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Family Law Overview | evident

The legal side to life's biggest moments and the things you hold most dear.

published
July 31, 2021
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Key Takeaways

What Is Family Law?

Family law is the field of law that addresses topics such as marriage, divorce, child custody, and other family matters. In a way, family law represents the legal side to life’s biggest moments and the things you hold most dear.

Family law covers a broad range of topics that generally relate to either the creation, or the termination, of family ties. It can also therefore intersect with other areas of law, such as estate planning or taxes.

One major theme of family law is that these important life events and relationships also have legal implications. Marriage, as just one example, is one of life’s biggest decisions and all about tying your and your partner’s lives together. But marriage also has less glamorous - yet very meaningful - legal consequences, including tax, financial, and immigration implications.

There are two other themes you should consider as you think about your family law issues:

  • First, oftentimes the best outcomes are reached by coming to out-of-court agreements on your own terms. Whether it is a child custody arrangement or alimony agreement, it is often best, if possible, to reach an agreement outside of court rather than being in a position where someone else makes life-changing decisions about your family.
  • Second, many family law issues don’t require attorneys, and many never go to court. But even if your issue is not contentious, a family law attorney can be a crucial resource that helps you navigate the legal system and makes sure your interests are fully represented.

Every family is unique, and therefore so are the family law issues that you might encounter. At the end of the day, family law is about navigating those issues and reaching solutions that achieve the best outcome for you and your family.

Marriage

Getting married is one of the most important moments in your life, as well as an official legal act. Whether you hosted a big wedding with family and friends or you just went down to City Hall, there are important legal and practical consequences to tying the knot.

Some of the main types of legal effects include:

Legal effects of marriage include impacts on taxes, estate planning, employment benefits, government benefits, and medical benefits.

Marriage is thus one of the main examples of a family law matter that has both real life and legal implications. Yet unless you sign a prenuptial agreement (more on these below), there is generally no need for a lawyer to get involved.

Divorce and Legal Separation

Unfortunately, though, not all marriages last forever. In fact, the reality is that many marriages end through divorce or legal separation.

And just as getting married is both a momentous life event and an official legal act, divorce is in many ways a more plainly legal act. The fact of the matter is that it can be much easier to tie the knot in the first place than it is to separate things back out afterwards.

Divorce laws vary by state, but here are some of the key things to be aware of.

Divorce vs. Legal Separation

There are two main ways to end a marriage - divorce and legal separation.

The key difference between the two is whether or not you and your spouse stay married. In a legal separation, you are living separately but still married. In a divorce, you are formally ending the marriage.

Some of the legal consequences of a separation are the same as a divorce. In both situations, you and your spouse must agree, or a court will decide, the following:

  • Child custody and visitation (if applicable)
  • Division of property
  • Separation maintenance (which is similar to alimony)

But whether or not you are still legally married is no small matter, and there are important distinctions that flow from these two different processes. Some of these distinctions include:

  • Whether you are able to remarry (remember - you can’t remarry if you’re still married!)
  • Whether you retain healthcare or other benefits through your marital status
  • Whether you retain decision-making power for medical or financial issues as next of kin to your spouse
  • Whether you are liable for the debts or liabilities of your spouse
  • Whether you maintain certain property rights
  • Whether you can reconcile

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Uncontested vs. Contested Divorces

There are two main types of divorce - uncontested divorces and contested divorces.

Uncontested divorces are cases in which the spouses agree on all issues related to the divorce. This means the spouses are able to agree on key issues such as:

  • The division of marital property
  • Child custody and child support (if applicable)
  • Alimony

Contested divorces, on the other hand, occur when the parties are not able to agree on these issues. If you or your spouse contest any aspect of the divorce - even if you agree on most things - your divorce will be considered a contested divorce.

The reason why this distinction matters is because uncontested divorces, as you might expect, are much simpler and easier processes. There may still be a mandatory waiting period before an uncontested divorce can be finalized, but generally speaking, uncontested divorces save time and money by avoiding the legal fees and legal wrangling involved in contested divorces.

Whether your divorce is contentious is also one of the key factors for deciding whether you need a divorce lawyer.

"Fault" vs. "No-Fault" Divorce

Another key distinction is whether a divorce is a “fault” or “no-fault” divorce.

All states allow for some form of “no-fault” divorce. This means that no one is pointing fingers or officially blaming the other spouse for the breakdown of the marriage. Things just didn’t work out.

Grounds for no-fault divorce include:

  • “Irreconcilable differences”
  • “Incompatibility”
  • "Irremediable breakdown of the marriage”

But again, these terms are really just legal-speak for “things didn’t work out.” Be aware that some states require that you and your spouse live separately for a particular number of months in order to file for a no-fault divorce.

A “fault” divorce, on the other hand, is not available in every state and happens when one spouse asks for divorce to be granted on a particular ground. Grounds for a fault divorce may include:

  • Adultery
  • Desertion
  • Physical or mental cruelty
  • Habitual drunkenness or use of addictive drugs
  • Inability to engage in sexual intercourse (if it was not disclosed prior to the marriage)

One key difference between the two types of divorce is whether you have to wait out the separation period which is otherwise required for a no-fault divorce. Additionally, in some states the type of divorce can affect a spouse’s share of the marital property or alimony obligations.

Child Custody

Family law can touch upon the most important aspects of your life. Child custody is perhaps the most emotionally-charged and contentious area of family law.

There are two main types of custody - physical and legal. These two types of custody can in turn be granted as either joint custody or sole custody.

So, in theory, there are a limited number of ways that custody can be awarded. But the actual specifics of custody arrangements can vary greatly depending on a family’s circumstances.

Physical custody refers to a parent’s right to have the child live with them. Even if one parent has primary or even sole physical custody over a child, though, the other parent may have visitation rights.

Legal custody, on the other hand, refers to a parent’s right to make decisions about a child’s upbringing. Parents with legal custody have the right (and obligation) to make decisions about issues such as:

  • Medical care
  • Schooling
  • Religious upbringing

As with other areas of family law, oftentimes the smoothest and best solutions occur when the parents can come to an agreement themselves.

If an agreement is not reached, the court determines custody by considering “the best interests of the child.” The “best interests of the child” is an expansive test that can include a number of different factors including:

  • A parent’s ability to provide basic necessities for the child
  • The emotional bond between parent and child
  • The parents’ respective lifestyles
  • The child’s preferences (if they are deemed old enough or mature enough to express an opinion)

Courts prioritize a child’s stability and so may be reluctant to review or modify a custody arrangement once it has been established. In order to seek a modification, you must generally show a substantial change in circumstances, and again meet the “best interests of the child” standards.

Check out our article on the key questions to ask a child custody lawyer if you are thinking about hiring an attorney for your case.

Alimony

Alimony, which is also sometimes called “spousal support” or “maintenance,” involves one spouse making payments to the other. It is not awarded in every case, and is more likely to be awarded when there is unequal earning power between spouses who have been married for a long time.

Alimony can also take a few different forms. Periodic monthly payments are the most common form of alimony, but a court may also order a lump-sum payment or a property transfer.

Periodic alimony payments can also have stopping points. For instance, a judge may order that the payments will only last for a certain period of time, or certain events may trigger the end of payments.

Events that might trigger an end to alimony payments include:

  • The spouse receiving payments remarries or cohabitates
  • Either spouse dies
  • Some other significant event such as a spouse’s retirement

Whether alimony is appropriate in the first place depends on the income or earning potential of the spouse seeking alimony. A court will evaluate requests differently if a spouse previously had a high-paying job but took time off to raise children, for instance, than in a situation where the spouses always had a large discrepancy between their earning powers.

Returning to a key theme, the best solution is often for you and your spouse to agree on a reasonable amount and duration for alimony payments, if you are able to. This can save you time, money, and headache by avoiding costly (and emotionally-charged) legal fights.

Plus, reaching agreement on your own allows you to maintain control over the process and the outcome. Otherwise, the court will have a hearing, set the terms for you, and could hold a spouse in contempt of court if they do not comply with the court’s decision.

Prenuptial Agreements

You’re getting married - congratulations! As you know, getting married is a huge life event, and also an official legal act.

And as an official legal act, there are a variety of legal consequences that flow from tying the knot. Marriage can have important tax consequences, immigration implications, and more generally, it means unifying you and your future spouse’s property interests and obligations.

In the absence of a prenuptial agreement, each spouse generally shares an interest in property acquired during the marriage, as well as responsibility for debts incurred. (Prenuptial agreements are also sometimes referred to as antenuptial agreements, premarital agreements, or more simply as “prenups”).

So what is a prenuptial agreement?

Prenuptial agreements are contracts entered into before marriage that set out each spouse’s separate property and debts, and establish upfront the other spouse’s potential interests or obligations related to that property.

And prenups are not just for the rich and famous - more and more people are signing premarital agreements these days as ways to designate separate property rights for children from previous marriages, protect themselves from debts, or simply to clarify financial rights.

The legal formalities that are required for a valid premarital agreement vary based on state law, but there are competing dynamics to be aware of in terms of how courts have viewed premarital agreements over time.

On the one hand, as premarital agreements (and, unfortunately, divorces) have become more common, courts have looked more favorably on prenups over time. But on the other hand, courts are still careful in reviewing and enforcing premarital agreements, particularly if they think one spouse did not fully appreciate the benefits and risks involved in signing the agreement.

It can therefore be important to get independent legal advice before formalizing your premarital agreement. In fact, some states actually require that you and your spouse have separate attorneys review your agreement for it to be legally enforceable.

Adoption

There are many different types of adoptions, just as there are many different reasons to adopt someone into your family.

For instance, the decision to adopt a child from the foster care system is probably driven by different reasons than the decision to adopt an adult, which is legal in most states and might be motivated by estate planning purposes.

So, as you might expect, there are different legal frameworks to the various types of adoption. Here are some of the types of adoption, and a few things to be aware of for each:

Agency - Adoption agencies can be either publicly or privately run. Children who have become wards of the state for reasons such as abuse or abandonment are typically placed through public agencies. Meanwhile private agencies, which are state regulated, often place children who have been brought to the agency by an expectant parent or parents.

Independent - Most states, but not all, allow independent adoptions in which no agency is involved. These can either involve a direct arrangement between the birth and adoptive parents, or they can be arranged through an intermediary (such as a doctor or a member of the clergy).

Identified - This is a hybrid between an Agency and Independent adoption in which the adoptive and birth parents find each other, and then ask an agency to guide the rest of the process.

Kinship - Kinship (or relative) adoptions occur when a family member seeks to adopt a child, for instance if the birth parents pass away or become unable to care for their children. These are typically easier than non-kinship adoptions because the law and public policy favor keeping children with family members.

Step-parent - This is when a step-parent seeks to adopt a child from their partner’s previous marriage or relationship. Similar to kinship adoptions, the process is often easier than other types of adoption, as long as the birth parents both consent. If one parent does not consent or cannot be found, though, the process becomes more complicated.

International - International (or Intercountry) adoptions are typically the most complicated, because the adoptive parents must comply with both U.S. law and the law of the foreign country. Adoptive parents must also secure an immigrant visa for the child. Check the U.S. State Department’s website here for more information on Intercountry adoptions.

Same-sex - Adoptions by same-sex couples are legal in all 50 states, but some state laws still treat same-sex couples differently, unfortunately. Additionally, some foreign countries do not permit same-sex couple adoptions. More information and resources regarding LGBTI adoptions are available here.

Adult - While not the conventional example of adoption most people think of, it is legal for one adult to adopt another in most states as long as there is at least a ten-year age difference between the parties and the parties can show why the adoption is in both of their interests. Potential reasons for adult adoptions include step-parent adoptions that were not completed while the child was still a minor, or to establish inheritance rights.

Guardianship

Guardianships are another way in which an adult could step in and provide care for a child.

One of the key differences between adoptions and guardianships, though, is that adoptions are permanent and final while guardianships are temporary and reversible.

Because adoptions are permanent, they end parents’ rights (such as visitation) as well as their duties (such as financial support) to their children. Parents typically retain these rights and duties to their children during a guardianship, however.

Guardianships can end pursuant to a set time if one is specified in the guardianship agreement, or upon the occurrence of a particular event. Events that might trigger the end of a guardianship include:

  • The resignation of the guardian
  • The child turns 18
  • The guardian or the child dies
  • A judge concludes that the guardianship is no longer necessary or no longer serves the child’s best interests

If someone else’s child lives with you, whether a guardianship makes sense likely depends on how long the child will stay in your care, and thus whether you are likely to need to obtain medical care for the child or enroll the child in school.

In rare instances, parents may need to create a guardianship over their children’s estates. These guardianships allow parents (or whoever the legal guardian may be) to manage a child’s finances until they turn 18, and typically end once the child is of legal age.