Family Law Fundamentals
Family law encompasses a number of events that make up a legal and family relationship, which means that numerous issues arise out of them such as divorce, child custody, spousal support, adoption and abuse. A legal matter associated with one of these events or subsequent issues often requires help from an experienced family law attorney. Family law attorneys handle matters related to marriage, divorce, post-divorce litigation and disputes, domestic partnerships, child custody, visitation rights, spousal maintenance and support, child support, foster care adoption and emancipation.
Divorce is a stressful event filled with legal complexity. What the dissolution of marriage means for children and to what degree your marital assets will be divided are valid concerns. Other thoughts include: how much will you pay or receive in alimony, will alimony be permanent, what will happen if your spouse refuses to leave the home, will you get to keep the house and is cohabitation an option.
In every divorce, there is some disagreement between the spouses. The more common disagreements involve property and children. When the disagreements become too many or intense, the process becomes contested. After being unable to reach an agreement, a contested divorce is initiated to divide the property, settle child custody issues, visitation, child support and health insurance.
An uncontested divorce is relatively simple. Both spouses agree on all terms related to their break-up. Because of the extreme cooperation involved, the process is cost-effective and relatively quick. In other words, the entire divorce can usually be completed within 60 days .
Because child custody is a primary concern in any divorce, it is crucial that you meet with an experienced family law attorney. He or she will deal with a wide range of Child Custody Cases involving the father’s and mother’s rights, visitation and modification hearings. Your attorney must take the time to become personally familiar with your family psychology, health psychologies, as well as educational, cultural, religious or other spiritual backgrounds, so as to competently represent you in your case.
The primary consideration when solving the problem of the amount of child support is the best interests of a child and his or her education. The next consideration is economic welfare; you don’t want your child’s education hindered by a lack of funds. The final consideration is the financial situation of the parents. That way, your child’s quality of life is not disrupted.
While the dissolution of marriage indicates the end of the legal unit, it does not alter the obligation of spouses to provide for each other. If one spouse is in need, the other is responsible to contribute towards meeting their needs. To this end, a judge might order one spouse to make periodic payments to the other. The request for maintenance can be made in your divorce proceedings or be on a separate motion/docket. When child support is ordered, oftentimes a spousal maintenance request is denied. The rationale behind the denial is the ability of the child support to address the short-term needs of the needy spouse and the justification of both spouses for their standard of living during the marriage.
Divorce Process Legal Questions
When you begin the divorce process, you likely have questions about how the process works. Here’s an overview of some of the basic information you might want to know.
Does an attorney have to be involved in the divorce process? While it is not required that you hire an attorney, it is strongly advised that you do so. Divorces are held in family or circuit courts. Divorce proceedings require you to file legal documents and make legal arguments. If you don’t have someone with legal knowledge helping you navigate the process, you are setting yourself up for a lot of unnecessary obstacles. The biggest reason to hire an attorney is that, as is standard with all legal procedures, the law is always subject to frequent and significant change. An attorney who practices family law, i.e., divorce, child custody, child support and property distribution, will be familiar with the many new laws, amendments and court rules that occur on a regular basis. You want to make absolutely certain that your legal case is handled correctly and in compliance with the law. An attorney is also thoroughly familiar with local practices at each individual court you may be dealing with. Again, this can come in handy. Your attorney will also ensure that all procedures are followed and that your interests are protected.
How long does the process take? Divorces are guaranteed to take time. If you and your spouse agree on everything, from the division of assets to child custody arrangements, the divorce may just take a few months. However, if you and your spouse disagree on even a single issue, it can take years to finalize your divorce. With a contested divorce, many factors can affect the length of time it will take to complete the process. The length of the process is typically determined by the issues between you and your spouse. Some of the most common factors include: • Division of marital property: Most divorces involve some kind of division of property. Even amicable divorces can have this be a source of contention. Particularly contentious divorces can go on for years. • Spousal support: Similarly to property division issues, disagreements regarding spousal support can prolong a divorce. • Custody arrangements: Custody is one of the most frequent disagreements in a divorce, particularly if there are shared children. Disagreements regarding visitation, child support and other factors can drag a divorce on for years.
Children’s Rights Regarding Divorce
In cases involving children, the family law lawyers at Freese & Gann keep their focus and energy on the well-being and future of our clients’ children. In this section we will give you a series of questions that our clients ask with a short answer as a guide for a deeper discussion.
- The difference between physical and legal custody: Massachusetts law classifies child custody in two categories. Physical custody refers to where the child lives and who is physically responsible for the care of the child. Legal custody refers to the right and responsibility to make decisions for the child. Until a court judge issues a decision, both parents have equal rights of physical and legal custody.
- Parenting Plans: The Massachusetts courts have a strong preference for the development of a written parenting plan that addresses custody, parenting time, child support, and other issues. As is the case most of the time, people retain an attorney to develop the plan or to review the plan for requested clarity and completeness. The Parenting Plan address:
- The factors a court will look at in deciding issues related to your children: The best interests of the child is the one (and only) standard that a judge will use to make decisions related to children. In making this determination the judge will consider all relevant factors including but not limited to:
- Court decisions on parenting plans and child support: Even at the trial level, a judge has limited discretion in each of these areas. A clear court commitment to predictive factors and guidelines help result in consistency from court to court and judge to judge.
Spousal Support Legal Inquiry
Not content with negotiating the division of assets and debts, many clients want to fast forward right to the financial aspect of divorce: alimony or spousal support. What is it? What is it based on? How is it calculated? For how long will I receive it? For how long will I pay it? Is it tax deductible? The questions seem never ending.
Generally speaking, support is not as much an issue as it once was. In 1990, the amount of support ordered in Massachusetts was 43% of gross income while in 2009 it was down to 30%. And, as might be expected in this time of high unemployment rates, the average duration of guidelines support in Massachusetts in 2009 was 75 months. That is 6 years and 3 months.
Alimony is a payment made by one spouse to the other during a marriage in order to provide the support necessary to allow the supported spouse to maintain the same standard of living enjoyed during the marriage. The purpose of alimony is to assist the less monied spouse who may be at economic disadvantage at the time of dissolution of the marriage in making the transition from married life to single life. Generally, alimony goes away when the recipient gets remarried or the payor dies but not if the payor dies. A change of circumstances may be used as an argument to seek an increase, decrease or termination of the order.
There are many factors considered in determining support including: the length of the marriage; the conduct of the parties during the marriage; each party’s present and future needs; the health of the parties; the sources of income of the parties; the employability of the parties; the standard of living during the marriage; the age of the parties; and the property awards, tax implications and liabilities.
In addition to the statutory factors mentioned above, there are a number of deviation factors set out in the Child Support Guidelines: tax consequences; keeping the marital home to facilitate care for children; financial impact of parenting plans on alimony; amount a party could earn by employment full time; order would result in public assistance; report of a family service officer; medical, job training or education expenses to minimize the need for public assistance; alimony received by a recipient spouse having a positive impact on an order of child support and parenting support; any other factor the Probate and Family Court deems relevant and appropriate.
There are mulitple ways to determine support like the percentage share model, the income shares model, and the needs model. The more assets the parties have the less they rely on these formulas but they are useful nonetheless.
The percentage share model uses the combined incomes of the parties and determines a combined support obligation as a percentage of that income based upon averages for various numbers of children. The shortfall is split by the parties based upon their proportional earnings and their actual incomes.
The income shares model determines child support by estimating the amount of money individual parents would have spent on children if they were still living together.
The needs model is an estimate of the basic needs of children based upon the number of children and the income available to meet those needs. This may also consider a child’s interests in remaining in the lifestyle that child would have enjoyed had the parents not divorced.
Another way to calculate support is the Smart formula, which was developed by a branch of the American Psychological Association. It creates a "child sharing incentive scale" based upon income that takes into account items such as child care costs and disposable income and rewards parents for sharing time with their children.
The effects of different child support calculations can be huge. Imagine, husband earns $70,000, wife stays home with 2 children. Under the 2009 Massachusetts support guidelines, husband would pay $1,700 per month until the children are 18. Wife works and earns $32,000 – that number drops to $940 per month. Now husband gets a new job at $150,000. Under the 2009 Massachusetts guidelines, his payment of $2,850 per month ends when Branch A turns 23. If Branch A and Branch B had entered kindergarten when husband got his new job, his payment would be $4,100 under the same circumstances. This benefit to the recipient parent may be a disincentive for the recipient to work and earn more than their support amount.
So the next time you have another bruise on your bottom from that round of negotiations, take heart. Dealing with asset issues might be painful but negotiating a support amount will never bring you the same level of discomfort.
Child Support Legal Questions
The court considers many factors when determining issues of child custody, property division, and child support. This blog provides a closer look at the issues of child support.
In most cases, child support is ordered pursuant to a child support guidelines worksheet (Rule 505), which has been designed to take some of the discretion out of the judge’s hands by equating the amount of child support to the income and cost of raising children. While the actual amounts fluctuate based on how many overnights the child spends with each parent during a year, the basic calculation lays out the child support obligations based on the following categories: obligor’s (the parent paying support) gross income , each parent’s tax filing status, the number of children, childcare costs, health insurance and work-related child care costs, as well as income producing assets. The worksheet may seem fairly easy to fill out; however, it can become very complicated very quickly, particularly if either party owns a closely held company. Other issues such as who contributes to the payment of the children’s medical expenses, what happens when a child has special needs, or how income is calculated for a parent who is unemployed or under-employed are important to consider in many cases, and require an experienced lawyer to ensure your rights are protected.
Legal Consultation on Adoption
When considering adoption, a common set of legal questions arise, including:
1. What is adoption?
In simple terms, adoption is the process through which an adult assumes all parental rights associated with a child who is not related to him or her. The new parent becomes not only the legal guardian, but also the social parent to the child.
2. What types of adoption are available in New Jersey?
In New Jersey, there are private, direct adoption (also known as agency adoption), step-parent adoption, kinship (relative) adoption, and surrogate adoption. Private and step-parent adoption are more common. Kinship and surrogate are less common, but are relevant in certain circumstances.
3. How much time does adoption take in New Jersey?
It depends on the type of adoption. Step-parent adoption is the quickest. In a step-parent adoption, a spouse assumes the position of a parent to a child as part of a marriage between herself and her new spouse. Step-parent adoption is almost always consent-based, so the process can move very quickly if all is in order. The New Jersey Division of Child Protection & Permanency already approved the marriage and the spouse to be an appropriate parent. However, the process can be slower when the Division is involved. The Division will need to confirm with the parent that it is in the child’s best interests to be adopted by the spouse.
Private, direct, and agency adoptions may take longer. Many agencies will suggest that the would-be parent(s) wait 9-12 months before finalizing the adoption. Again, the time frame may be longer if the Division is involved.
The Division is involved in Kinship and Surrogate adoptions. In these cases, the adoption process could take years. The Division will be responsible for assessing the Adopter(s) to ensure that the adoption is in the child’s best interests. The Division alternatively has the authority to object to the adoption.
4. What is the best way to get started with the adoption process?
The best way to get started is to speak with an experienced New Jersey Family Law Attorney. A knowledgeable lawyer will review the potential for your adoption and then talk with you about the right path forward. Additionally, a qualified family lawyer will help you each step of the way through the adoption process.
Legal Issues About Domestic Violence
Family law is responsible for cases of domestic violence, including the process of obtaining a protective order against an abuser or any other situation in which physical restraint by the abuser is required. Protective orders are not always successful in safeguarding the victim, but they are legally enforceable if the offender violates the order by failing to stay away from the victim. Other issues addressed by family law include support payments for one partner to the other when there is an instance of domestic violence, emergency assistance in seizing control of shared property, and potential division of common property, home, bank account, etc .
On demand, a local family lawyer can provide legal counsel during restraining order hearings in favor of the victim, or even against the victim in case of false accusation. After the issuance of the protection order, the victim’s lawyer can also help enforce its provisions in case of violations. A family lawyer can also help if the offender seeks modification or dissolution of a protection order.