Family Law
The goal of any lawyer is to bring their clients justice. But only a few can accomplish it with the same warmth and compassion who focus on family laws.
Family is such a broad topic that it touches on just about everything. Thus, local attorneys help clients with complicated matters, some of which may appear outside family laws. Remember that family law cases are more critical than most because they often involve a child's future or the rights of an abused spouse.
This legal guide will assist if you need clarification about your rights in a family law matter.
What Is Family Law?
Family laws are responsible for handling domestic issues which is why it is essential for you to learn about what is family law.
It covers a wide area of the law, such as child support and mediation for domestic violence. Since family laws deal with these serious matters, many find it interesting.
The specifics of family laws change from state to state and even from country to country.
Helpful Terms To Know
After you know what is family law, there are a few basics to learn.
- Arbitration –– It is a common form of alternative conflict settlement. Here, the parties hire a third party to act as a judge and find out what happened.
- Arrears –– It is unpaid debts for goods and services. Typically, the term applies to unpaid alimony or child support payments.
- Automatic Temporary Restraining Orders (ATROS) –– When a petition for divorce, legal separation, or annulment is filed, these orders become effective.
- Alimony –– The payments are made by one ex-spouse to the other after the divorce.
- Annulment –– Marriages that are invalid under the law can be annulled at any time.
- Child Abuse –– Child abuse implies any kind of physical abuse of a kid, as opposed to neglect or carelessness.
- Decree of Dissolution –– It is a legally binding decree ending the marriage.
- Equitable Distribution –– It's a way to divide assets and bills that were acquired during a marriage in a way that's fair to both people.
- Grounds For Divorce –– Means a legal aspect of divorce.
- Marital Settlement Agreement –– A divorce or legal separation agreement resolves all disputes.
- Mediation –– A neutral third party resolves disputes and negotiates a settlement through mediation. You may call it an alternative conflict resolution method.
- Non-Custodial Parent –– The parent who does not have legal custody of the couple's young children.
- Paternity Test (DNA testing) –– Scientifically proving that a man is the biological father of a kid.
- Prenuptial / Premarital Agreement –– Upon divorce or death, a prenuptial agreement prevents either party from claiming the other's assets.
- Reconsolidation –– When a couple who had broken up or started the process of getting a divorce gets back together.
- Subpoena –– Formal court notification to attend with the proper documentation.
What Is the Purpose of Family Law?
Remember that family laws simplify divorce, child custody, and property division. Also, according to family laws, children who have been abused can be taken away from their abusive parents.
The concepts of marriage and family bring up a wide range of feelings, concerns, hopes, and anxieties in all of us. It's natural that we'd respond irrationally when our rational defenses fail, driven by our desire to end the agony as quickly as possible.
In a matter of complex family dispute, you will want to know about what is family law attorney because they will be a great help to you. They will assist you through this challenging time and emerge stronger on the other side as objective guides.
The primary goals of a family lawyer are not to win cases against the government, establish guilt, or collect damages. Family lawyers may do all these things, and sometimes they have to, but most of the time, they try to help their clients get a divorce without much fighting.
Family law courts prioritize the child's best interests over the parents. They must evaluate various factors to make the best decisions for everyone concerned.
Many people have a negative impression of family attorneys and their work. Many hold them responsible for the breakdown of families and awarding child custody to a person who is not the biological parent. But that shouldn’t be the case, as the lawyer only wants good things for the kids.
Rights & Obligations in Family Law
"Family responsibility" means that you have a moral duty to care for, value, and help your family. Families usually have clear, unspoken rules about how to handle these responsibilities with each other.
Rights and obligations of the husband and wife
Ask your lawyer about the family law codes if you and your partner are having trouble figuring out your rights and responsibilities. These also fall under the basics of what is family law. For instance ––
As per section. 720 of the California Family Code, husband and wife have to keep up a relationship based mutual respect, fidelity, and support.
As per section 750-751 of the California Family Code spouses may hold property as joint tenants or tenants in common, or as community property, or as community property with a right of survivorship. The respective interests of each spouse in community property during continuance of the marriage relation are present, existing, and equal interests.
As per section 3008 of the California Family Code there is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child.
If one partner is living abroad or there are other important reasons, the court may make an exception to the law that says both partners must live together.
Rights & Duties of Parental Responsibility
- In family laws, when a child is born or adopted into a marriage or registered partnership, both partners immediately become legal guardians.
- As per family laws, if two women are married, or in a registered relationship, any child born to them is legally the child of both.
- Unless the court orders differently, both ex-spouses maintain parental rights and obligations. Even when a kid becomes 21, their parents are still responsible for providing for them. Family laws also say that even after a divorce or the end of a registered partnership, a person still must pay maintenance.
- Just because a father or duomoeder acknowledges their child does not make them the child's legal guardian.
- In family laws, it is not common to let minors make legal decisions on their own.
- A judge can decide who will be your child's legal guardian for a short or long time as per family laws.
What Is Included in Family Law?
Family laws have several subfields, including marital, financial, and child-related:
Marriage
People who are getting into a domestic partnership, civil union, or marriage may want to write down their plans in legal documents. Legally, a marriage is considered a contract.
Even if it's not in your state contract, you and your spouse own everything you get throughout your marriage. Remember that if you got into debt while married, it's considered a joint debt.
Also, prenuptial agreements help couples protect their finances in the case of a divorce or legal conflict. An attorney can quickly draft a postnuptial agreement for a married couple.
Divorce
Two of the most controversial aspects of family laws are divorce and marriage. In this case, state law plays a significant role because all states have rules about how to start and end legal marriages.
You may need a lawyer for prenuptial agreements and the division of assets during divorce or legal separation processes. In specific jurisdictions, a separation requires legal assistance, similar to a divorce.
Divorce grounds vary from one state's law to the next. Nevertheless, there are just two legal grounds for divorce in the United States.
- No-Fault Divorce –– In a no-fault divorce neither spouse has to prove fault of another spouse. It is enough just to specify the reason for breaking up. As a rule, the most common reasons for no-fault divorce are “Irreconcilable differences” or “irreparable breakdown of the marriage”.
No-Fault Divorce is recognized in all states of the US. In some states this is the only type of divorce that is allowed. In some states a legal separation before no-fault divorce is required. - Fault-Based Divorce –– It is a judicial termination of a marriage that is based on serious marital misconduct or other statutory cause requiring proof in a court of law by the divorcing party that the divorcee had done one of several enumerated things as sufficient grounds for the divorce (abuse, adultery, domestic violence etc.)
Legal Separation
In a legal separation, a married couple willingly separates and lives independently, but still remains legally married.
Who will need it? Family laws say that it's a choice for people who aren't sure if they want to get married but value financial stability and shared responsibility. If you and your partner have decided to live apart, you might not need a court order. In some places, you must live apart for a specific period before you can file for a divorce. However, the specifics of this requirement are left to the discretion of each state. The juries would split your property and resolve any other concerns that may appear in your new life together. Mediation or a court order may assist you, and your spouse will overcome the following issues before divorce:
How will child custody be divided during the separation?
Who will live in the house after the divorce?
How will the assets be split during the divorce?
Should a temporary child or spousal support be paid?
Child Custody
Usually, in family laws, child support and a custody (parenting plan) agreement are suitable for everyone. Concerns about child custody and child support will arise when parents aren't married or living together.
Custody can be either legal or physical. The parent with physical custody decides on a child's education and health care.
Before making a custody decision, the judge in your family court case will consider several things. Remember that whatever is "in their best interest and welfare" must be prioritized.
In certain states, Family Court judges must hear both parents' custody requests regardless of gender and marital status. Custody arrangements can be changed if both parents agree or if one of them files a motion with the court. In that case, you may seek the assistance of a competent lawyer.
The court will decide whether circumstances have changed enough to justify a modification. Such as when a parent or child changes where they live unless both parents agree.
There is also the matter of child support in addition to custody. One parent pays child support to the other, who has custody of the children. The goal is to reduce the financial burdens associated with having a kid.
In some states, family laws decide how much child support a parent must pay who doesn't have custody. The amount is based on things like the size and income of the household.
If child support payments are late or not received, one party may ask the court to consider legal actions to allow the non-paying parent off the hook.
If a paternity test is needed, it will have been done during the family court dispute that led to the custody order.
There could be problems with things like medical insurance coverage for dependents. It would require more legal action.
In family laws, some things could change the total amount due. For example, the child's needs and the size of the family.
Overview of the Basic Divorce Process
Here are the possible steps that must be taken to get a divorce before a judge can officially end your marriage.
Filing a Petition
If you decide that getting a divorce is best for you, you must go to court to start the process. Ask the court if, in your state, you have to live apart from your partner before you can file for a divorce. Remember that the court can throw out your case if you bring it too early.
The spouse who seeks a divorce must submit a petition to the appropriate court. A petition usually consists of:
Details about each spouse
Details about any minor children
The reasons for the divorce, and any other relevant legal information
The spouse who filed for divorce requests property division, child custody, support, and/or alimony
After the petition, send it to the local court with the proper filing fee and documents. Also, send a fee waiver request if you can't pay. Fees vary based on location.
Temporary Divorce Orders
We call them "temporary orders" because they won't be "final orders" until the divorce is over. You may petition the court for various things in your request for a temporary order.
Things you need to know:
- You can ask the court for a possession order if you want to live in the marital home alone.
- If you need child support, you may apply with the court.
- You can also petition the court to make a temporary parenting plan or submit your own plan for adoption.
- If you can't afford legal bills, you might ask the court for attorneys' fees or maintenance.
A hearing will be scheduled after this motion is filed. After the hearing, the interim orders will be made and stay in place until the final orders are made. You and your spouse might agree on temporary orders to avoid going to a hearing.
Notifying the Spouse
Your spouse must be formally notified about your petition for a divorce. If you do not know the location of your spouse, you still need to attempt to ensure they receive notice of the divorce filing.
After reasonable attempts to find your spouse, you can ask the court to publish or publicly announce the divorce. Or if the judge feels you have done everything to locate your spouse but couldn't, you may put up a sign or publish something in the paper.
Response
A response from your spouse will force the court to follow the standard divorce procedure.
Respondent spouses may either "answer" the petitioner's claims or file a counter-complaint with new facts for the court to consider. Like the divorce complaint, the answer must be served to the petitioner, and the court must see the evidence.
Negotiation
You and your spouse must discuss asset division, child support, and custody. The court will arrange a settlement summit for you, your husband, and your attorneys to discuss your divorce.
If a third party is required to mediate, the court can arrange it. Even if your state doesn't need it, divorce mediation might save you time, money, and heartache.
Trial
If the couple couldn't agree on their own, they would have to go to court. Depending on the case, a trial can be held before a judge or a jury.
Both parties present evidence and may call witnesses on complex divorce issues. For example- child custody, alimony, and property split.
Order of Dissolution
The divorce is over with the order of dissolution, whether it happens in court or not. A dissolution order ends a marriage and decides who gets custody of the kids, how much child and spousal support each spouse pays, and how their assets and debts are divided.
The filing spouse's lawyer will draft the judgment if you and your soon-to-be ex have settled. Nevertheless, the judge will decide if the divorce case goes to court.
Visitation
Visitation is a topic that often leads to conflict before and after a divorce. Visitation is an important part of family laws, even though it is part of the rules about who gets custody.
Like most parents, you would want to see your kids often, even if you and the other parent aren't married. If you don't have primary custody of your children, you will receive visitation rights to spend time with them.
Most family laws regarding child custody after divorce or separation recognize how important it is for a child to continue having contact with both parents. U.S. courts have said that parents can raise their kids however they want, as long as they don't hurt them.
Parents usually agree on custody and visitation as part of a divorce settlement or separately.
They often come up with a parenting plan that specifies things like:
- Where most of the kids' time will be spent;
- Visitation or parenting time plan for the noncustodial parent, including specific days and hours;
- Where the kids will be spending their birthdays, vacations from school, and other special occasions;
- How will parents communicate when the parenting schedule changes? Such as when one parent is unwell;
- Plans for making up missed parenting time when one spouse is late picking up or dropping off the kids;
- The parent's responsibility to get the kids from one place to another; and
- How will arguments over visitation and parenting time be resolved in the future?
If the parents cannot agree, the court will decide what is best for the child.
A family law attorney can assist you in submitting a parenting plan if such a plan is necessary in your state. The court will then examine the good points of each parent's plan and any proof supporting it.
A child custody evaluation is one type of investigation that judges may need to do before deciding what is best for the kids.
Courts often deny visitation rights to non-custodial parents with a history of physical or emotional abuse or severely affected by a mental illness that would have a terrible effect on the child. Also, if noncustodial parents are in prison or have a criminal record, they may still visit their children.
Remember that a parent may be held in indirect contempt of court if they don't follow a court order about visitation or custody.
Paternity
Paternity testing plays a significant role in the family laws department. The legal system decides who can adopt and under what conditions.
When a child is born to a married woman, her husband is automatically assumed to be the biological father. When an unmarried woman gives birth, the mother or the child is legally required to identify the father.
Family laws in most states let you prove paternity during pregnancy or before the child turns 18. It can be established in various ways:
- Voluntary Acknowledgment –– If both parents agree on who the father is, they can sign an affidavit proving paternity. The affidavit can be filed at any time, not just when the baby is born. The father's name will be included on the birth certificate when the affidavit is completed.
- Court Determination –– When a parent files a petition with the family law’s court, the court can decide who the father is. In a paternity case, each side can present evidence, question witnesses, and testify. The mother's and the alleged father's sexual history, when the child was conceived, and DNA testing can all help figure out who the father is. If the evidence given to the court is enough to prove paternity, the court will rule in favor of the father as the legal parent.
- DNA Testing –– A DNA test called paternity testing is done to determine if a guy is the biological father of a child. To identify the father, blood or saliva tests compare the DNA of the mother, kid, and prospective father. Once paternity is proven, the father may have to pay in full or in part for any more tests.
- Estoppel –– In certain areas, paternity can be proven if a man supports a child financially and emotionally.
Same-Sex Marriage
Same-sex weddings are also discussed in family laws, especially when children are involved.
Marriage is a Fourteenth Amendment right, according to the Supreme Court. All 50 states now recognize and allow same-sex weddings.
Same-sex couples get married on the same terms as couples of different sexes. Child custody laws vary from state to state when a couple gets a divorce.
Some states and cities still limit the rights of same-sex couples and families. If you are a legal parent, you have the same rights as a biological parent to ask for custody or visitation.
In many states, same-sex parents can ask the court for visitation or custody. But a parent with legal custody of a child has more rights than someone who raised a child in their home but is not legally a parent.
Many states have different laws regarding the legal status of unmarried same-sex couples. When it comes to government benefits, states like California consider domestic partnerships the same as marriages, while other states may set limits on such arrangements.
Adoption
Adoption is a crucial part of family laws. It is a very satisfying choice, but it has many challenges. Stepparents often adopt their spouse's biological children to continue parenting after divorce. Relatives could also take the child in.
First, a social worker will check out the family that wants to adopt. Then they will determine whether the adoptive family is suitable and if they can provide for the kid.
Many families need the help of a family law lawyer when adoption issues arise. Consider these:
Make sure it is legal in your state to adopt a child with the help of an attorney without using an agency. If you are interested, find out if connecting pregnant women with adoptive families in your state is legal.
Visit the lawyer's website to check whether prospective parents can see the same information as adoptive parents.
Consider the lawyer's and their assistant's hourly rate. Find out their average adoption costs over the previous two years.
Don't be shy about bringing up any difficulties you have with your case or past. Such as a DWI/DUI, several divorces, health problems, etc., right away.
Legal Disclaimer
Please note that Lawrina does not provide any legal services. The information on Lawrina’s Site and its downloadable content, including legal articles and templates, shall not be considered legal advice and is not guaranteed to be correct, complete, and up-to-date. If you require legal advice on your issue, we recommend you contact a qualified attorney licensed in your state. You personally assume full responsibility for any consequences, damages, and costs associated with your use of any content of Lawrina Services available on Lawrina’s Site.
By using Lawrina’s Site you agree with mentioned above and give your irrevocable consent to comply with and to be bound by the provisions of Lawrina Service terms.
Also Read
Frequently Asked Questions
Nearly half of all marriages in the United States end in divorce or permanent separation.
Some instances of getting a divorce are:
• Sexual Harassment,
• Adultery,
• Desertion,
• Attendant circumstances,
• Incarceration,
• Alcoholism,
• Domestic Violence, etc.
Remember that in the US, each state has its terminology to describe the factors that lead to divorce.
In a fault-based divorce state, the person seeking a divorce must prove that their spouse caused the marriage to end. As per family laws, the reasons could be:
• Infidelity,
• Abandonment,
• Incarceration, etc.
In a state where divorce is based on who was at fault, if your fault is proven, the other spouse may get more of the marital property or alimony, which includes your assets.
The custody and visitation plans made for the children affect the rights of the parents who are getting a divorce. The best outcome is for the court to agree with you and your husband's plan for child custody. If you can't agree, a court will likely decide for you.
According to family laws, you may choose from the following custody arrangements:
• Legal Custody;
• Physical Custody;
• Joint Custody;
• Sole Custody.
Family laws say that the legal system must determine why the father had to sign away his parental rights. After that, the court may give the child back to the father if it decides that he is not a danger to the child, or it may return the child to the mother.