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Personal and Professional Family Law Considerations

Mar 29, 2016 10:30AM ● By MED Magazine
By Michele A. Munson and Kristine Kreiter O’Connell

Many families are impacted by divorce, child custody, and related issues. Dealing with these legal issues personally can be difficult and emotional. It is also difficult on a professional level for physicians, nurses and other staff who work with families going through divorce. Because having accurate information about the legal process is important in both instances, below are answers to five frequently asked questions.


Q1: How will the judge decide who gets custody of the children?


Custody decisions are based on the best interest of the child. To determine this, a judge looks at a number of factors, including: (1) which parent is better equipped to provide for the child’s temporal, mental, and moral welfare; (2) who can provide a stable and consistent home environment; (3) who is more committed and involved in parenting the child; and (4) has there been any parental misconduct that has had a harmful effect on the child. If the child is of a sufficient age to form an intelligent preference, the court may also consider that preference in determining custody.


Q2:  What is the difference between legal and physical custody?


Legal custody is the right to determine the child’s upbringing, including education, health care and religious training. Generally, both parents are entitled to legal custody. Physical custody is the routine and daily care of the minor child. As a general rule, access to medical records pertaining to a minor child shall be made equally available to both parents having legal custody, with both parents having involvement in the child’s healthcare decisions. As such, parents must make reasonable efforts to ensure that the name and address of the other parent is listed on all records.


Q3:  How is child support determined?


Both parents are obligated to support their child(ren) in accordance with their respective incomes. While it is based on a formula, there are deviations and abatements that may apply to the situation, and it is important that the Court calculate parents’ income accurately.


Q4: How will property be divided?


The judge will make an equitable division of marital property by considering factors such as the length of marriage, value of property, age of parties, health of parties, parties’ competency to earn a living, contribution of each party to the accumulation of property, and the income-producing capacity of the assets. Depending on your case, you may also argue that certain property should be awarded to you alone and excluded from the property division.       


Q5: Will the court award alimony?


The judge will decide whether alimony is appropriate and, if so, the amount and duration of alimony order, by considering the length of the marriage, earning capacity of the parties, financial condition after the property division, age, health and physical condition of the parties, the parties’ station in life or social standing, and fault for the divorce. It is important that you advise the Court of monthly expenses so it can determine if you have the ability to pay alimony or there is a need for alimony support. Alimony is not intended to allow the other spouse not to work, nor is it meant to equalize incomes.     


This article contains general information and addresses only a few of the issues involved in family law. It does not represent a legal opinion or advice regarding any particular case or issue. For advice on family law, please consult legal counsel. We hope you find this information helpful. 


Michele A. Munson and Kristine Kreiter O’Connell are attorneys with Woods Fuller Shultz and Smith, PC, in Sioux Falls.