Family and Divorce Law

Family law governs the relationship between spouses and their children from the inception of the relationship between the couple, through the issues arising during the marriage or domestic union, to termination of the relationship and the structuring of its aftermath.

In many states, special family law courts have been created due to the large number of family law cases appearing before both civil and criminal courts each year. Among the wide variety of family law matters brought before these courts are:

  1. Creating or recognizing the relationship of a couple either through common-law marriage, civil marriage, or domestic partnership;
  2. Resolving issues related to an existing union, such as spousal abuse, child abuse, or adoption;
  3. Ending an existing relationship through divorce or annulment and resolving the corresponding property ownership, parental custody and support issues, as well as child visitation and in some states, alimony awards.

While the majority of family and divorce law is governed by the particular state in which the individuals reside, some federal laws do impact family law disputes. For instance, the Adoption Assistance and Child Welfare Act and the Child Abuse Prevention and Treatment and Adoption Reform Act are examples of federal legislation dealing with family law matters.

Creating a marital relationship

Most marriages begin with a marriage license and some form of wedding ceremony. The license, signed by two individuals who have witnessed the exchanging of vows before an authorized minister or civil official, is then filed in the public records of the county where the ceremony took place.

However, some unions are formed without formality or ceremony. These couples can form legally-recognized unions, commonly referred to as common-law marriages, if they are living in a state that allows for informal marriage. In these states, to establish a common-law marriage, certain elements must be shown:

  1. Both spouses must be legally capable of entering into a valid marriage (they must be of legal age, or with parental consent, and mentally competent);
  2. They must hold themselves out to the public as husband and wife, with the community assuming them to be legally married;
  3. They must live together continuously, not sporadically; and
  4. They must agree that they are husband and wife.

Only a minority of states recognizes common-law marriage; these states include Alabama, Kansas, Oklahoma, Rhode Island, and Texas. Less than one-third of the United States allows for common-law marriage today.

Issues arising during the marriage

Adoption is a common issue that arises during marriage. Most adoptions today are “open” adoptions, where the adoptive parents meet and periodically communicate with the birth parents during the birth mother’s pregnancy and after finalization of an adoption process. In fact, most adoption agencies allow birth parents to choose the adoptive parents for their unborn child with consideration toward a long-term relationship between the natural and adoptive parents.

Many adoptions involve a stepparent adopting children during a second marriage. These adoptions are extremely simple as long as the biological parent consents to the stepparent undertaking all parental rights toward his child, as he terminates his own rights. Once any adoption process is legally finalized, an adopted child is legally identical to the biological child, including having a legal right to inherit from her parents. The legal connection between the child and her birth parent is totally erased.

Domestic violence is another common issue arising during marriage. Often, protective orders are requested from the courts, which legally prohibit the abuser from contacting or otherwise disturbing the peace of the victim. These protective orders may also force the abuser to maintain a distance of 100+ yards from the victim, as well as from her home and her place of employment, and sometimes they also prohibit the abuser from contacting the children at their home or school, along with providing other safety measures.

Terminating the marriage relationship

Regardless of how the marriage relationship has been formed (formal ceremony or common-law marriage), formal legal proceedings will be necessary to terminate it. No marriage can be terminated without a court order.

One way of terminating a marriage relationship is by annulment. Annulments are not common, but they are available to couples who can establish the specific legal criteria for them. The criteria vary from state to state, but as a general rule, an annulment must be based upon a finding that the relationship has been based upon fraud, or at least one of the individuals was underage at the time of the marriage.

Most marriages are terminated by divorce. Divorce law can be very complicated as it seeks to divide both real and personal property, as well as legally separate the human relationships that have been established in the course of the marriage.

“No-fault” divorces are available in every state. In these proceedings, one spouse declares that the couple is “no longer compatible,” they have experienced “an irremediable breakdown of the marriage,” or they face “irreconcilable differences.” Once the key catch phrase is pled, no further evidence is needed for the court to grant a divorce; however, the couple must wait for specific time period before the divorce is finalized.

“Fault” divorces still exist in some states. These are sought when one spouse wants a greater share of the marital property, or a greater portion of alimony than standard family law would otherwise provide.

Child support and child custody issues are also resolved during the divorce process. Child support is determined by standardized laws that exist in every state, which establish set monthly support payment amounts calculated as percentages of the amount of income earned by the noncustodial parent, along with the number of children at issue. Custody of the children is determined by the court based on what is found to be in the best interests of the children. Most modern arrangements place the children in the physical custody of one parent, usually the mother, with the noncustodial parent having visitation rights over a set schedule (typically, every other weekend; a certain number of weeks over the summer vacation; and alternating holidays).

Trends

Collaborative divorce is gaining in popularity across the country as an alternative to formal legal proceedings. In a collaborative divorce, the divorcing spouses negotiate an agreement between themselves – with professional guidance. As part of the collaborative process, each spouse is required to hire an attorney specially trained in the collaboration to advise and assist them during the negotiations.

To encourage resolution further, collaborative divorces have both spouses and their attorneys execute “no court agreements” which require the attorneys to withdraw from the representation if a collaborative settlement agreement cannot be reached. This forces the spouses to hire entirely new counsel if they ultimately have to file a formal civil divorce lawsuit which greatly increases their costs in both time and money.

Collaborative divorce is gaining in popularity in all parts of the country because it is less expensive and takes less time. It is also seen as a way to complete the divorce process in a more private manner than formal litigation and with less acrimony between the spouses and with fewer traumas to the children and extended family.

For More Information