From prenuptial agreements to divorce and from child custody to asset distribution, a family law attorney can help with all areas of family law. While a family lawyer can sometimes refer to a single attorney with whom a family has had a relationship for many years, a family law attorney is a lawyer who specializes in the particular and complex area of family law.
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UPDATED: Aug 19, 2021
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- Family law refers to a specific area of the law dealing with family matters
- Family law can involve several areas of related legal practice
- Family law may overlap with some criminal law if violence occurs
Family law is a niche area of law that deals with domestic issues. The specifics will vary from case to case, depending on the circumstances and needs of the parties involved. A family law attorney’s job is to ensure that the rights of their clients are protected.
In cases of divorce, for example, both parties must have their own and separate divorce attorney. A divorce lawyer will help each client ensure their rights are protected by helping them get their share of marital property and ensure fair child custody if minor children are involved.
Family law can also overlap with criminal law when domestic violence occurs and criminal charges are filed by the state to try to protect the victim. Keep reading to learn more about family law
Whether you’re going through an amicable divorce or a complex and emotional child custody dispute, keep reading to learn more about family and enter your ZIP code above to find affordable family law firms in your area for free.
Marriage and Family Law
Marriage isn’t for everyone, but there are legal benefits to getting married.
If you’re considering marriage or are already married, it’s important to note that the marriage discussed in this section does not involve any religion, church, or secular institution. We are referring to the legal marital relationship and when it’s time to hire a family lawyer.
Marital Rights and Benefits
With marriage come many legal benefits worth discussing. All of these are benefits a skilled family law attorney can guide you through with specificity regarding your exact situation.
Everyone pays taxes, even if you don’t want to. But the Internal Revenue Service (IRS) and some states provide tax breaks for married couples.
Filing a joint income tax return is not only cheaper to prepare, but it may also provide your family with extra tax deductions you wouldn’t otherwise be entitled to. Hiring a family lawyer or tax attorney can help you better understand the tax benefits you and your spouse are eligible for.
Estate Planning Benefits
Estate planning is vital to ensuring your loved ones are taken care of after you’re gone. But even if you don’t have an estate plan in place before you pass, a spouse could still inherit. Estate taxes and gift taxes also don’t apply, in most cases, to assets left to a spouse.
You’ve paid into social security for your entire adult life, but marriage ensures that your spouse can continue to receive a portion of your benefits should you pass unexpectedly. If you’re not married, your spouse will not be able to claim any of your government or veteran’s benefits.
If you’re married and unemployed, but your spouse is employed, you can be added to their employer’s healthcare coverage. If your spouse dies, you can also receive a portion of their pension or other retirement benefits. But if you’re not married, you won’t be able to collect any of these benefits.
Making medical decisions for yourself is only possible if you’re of sound mind. However, your spouse can make medical decisions for you just by the fact that you’re married.
If your spouse has been injured, you may not be able to visit them if you’re not married. Hospitals have strict guidelines for who can visit patients. Being a married couple makes these situations slightly easier on you, avoiding unnecessary and time-consuming paperwork.
If you are the surviving spouse, you are able to receive any death benefits that come with your partner’s life insurance policy, including funeral and burial coverage.
It’s also possible that the deceased spouse died under suspect circumstances. As the surviving spouse, you would have the right to request after-death medical procedures.
When you’re married, you are entitled to certain benefits should the marriage end. This includes the marital home and any money acquired during the marriage.
If you’re not married, it would be much more difficult to prove that you are entitled to some of the other person’s assets no matter how long you may have been together or lived together.
Prenuptial and Postnuptial Agreements
A prenuptial agreement, or prenup, is a legal document drawn up before marriage is finalized to protect any property or assets the spouse is bringing into the marriage. A postnuptial agreement, or postnup, is almost the same document, it’s just created after the marriage has already been legalized instead of before.
Many people don’t want to consider prenuptial and postnuptial agreements because they don’t want to think about their marriage ending. After all, a marriage implies forever, but these legal documents can protect your assets should the relationship end.
Just like estate planning is the best way to prepare for your inevitable death, a prenup is a great way to prepare for what might happen to your marriage. The divorce rate in the U.S. is still 40%, and preparing for this possibility by drafting a prenuptial agreement is a great way to ensure a smoother divorce, should that happen.
When creating a prenup or postnup, family court lawyers will determine what your goals are with the document and help you reach them. There’s a common misconception that these contacts are only for the rich. That’s simply not true. While wealthy couples will use a prenup or postnup to protect an asset that one of them brings into the marriage, any couple can do this.
Say, for example, you have inherited a china set from a parent. This china set may be valuable but it probably also holds sentimental value to you. Your spouse may like the china set and be happy to have it but there’s no inherent sentimental value for them like there is for you. A prenup or postnup could help you protect that china set and keep it in your possession, should your marriage end in divorce.
Most of all, these documents can help you save money later. It doesn’t cost much to hire a family lawyer to draft either of these documents, and it can save you thousands of dollars in legal fees if you end up dividing these items later in divorce proceedings.
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Divorce and Family Law
You can get a divorce in any state so long as you claim residency in that state. It does not have to be the same state in which you were married, but be aware that divorce laws vary by state.
Scroll through this section to learn more about different types of divorce law, including how to prevent divorce and how to pay child support. If you’re facing a divorce, hire a divorce lawyer as soon as possible.
When filing the petition for dissolution of marriage, the filing spouse will not list a reason for divorce. Instead, the reason may be as simple as irreconcilable differences. Every state allows no-fault divorce.
Some states have additional requirements for no-fault divorce. They may require that the couple live apart for a period of time before filing a no-fault divorce. They may also need to have been full-time residents of the state for at least six months.
For some couples, divorce might not be an option. In a no-fault divorce, one spouse cannot stop the other. In fact, objecting to the other spouse’s divorce petition would be an irreconcilable difference in and of itself.
The opposite of a no-fault divorce is a fault divorce. A no-fault divorce can be a simpler process, but there are reasons why one spouse might want to allege fault. Not every state allows for a fault divorce.
Traditional grounds for a fault divorce include:
- Physical abuse
- Mental abuse
- Physical inability to have sexual intercourse
When a person doesn’t want to adhere to the waiting period or might be in danger if they do, fault divorces don’t have a waiting period as a no-fault divorce does. In some states, a spouse who can prove fault may be entitled to a larger share of marital property.
Unlike no-fault divorce, fault divorces allow for objection. If one spouse can prove their case, then they must show they are not at fault. They may be able to do so in several ways:
Condonation occurs when one spouse doesn’t object to another spouse’s activities. A husband who does not object to his wife’s sexual adultery may be said to condone the activity. If the husband then files for divorce claiming his wife has committed adultery, the wife could argue that the husband condoned her behavior.
Connivance happens when one spouse sets up the other spouse to do something wrong. Using the example above, if the husband arranged for his wife’s lover to visit and the husband left, the wife could argue that her husband set her up and may be able to prevent the divorce.
Provocation is similar to connivance, but rather than planning, the spouse intentionally incites their partner to commit a certain act. If a husband leaves his wife and the wife then files for divorce, the husband may argue that his wife provoked him to leave and attempt to prevent the divorce.
Some states require couples to live apart for some time before getting a no-fault divorce. Some couples might try to manufacture grounds for divorce to avoid this waiting period. If one spouse then has a change of heart, they could argue collusion and try to prevent the divorce.
Child Custody Law and Paying Child Support
When a divorcing couple has minor children, custody and support will need to be determined as part of the divorce proceedings. Custody decisions are unique to each family. While the parents ultimately play a major role in determining custody, the judge still needs to sign off on the plan.
A family court judge will consider many factors when determining who should get custody of a minor child. The court will always look to the best interests of the child and will often favor shared parenting over sole custody with one parent.
Family courts may consider:
- The child’s age, mental, and physical health
- The parent’s mental and physical health
- Parent’s lifestyle
- The emotional bond between each parent and child
- A parent’s ability to provide a stable home for the child
- The child’s existing living pattern
- The impact of uprooting the child
- Child’s preference, if they are of a certain age
Most courts will focus heavily on which parent can provide the best living conditions for the child, including a stable living situation and a good relationship with the other parent.
States generally provide a court with guidance on how much child support should be provided from one parent to the other. Shared parenting is the preference, but a true 50/50 split is often impossible and not healthy for the child. So time-sharing may be offset by financial support.
If the primary parent has a child living with them during the week, the other parent may be required to pay the custodial parent a sum of money each month to help cover the living costs of the child.
Child support is paid from one parent to the other based on the desire to keep the child living in similar conditions as though the parents were still married.
When everyone, including the court, has agreed on the parenting plan, the judge will sign off on it. The plan may include alternating holidays, summer vacations, and other concessions to try to give the child an equal amount of time with each parent.
Hire a family law attorney if you need to modify a parenting plan. Any changes to the court-mandated plan must be made with a judge, and having legal guidance can save you time and money while still ensuring the best interests of your children are protected.
Alimony and Spousal Support
Alimony and spousal support laws are based on one spouse’s ability to pay and the other spouse’s need for support. States have varying rules and guidelines around spousal support, when it is used, and how long a party has to be married before one spouse can claim it.
Alimony is not guaranteed in a divorce.
Generally, alimony is provided when the earning capacity of the spouses is very different. This often happens because one spouse makes the sacrifice to stay home and raise the children, giving up their career.
A family court will also consider the length of the marriage in alimony law hearings. If the marriage was short, less than a few years, many courts are hesitant to provide alimony. In marriages of longer lengths, courts are more likely to provide at least some level of spousal support to help the spouse needing support time to get back on their feet.
Spousal support can be paid in several ways. Lump-sum alimony is paid in one lump sum from one spouse to the other. This may be done because the parties have negotiated spousal support and the payment will be made once the divorce is finalized. In other cases, a court may award a small lump sum after a short marriage to help one spouse get back on their feet.
Period alimony is the other main type of spousal support that a court might order. This type of support is provided in periodic payments, usually monthly, and is generally used for longer marriages.
A court may order a certain number of monthly payments, provide an end date for the payments, or when a certain event occurs. Examples of this type of event include:
- When the supported spouse remarries
- When either spouse dies
- When the paying spouse loses income
Spousal support can be modified unless it is lump-sum support. To modify spousal support rulings, the individual requesting the modification must show good cause for why the amount of support needs to be modified. If the supporting spouse has recently lost their job or entered retirement, that may be sufficient reason for a judge to modify or eliminate the spousal support.
In some cases, a spouse who may be required to provide support will try to hide assets to make their payments less. This non-disclosure is prohibited and the spouse attempting to hide assets could face problems with the judge and may still be required to pay spousal support.
The division of assets and liabilities in a divorce is important to ensure each spouse can start their new life. Marital property refers to the property acquired during the marriage. This commonly includes:
- Other assets
Understanding what marital property is will help us understand the distribution procedure that happens in divorce. Countless items could be marital property, and working with a family law attorney can help you determine what items apply in your divorce.
Assets and Liabilities
Distributing the assets of the marriage is a complex process, especially when the parties do not agree or did not prepare a prenuptial or postnuptial agreement.
It’s best if the parties can decide how to divide their assets on their own, but many courts have to step in and decide for them. When they do, a court is looking to equitably distribute. This does not mean 50/50 distribution, which is nearly impossible.
Equitable distribution may result in one spouse getting a large asset, the marital home for example, and having to buy out the other spouse’s share. In this way, the court evens the distribution even though one spouse gets to remain in the marital home.
Not every state uses the equitable distribution method. Some states are community property states, which means that every asset of the marriage is equally owned by both spouses. Upon divorce, community property is divided equally between the spouses.
Community property states are:
- New Mexico
Speaking with a local attorney can help you better understand the divorce state laws where you live.
When should I hire a family law attorney?
Discussed above are some of the major legal matters a family law attorney will help you with. If you’re facing a divorce, need to make custodial changes for your child, or are the victim of domestic violence, hire a family lawyer today to help you navigate the complexities of family law and overcome the challenges you and your family face.
Enter your ZIP code below to get in touch with an affordable family lawyer near you for free.