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Frequently Asked Questions About Family Law
Q: What is the legal definition of marriage?
A: Most states define marriage as a civil contract between a man and a woman to become husband and wife. The standard way to marry is to get a marriage license from a state-authorized official and participate in a formal civil or religious wedding ceremony. While most states will not issue marriage licenses to same-sex couples, the laws regarding same-sex marriage continue to evolve. Contact an attorney to learn more about the marriage laws in your state.
Q: What are the legal effects of marriage?
A: There are many federal and state laws that benefit married couples. Some examples include the right to file joint income tax returns, create a family limited partnership (FLP) under federal tax laws, create a marital life estate trust, receive survivor benefits, receive a share of your deceased spouse's estate under intestate succession laws and claim the estate tax marital deduction.
Q: What is a legal divorce?
A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce will give each person the legal right to marry someone else, legally divide the couple's assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards.
Q: What is a no-fault divorce?
A: Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse and the spouse who engaged in the misconduct was punished by receiving a smaller share of the marital property or by being denied custody of his or her children. In a no-fault divorce, however, both parties agree that there is no fault involved in the grounds for divorce. In fact, in no-fault divorce, any misconduct is irrelevant to the divorce proceedings, and a marriage can be terminated simply because the couples agree that the marriage is no longer salvageable.
Q: What is a fault-based divorce?
A: A fault-based divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for a fault-based divorce vary by state but typically include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.
Q: When parents can't reach an agreement on custody, what standards do courts use to decide with whom the children should live?
A: When parents cannot reach an agreement regarding child custody, most courts try to decide custody based upon an analysis of what arrangement is in the best interests of the child. While statutes and standards differ from state to state, a best interests determination is usually reached by reviewing the parents' wishes, the mental and physical health of the parents, any history of domestic abuse, the child's age and attachment to the parent who has been the primary caretaker, and the child's wishes.
Q: What impact should a child's age have on custody and visitation scheduling?
A: Development experts generally agree that children of different ages have different needs regarding visitation scheduling. Experts generally recommend a visitation schedule based on a child's age, which may need adjustment for parents with either outstanding or limited parenting skills. When parents enter into a shared parenting arrangement, a different schedule may be used.
Q: Can I terminate visitation if I am not being paid the support I am owed?
A: No. Tempting as it may be to tie visitation to child support payments, they are separate considerations. In most, if not all, jurisdictions the right to visitation is never conditional on payment of child support. However, the payment of child support can be conditional (to a limited degree) on access to visitation.
Q: How is child support determined?
A: Each state has child support guidelines in place that are used as the foundation for determining the amount of child support. While child support guidelines vary from state to state, courts setting child support orders will generally follow the amount suggested by the guidelines unless a reason to depart from them exists. Most guidelines consider the needs of the child, the relative abilities of the parents to pay support, and the standard of living the child would have had but for the divorce.
Q: Can I get child support if I never married my child's other parent?
A: Yes. Both of a child's biological parents owe that child a duty of financial support. You can work with a family law attorney and your state's child support enforcement office to obtain a support order. If you are a mother and your child's paternity has never been established, you may need to initiate a paternity proceeding and establish paternity before a support order can be entered.
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