Frequently Asked Questions about Family Law

Question:
What is the legal divorce process like?

Answer:
Although some divorces are very simple and can be handled with a minimum amount of red tape and delay (such as when there is no significant property involved and the couple has no children) most divorces are far more difficult and can take many different courses. The following is a basic outline of the divorce process.

• One spouse contacts a lawyer, who assists in the preparation of a complaint, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.
• The complaint is filed with the court and served on the other spouse, together with a summons that requires that spouse’s response.
• The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.
• The parties, through their attorneys, engage in “discovery,” during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
• The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
• If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court
• If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
• At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, and grants the divorce.
• Either or both parties can appeal the judge’s decision to a higher court.

The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.

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Question:
What kinds of assets are divided in a divorce?

Answer:
The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, airplanes, snowmobiles, and motorcycles; money; stocks, bonds, and other investments; pensions; and privately owned businesses.

The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse’s name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties’ lawyers can help. Through the legal process known as discovery, the parties’ attorneys exchange documents that reveal each party’s income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party’s financial situation. In addition, each spouse is usually deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.

If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.

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Question:
What happens to the property that each spouse owned before the marriage?

Answer:
In most states, whether they follow a community-property or equitable-distribution scheme, the property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse’s separate property. It may, however, be considered as part of the total circumstances in determining a fair allocation of the marital property.

In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division.

Example: If one spouse had a bank account containing $10,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from the same account, the amount in the account at the time of divorce or separation will probably be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $10,000 account deposits only other non-marital money, such as inheritances to him or her alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce.

A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home’s maintenance and mortgage payments during their marriage. In some states, this commingling of marital and non-marital assets converts the home to marital property.

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Question:
What terms should be included in a separation agreement?

Answer:
A separation agreement may be most advisable when the parties have very different financial situations, such as when one spouse is the wage-earner and the other is raising the couple’s children. A formal separation agreement can help ensure that all family members’ needs will be met.

A family law attorney can make sure that a separation agreement covers all necessary details and complies with applicable law. Although it may seem like a good idea to save money by having one lawyer draft or review the agreement, it is really in each party’s best interests to be separately represented, so that each lawyer can draft or review the separation agreement with his or her client’s needs in mind. The terms of such agreements will vary, depending on the needs of the particular parties involved, but the following items should be addressed:

• The spouses’ right to live separately;
• Custody of the children;
• A visitation schedule, or a provision for reasonable visitation;
• Child support;
• Alimony or spousal support;
• The children’s expenses, including medical, dental, educational, and recreational;
• Property and debt division;
• Insurance, including medical, dental, and life; and
• Income taxes.

As with pre-marital agreements, a separation agreement may be unenforceable if either party failed to make a full disclosure or coerced the other to enter into it. If and when the parties officially file for divorce, the separation agreement’s terms will be incorporated into a settlement agreement.

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Question:
What are parents’ obligations to their children?

Answer:
Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing, and shelter. This duty usually terminates when the child is emancipated, which generally occurs at the age of eighteen, when the child graduates from high school, when the child enters the military, or when the child marries, but the support obligation can extend beyond that point if the child is unable to support himself or herself and would become a public obligation without familial support. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are strict rules about the amount of financial support provided by the non-custodial parent.

In most instances, parents also have the responsibility to provide necessary medical care for their children. If parents refuse life-saving medical treatment for their children, the state may intervene against the parents’ wishes, even if they made their decision on religious grounds.

Parents must also make sure that their children meet school attendance requirements. They do, however, have the right to decide whether the child’s education will be in a public school, a private school, or through home schooling.

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Question:
How does a court decide which parent will get custody of a child?

Answer:
When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests. To make that determination, the court considers:

• The child’s gender;
• The child’s physical and mental health;
• The parents’ physical and mental health;
• The parents’ lifestyles;
• Any history of abuse;
• The emotional bonds between the parent and the child;
• The parent’s ability to give the child guidance;
• The parent’s ability to provide the basic necessities, such as food, shelter, clothing, and medical care;
• The child’s routines, including home, school, community, and religious;
• The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
• If the child is above a certain age, the child’s preference.

In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker. Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded.

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Question:
How is the amount of child support calculated?

Answer:
Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary significantly from state to state, but they are all generally based on the parents’ incomes and expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent’s income that increases as the number of children being supported rises. It is important to remember, however, that the guidelines are just that – guidelines – and they are not fixed amounts that must be applied under any and all circumstances. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or, if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including:

• The child’s standard of living before the parents’ separation or divorce;
• The paying parent’s ability to pay;
• The custodial parent’s needs and income; and
• The needs of the child or children, including educational costs, daycare expenses, and medical expenses, such as for health insurance or special health care needs.

Judges will often review a financial statement completed by each parent that lists all sources and amounts of income and expense before issuing an order. If any of the listed items changes significantly, either parent may go back to court and ask for an increase or decrease in the amount of child support ordered.

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Question:
Once a court issues a child support order, can the amount of support that is paid be changed?

Answer:
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 order 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. Other anticipated changes that can be provided for in the original child support order include a reduction upon the emancipation of each child, an increase when a child enters college, or any other change based on an event that the parties anticipate and that will have an impact on need or ability to pay. The simplest method, of course, is for the parents to agree to a change – but the court must approve even an agreed-upon change in order for it to be enforceable.

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Question:
How is child support collected if the person responsible for paying it moves to another state?

Answer:
Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court in that county can provide information on the proper registration procedure. That court will then move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified downward, and if he or she is successful, the child’s home-state court is stuck with the reduced amount. A newer interstate support act called the Uniform Interstate Family Support Act, which has been adopted in some states, does not allow the court in the new home state to modify the original court’s support order.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will then notify the payer’s new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state’s court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer’s credit report.

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Question:
What happens to a father who refuses to pay court ordered child support?

Answer:
Under the Child Support Enforcement Act of 1984, it is against the law for any father, presumed or assumed, to not pay court ordered child support to the custodial guardian, regardless of joint custody. Federal laws permit the interception of tax refunds to enforce child support orders, and other methods of enforcement include wage attachments, seizure of property, suspension of a business license and possible driver’s license revocation. In the event that none of these attempts are entirely successful, the court of law that issued the child support order can hold the father in contempt and, in the absence of a reasonable explanation for the delinquency, impose a jail term.

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Question:
How can a parent remedy the frustration of visitation rights?

Answer:
A variety of remedies are available to provide relief to the non-custodial parent who has had visitation rights frustrated. The non-custodial parent can commence an action to show cause concerning contempt for violating the court’s order pertinent to visitation. The court also has power to modify support, yet this works a hardship on the welfare of the child and is similarly not favored. Another alternative is to ask the court to require the custodial parent to post a monetary bond, which would be forfeited if the custodial parent frustrates visitation. Usually a history of frustration of visitation is the threshold that must be shown the court, not a sole incident.

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Question:
What is the difference between an agency adoption and an independent adoption?

Answer:
In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without any agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has its advantages and disadvantages. Using an agency can be beneficial, for example, because agencies are in the business of locating children and matching them with parents, and they are familiar with all of the requirements, which can be overwhelming to prospective parents and birth parents alike. In international adoptions, especially, it can be advantageous to have someone who knows the ropes intercede on the prospective parents’ behalf. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. Some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know and “select” each other. Adoptive parents may be able to circumvent an agency’s selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

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Question:
Who can adopt a child?

Answer:
As a general rule, any adult who is determined to be a “fit parent” may adopt a child. Married or unmarried couples may adopt jointly, and unmarried people may adopt a child through a procedure known as a single-parent adoption.

Some states have special requirements for adoptive parents. A few of these require an adoptive parent to be a certain number of years older than the child. For example, California requires adoptive parents to be at least ten years older than the adoptee, while Idaho requires a difference of 15 years. And some states require the adoptive parent to live in the state for a certain length of time before they are allowed to adopt. For instance, an adoptive parent in Georgia must have been a state resident for at least six months, and Minnesota has a one-year residency requirement. You will need to check the laws of your state to see whether any special requirements apply to you. And keep in mind that if you’re adopting through an agency, you may have to meet strict agency requirements in addition to any requirements under state law.

Even if you find no state or agency barriers to adopting a child, remember that some people or couples are likely to have a harder time adopting than others. For example, a single man or a lesbian couple may not legally be prohibited from adopting, but may have a harder time finding a placement than would a married couple. This is because all states look to the “best interests of the child” as their bottom line, and will judge the various characteristics of the parent or couple — often factoring in biases about who makes a good parent — when making a placement determination.

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Question:
I’m single, but I’d like to adopt a child. What special concerns will I face?

Answer:
As a single person, you may have to wait longer for a placement, or be flexible about the child you adopt. Agencies often “reserve” healthy infants and younger children for two-parent families, putting single people at the bottom of their waiting lists. And birthparents themselves often want their children to be placed in a two-parent home.

If you’re a single person wishing to adopt, you should be prepared to make a good case for your fitness as a parent. You can expect questions from case workers about why you haven’t married, how you plan to support and care for the child on your own, what will happen if you do marry and other questions which will put you in the position of defending your status as a single person. To many single adoptive parents, such rigorous screening doesn’t seem fair, but it is commonplace.

Agencies serving children with special needs may be a good option for singles, as such agencies often cast a wider net when considering adoptive parents. While you shouldn’t take a child you’re not comfortable with, being flexible about your options will make the resistance to single-parent adoptions easier to overcome.

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Question:
My long-term partner and I prefer not to get married, but we’d like to adopt a child together. Will we run into trouble?

Answer:
There is no specific prohibition against unmarried couples adopting children (sometimes called a two-parent adoption). Like singles, however, you may find that agencies are biased towards married couples. You may have a longer wait for a child, or you may have to expand your ideas about what kind of child you want.

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Question:
What Is Probate?

Answer:
Probate is a court-supervised process that includes:

• Evaluating and deciding on the validity of your will (if you have one).
• Gathering all of your assets, making an inventory of those assets, and having the assets appraised.
• Paying your outstanding expenses, debts, and taxes. These are generally paid in the following order: costs and expenses involved with the administration of your estate, funeral expenses, debts and taxes, then all other claims, including will distributions.
• Distributing the remaining assets to the person(s) entitled to them.

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Question:
What Assets Are Included In My Probate Estate?

Answer:
The assets that are included in your estate for purposes of probate are called your probate estate. Probate assets include solely owned property as well as your interest in jointly owned property, collections, antiques other miscellaneous household items, including cars, and the value of any life insurance policies, trusts, annuities, and/or retirement plans payable to the estate. The fact that your probate estate is small does not necessarily mean that your taxable estate will be as well. Remember, just because an asset is not part of your probate estate does not mean that it is not part of your taxable estate.

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Question:
Where Does Probate Take Place?

Answer:
Probate takes place in the county that was your legal residence at the time of your death. Probate is a court-supervised process that takes place in Probate (or Surrogate) Court. Out of state property will be subject to proceedings in that state as well.

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Question:
Can Anyone Find Out What I Owned If I Go Through Probate?

Answer:
Probate is a public process. There is little to no privacy regarding the details of your will, your outstanding debts, and the extent of your assets.

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Question:
Do I Need a Lawyer to Draft My Will or Trust

Answer:
While having a lawyer is not required, it is a good idea to consult with an experienced estate planning attorney. Certain formalities must be followed when making a will or drafting a trust. Failure to follow those formalities can cause inconvenience, additional costs or even invalidation of the will or trust. In addition, there are often complex tax issues to consider when designing your estate plan. An experienced estate planning lawyer can help you to sort through these issues and make the right decisions for you, your estate, and your heirs.

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Question:
How Should I Choose an Executor of My Estate?

Answer:
Once your will is validated by the Court, the executor you named in your will is generally required to perform certain duties. You should choose a person (or institution) you trust to handle these responsibilities. Duties of the executor include the following:

• File papers in the local probate court
• Prove the validity of your will
• Provide a list of your property, debts, and the names of those who stand to inherit
• Give proper notice of death by filing the death certificate
• Pay valid creditors
• Pay required taxes
• Notify the Social Security Agency and other important agencies of your death
• Cancel all credit cards, magazine subscriptions and other unnecessary utilities
• Distribute your assets according to your will

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Question:
Who Should Not Be an Executor of My Estate?

Answer:
An executor cannot be a felon or a minor. Your executor must be a citizen of the United States. Some states also require that the executor be a resident of the state. To avoid any perceived conflicts of interest, it is sometimes recommended that your executor not be a beneficiary under your will. Finally, expense is a consideration. Often friends or family members will perform the duties of an executor without charging your estate, an institution will not.

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Question:
How Do I Choose a Guardian For My Children?

Answer:
A guardian should be an adult with similar values and good parenting skills that you trust to raise your children to age 18. Guardians are legally responsible for the physical care, health, education, and welfare of the child or children under their care. The guardian you choose will not be paid for his/her services, nor will he/she be required to meet your child’s financial needs. You should ensure that there are adequate funds available for these needs.

You should talk to the person you propose to name as a guardian to ensure that he/she is willing and able to undertake this responsibility.

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Question:
What Is the Difference Between a Durable Power of Attorney and a Conservatorship/Guardianship?

Answer:
The main difference is your ability to decide who is in control when you are incapacitated.

With a durable power of attorney, you choose the person you want to take over your affairs and act for you. A durable power of attorney grants the person you choose the power to act on your behalf on a range of issues determined by you. The person you choose is called your attorney in fact and he/she does not have to wait for you to be declared incapacitated before he/she can act under the durable power of attorney.

A guardian is charged with caring for both your person and property; a conservator is responsible only for your property and money. A conservator and guardian are both appointed by the Court and these appointments involve a court hearing to determine incapacity. A lawyer is usually appointed by the court to represent and safeguard your interests. The hearing will involve medical and/or mental professionals who will evaluate you and report to the court.

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Question:
What Will Happen If I Die Without a Will?

Answer:
When you die without a will you die intestate. Your estate will go through intestacy proceedings in probate court. The state will then make all the decisions you could have made if you had drafted a will including the following:

• The state will decide who will inherit from you using your state’s intestacy laws.
• The State will decide who should oversee the administration of your estate.
• The state will pay your estate administrator out of your estate’s assets. Often, the person you choose in your will to act as executor will offer to do so for free. In addition, with a will you would have had the chance to waive the requirement that your executor post a bond. The state will likely require the court appointed administrator to post a bond. The bond will be paid for out of the assets in your estate.
• The state will choose the guardian for your children without any input from you.

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