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The Ultimate Guide to Family Law

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The Ultimate Guide to Family Law

As the name implies, family law is the field of law dealing with personal and familial relations. Most people recognize that family law deals with divorce and child custody. However, family law also addresses other family matters, including marriage, parentage, adoption, domestic violence, and estate planning, among other issues.

Marriage

Getting married is typically a very simple process.

Formal Marriage requires:

  • Two parties who are legally single. If one or both parties were married before, the prior marriage must be divorced or annulled.
  • Obtain a marriage license (a fee is typically involved).
  • The parties physically exchange vows before a priest, minster, or other authorized religious or civil officer.
  • Some states require a blood test to screen for sexually transmitted diseases.
  • Some states require a waiting period before the marriage certificate may be granted.
  • In some circumstances, the parties may be required to consummate the marriage (engage in sexual intercourse).

Common Law Marriage: Common law marriage is informal marriage. Some states recognize common law marriage while others do not. If the following is true, the parties do not have go through the procedure outlined above to be legally married.

  • Parties intended to be married.
  • Parties agreed to be married.
  • Parties live together.
  • The community believes they are married.

Same-Sex Marriage

In 2013, the Supreme Court struck down DOMA, ending the federal government’s refusal to give marriage benefits and rights to same-sex married couples. The Supreme Court is expected to take up the issue of same-sex marriage at the state level in 2015.

Leaving Marriage

Marriage can end through divorce and legal separation. It can also end if it is found to be invalid.

1. Divorce: There are two types of divorce: fault and no-fault divorce. Fault divorce requires some type of evidentiary showing of misconduct or wrongdoing on the other spouse’s part, such as adultery or cruelty. No-fault divorce do not require the petitioner to show a reason for ending the marriage; the court only needs to find that the "marriage is broken."

Although these are two different types of divorce, many states retain both systems because the reason for a divorce often affects how alimony and marital property is distributed. Alimony is awarded if one spouse made non-financial contributions to the marriage and needs support to be financially independent after the marriage ends. Marital property is assets obtained by the parties during the marriage. Courts distribute marital property based on the following systems:

  • Common Law – Property ownership is determined by the name on the deed, registration document, or other title papers. If both spouse’s names are on the property, both spouses own a half-interest in the property. Otherwise, property will be distributed according to title.
  • Community Property – Nine states have enacted community property laws. In community property states, all income or assets acquired during the marriage belongs to the marriage. Income or property before the marriage, after the marriage, and certain inheritance are separate property. If the marriage is divorced, property is divided equally among the spouses.

In recent years, states have sought to curb the divorce rate by enacting certain reforms in the divorce process. Many states require that couples filing for divorce go through mediation before proceeding to trial.

For more on divorce, check out our Ultimate Guide to Divorce.

2. Legal Separation: Divorce is the main vehicle for terminating a marriage, but there are other ways of leaving a marriage. Legal separations are court decrees resulting in the termination of the right to cohabitate. In legal separation, the court does not officially dissolve the marriage and the parties’ status remains as "married."

3. Invalid Marriage and Annulment: A marriage may be invalid for many reasons. A marriage can be invalid if one of the parties was already married, if one of the parties were not present during the marriage ceremony, or if the marriage was a sham to get around immigration laws. Invalid marriages are typically annulled.

Divorce ends the marriage, but annulment treats the marriage as though it never happened. If a marriage is annulled, the state pretends that the marriage never existed. Spousal support is typically not given because the parties were never married (although there are a few exceptions). The grounds for annulment include:

  • Under-age without consent of parents
  • Incest
  • Polygamy
  • Bigamy
  • Fraud/Duress

Supporting and Raising Children

Child support and child custody are different legal issues, but they both raise a preliminary question: Who is a parent?

1. Fathers: The identity of the legal father can be established in one of the following ways:

  • The man is married to the mother.
  • The man is biologically the child’s father.
  • The man is listed on the child’s birth certificate as the father.
  • The man adopts the child.
  • The man takes the child into his home and holds the child out as his own child.
  • Any other legal process the state enacts to establish legal fatherhood.

2. Mothers: The identity of the legal mother can be established in one of the following ways:

  • The woman gives birth to the child.
  • The woman is biologically the child’s mother.
  • The woman is listed on the child’s birth certificate as the mother.
  • The woman adopts the child.
  • The woman takes the child into her home and holds the child out as her own child.
  • Any other legal process the state enacts to establish legal motherhood.

3. Third Persons: In some states and under certain circumstances, a person who is biologically or legally unrelated to the child may petition to be the child’s legal father or mother. These third parties are typically stepparents or domestic partners.

Adoption is the preferred method of establishing paternity or maternity. However, a third person may wish to get around adoption procedures by presenting him or herself as a psychological parent to the court. To be a " psychological parent," the third person must show:

  • The legal parent consented to and fostered a parent/child relationship between the third person and the child.
  • The third person and the child lived in the same household.
  • The third person must perform parental functions for the child to a significant degree.
  • There must be a parent/child relationship.

Adoption

Adoption is the legal process where an adult without parentage becomes the legal parent of another person. Single persons or couples (married or unmarried) can adopt another person. The adopted person is typically a minor, although there are some situations where an adult may consent to be adopted. Adoption can be very important because it formally establishes a parent-child relationship for all purposes, including child support obligations, inheritance rights, and custody.

Adoption processes vary by state and will vary depending on whether the adoptive parent(s) use private or state agencies. However, all adoptions, regardless of state or process, must ultimately be approved by a court.

Courts have jurisdiction over adoptions to ensure that the child’s best interests are preserved and to guarantee that the rights of biological parents are protected. Adoptions can be reversed by the birth parents, although this should be done when the child is younger to ensure there is stability in the child’s life.

Alternative Reproduction Technology

Science has provided a variety of methods for women to get pregnant outside of sexual intercourse:

  • Sperm donation – The mother and the sperm donor agree that the sperm donor shall not have any parental rights or responsibilities. Things go wrong when the mother seeks child support or the sperm donor seeks child custody.
  • Surrogate mother – A woman agrees to give birth to a couple’s child (typically because the wife cannot give birth herself). The woman agrees to give up maternity rights in exchange for money. Some states will enforce surrogacy agreements while other states view them as baby-selling contracts.

Child Custody and Child Support

Child custody is divided into two different rights:

  • Legal custody – The parent’s right to make decisions regarding the child’s education, religious upbringing, medical care, and any other major life decisions.
  • Physical custody – The parent’s right to maintain a home and daily life for the child, including food, clothing, and sleep.

Family courts have a great deal of leeway in determining which parent should have custody and in structuring child visitation. However, there are a number of rules and factors that judges may and may not consider in determining child custody:

  • Child’s Best Interest – This is the standard that governs all child custody decisions.
  • Primary Caregiver – Young child should be with the parent who took care of them the most before custody hearing to ensure stability.
  • Two Parents – A child should have a relationship with each parent unless there is a reason against such a policy.
  • Siblings – Brothers and sisters should be kept together where possible.
  • Parents’ Gender – Gender cannot be a justification for custody.
  • Fault Divorce – The fact that one parent was responsible for the breakdown of the marriage does not impair that parent’s right to child custody.

If the parent with primary custody doesn’t have sufficient income to support the child, child support will be awarded. Child support is given based on:

  • The income of each parent
  • The child’s educational, health, medical and other needs
  • The ability of the noncustodial parent to support him or herself
  • The child or children’s accustomed standard of living.

Child support is mandatory; if the noncustodial parent refuses to pay child support, support will be taken directly from the parent’s wages.

For more on child custody and support, check out our Ultimate Guide to Child Custody.

Domestic Violence

Spousal abuse is any abusive conduct between intimate partners who are married, dating, or residing in the same residence. "Spousal" abuse is a misnomer as it may involve relationships where the parties are merely dating or cohabiting. Spousal abuse is typically a pattern of behavior, but single instances may also be abuse if they involve major physical violence. Spousal abuse may include emotional, physical, or financial abuse.

Courts may issue restraining orders, but the person being abused must ask for such an order. If proven, spousal abuse (and child abuse) may result in criminal charges and civil liability.

Child Removal

Under certain circumstances, the state can remove a child from a parent’s custody. Children are removed from custody if the child is endangered by the parent’s activities or endangered by the parent’s neglect.

Although everyone is encouraged to report child abuse to police, certain persons have a duty to make a report if they believe a child is being abused. These persons include:

  • Medical and hospital personnel
  • School officials
  • Social service workers
  • Residential care workers
  • Law enforcement personnel

Estate Planning

Estate planning is the subfield of family law that deals with managing and transferring property in anticipation of death. Planners, also known as testators, can use a variety of tools to plan for their demise, including wills, trusts, and durable power of attorney. If a person dies without a will, his or her property will be distributed according to the state’s intestacy.

1. Wills: A will is a written or oral communication by a person (the testator) stating how they want their property disposed of at death. To create a will, the will must either be handwritten or meet the following requirements:

  • The testator must be at least 18
  • The testator must understand what a will is
  • The testator must understand the relationships one has with friends/family and know what kind of property he or she owns
  • The testator must sign the will
  • The will must be signed by two or three witnesses, depending on the state’s laws
  • State which specific persons will inherit which specific property
  • Name an executor to carry out the will

2. Trusts: Trusts are legal arrangements where one person (the trustee) holds assets at the request of another person (the settlor) on behalf of third persons (beneficiaries). In order to create a trust, the settlor must:

Although trusts are typically created during a settlor’s lifetime, trusts are intended to outlast the settlor. Trusts are most useful if the beneficiaries are not prepared to receive or manage the property they are given. For instance, the beneficiaries might be young children or disabled persons, although there is no requirement that beneficiaries are unable to act for themselves. Trusts are also favored because they exist outside the probate system, thereby avoiding costly court battles.

There are many different kinds of trusts, but all trustees owe principals a heightened level of duty. In other words, trustees cannot abuse their positions for their own gain and they must manage the property entrusted to them with care.

Durable Power of Attorney

In recent decades, doctors have been able to extend the life of the body, but the mind and soul of the patient cannot be healed.

A Durable Power of Attorneyis a legal arrangement where one person appoints an agent to act on his or behalf. If the principal is unconscious or crippled due to an injury, illness, or age, the agent can make financial or healthcare decisions for the principal. Depending on what powers are given, the agent can file taxes, purchase or sell property, remove or preserve life support, or decide whether the principal can undergo surgery.

More than one agent can be appointed, but a process for conflict resolution should be in place if the agents disagree with one another. The powers end upon the death of the principal.

Should I Contact an Attorney?

Family law issues are emotionally taxing and can have far-reaching financial and life consequences. A family lawyer can help you understand your situation and can represent your best interests in a legal dispute.

Photo of page author Jason Cheung

, LegalMatch Legal Writer

Last Modified: 08-18-2015 09:15 AM PDT

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