Family law deals with some of the most personal issues that one can face. These issues include:
- the framework of marriage, civil unions, and premarital agreements;
- marital concerns such as spousal abuse, paternity, adoption, and surrogacy; and
- the termination of marriage involving separation, divorce, property division, alimony, child custody, and child support.
Marriage is primarily regulated on a state by state basis. People who enter into a marriage have a different legal status with different rights and obligations than unmarried people. The legal relationship of marriage can only be terminated by divorce, death, or annulment. All states restrict marriage to one living spouse at a time and have varying restrictions based on age, blood relationship, or gender.
Before getting married, some people chose to enter into agreements that dictate how their property will be divided if they get divorced. These “premarital” or “prenuptial” agreements allow people to define their rights differently than the way a court would in a divorce proceeding. However, certain requirements must be met in order for such an agreement to be upheld and certain arrangements are not allowed (such as limiting child support or visitation rights).
“Paternity” is the legal recognition of the relationship between a father and his child. When a married woman gives birth to a child, the law presumes that her husband is the child’s father. When an unmarried woman gives birth to a child, paternity can be established by voluntary acknowledgement, court determination, or genetic testing. A showing of paternity may allow a child to benefit from a father’s financial support, insurance coverage, and future inheritance.
The process of adoption creates a legal parent-child relationship between people who have no biological relation. Adoptive parents should be aware that an adoption does not usually occur until a natural parent’s rights are terminated. Requirements vary widely among open adoptions, closed adoptions, adult adoptions, and international adoptions.
In a separation, married people usually no longer live together, but the legal status of their marriage remains intact. In a divorce, the marriage is legally dissolved and all marital property is distributed between the former spouses. Issues such as child custody, child support, and alimony may also be determined. Either spouse may file for a divorce in a court that has jurisdiction. Some states have minimum residency requirements while others require separation prior to divorce.
Some states allow divorce to be based on some sort of marital misconduct. Grounds for such fault-based divorce proceedings include adultery, abandonment, and domestic violence. All states also have no-fault divorce, which allows a court to find that the relationship is no longer viable. Grounds for a no-fault divorce include irreconcilable differences, irremediable breakdown, and loss of affection.
The distribution of property depends on where the divorce court is located. In states that apply community property laws, the court will divide the marital property equally (in half) between the parties. In states that apply equitable distribution laws, the court will divide the marital property equitably (fairly), which may or may not be equally. Marital property includes bank accounts, pensions, real property, retirement accounts, and vehicles.
Each spouse is presumptively entitled to equal custody of any children born of the marriage and courts prefer to support that presumption. An award of legal custody means that that parent can make significant life decisions for the child. An award of physical custody means that that parent has the right to have the child living in their home. A parent that is not awarded physical custody is often awarded visitation rights.
Parents that do not act as their child’s primary caregiver may be ordered to pay child support. The amount of child support payments vary from state to state and are based on many factors including each parent’s income, each parent’s standard of living, the child custody arrangements, and any health, medical, or educational expenses. There are federal laws in place to ensure that the child custody and support orders of one state are upheld by another state.
Due to the significant and long-lasting effect of these issues, it is wise to seek the advice of a lawyer if you find yourself faced with any of these personal matters.