Some of the most complex challenges that people face are family matters. These matters are often very emotionally charged and can lead to family divisions, and other complications that are difficult to recover from and it is not uncommon for relationships to change. Spouses grow apart. Needs change. In the most ideal of circumstances, parents or spouses can mediate their way through the process. However, some situations call for legal advice or even family court. In this Family Court Overview, we will look at what family law covers and how you can navigate family courts with the help of a qualified and experienced attorney so you don’t flounder by representing yourself.
Family Court: What is it?
Family courts deal with legal disputes within families such as divorce, property division, child custody and visitation. The main goal of family court is to help settle issues within families when they cannot find common ground. Family court has limited jurisdiction and is governed by state and local laws. It is important to work with an attorney that has a thorough understanding of these state and local laws in order to fully protect your rights and the rights of your children or other dependents.
Below are some of the cases commonly seen in family courts:
The court system requires that any spouse who wishes to file for divorce needs to meet the requirements of residency for both the state and county where they reside. They’re also obligated to establish grounds for the divorce. In states with no-fault divorces, irreconcilable differences are common reasons to file. This term just means that the marriage is unable to be repaired. In states without no-fault divorces then the spouse filing for divorce will need to prove how the other spouse is at fault. Some of the most common fault grounds include:
- Domestic violence
And, even in some no-fault states, family court judges may still consider a spouse at fault when it comes to property division and other similar property and family matters.
Divorces are either uncontested or contested. Uncontested divorce happens when both parties agree on the major issues. They would submit their agreement to the judge and, if approved, the agreement will be the final judgement for the divorce case. If the parties cannot agree on one or more issues, then the divorce is considered contested. This can potentially lead to litigation. Contested divorces are generally more expensive than uncontested divorces. This is why it’s always better to come to some sort of agreement. However, there are times where a contested divorce is unavoidable.
Family court also covers law matters of child custody. Custody has two components: physical custody and legal custody. The amount of time a child lives with each parent falls under physical custody. The authority of each parent to make major decisions regarding the child and their upbringing falls under legal custody. Legal custody typically covers decisions regarding medical care, school choice, extracurricular activities, and religion.
In many situations, a judge will award joint custody. This way both parents are able to play an active role in the child’s life. However, sole custody is a more appropriate solution in some situations. Typically, sole custody is awarded in situations regarding domestic abuse, substance abuse, or other serious offenses.
Child custody and visitation cases focus on the best interests of the child or children. The family court judge is granted substantial discretion to weigh evidence along with a broad range of factors during the family proceedings. Also, as a child’s needs change or the living situation or situation around either party changes, the case may be revisited. Parents are able to return to court seeking a modification of a child custody order based on substantial changes in circumstances. At this point, the judge will review the court records and any new information while focusing on the child’s best interests to make any modifications.
Both parents have an obligation to support their child or children. This obligation typically exists until the child officially becomes an adult. However, in some cases where the child has not yet graduated from high school or if they have special needs, this obligation can continue longer.
It’s typical for the noncustodial parent who spends less time with the child in their physical custody to pay child support to the parent with more physical custody. Yet a judge does have the authority to deviate from these guidelines if an unusual situation presents itself.
Child support can be modified by a judge if a parent can show that circumstances have changed substantially. These circumstances can surround the child or the parent. For example, if a child needs a very expensive medical treatment or if the noncustodial parent loses their job and can no longer afford payments.
Alimony (Spousal Support)
Cases of spousal support or alimony aren’t as common as they used to be. However, in some situations, it does happen. Spousal support occurs most often if there is a dramatic difference in income potential for a relatively long marriage that results in the lower-earning spouse relying on or accustomed to a certain standard of living. These situations aren’t to punish the higher-earning spouse, but to provide the lower-earning spouse with much-needed support. Spousal support generally is for a specific period of time or until certain circumstances are met, except in the case where the lower-earning spouse is disabled, elderly, or otherwise unable to support themselves.
Alimony can be concluded if the lower-earning spouse remarries or cohabitates with a new partner. It may also be terminated if the lower-earning spouse becomes self-supporting or fails to make an effort to become self-supporting. Also, the spouse making the support payments may be able to reduce or terminate spousal support if their financial situation negatively changes.
During a divorce, property division first begins with determining which assets are separate property and which are marital property. Marital property is divided during a divorce. These are assets, excluding gifts and inheritances to one spouse, acquired during the marriage. Complications can arise when marital property is commingled with separate property, or if separate property increases in value during the marriage. This is one of the reasons why valid pre-marital agreements and even post-marital agreements are so important.
Some states approach property division as community property, which means a 50/50 split of the assets. As some assets are not able to be divided evenly, this could involve selling the asset and then splitting the proceeds. It could also mean giving one asset to a spouse while compensating the other spouse with equal valued assets. Likewise, some states approach property division as equitable distribution. This means that the property division focuses more on being fair rather than even. However, the division may still work out evenly in the long run.
While this family court overview has focused largely on divorce, there are positive aspects to the family court system as well. Take adoption, for example. Adoption is a great way to bring a non-biological child into your family. It involves the assumption of the legal rights and responsibilities a parent has toward a child.
Sometimes adoption involves the termination of parental rights for the existing parent. One of the most common forms of adoption is when a stepparent adopts a stepchild. Often, in this situation, there is a streamlined process for this category of adoption. Foster parents also commonly adopt foster children after developing a bond. In other situations, families may pursue independent adoption or adoption through an agency. Some even choose to go with international adoption.
In many cases with adoption, parents may also want to go through with a legal name change for the child, so they have the same last name as their adoptive parents if they don’t already.
What is a Family Court Trial?
What happens in family court depends largely on the type of case. Many divorce cases are handled in mediation and these such cases tend to spend less time in the courtroom. However, the rules in a civil case differ from the rules of a criminal case. Most domestic relations cases use civil laws rather than criminal laws. However, in some circumstances, a case could become a criminal matter. This usually happens when someone doesn’t follow court orders, which could ultimately lead to jail time.
Essentially, you’ll meet with your family law attorney to determine your needs. Then your lawyer will help develop a strategy for negotiation. If both parties are unable to reach an agreement that resolves the issues at hand, then they will begin to prepare your case for family court. It’s important to understand that there is a risk with going to court over agreeing during mediation. Court has the potential to be unpredictable. Sometimes the judge will rule in your favor and sometimes they will rule in an opposite direction. However, sometimes a trial is unavoidable.
Cases need to be litigated in a specific way. There are specific court rules that need to be followed depending on the legal issue. An attorney will help make sure all mandatory steps are taken. They’ll also help make sure you have the appropriate evidence and any witnesses ready to go. At the end of the trial, the judge will make a ruling on the issues at hand. In some cases, the judge may need to take time to review all the evidence for a period of time before making a decision.
Finding a Family Court Attorney
One of the best things you can do in family court cases is to hire an experienced and educated attorney familiar with the state and local laws in your area. While it is possible to do some things using legal resources and legal aid, representing yourself is not recommended and hiring an attorney can really make a big difference in the outcome of your case. They will help make sure the justice process runs smoothly, help with any court forms such as divorce forms, child custody forms, name change forms, etc., and offer legal advice before and during your hearing. They’ll also be able to discuss family court programs and other resources available to you for domestic relations situations.
An experienced attorney understands how the law matters to your case and wants to help you with your legal issue to protect your rights and the rights of your children. Let us be your legal resources for your family law needs.