Family Law Frequently Asked Questions
What is a "no-fault" divorce?
A "no-fault" divorce is one where the spouse suing for divorce does not have to prove that the other spouse did something wrong. To file for a no-fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's as easy as stating that the couple cannot get along (e.g., "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").
What is a divorce?
A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce.
What is a legal separation?
Legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. The process of legal separation is sometimes called separate maintenance. A decree of separate maintenance cannot later be converted to a divorce decree. If parties in a legal separation later desire a divorce, they must file a new divorce action.
What is child support used for?
Child support covers everything a child needs, and even more, during the growth and formative years. Keep the following in mind: A parent`s first and principal obligation is to support his or her minor children according to the parent`s circumstances and station in life; and Children should share in the standard of living of both parents. Thus, the amount of a child support award is more than a question of bare necessities. If the child has a wealthy parent, that child is entitled to, and therefore needs something more than the bare necessities of life. Where the supporting parent enjoys a lifestyle that far exceeds the custodial parent`s living standard, child support must to some degree reflect that more opulent lifestyle. This is so even though, as a practical matter, the child support payments will incidentally benefit others in the custodial household whom the payor parent has no obligation to support (e.g., custodial parent owed no spousal support, adult children, or children from custodial parent`s other relationships). Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. Children are entitled to share in non-custodial parent`s elevated standard of living despite custodial parent`s substantially lower income. Awarding supported children a percentage of a non-custodial parent`s future bonuses ensures they will share in his standard of living.
How are Custody and Visitation issues decided?
No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, dissolution or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality. Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement if that is possible. A decision made by a stranger is rarely completely acceptable to all if the attempt has not been made in earnest. The family court systems of the states usually have several layers of counseling, mediation and conciliation to attempt to bring warring parents together for the purpose of resolving the issue of what it is in the best interests of their children. If that does not work, the court will appoint an attorney to act as your childs Guardian Ad Litem. This persons role is to investigate and advise the court as what custody/placement plan he/she feels will be in the childs best interest. In some rare cases, additional professionals may also be brought in to evaluate the parties and give the court opinions. This all adds greatly to the cost of the divorce since the parties pay for the GAL and other professionals.
When can a child support order be changed or modified?
An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent`s financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.
My income dropped dramatically when I was laid off my job and cannot make my child support payments. is there any way I can lower my child support payments?
Unexpected, significant decreases in income can be a reason to request modification of your child support order. Before incurring the additional expense of a court-mandated change, one route is to ask the other party to agree to a temporary reduction or deferral (if need be). If successful, put the terms in writing, sign, and date the document, preferably with the advice of a lawyer. If that does not work, ask the court to modify the amount of the child support owed in the future, explaining your major and unavoidable drop in your financial situation, that the income is not likely to be replaced soon, and why the change would be fair. Most courts are sympathetic and receptive to making necessary changes in child support when you have experienced a financial setback. Again, paying a lawyer to help can pay for itself dozens of times over.
Selecting a Lawyer
- What factors are most important?
Reputation, experience, accessibility/responsiveness, compatibility, style, negotiating skills, and fees. - Are these listed in order of importance?
Sort of. Reputation is definitely the most important, especially to judges. Judges more often believe lawyers with good reputations. - How important is experience?
Very. Inexperienced lawyers cave in to pressure too easily or take unrealistic positions, insisting on fighting losing wars to the death. - I heard horror stories about lawyers not returning calls and not filing pleadings in a timely manner.
That`s why accessibility and responsiveness are listed. More complaints are lodged with state bars for not returning phone calls than any other reason. Don`t be shy--ask about how calls are handled. - I know all this is important, but I just don`t feel comfortable with the so-called perfect lawyer.
You are the most important player in the legal drama--your lawyer works for you in this team effort. Trust your gut. If it doesn`t feel right, it may be wrong.
What is Collaborative/Cooperative Law?
Collaborative Law or Cooperative Law is a name given to an attitude toward resolving legal disputes and the policies and practices that put that attitude into action. You won't find collaborative law in the statutes or administrative regulations but you will find it in the professionalism and integrity of those who practice law.
What Types of Family Law disputes can be resolved with Collaborative Law or Cooperative Law?
Collaborative law and Cooperative Law can be used for any dispute. It has been used the most often in the family law arena to resolve disputes related to:
- Divorce, Legal Separation or Annulment
- Child Custody/Parenting Plans
- Visitation and Visitation Disputes
- Spousal Maintenance/Alimony
- Child Support, Daycare Costs and College Tuition
- Valuing Assets
- Division of Property
- Division of Debt
- Tax Issues
- Paternity Issues
- Break-up of Same Sex Partnerships
- Guardianships
- Adoption
