Family Law FAQ

Family Law FAQ

 

Who May Become an Adoptive Parent?

Any adult or minor child may be adopted as long as the individual is free to be adopted. An individual is considered free to be adopted if the statutory consent requirements have been satisfied. Generally, consent is required from the child (if over 12), the biological parents (if living, or surrendering parental rights of one or both parents may be required) and the guardian (if there is one).

  • Adoption has become increasingly more common for gays and lesbians. This may be as a single parent or as a couple. Almost all states permit homosexual parents (gay or lesbian) to adopt. Although the law differs regarding adoption by homosexual/gay/lesbian parents from state to state, generally, the role of adoption is to give as many children good homes as possible and many courts uphold this goal.
  • Generally, there is no law against a single person (heterosexual or homosexual) adopting another individual. However, if the adoptive parent is married (and not the legal parent of the adoptee), some jurisdictions may require the spouses to file a joint adoptive petition.
  • An adult may adopt another adult or emancipated minor if the adoptee is not his or her spouse. The purpose of an adult adoption is to make the adoptee the adoptive parents’ heir at law. Some states have specific statutory requirements for adult adoptions and generally, the courts will look at the presence of a parent-child relationship before approving the adoption.
  • A stepparent may petition to adopt a child if the stepparent’s spouse has sole custody of the child, or has joint legal custody of the child. Consent to the adoption is required by the stepchild (if 12 or over), the child’s biological parents or the child’s legal guardian.
  • A grandparent may also adopt his or her grandchild. Grandparents are legally capable to adopt; however, there may be some special concerns for the court to consider. Some concerns are life expectancy or age of the grandparent, health concerns and the state law that would govern. Some states have statutes regarding grandparents as adoptive parents.

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What is the difference between closed and open adoptions?

  • Traditionally, closed adoptions were the standard type of adoption. In a closed adoption, the birth parents do not choose the adoptive parents. Nor do they have any contact with them. After the adoption has taken place, there is no contact between the birth parents and the adoptive parents, such as photos, updates or meetings. The adoption is usually handled by an agency and the birth parents records are sealed. In the past, this meant total secrecy. However, due to lack of access to medical records, more information may be shared with the adoptee and the adoptive parents. The amount of information shared depends on the wishes of the birth parents, adoptive parents and the state laws regarding closed adoption.
  • Recently, open adoptions have been used more frequently. Open adoptions can range from sharing the names and contact information of birth parents and adoptive parents to a meeting between the parents. There are also open adoptions where the birth parents select the adoptive parents based on their information or even interviews. Additionally, the birth and adoptive parents may create an agreement to lay out the rights of the parents, amount/type of communication before the birth and any contact after the birth. In an open adoption, there may also be agreements regarding post adoption rights for the birth parents, visitation and grandparent visitation.

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

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 the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, 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 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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Under what circumstances will the court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court will usually award alimony, at least temporarily.

Historically, spousal support or maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded spousal support (alimony) if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete child-rearing responsibilities, after which time he or she can be self-sufficient. Many factors are considered in deciding whether to award spousal suppor, the amount to be awarded and the duration. The factors include but are not limited to age, health, education, ability, length of marriage and availability of work. Quality representation as offered through our office will stack the odds of an appropriate support order being in your favor.

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How is the amount of child support calculated?

Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents’ incomes, 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. The purpose of guidelines is to aid the judge in determining child support amounts. 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 income
  • The custodial parent’s income
  • The earning ability and availability of work of the respective parties, in event the actual income is not an appropriate measure of the parent’s income
  • The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)

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

The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will have the opportunity to presents the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent’s income, a marriage/remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws may also justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.

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

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 will 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, and if he or she is successful, the child’s home-state court may be stuck with the reduced amount.

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 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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What are parents’ obligations to their children?

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, 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 him or herself. 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 laws specifying the amount of financial support the non-custodial parent must provide.

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

When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child’s best interests, the court may consider may factors, including

  • The child’s age
  • The child’s gender
  • The child’s physical and mental health
  • The parents’ physical and mental health
  • The parents’ lifestyles
  • Any history of abuse or neglect
  • 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
  • If the child is sufficiently mature and expressive, the child’s preference
  • Who has been the child’s primary caretaker

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What is the legal divorce process like?

Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.

  • One spouse contacts a lawyer, who prepares a formal Petition for Dissolution (or Legal Separation) setting forth the reasons for the divorce.
  • The Petition is filed (by the Petitioner) with the court and served on the other spouse, together with a summons that requires the spouse’s response.
  • The served spouse (Respondent) must file a formal written Response within the time limit prescribed. If no Response is filed within the allowed time, the Petitioner can take steps to cut off the Respondent’s ability to file their Response. This may result in the Petitioner being granted the requested relief. The Response Respondent requests.
  • The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to disclosing and deciding the issues in the divorce such as property division, spousal support, child support, etc.
  • The parties may attempt to reach a settlement, which 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 is submitted to the court.
  • If the judge approves the agreement, the Judge may approve the agreement and grant the Judgment of Dissolution of Marriage or Legal Separation. If there is no Agreement a trial can be requested.
  • At trial, the attorneys present the evidence and arguments for their respective sides; the judge decides the issues and grants the divorce. Very technical rules of evidence apply whether the party represents him/herself or engages counsel.
  • Either or both parties can appeal the judge’s decision to a higher court. However, the general rule is that the Judgment will be upheld unless there is a legal error or there is hardly any evidence to support the decision. There is a presumption in favor of upholding the decision of the trial court, so it is critical that one’s best case is presented to the trial court.

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What kinds of assets are divided in a divorce?

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. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.

The value of intangible property may also be 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.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party’s lawyer may help with this issue through discovery, During discovery the parties’ attorneys’ trade documents that disclose each party’s income, assets and liabilities. 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.

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What terms should be included in a separation agreement?

A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members’ needs will be met.

The terms of such separation agreements vary, but the following items are usually addressed:

  • The spouses’ right to live separately
  • Custody of the children
  • A visitation schedule
  • Child support
  • Alimony or spousal support
  • The children’s expenses (medical, dental, educational and recreational)
  • Property and debt division
  • Insurance (medical, dental and life)
  • Income taxes

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Learn More: Family Law

The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, child support, domestic violence and other family law matters. Family law has become entangled in national debates over family structure, gender bias and morality. Few legal areas are as emotionally charged as family law and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.

The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse’s contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-supporting.

Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children’s rights and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.

Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.