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Family Law Court

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Practice Areas

  

· Adoptions

· Attorney Fees

· Child Abduction

· Child Custody

· Child Protective Services

· Child Support

· Common Law Marriage

· Defacto Parents

· Dependency

· Divorce

· Domestic Violence

· Father’s Rights

· Foster Care

· Paternity

· Relocation

· Retirement Distribution

· Same-Sex Couples and Paternity

· Spousal Support

What is Family Law?

Family law consists of a body of statutes and case precedents that govern the legal responsibilities between individuals who share a domestic connection. These cases usually involve parties who are related by blood or marriage, but family law can affect those in more distant or casual relationships as well. Due to the emotionally-charged nature of most family law cases, litigants are strongly advised to retain legal counsel.

The vast majority of family law proceedings come about as a result of the termination of a marriage or romantic relationship. Family law attorneys help their clients file for separation or divorce, alimony, and child custody, visitation, and support. Spouses married a short time may seek an annulment, and special rights may exist between same-sex couples. The division of property at the end of a marriage is also a common issue in family law cases.

With respect to property division at the time of divorce, every state has a comprehensive set of laws in place to determine the rights of the parties. However, couples who do not agree with the default rules in their state can "opt-out" by hiring a lawyer to draft a prenuptial agreement. Absent fraud or duress, courts will enforce these premarital agreements upon divorce, and distribute property and financial support accordingly.

Family law also involves the prevention of physical and emotional abuse. The potential for domestic abuse is not limited to relationships between current or former spouses and their children. Judges will not hesitate to assert jurisdiction to protect an elderly family member, someone in a dating relationship, or even a roommate. When allegations of abuse are made, the court will typically issue a restraining order to prevent further contact.

In a contested family law case, most people understand that hiring a skilled attorney will provide an advantage. An attorney can find assets or income the other party is trying to hide, present arguments regarding child support and visitation, and even take the case to trial if settlement talks fail. Attorney representation is just as crucial in uncontested cases, however. Without it, a party is vulnerable and can unknowingly waive important legal rights.


Parental Rights and Obligations


The issue of child custody is the most common dispute in family court. As should be expected, parents are extremely concerned with the safety, education, and overall wellbeing of their children. Custody decisions become even more difficult following a divorce or breakup, as parents tend to be distrustful of each other at these times. Regardless of the state of affairs between the parents, judges will always decide custody based on "the best interests of the child."

In an effort to do what is best for the child, the court can assign legal and physical custody to one parent, or these rights can be shared. A typical schedule would allow the child to spend weekends, summers, and alternating holidays with the non-custodial parent, with both parents having an equal say in major decisions affecting the child. When approving a custody schedule, the court will do what it can to avoid unnecessary disruptions to the child's life.

All parents have a legal duty to provide financial support for their children. The amount of support ordered in a particular case will be calculated according to state statute. Most states publish a child support worksheet that simplifies the task. The calculation will take into account the respective incomes of the parents, the cost of health insurance for the child, support paid for other children by the non-custodial parent, and more.

Custody and support orders are subject to modification. In fact, family law attorneys spend much of their time representing clients in modification proceedings. To alter a visitation schedule or revise the amount of child support, the requesting party must demonstrate that circumstances have changed since the order was entered. Examples of changed circumstances include loss of employment, moving, a parent becoming disabled, etc.

Family law cases can involve a number of other issues. Establishing (or disproving) paternity is a common subject of litigation, although it is becoming less complicated with the ability of courts to order DNA testing. Other issues include the termination of parental rights, adoption, gay and LGBT relations, and grandparent rights. Family law in the 21st century is evolving quickly, making it more important than ever to seek advice from a qualified attorney. 

Pre-nuptial Agreements 


Part of that analysis should include what you and your future spouse will do should irreconcilable differences arise between you. Beyond simply asking whether the two of you would be able to remain amicable after a disagreement, having a plan for dispensing with assets and liabilities may be much easier to dispense with while things are at their best. This can be accomplished through an antenuptial agreement, more commonly referred to as a “prenuptial agreement” or simply a “prenup.”

A prenup is a contract made between prospective spouses prior to the wedding which become effective upon marriage. A properly prepared prenup will address all or most of the issues that would foreseeably arise should a divorce occur. For example, the prenuptial agreement should address both spouses' rights and obligations to marital and premarital assets, regardless of when and where acquired or located, including the right to buy, sell, use, transfer, exchange, abandon, lease, assign, dispose of, or otherwise manage and control the property. It should also address how that property will be divided upon separation, divorce, death, etc.

Other common provisions for a well-designed prenuptial agreement include the modification or elimination of spousal support (alimony); provisions for handling the spouses' respective estates in the event of death or disability; a choice of the laws governing the interpretation of the agreement; and any other matters that might be relevant to the rights and obligations of the spouses upon divorce so long as they are not against the law or violate public policy (an example of a provision that would violate public policy would be one that would forbid one spouse from taking any marital assets after divorce).

One common provision in ante-nuptial agreements which is, perhaps, well-intentioned but unenforceable is a predetermination of child support or custody arrangements. These matters must be decided by a court based on what is in the best interests of the children, not necessarily the parents' wishes. Obviously, any other policy could result in unfortunate outcomes for any children, particularly if the parents had no children at the time of creating the prenuptial agreement and then later discovered they were not very good at being parents. Those who developed alcohol or drug problems, became abusive, etc. could end up with custody rights if a prenuptial agreement had the final say on such matters which is why public policy disallows such situations.

Every jurisdiction requires enforceable premarital agreements to be in writing and signed by both spouses. Most jurisdictions also require a written disclosure of all assets owned by each spouse at the time of entering into the prenup in order to reduce disagreements about which properties came into the marriage before or after the wedding. Perhaps more importantly, such disclosure also helps identify what liabilities each party brings to the relationship, as well. Generally, after the wedding, the premarital agreement can only be amended or revoked through a written agreement of both parties. Tearing up an agreement may be dramatic and make proof more difficult, but it does not revoke the prenuptial agreement. 


Read more on this legal issue
Enforceability of California Prenuptial Agreements
What Assets Are Protected from Divorce Settlements
What Property Rights do Registered Domestic Partners Have?
Digital Assets Can Be Safeguarded with a Prenuptial Agreement
Preserving Your Assets after Disclosing Them
Options Regarding Spousal Support
Role of Prenuptial Agreements and Estate Planning in Second Marriages
Legal Requirements of a Postnuptial Agreement?
Postnuptial Agreements – How They Become Unenforceable
Prenups Can Get Thrown Out If They Are Unfair
Palimony - When Is It Awarded?

Family Law Articles