Family law consists of a body of statutes and case precedents that govern the legal responsibilities between individuals who share a domestic connection. These cases usually involve parties who are related by blood or marriage, but family law can affect those in more distant or casual relationships as well. Due to the emotionally-charged nature of most family law cases, litigants are strongly advised to retain legal counsel. Family law is a legal practice area that focuses on issues involving family relationships, such as adoption, divorce, and child custody, among others. Attorneys practicing family law can represent clients in family court proceedings or in related negotiations and can also draft important legal documents such as court petitions or property agreements. Some family law attorneys even specialize in adoption, paternity, emancipation, or other matters not usually related to divorce. States have the right to determine “reasonable formal requirements” for marriage, including age and legal capacity, as well as the rules and procedures for divorce and other family law matters. Prior to the Supreme Court ruling legalizing same-sex marriage, some states restricted marriage (and divorce) to opposite-sex couples only. The following is a primer on family law and what it entails.
Helpful Terms to Know
• Emancipation: A court process through which a minor becomes self-supporting, assumes adult responsibility for his or her welfare, and is no longer under the care of his or her parents.
• Marital Property: Property acquired by either spouse during the course of a marriage that is subject to division upon divorce.
• Alimony: An allowance made to one spouse by the other for support during or after a legal separation or divorce.
• Paternity: Origin or descent from a father (to establish paternity is to confirm the identity of a child’s biological father).
• Prenuptial Agreement: An agreement made between a man and a woman before marrying in which they give up future rights to each other’s property in the event of a divorce or death.
Reasons to Hire a Family Law Attorney
Most family lawyers represent clients in divorce proceedings and other matters related to divorce. But family law is a relatively broad practice area, including such issues as foster care and reproductive rights. Since family law matters hit so close to home, having a trusted legal professional by your side can help you ensure your loved ones are properly represented and protected during any legal process.
The most common reasons to hire a family law attorney include:
• Divorce: Each partner hires his or her own attorney, who will help devise a settlement plan in order to avoid a trial. Divorce attorneys typically are skilled at dividing marital property, calculating spousal support, and proposing a plan for child custody, visitation, and support (if applicable).
• Child custody / Child Support: Court orders and settlement agreements involving both custody and support usually are included in the larger divorce case, but may be revisited as conditions change. For instance, child support may be altered after the non-custodial parent’s financial situation changes.
• Paternity: In most cases, paternity cases are filed by the mother in an effort to secure child support payments from an absent father. But sometimes biological fathers file for paternity in order to have a relationship with their child. Paternity typically is determined through DNA testing.
• Adoption / Foster Care: Adoption is a complex process that differs according to the type of adoption, where the child is from, variances in state laws, and other factors. Therefore, it’s important to consult with a family law attorney. Foster parents sometimes adopt their foster children, but the foster process does not necessarily require legal representation.
The vast majority of family law proceedings come about as a result of the termination of a marriage or romantic relationship. Family law attorneys help their clients file for separation or divorce, alimony, and child custody, visitation, and support. Spouses married a short time may seek an annulment, and special rights may exist between same-sex couples. The division of property at the end of a marriage is also a common issue in family law cases. With respect to property division at the time of divorce, every state has a comprehensive set of laws in place to determine the rights of the parties. However, couples who do not agree with the default rules in their state can “opt-out” by hiring a lawyer to draft a prenuptial agreement. Absent fraud or duress, courts will enforce these premarital agreements upon divorce, and distribute property and financial support accordingly. Family law also involves the prevention of physical and emotional abuse. The potential for domestic abuse is not limited to relationships between current or former spouses and their children. Judges will not hesitate to assert jurisdiction to protect an elderly family member, someone in a dating relationship, or even a roommate. When allegations of abuse are made, the court will typically issue a restraining order to prevent further contact. In a contested family law case, most people understand that hiring a skilled attorney will provide an advantage. An attorney can find assets or income the other party is trying to hide, present arguments regarding child support and visitation, and even take the case to trial if settlement talks fail. Attorney representation is just as crucial in uncontested cases, however. Without it, a party is vulnerable and can unknowingly waive important legal rights.
Parental Rights And Obligations
The issue of child custody is the most common dispute in family court. As should be expected, parents are extremely concerned with the safety, education, and overall wellbeing of their children. Custody decisions become even more difficult following a divorce or breakup, as parents tend to be distrustful of each other at these times. Regardless of the state of affairs between the parents, judges will always decide custody based on “the best interests of the child.” In an effort to do what is best for the child, the court can assign legal and physical custody to one parent, or these rights can be shared. A typical schedule would allow the child to spend weekends, summers, and alternating holidays with the non-custodial parent, with both parents having an equal say in major decisions affecting the child. When approving a custody schedule, the court will do what it can to avoid unnecessary disruptions to the child’s life. All parents have a legal duty to provide financial support for their children. The amount of support ordered in a particular case will be calculated according to state statute. Most states publish a child support worksheet that simplifies the task. The calculation will take into account the respective incomes of the parents, the cost of health insurance for the child, support paid for other children by the non-custodial parent, and more. Custody and support orders are subject to modification. In fact, family law attorneys spend much of their time representing clients in modification proceedings. To alter a visitation schedule or revise the amount of child support, the requesting party must demonstrate that circumstances have changed since the order was entered. Examples of changed circumstances include loss of employment, moving, a parent becoming disabled, etc. Family law cases can involve a number of other issues. Establishing (or disproving) paternity is a common subject of litigation, although it is becoming less complicated with the ability of courts to order DNA testing. Other issues include the termination of parental rights, adoption, gay and LGBT relations, and grandparent rights. Family law in the 21st century is evolving quickly, making it more important than ever to seek advice from a qualified attorney.
You may want to consult with a family lawyer for any big changes in the family dynamic, including:
• Civil unions and domestic partnerships
• Prenuptial agreements
• Property settlements
• Child abuse
• Spousal abuse
• Child custody
• Child kidnapping
Not every family attorney will have experience in all of these categories. Be sure to ask which areas your lawyer practices to confirm that his or her practice areas fit your needs. Family lawyers typically charge by the hour, though some also use flat rates for simple services like document drafting or reviews. Rates will vary depending on where you live and the complexity of the matter. Set a rate with your lawyer up front so that you know what to expect at the end.
What Should I Expect When Working with a Family Lawyer?
Because the family law practice area is so broad, it’s hard to say exactly what you can expect from a family law proceeding. But in the end, you should have a better defined relationship with your family. In any case, your lawyer should supply you with advice on whether you should take your case to court and how strong your case is. Your lawyer should take you through every step of the process of filing papers or a lawsuit. For document creation or review, you can expect that your family lawyer will create a legally binding agreement that has clear terms you can understand. If you have to go through negotiations or go to court, there is no guarantee that the outcomes will be ideal for you, but having a family lawyer on your side will give you the best information and chance of winning your case.
Legal Issues Surrounding Marriage: Prenuptial Agreements, Divorce, Alimony, and Domestic Violence
Marriage can develop into a complicated situation for many individuals, even before it begins. A prenuptial agreement is a contract that is created before a couple is married, that typically lists each person’s assets, and the rights of each person in the event that the marriage fails. Often controversial, prenuptial agreements have pros and cons, and a family law attorney can provide guidance for a particular situation. Following marriage, some couples seek legal separation. Legal separation does not terminate the marriage like divorce, but it does define the legal rights and obligations of each person. An annulment is a legal decree that treats the marriage as though it never occurred, by declaring the marriage null and void. The grounds for receiving an annulment are limited, and include bigamy, incest, and intoxication during the onset of marriage, legal age issues, and issues relating to force, fraud, physical and/or mental incapacity.
Divorce is the termination of marriage. With some couples, divorce can be relatively friendly. In other situations, it can be contentious. Child custody, child support, and alimony matters can cause disagreements amongst divorcing couples. Regardless of the situation, courts will always put the child’s best interest before anything else. Domestic violence is another serious issue that is frequently associated with family law cases. Though many marriages that end in divorce involved domestic violence, other relationships also experience acts of violence. Dating relationships, parent and child relationships, and elder abuse are among several types of relationships that can involve domestic violence.
Legal Issues Surrounding Children: Child Custody, Adoption, and Child Abuse
When children are involved in the legal system, it can take a serious toll on all parties involved. Child custody and child support arrangements work best in situations where the adults are willing to cooperate and communicate, but these arrangements don’t always go according to plan. Skilled family law attorneys often have the ability to assist in negotiations between parents, and help bring a reasonable solution to the court. In situations of adoption, and those that involve stepparents or individuals with no biological relation to a child, the legal process can be more complicated. The termination of a biological parent’s rights and adoption usually require an investigation, interviews with the child and family members, and several court hearings. Attempting to go through the legal process without an attorney is not advised. Another legal issue involving children is that of child abuse. Unfortunately, the occurrence of child abuse and neglect are far too common, and these crimes have widespread consequences. Not only does the abuse of children have implications in family law, but also in criminal law. The mistreatment or neglect of a child is serious, and all states have laws and agencies that seek to protect the welfare of children. Child protective services (CPS) agencies investigate cases of abuse and neglect, and they also place children in adoption or foster care programs.
Other Family Law Issues: Power of Attorney, Inheritance, and Changing Your Name
Beyond the termination of marriage and child legal issues, other matters such as power of attorney and estate matters apply to family law, among other legal specialties. After seeking the advice of a lawyer, an individual may choose to assign a power of attorney directive to someone she trusts to make decisions on her behalf when she is unable to speak for herself. In fact, it is possible to assign one person to make medical decisions, and another to make financial decisions. Inheritance laws regulate who is entitled to receive assets and property from a deceased relative. States vary greatly on how they treat inheritance, and in cases of divorce, it can become complicated. Prenuptial agreements, commingling inheritance, divorce, and contesting the presumption of shared funds are situations where an experienced family law attorney can prove to be invaluable. Another common family law issue is that of changing a person’s name. A name change is usually a simple process that you can do on your own, and according to the laws in your state. A simple name change following marriage may not need a court order, but creating a new name or taking a less-traditional approach may require the individual to petition the court. Changing government-issued identification documents, such as a passport or social security card will generally require a court order in cases not related to traditional marriage, including changing a minor’s name. In these instances, consulting an attorney is advised.
Family Law Court Process
Upon separation, you will need to consider parenting arrangements for children and/or the division of the matrimonial property pool. This can be achieved in a number of ways, including:
1. By coming to an agreement between yourselves, without court involvement, and informally dividing up the assets and/or come to an arrangement for you.
2. If you and your former spouse agree, you can formalize your agreement by:
3. A parenting plan (for children’s parenting matters and parenting arrangements)
4. Applying for a consent order in the Family Court; and/or
5. Entering into a financial agreement (in respect to property settlement and spousal maintenance matters); and/or
6. Entering into a binding child support agreement (in respect to child support matters only); or
7. If you cannot agree, you can apply to the court for financial orders which relate to property settlement, spousal maintenance, child support, and parenting matters.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
84088 United States
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