What Is Family Law?
A look at common legal issues and principles in family lawBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorney Theresa (Traci) Capistrant
Use these links to jump to different sections:
- Overview of Family Law
- Using Alternative Dispute Resolution Instead of Going to Court
- Should I Talk to a Family Lawyer?
- FAQs for a Family Law Attorney
- Finding the Right Attorney for Your Needs
Family law cases are as unique as each family. They can touch on anything from the beginning of a family to the ending of a marriage, including the financial and custody determinations that must be made as part of those processes.
Many family law cases can be resolved without ever going to court thanks to mediation and settlement agreements. If you decide to seek the assistance of a family law attorney, you’ll want to decide early on whether you would like to resolve your case in or out of court.
The following is intended to give you a brief overview of common family law topics so that you can feel confident when speaking with a lawyer.
Overview of Family Law
“Family law involves any case in which two or more people who are going through a transition in their personal relationship—whether it’s people who have children or not—are seeking to end their relationship and are needing legal advice or assistance in transitioning away from each other,” says Traci Capistrant, a family law attorney at Capistrant Van Loh in Minneapolis, Minnesota.
Family law touches on the entire range of family relationship issues, including:
- Marriages, domestic partnerships, or civil unions
- Prenuptial or postnuptial agreements
- Divorce, annulment, or legal separation
- Dividing marital property
- Child custody, visitation/parenting time, and parental rights
Some family law matters, such as adoption, can be joyous occasions. But many family law issues are incredibly stressful and emotionally draining.
“Experiencing the separation of a divorce or ending of a relationship is akin to a death,” says Capistrant. “I think the stages of grieving that you go through in the case of a death are similarly experienced in the case of a separation. And oftentimes one person in the relationship is far readier to move on than the other person is; that other person is often left reeling and unprepared for what is happening.”
To prepare for the challenges of a family law action, Capistrant always encourages people to consider some counseling or therapy—“a professional who can help them during the relationship transition.”
She also recommends that individuals “do reading on the grief process, as well as what to expect or anticipate in a divorce or separation-type of action. All of these steps can be helpful to try to get your mindset in the right place.”
Capistrant emphasizes that family law is family- and case-specific. “Because of this, it isn’t as easy to just go look at case law and say, ‘Well this is the way the courts have always done it in the past.’ Each family is different, and the court may decide to treat their case differently for whatever reason.”
Since family law is so specific, it’s beneficial to speak with a family lawyer in your area who can answer specific questions about your situation. That said, there are some guiding principles that many states will follow. The following is not an exhaustive list of family law matters, but it can serve as a starting point while you evaluate whether to contact an attorney.
Adoption is the legal process through which an adult becomes the legal parent and guardian of another person—most often, a child.
Adoption takes many different forms and can range from stepparents adopting the biological children of their new spouse to new parents adopting a child from a foreign country.
Adoptions laws vary by state, and there are different legal requirements for each type of adoption, so speaking with an experienced adoption lawyer in your state can be extremely helpful.
Biological parents might be wondering if they can stop the adoption of their biological child, or how much contact they can have once the process is completed. The answers to these and similar questions can also vary by state, so it is wise to get legal advice from an experienced adoption attorney near you.
Learn more about the process of adoption.
Divorce is the legal ending of a marriage.
As with other areas of family law, the law governing divorce is state-specific. State laws do have a few general things in common, however, including the allowance for no-fault divorce.
“No-fault divorce” means that people can get a divorce without needing to prove that their spouse was at fault through infidelity, domestic violence, desertion, or some other reason. Individuals may seek a divorce simply on the grounds that they have irreconcilable differences, for example. Fault-based divorces are still an option in some jurisdictions, though much rarer. It’s best to speak with an experienced attorney to determine what the best course of action is for you.
Divorces typically entail the division of marital property, and the methods for dividing property depend in part on whether you live in a community-property state or an equitable-division state:
- In a community-property state, all property acquired during your marriage will be divided evenly between the two of you.
- In an equitable-division state, the judge will consider various factors to create a fair and equitable division between the two of you. The division of property is not always 50-50.
Some property, such as inheritances, gifts, or personal injury awards may not be considered community property, so you might find it beneficial to speak with an experienced divorce attorney in your state to determine what property will and will not be divided in court proceedings.
Find more in-depth information about divorce law.
Spousal support, sometimes called alimony or spousal maintenance, is designed to limit the economic effects of a divorce by providing income to the non-wage earner.
The judge in your divorce case will have broad discretion over how much alimony to award, but there are some guidelines that the judge will consider, including:
- Your standard of living during your marriage
- The length of your marriage
- The relative health of you and your spouse
- The ability of the paying spouse to support both of you
Alimony is typically ordered just long enough for the receiving spouse to become self-supporting, though it can continue until the receiving spouse’s death or remarriage in the case of a stay-at-home parent and long-term marriage. In any case, it will usually end when the receiving spouse remarries.
Get more information about spousal support.
A paternity case can be brought by either parent to establish the identity of a child’s father. The law that governs paternity suits is state-specific. Generally, paternity can be assumed when:
- The child is born to a married couple;
- The parents marry and sign a legitimatization form after the child is born; or
- The father holds the child out as his own.
DNA testing can also be used to help establish paternity, often in cases where the party has not voluntarily acknowledged paternity. It can also be established prior to any court involvement if a Recognition or Declaration of Parentage is signed by the parents at the time of, or subsequent to, the child’s birth.
Paternity determinations have several legal consequences. Establishing paternity allows the unmarried father to file for custody and visitation, though it also creates the obligation to pay child support. After a paternity determination, the child then has the right to inherit from the father and receive child support. Paternity determinations are also an important step in some immigration proceedings.
Fathers considering filing a paternity case may find it beneficial to speak with an attorney specializing in paternity actions.
Child custody addresses the rights and obligations that parents have regarding their children. Child custody questions can arise during divorce proceedings or in a case involving unmarried parents.
Child custody issues are often resolved through voluntary custody agreements, though some are involuntary. Whether voluntary or involuntary, custody agreements must be reduced to a court order in order to be enforced.
There are several types of custody to be aware of:
- Legal custody: Parents with legal custody have the right and responsibility to make important life decisions for and about their children, including education, medical care, and religious decisions.
- Physical custody: Physical custody relates to the children’s primary residence, though the parenting time or visitation schedule does not always mirror the physical custody label.
- Sole custody: When only one parent has both physical and legal custody of the children, sole custody exists. The other parent may have parenting time or visitation rights, but they will not have the right to make decisions that will affect the child.
- Joint legal custody: Joint legal custody arrangements allow both parents to make the major educational, medical, and religious decisions for their children.
- Joint physical custody: If parents share physical custody of their children, the children will live with both parents, though the specific amount of time the children will spend with each parent depends on the visitation or parenting time plan.
Child custody determinations can become complicated, as they are often emotional situations. To protect your rights and ensure that the ultimate decision is in the best interest of your children, you may find it beneficial to involve attorneys in the process.
Using Alternative Dispute Resolution Instead of Going to Court
As its name implies, alternative dispute resolution (ADR) is a way to resolve legal disputes that doesn’t involve going to family court. There are various ADR methods, each of which is suited to particular kinds of legal disputes. In the context of family law, mediation is the most common ADR approach.
In mediation, a neutral third party called a mediator helps the parties resolve their disputes by reaching a mutually agreeable solution through negotiation. Mediations often conclude in one day through sessions that last 3-4 hours. The parties may choose to talk in the same room or decide to be in separate rooms that the mediator goes between. Mediations can be done in person or virtually.
“Generally speaking, when using any form of ADR, the parties maintain more control over the process as compared to going to court,” says Capistrant.
“What I often tell people is that even if you don’t necessarily love what you get out of mediation, you at least know what you’re going to get when the mediation process is over. By contrast, if you go to court, you’re leaving the decisions up to a judge, so you really don’t have any knowledge of the outcome with any certainty. Even if your attorney is really good, you still have the unknowns of what a judge might potentially do with your case.”
The Role of a Mediator
Capistrant explains that as a mediator, her role is not to advocate intensely for either one of the parties. “Instead, I help them see a couple of things,” she says:
- “First, two households don’t live as cheaply as one, so what you had is probably not what you’re going to have going forward.”
- “Second, mediation means compromise, which means neither of you are going to get everything you want.”
Ultimately, “You want to get to something you can live with in order to be done,” she says. “For example, you may want $40,000 in the settlement, but if you accept $30,000 today, you’ll be done, and won’t risk the cost of going to trial and ending up with less than you were asking for or offered in mediation. So, there’s a cost analysis involved that I help clients understand as well.”
Do the Parties to a Mediation Have Lawyers or Do it Alone?
Typically, how it works in mediation is that each party will have their own attorney with them during the session, says Capistrant.
“We’ve definitely seen a pendulum swing in Minnesota, for example. When I first started practicing exclusively family law roughly thirty years ago, it was pretty common to send the parties to mediation alone as a sort of a last-ditch effort to see if they could settle before they needed a lawyer or to go to court.”
Over the years, however, “attitudes have moved away from having the court make any sort of decisions. I think that nowadays, if the parties have attorneys, the attorneys go with them to the mediation process.”
An attorney’s goal is to help their client understand whether the mediation proposals are or are not reasonable.
“As an advocate, when I’m an attorney on the case, I spend a couple of hours with my client in advance of the mediation session talking about what they want, what we’re going to try to request, giving them a reality check on whether their demands are fair or reasonable or likely in an outcome, and talk them through other possible scenarios to consider. By doing this, you’ve managed their expectation going into the ADR process.”
Should I Talk to a Family Lawyer?
Family law is complex. It often involves many people and major decisions. An experienced attorney in family law practice will be able to help you navigate the emotions that come with family law, while balancing your legal interests and the best interests of the children involved.
A lawyer will be able to anticipate potential problems with your case and advise you on how to approach them. They may even be able to help you avoid potential problems altogether. Your lawyer will also keep track of deadlines and file all of the paperwork with the necessary courts and agencies, giving you one less thing to worry about.
What About the Cost of Getting a Lawyer?
“I recognize the fact that there’s a gap in affordability with having your own attorney,” says Capistrant. “But I also think that choosing not to have counsel is very risky, especially if you’re dealing with children. This is a hugely important thing in your life so you need to make sure you get it right.”
When it comes to DIY approaches, “there are a lot of online self-help documents. I find that many people who do these forms completely on their own often end up with attorneys after-the-fact to try to fix mistakes. And sometimes it’s stuff that you can’t undo—stuff you didn’t realize you should or shouldn’t have done.
If you’re going to do it on your own, Capistrant recommends looking into local self-help desks or clinics where volunteer lawyers can review your legal documents. “Or pay an attorney’s hourly rate for one hour to review what you’re doing to make sure you’re getting it right,” she adds.
“The preference would always be that you have full legal representation if you’re able to financially afford to do so. But if you can’t and you need to use the self-help approach, just make sure you’re still having someone look at your documents at least once so that you’re not making some major error that you need to try to undo and fix later.”
FAQs for a Family Law Attorney
Below are some common questions you might want to consider when meeting with an attorney.
What are your attorney’s fees and billing options?
Attorneys use various methods to charge for their legal services, and every attorney is different. Some might use hourly rates, while others use flat fees, depending on what you need. A lawyer’s cost will depend on factors such as their location, their area of expertise, their experience, and the size of their law firm. Having the cost discussion upfront is totally acceptable to make sure you’re getting the right fit.
How do I file for divorce?
Every state has its own requirements and procedures for filing for divorce. Generally, you’ll start the process by submitting the necessary paperwork with the court, including information about you and your spouse and the grounds for divorce. As recommended by Capistrant, it’s wise to speak with a family law attorney in your area about the steps to file to make sure there are no issues that have to be fixed in the future.
How do I get custody of my child?
There are two types of custody: legal and physical custody. One or both parents may have custody. Custody is distinct from visitation or parenting time, which is the schedule that determines when the child will be with each parent. Many custody arrangements are voluntarily worked out by the parents and their attorneys and are enforced through a custody order. If custody will be contested, it is a far more extensive process that can involve a custody evaluation.
Finding the Right Attorney for Your Needs
It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, search the Super Lawyers directory, using the search box to find a lawyer based on your legal issue or location.
You may want to consider looking for an attorney who specializes in family law.
Additional Family Law articles
- What Are Domestic Partnerships?
- What Is a Prenuptial Agreement and Should I Have One?
- Can My Parental Rights Be Reinstated After Termination?
- How Do You Terminate Parental Rights?
- What Does a Guardian Ad Litem Do?
- What Common Law Marriage Means in Real Life
- Finding the Balance in Tri-Parenting Agreements
- An Overview on Mediation and Collaborative Law
- What Happens if Your Ex-Spouse Leaves the State and Isn't Paying Spousal Support?
State Family Law articles
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