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. Many states offer a 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. If you live in a state that does not permit a no-fault divorce, 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. Read more here about the divorce process.
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. Read more here about child custody
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. Usually, the parent who spends less time living with the child will pay child support to the parent who spends more time with the child. 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.) Read more here about child support.
Spousal Support (Alimony)
While spousal support is less common than it used to be, it still may be ordered in certain situations after a divorce. Spousal support often is appropriate if the spouses have dramatically different income potential, and the marriage was relatively long, such that the lower-earning spouse became reliant on the higher-earning spouse and accustomed to a higher standard of living. These payments are not meant to be punitive but simply to provide the lower-earning spouse with the support that they need. Alimony is generally not permanent unless the lower-earning spouse is elderly or disabled, such that they will never be able to support themselves.
Spousal support can be terminated when the recipient spouse remarries or cohabits with a partner, as defined under state law. It also can be terminated in many states if the recipient spouse becomes self-supporting or if the recipient spouse fails to make good-faith efforts to become self-supporting. The spouse making payments may be able to petition to reduce or terminate alimony if their financial situation declines to the point that they can no longer pay. Read more here about spousal support.
The first step in property division consists of determining which assets are marital property and which assets are separate property. 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.
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. Read more here about the adoption process
It is a reality of modern life that not every marriage lasts forever. The divorce rate has been steadily rising throughout the United States for decades. If you are considering ending your marriage, you should learn something about the process in advance.
You may file for divorce only in a state where you are a resident. Almost all states require a certain period of residency before a person can file for divorce there. This period can extend for six months or a year. If you know that your spouse is planning to file for divorce in another state, you may want to file first in the state where you live to avoid the expense of traveling for divorce proceedings.
Changes to related agreements involving alimony, child custody, or child support must be made in the state where the divorce was granted. All states will recognize a divorce properly granted in any other state, but is not required to do so if the original state did not have jurisdiction over the couple.
Family Court proceedings: where can I get advice and support?
Do I need a lawyer (solicitor or barrister)?
Legal advice and assistance from a qualified lawyer is usually helpful and recommended however you are not required to obtain legal advice. You can make the application and attend court yourself without legal representation. People who are involved in court proceedings without lawyers are known as litigants in person
What is the difference between a solicitor and a barrister?
A solicitor is usually the first point of contact if you have a legal problem. Sometimes solicitors refer work to a barrister for specialist advice or to appear in court to represent you. It is also possible for solicitors to represent you in court.
How can I find a solicitor or barrister?
See Useful contacts at the end of this guide for details of organisations which can help you find a solicitor or barrister.
How much do lawyers cost?
You may be able to obtain legal aid to cover their legal costs and lawyers’ fees. To find out further information see A guide to family law legal aid. If you have to pay for your legal costs then you will need to make enquiries directly with the lawyer as their charges vary. Most lawyers charge an hourly rate for the time they spend on the case.
What if I am not eligible for legal aid and I cannot afford to pay a lawyer?
If you cannot access legal aid and you cannot afford solicitor fees you may be able to obtain some free advice from:
Our family law advice lines. We provide telephone advice for women on all aspects of family law.
There may be other advice lines that can provide advice on your specific issues. Some of these are listed in the Useful contacts section at the end of this guide.
Your local Citizens Advice Bureau. The Citizens Advice Bureau provides free, independent, confidential and impartial advice to everyone on a range of issues.
Your local Law Centre. There are Law Centres across England and Wales providing advice, casework and representation.
The Bar Pro Bono Unit. The Bar Pro Bono Unit is a charity which helps to find free legal assistance from volunteer barristers once your case is in court. You will need to be referred to them by another organisation.
Does Your Child Need a Lawyer?
In some divorce and custody cases, the court will appoint a lawyer for the child. This happens when
the court thinks your child needs a lawyer, or
you ask for a lawyer for your child and the court agrees
Should I ask for a lawyer for my child?
If you and the other parent agree on custody and visitation, your child probably does not need a lawyer. But you may want to ask for a lawyer for your child if
you and the other parent disagree about custody or visitation;
you are worried about your child’s safety (if there is substance abuse, child abuse, or domestic violence); or
there is a question about paternity.
What if I ask the court to give my child a lawyer but the court does not agree?
You have the right to ask for a lawyer for your child, but the court does not have to appoint one. If this happens in your case, you may want to request a referral to the Court Support Services Division (CSSD) for other services. You can ask someone in the Court Service Center (located in most courthouses) how to request a referral to CCSD. Note: CSSD may also be called Family Relations or Family Services.
How could Family Services help us?
Family Services has many different services that might be helpful to you. Family Relations Counselors are available when you go to court to help you and your child’s other parent make agreements. They can also provide evaluation services. An evaluation consists of meeting with parents, consulting with people who are involved with the family, and sometimes meeting with the child. The counselor will gather information and make a recommendation to the court. In most cases, the counselor will hold a settlement conference and give recommendations with the goal of reaching an agreement prior to trial.
What if I do not agree with Family Services’ recommendations?
You do not have to accept Family Services’ recommendations. You have a right to present your case in court and let the judge decide. There is no guarantee that the judge will agree with you, and you must obey the judge’s decision even if you don’t agree with it.