What is Family Law?
Family law is the area of law that addresses and deals with family relationships. It includes creating family relationships through marriage, domestic partnership, adoption, and so on as well as breaking them through divorce and termination of parental rights. Family law addresses adoption, contested custody of children and the child support obligations that result. Because family law is the practice of law that relates to relationships and children, it can be one of the most emotional areas of law. Family lawyers are involved in very personal aspects of their client’s lives. Ms. Michalczyk has been practicing family law for over thirty (30) years. Family law practice may involve any of the following topics:
Divorce is the process of breaking the bonds of matrimony. A marriage is a contract. When parties get married, they form a legal relationship in the eyes of the state. When they no longer wish to have this relationship, they must file court papers in order to ask for a divorce.
The rules for a divorce vary depending on the State where it’s filed. While all states allow for no-fault divorce, some states require a period of separation. Most states have a residency requirement in order to prevent parties from shopping for the state with the best law.
Each state has their own guidelines for how to divide assets and debts in a divorce, but the rules are similar in all states. In most cases, the court looks to make an equitable division of the assets. This doesn’t necessarily mean dividing things equally. The court can look at things like the parties’ contributions to the marriage, the length of the marriage and the needs of each party after the divorce. Misconduct such as infidelity or domestic abuse can also play into the court’s decision.
Divorce is civil litigation
Divorce cases are heard in state court. It is very similar to other forms of civil litigation. You may work to gather evidence using civil discovery including depositions, interrogatories and subpoenas. You might participate in conflict resolution including mediation sessions. While most divorce cases settle before trial, there’s a chance that you might try your case in court.
Alimony and spousal support
One of the hot button issues in a divorce case is often alimony and spousal support. Some states use a formula in order to determine the amount of support. In other cases, it’s left to the judge’s discretion. Even in cases where the court uses a formula, it’s still important to make sure that the court uses the proper inputs in order to arrive at the correct amount of support.
The length of the marriage is one of the considerations for spousal support. It also depends on a parent’s ability to pay and levels of jointly-accumulated debt. The court looks at the age of the parties and whether they can work. Finally, they consider the misconduct of either party. Family lawyers work to present evidence of these factors to the court in order to ask them to reach the best result.
Pre and post-nuptial agreements
A prenuptial agreement is a contract that parties sign before they get married. Prenuptial agreements usually list who gets what in the event that the parties get divorced. There are some things that can’t be included in a prenuptial agreement like child custody and child support agreements. Otherwise, the parties can create an agreement that outlines things like separate property, distribution of the assets and spousal support in the event of a divorce. When the parties enter into this kind of agreement after they get married, it’s a post nuptial agreement.
Child custody is one of the most debated and contested areas of family law. Most states decide child custody and parenting time based on the best interests of the child. The court considers things like which parent has the greater bond with the child, whether each parent has a stable home and whether either parent has a significant criminal record or substance abuse issues.
If parents agree on custody, the court usually follows the agreement. If the parents can’t agree, family lawyers present the evidence to the court about the child’s best interests. This might involve presenting school records, testimony of a psychologist or substance abuse counselor, criminal records and even medical records. Family lawyers work to gather evidence of these things. They must consider the rules of evidence that are applicable in the local jurisdiction.
Legal and physical custody
Most states divide custody into legal and physical custody. Physical custody is who actually, physically has the child at any given time. Legal custody is who makes major decisions about the child. Physical custody and legal custody can be shared between the parties, or the court might award primary custody to one of the parents. It’s also possible to share one type of custody without sharing the other.
Family lawyers must understand how the courts determine custody in their jurisdiction. There are slight nuances between states, so family lawyers must learn the law that’s specific to where they practice. Family lawyers help their clients understand the law and form realistic expectations so that they can make wise decisions as their case moves forward.
Children have the right to support from both of their parents. The goal of child support is to provide children whose parents live in separate households the same financial resources that they might have if both parents lived under one roof. The courts presume that the parent who cares for the child provides support directly for the child.
Child support is largely determined by formula. Each state has their own formula for making child support calculations. Most formulas consider each parent’s income, allowable deductions for taxes and other expenses, a child’s health insurance expenses and whether they have child care needs. Some states also consider the amount of time that each parent spends with the child. Not all states take parenting time into account.
Family lawyers work with their clients to make sure that child support amounts are accurate. If the other parent tries to hide income or is voluntarily or willfully under employed, a family lawyer can help their client show the court the entire circumstances. A family lawyer also reviews the calculations of the court to make sure that there aren’t any computational errors that could result in an inaccurate child support award.
Abuse and neglect proceedings
Another sensitive area of family law practice is abuse and neglect. When the state believes that a parent isn’t able to appropriately care for a child, they might initiate abuse and neglect proceedings. They might represent a parent accused of abuse or neglect, or they might even represent a child.
When family lawyers represent clients in abuse and neglect proceedings, they work to help their clients either defend against allegations of abuse or neglect or help their clients comply with services and other requirements in order to regain custody of their children. The standard for terminating parental rights is very high. Family lawyers aggressively advocate for their clients when the state wants to terminate a parent’s rights.
Who practices family law?
Attorneys who practice family law can work in both small and large firms. It’s a practice that’s compatible with small firm and solo practice. Family lawyers often combine a family law practice with criminal law or estate planning. In addition, lawyers might work as judges, research assistants or court clerks in the child support office of a court.