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We invite you to visit our most recent articles, Parenting After Divorce and Shared Custody Beyond Divorce.

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Consultwebs.com does not provide legal advice.  Our goal is to provide legal resources for consumers and attorneys.  In issues of Family Law, generalized statements must be verified against the laws of the state of residence.  Divorce law is local law with consideration of specific federal guidelines in particular cases.

Separation

Some states allow for, or even require, legal separation agreements. Florida, for example, does not have legal separations, however, Florida allows you to file for support unconnected with a divorce.

Filing for divorce

Different states have different requirements for filing for divorce.  Some states may require a certain period of separation; still others have different legal definitions for length of time, separate households, etc.  Some states do not even require residency within that state before filing for a divorce.  All require a reason for the divorce or grounds for the complaint.  Different states have different rules for grounds for divorce.  In most states, adultery and/or insanity are recognized as a grounds for divorce.  Some states allow irreconcilable differences or abandonment as legitimate grounds for a divorce.

In many states, the law does not take into consideration which individual wanted the divorce or who filed first or even who stopped trying to make the marriage work (FL).  In others, these facts may determine the financial outcome of your divorce and where your children will live.

If there has been no violence in your marriage, the court may allow both of you to live in the house while the divorce is pending. You are free to leave, but it could be that the court will not let the children move out if their custody is being contested. You may not deny access of the home to your spouse unless the court gives you an exclusive for possession of the house.

Nullity or Annulment

Nullity means that a marriage is legally determined to never have been valid.  This judicial ruling occurs most often in bigamous marriages.

Child custody

Most states are now gender blind regarding the parents when determining where the children will live. The children’s age and gender is likewise irrelevant.  The children’s preference is only one of many factors that the court considers in determining where the children will live.  In a few states, the court will appoint a "guardian ad litem", generally a mental health professional or an attorney, to speak on behalf of the child or children.

Child support

In most states, children become adults once they turn 18 or graduate from high school (even if they are up to 19 years old).  Normally, you nor your spouse can be forced to support your children in any way including paying for college or post high school education after the age of majority (generally 18 years of age).

The majority of states now allow for continued child support in the instance of disability of a child such as mental retardation and developmental disabilities.

Choosing a lawyer

In most states, the same attorney cannot represent both parties (or both parents).  If there is only one attorney, only one of you is represented.

Family Mediation

This is a process where you and your attorney, and your spouse and their attorney, all meet together with a neutral third party.  In many states, this neutral third party would be another attorney, mental health professional, or accountant. Most family court cases do settle prior to going to trial. Some states allow for mediation fact immunity, which means that the information offered during mediation procedure cannot be used against either one of you if your case does not settle

Spousal support

Once the lawsuit is filed, you can petition the court for temporary financial support. Prior to this, there is no mechanism for forcing your spouse to provide support.  In some states, proven adultery by your spouse will entitle you to more of the family assets.  In others, it will not, unless you can prove that your spouse spent a great amount of marital money or assets on the co-respondent.

Financial Issues

Possibly the most important financial issue is federal income tax.  Each spouse should have a copy of the signed, complete filing on any jointly paid taxes. All of your financial records, however, should be gathered and kept in a safe place. Joint credit cards and lines of credit should be canceled and money in the bank should be split.

In many states, the court will decide how the financial resources are split as well as who pays the attorneys' fees.

Private pensions may be regulated by federal law.  This can allow tax-free division of pension benefits by a state court for divorce purposes. These special orders are known as  qualified domestic relations orders or QDRO's (pronounced "kwahdrows").

Health insurance is controlled by COBRA, to determine the "continuation of benefits" in a divorce. Private employers must give divorced spouses the option to continue health insurance coverage for up to 36 months after divorce. Massachusetts also requires on-going coverage beyond that time frame. You should check to see if your employer is covered by these Federal and State laws. (The USPS is exempt from COBRA.).  Your settlement agreement or court order should be reviewed with your plan administrator to check for inconsistencies between your divorce papers and your health insurance rulings.

Adoption and Surrogacy

Some states have enacted very progressive adoption laws, but proper legal groundwork and sound legal advice are imperative for peace of mind and safeguarding of the family.  Termination of the natural parent's rights is usually mandatory prior to an adoption taking place.  Closed adoptions, open adoptions, adult adoptions, and international adoptions (including the adoption of an American Indian) may involve different types of legal expertise. 

The Interstate Compact on Placement of Children (ICPC) is extremely complex regarding the transportation of a minor across state lines. An adoption attorney must be advised of the probability of this situation occurring.

Prospective parents must be concerned with the rights of a biological parent and possible future attempts by them to reclaim their child.  It is also important to be able to access the child's genetic and medical background.

In most states, surrogacy arrangements are extremely complex and involve unexplored legal issues, in addition to an adoption proceeding.  A gestational surrogate generally has no legal rights to the child because the child is not biologically theirs. A surrogate mother carries an embryo, the result of a union of the egg and sperm of the biological parents.  The genetic and medical history is readily available in such cases.

Paternity

Almost all states allow paternity actions to be filed to formalize the relationship of an unmarried couple to the child, or children, that they have together. A separation of the parents may trigger legal issues similar to a divorce action, such as child custody and visitation, child support orders and restraining orders.

Premarital  or prenuptial agreements

Through the years and the amassing of judgments, states have built up a type of default law.  Legal agreements, such as pre-nuptial agreements, are a way of ensuring that persons with prior children, assets, obligations, etc. may define their rights in a different way than these "defaults".

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