Family Law Frequently Asked Questions
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 is a basic outline
of the divorce process.
- One spouse files a Petition, 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 engage in "disclosure" and "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.
- If the judge approves the agreement, he or she issues a Judgment of divorce
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, each party presents his/her evidence and arguments 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
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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 lawyers can help.
Through the legal process known as discovery, the attorneys request and
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 sometimes 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.
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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.
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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
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
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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 parents' incomes,
certain types of 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, such as California,
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
- 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 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.
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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
request even 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 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. Other anticipated changes
that can be provided for in the original child support order include a
reduction upon the emancipation of each child or any other change based
on an event that the parties anticipate and that will have an impact on
need or ability to pay.
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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.
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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 spousal support, at least temporarily.
Although historically spousal support 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 support 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 job paying a sufficient wage, however, due perhaps to health
or advanced age, the support award may be long term.
The amount and duration of alimony depends on several factors, 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.
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Learn More: 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.
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 such as 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 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 as mandatory mediation, which can save time and money
and preserve relationships to the extent possible.
Family law lawyers can provide valuable counsel and objective representation
in what can 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.
Spousal support and alimony 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, spousal
support awards are now awarded to either spouse if he or she needs financial
assistance and the other is able to provide it. These awards can be temporary,
for a period of rehabilitation that enables the recipient spouse to become
self-supporting, or long term in cases where one party cannot become self-sufficient
for various reasons.
Child support is generally ordered by the court in situations in which a child lives
with one but not both parents or, in the case of equal timeshare, when
one parent earns more than the other parent. The non-custodial parent
(the parent with whom the child does not live) or the higher-earning parent
in an equal timeshare arrangement 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.
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.
DISCLAIMER: This site and any information contained herein are intended
for informational purposes only and should not be construed as legal advice.
Seek competent legal counsel for advice on any legal matter.
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