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Frequently Asked Questions about Family Law


Frequently Asked Questions About Family Law

Q: What is the legal definition of marriage?

A: Most states define marriage as a civil contract between two people to become spouses and enjoy the rights and responsibilities of a spousal relationship. The standard way to marry is to get a marriage license from a state-authorized official and participate in a formal civil or religious wedding ceremony.

Q: What are the legal effects of marriage?

A: There are many federal and state laws that benefit married couples. Some examples include the right to file joint income tax returns, create a family limited partnership (FLP) under federal tax laws, create a marital life estate trust, receive survivor benefits, partake of employer-provided health and life insurance benefits, receive a share of your deceased spouse’s estate under intestate succession laws, make medical decisions on the other’s behalf, access sensitive health information about each other, and claim the estate tax marital deduction.

Q: What is a divorce?

A: A divorce is a method of terminating or dissolving the marriage contract between two individuals. From a legal standpoint, divorce will give each person the legal right to marry someone else, legally divide the couple’s assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards for dissolving a marriage.

Q: What is a “no-fault” divorce?

A: Traditionally, divorce was granted on the basis of some marital misconduct (such as adultery, abandonment, cruelty, or physical abuse) and the spouse who engaged in the misconduct was punished by receiving a smaller share of the marital property or by being denied custody of his or her children. In a no-fault divorce, however, both parties agree that the marriage ending is not the fault of either party; it is simply no longer salvageable. Misconduct on the part of either spouse isn’t relevant to the divorce itself, though it could possibly play a role in the decision to award alimony or child custody.

Q: What is a fault-based divorce?

A: Though many jurisdictions have moved on to a solely no-fault divorce system, there are some that still require an allegation of fault on the part of one spouse before a marriage can be dissolved. A fault-based divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for a fault-based divorce vary by state but typically include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence, fraud, or infecting the other spouse with a venereal disease.

Q: When parents can’t reach an agreement on custody, what standards do courts use to decide with whom the children should live?

A: When parents cannot reach an agreement regarding child custody, most courts try to decide custody based upon an analysis of what arrangement is in the best interests of the child. While statutes and standards differ from state to state, a best interests determination is usually reached by reviewing the parents’ wishes, the living arrangements of each party, the mental and physical health of the parents, any history of domestic abuse, the child’s age and attachment to the parent who has been the primary caretaker, and the child’s wishes (if he or she is of sufficient age and maturity to express a preference).

Q: What impact should a child’s age have on custody and visitation scheduling?

A: Child psychology and development experts generally agree that children of different ages have different needs regarding child custody and visitation scheduling. Experts generally recommend a visitation schedule based on a child’s age and his or her need for structure and stability, which may be adjusted as needed to account for differences in parenting skills. When parents enter into a shared parenting arrangement, a different schedule may be used. If a child is of a sufficient age and maturity level, he or she may also have an opinion about custody and visitation arrangements.

Q: Can I terminate visitation if I am not being paid the support I am owed?

A: As tempting as it may be, the answer is an unqualified “No.” Visitation and child support are two distinct considerations in the eyes of the court. In nearly all jurisdictions, the right to visitation is never conditional on payment of child support. Instead, child support arrearages should be addressed through the state’s child enforcement office or through a contempt of court proceeding.

Q: How is child support determined?

A: Each state has child support guidelines in place that are used as the foundation for determining the amount of child support. While child support guidelines vary from state to state, courts setting child support orders will generally follow the amount suggested by the guidelines unless a reason to deviate from them exists. Most guidelines consider the needs of the child, the relative abilities of the parents to pay support, and the standard of living the child would have had but for the divorce.

Q: Can I get child support if I was never married to my child’s other parent?

A: Yes. Both of a child’s biological or adoptive parents owe that child a legal duty of financial support. You can work with a family law attorney and your state’s child support enforcement office to obtain a support order even if you and the child’s other parent were not legally married. If you are a mother and your child’s paternity has never been established, you may need to initiate a paternity proceeding and establish paternity before a support order can be entered.

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

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