Family Law FAQ

+Q. Who is Required to Pay Child Support?

A. Each parent has a duty to support his or her child. It does not matter if the parents are separated, divorced or were never married. A parent’s duty to his or her child is not dependent on his or her relationship to the other parent. Child support is for the sole benefit of the child, not the parent the child lives with. Each jurisdiction has guidelines for the amount of child support that must be paid. Generally, the guidelines are based on the incomes of both parents. A judge determines the amount of child support that should be paid by each parent for each child and may deviate from the guidelines. The court weighs factors such as the needs of the child and the statutory guidelines when making the child support determination.

In the case of unmarried parents, the father must honor his child support obligations once paternity has been established. Child support payments may also be retroactive. If a father is not aware of the child for a period of time, he may be required to pay back support to the time of the child’s birth.

Adoptive parents have the same duties as biological parents in regards to child support obligations. Additionally, incarcerated parents continue to have child support obligations as well. However, incarcerated parents may have a valid claim for modification of child support payments due to their circumstances. Incarceration may also be a basis for the termination of parental rights, in some situations. Likewise, the legal obligation to pay child support is terminated if a parent gives up his or her parental rights. This may be done voluntarily, by court order or due to adoption by another individual (creating a new parental relationship).

+Q. Do I have to pay child support if my ex keeps me away from my kids?

A. A parent must continue to fulfill his or her legal duty to support his or her child even if the other parent has violated the visitation order. The duty to pay child support is separate from other parental duties or duties to the other parent, such as alimony or palimony. If one parent interferes with visitation, some courts may modify child support obligations until visitation is reinstated. However, this depends on the jurisdiction and the court. Legally, a court does not have to modify child support payments due to one parent’s interference with the other’s visitation rights. Visitation is for the benefit of the child, not to punish a parent for violating a court order and his or her parental responsibilities.

+Q. How long must parents support their children?

A. Generally, child support payments end when the child reaches the age of majority (usually age eighteen or nineteen), dies, gets married or becomes emancipated. However, there are some circumstances where the court may order post minority child support payments. One circumstance may be if the child has a mental or physical disability and is not able to support himself or herself. Another reason may be for educational purposes, such as higher education. Additionally, parents may agree, without a court order, to provide child support after their child reaches the age of majority.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. What is the difference between an agency adoption and an independent adoption?

A. In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency’s selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

+Q. Under what circumstances will the court award alimony or spousal support?

A. The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court will usually award alimony, at least temporarily.

Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.

+Q. How is the amount of child support calculated?

A. Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents’ incomes, expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent’s income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge in determining child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including

  • The child’s standard of living before the parents’ separation or divorce
  • The paying parent’s ability to pay
  • The custodial parent’s needs and income
  • The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)

+Q. Once a court issues a child support order, can the amount of support that is paid be changed?

A. The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent’s income through a remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.

+Q. How is child support collected if the person responsible for paying it moves to another state?

A. Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child’s home-state court may be stuck with the reduced amount.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer’s new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state’s court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer’s credit report.

+Q. What are parents’ obligations to their children?

A. Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child graduates from high school, when the child enters the military or when the child marries, but the support obligation can extend beyond that point if the child is unable to support him or herself. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the non-custodial parent must provide.

+Q. How does a court decide which parent will get custody of a child?

A. When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child’s best interests, the court may consider may factors, including

  • The child’s age
  • The child’s gender
  • The child’s physical and mental health
  • The parents’ physical and mental health
  • The parents’ lifestyles
  • Any history of abuse
  • The emotional bonds between the parent and the child
  • The parent’s ability to give the child guidance
  • The parent’s ability to provide the basic necessities, such as food, shelter, clothing and medical care
  • The child’s routines, including home, school, community and religious
  • The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
  • If the child is above a certain age, the child’s preference
  • Who has been the child’s primary caretaker?

+Q. What is the legal divorce process like?

A. Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.

  • One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
  • The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse’s response.
  • The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
  • The parties, through their attorneys, engage in “discovery,” during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
  • The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
  • If a settlement is reached, the agreement is submitted to the court.
  • If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
  • At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
  • Either or both parties can appeal the judge’s decision to a higher court.

+Q. What kinds of assets are divided in a divorce?

A. The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.

The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse’s name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party’s lawyer may help with this issue through discovery, During discovery the parties’ attorneys’ trade documents that disclose each party’s income, assets and liabilities. In addition, each spouse is usually deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.

+Q. What terms should be included in a separation agreement?

A. A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members’ needs will be met.

The terms of such separation agreements vary, but the following items are usually addressed:

  • The spouses’ right to live separately
  • Custody of the children
  • A visitation schedule
  • Child support
  • Alimony or spousal support
  • The children’s expenses (medical, dental, educational and recreational)
  • Property and debt division
  • Insurance (medical, dental and life)
  • Income taxes

+Q. Learn More: Family Law

A. The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, child support, domestic violence and other family law matters. Family law has become entangled in national debates over family structure, gender bias and morality. Few legal areas are as emotionally charged as family law and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.

The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse’s contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of “rehabilitation” these spouses can become self-supporting.

Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children’s rights and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.

Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. When is it Important for an Unmarried Couple to Make a Written Property Agreement?

A. Unmarried cohabitating couples do not have the same legal rights regarding property ownership as married couples. Due to this fact, it is important for unmarried couples to create a written agreement regarding rights to income, benefits and property. This type of agreement is especially important if one of the partners dies; a written agreement may protect the other party by transferring ownership of personal property. Without such an agreement, an individual may end up losing his or her home or other assets. Another reason for cohabiting individuals to have a written property agreement is to protect each person in the event that the relationship ends. A property agreement will protect against later disagreements, arguments and a possible legal dispute; the court will generally uphold the specifics in the agreement and divide the property accordingly. If there is not a property agreement, generally, the individual who holds the property in his or her name will own the property. In the event of that person’s death, the property would most likely pass to his or her heirs at law.

What should a property agreement include?

Some states have specific statutes regarding agreements between unmarried cohabitating couples. A common requirement is that the agreement be in writing and signed by both of the individuals. Additionally, both parties must have the capacity to enter into a contract and that contract must have consideration that is not based on the couple’s sexual relationship.

When a cohabitating couple enters into a written property agreement, there are some requirements that they should include, such as:

  • The intent of each party to enter into the agreement, full disclosure of financial worth for each party
  • The jurisdiction applicable to the agreement (regardless of where couple resides)
  • A list of separate property owned by each individual (this may mean property owned individually prior to the relationship or property acquired during that relationship that will be owned separately)
  • A explicit division of the property in the event that the relationship does not last (the couple separates)
  • The parties may also want to add alternatives, such as mediation, in case there is an argument regarding property at a later date.

It is also important that each party have his or her own attorney when entering into a written property agreement. This can ensure that each party’s interests are represented and that the contract is not entered into by one party under duress, threat or pressure.

+Q. What are some special issues for same-sex couples?

A. Generally, the courts will uphold contracts between unmarried cohabitants regardless of sexual orientation. In the past, some courts have not recognized property-sharing relationships between unmarried persons (homosexual or heterosexual). This view has been rejected by the courts; the unmarried or sexual status of the persons entering a property agreement is not the source of consideration for that agreement and has no basis on the agreements’ legal validity. In the past, other courts have also ruled that property agreements between same-sex couples are invalid due to public policy. However, this viewpoint has been rejected as well and is not a compelling legal argument.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. How Do We Distinguish Between Community and Non-community Property?

A. Whether property purchased or acquired by one spouse is owned solely by that spouse depends on the state in which the couple resides. States have differing laws regarding community property and non-community property. A community property state is one that recognizes property acquired during the course of the marriage as belonging to both spouses. A non-community property state recognizes property acquired by one spouse as the sole property of that spouse. There are states that recognize quasi-community property as well.

  • Community property: There are nine states with community property laws, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Under community property statues, if a married couple acquires personal property during the course of their marriage it is considered owned by the couple. Each spouse will have an equal one-half interest in the personal property, except in matters where the property was acquired by inheritance or by gift from one spouse to the other.
  • Quasi-community property: If a divorce or administration of an estate occurs in a community property state, some state laws may permit the court to treat the non-community property as community property. If the couple acquired the personal property while residing in a non-community property state and then files for divorce or the administration of an estate in a community property state, that property may be treated as if it were acquired while residing in the community property state.
  • Non-community property: If a married couple resides in a non-community property state and one spouse purchases property, that property is non-community (non-marital) property. If the married couple moves to a community property state, the property acquired prior to the move does not become community property. Likewise, if a spouse acquires property while living as a married couple in a community property state, that property remains community property even if the couple moves to a state that does not have community property laws.

+Q. What is the affect of a divorce on community/non-community property?

A. If a couple is in a community property state or a non-community property state, the appreciation of martial/non-marital property may be an issue during a divorce or legal separation. Generally, if non-community property increases in value during the marriage and either spouse has not contributed to this increase (by adding funds, property or other action), the appreciation of the value is still considered non-community property, or the property of the spouse who acquired it. Alternatively, if personal property that is considered community (or marital) property increases in value during the marriage, that increase is owned by each spouse equally.

However, the courts may view ownership of the property differently if the increase in value is due to conduct of one or both of the spouses. It some jurisdictions, if non-marital property appreciates due to marital funds, conduct or efforts, the amount of appreciation may be considered community property and thus owned by each spouse. To determine the affect of appreciation on your community or non-community property in our state, contact our firm to schedule a consultation with a family law attorney.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. Who May Become an Adoptive Parent?

A. Any adult or minor child may be adopted as long as the individual is free to be adopted. An individual is considered free to be adopted if the statutory consent requirements have been satisfied. Generally, consent is required from the child (if over 12), the biological parents (if living, or surrendering parental rights of one or both parents may be required) and the guardian (if there is one).

  • Adoption has become increasingly more common for gays and lesbians. This may be as a single parent or as a couple. Almost all states permit homosexual parents (gay or lesbian) to adopt. Although the law differs regarding adoption by homosexual/gay/lesbian parents from state to state, generally, the role of adoption is to give as many children good homes as possible and many courts uphold this goal.
  • Generally, there is no law against a single person (heterosexual or homosexual) adopting another individual. However, if the adoptive parent is married (and not the legal parent of the adoptee), some jurisdictions may require the spouses to file a joint adoptive petition.
  • An adult may adopt another adult or emancipated minor if the adoptee is not his or her spouse. The purpose of an adult adoption is to make the adoptee the adoptive parents’ heir at law. Some states have specific statutory requirements for adult adoptions and generally, the courts will look at the presence of a parent-child relationship before approving the adoption.
  • A stepparent may petition to adopt a child if the stepparent’s spouse has sole custody of the child, or has joint legal custody of the child. Consent to the adoption is required by the stepchild (if 12 or over), the child’s biological parents or the child’s legal guardian.
  • A grandparent may also adopt his or her grandchild. Grandparents are legally capable to adopt; however, there may be some special concerns for the court to consider. Some concerns are life expectancy or age of the grandparent, health concerns and the state law that would govern. Some states have statutes regarding grandparents as adoptive parents.

+Q. What is the difference between closed and open adoptions?

A.

  • Traditionally, closed adoptions were the standard type of adoption. In a closed adoption, the birth parents do not choose the adoptive parents. Nor do they have any contact with them. After the adoption has taken place, there is no contact between the birth parents and the adoptive parents, such as photos, updates or meetings. The adoption is usually handled by an agency and the birth parents records are sealed. In the past, this meant total secrecy. However, due to lack of access to medical records, more information may be shared with the adoptee and the adoptive parents. The amount of information shared depends on the wishes of the birth parents, adoptive parents and the state laws regarding closed adoption.
  • Recently, open adoptions have been used more frequently. Open adoptions can range from sharing the names and contact information of birth parents and adoptive parents to a meeting between the parents. There are also open adoptions where the birth parents select the adoptive parents based on their information or even interviews. Additionally, the birth and adoptive parents may create an agreement to lay out the rights of the parents, amount/type of communication before the birth and any contact after the birth. In an open adoption, there may also be agreements regarding post adoption rights for the birth parents, visitation and grandparent visitation.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. Does custody always go to just one parent?

A. Custody does not have to go to one parent (sole or primary custody); joint/shared/split custody may be an option as well. There are two types of joint custody. If parents have joint legal custody, they each have equal rights to make major decisions for their child/children and must agree on these decisions. Some examples of major decisions are schooling, religion, healthcare, discipline, bedtime, age of driving and other activities. If parents have joint physical custody, the time each child spends with the parent is split equally. It is also possible for parents to have joint legal custody and not joint physical custody. Then the child may spend less time with one parent, such as weekends, holidays or other specified time periods. Different jurisdictions have statutes regarding joint or split custody with their own requirements. However, commonly, the courts look at the fitness of each parent, their ability to cooperate with each other, the child’s relationship with each parent and each parent’s desire to be involved in the child’s life.

+Q. Are courts more likely to award custody to mothers than fathers?

A. Historically, the court presumed the mother to be the best parent to award custody of the child. Today, that is not the case. Courts must consider the best interests of the child when determining custody. The best interests of the child have nothing to do with a parent’s gender. The courts look at criteria such as the wishes of the child and the parents, the relationship of the child to the parents, siblings and any other extended family, the location of the parent (considering adjustment to school, church, etc.), the health of the child and/or parents, the financial situation of each parent and which parent has been the primary caretaker of the child thus far.

Even though there is no legal presumption in favor of the mother, it is important to note that courts in some jurisdictions may still give preference to the mother in custody disputes where the child is an infant, under the age of six or a female child of mature years. However, if this is the practice, courts still consider who has been the primary caregiver, the mental and physical health of the parent, the financial situation of the parent and other similar criteria to the “best interests of the child.”

+Q. Can the sexual orientation of the parent/parents affect who gets custody of the child?

A. There is no difference between the parenting skills of homosexual, bisexual or transgender parents and heterosexual parents. Of course there are many misconceptions and falsehoods about homosexual and lesbian parents, a homosexual parent is not considered unfit (simply due to their sexual orientation) as a matter of law. The court considers the best interests of the child when determining custody. The sexual orientation of one or both parents is only considered a factor if there is evidence that his or her same-sex relationship has harmed the child. Absent evidence of harm, sexual orientation does not make a parent unfit and should not affect the courts decision regarding which parent receives custody of the child.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. What is “No Fault” Divorce?

A. Historically, most states had divorce statutes based on fault. However, in the 1970s and 1980s most states adopted “no fault” divorce statutes. In a no fault divorce, the fault of one spouse is not an issue. A divorce may be granted even over the objection of one of the spouses. It is enough that a marriage is considered irreconcilable by one or both of the spouses. In the past, the court had to make the determination that one of the parties was at fault and due to his or her actions there was an irretrievable breakdown of the marriage. In a no fault divorce, the courts determination is no longer necessary. Instead, the spouse who is filing for divorce must show that there has been a breakdown of the marriage and that there is no hope of reconciliation, not that one party has caused the breakdown due to his or her behavior or actions. Moreover, since one spouse is not legally “at fault” for the divorce proceeding, there are also no defenses in a no fault divorce action.

No fault divorce was created by the legislature for multiple reasons. One reason may be the rising number of divorces over the years. Another is the criticism that divorce statutes were not looking at the real reason behind the breakdown of a marriage; it is rare that one spouse is responsible for the breakdown of the marriage and the other spouse is blameless. An additional purpose may be to lessen the harm divorce may have on the spouses and their children due to one spouse having to present distasteful details to the court of the other spouse’s conduct. Furthermore, there are some situations where legislatures have deemed fault should not be a factor in a divorce. Some examples are mental illness, lengthy legal separation and incompatibility.

In states that have adopted no fault divorce, fault is commonly still a factor in determining alimony, support payments and property division. It depends on whether the legislature has abolished fault from the divorce statute in that state. Often, if the legislature has remained silent on the issue of fault, the court will deem it still a factor in determining alimony, spousal support, property division, attorneys fees and court costs, even in a no fault divorce. Also in no fault states, the moving party does not have to have proof to substantiate his or her claim that the marital relationship has broken down beyond repair.

No fault divorce statutes differ by jurisdiction. Some states may require a separation agreement prior to divorce; the length of the separation also varies according to state. Other states have a different procedure for a contested no fault divorce or an uncontested no fault divorce. Additionally, some jurisdictions require corroboration that the marriage has been irretrievably broken. This corroboration may be from the other spouse or the failure of the other spouse to deny claims of a broken marital relationship. If you are interested in learning more about the no fault divorce laws in our jurisdiction, contact our firm to schedule a consultation with a family law attorney.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. What is Pet Custody?

A. The end of a relationship is a difficult time for most individuals. When going through a divorce or separating, a couple must not only deal with the emotional aspects, but the division of marital possessions. Marital possessions may include finances and property, but also include any family companion animals. Custody over the family pet has become an important issue for many divorcing couples in recent years. As lifestyles have been changing, animals have become significant family members. For some individuals, the loss of the family pet may be as emotionally traumatic as losing a human loved one. Since animals have become such a central focus of many families’, custody of such a family member is a main concern of many couples.

Legally, a companion animal is treated as property. The court must view pets as part of the marital property; therefore, the options available to the court are limited. Even though the family dog may be like a child to the couple, the court cannot reflect this feeling when dividing the couple’s property. There is no legal authority to determine custody of a pet with a best interest’s standard, as a judge would when determining custody of a human child. Therefore, the options may be to give one individual custody of the pet, determine the worth of the animal and give one party the pet’s monetary value or sell the family pet and divide the proceeds between each party. There is no option of joint custody or visitation over property. If a couple would like to have dual ownership, or visitation, of their family pet, they must create an arrangement between themselves. The court will not have legal authority to enforce such an agreement. If the couple comes to an understanding regarding visitation or joint pet custody, the court will also not be able to include their agreement in the marital dissolution or the property settlement agreement; nor will the court have the power to enforce the couples’ pet custody arrangement if either party does not abide by the terms.

Naturally, the current legal options are not acceptable to most loving pet owners. In response to the emotional aspect of determining pet custody, some courts have been using an alternative viewpoint. Although there are no specific laws concerning pet custody, there are anti cruelty laws that apply to companion animals. Some courts have used these laws as authority to consider the animal’s best interests when deciding who should get custody of the family pet. Few courts have used this standard; however, it may be more of a growing trend in the future. As pets have more of an elevated status in the family unit, people may demand that their animals be treated as more than property in the eyes of the law. A pet is more important to most people then who get’s the wedding china or the lawn mower. The value of an animal is also more difficult to determine. The market price of the family pet may not take into consideration the emotional worth the pet brings to its owners. Thus, the value of a pet as property may not be truly accurate for the pet owners.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q.What is Common-Law Marriage?

A. Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of a spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage are Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah. In addition to these states, some other jurisdictions will recognize a common law marriage if it was valid in one of the (common-law) states and meets the statutory requirements in those states, even if it is a jurisdiction that does not have a statute that provides for common law marriage.

The statutory requirements for common-law marriage may differ depending on the jurisdiction. However, many states have similar basic requirements such as

  • Consent of the parties to be husband and wife
  • Mental capacity for consent (including minimum age requirements)
  • Cohabitation (continuous in many jurisdictions)
  • Parties holding themselves out to the public as a married couple
  • Intent of couple to be married

In some states, the couple must also sign a form indicating their agreement to live as a married couple and their intent to abide by commonly held marital duties and obligations. Other states recognize common law marriage between couples only before a certain date. For example, in Georgia, a couple must have entered into a common law marriage prior to January 1st, 1997, anything after that date will not be recognized as a marriage by the state and will not be enforceable or valid. Yet in other states, common law marriages are only recognized by the state upon the death of one of the spouses. If the common law marriage is valid in the state, it will be considered a marriage for inheritance functions only.

+Q. Ending a Common-Law Marriage

A. Even though some states recognize common-law marriage, there is no common-law divorce those states. If a couple married at common-law wishes to terminate their marriage, they must do more than stop living as husband and wife to consider the marriage over. The marriage may not end the same way it was created, instead, there must be a formal procedure and legal process. In most states, the termination of a legal “ceremonial” marriage and a common-law marriage are the same. Parties must file a complaint with the court to terminate their marriage; forms may be for divorce, dissolution of marriage or annulment depending on the state law and the situation. The specific requirements vary by jurisdiction and are contained in state statute. The divorce complaint may also include provisions for distribution of property or assets, spousal maintenance or alimony and custody. It is important to speak to an attorney in your jurisdiction to learn more about the laws regarding common-law marriage and termination of common-law marriage in your state.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. Can Same-Sex Couples Marry?

A. Historically, state laws would only recognize a marriage between a husband and wife of the opposite gender. Some state statutes focused on the issue of same-sex marriage and declared that such a union would not be valid. Other state laws did not refer to gender in statutes regarding marriage. However, the courts in many states have still read the law as not allowing marriage between individuals of the same gender. In recent years, this view has been changing. It is true that the majority of states still do not recognize same-sex marriage, but a minority of states do. Moreover, there are some states that do not have same-sex marriage, but have laws that protect same-sex unions; these include civil unions and domestic partnerships.

Presently, there are only two states that have statutes recognizing marriage between individuals of the same gender, California and Massachusetts. Most recently, California’s Supreme Court ruled that any statute that deprived persons of the right to marry (regardless of gender) was unconstitutional. Therefore, California’s marriage statute was changed to include same-sex couples. The law and courts in Massachusetts also recognizes marriage between individuals of the same gender. Other states, such as Connecticut, New Jersey, Vermont and Washington (to name a few) have statutes that recognize civil unions or domestic partnerships and the protections that each affords same-sex couples. However, these states do not specifically recognize same-sex marriage. There are additional states with same-sex marriage statues in the legislatures and it is probable that additional jurisdictions will extend the right to marry to couples of all genders in the future.

+Q. What are Civil Unions and Domestic Partnerships?

A. Although most states do not have statutes, giving same-sex couples the same rights regarding marriage as opposite-gender couples, a minority of states offer same-gender couples other protections that are similar to some of the benefits that opposite-gender couples enjoy. Of these protections are civil unions or domestic partnerships. The purpose of a civil union is to give same-sex couples the same rights and privileges as married couples. However, civil union states will still not recognize the union as a marriage. Some of the benefits of civil unions are inheritance/rights of survivorship, family leave, workers compensation, wrongful death claims, adoption and the right to make medical decisions. However, the rights and benefits associated with a civil union are not upheld in states that do not recognize such a union.

Similarly, domestic partnerships give same-sex couples some of the rights and benefits that married couples enjoy. However, where civil unions give most of the benefits of marriage, the benefits of domestic partnerships are fewer. The protections that are available for a domestic partnership differ from state to state, but often include survivorship rights and employment benefits. Some requirements for a domestic partnership are that the two persons are cohabitating, both eighteen or older (of the age of majority), not already married, in a civil union or a domestic partnership and (in some jurisdictions) have signed a Declaration of Domestic Partnership form. Like civil unions, domestic partnerships are not recognized by states that do not consider a civil union or domestic partnership valid. In those states, the rights and benefits associated with each type of union will not be extended to the couple.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. Who Gets Custody of Embryos?

A. The recent innovations in reproductive technology have helped many couples and individuals achieve pregnancies that may have been impossible just a few years ago. As with many innovations, however, rapid scientific advances have brought with them new ethical and legal dilemmas. Twenty years ago, judges and attorneys who were accustomed to dealing with the often challenging issues of child custody may not have guessed that they would soon be faced with potentially even tougher issues involving custody of frozen embryos.

Take the case of a Tacoma, Washington couple who had two embryos formed with donor eggs and the husband’s sperm “left over” after a successful birth using a surrogate. The couple had the eggs frozen with the intention that they, too, would someday be implanted in the uterus of a surrogate mother. The couple later divorced, and the judge awarded custody of the frozen embryos to the husband. The husband wanted to place any children born from the embryos for adoption in a two-parent family outside the state of Washington. The wife appealed from the court’s ruling, arguing that she wanted to raise any potential children. The egg donor also wanted a say, and sided with the wife.

A Michigan couple faced a similar dilemma. The divorced couple fought over five frozen embryos for years. The former wife wanted to have more children, using the embryos, but the former husband objected and the case went to court. The judge ruled in favor of the husband, stating that the husband had a right to choose not to have more children. In that case, too, the wife appealed.

An Illinois court struggled with a similar problem in another case involving frozen embryos, ordering in late 1999 that they remain frozen until the court could sort out the weighty constitutional questions involved. In that Cook County case, the husband and wife were in the midst of divorce when the husband asked the court to order the wife not to attempt to become pregnant through implanting the embryos they had frozen earlier in their marriage. The court issued the requested order, ruling that custody of the embryos would be decided as a part of the divorce trial.

These cases demonstrate that thorny legal issues may arise when assisted reproductive technology is implemented, further complicating an already stressful situation like divorce. Couples considering assisted reproductive technology are generally only thinking of the potential positive outcomes and fulfilling their dreams of starting a family. Such couples would be well advised, however, to discuss the legal implications of their decisions with their attorneys before the fact, so that if for some reason the marriage does not last,, they will have prepared themselves as well as possible to deal with the legal and ethical challenges presented by their situation. The law does not answer the question of who should have custody over embryos. If the couple has an agreement that settles this question, the court will generally uphold it. However, absent an agreement, courts treatment of embryo custody differs based on the jurisdiction and the situation involved. Due to the uncertainty, it is important to consult with your attorney when choosing to pursue conceiving a child through reproductive scientific advancements.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. What is Collaborative Family Law?

A. Collaborative law was created as an alternative to traditional litigation. Litigation can be expensive, time consuming and confrontational for all parties involved. Family law issues are often particularly emotional and since children are often involved, the traditional court process has been viewed as negative and possibly harmful. Family law issues range from divorce, spousal support and asset division to child issues such as custody, support and visitation. When trying to reach an agreement regarding family law issues, litigation may often be an emotionally charged, negative experience for the parties involved. As another option to litigation, collaborative law is an out of court process that is intended to produce an environment of consideration for others and communication that helps parties cooperate with each other and reach a settlement agreement.

The collaborative law model has been increasing in popularity since it was introduced in Minneapolis, Minnesota, in the early 1990s. It has been used in the United States, Canada, Australia, New Zealand, England, Ireland, Scotland, China, some African countries and other European countries. Attorneys in the US and around the world have been forming professional groups in support of the collaborative law method as its recognition and usage has grown. One of these groups is the International Academy of Collaborative Professionals (IACP). Goals of groups, such as the IACP, are to provide individuals information about what collaborative law is, if it may be a good choice for them and how to locate an attorney who is trained in collaborative law.

Attorneys that practice in this area are trained in the collaborative law method. There is currently no formal training program. However, in most states training includes workshops and instruction with other collaborative law professionals and involves skills similar to those of a trained mediator, such as interest-based negotiation. Due to the success and popularity of this method, some states have statutes regarding collaborative law and many other legislatures, including the federal government, are currently developing laws that will include collaborative law as a form of dispute resolution (ADR).

Collaborative law is intended to be conducted by a team of specialists. The team approach may help the parties reach an agreement by giving them guidance in specific areas. Specialists may focus on children’s issues, mental health or financial and do not have to be attorneys or part of the legal profession. Not all types of trained specialists have to be utilized in every collaborative law negotiation; however, a financial specialist is used by most parties. The purpose of specialists is to help the parties reach a settlement they can both agree to and assist with any difficulties the parties may have regarding parenting plans or visitation, valuation of property or other assets, budgeting, alimony, child support, communication skills or assistance with mental health issues such as depression or anxiety.

When parties agree to using collaborative law for their family law issues, they must agree to enter the negotiation process, fully participate in the negotiation and treat the other party with civility and respect. If the parties cannot agree to these terms, the collaborative model may not be the right choice for them and the process cannot continue. If the parties agree to the terms, each spouse will have their own attorney to represent his or her interests in the negotiations. The parties will have a series of meeting with each other, each party’s attorney and team specialists to each an agreement. If an agreement cannot be reached, the collaborative method is discontinued and the parties must engage new attorneys to enter the litigation process to resolve their dispute.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

+Q. What is the Difference Between Marriage and Cohabitation?

A. Marriage may not be right for everyone. Some couples, either by choice or because they have no other option, live together without the benefit of a legal union. There are legal differences between marriage and cohabitation relationships, some of which are summarized below.

Marriage

Marriage requirements vary from state to state. Most include that spouses be of opposite sex; however some states now allow marriages between individuals of the same sex. Other general requirements include a license, a waiting period, blood tests, minimum ages and a ceremony officiated by a clergyperson or an officer of the court and witnesses. When a marriage ends, it must be ended by a formal, legal divorce or annulment process that can be costly, time consuming, complicated and emotionally draining. Divorcing spouses also have the obligation to divide their property by legally prescribed methods.

When a married couple divorces, the wage-earning or higher-wage-earning spouse may have the obligation to provide support for the other spouse upon separation or divorce. Likewise, after separation or divorce, the non-custodial parent generally is legally obligated to help financially support the children of the marriage. Children of the marriage may be biological or presumed. Children born during the marriage are presumed to be the offspring of the husband and wife. Children born to married couples must be financially supported during the marriage.

Married spouses also have the legal right to receive information about the other spouse or make decisions if the other spouse is not able to. If one spouse becomes ill or incompetent, the other spouse generally has the right to make decisions on the ill spouse’s behalf. When one spouse dies, the other spouse has the legal right to inherit a portion of the deceased spouse’s estate.

Cohabitation

Cohabitation may be entered into at any time, by individuals of any age or gender, without formal requirements. The relationship may be ended simply and informally upon the agreement of the parties. However, the emotional costs may be the same as or similar to those experienced at the end of a marriage. Dissimilar to marriage, when a relationship concludes, the parties may divide the property however they choose. Absent statutory guidelines, as in divorce, the couple must reach a mutual agreement.

Furthermore, in contrast to divorce, couples who live together usually do not incur the obligation to support each other after the relationship ends, unless they have entered into a contract providing otherwise. If the couple has a child, support may be an issue. The father of a child born to unmarried cohabitants is not entitled to a legal presumption of paternity and may have to establish his paternity through blood tests and a legal action. If the cohabitating couple has not signed an agreement signifying the child’s father, paternity must be established in order to compel child support payments. If parentage is established, the non-custodial parent has the same legal obligation to support his or her children as legally separated or divorced parents.

Moreover, there are no survivorship rights between cohabitating individuals as there are between married couples. No matter how close the bond or how long the relationship has existed, a cohabitant may lose out to immediate family members when it comes to making decisions for an incapacitated unmarried partner, unless a general power of attorney and health care power of attorney give that authority to the cohabitating partner. As follows, when one cohabitant dies, his or her property will pass to whomever is named in the will or, if there is no will, to family members according to the laws of intestate succession. The surviving partner has no claim to the estate unless he or she was named in the deceased partner’s will.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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