What Potential Parents Need to Know.
Family Law 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. Divorce, or dissolution of marriage as some states call it, is no longer fault-based and has become easier to obtain. Whereas not too long ago one spouse had to accuse the other of some grave misdeed, such as adultery, cruelty, alcoholism, or drug addiction, divorce is now available on the basis of incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. 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 like 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 now 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 asmandatory mediation, which can save time and money and preserve relationships to the extentpossible. Family law lawyers can provide valuable counsel and objective representation in whatcan 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. Alimony 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, or 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 juvenile delinquency proceedings, in which the juvenile is charged with an offense that would be a crime if committed by an adult, but also 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. They are only enforceable under certain circumstances. Disclaimer This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.
Under what circumstances will the court award alimony or spousal support?
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 good-paying job, however, due perhaps to health or advanced age, the support award may be permanent. The amount and duration of alimony depends on several actors, 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.
How is the amount of child support calculated?
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 parent's 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.
Once a court issues a child support order, can the amount of support that is paid be changed?
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, an increase in the cost of living can warrant an upward modification of child support, but generally these periodic increases are 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.
How is child support collected if the person responsible for paying it moves to another state?
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.
What are parents' obligations to their children?
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. Stepparents have no legal obligation toward their stepchildren. When they assume the role of the sole provider of the child's support, however, they may be held accountable for providing that support even if the marriage to the child's biological parent ends. Of course, if a stepparent adopts a stepchild, the obligations are the same as they are in any other parent-child relationship.
How does a court decide which parent will get custody of a child?
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.
What is the legal divorce process like?
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, however, is a basic outline of the divorce process. One spouse contacts a lawyer, who assists in the preparation of a petition (or complaint), the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought. The petition 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 at an informal hearing. The judge will ask both parties a few basic factual questions and whether they understand and freely entered into the agreement. 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.
What kinds of assets are divided in a divorce?
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.
What terms should be included in a separation agreement?
Although a legal agreement is not required when a couple decides to separate, working out certain details can preserve harmony, protect rights, and promote predictability. 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. A separation agreement does not need to be filed with the court, but can be presented to the court if a dispute arises. As with pre-and post-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 may be incorporated into a settlement agreement, but the parties will have an opportunity to change the terms if necessary.