Family law is an area of law that deals with such issues as divorce, child custody, child support, alimony, paternity, and adoption.
The term divorce, also known as “dissolution of marriage,” occurs when a marriage is legally terminated. Divorce law governs the occasionally complex process of helping to determine how assets and property are divided as well as who will have custody of any children the couple may have.
Most states have different rules about the types of divorces that they grant. Usually these different categories have certain regulations that judges and courts must consider before they officially move to dissolve a marriage. Therefore it is important for couples going through a divorce to consult with an experienced family law attorney to help determine the most equitable decisions.
Alternatives to Divorce
Before filing for divorce, some alternatives to consider are annulment and separation.
Annulment – Another way to dissolve a marriage is annulment. When an annulment is granted, it treats the marriage as though it never existed. Some couples choose annulment for religious reasons or because they do not want to be divorced. Annulments are most common among couples that have not been married very long. This is because annulments are mostly concerned with absolving marriages built on misrepresentation or deception. For example, if one spouse lies to another about their age or fails to disclose a known inability to have children, an annulment may be granted. Grounds for annulment include:
- Misrepresentation or Fraud – this can include: lying about already being married.
- Concealment – examples of concealment include: concealing a felony conviction, concealing an addiction, and concealing a sexually transmitted disease.
- Inability (or refusal) to consummate the marriage
- Misunderstanding – an example of a misunderstanding would be that one party thought that the other wanted children when, in fact, they did not.
Separation – Separation occurs when a couple chooses to live apart without getting divorced. There are several types of separation:
- Trial separation – when a couple is unsure as to whether or not they want to permanently separate, they may choose to undergo a trial separation. During this time, they live apart, but their assets and debts are still considered mutual.
- Permanent separation – in a permanent separation, the couple has already made a decision not to get back together. They are actively choosing to live apart. Therefore, any material gains and losses are the individual’s rather than the couple’s responsibility.
- Legal separation – when a couple decides to separate permanently, they may choose to become legally separated. This means that a court decides how property and possession are divided and makes decisions about child custody, child support, and alimony.
Types of Divorce
There are six common forms of divorce that are recognized today. They include no-fault, at-fault, summary divorce, uncontested divorce, mediated and collaborative divorce.
- No-Fault Divorce – For a no-fault divorce there is no need for evidence of wrongdoing. Instead, any legally recognized reason for divorce is acceptable. Usually, “irreconcilable differences,” or the mere lack of ability to get along is considered a valid reason for no fault divorce. This means that the other spouse cannot prevent their partner from filing for divorce. By challenging the decision, he or she only lends merit to the fact that the couple does not see eye to eye.
- At-Fault Divorce – In some instances, one partner can be shown to be at fault in a divorce. This is most common in cases of abuse. One spouse may also be found at fault if it can be shown that they are guilty of adultery or abandonment. In addition, at fault divorce may be given if one partner is unable to engage in sexual intercourse or if he or she is in prison.
- Summary Divorce – This is a quick divorce procedure for those without children and who have been married for less than five years with limited assets and debts.
- Uncontested Divorce – An uncontested divorce offers a couple a simple and inexpensive way to end their marriage. It is for couples with a low level of conflict and would like to end their marriage quietly and with dignity.
- Mediation Divorce – Mediation divorce is an alternative whereby the couples get together and resolve their issues with a mediator in order to get through the divorce process. Mediation provides the couple flexibility in settling issues rather than through the courts.
- Collaborative Divorce – This is one of the newer methods of alternative dispute resolution in divorce. It allows couples to resolve their conflicts by using cooperative techniques rather than adversarial strategies.
In family law, the term alimony refers to a monetary payment from one spouse to the other during separation or after divorce. In some states alimony may also be referred to as “maintenance.”
Types of Alimony
There are several types of alimony, including:
- Permanent Alimony – this is alimony awarded after divorce. It consists of regular payments that may vary in amount or end if the receiving party remarries.
- Temporary Alimony – this is alimony awarded pending a divorce or separation. Temporary alimony consists of payments that include enough money to afford the lawsuit and money to take care of needs until permanent alimony can be established.
- Lump sum Alimony – also referred to as alimony in gross. Many states allow lump sum alimony payments that permit spouses to pay their alimony all at once.
It is essential to keep track of alimony payments in the event that there is a disagreement between the two parties. The spouse receiving alimony may make a claim in court that the spouse paying alimony has not been doing so, and the payer may be sued for back support. In addition, the IRS may challenge alimony payments that were made or received, and the payer may lose the alimony tax deduction.
In order to avoid these situations, the spouse paying alimony should:
- Save notes of all payments with the date, check number, and address to which the alimony payment was sent.
- Save the original checks in a safe place, such as a safe deposit box.
- Save a receipt signed by the recipient if alimony was paid in cash.
The spouse receiving alimony should:
- Save notes of all payments received with the date, amount received, check number, account number of the check, as well as the name of the bank the check is drawn from.
- Save a copy of each money order or check.
- Save a copy of the receipts if alimony was paid in cash.
The term paternity refers to the determination of who the father of a child is in order to arrange child support payments and custody. The types of fathers that may be required to pay child support include:
- Acknowledged father – a biological father of a child born to parents who is not married. In this situation, paternity can be established through admission of the father or an agreement between the parents of the child.
- Presumed father – a man can be presumed as the father if he was married to the mother of the child upon conception or at birth, if he attempted to wed the mother of the child when the child was conceived or born, if he wed the mother after the birth of the child and agreed to support the child or have his name put on the birth certificate, or if he welcomed the child as his own.
- Equitable father – this is a father who is not the biological or adoptive parent of a child. It is typically granted custody or visitation rights if a close bond with the child exists or if the biological parents encourage the relationship.
- Unwed father – An unwed father is a man who has not married the woman with whom he has conceived a child. In this circumstance, the man has no legal recourse if the woman decides to undergo an abortion, but if the child is born he might be expected to pay child support and can be granted visitation rights or custody.
Child custody of the children is determined in a court of law when a married couple with children files for divorce. There are four primary types of child custody:
- Legal custody – the right of a parent to make decisions about a child’s upbringing. In some cases, joint legal custody is awarded to both parents. In this instance, the parents must make mutual decisions about the child’s welfare.
- Physical custody – the right of a parent to have a child live with them. In some cases, joint physical custody is awarded.
- Sole custody – only one parent has sole legal and physical custody
- Joint custody – refers to both parents having legal custody.
In family law, the term visitation refers to the rights of a parent who does not have physical custody of their child to visit them at specific times. There are three primary types of visitation:
- Reasonable visitation – a court order that grants visitation at reasonable times and places. In this case, the times and places are left up to the parents to decide. Although, the parent with physical custody is not legally obligated to agree to a schedule. This arrangement typically gives them more control over visitation rights.
- Fixed visitation – a court order that specifically orders the times, duration, and places of visitation. This type of arrangement usually works best for parents who are extremely hostile toward each other.
- Supervised visitation – this type of visitation is commonly granted in cases where the parent without custody has a history of violence toward the child or their former spouse. An adult supervisor must be present during each visitation.
Child support is a term used in family law to refer to the obligation of parents to pay for a child’s upbringing. Parents have a responsibility under the law to provide support for their children. Even during a divorce each parent still retains that obligation. Child support is a monetary payment that has to be made by the parent who does not have custody of the child after a divorce. If one parent has sole custody of the child, then that qualifies as supporting the child. The other parent, who does not have custody, must make payments to contribute to the care of the child. In situations of joint custody, child support payments are based on the parents’ relative incomes and the amount of time the child spend with each of them.
The amount of child support varies greatly both from state to state and from case to case. Some factors considered when deciding how much the supporting parent will pay include:
- What the child’s standard of living was before the divorce
- How much the parent with custody earns, has, and needs
- The child’s education, health, and other essential needs
- How much the parent without custody can afford to pay
The law takes child support payments very seriously. For example, if a parent fails to pay court-ordered child support they may face time in jail.
Child support must be paid until one of the following conditions is met:
- Child reaches the age of 18 or 21 (depends on state)
- Child is legally emancipated
- Child goes on active military duty
Child support may be required for a longer period of time if the child is in college or if they have special needs.
Adoption is the process by which an adult becomes the parent of a child who is not biologically their offspring. In family law, there are five primary types of adoption:
- Relative Adoption – adoption whereby the adoptive parent is related by blood or marriage.
- Agency Adoption – adoption through a private or public agency.
- Independent Adoption – adoption of a child without an agency. An independent adoption can be an arrangement between the adoptive parents and the birth parents or involve an intermediary such as a doctor or lawyer.
- Identified Adoption – adoption whereby the adoptive parents locate and contact the birth parents directly, then turn the adoption process over to a private or public agency.
- International Adoption – adoption whereby the adoptive child is from another country.
Family Law Lawyers and Attorneys
If you are interested in learning more about various family law issues such as divorce, alimony payments, paternity, child custody, child support payments, adoption, or other aspects of family law, you may want to contact an experienced family law attorney for more information.