Family LawFAMILY LAW INFORMATION CENTER
Overview Family law deals with family-related issues that include marriage, domestic partnerships, adoption, child custody, child support, paternity, visitation and divorce – just to name a few. Laws vary from state to state. Family law comes into effect when two parties want to start a relationship or end one. Marriage Marriage is a private civil contract between two people. Getting married can be a very romantic time for two people but it is also a legal relationship between two people. An agreement before the marriage can help you avoid problems later on, especially if the marriage ends in divorce. If you are considering marriage, a family law attorney can provide assistance in drafting a premarital or cohabitation agreement. Benefits derived from marriage include the right to file a joint income tax return, create a marital life estate trust or family limited partnership, receive survivor benefits, etc. Requirements for Marriage States prohibit marriage between family members. Some states do not allow same-sex marriages to take place. State law requires a couple to be at least 18 years old unless parental consent is given. You must live in your state for a specific time before a marriage license will be issued. The license must be issued by a public official. A medical exam and blood test must be completed in some states. Common Law Marriage A common law marriage is when a heterosexual couple liver together for a specific time. The timeframe is the states that recognize common law marriages are about ten years. The couple must have the intent of being married – share the same last name, file joint tax returns, refer to each other as their husband or wife. Premarital and Cohabitation Agreements A premarital agreement defines the couple’s legal relationship and can help avoid financial issues down the road, especially if the marriage ends in divorce. An experienced family attorney can advise you what your state allows in a premarital agreement. Most states will not uphold agreements created fraudulently or discuss child support. The Uniform Pre-Marital Agreement Act outlines how property ownership should be addressed and divided in the event of divorce or death.
Divorce Divorce is the termination of a marriage contract between two parties. It can be a very emotional and trying process. When a marriage terminates, the process entails legally dividing the marital assets, property and debts. In some cases, the judge will award alimony. When children are involved, many issues need to be resolved, such as custody and care, support, and visitation. When both parties agree on the divorce, it is over quickly. Once the divorce is final, the parties are free to remarry. Every state has their own rules for divorce; however, the principles are usually similar. Some states require the party wanting the divorce to prove grounds for the divorce, while others allow a no-fault divorce – where grounds or consent from the other party is not required. A fault-based divorce is when one party blames the other for the ending of their marriage. Grounds for divorce include adultery, abuse (alcohol, drug or violence), mental illness, felony conviction, cruelty, impotency, and bigamy. Courts will look at the specific fault when determining alimony. Alimony Alimony is also known as spousal support or maintenance. It is the financial aid paid by one spouse to the other. Factors used to determine alimony include the fault for the divorce, the length of the marriage, each party’s financial situation, and age, health and employment skills. Alimony is one of the more difficult issues to resolve during divorce. Permanent alimony is paid for housing, food, clothing and other daily needs. The spouse requesting permanent alimony must show that he or she needs it. Rehabilitative alimony is paid for a specific time. It does not live up to the standard used to during the marriage. It is given while the spouse receiving it becomes self-sufficient again. Property Division Each state determines division of property by equitable distribution or community property. States differ in dividing marital property. Child Custody / Visitation Many couples do not agree on who should have custody of their children and so the court must make the decision. The court looks at the best interests of the child or children. When the child lives solely with one parent (the custodial parent), the other parent (non-custodial parent) is awarded visitation. Courts encourage the parents to cooperate with each other in raising their children after the marriage ends. Types of Custody Physical Custody gives the parent responsibilities for daily care and activities. Legal Custody involves responsibilities pertaining to the children’s upbringing (i.e. major decisions on healthcare, education, religion).
Joint Custody The parents share responsibility for their children regarding living arrangements and major decisions. Sole Physical Custody The child or children live with one parent. When coupled with joint legal custody, the non-custodial parent has visitation rights. Sole Legal Custody One parent makes all the decisions for the child or children. Shared Parenting The parents share legal and physical custody while the children share equal times with both parents. Split Custody Split custody does not happen often. Each parent has custody of one child. Determination of Custody and Visitation Courts encourage parents to determine custody on their own. However, most parents cannot agree and the court makes the decision for them. Custody disputes are resolved in several different ways. Temporary Hearings Once the divorce papers are filed, the court will issue a temporary custody arrangement until the final divorce decree is issued. Mandatory Mediation It is mandatory for the couples in a contested divorce to attend mediation to resolve their differences. Mediation is a form of alternative dispute resolution. The couple meets with a neutral third party to try to resolve their issues. If the issues are resolved, a provision can be included in the final papers stating that any future issues should be resolved by mediation. Custody Evaluation A custody evaluation will be required prior to the trial if the couple cannot reach a custody agreement on their own. The evaluation is done by an outside person who will give his or her recommendations to the court. Custody Trial Custody is determined by the best interests of the child or children. Factors used include the relationship between the child and the parent, the child’s age, primary caretaker during the marriage, each parent’s mental and physical health, etc. In some cases, the child will be asked who he or she wants to live with.
Custody and Visitation Modification In order to modify an existing agreement, the parent seeking the change must show a significant change in circumstances has occurred. If a custody agreement was reached in mediation, the parents must go back to mediation in order to modify the agreement. If the court determined the agreement, the parents must petition the court for any modifications. Child Support Both parents have an obligation to support their children until they reach 18 or 21 (every state is different). Depending on the divorce agreement, either parent can pay child support. State guidelines are used to determine the child’s needs, which parent will pay the child support and what the amount will be. The parent who has primary custody will receive child support each month. If an unmarried woman files for child support, the man in question first takes a paternity or DNA test. Once paternity is established, the court will issue a child support order. Enforcement of Child Support Your state’s family court will issue a child support order. In many states, the child support payment is taken directly out of the paying parent’s paycheck. In other instances, the paying parent can make payments to a child support registry who, in turn, will forward the money to the custodial parent. The registry keeps track of all payments made. Federal and state laws exist to make sure child support is paid to the custodial parent. There are harsh penalties for those that do not face their child support obligations and include suspension of your business or professional license, revocation of your driver’s license, fines or a jail sentence. Child support enforcement offices located in your state help track you down if your payment is not paid or overdue. If you live in another state, it is a criminal offense if you have not made your payment. Child Support Modification Some states review the child support orders on a regular basis while others need a request from one or both parents. A modification can only be made if there are significant changes to your circumstances. Examples include the paying parent’s salary is increased or the child’s needs have changed (medical care, therapy, tutoring. Additionally, if the paying parent loses his or her job or has a decrease in salary, a modification can be requested. Federal law does not forgive past-due child support payments. Adoption Every state has adoption policies and procedures that control adoption. The court must approve all adoptions that take place regardless of whether it is domestic or foreign. The court makes sure the adoptive parents are in a position to give this child the care and support he or she needs. Conclusion Getting married should be the happiest time in your life. It is important to understand your rights and responsibilities as a married person. On the other hand, ending a marriage can be very difficult and emotional for all parties, especially when there are children involved. Resolving child custody issues can be stressful. An experienced family law attorney can walk you through your options and make the process a little bit easier for you. Links to additional information The American Bar Association has a family law website that addresses each state’s requirements for divorce, child support and other family issues. Visit the website at www.abanet.org Everything you need to know about family law can be found on The Legal Information Institute’s website located at http://topics.law.cornell.edu/wex/category/family_law The Office of Child Support Enforcement helps in locating non-custodial parents, establishing paternity, support orders and collecting support orders. Visit the website at www.acf.hhs.gov/programs/cse The Child Welfare Information Gateway provides access to information to protect children from abuse and neglect. For more information, visit http://www.childwelfare.gov The Children’s Rights Council is a non-profit agency that works to assure a child the frequent, meaningful contact with both parents. Visit their website at http://crckids.org/index.htm Family Law Legal Center sponsored by
Earl Carter & Associates
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