The Basics of Family Law
Family law is a specific area of the law that deals with domestic relations and family-related matters. These issues can include divorce, child custody, adoption, alimony, division of assets in a divorce, spousal support, and even minor guardianships. Divorce is a common issue that falls under family law, given that 50% of all marriages in the United States will end in divorce. Child support also has a lot of diverse factors, from the obligor’s income to the needs of the child to how visitation will be determined .
Custody issues are another major component of family law since the goal is always to protect children and their interests in what is usually an emotionally trying time. Adoption is another part of family law that many people don’t realize is so extensive. In the US, there are over 400,000 kids currently in the foster care system, with about a quarter of them being eligible for adoption. There is also family law involved in remarriage and even paternity testing and issues, especially when they involve another state. Since these family law situations can be complicated and vary from state to state, it is always recommended to seek guidance from a family law attorney.
Responsibilities for Family Law Attorneys
A family law attorney has a variety of responsibilities that keep them busy with each individual case that comes through their door. Every case should start with a consultation to get as much information from each side as possible. This is the perfect time for the client to be up front with their lawyer about all circumstances, and any question they have in mind. The first meeting is when a family law attorney will establish if there is a case worth going forward with, or if you should just walk away from the table and each go your separate way. Once the case is established, the lawyer will move on to gathering more information through depositions, affidavits, or any other legal process. Having a set of rules that keeps each person in the case up to date is important for a smooth resolution.
Family law attorneys help clients properly file all paperwork and legal documents. They will be available at any time to answer questions if something goes wrong or they are needed to help negotiate a deal. When a case goes to trial, the family law attorney will stand in for the client, so a good representation of the individual is necessary. Having documentation of all relationships, assets, and property is necessary for a family law attorney to be able to obtain a settlement that works for both sides of the party.
Family law attorneys help to resolve many different types of legal disputes, ranging from divorce to child support. The client will usually go through marriage counseling before a divorce is established to make sure it’s necessary and to help them but that’s not always the case. A family law attorney will be there throughout the whole process to help with the issues that are causing problems within the marriage. After the divorce is filed, it’s up to the family law attorneys to negotiate everything from alimony to child custody, making sure what agreement is reached satisfies both parties without resulting in a negative outcome for anyone involved.
Family law attorneys can also help with adoption cases. They will be able to make sure everything is filed properly, and that each document is complete and accurate, so there is no concern about an adoption being reversed after it’s finalized. Adoptions can be complex cases that can become quite complicated. A family law attorney can help to make the steps of adoption as seamless as possible, so the only concern of the parents is waiting on the children to arrive at their new home. It’s necessary for the lawyer to be able to help with local, state, and federal laws regarding adoption.
Other areas that a family law attorney will help with include property settlement, visitation, and separation. One of the biggest problems during a divorce is the possibility of losing the family home. Having a good family law attorney means getting accurate advice and help in keeping the home after a divorce. Visitation and custody can be a problem after a breakup. A lawyer can help to resolve conflicts and can make suggestions to the parties about how visitation should be handled in their case. Separation is another area a lawyer can help with. The family law attorney will be able to help talk the parties through the process of separating and how to divide things up in a manner that works for both people.
The Divorce Process
The primary focus of a family law attorney is to represent those who are divorcing their spouse. The attorney can converse and deal with the soon-to-be ex-spouse on your behalf. When children are involved, this is a very touchy subject that has to be handled by the lawyer. Doing so helps you to maintain your sanity as the divorce proceedings continue. During a divorce or legal separation proceeding, the attorney will be tasked with dividing the marital assets and income. This will also include calculation of spousal support payments, property values, debts, and more. Properly representing clients requires aggressive negotiation and litigation as needed by the circumstances of the case at hand. Family Law Attorneys are well-versed in court proceedings as well as California divorce law.
Child Support and Custody
Child Custody and Support are two of the most important issues to be addressed in a family law trial. As a result, they are also two very relevant concepts to discuss with one’s Family Lawyer in the weeks and months leading to litigation. In many cases where parents are separating or where one parent is seeking a divorce from a spouse who is also the parent of the children at issue, the main concerns of each parent are child custody and support.
The first step in child custody is to determine custody. In South Carolina, this is largely a legal issue that rests with the court. Issues of custody and even visitation are ultimately resolved by applying the "best interest of the child" standard. Specifically, the law in South Carolina holds that the "best interest of the child" means what will best promote the welfare and happiness of the child. What is best for a child may vary, however, among the parents. Given that family law cases are heard by the Court without a jury, the family court has broad discretion to resolve child custody disputes.
Mom and Dad both want custody of the kids and have objectively high quality parenting skills. We are not talking about outlier instances where the abuse or neglect of a child is an issue. Unfortunately, in order to make a decision based on the best interest of the child, incontrovertible evidence must be presented to the court. Rarely, is there a clear-cut solution that suggests one parent is better than the other. This is especially true in family law cases where, for instance, the child is a teenager and has developed a strong opinion about living with mom or dad.
Joint Physical Custody refers to when both parents share the physical care and custody of the child. Often, joint physical custody is divided in some way, so that the child spends a period of time with one parent and then another period of time with the other. There is no formula for dividing custodial time among the parents. One week on and one week off with a parent may work in certain circumstances. Ten days with one parent and four days with another may be workable in other circumstances. What judges see over and over again, however, is where one physical custodian has a more substantial presence in the child’s life.
This leads to one parent being "more equal" in terms of material things. Mom buys the child clothing and shoes. Dad buys toys or provides additional items that may be more expensive. Inevitably, one parent is awarded primary care or joint physical custody in a larger sense. In these cases, the primary custodian can provide a better home environment and support system for the child. If programing and family events are not equally divided, the primary custodial parent is more often able to provide a stable family environment.
In the end, for child custody and visitation awards, the parent who can provide the best environment for a child is usually awarded child custody. In South Carolina, a child’s request to live with a certain parent is not dispositive of custody issues. Child custody is about what is best for the child and not simply what the child wants. A child almost always wants to live with the parent who is most in tune with the child. Often, that parent is the one with a more stable home life.
Domestic Violence and Orders of Protection
Domestic violence can occur on the heels of serious criminal actions, or where no crime has taken place at all. It doesn’t matter; in New Jersey, domestic violence is taken seriously in the courts. Some people mistakenly believe that only a judge can issue a domestic violence restraining order. Suffice it to say that does not appear to be the case. A police officer is empowered to seek temporary and emergent relief, which includes issuance of a TRO (Temporary Restraining Order) upon the filing of a domestic violence complaint so long as there is an allegation of domestic violence. Notwithstanding this police officer authority, the judge has the final determination as to issuance of the TRO. Once issued, a final Restraining Order (FRO) can only be obtained through a trial in front of a Superior Court Judge, who will be tasked with deciding whether or not to grant the request for a permanent restraining order. In other words, the court will decide if a "final restraining order" (FRO) is required as a matter of law.
Family law attorneys play a vital role in protecting clients subject to domestic violence situations. An effective family law attorney will immediately work toward obtaining a temporary restraining order followed by a final restraining order. Because there is a requirement of a final hearing in front of a judge, an experienced family law attorney will file the appropriate documents with the Superior Court to schedule a hearing as soon as possible after the temporary restraining order (TRO) is issued. At this time, the assigned Judge will make a determination as to whether or not to grant a final restraining order (FRO). Since violence is common in many domestic situations, these hearings should not be delayed. Experienced family law attorneys have a wealth of experience dealing with these situations and should be retained as soon as possible. Do not wait until the police show up at your door. Set up a consultation today.
Guardianship and Adoption
A family law attorney can also assist in the adoption of children or to obtain guardianship of an adult. Adoption is a legal process wherein all of the rights of the natural parents are forfeited and transferred to the adopting parties just as if the adopted child had been born to them. An adoption can be accomplished by prior written consent of the natural parents or by termination of the parental rights completed in a separate legal action. The latter circumstance arises whenever the whereabouts of the natural parents are unknown, or when both parents are deceased, or when the natural parents have abandoned the child, or when so doing would be in the best interests of the child. Adoption procedure includes obtaining a "home study" performed by a qualified agency , or a "home study waiver" if that process has already been done by the maternal grandfather of a newborn child. Verifying the accuracy of the reported results is one of the responsibilities of the attorney in this situation. Guardianship may involve the parents named in a will (testamentary guardians) or court appointment of a successor (interim) guardian for a minor child (or children). At the time of death of a minor child’s parents, an adult generally inherits the estate unless directions for the management of the property were outlined in a Will. However, it is usually not in the best interests of the minor child to control his/her property until age 18. Thus, the appointment of a guardian, who is responsible to wisely manage and invest the property of the minor child, is often accomplished.
Mediation and Alternative Resolution
Mediation and alternative dispute resolution, or ADR, are formal methods of resolving family law matters outside of court. A neutral third party, with the parties’ consent, acts as a mediator, gathering information, discussing interest and concerns, and drafting an agreed-upon resolution to a legal problem. Mediators do not give legal opinions or render judgments; their sole purpose is facilitating the exchange of information. The mediator remains a third party and does not advise or advocate for either party.
Neither party is obligated to use the services of the other’s attorney, but both can benefit from the counsel of their respective attorneys. More importantly, both parties should be represented by an attorney in non-judicial settlement discussions, including mediation, to avoid adverse tax consequences and other unforeseen legal implications.
A less formal ADR tool is a "settlement conference." In a settlement conference, the parties informally present to the other’s attorney their negotiating positions. The attorneys then return to their client’s law offices to discuss the merits of the negotiated offers, as well as the risks and benefits of accepting a settlement, as opposed to going to trial. The attorneys return with their evaluations and advice to their client. The client then decides whether or not to accept the settlement offer. While many parties prefer to have their settlement issues handled informally between their attorneys, such an option is usually only available to those households with known or readily calculable sources of income or assets. An ADR service agreement is typically entered into, clearly delineating the duties of the parties and their attorneys. Costs are usually split equally among the parties.
The more formal methods of ADR include binding arbitration and private judging. Binding arbitration is a little like private judging, except there is no opportunity to appeal or object to the decision. The arbitrator is not merely a facilitator, but the ultimate decision-maker. Private judging is much like the traditional judicial system, except the parties, rather than the state or county, bears the entire cost of the system. Private judges are paid by the hour, just as attorneys are. The judge accepts the case and gives his or her decision in a binding, court-enforced written opinion.
Your Family Law Attorney
When considering hiring a family law attorney, look for someone who has successfully represented cases similar to yours and is familiar with the rules and procedures of the courts in your area. In addition to experience, consider what types of cases the attorney typically handles. Some attorneys focus specifically in areas such as child custody, divorce, paternity, substantiation, child protection issues, child support, spousal maintenance, property division, adoption or juvenile law. Selecting an attorney who specializes in the area of family law that pertains to your needs will yield optimal results.
Working closely with your attorney is essential for a productive outcome of your case. Prior to meeting with an attorney for the first time, consider what questions you have regarding the process, and note the specific issues and concerns you want to resolve. The relationship you build with your family law attorney can alter the outcome of your case. As the attorney-client relationship is based on trust and collaboration, it is important to find an attorney who you feel comfortable working with.
Conclusion: The Importance of a Professional
The world of family law encompasses a broad range of issues, from presiding over divorces and child custody arrangements to reviewing the legitimacy of property claims and helping parents devise innovative child support approaches. The only thing these cases really have in common is that they rarely involve easy solutions. Unfortunately, all this means for individuals facing legal dilemmas of this nature is that the stakes could not be higher , which in turn makes it critical that they have access to the legal specialist who best meets their needs. Having a trusted advisor in your corner can mean the difference between a swift, uncomplicated case and an indefinite stretch of stressful legal wrangling. Professionals like these focus entirely on family law, keeping abreast of its latest developments and armed with the knowledge necessary to unravel even the most complex legal scenarios. When it comes to the protection of valuable assets and highly sensitive personal affairs, these lawyers make for critical allies.
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