Family Law Overview
Family Law - An Overview
Family law is the term that is applied to the laws and rules developed regarding family relationships. Family law rules define not only the relationships between members of a family but also between a family and society as a whole. More than any other area of the law, family law reflects the values society shares regarding how people who are related should treat each other.
Typically, family law attorneys assist people with the making and breaking of family relationships. Specific areas of representation usually include marriage and relationship planning, divorce, paternity, child custody and child support. Some family law attorneys also provide assistance in the area of adoption.
When you are faced with an important life decision regarding a key family relationship, the advice and assistance of an experienced family law attorney often proves crucial to your understanding of the issues involved and your satisfaction with the ultimate outcome of the family-related concern you face.
Marriage is a legal and business union as much as it is a romantic one. Although the limitations and requirements vary by state, basic marriage laws are similar. All states prohibit marriage to more than one person and marriage between close family members. Some of the more common limitations are:
- A prohibition against marriage between brothers and sisters, parent and child and marriage between aunt or uncle and niece or nephew.
- Minimum age requirement, typically 18 years. Many states permit marriage at a younger age if parental consent is given.
- Residency by one or both of the parties within the state for a specific period of time.
Most states also require a formal ceremony of some kind with witnesses and a licensed public or religious official.
Federal and state laws give married couples many benefits, including:
- Certain tax privileges;
- Federal benefit rights, such as social security, disability, unemployment, veterans' pension and public assistance benefits;
- Inheritance rights under state intestate succession laws;
- Claimant rights for loss of consortium;
- The right to make medical decisions about your spouse in the event of disability; and
- The right to legally protect marital communications.
Because marriage is a legal and business arrangement, it may be wise to consult with an attorney about the advantages of entering a premarital or prenuptial agreement.
Many couples find it helpful to work through financial issues and the potential disagreements such issues can create before marriage.
A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce gives each person the legal right to marry someone else. It also legally divides the couple's assets and debts and determines the care and custody of their children. Each state addresses these issues differently. However, most states follow the same basic principles and use relatively uniform standards.
In some states you need to prove fault, commonly referred to as "grounds," to be able to obtain a divorce. The majority of states allow at least one form of "no-fault" divorce, where it is not required to prove any fault. If no-fault grounds for divorce are available in your state, either party may obtain a divorce, even if the other party does not consent to the divorce. In some states both fault and no-fault divorce grounds are available. An experienced attorney can help you determine if you should pursue a fault based or no-fault based divorce.
The primary issues to be decided during a divorce are alimony or spousal support, property division, and, if there are children, child custody and visitation and child support. When spouses agree, they can usually obtain a divorce quickly. More typically, divorcing spouses have disputes regarding their post-marriage financial arrangements and the care and custody of their children.
Each state has different laws regarding division of marital property. Thirteen states follow the community property system, where marital assets are split equally. The rest of the states use an equitable distribution system that divides property after consideration of a number of elements in a manner the courts deem to be fair given the particular situation. Any award of alimony, or ongoing financial support from one spouse to the other is made in conjunction with the distribution of property. Property division and alimony are often hotly contested and the early advice of an experienced family law attorney can greatly impact the ultimate result.
Child Custody & Visitation
The care and upbringing of children following divorce is often an ongoing source of conflict for divorcing parents. Custody must address both physical custody, or the rights and responsibilities regarding the day-to-day care and activities of their children and legal custody, or the legal rights and responsibilities associated with the child's upbringing. Sometimes the couple agrees to an arrangement and sometimes the court determines one for them. In the past, courts routinely gave mothers physical custody and gave fathers visitation rights, sometimes awarding joint legal custody of the children with the children residing with the mother. Today, the courts have begun to realize that sometimes it is in the best interest of the children that they reside with the father, and reverse the roles of the parents. The courts are favoring joint ongoing child rearing responsibilities, with the children residing where it is most practical and where they will flourish best.
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor any custody agreements divorcing parents reach regarding their children. When custody is contested, most courts will require parents to participate in a mandatory mediation session. Mediation is an alternative dispute resolution process where divorcing couples work with a specially trained neutral third party to try and resolve some or all of their disagreements. If mediation is unsuccessful, the court will determine custody. Though rules differ from state to state, most courts generally reach decisions about custody and visitation after considering what arrangement will serve the best interests of the child. Courts often use custody evaluations performed by an outside expert to help them reach such a determination.
Except when parties agree otherwise, courts often impose standard visitation and custody orders. A typical visitation schedule allows a non-custodial parent to see the children one night a week, every other weekend and some portion of school and summer holidays. In order to change a court-ordered custody and visitation scheme the parent seeking the modification must show a substantial change in circumstances. Some states will only consider a request for modification within two years of an original custody determination if there is a showing that the child is endangered by the current arrangement. In order to prevent parents from shopping for friendly rulings in different states, some states will only consider custody-related requests if the child has been a resident of the state for six months or longer.
Biological parents must financially support their children. That obligation usually lasts until the child reaches "the age of majority" (depending on state law, 18 or 21) or becomes self-supporting. The responsibility to provide support in the form of regular payments generally arises when one parent has primary custody of the child. An order for child support may be entered during or after a divorce. Either parent may be ordered to pay support depending upon how custody is arranged. An unmarried mother may also file a petition for child support in family court and an order for support will be entered once paternity has been established.
In every state, the amount of support is set after the needs of the child and the parent's income are assessed through the use of state specific guidelines. The paying parent must regularly make the ordered payments. Failure to remain current with child support obligations exposes the paying parent to significant penalties. Every state has a Child Support Enforcement office. Along with the family court, these agencies have the power to suspend professional or business licenses, take away driver's and recreational licenses, require payment of future owed sums in advance or place non-paying parents in jail when child support obligations are overdue.
Once support has been ordered, both parents have the right to request changes and some states undertake regular review of existing orders without the need for a specific request. Paying parents face a difficult time when making a request that support be reduced. Even if a paying parent's current income is insufficient to meet their support obligations, a court may impute a higher earning capacity to them and order support based on that higher earning power.
Because of the state specific requirements involved in child support, parents can benefit from the advice and involvement of an experienced family law attorney when child support issues arise.
Adoption is the legal procedure that allows a family to make a child who is not biologically their own part of their family. Every adoption, whether foreign or domestic, requires the action and approval of a court to become final.
Each state has its own policies and procedures controlling child adoption. Most states have measures in place to assess the fitness of the adopting parents. Upon adoption, adopted children generally receive all the benefits afforded to natural children and parents owe adopted children all the legal duties of care and support owed to a natural or birth child of the marriage.
Adoption relieves birth parents of the financial responsibilities they owe their children. In the past, adoption also meant birth parents relinquished the child forever without the privilege of seeing the child or being otherwise involved in the child's life. However, particularly in domestic adoptions, policies have changed and birth parents sometimes now are allowed open adoptions where they maintain contact with their children after adoption becomes final.
Family law attorneys who offer adoption-related services can help both adoptive and birth parents throughout all phases of the adoption process.
Family relations create a host of legal consequences.
Whether you are contemplating marriage or divorce, or are considering adoption, an experienced family law attorney can explain the laws that apply to your particular situation and help you understand their effect so that you may make the best choices for you and your family.
Frequently Asked Questions about Family Law
Q: What is the legal definition of marriage?
A: Most states define marriage as a civil contract between a man and a woman to become husband and wife. The traditional way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.
Q: What are the legal effects of marriage?
A: There are several Federal and state laws that benefit married couples. Some examples include the right to:
- File joint income tax returns with the IRS and state taxing authorities
- Create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income)
- Create a marital life estate trust
- Receive spouse's and dependents' Social Security, disability, unemployment, veterans', pension and public assistance benefits
- Receive a share of your deceased spouse's estate under intestate succession laws
- Claim an estate tax marital deduction
- Sue a third person for wrongful death of your spouse and loss of consortium
- Sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these lawsuits are available in only a few states)
- Receive family rates for insurance
- Avoid the deportation of a non-citizen spouse
- Enter hospital intensive care units, jails and other places where visitors are restricted to immediate family