Some of the most emotional and complex matters that you can face involve your family relationships. These can evolve over time as spouses find that they have grown apart, or the needs of children change. Often, spouses or parents can reach an agreement on these issues outside court, or perhaps through a non-adversarial process such as mediation. If they cannot find common ground, however, the courts may need to get involved. Whether you are seeking to assert your rights or explore your options, it is important to understand the laws that govern these situations.
To file for a divorce, a spouse usually needs to meet the residency requirements in the state and county where they live. They also need to establish the grounds for the divorce. Virtually all states offer some form of no-fault divorce, which means that the grounds can be as simple as irreconcilable differences. This means that the marriage has broken down and cannot be repaired. Many states also allow for a traditional fault divorce, which means that you will need to prove the fault of your spouse for the divorce. Some common fault grounds for divorce include adultery, desertion, and cruelty. Even if you choose a no-fault divorce, some states will allow a family court judge to consider the fault of a spouse in matters related to the divorce, such as property division.
A divorce can be contested or uncontested. An uncontested divorce occurs when the spouses agree on all of the major issues of the divorce. They can submit their agreement to the judge, and it will become the final judgment in their divorce case if the judge approves it, which is likely. If the spouses disagree on one or more major issues, the divorce will be contested. This may require litigating those issues in court. Contested divorces tend to be much more protracted and more expensive than uncontested divorces, but sometimes they are unavoidable.
The first step in dividing property during a divorce usually consists of determining which assets are marital property and which assets are separate property. Generally, only marital property is subject to division upon a divorce. It consists of most assets that were acquired during the marriage, except for gifts and inheritances that one spouse received. Determining the character of an asset can be complicated if marital property was commingled with separate property, or if the value of separate property increased during the marriage. If the couple ran a business or accumulated intangible assets, such as intellectual property, appraisers and accountants may be needed to estimate their value. Sometimes a pre-marital or post-marital agreement will control property division, as long as the agreement is valid.
Otherwise, the approach to dividing marital property will depend on the state. Some states use a community property approach, which usually results in an exact 50/50 split of the marital assets. Since an asset cannot always be evenly divided, this may involve selling an asset and splitting the proceeds between the spouses, or it may involve giving an asset to one spouse in its entirety while compensating the other spouse with an asset of equal value. Other states use an equitable distribution approach, which means that the division must be fair but not necessarily even.
If a couple has minor children, child custody is usually an important issue in their divorce. Custody traditionally has consisted of two components: physical custody and legal custody. Physical custody involves the amount of time that the child lives with each parent, while legal custody involves the authority of each parent to make major decisions affecting the child’s upbringing. These might include the medical care that the child receives, their choice of school and extracurricular activities, and which religion (if any) they practice. Judges usually prefer to award joint custody so that each parent continues to play a role in a child’s life, but sole custody may be appropriate in some situations, such as when a parent has engaged in domestic violence or substance abuse.
The central concern in a child custody matter is the best interests of the child. A judge has substantial discretion to weigh a broad range of factors. Sometimes a child’s needs will change over time, or the situation of a parent may change. For example, they may need to relocate if they change jobs or are assigned to a different region. A parent can go back to court to seek a modification of a child custody order based on a substantial change in circumstances. The judge again would focus on the best interests of the child in making the modification.
The general rule is that each parent has an obligation to support a child. This obligation usually extends until the child becomes an adult, but it can extend further in some cases if the child has special needs or has not graduated from high school. Key factors in determining child support often include the income of each parent and the custody arrangement. Most states have child support guidelines that provide formulas for typical situations, but a judge usually has the authority to deviate from these guidelines in unusual circumstances.
Similar to child custody, child support can be modified if a parent can show that a substantial change in circumstances has occurred. For example, support might be increased if a child develops a medical condition that requires expensive treatment. Or it might be decreased if the parent making payments loses their job. (However, income will be imputed to each parent in accordance with their earning capacity, so voluntary unemployment is not a way to avoid paying support.)
There are many ways to bring a non-biological child into your life and build a lasting relationship with them. Adoption involves assuming the legal rights and responsibilities of a parent toward a child. It may involve terminating the existing rights of the biological parent, or the biological parent may already have consented to terminate their rights. Adoptions often arise in the context of stepparents adopting stepchildren. Some states offer a streamlined process for this type of adoption. Foster parents also sometimes choose to adopt foster children with whom they have developed a bond.
If you are not adopting a stepchild or a foster child, you will want to decide whether to pursue an independent adoption or an agency adoption. Some people even adopt children from other parts of the world, although this tends to be more expensive and complicated. If you want to adopt a child with certain traits or characteristics, you may face a long wait to adopt. Adoptive parents who are more flexible may be able to adopt a child sooner.
Who gets to keep the house in a divorce? Factors a court may consider in deciding who will keep the marital home include who will have physical custody of any children, and whether separate or community funds comprise any equity in the home.
Can I adopt the child of one of my relatives? Family members are often given preference over non-family members wishing to adopt a child, with stepparents, grandparents, aunts, and uncles commonly serving as adoptive parents in this situation.
Can my ex move to another state with my kids? Depending on your state’s law, your spouse may need to either give you the opportunity to contest the move, or go through a formal petition process in court before they are allowed to move the kids.
Alimony / Spousal Support Depending on the law of your state and your circumstances, alimony or spousal support may be awarded in a divorce, and can be either temporary or permanent, though the latter is becoming less common.
Paternity Establishing a legal relationship between a father and child through voluntary acknowledgement, genetic testing, or other means may entitle the child to financial support and the father to visitation.
Collaborative Divorce For couples wishing for a less contentious marriage dissolution process, collaborative divorce offers a cooperative means of reaching final agreements regarding things like finances and child custody.
Parenting Agreements After a marriage ends, co-parents often work to reach agreements regarding where the children will live, visitation schedules, and who will make decisions about things like education and medical care.
Restraining Orders Victims of abuse, stalking, or harassment by current or former family members can seek temporary or permanent court orders reducing or eliminating all contact between the perpetrator and the victim.