Many legal issues may arise between a husband and wife under family law. These may include:
Divorce
Divorce laws vary by state. Grounds for divorce can range from “fault-based” reasons, such as adultery, desertion, or cruelty, to “no-fault” reasons, such as irreconcilable differences or separation for a specified length of time. Procedures often require filing a petition for divorce in court and serving notice to the other spouse.
The divorce terms will depend on agreements between the parties and/or court orders regarding property division, child custody, child support, and alimony.
Property Division
In a divorce or separation, marital assets and debts must be divided. In “community property” states, all marital property is typically divided equally. In “equitable distribution” states, property is divided in a manner that is considered fair but not necessarily equal. The complexity arises when determining what is considered marital property, valuing assets, and handling debts.
Alimony or Spousal Support
This is a payment that one spouse may be required to make to the other after divorce or separation. Factors influencing alimony include the length of the marriage, each spouse’s financial and non-financial contributions to the marriage, their respective incomes and future earning potentials, and the receiving spouse’s need for support.
Child Custody and Visitation
Courts typically favor arrangements that keep both parents involved in the child’s life unless it is in the child’s best interest to do otherwise. Legal custody involves decision-making rights about the child’s upbringing, while physical custody pertains to where the child lives. Visitation rights allow the non-custodial parent to spend time with the child.
Child Support
The non-custodial parent is often required to make payments to the custodial parent to assist with child-raising costs. Factors affecting child support amounts may include the parents’ incomes, the number of children, and the time each parent spends with the children.
Domestic Violence
Family law courts handle cases involving domestic violence, which may affect divorce, custody, and visitation decisions. A victim can seek a protective order, which can restrict the perpetrator’s actions. Domestic violence charges can significantly impact a party’s case, particularly in child custody matters. It is a serious issue that courts do not take lightly.
Divorce
Husband and wife privileges are legal protections that apply in the context of marriage. These may include:
Spousal Privilege or Marital Privilege
This legal principle protects the sanctity of marriage by exempting spouses from testifying against each other in court. There are two types of spousal privilege: testimonial privilege and communications privilege. The former allows a spouse to refuse to testify against the other in criminal cases, while the latter protects confidential communication between spouses during the marriage, even if they later divorce.
These privileges can be waived, and they may not apply in certain cases, such as those involving spousal abuse or when one spouse sues the other.
Equitable Distribution or Community Property
This relates to how marital property is divided upon divorce. In “community property” jurisdictions (like California or Texas), all assets and debts acquired during the marriage are generally divided equally. In “equitable distribution” jurisdictions, assets and debts are divided in a manner that the court deems fair, which might not result in an equal split.
Factors considered in equitable distribution can include:
- Each spouse’s earning potential;
- The length of the marriage;
- The health of each spouse;
- The contribution of each spouse to the acquisition of marital property.
Child Custody and Visitation
These are key issues determined during a divorce proceeding. “Custody” refers to a parent’s legal and physical responsibility for a child. Legal custody involves the right to make decisions about a child’s upbringing, education, health care, and religious instruction. Physical custody refers to where the child lives on a daily basis.
Courts typically favor arrangements that allow both parents to share these responsibilities, but the child’s best interests always take precedence. “Visitation” refers to the noncustodial parent’s right to spend time with the child. The schedule can be detailed and specific or open-ended, depending on the circumstances.
Enforcement of Decrees
Court decrees in family law cases, like divorce decrees or child custody orders, are legally binding. If a party fails to comply, there are several ways these decrees can be enforced:
- Contempt of Court: If one party fails to comply with the court’s orders, the other party can file a motion for contempt. If the court finds the offending party in contempt, penalties can range from fines to jail time.
- Wage Garnishment: For failure to pay financial obligations like alimony or child support, the court can order that payments be directly deducted from the debtor’s wages.
- Property Liens: Courts can place a lien on the debtor’s property. If the property is sold, the proceeds would first go toward paying off the debt.
- Law Enforcement: In cases where visitation rights or custody orders are violated, law enforcement can be called upon to enforce the court’s decree.
Prenuptial Agreements
A prenuptial agreement, also known as a “premarital agreement” or “prenup,” is a legally binding contract entered into by a couple before they get married or enter into a civil partnership. This agreement typically outlines how assets, debts, and other financial matters would be divided between the parties in the event of a divorce, separation, or death.
Prenuptial agreements often cover:
- Division of property;
- Financial rights and obligations of each party;
- The right to seek alimony;
- Any other matters, including personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
While prenuptial agreements primarily deal with financial matters, they cannot resolve issues of child custody or child support in advance, as such decisions must be based on the circumstances at the time of the divorce and the best interests of the child.
Prenuptial agreements are sometimes referred to as “marital property agreements” as they often detail how marital property will be divided. However, a marital property agreement can also refer to agreements made during the marriage (postnuptial agreements), not just before.
Separations
Legal separation allows a couple to live apart while remaining legally married. It is often used when couples want to separate but have religious, moral, or financial reasons for not divorcing. A legal separation agreement can set out the terms of the separation, including issues such as property division, child custody, and spousal support.
Spousal Support or Alimony
Spousal support, or alimony, refers to payments made by one spouse to the other during or after a divorce. It is intended to prevent economic hardship on the part of the lower-earning spouse who might have been financially dependent on the other during the marriage.
In the context of alimony, the fiduciary duty of a husband and wife generally means that both parties have an obligation to act in good faith and in the best interest of the other when dealing with financial and property matters. This includes full financial disclosure during divorce proceedings and the negotiation of alimony. Violation of this fiduciary duty could lead to penalties.
Should I Contact a Family Law Attorney?
Family law issues, including prenuptial agreements, separations, and spousal support, can be complex and emotionally charged. Each situation is unique, and laws can vary widely depending on your location.
As such, it’s highly recommended that you consult with an experienced family lawyer who can guide you through the process, help protect your interests, and assist in achieving the best possible outcome in your case.
If you’re in need of a family lawyer, consider using LegalMatch. LegalMatch is an online service that matches your case with pre-screened, well-qualified lawyers in your local area. All you need to do is present your case on the LegalMatch website, and you’ll be matched with an attorney who is experienced in handling your specific legal issue. Using LegalMatch can take the guesswork out of finding the right attorney for your needs.
