FAMILY LAW FAQSThe most important client questions in Family Law deal with the following:
- What are my best options for a fair and efficient dissolution of marriage proceeding?
- What is the most cost-effective approach to my dissolution of marriage proceeding?
- Under what circumstances will the court award spousal support?
- How is the amount of child support calculated?
- What is the legal divorce process like?
- What kinds of assets are divided in a divorce?
- What terms should be included in a separation agreement?
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The options available to divorcing spouses often depend on the level of conflict incident to the breakup of the marriage. Where conflict is low and communication between the spouses remains somewhat intact, the best option is an initial consultation with an experience family lawyer to identify the issues for resolution. This would be followed by discussions between the spouses on the issues and ongoing guidance from a family lawyer to move the discussions to a satisfactory agreement on the issues.
When the divorcing spouses are experiencing higher levels of conflict with little likelihood of an early negotiated settlement, the better option involves retaining the services of a family lawyer and then formal commencement of a dissolution of marriage proceeding.
The most cost-effective approach for a dissolution of marriage proceeding involves identification of the issues by the parties and a provisional agreement on those issues. The next step would be consultation with a family lawyer to review the parties’ provisional agreements, provide advice on those issues, and preparation of an agreement reflecting the terms of their settlement. This would lead to a fairly simply and uncontested proceeding to dissolve the marriage.
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 at least temporarily.
Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded spousal support 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 spousal support will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.
Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents' incomes, 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. The purpose of guidelines is to aid the judge in determining child support amounts. 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
- The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)
Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.
- One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
- The complaint is filed with the court and served on the other spouse, together with a summons that requires the 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 express 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, which 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 is submitted to the court.
- 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; the judge decides the issues and grants the divorce.
- Either or both parties can appeal the judge's decision to a higher court.
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. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.
The value of intangible property may also be 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.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party's lawyer may help with this issue through discovery, During discovery the parties' attorneys' trade documents that disclose each party's income, assets and liabilities. 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.
A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members' needs will be met.
The terms of such separation agreements vary, but the following items are usually addressed:
- The spouses' right to live separately
- Custody of the children
- A visitation schedule
- Child support
- spousal support
- The children's expenses (medical, dental, educational and recreational)
- Property and debt division
- Insurance (medical, dental and life)
- Income taxes
The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, 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 and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.
The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse's contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, with the thought that after a period of "rehabilitation" these spouses can become self-supporting.
Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but 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 also presents 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 through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.