Muslim Family Law

Muslim Shariah Law and Family Court Law

Contested And Uncontested Divorce

“Talaq” in Islamic Family Law, The man has the right to divorce his wife only using “Talaq” word by following the purity time after the Menses of his wife and then he will decide to settle or repeat it second time followed by during the third period of time. As there could be many reasons to leave his wife by verbally uttering “Talaq” word. The wife has the right to keep the belongings that presented to her at the time of Islamic marriage ceremony declarations called “Nikah”. The Quran does not allow a husband to ask for his belongings after he decide to Divorce his wife.

“Khula”, is an option for a wife to file a petition with shariah court to get separation, based on several factors that causing the marriage unable to continue. There is a chance when man can deny to her allegations and claims and further counter present testimony to judge to justify the claims. It depends on the judge to declare if the man is cooperative or not. If he is cooperative and will sign the filed khula petition and release her peacefully. The wife in this type of filing, does not have the right to keep the husband’s belonging and have to return his belonging or even the husband the option to let it go and dissolve the marriage peaceful manner without arguments and claims. If the man ask her to return the belonging and also can reject signing until covering his belongings. It all depends on mutual agreement between the parties.

In Islamic countries, Khula petitions has become complex to resolve in timely manner, unfortunately, the local courts delays the petitions and causing much damages to many lives. In foreign countries, the khula petitions are handled in timely manners and much easier than back Muslim countries. As the Mufti/Judge in foreign countries has made the system easy for Muslim sisters to file petition and get results in timely manners, based the investigations and communications between parties to resolve or separate in peaceful manner.

Civil Family Court Law

When a couple divorces, there are usually a host of decisions that need to be made. These may relate to issues including asset and debt division, spousal support/alimony, child support, custody and visitation, and other matters. If a couple is able to come to an agreement about all the major issues before trial, that is called an uncontested divorce. Conversely, if there are one or more significant matters that the couple cannot agree on themselves, it is a contested divorce. A divorce may start out as contested, but then become uncontested as the parties work out disagreements.

Uncontested vs. Contested Divorce

Uncontested divorce = the parties agree on all the major issues
Contested divorce = the parties do not agree on major issues and will rely on the court to determine the final outcome

In some cases, the couple may disagree about whether to get divorced at all. However, a judge will not require a couple to stay married if one of the parties does not want to be in the marriage. With all states now having some form of “no-fault” divorce, eventually anyone who wants a divorce can get one, though one party can make the process much longer and more arduous if they are not willing to come to the table in good faith. Generally, no-fault divorces are premised on a fundamental disagreement or incompatibility between the parties. When a couple that disagrees on whether or not to stay married, that can be an example of such a fundamental disagreement.

Differences Between Contested and Uncontested Divorce

One of the biggest differences between contested and uncontested divorces is the time it takes to become finalized. Uncontested divorces will usually go through relatively quickly. However, “quick” in divorce terms may still be a long time, depending on your state and courthouse. Also, an uncontested divorce does not require a trial, discovery, or other time consuming legal procedures. That means that legal fees will be much less expensive in an uncontested divorce than a contested divorce.

No Appeals

Uncontested divorces are not appealable, but certain agreements may be modifiable.

Another difference between contested and uncontested divorces is the extent to which the outcomes are appealable. Since in an uncontested divorce the parties both consent to the arrangement, the terms of the divorce are not appealable. However, that does not mean that the parties are stuck with the agreement forever. If circumstances change significantly and/or a specific period of time has passed, depending on your state you may be able to modify the agreement. However, since the parties are making the decisions themselves, they are more likely to be happy with the outcome of the proceedings.

In a contested divorce that does not settle, the judge is the one who is ultimately responsible for making the decisions for the couple. The judge may end up prioritizing some concerns over others, but this may not always align with the priorities of the couple. For example, it may be very important to one spouse to keep the house, and the other spouse may prefer to get the car. However, a judge may order the house sold and the car to go to the other spouse. The more control the spouses have over the process, the more likely they are to come to an agreement that they both can live with.

While there are benefits to an uncontested divorce, sometimes it is impossible to come to an agreement about important matters with your soon-to-be ex-spouse. Keep in mind that the spouses do not need to come to these agreements by themselves. By working with skilled divorce attorneys and potentially pursuing mediation (which some courts require), the parties can potentially work out a settlement that ultimately resolves their disagreements.

From justi

Order of Protection in New York

What is an Order of Protection?

An Order of Protection is a court order that tells one person what they cannot do to another person, or what contact is allowed.
Sometimes an Order of Protection is also called a restraining order.

What does an Order of Protection say?

An Order of Protection can require a person to stay away from another person, their home, school and work. The order could also prohibit some types of contact with the other person, or even all contact. The court can make exceptions such as to arrange visitation with a child.
An Order of Protection may allow some contact. However, it will order a person to commit no crimes against the other person or do anything offensive toward the other person.

Which courts issue Orders of Protection?

Criminal Court and Family Court can issue Orders of Protection. The person requesting the Order of Protection can go to either or both courts for the same problem.

How do I get an Order of Protection through Criminal Court?

If you are threatened or harmed by another person, you can call the police or go to the police station to report a crime. The police can charge the other person with a crime and during any of the court appearances in Criminal Court, the court can issue an Order of Protection.
The District Attorney prosecutes the defendant for the alleged crimes. You do not participate in the case other than as a witness so you do not need an attorney. The District Attorney’s office may have a “Victim-Witness Coordinator” who could assist you.

How do I get an Order of Protection through Family Court?

You can file a family offense petition in Family Court to request an Order of Protection.
You must have a certain relationship with the other person. You can be current or former spouses, be related by blood or marriage, or have a child together. You can have a current or former intimate relationship, which means a relationship that is more than a casual or workplace relationship or a connection through third parties.
You must allege and prove that the other person committed certain crimes against you.
During any of the court appearances, Family Court can issue a Temporary Order of Protection, even if there is no proof yet that the Respondent broke the law.
Either person in a family offense case has the right to an attorney. An attorney will be assigned to represent either if he/she cannot afford one.

How long does an Order of Protection last?

While the case is open, the court can issue a temporary Order of Protection. It has an expiration date before the case is closed and it can be renewed as the case continues.
At the end of the case, the court can issue a permanent Order of Protection. It usually lasts one year. In certain circumstances, it can last up to five years.

Can an Order of Protection be changed?

Either person can ask the court to change the Order of Protection. The Family Court cannot change an order that was issued by the criminal court.
The court might add exceptions to an Order of Protection to allow visitation with a child.
The court might change a “refrain from” Order of Protection to a “stay away” Order of Protection if the situation worsened.
The court might change a “stay away” Order of Protection to a “refrain from” Order of Protection if the situation improves and the two people need or want to have contact.
Before the order expires, it can be extended for a longer period, if there is a good reason for that.

Domestic Violence Victims’ Rights and Information

Domestic abuse is a type of violent crime that deals with abuse within the family structure. The vast majority of people who experience domestic violence are women, although individuals of either gender can be perpetrators of domestic violence. In many states, domestic abuse is categorized as a distinct crime. Accordingly, if an individual strikes their spouse or otherwise causes them harm, they could be charged with both domestic abuse and assault and battery.

Have a Safety Plan

If you are experiencing domestic abuse, have a plan BEFORE you leave. The National Coalition Against Domestic Violence recommends that you create a list of important items to take with you, including:

Identification
Legal papers
Emergency numbers
Medication and other essentials

For more help on leaving an abusive relationship safely, call the National Coalition Against Domestic Violence hotline at 1−800−799−7233.

Cycle of Violence

While some states categorize even isolated instances of violence as domestic abuse, many states consider domestic abuse to arise out of a larger pattern of violence and intimidation. Thus, it is sometimes defined as a pattern of actions where one family member seeks to wield power, authority, and intimidation over someone else in the household in order to control the behavior of other family members. This often results in repetitive actions of psychological or physical abuse that are sometimes described as a “cycle of violence.” Since domestic abuse arises out of an abuse of authority, rather than any specific gender dynamic, it can take many forms in a family. Domestic abuse may be perpetrated by a husband or wife, against children or elderly family members, and may arise in opposite-sex or same-sex relationships.

Forms of Violence

Although domestic abuse is often perceived as resulting in physical harm, such as a man punching or hitting a woman, it has many other insidious forms. Domestic abuse may be psychological or emotional, arising out of continued threats, constant criticism, humiliation, or repeated efforts to undermine another individual’s sense of self-worth. It may also arise in the context of imposed isolation, when a family member is forcefully isolated from others and made psychologically dependent on his or her abuser.

Economic Abuse

Domestic abuse may take the form of economic abuse, in which one spouse controls the finances and denies access to money or goods as punishment.

Another common form of domestic abuse is economic abuse. This form of abuse is particularly common in relationships where one family member may not have the authorization to work legally in the United States. The abuser thus places their spouse or family member in a position in which they are entirely financially dependent on the abuser and subject to the abuser’s complete control. If the individual upsets or disobeys the abuser, they may be denied access to the money or goods necessary to support basic needs.

Finally, domestic abuse may also take the form of sexual abuse, including control over reproductive strategies and forced sexual contact, such as rape.

Violence Against Women Act

In addition to state laws addressing domestic abuse, in 1994, the federal government passed the Violence Against Women Act (VAWA), which makes it a crime for an intimate partner, parent, or guardian to use or attempt to use physical force against a victim, or to threaten the use of physical force. The VAWA provides for the implementation of domestic violence units throughout the country and provides training to law enforcement on how to address incidents of domestic violence. It also sets forth a framework for individuals to seek domestic restraining orders against their abusers and requires the recognition and enforcement of these orders in all states.

The VAWA also addresses the unique vulnerabilities of immigrants who may face threats or intimidation by their abusers based on their lack of legal status in the United States. Under VAWA, these individuals may apply for special visas specifically designed to provide undocumented immigrants who are experiencing domestic violence with legal status in exchange for their cooperation in prosecuting their abusers.

Restraining Orders

Individuals experiencing domestic abuse may pursue several types of civil and criminal actions against their abusers, including claims of assault and battery, aggravated assault, or even attempted homicide. One common remedy is the use of a restraining order, which prohibits an abuser from coming within a specified distance of the individual experiencing domestic violence and sometimes their family members. Restraining orders require the abuser to distance themselves from the individual and to cease all contact. They are often an effective method for keeping individuals safe from violence. Depending on the context of the abuse, restraining orders may also require that the abuser undergo certain counseling or give up possession of firearms or other deadly weapons.

Child Custody and Support

When the parents of a child are not married or in a relationship, issues may arise regarding the custody and support of the child. It is usually in the best interest of everyone involved if the parents can come to an amicable agreement between themselves regarding support and custody. Even if the parents can come to an agreement, however, it is prudent to file the agreement with a court that would have jurisdiction over the matter, in case the relationship between the parents deteriorates at a later date. Many courts will allow parents to file a consent order setting forth an agreement regarding custody and support of a child, provided the agreement is determined to be in the child’s best interest. Factors considered in determining whether an agreement is in a child’s best interest include whether the agreement is harmful or beneficial to the child’s emotional and physical health and well-being.

Petition for Custody and Support

If parents cannot come to an agreement regarding the custody and support of their child, one or both of the parents can file a lawsuit seeking court intervention. Generally, courts seek to maintain the parent-child relationship, and will not inhibit a parent’s ability to see his or her child without just cause. When most people think of the term custody, they think of the right to determine a child’s primary residence. Custody is far more complex than simply determining where a child lives, however. In addition to setting forth parameters regarding physical custody, or where a child lives, custody orders can define legal custody of the child, which can include determining which parent has the right to make decisions regarding the child’s education, medical care, and religious upbringing.

Sole and Joint Custody

In addition to physical versus legal custody of a child, a court must determine whether joint or sole custody is appropriate if the parents have not already reached an agreement about this. A court will usually grant parents joint custody unless it is determined to be in the child’s best interest for one parent to have sole custody. If parents share joint custody, however, it may not be an even split. Depending on factors such as which parent is the primary caretaker, and the work and personal obligations of each parent, a court may grant one parent a greater amount of custodial time. In some cases, such as where one parent resides in a different school district than the child, one parent may have primary physical custody of the child during the school year, and the other parent may have primary physical custody of the child during the summer. Custody orders are not permanent, and may be modified either upon agreement between the parents or via a petition to the court. Usually, unless the parents have agreed to modify the agreement, the court will look at whether there has been a change in circumstances significant enough to require a modification, such as a change in the residence of a parent or the child.

How Custody Affects Support

The court will consider the custody arrangement in determining support obligations, but is not the sole determining factor. A parent may be required to provide support payments regardless of whether he or she has joint or primary physical custody of the child. First, the court will examine relevant factors as set forth within the guidelines of the applicable jurisdiction. The court will generally calculate the support obligations of each parent based on the custody arrangement, each parent’s income, and the expenses of each parent and the child. Support orders can define which parent is responsible for providing health insurance for the child, and which parent must cover the cost of medical expenses not covered by insurance. Additionally, a support order can set forth obligations regarding the child’s education. As with custody orders, if a parent’s income or living arrangement changes the parents can either agree to modify the support obligation, or one parent can petition the court for a modification.

Duration of Support Obligations

In most cases, custody and support orders remain in effect until the child reaches the age of majority or completes high school. In some cases, such as where a child has disabilities, the custody and support obligations continue even after the child turns eighteen. Additionally, some support orders may require a parent to pay for continuing education past high school or provide medical insurance or the cost of medical treatment past a child’s eighteenth birthday.