Family Law

Family Law is an area of civil law that a family lawyer covers. A family law attorney specializes in family-related legal issues, including child support laws, child custody laws, divorce, spousal support, common law marriage, adoption, same sex marriages, and domestic violence. A divorce lawyer can help you understand your rights and advise you regarding child custody, visitation rights, pre-marital agreements, hearings and appeals and cohabitation contracts. A family lawyer can also help you if you have been the subject of domestic abuse or if you have been falsely accused of domestic abuse.

Family law is governed by state law, and may vary from state to state. Family law courts generally hear cases pertaining to divorce, legal separation of the parties, child custody, child and spousal support, domestic violence, elder law legal issues and a number of other legal issues that involve family issues.

Divorce

No-Fault Divorce
When both spouses reach a mutual agreement to end the marriage, a divorce can be uncontested. In 1970, California adopted the 'No-Fault Divorce' law and the rest of the states, excluding New York, adopted the law. No-fault divorce means the court does not require the reasons for divorce.

In some states, couples have the option to choose, before they marry, which laws they would apply to their divorce should the marriage end—either a "covenant marriage" or the no-fault option. In covenant marriage, couples agree to pre-marital counseling and to limit the grounds and options should they decide to divorce.

"Fault" Divorce
A "fault" divorce involves one party blaming the other for a wrongdoing. Grounds for divorce can include adultery, alcohol or drug abuse, physical or mental cruelty, desertion, insanity, impotence or infecting the other spouse with a sexually transmitted disease (STD). Each state's divorce laws contain certain behaviors that constitute a legal reason for the court to grant a divorce. Your state may recognize some or all of the above grounds for divorce, or it may include other grounds.

Whatever grounds for divorce—be it no-fault or fault--the more a couple can make their own decisions, the more money they will save. The less time they spend fighting, the less they will spend on attorney fees. A family lawyer can provide in-depth information on the effect of divorce on specific types of assets, from property and debt division to pensions and insurance policies.

Child Custody

You may face child custody issues if you are divorcing, separating or even if you are not married to the child's other parent. A custody order will determine the rights and duties of each parent and who gets to make decisions about where the children live, their education, etc. In most cases, both parents will have an on-going joint custody relationship with the children. Sole management of the children is only given if there would be severe negative affects on the physical or emotional health of the children.

Sharing Custody
Thirty-seven states plus the District of Columbia have statutes that explicitly authorize joint custody as a presumption or strong preference. According to the National Center for Health Statistics, more than one out of five divorces has shared parenting arrangements.

The Children's Rights Council says that joint custody is now the preferred and presumed custody arrangement in 26 states and the District of Columbia. Typically, shared custody works better because:

• Both parents usually stay more involved.
• Child support is fully paid more often.
• Parents share more responsibilities and raise the child together.

Child Support

Child support will vary from state to state. It can be calculated based on net income or gross income and can include items such as severance pay, commissions, retirement benefits, overtime, pensions, tips, trust income, bonuses, annuities, dividends, rental income, UI benefits, gifts or prizes, when calculating the amount to be paid.

Other factors affecting the amount of child support include special needs of the children, and children that must be supported from other relationships. As well, the person paying child support will generally be responsible for paying for the children's health insurance.

Adoption

Adoption law, which covers the legal relationship of parent and child between persons who are not each other's biological parent or child, is generally state law and it varies from state to state. And there are different types of legal adoption. You may approach an adoption agency, where children who have become wards of the state are available for adoption, or from a private person.

"Independent" adoptions are arranged directly between the birth parents and the adopting parents. An attorney will be needed to take care of the paperwork. Independent adoption is legal in all states except Connecticut, Delaware, Massachusetts and Minnesota. Other states do not allow advertising by non-licensed persons. An "open adoption" will allow the birth parents to maintain contact with the child.

An "identified" adoption is one in which the adopting parents and the birth mother ask an adoption agency to take over the adoption process, benefiting from the agency's experience with the legal issues.

Issues around adoption include self identity, searching for birth parents, reunion with birth parents, cultural differences and community integration. An experienced family law attorney can guide you and explain your state's laws.

Same-Sex Marriage

Since Massachusetts began allowing gay and lesbian couples to wed in November 2003, other states have approved constitutional bans on same-sex marriage.

States that recognize same-sex marriage have enacted laws that provide the same rights and responsibilities as marriage, including:

• rights under family laws, such as annulment, divorce, child custody, child support, alimony, domestic violence, adoption, and property division
• rights to sue for wrongful death, loss of consortium, and under any other tort or law concerning spousal relationships
• medical rights, such as hospital visitation, notification, and durable power of attorney
• family leave benefits
• joint state tax filing, and
• property inheritance when one partner dies without a will.

These rights apply only to couples living in those states who enter into a civil union. But the laws do not give same-sex couples any rights and benefits under federal law. Same-sex couples are not eligible for Social Security benefits, immigration privileges, or the marriage exemption to federal estate, transfer, or gift taxes.

In California, same-sex marriage was legal for five and a half months. On May 15, 2008, the California Supreme Court ruled that limiting marriage to persons of the opposite sex violates the California Constitution, but same-sex marriage was only legal for five and a half months. In November 2008 Proposition 8 (or the California Marriage Protection Act) was passed, banning gay marriage. The measure added the following provision:
"Only marriage between a man and a woman is valid or recognized in California."

In October 2009, a federal judge challenged the backers of Proposition 8 to explain how allowing gay couples to wed threatens conventional unions. Judge Walker said significant questions remain about whether Proposition 8 unlawfully violates the rights of gays and lesbians to equality and due process guaranteed under the U.S. Constitution.

Since Proposition 8 was passed, numerous lawsuits have been filed by same-sex couples and various organizations with the California Supreme Court, claiming the proposition is not valid. Additional lawsuits in federal courts are still pending.

Domestic partnership is another form of relationship recognition for same-sex couples, but domestic partnership rules differ from state to state. For instance, the District of Columbia, Nevada, Oregon, and Washington recognize domestic partnership as the legal equivalent of marriage. In Maine, domestic partnership rules mainly pertain to disability and end-of-life issues and most other marital rights are excluded.

In Maine and D.C., however, the rights provided are more limited. In Maine, for example, most of the domestic partnership rules are related to disability and end-of-life issues.

Domestic Violence

Family law also includes domestic violence law. Domestic violence includes child abuse and child neglect, spousal abuse or domestic-partner abuse, and elder abuse. It is a crime in all 50 states. Domestic abuse can also cover threats, emotional abuse, harassment, and stalking that a spouse, partner, or date uses to control someone else's behavior.

A family law attorney or a family law lawyer can help you with any family law issues.