Family Law FAQ
Family Law
In an agency adoption, the prospective
adoptive parents contact an adoption agency to start the
process, and the agency acts as an intermediary between the
adoptive parents and the birth parents, matching them up and
guiding them through all of the necessary hurdles to
finalization. In an independent adoption, the birth parents and
adoptive parents locate each other and work together
independently to accomplish the adoption without the benefit of
any agency involvement, although typically a lawyer is hired to
make sure that all legal requirements are met.
Each type of adoption process has its
advantages and disadvantages. Using an agency can be beneficial,
for example, because agencies are in the business of locating
children and matching them with parents, and they are familiar
with all of the requirements, which can be overwhelming to
prospective parents and birth parents alike. In international
adoptions, especially, it can be advantageous to have someone
who knows the ropes intercede on the prospective parents'
behalf. Agencies can also provide counseling and other support
services to the birth and adoptive families, both before and
after the adoption. Some agencies have selection criteria that
may screen out certain prospective parents, and waiting times
can be very long.
Independent adoptions may allow
prospective adoptive and birth parents more control over the
adoption process. All parties may have a greater opportunity to
get to know and "select" each other. Adoptive parents may be
able to circumvent an agency's selection criteria and shorten
the waiting time by going the independent route. On the other
hand, birth parents may not receive counseling in an independent
adoption, which could lead to greater uncertainty and even the
possibility of a change of heart. Additionally, independent
adoptions are not legal in all states, so it is essential to
check applicable state laws before choosing this option.
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The obligation of spouses to support
each other does not necessarily terminate when they divorce. If
the divorce will leave one spouse with very little income and
the other with enough to contribute to the low-income spouse's
support, the court will usually award alimony, at least
temporarily.
Although historically spousal
maintenance was typically awarded to homemaker wives, to be paid
by breadwinning husbands, that is no longer always the case.
Now, either spouse may be awarded alimony if the other has the
more substantial income and the recipient spouse's income is
insufficient to support him or her at the level to which the
spouses were accustomed during the marriage.
Spousal support is often awarded in
cases in which one spouse has put his or her education or career
on hold in order to raise the parties' children while the other
climbed the career ladder and achieved a higher income. In such
cases, the alimony will often be temporary, providing income for
the period of time that will enable the recipient spouse to
become self-supporting. This temporary, or rehabilitative,
spousal support enables the spouse receiving it to further his
or her education, reestablish himself or herself in a former
career, or complete childrearing responsibilities, after which
time he or she can be self-sufficient. If one spouse is unable
to get a job paying a sufficient wage, however, due perhaps to
health or advanced age, the support award may be permanent.
The amount and duration of alimony
depends on several factors, including:
- The length of the marriage;
- The age of each spouse;
- The health of each spouse;
- The ability of each spouse to be
self-supporting, including a consideration of
responsibilities to the parties' minor children, if any;
- The income of the primary
breadwinner; and
- Standard of living the parties
enjoyed during the marriage.
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Each state has developed guidelines
that help establish the amount of child support that must be
paid. The guidelines vary significantly from state to state, but
they are all generally based on the parents' incomes and
expenses and the needs of the children. In some states, the
guidelines allow judges greater discretion in determining the
amount of child support that must be paid, but in other states
any variance from the guidelines must be carefully justified or
it can be readily overturned on appeal. Often, the guidelines
are set out in a chart-type format that calculates the child
support amount as a percentage of the paying parent's income
that increases as the number of children being supported rises.
It is important to remember, however, that the guidelines are
just that - guidelines - and they are not fixed amounts that
must be applied under any and all circumstances. Judges are free
to deviate from the guidelines when there are good reasons to do
so. If, for instance, one party or a child has higher than
average expenses, the amount can vary. Or if the court
determines that the paying parent is voluntarily earning less
than he or she could for the purpose of minimizing the child
support obligation, the judge can calculate the amount of child
support based on what the payer is capable of earning.
Despite the variations from state to
state, there are some general factors that are almost
universally considered by judges issuing child support orders,
including
- The child's standard of living
before the parents' separation or divorce;
- The paying parent's ability to
pay;
- The custodial parent's needs and
income; and
- The needs of the child or
children, including educational costs, daycare expenses, and
medical expenses, such as for health insurance or special
health care needs.
Judges will often review a financial
statement completed by each parent that lists all sources and
amounts of income and expense before issuing an order. If any of
the listed items changes significantly, either parent may go
back to court and ask for an increase or decrease in the amount
of child support ordered.
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The amount of child support is
modifiable under certain circumstances and through a variety of
methods. The simplest method is for the parents to agree to a
change, but the court must approve even an agreed-upon change in
order to be enforceable.
Example: If the payer parent loses his job and asks
the custodial parent if he can go a few months without
paying support until he has a new job, the custodial parent
may voluntarily agree to this modification. If, however, she
later decides that she wants to collect the amount of
support that went unpaid during that temporary period, the
court might support her if it never formally approved the
change.
When there is no voluntary agreement,
the party seeking the change must request a court hearing at
which each side will present, usually through counsel, the
reasons supporting and opposing the modification. The court
usually will not grant the request unless there has been some
fairly significant change in circumstances that justifies the
change, such as a significant increase in either parent's income
through a remarriage or job change or a substantial change in
the needs of the child. Changes in the child support laws, too,
may justify a change in previously issued orders. Also, under
certain circumstances, an increase in the cost of living can
warrant an upward modification of child support, but generally
these periodic increases can be provided for in the original
order so that the parties do not need to make repeated court
appearances each time there is a significant change in the cost
of living.
Other anticipated changes that can be
provided for in the original child support order include a
reduction upon the emancipation of each child, an increase when
a child enters college, or any other change based on an event
that the parties anticipate and that will have an impact on need
or ability to pay.
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Under the Revised Uniform Reciprocal
Enforcement of Support Act (RURESA), an order for support issued
by the family court in one state will be enforced by the family
court in another state to which the paying parent moves if
certain conditions are met. Under RURESA, the custodial parent
has two options for how to proceed to collect support.
Under the first option, the custodial
parent who receives the support must register the order for
support in the county where the payer parent now lives. The
family court in that county can provide information on the
proper registration procedure. That court will then move to
enforce the order and make the non-custodial parent pay. The
payer parent can, however, go to court in his or her new home
state and argue that the child support amount should be modified
downward, and if he or she is successful, the child's home-state
court is stuck with the reduced amount. A newer interstate
support act called the Uniform Interstate Family Support Act,
which has been adopted in some states, does not allow the court
in the new home state to modify the original court's support
order.
Alternatively, the custodial parent can
go to the family court in his or her home state to commence an
action to enforce the support award issued by that court. The
enforcement agency that serves that court will then notify the
payer's new home state so that enforcement actions, such as wage
withholding, can be implemented there. Under this method, the
payer cannot get the award modified in his or her new home
state. The new state's court can, however, determine that the
amount of child support ordered is too high and require that
only a portion of it be paid, but the original state does not
have to accept the reduced amount. The payer remains liable for
the full amount as originally ordered, and if he or she fails to
pay it, the original state may issue an arrest warrant, and the
delinquency can show up on the payer's credit report.
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Every parent has the duty to provide
his or her children with the basic necessities of life,
including food, clothing, and shelter. This duty usually
terminates when the child is emancipated, which generally occurs
at the age of eighteen, when the child graduates from high
school, when the child enters the military, or when the child
marries, but the support obligation can extend beyond that point
if the child is unable to support himself or herself and would
become a public obligation without familial support. The law
generally does not dictate the level of support that is provided
when the children live with both parents, but when, through
divorce or other circumstances, the child is living with one
parent, there are strict rules about the amount of financial
support provided by the non-custodial parent.
In most instances, parents also have
the responsibility to provide necessary medical care for their
children. If parents refuse life-saving medical treatment for
their children, the state may intervene against the parents'
wishes, even if they made their decision on religious grounds.
Parents must also make sure that their
children meet school attendance requirements. They do, however,
have the right to decide whether the child's education will be
in a public school, a private school, or through home schooling.
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When the parents cannot agree on a
custody arrangement, the court will make the decision for them
after considering the totality of the circumstances, with the
overriding consideration being the child's best interests. To
make that determination, the court considers:
- The child's age;
- The child's gender;
- The child's physical and mental
health;
- The parents' physical and mental
health;
- The parents' lifestyles;
- Any history of abuse;
- The emotional bonds between the
parent and the child;
- The parent's ability to give the
child guidance;
- The parent's ability to provide
the basic necessities, such as food, shelter, clothing, and
medical care;
- The child's routines, including
home, school, community, and religious;
- The willingness of the parent to
encourage a healthy, on-going relationship between the child
and the other parent; and
- If the child is above a certain
age, the child's preference.
In many cases, a consideration of these
factors results in awarding custody to the parent who has been
the child's primary caretaker. Although this is often the
child's mother, any preference for the mother strictly on a
gender basis is outmoded.
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Although some divorces are very simple
and can be handled with a minimum amount of red tape and delay
(such as when there is no significant property involved and the
couple has no children) most divorces are far more difficult and
can take many different courses. The following is a basic
outline of the divorce process.
- One spouse contacts a lawyer, who
assists in the preparation of a complaint, the legal
document that sets forth the reasons why the divorce should
be granted and outlines the relief sought.
- The complaint is filed with the
court and served on the other spouse, together with a
summons that requires that spouse's response.
- The served spouse must respond
within the time limit prescribed or it will be assumed that
he or she does not contest the petition, in which case the
petitioner will be granted the requested relief. The
response, or answer, must set forth the relief that the
answering spouse requests.
- The parties, through their
attorneys, engage in "discovery," during which they exchange
all documents and other information relevant to deciding the
issues in the divorce such as property division, spousal
support, child support, etc.
- The parties may attempt to reach a
settlement based on the full disclosure to each other of all
relevant information. The settlement process can be
initiated voluntarily or facilitated by the parties' lawyers
or a neutral third party, such as a mediator.
- If a settlement is reached, the
agreement encompassing the terms of the settlement is
submitted to the court.
- If the judge approves the
agreement, he or she issues a divorce decree that includes
the terms to which the parties agreed. If he or she does not
approve it, or if there has been no agreement, the case will
go to trial.
- At trial, the attorneys present
the evidence and arguments for both sides, and the judge
decides the unresolved issues, including child custody and
visitation, child and spousal support, and property
division, and grants the divorce.
- Either or both parties can appeal
the judge's decision to a higher court.
The entire process can take from as
little as a few months to as long as several years. The main
determinant of how smoothly the process will go is the level of
cooperation between the parties and their willingness to
compromise.
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The parties in a divorce can agree to
the division of (or the judge will divide) all marital or
community property owned by the parties. Generally speaking,
this includes most of the property the couple acquired during
the marriage, including the marital home; a second or vacation
home; home furnishings and appliances; artwork; vehicles,
including cars, boats, airplanes, snowmobiles, and motorcycles;
money; stocks, bonds, and other investments; pensions; and
privately owned businesses.
The value of other, more intangible
property is also often divided. Examples of divisible intangible
property include the value of a patent on an invention, the
value of the celebrity status of a spouse's name, the goodwill
value of a business owned by one spouse, and the value of a
professional degree earned by one spouse. The value of these
intangible assets will generally only be divided when both
spouses made a substantial contribution to that value, either
directly or indirectly, such as by supporting the spouse to whom
the asset is more directly attributable.
It is not always easy for a spouse to
identify all of the assets that may be available for valuation
and division, especially if the other spouse is less than
forthcoming with the details. This is where the parties' lawyers
can help. Through the legal process known as discovery, the
parties' attorneys exchange documents that reveal each party's
income, assets, and liabilities. Documents such as tax returns,
personal financial statements, bank account statements,
brokerage house records, real estate records, loan applications,
and business records usually give a clear indication of each
party's financial situation. In addition, each spouse is usually
deposed by the other spouse's attorney. At the deposition, the
questioned spouse will respond, under oath, to questions
designed to gather all necessary information about his or her
assets and income.
If necessary, additional parties may be
deposed, such as employers, bankers, or business partners. If
these additional witnesses do not come forth willingly, their
presence can be compelled through the issuance of a subpoena,
which is an official legal document that commands their
participation.
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In most states, whether they follow a
community-property or equitable-distribution scheme, the
property that each spouse owned before the marriage, as well as
property given to or inherited by one spouse during the
marriage, usually remains that spouse's separate property. It
may, however, be considered as part of the total circumstances
in determining a fair allocation of the marital property.
In addition, if non-marital property is
not kept separate from marital property, it may lose its
separate characterization and become subject to division.
Example: If one spouse had a bank account
containing $5,000 before the marriage, but during the
marriage the spouses both made deposits and withdrawals from
the same account, the amount in the account at the time of
divorce or separation will probably be deemed marital
property, to be divided between the husband and wife. If, on
the other hand, the spouse with the $5,000 account deposits
only other non-marital money, such as inheritances to him or
her alone, in the account throughout the marriage, all the
money in the account will probably remain with that spouse
upon divorce.
A house owned by one spouse prior to
marriage presents unique issues, because often both spouses
contribute to the home's maintenance and mortgage payments
during their marriage. In some states, this commingling of
marital and non-marital assets converts the home to marital
property.
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A separation agreement may be most
advisable when the parties have very different financial
situations, such as when one spouse is the wage-earner and the
other is raising the couple's children. A formal separation
agreement can help ensure that all family members' needs will be
met.
An attorney can make sure that a
separation agreement covers all necessary details and complies
with applicable law. Although it may seem like a good idea to
save money by having one lawyer draft or review the agreement,
it is really in each party's best interests to be separately
represented, so that each lawyer can draft or review the
separation agreement with his or her client's needs in mind. The
terms of such agreements will vary, depending on the needs of
the particular parties involved, but the following items should
be addressed:
- The spouses' right to live
separately;
- Custody of the children;
- A visitation schedule, or a
provision for reasonable visitation;
- Child support;
- Alimony or spousal support;
- The children's expenses, including
medical, dental, educational, and recreational;
- Property and debt division;
- Insurance, including medical,
dental, and life; and
- Income taxes.
As with pre-marital agreements, a
separation agreement may be unenforceable if either party failed
to make a full disclosure or coerced the other to enter into it.
If and when the parties officially file for divorce, the
separation agreement's terms will be incorporated into a
settlement agreement.
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The laws relating to families have
changed dramatically since the 1970s as judges and legislators
have reexamined and redefined the legal issues involved in
divorces, child custody disputes, child support, domestic
violence, and other family law matters. Family law has become
entangled in national debates over family structure, gender
bias, and morality. Few legal areas are as emotionally charged
as family law, primarily for the litigants, but also for the
lawyers and judges involved in the cases and even the public at
large. Despite the changes already made by courts and
legislatures, family law remains a contentious and ever-changing
area of law, which will continue to evolve as families and
society evolve.
The division of marital property has
also changed in recent years, so that now each spouse is given a
more equitable share of the property upon divorce. One change
that demonstrates this phenomenon is the recognition of the
homemaker spouse's contributions to the accumulation of marital
property. For example, whereas once the husband who developed
and grew his own business while his "nonworking" wife stayed
home would walk away from the marriage with all of the business
assets, courts now award a significant portion of the business
assets to the wife, who enabled that business growth by taking
care of the home and children, and by entertaining business
clients and associates. On the other hand, homemaker spouses are
not considered as dependent as they once were, and as a result
alimony, if awarded at all, is now often temporary, with the
thought that after a period of "rehabilitation" these spouses
can become self-sufficient.
Issues such as child custody, too, have
evolved in the courts as cultural and societal attitudes have
changed. Mothers may have been favored in many custody disputes
of the past, but fathers are given much more consideration than
in the past. Custody battles, while always difficult and
emotional, have become even more complicated as reproductive
technology has increased the ways in which people can become
parents. Family law lawyers and judges are faced with new,
difficult, and sensitive questions such as who gets custody of
fertilized embryos when a couple that was involved in
infertility/assisted-reproduction treatments separates.
Surrogate parenting, too, presents heart-wrenching custody
issues when the surrogate fails to abide by the surrogacy
contract or wants visitation with the child. Equally difficult
issues can arise when sperm or egg donors make some claim to
their genetic offspring. These issues involve questions relating
not only to custody laws, but also to those involving adoption,
children's rights, and paternity. And as technology advances,
the law will be presented with an even greater challenge to keep
pace.
Another major change in family law in
recent years is the recognition that many family disputes can be
resolved more expediently and in a less acrimonious manner than
through the traditional litigation process. In divorce and child
custody cases in particular, the adversarial process has
increased tensions between the parties that do not abate even
when the process is complete. As a result, many states have
begun to explore other, non-adversarial alternatives, such as
mandatory mediation, which can save time and money and preserve
relationships to the extent possible.
Family law lawyers can provide valuable
counsel and objective representation in what can be emotionally
charged situations. Their experience may focus on a particular
area, or may include several or even all of the following family
law issues.
Adoption is a legally
recognized way of forming a family. Adoption options include
international adoptions, domestic adoptions, agency
adoptions, independent or private-placement adoptions,
stepparent adoptions, blood-relative adoptions,
surrogacy-related adoptions, open adoptions, and closed
adoptions.
Maintenance and spousal support
are legal terms for income provided by one spouse or former
spouse to the other during a separation or after divorce.
Although once traditionally awarded primarily to wives for
an indefinite period, alimony awards are now awarded to
either spouse if he or she needs financial assistance and
the other is able to provide it, and they tend to be
temporary, for a period of rehabilitation that enables the
recipient spouse to become self-supporting.
Child support is generally
ordered by the court in situations in which a child lives
with one but not both parents. The non-custodial parent (the
parent with whom the child does not live) is responsible for
contributing a certain portion of his or her income, based
on state child support guidelines, to help support the
child, even if the custodial parent has income of his or her
own.
Children's rights cover a
broad spectrum, which includes not only the rights afforded
to all U.S. citizens, but also those rights that are theirs
due to their status as children, such as the right to food,
clothing, shelter, medical care, and education. Children are
not, however, guaranteed all of the constitutional
protections that are provided to adults.
Custody and visitation
issues can arise when parents are divorced or separated,
when the parents have never been married, or when some type
of reproductive technology, such as surrogate motherhood or
sperm and egg donation cases, complicates the issues even
further. Courts generally apply a "best interests of the
child" standard when determining to whom custody should be
awarded.
Divorce is the legal
process by which a marriage is terminated. In a divorce
proceeding, the parties' marriage is legally ended and the
related issues, such as spousal and child support, child
custody and visitation, and property and debt division, are
resolved, either by the parties' voluntary agreement,
through the assistance of a mediator, or after a court
trial.
Domestic violence and neglect
include physical, mental, and sexual abuse of children,
mates, elderly persons, or other vulnerable adults in the
perpetrator's household. Abuse and neglect have long-term
consequences, but there are legal mechanisms through which
victims or interested third parties can seek protection.
Juvenile law relates not
only to relates to juvenile delinquency proceedings, in
which the juvenile is charged with an offense that would be
a crime if committed by an adult. It also relates to
juveniles charged with status offenses, abused and neglected
children, and children in need of social services.
Paternity refers to a
legal action to establish that a man is the father of a
child. A paternity action may be brought in order to impose
a child support obligation, establish a right to
inheritance, secure consent for the child's adoption, or
gain or prohibit custody or visitation rights.
Prenuptial agreements are
contracts entered into by a couple in contemplation of
marriage. They usually address property issues that may
arise in the event of divorce or death, and are often used
as vehicles to provide for greater awards of property to
children from previous marriages, or when one spouse brings
substantially greater assets to the marriage.
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DISCLAIMER: This site and any
information contained herein are intended for informational
purposes only and should not be construed as legal advice. Seek
competent legal counsel for advice on any legal matter.
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