An Overview on Family Law
A first look at common legal topics and guiding principles
on February 10, 2020
Updated on May 28, 2020
Family law cases are as unique as each family. They can cover everything from the beginning of a family and prenuptial agreements to the ending of a marriage and the financial and custody determinations that must be made as part of that process.
Most family law cases can be resolved without ever going to court thanks to mediation and settlement agreements, and if you decide to seek the assistance of an 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.
“Family law” is an umbrella term that encompasses marriage, adoption, divorce, child custody and everything that comes with each of those areas. Family law is state-specific, so you may find it beneficial to speak with a lawyer in your state who can answer specific family law questions. That said, there are some guiding principles that most states will follow. The following is not an exhaustive list of family law issues, 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, 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 halfway across the world. Adoptions law can vary by state, and there are different legal requirements for each type of adoption, so speaking with an experienced attorney 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 consider speaking with an experienced adoption attorney near you.
If you are looking for more detailed information about adoption, you can further follow this link.
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. This means that neither spouse needs to assert that the other caused the divorce through infidelity, abuse or desertion. Fault-based divorces are still an option in some jurisdictions, so it is best to speak with an experienced attorney to determine what the best course of action is for you.
Divorces often include the division of property, and the methods for dividing the property depends on whether you are 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. On the other hand, in an equitable-division state, the judge will consider various factors and create a fair (or 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 judgment 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 by the court.
You can follow this link to find more in-depth information about divorce law.
Spousal support, also called alimony, 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 he or she will consider, including your standard of living during your marriage, the length of your marriage, the relative health of you and your spouse, and 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, and it usually ends when the receiving spouse remarries.
For more information about spousal support, follow this link to our divorce law page.
A paternity case can be brought by either parent to establish the identity of a child’s father. Paternity, generally, cannot be established through solely a DNA test or birth certificate, so an unmarried father needs to acknowledge his paternity. The law that governs paternity suits is state-specific, but generally paternity can be assumed when the child is born to a married couple, when the parents marry and sign a legitimation form after the child is born, or the father holds the child out as his own.
Paternity determinations have several legal consequences. Establishing paternity allows the unmarried father to file for custody and visitation, though it also creates the obligation that he 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 father’s rights.
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. In a divorce, child custody issues can be resolved through settlement negotiations or through a court order, whereas in the case of unmarried parents, the child’s father will have to take affirmative steps to get custody and visitation rights. Once the father has taken these steps, custody cases involving unmarried parents will proceed much like cases involving divorcing parents.
There are five types of custody:
- Legal custody: Parents with legal custody and have the right and responsibility to make legal decisions for and about their children.
- Physical custody: Children live with their parents who have physical custody.
- Sole custody: When only one parent has both physical and legal custody of the children, sole custody exists. The other parent may have visitation rights, but they will not have the right to make decisions that will affect the child.
- Joint legal custody: Joint legal custody allows both parents to make decisions that will affect the children.
- Joint physical custody: If parents share physical custody of their children, the children will split time and live with both parents.
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.
Below are some common questions you might want to consider when meeting with an attorney.
- What needs to be included in a prenuptial agreement?
- How do I file for divorce?
- What do I need to do to get custody of my child?
- How do I establish that I am the biological father of a child?
- Am I entitled to alimony?
- How do I start the adoption process?
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, you can follow this link to the Super Lawyers directory, and use 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.
Why Should I Talk to a Lawyer?
Family law is complex, involves a lot of people and moving parts, and can be emotional. An experienced attorney will be able to navigate the emotions that come with family law, as well as balance your interests and the best interests of your children.
A lawyer will be able to anticipate potential problems with your case and advise you on how to approach them. He or she may even be able to help you avoid potential problems altogether. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.
Why Super Lawyers?
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. As Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public. You can learn more about the selection process here.