity and to get as much out of it for the good of their children and the future relationship with the other parent.
CHANGING HORSES IN THE MIDDLE OF THE RACE: DON’T BE AFRAID TO CHANGE YOUR LAWYER
During my legal career I have had client’s come to me from other lawyers for whatever reason. In one case, there was a major personality conflict between the lawyer and the client. In another instance, my new client felt like he was being over-billed.
I have also had two client’s decide to hire a different lawyer in the middle of a case. I was not offended or upset in either instance. In one case, I felt like my client had unreasonable expectations going into the case, and when it appeared to her she wasn’t going to get what she wanted, she decided to find someone else. In the other case, my client wanted a “bull dog” lawyer to try and beat up his ex. After our first hearing in the case, I assume he could tell that wasn’t my style, so he chose to find somebody else.
The relationship between a client and an attorney is necessarily a very close personal one. Client’s share intimate details about themselves that they wouldn’t necessarily share with other people – even their own families in some cases. Trying to pursue a legal case, especially a divorce or family law case, is made even more difficult if the attorney and the client are not on the same page, or cannot get along on a personal level. I feel like the style of the lawyer should match the requirements of the client, so again, it did not upset me that my client made that choice for himself.
As lawyers we are ethically required to fully cooperate with a new lawyer in transitioning a case to a new firm. Aside from that though, any attorney who doesn’t respect the free choice of their clients should refrain from getting their panties in a bunch over it. It happens to the best lawyers (but presumably more to the bad ones). Most attorneys I know are comfortable with any client deciding to switch lawyers.
For the client, it may be intimidating to tell a lawyer that they have decided to essentially “fire” them. Your case is too important to worry about hurt feelings. Would you worry about your doctor’s feelings if you had a serious illness and needed a second or third opinion? I hope not. It should be no different for the legal profession. Different lawyers have different strengths and weaknesses. If you feel that your lawyer is not representing you the way you want her to, you should carefully consider new counsel. And you shouldn’t feel bad in any way for exercising your right to the counsel of your choice.
If you find yourself in this situation with your lawyer do the following:
Communicate your concerns with your lawyer before making the decision. This will help your lawyer improve for future clients and it may even clear things so you don’t need to switch after all. Everything is better with open communication.
Don’t wait too long if you know you are going to change, as your current lawyer could needlessly bill time on your case while you wait to tell him.
If you end up switching, be polite when discussing this with your lawyer. We have feelings too.
A Little Drop Of Courage for Vaccine-Skeptical Parents
To some, parents that refuse vaccinations to their children are labeled “anti-vaxers” and are told they are “anti-science” or worse, that they are endangering the lives of everyone else.
And to those parents skeptical of the efficacy of vaccines, everyone else is exhibiting blind faith in the medical establishment.
What happens when two parents disagree on the subject? More specifically, what happens when two parents who aren’t married and have joint legal decision-making can’t agree? It can be daunting to the anti-vaccine parent to go in front of a judge knowing that the judge most likely has a built-in bias in favor of vaccinations for children.
That’s the issue in Grzyb v. Grzyb (Va. Cir. Ct. 2009). Before delving into this interesting case, a few issues need to be addressed.
First, it is fundamental to know that the court is not there to substitute its preferences for the parenting preferences of parents. The guiding principle is always the best interest of the child, and that’s without question. But the court is determining which parent gets to decide important issues based on the best interests standard. The court is not, or should not, be in the business of ordering vaccines be administered, but rather allow the parent to do so based on a best interests standard. I bring this up to dispel the reaction of some people to this case. Pro-vaccinators especially, are likely to exclaim, “of course vaccines are in the best interests of the child! The court should order it.”
The court did, in fact, conclude that getting immunized would be into eh child’s best interests based on medical testimony the court heard. But the court observed that the mother, who was the parent opposed to vaccines, was more actively involved in the child’s medical care. The court stated:
“Mrs. Gzrb remains the parent primarily responsible for attending to the child’s medical needs. There have been numerous visits and phone calls to the child’s pediatrician and, for the most part, it has been Mrs. Grzb who is the parent interacting with the child’s pediatrician and the pediatric practice. Mrs. Grzb is the parent who took the initiative to obtain a referral to an allergist because of the child’s persistent colds, runny nose and cough, and a family history of wheat allergies. Mrs. Grzb has thoughtfully and fully explored each medical issue that has arisen in the child’s life.”
The court therefore concluded that the mother was “in a superior position to assess and meet her child’s medical needs” and was awarded sole decision-making for purposes of making medical decisions.
Now it should be noted that part of the court’s analysis was the fact that Mrs. Gzrb had a religious objection to vaccines. The courts are loath to appear to be trampling on the religious liberties of anyone. Had Mrs. Gryb’s reasoning been solely science-based (i.e. she had come to the conclusion after reading material from anti-vaccines doctors), I don’t know if the outcome would have been different.
The states are not uniform on what kind of vaccine exemptions are allowed. Many states offer religious exemptions for attending school. Fewer states, but still substantial, offer non-religious-based exemptions. However these exemptions should not muddy the waters of the issue in front of family courts faced with this question. Vaccine “exemptions” are for public school attendance. If a parent sends their child to a private school or home schools, then the vaccine issue is moot. There are no states, to the best of my knowledge, that have any laws mandating vaccines be given to children other than as a requirement for public school attendance.
So the issue before a family court faced with this issue has little or nothing to do with that state’s exemption laws and everything to do with the parents and the best interest factors.
This is an interesting case because to vaccinate or not to vaccinate is a zero-sum game proposition. Both parents cannot get what they want at the same time. Therefore a decision must be made. This is unlike, for example, each parent being free to expose their children to that parent’s religion. They both have the same rights as the other parent, and one parent’s exposure to one religion does not diminish or take away from the other parent’s equal right to do the same.
Here are some things to take away from this case:
This case is from Virginia. It has persuasive power in other states, but is not an authority.
The court in this case deferred to the more involved parent. This is pretty powerful stuff. In this case, the court actually concluded that getting the vaccines would be in the child’s best interests, but deferred to the parent that was more involved in the medical aspects of their children’s upbringing.
Continuing from the previous point, I wonder if one parent putting more effort into research into the vaccine issue itself would persuade a future court. If we assume a situation where both parents take the child to appointments and are both fairly equally involved, would one parent who has read books on the subject, interviewed doctors, attended lectures, and done general research be in a better position to obtain sole decision-making for medical decisions than a parent who had not done that in the same situation. This was not before the court, so it’s hard to say but interesting to think about.
As a parent with unorthodox medical views, it can be intimidating to go up against mainstream understandings of such issues in family court. This case should give those parents a little drop of courage if a similar dispute arises in their own circumstances.