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Family Law

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Family law encompasses a wide spectrum of issues pertaining to the family, including marriage, divorce, alimony, child support and adoption. Divorce, adoption, estate planning and other aspects of family law typically require the assistance of a family law attorney to help resolve these sensitive situations. If you are dealing with a family-related legal issue, a family lawyer can help guide, represent and protect you throughout the complex legal processes associated with your situation.

In this section of Your Legal Guide, you will find useful information on many areas of family law, including:

  • Divorce
  • Alimony
  • Prenuptial agreements
  • Child custody
  • Parenting
  • Guardianship
  • Children's rights
  • Domestic violence
  • Child abuse
  • Foster care
  • Fertility and surrogacy
  • Estate planning and trusts


 

The Prenup

As the pattern of marriage, divorce and remarriage has become more and more common, the prenuptial agreement, or "prenup," has become increasingly popular. A prenuptial agreement is a premarital contract that typically lists property owned, as well as any debts, and outlines each party's rights in relation to this property in the event of a divorce.

People often choose to sign prenups in order to avoid arguments, which waste time and can lead to exorbitant legal fees. Prenuptial agreements can also be used to ensure that certain property is left to children from a prior marriage, or to determine whether either party will receive alimony in the event of a divorce.

It is important to note, however, that the court can overrule any prenuptial agreement it deems to be unfair.

Divorce

Divorce can have devastating emotional and financial consequences for all those involved. There are two types of divorce: absolute divorce and limited divorce. Whereas absolute divorce eliminates most rights and obligations associated with marriage, limited divorce only terminates the right to cohabitation; limited divorce is not an option in all states.

Most people decide to hire a divorce lawyer to help them through the often difficult legal process that is set into motion when one party files for divorce. Divorce lawyers help their clients to understand the many issues that need to be addressed, from alimony and child support to division of assets.

Alimony

Also known as maintenance or spousal support, alimony is a court-ordered sum of money paid by one spouse to the other after a divorce. Alimony is granted in an attempt to maintain the standard of living both spouses had during the marriage.

In many situations, it is less costly for the two parties in a divorce to come to an alimony arrangement on their own, whether through a mediator or their respective attorneys. If the two parties choose to appear in court, the judge will attempt to establish a figure that is fair.

There are four types of alimony:

  • Rehabilitative alimony. The most common form of alimony, rehabilitative alimony is awarded under the assumption that the recipient will eventually be able to support him- or herself by entering the work force after gaining more education and/or training
  • Permanent alimony. Permanent alimony, which is usually awarded for marriages of long duration, lasts until death or remarriage
  • Temporary alimony. Also known as limited duration alimony, temporary alimony is awarded in cases where the two parties earned a similar amount of money during the marriage, but one needs an initial boost to get on his or her feet
  • Lump sum. When alimony is paid in one bulk payment

Alimony is determined according to a complex formula that is based on a number of factors. A divorce lawyer can help walk you through the details and give you a good idea of what to expect.

Child Custody

Of all the issues that must be addressed in a divorce situation, child custody can be one of the most contentious. Parents who get divorced face the possibility of having their right to see their own children restricted or taken away.

There are four types of child custody: physical custody, legal custody, sole custody and joint custody. In many cases, the judge orders an arrangement that combines two or more types of custody.

  • Physical custody. Physical custody refers to the right to live with one's child. Divorced parents often share physical custody. Exceptions to this include cases in which one of the parents is abusive, uncooperative or alcohol- or drug-dependent
  • Legal custody. Legal custody refers to the right to makes decisions regarding a child's life. Sole legal custody means that one parent has the right to make all such decisions. Joint legal custody means that the parents share in the decision making
  • Joint custody. In order to ensure that both parents' right to see their children is respected, courts can grant joint custody anytime two parents are not living together – even before the parents are divorced. Depending on the factors involved (work, housing, needs of the child, etc.), the judge may order joint legal custody, joint physical custody or both
  • Sole custody. With the exception of circumstances where one of the parents is determined by the court to be unfit, most courts are reluctant to grant sole custody to a parent because it tends to result in limited involvement of the other parent in the lives of the children. Even in cases where sole physical custody is granted to one parent, the other parent is usually granted generous visitation rights and shares joint legal custody, which means he or she shares in decisions regarding the child's life

Palimony

The term palimony, combining the words "pal" and "alimony," was coined in the 1976 case Marvin v. Marvin, which involved the breakup of the relationship of the late actor Lee Marvin and ex-dancer Michelle Triola (who had changed her name legally to Michelle Triola Marvin). The two were not married (to each other), but they had been living together for several years. Ms. Marvin sued unsuccessfully for alimony after the breakup.

Palimony refers to a claim for financial support and/or a portion of the property acquired by one partner during the course of a non-marital relationship. The plaintiff in a palimony case must provide some legitimate foundation for the claim, such as an implied contract. Ms. Marvin lost her case because she didn't prove to the court's satisfaction that such an implied contract existed.

Since palimony is a claim based on a non-marital relationship, in certain states it has been allowed in the dissolution of gay relationships as well as heterosexual ones.

Child Support and Visitation Rights

In most divorce cases involving children, the father is granted some form of custody or visitation rights but must pay child support to the mother. Due to many factors, instances of women paying child support are still in the minority. The welfare of the children is foremost in the mind of the judge, but most judges also make every attempt to consider both the mother's and the father's rights when determining visitation.

In cases where a discrepancy exists regarding paternity (who the father is), the judge may order a DNA test, which can establish paternity with more than 99 percent accuracy. As a legal matter, the issue of paternity has changed dramatically in recent years due to the advent of accurate DNA testing.

An adult who has a close relationship with both the child and one of the child's biological parents and who at one time supported the relationship (otherwise known as an "equitable parent") may also be granted custody or visitation rights. The court may consider a person to be an equitable parent even if he or she was not married to either parent.

Adoption

Adoption comes in several forms but always refers to a situation in which a non-biological parent or parents gains or attempts to gain custody of a child.

  • Agency adoptions. Agency adoptions are adoptions in which a public or privately licensed agency places a child with adoptive parents
  • Relative adoptions. A relative adoption is an adoption of a child by a member of his or her family. Relative adoptions often take place when the parents die, are placed in jail or are dependent on alcohol or drugs
  • International adoptions. International adoptions involve the adoption of a child who is a foreign citizen. In addition to meeting the adoption requirements of both countries, the adoptive parents in an international adoption must obtain an immigrant visa for the child
  • Independent adoptions. Independent adoptions are adoptions that do not involve an adoption agency. They often begin with an agreement between the parents and the adoptive parents and involve an intermediary such as a doctor, lawyer or clergyman
  • Identified adoptions. Identified adoptions take place when the mother and the adoptive parents locate each other and then have an adoption agency take care of the legal process
  • Stepparent adoptions. Stepparent adoptions are less complicated than most other forms of adoption, especially when both of the biological parents agree to the arrangement. In cases where one of the biological parents is against the adoption, the stepparent can benefit greatly from the experience and knowledge of a family lawyer
  • Domestic partner/civil union adoptions. Gay adoption laws vary from state to state. In many cases, gay parents circumvent the system by having one parent adopt the child and the other apply for second parent status at a later date; this form of gay adoption has taken place in 21 states. At the time of this writing, Florida was the only state with an outright ban on gay adoption. Nine states and Washington D.C. permit adoption by known gay couples

All forms of adoption require the consent of the biological parents. It is important to note that most states have a mandatory "waiting period" in order to provide the biological parents enough time to consider their decision. This waiting period ranges from a few days to a few months after the birth of the child, depending on the state.



Did You Know?

For those paying it, alimony can be a hardship - but it is tax deductible. Those receiving alimony must pay taxes on it.

Does Cheating Count?

Many states have enacted no-fault divorce statutes, which protect both parties from having to prove that the other party committed an act considered grounds for divorce. This means that acts such as adultery are not taken into account in divorce proceedings.