Family Law Overview
Starting a family can be a joyous time. But sometimes, even the happiest events need the court's help to be made official. Family law is a broad practice area covering domestic relations, including divorce, property division, child custody and support, alimony, and adoption. Whether you are looking to protect yourself with a prenuptial or post-nuptial agreement, escape an abusive relationship, or start a new chapter in your love life, LawInfo's family law overview includes information to help guide you in your journey.
Many of these matters can become emotional, contentious, and complicated. If you face a family law matter, it may be helpful or even critical to consult with and hire a family law attorney.
If you want your relationship to be legally recognized and reap the legal benefits of being married, you must comply with specific statutory procedures. Although exact rules can vary from state to state, couples must apply for a marriage license before getting married. They must also submit a marriage certificate following the ceremony. While most states have relaxed regulations regarding who can serve as an officiant, others maintain strict rules about who can perform legally recognized marriage ceremonies.
Thankfully, same-sex couples now have the constitutional right to marry and no longer need to worry about civil unions, domestic partnerships, and other quasi-legal distinctions. That said, some states have been slower to recognize the full legal rights of same-sex spouses.
Sometimes a couple will enter into a prenuptial agreement before they marry. Typically, these are drafted by a lawyer. Common subjects addressed in prenuptial agreements include how property will be divided if a divorce occurs, waivers of future rights to alimony, the duties and responsibilities of each spouse, and other assorted topics. The agreements may not include provisions for child custody or child support.
Unmarried couples might have issues regarding paternity and similar situations. Commonly, family courts handle these matters by ordering paternity tests and enforcing child support orders after establishing paternity.
Common Law Marriage
When unmarried couples are involved in a long-term relationship, their relationship might be classified as a common law marriage in some jurisdictions, such as Texas. A common law marriage affords the couple the same rights as a married couple, as long as they meet certain legal requirements like cohabitation and holding themselves out as married.
Divorce, Annulments, and Legal Separation
If the honeymoon is over in more ways than one, you may be thinking of ending your marriage. There are several options, depending on how long you've been married and your reasons for separation.
A traditional divorce ends the marriage and sets forth orders regarding the division of property, spousal support, child support, child custody and parenting time.
Every state allows divorces to proceed under no-fault grounds instead of requiring spouses to provide a reason for the divorce. In a no-fault divorce, one spouse says that the marriage has broken down and cannot be preserved. The court then enters a divorce decree ending the marriage. While some contentious divorces may go to trial, most divorces are resolved through some form of settlement or mediation proceedings.
Sometimes referred to as "divorce lite," a summary dissolution is generally available to couples who have been married five years or less and don't have any shared minor children. Some states also require that spouses don't have any shared "real property" interests, less than a certain amount of marital property to divide up, and no claim to spousal support, also known as alimony, following the separation.
These options may be quicker and cheaper paths to ending a marriage, as they generally require less paperwork, court time, and legal expenses.
If the marriage itself was legally invalid, spouses might get an annulment. In the case of annulments, the law treats the marriage as if it never existed. Examples of invalid marriages may include bigamy (marriage to more than one person), misrepresentation, fraud, concealment, lack of consent, and incest.
In some family law cases, a couple opts for legal separation rather than permanently ending their marriage. This is frequently done in cases where such things as the tax and health care benefits outweigh the desire for divorce. In addition to paving the way for child custody arrangements, a legal separation may also be the choice of couples who want to live separately for a time to determine if they genuinely want to get divorced.
Child Custody and Support
Legal custody determines which parent will make the crucial decisions concerning their child, while physical custody refers to the parent with whom the child primarily lives. There are a variety of different custodial and visitation arrangements. In all cases, courts make child custody decisions based on what they determine to be in the best interests of the child.
The question then arises as to who must pay child support. Child support is customarily paid by one parent to the parent holding primary physical custody. This method is intended to provide children with a standard of living similar to what they would have enjoyed if their parents remained together. In many states, judges use child support guidelines to help them determine the monthly amount ordered. Most courts lean towards an award of joint custody to both parents as opposed to sole custody to one parent.
Visitation orders follow custody determinations and, like those decisions, will be made in the best interests of the child. There are various custodial and visitation arrangements, and arguing over family time can lead to contentious legal issues. But it's important to remember that custody and visitation agreements are separate from child support orders. So, you can't stop paying child support if your ex denies you visitation, and you can't keep your ex from seeing your children if they miss a few support payments.
If either side is violating a child support, custody, or visitation agreement, it's best to document it in court. On top of the initial orders pertaining to these cases, the family court will also handle modifications to these orders when warranted according to state law.
Alimony, or spousal support, is a monthly amount paid from a higher-earning spouse to their former spouse. Depending on several factors, it may be ordered for a short time, indefinitely, or not at all.
Support amounts, timing, and duration will vary depending on the length of the marriage, the financial resources and earning potential of each spouse, their contributions to the marriage, and the standard of living during the marriage. Each state has its own criteria for how spousal support is determined.
A significant part of divorce cases is determining how the property will be divided. Some cases will be handled in community property states, while others occur in equitable distribution states. In community property states, courts consider the marital assets jointly owned by both spouses and divide them equally.
In equitable distribution states, judges divide the marital property according to what they consider a fair (but not necessarily equal) division. For example, the judge might decide that it's fair for the custodial parent to keep ownership of the house until the youngest child graduates high school. At this point, the house will be sold instead of forcing a sale as part of the divorce proceedings.
An experienced attorney from a family law firm can assist in determining the value of any assets and help parties understand which possessions are eligible to be divided and which ones are exempt.
Paternity affords both the parent and the child certain legal rights. It also carries specific legal responsibilities.
Once a child's paternity is established, the parent has rights to custody, visitation, and to make essential decisions in the child's life. The parent, as noted above, also has the responsibility to support the child. The child also has rights: to inherit from both parents, access to veterans' and social security benefits, and access to a parent's genetic and medical background.
In some cases, courts presume paternity, like when a married man's wife gives birth. In other cases, it may have to prove paternity by court-ordered DNA testing.
Whether you are looking to add to your family by adopting a child or you want to make your stepchild equal to your biological child in the eyes of the law, adoption law governs the legal process you must go through. The adoption process differs depending on the type of adoption you choose and where the adoption is taking place. An adoption lawyer can help guide you through this potentially complex process.
Domestic Violence and Abuse
While the criminal issues of abuse and domestic violence cases are handled in criminal court, family courts can manage some aspects of the cases. In the case of child abuse, the family court may need to determine if a family should be reunified or if parental rights should be terminated. For domestic abuse cases, family law would handle the restraining orders against the abusive spouse.
Speak With a Family Law Attorney Today
All aspects of family law are complex. Learning the state and local laws of a case can be difficult. Working with an experienced family law attorney might help make the process easier. These attorneys can help present your side of the case, petition the court, negotiate in mediation, and work through any issues that might come up.