July 24, 2017

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Family Law

The legal practice area of Family Law is governed primarily by individual state laws, varying by state. Family Law regulates legal aspects of family relationships, including divorce, child abuse or neglect, child support, child custody, adoption and marriage. Often, laws surrounding property ownership, estate planning, and probate law affect family law determinations.

MARRIAGE

In most states, matrimonial laws authorize certain officials (like religious leaders, judges, or notaries) to perform a wedding ceremony. Each party must meet eligibility requirements for marriage:

  • A marriage license, obtained by paying a fee;
  • Minimum age. The minimum age at which any state will allow marriage without parental consent is 16 years old;
  • Blood tests, still required in some states to prevent birth defects in children;
  • Waiting periods are still required in some states.

Restrictions are contravened by marrying in another state with favorable laws. The Federal Constitution requires each state to honor valid marriages from other states. A recent hot topic in marriage law is full faith and credit for same-sex marriages from other states.

Some states allow common-law marriage, where parties cohabit and hold themselves out as married for a certain period of time. Both forms of marriage can only be legally ended by a divorce proceeding.

DIVORCE

Divorce is initiated by a petition or complaint, signed by the Petitioner/Plaintiff, filed in the appropriate family court and served on the Respondent/Defendant, who then has a short time to file a response or answer. If the Respondent/Defendant cannot be found for service, a family law lawyer is usually appointed by the court to act as a guardian ad litem, to protect his basic interests.

The Petitioner/Plaintiff must state legal grounds for dissolution of marriage (divorce):

  • Traditional fault-based grounds include adultery and abuse, among others, and vary by state.
  • Every state now allows no-fault divorce, in which fault-based grounds need not be proved. The no-fault Petitioner/Plaintiff must state grounds of irreconcilable differences, or that the marriage is irretrievably broken.
  • Some states allow fault as an additional ground or consider fault when awarding spousal maintenance (alimony).
  • Many states require separation, living separate and apart, for a required period, and some require marriage counseling.

The family court addresses the following issues in a typical divorce case:

Division of Property

The court will likely:

  • Determine whether property is non-marital or marital. Usually, the date and manner of acquisition, not record ownership, determine whether property is marital or non-marital.
  • Restore non-marital property items to the appropriate parties.
  • Divide marital property in fair proportions (not necessarily equally).
  • Marital Debt. Marital debt is assigned fairly. The spouse with the better job is likely to get the bulk of debts, even if not awarded the assets that go with them.
  • Spousal maintenance, or alimony, may be ordered to help one spouse meet reasonable needs to maintain the status quo standard of living.
  • The court will determine child custody and make an award of child support.

Parties can agree on divorce issues and file a signed settlement agreement. Issues not agreed in the settlement agreement will be determined by the court and incorporated along with the terms of the settlement agreement into the court’s final divorce decree.

CHILD CUSTODY

Courts use the best interests of the child standard to determine child custody, considering all relevant factors. Possible results include:

  • Sole custody. One parent is the sole custodian and makes all life decisions about medical care, education, and spiritual/religious upbringing for the child; the other parent is entitled to reasonable visitation and pays child support. Sole custody once was the standard, but has now become uncommon.
  • Joint custody. One parent is a residential custodian, and parents share decisions about the child’s life decisions. The non-residential parent is entitled to reasonable visitation and pays child support. In most states, joint custody is the standard.
  • Shared custody. The child splits time living with each parent, the parents share decisions, and often, no one pays child support. This is usually done by agreement.

All states now utilize child support guidelines, frequently based on the parents’ income. Guideline amounts and the formulas used vary by state. Some apply the payor’s income to the guidelines, but many utilize an income shares model, applying the payor’s percentage of the parents’ combined income to a base support amount to determine the payment obligation, with adjustments for child-care costs and children’s health-care costs.

Agreements for child custody and support are usually accepted by courts unless not in the best interests of the children. Both child custody and child support can be ordered in paternity actions (actions to determine the identity of a child’s father, usually for child support or inheritance purposes) or in child protective cases dealing with abuse or neglect.

CHILD PROTECTIVE CASES

Child protection may produce removal of children from the home; temporary or permanent placement, either with a relative or with foster care; and possibly, either voluntary or involuntary termination of parental rights of the parent(s). Termination of rights is a prerequisite to adoption of a child.

ADOPTION

Adoption creates a parent-child relationship with a person not the child’s biological parent. A few states allow equitable adoptions, creating inheritance rights for a child where the child was in the custody of a planned adoptive parent who died before all procedures could be completed. In all states, adopted children inherit from the adoptive parent equally with natural children.

The general principles stated above vary from state to state, and because many decisions in family law rest with the individual judge’s sense of fairness or best interests, results may indeed vary from judge to judge. Anyone involved in the aforementioned legal matters is strongly advised to consult with qualified Family Law Firms in your local area.