Family
Law - An Overview
Family law is the term that is applied to the laws and rules developed
regarding family relationships. Family law rules define not only the
relationships between members of a family but also between a family
and society as a whole. More than any other area of the law, family
law reflects the values society shares regarding how people who are
related should treat each other. Typically,
family law attorneys assist people with the making and breaking
of family relationships. Specific areas of representation usually
include marriage and relationship planning, divorce, paternity,
child custody and child support. Some family law attorneys also
provide assistance in the area of adoption. When you are faced with
an important life decision regarding a key family relationship,
the advice and assistance of an experienced family law attorney
often proves crucial to your understanding of the issues involved
and your satisfaction with the ultimate outcome of the family-related
concern you face.
Marriage
Marriage is a legal and business union as much as it is a romantic
one. Although the limitations and requirements vary by state, basic
marriage laws are similar. All states prohibit marriage to more
than one person and marriage between close family members. Some
of the more common limitations are:
- A prohibition against marriage between brothers and sisters,
parent and child and marriage between aunt or uncle and niece
or nephew.
- Minimum age requirement, typically 18 years. Many states permit
marriage at a younger age if parental consent is given.
- Residency by one or both of the parties within the state for
a specific period of time.
Most states also require a formal ceremony of some kind with witnesses
and a licensed public or religious official.
Federal and state laws give married couples
many benefits, including:
- Certain tax privileges;
- Federal benefit rights, such as social security, disability,
unemployment, veterans' pension and public assistance benefits;
- Inheritance rights under state intestate succession laws;
- Claimant rights for loss of consortium;
- The right to make medical decisions about your spouse in the
event of disability; and
- The right to legally protect marital communications.
Because marriage is a legal and business arrangement, it may be
wise to consult with an attorney about the advantages of entering
a premarital or prenuptial agreement. Many couples find it helpful
to work through financial issues and the potential disagreements
such issues can create before marriage.
Divorce
A divorce is a method of terminating a marriage contract between
two individuals. From a legal standpoint, divorce gives each person
the legal right to marry someone else. It also legally divides the
couple's assets and debts and determines the care and custody of
their children. Each state addresses these issues differently. However,
most states follow the same basic principles and use relatively
uniform standards.
In some states you need to prove fault,
commonly referred to as "grounds," to be able to obtain
a divorce. The majority of states allow at least one form of "no-fault"
divorce, where it is not required to prove any fault. If no-fault
grounds for divorce are available in your state, either party may
obtain a divorce, even if the other party does not consent to the
divorce. In some states both fault and no-fault divorce grounds
are available. An experienced attorney can help you determine if
you should pursue a fault based or no-fault based divorce.
The primary issues to be decided during
a divorce are alimony or spousal support, property division, and,
if there are children, child custody and visitation and child support.
When spouses agree, they can usually obtain a divorce quickly. More
typically, divorcing spouses have disputes regarding their post-marriage
financial arrangements and the care and custody of their children.
Each state has different laws regarding
division of marital property. Thirteen states follow the community
property system, where marital assets are split equally. The rest
of the states use an equitable distribution system that divides
property after consideration of a number of elements in a manner
the courts deem to be fair given the particular situation. Any award
of alimony, or ongoing financial support from one spouse to the
other is made in conjunction with the distribution of property.
Property division and alimony are often hotly contested and the
early advice of an experienced family law attorney can greatly impact
the ultimate result.
Child Custody & Visitation
The care and upbringing of children following divorce is often an
ongoing source of conflict for divorcing parents. Custody must address
both physical custody, or the rights and responsibilities regarding
the day-to-day care and activities of their children and legal custody,
or the legal rights and responsibilities associated with the child's
upbringing. Sometimes the couple agrees to an arrangement and sometimes
the court determines one for them. In the past, courts routinely
gave mothers physical custody and gave fathers visitation rights,
sometimes awarding joint legal custody of the children with the
children residing with the mother. Today, the courts have begun
to realize that sometimes it is in the best interest of the children
that they reside with the father, and reverse the roles of the parents.
The courts are favoring joint ongoing child rearing responsibilities,
with the children residing where it is most practical and where
they will flourish best.
Divorcing couples often tackle custody
and visitation issues as soon as they separate. Courts generally
honor any custody agreements divorcing parents reach regarding their
children. When custody is contested, most courts will require parents
to participate in a mandatory mediation session. Mediation is an
alternative dispute resolution process where divorcing couples work
with a specially trained neutral third party to try and resolve
some or all of their disagreements. If mediation is unsuccessful,
the court will determine custody. Though rules differ from state
to state, most courts generally reach decisions about custody and
visitation after considering what arrangement will serve the best
interests of the child. Courts often use custody evaluations performed
by an outside expert to help them reach such a determination.
Except when parties agree otherwise, courts
often impose standard visitation and custody orders. A typical visitation
schedule allows a non-custodial parent to see the children one night
a week, every other weekend and some portion of school and summer
holidays. In order to change a court-ordered custody and visitation
scheme the parent seeking the modification must show a substantial
change in circumstances. Some states will only consider a request
for modification within two years of an original custody determination
if there is a showing that the child is endangered by the current
arrangement. In order to prevent parents from shopping for friendly
rulings in different states, some states will only consider custody-related
requests if the child has been a resident of the state for six months
or longer.
Child Support
Biological parents must financially support their children. That
obligation usually lasts until the child reaches "the age of
majority" (depending on state law, 18 or 21) or becomes self-supporting.
The responsibility to provide support in the form of regular payments
generally arises when one parent has primary custody of the child.
An order for child support may be entered during or after a divorce.
Either parent may be ordered to pay support depending upon how custody
is arranged. An unmarried mother may also file a petition for child
support in family court and an order for support will be entered
once paternity has been established.
In every state, the amount of support is
set after the needs of the child and the parent's income are assessed
through the use of state specific guidelines. The paying parent
must regularly make the ordered payments. Failure to remain current
with child support obligations exposes the paying parent to significant
penalties. Every state has a Child Support Enforcement office. Along
with the family court, these agencies have the power to suspend
professional or business licenses, take away driver's and recreational
licenses, require payment of future owed sums in advance or place
non-paying parents in jail when child support obligations are overdue.
Once support has been ordered, both parents
have the right to request changes and some states undertake regular
review of existing orders without the need for a specific request.
Paying parents face a difficult time when making a request that
support be reduced. Even if a paying parent's current income is
insufficient to meet their support obligations, a court may impute
a higher earning capacity to them and order support based on that
higher earning power. Because of the state specific requirements
involved in child support, parents can benefit from the advice and
involvement of an experienced family law attorney when child support
issues arise.
Adoption
Adoption is the legal procedure that allows a family to make a child
who is not biologically their own part of their family. Every adoption,
whether foreign or domestic, requires the action and approval of
a court to become final.
Each state has its own policies and procedures
controlling child adoption. Most states have measures in place to
assess the fitness of the adopting parents. Upon adoption, adopted
children generally receive all the benefits afforded to natural
children and parents owe adopted children all the legal duties of
care and support owed to a natural or birth child of the marriage.
Adoption relieves birth parents of the
financial responsibilities they owe their children. In the past,
adoption also meant birth parents relinquished the child forever
without the privilege of seeing the child or being otherwise involved
in the child's life. However, particularly in domestic adoptions,
policies have changed and birth parents sometimes now are allowed
open adoptions where they maintain contact with their children after
adoption becomes final.
Family law attorneys who offer adoption-related
services at can help both adoptive and birth parents throughout
all phases of the adoption process.
Conclusion
Family relations create a host of legal consequences. Whether you
are contemplating marriage or divorce, or are considering adoption,
an experienced family law attorney can explain the laws that apply
to your particular situation and help you understand their effect
so that you may make the best choices for you and your family.
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than 67% of newlyweds believe the most serious conflict in
their first year of marriage is over money. |
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A: Most states define marriage
as a civil contract between a man and a woman to become husband
and wife. The traditional way to marry is to get a marriage
license from a state-authorized official, then participate
in a formal civil or religious wedding ceremony.
A: There are several Federal
and state laws that benefit married couples. Some examples
include the right to:
- File joint income tax returns with the
IRS and state taxing authorities
- Create a "family partnership"
under federal tax laws, which allows you to divide business
income among family members (this will often lower the total
tax on the income)
- Create a marital life estate trust
- Receive spouse's and dependents' Social
Security, disability, unemployment, veterans', pension and
public assistance benefits
- Receive a share of your deceased spouse's
estate under intestate succession laws
- Claim an estate tax marital deduction
- Sue a third person for wrongful death
of your spouse and loss of consortium
- Sue a third person for offenses that
interfere with the success of your marriage, such as alienation
of affection and criminal conversation (these lawsuits are
available in only a few states)
- Receive family rates for insurance
- Avoid the deportation of a non-citizen
spouse
- Enter hospital intensive care units,
jails and other places where visitors are restricted to
immediate family
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