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Practice Center - 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 a man and a woman to become husband and wife. The traditional way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.

Q: What are the legal effects of marriage?

A: There are several Federal and state laws that benefit married couples. Some examples include the right to:

  • File joint income tax returns with the IRS and state taxing authorities

  • Create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income)

  • Create a marital life estate trust

  • Receive spouse's and dependents' Social Security, disability, unemployment, veterans', pension and public assistance benefits

  • Receive a share of your deceased spouse's estate under intestate succession laws

  • Claim an estate tax marital deduction

  • Sue a third person for wrongful death of your spouse and loss of consortium

  • Sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these lawsuits are available in only a few states)

  • Receive family rates for insurance

  • Avoid the deportation of a non-citizen spouse

  • Enter hospital intensive care units, jails and other places where visitors are restricted to immediate family

Q: What is a legal divorce?

A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, a divorce will give each person the legal right to marry someone else. It will also 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. Each state does have some type of "no-fault" divorce laws that can significantly simplify the divorce process.

Q: What is a no-fault divorce?

A: Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases, the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no-fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. In fact, any misconduct is irrelevant to the divorce proceedings. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.

Q: What is a fault-based divorce?

A: A "fault" divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence 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 parental wishes, the mental and physical health of the parents, any history of domestic abuse, review of the child's age and attachment to the parent that has been the primary caretaker, and the child's wishes depending upon the age of the child and the motivation for the preference.

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

A: Development experts agree that children of different ages have different needs regarding visitation scheduling. Experts generally recommend the following schedules, which may need adjustment for parents with either outstanding or limited parenting skills.

  • Birth to 8 months: 2 or 3 weekly visits of 2 to 3 hours each.

  • 9 to 12 months: 2 or 3 weekly visits of 4 to 8 hours each with one possible overnight weekend visit of 10 hours.

  • 13 months to 3 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24-hour weekly overnight weekend visit.

  • 4 to 5 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24 hour weekly overnight weekend visit and the beginning of vacation (three 2 day visits per year).

  • 6 to 8 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Allowances should be made in the schedule for "homesickness" that allows children to return to primary parent as needed during longer visitation times.

  • 9 to 12 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally.

  • 13 to 17 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Teenager should be consulted for modifications consistent with other activities.

When parents enter into a shared parenting arrangement, the Children's Right Council recommends the following custody schedule.

  • Under 1 year. Part of each day with parent.
  • 1 to 2 years. Every other day with each parent.
  • 2 to 5 years. No more than two days without seeing a parent.
  • 5 to 9 years. Each parent takes alternate week with off-duty parent getting mid-week visitation.
  • Over 9. Alternate weeks.

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

A: No. Tempting as it may be to tie visitation to child support payments, they are separate considerations. Though lack of support can be financially devastating, it really is not in your child's best interests to make time with their other parent contingent on payment and doing so may subject you to legal difficulties if there is a court ordered visitation plan. Similarly, you may not stop paying child support if visitation is denied. If your child support is seriously behind, you should contact an experienced family law attorney or your state or county's child support and enforcement office.

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 owed. While guidelines vary from state to state, courts setting child support orders will generally follow the amount suggested by the guidelines unless a reason to depart from them exists. Most guidelines factor in at least some of the following:

  • 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 never married my child's father?

A: Yes. Both of a child's biological parents owe that child a duty of financial support. You can work with an experienced family law attorney and/or your state's Child Support Enforcement office to obtain a support order. Don't be surprised if the person you name as the father initially contests paternity and asks for a DNA test. Once paternity has been established a support order will be entered.

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