Family law generally concerns domestic relations and family-related matters such as marriage, civil unions, domestic partnerships, adoptions, paternity, guardianships, domestic abuse, surrogacy, child custody, child abduction, the dissolution of marriage and associated issues. According to U.S. Census data the make-up of the American family has been changing. For instance, the 2000 Census revealed that less than a quarter of American families are married couples with minor children compared with 45% of such households in 1960.
A large percentage of marriages end in separation or divorce. When a couple decides to terminate their marriage, one of the parties will petition the court for a divorce. Besides seeking a legal termination of the relationship, the couple will also ask the court to divide the marital assets, grant child custody to one or both parents, and impose child and spousal support obligations, if applicable.
Generally, courts will either apply community property laws or equitable distribution laws when dividing marital property, depending on whether the court sits in a community property or equitable distribution state. In community property states, a court will divide community property 50/50 between the couple. In an equitable distribution states, a court will divide marital property equitably, which may or may not be 50/50. Some complexities may arise if the couple hold marital property in a number of states. The court will then have to determine which property division laws apply to each piece of property.
For couples who wish to establish their own property division rules, they may set-up their own formula within a premarital agreement. Premarital agreements are also known as prenuptial agreements or antenuptial agreements, and are entered into by couples in anticipation of marriage. Couples who wish to manage their assets separately, who wish to provide for children from a prior marriage, or possess significantly different levels of assets or income commonly structure their financial affairs in a premarital agreement.
While a premarital agreement may be used to determine how marital assets will be divided should a couple divorce, a court will not uphold an agreement that violates public policy, such as an arrangement that limits child support, custody or visitation rights, and certain requirements must be met in order for a prenuptial agreement to be found valid..
Child Custody, Visitation and Child Support
Courts generally prefer to grant legal and physical custody over any children from a marriage to both parents. Legal custody means a parent has the right to make significant life decisions, such as those concerning education, health and religion, for the child. Physical custody means a parent has a right to the child living in the parent's home. In cases where a court awards a parent sole physical custody, it may also award the non-custodial parent visitation rights.
To calculate child support payments, courts will look at the factors outlined within the state's child support laws. These may include each parent's income, whether one parent is paying alimony to another, the child custody arrangements, any health, medical or educational expenses, and the parent's standard of living.
The Full Faith and Credit Given to Child Custody Determinations Act (28 U.S.C. § 1738A) ensures that the child custody ruling of a court in one state will be upheld by another state.
While a divorce may be a stressful time for the parties involved, the parties do not have to allow the stress or any lingering bitterness towards the ex-spouse to poison the divorce process. If the parties are able to negotiate in good faith, mediation may represent a more civil, less expensive and less adversarial way to divide the marital assets, resolve any child custody issues and settle on child and spousal support amounts. In such an instance, a neutral mediator can work with the parties, as well as their attorneys, to structure a settlement that is acceptable to all parties.