Starting a family can be one of the most exciting events of your life. But sometimes even families need the court’s help when faced with certain circumstances.
Family law is a broad practice area that covers domestic relations from marriage and adoptions to divorce, child custody, and spousal support. Whether you are looking to protect yourself in case of divorce by setting up a prenuptial or post-nuptial agreement, escape an abusive relationship or try to start a new chapter in your love life, LawInfo’s family law section includes information to help guide you in your journey.
Many of these matters can become emotional, contentious, and complicated. If you are facing a family law issue, it may be helpful or even critical to consult with and hire a family law attorney.
Unmarried couples might have issues regarding paternity and similar situations. Normally, family courts handle these matters by ordering paternity tests for paternity and enforcing child support orders after establishing paternity.
When unmarried couples are involved in a long-term relationship, their relationship might actually be a common-law marriage in some jurisdictions, such as Texas. A common law marriage affords the couple all the same rights as a married couple, as long as they meet certain legal requirements like cohabitation and holding themselves out as married.
Before marrying, some couples will enter into a prenuptial agreement drafted by a lawyer. Common subjects addressed in prenuptial agreements include how to divide property if a divorce occurs, waivers of future rights to alimony, the duties and responsibilities of each spouse, and other assorted topics.
These agreements can’t include provisions for child custody or child support, however. A person cannot negotiate away their obligation to support their minor children, and courts always make custody and visitation decisions based on the child’s best interests.
If you want your relationship to be legally recognized, and reap the legal benefits from being married, you need to comply with certain statutory procedures. Although exact rules can vary from state to state, couples must apply for a marriage license before getting married and then 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.
If the honeymoon is over in more way 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.
As opposed to ending a marriage, an annulment contends the marriage was invalid and you were never legally married in the first place. Grounds for an annulment include fraud, misrepresentation about your legal eligibility for marriage, if they’re too young or already married, impotence, failure to consummate the marriage, or temporary insanity.
Maybe you need some space to see if the marriage can work or not. Or maybe you know it won’t, but one or both of you need the benefits of marriage. “Legal separation” refers to a court-sanctioned separation that defines legal rights and obligations of each party, but doesn’t permanently end the marriage.
Sometimes referred to as “divorce lite,” a summary dissolution is generally available to couples who have been married fewer than five years or fewer 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.
The classic divorce ends the marriage and sets forth orders regarding the division of marital property, spousal support, child support, and child custody and visitation.
While you once needed a good reason to get divorced, every state allows divorces to proceed under no-fault grounds. In a no-fault divorce, one spouse simply says that the marriage has broken down and they cannot preserve it and the court then does not need fault to enter a divorce decree ending the marriage. While some contentious divorces may go to trial, ex-spouses resolve most divorces through some form of settlement or mediation process.
A major part of divorce cases is the determination of how the couple’s shared property will be divided. That could depend on whether you live in a “community property” state or an “equitable distribution” state.
In community property states, courts consider all assets, and certain debts, acquired during the marriage be jointly owned by both spouses, and therefore subject to being divided equally in a divorce. Certain things like gifts or inheritances are exempt from this rule.
In equitable distribution states, judges divide the marital property according to what they consider to be 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 which point they may sell it, as opposed to forcing a sale and 50-50 distribution of the purchase price as part of the divorce proceedings.
Also known as “alimony” or “spousal maintenance,” spousal support consists of money payments from one former spouse, usually the higher earner, to the other following a divorce. 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.
Every parent has a legal obligation to support their minor children. For unmarried parents or non-custodial parents after a divorce, this obligation normally takes the form of monthly payments to the custodial parent. This amount will be based on the parents’ income and follow the child support guidelines formula of the parents’ particular state of residence.
Child support, custody, and visitation determinations are usually all handled by family courts at the same time. While parents can craft their own agreements and have their say, a family court must approve any parenting plan that affects custody and support.
In cases of divorce or when relationships that have produced children break up, it may become necessary to formally draw up a custody agreement that outlines with which parent the child will live most of the time. “Legal custody” generally refers to a parent’s ability to make important decisions concerning their child. While “physical custody” describes to child’s living situation. Most courts lean towards an award of joint legal custody to both parents. Physical custody determinations vary by state.
Visitation orders follow custody determinations and, like those decisions, will be made in the child’s best interests. There are a variety of different custodial and visitation arrangements, and arguing over family time can be contentious. 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.
Paternity affords both the parent and the child’s 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 important 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, have access to veterans’ and social security benefits, and access to a parent’s genetic and medical background.
In some cases, courts will 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.
And if you are giving up your child for adoption, know that the process can irrevocably terminate your parental rights.
While the criminal issues of abuse and domestic violence cases are handled in criminal court, family courts can handle 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 protection orders against the abusive spouse.
All aspects of family law are complex. Learning the state laws and local laws pertaining to a case can be difficult. Working with an experienced family law attorney might help to 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.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified family lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact an attorney in your area from our directory to discuss your specific legal situation.