Family Law FAQ
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Parental Rights and Child Support
What is child support?
Child support is a payment by one parent (often the "non-custodial parent") to the other parent for the support of their common child. It is in the best interest of a child for both parents to be obligated to pay for the support of their child. An order for child support transfers the income/wealth from one parent to the other so that the combined incomes/wealth of both parents is available to use for the support of the child.
What is a child support order?
A Child Support Order is a document from a court that states (a) when, (b) how often, and (c) how much a parent is to pay for child support. A Child Support Order is typically part of a divorce decree or paternity judgment.
Who can be ordered to pay it?
A court can order either parent of a child to pay support to the other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available; thus, reducing the need for subsequent enforcement actions.
If I sign over my parental rights do I still have to pay child support?
That would be the decision of the judge/court of jurisdiction. In most cases, signing over physical parental rights does not relieve the parent of their financial obligation unless the other parent agrees. If however, the rights are being relinquished, so the child can be adopted, the court will dismiss child support obligations.
Will a new spouse have to pay child support?
A spouse regardless of gender is not legally obligated to support the biological children of the new spouse's previous marriages or relationships. But obviously if the children live with the parent and stepparent it will be a shared commitment.
The salary or assets of the "innocent spouse" are NOT subject to garnishment or in any way considered pertaining to the payment of an obligated spouse's child support. However, if the married couples share a joint bank account commingled funds in most states would be subject to levy for child support payments. Additionally, all marital assets of couples living in community property states are considered to be owned equally. Therefore, the spouse not owing the child support could end up "paying."
Divorce
Can one spouse get a divorce just because she/he is tired of being married?
Each state has its own laws determining when and under what circumstances a divorce can be sought and granted. In some states, both sides can agree to obtain a divorce with only a brief waiting period. Other states, however, have laws that claim to permit a divorce only if there are "grounds," meaning that the divorce is one spouse's "fault."
What is the difference between a ‘fault’ and a ‘no fault’ divorce?
Some states allow termination of marital status on both a basis of fault and alternatively on the basis of no fault. Grounds for fault include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease. The respective rights to distribution of property and spousal support can be affected by a spouse's fault in causing the breakdown of the marriage in some states.
In a no fault dissolution of marriage, a declaration by one spouse of the marriage that irreconcilable differences have arisen that neither time nor counseling will cure is sufficient grounds for a court to terminate the marriage and return the former spouses to the legal status of unmarried (single) persons. In a no-fault divorce or dissolution of marriage, the actions of the respective spouses in the breakdown of the marriage does not affect property distribution or spousal support rights.
Bankruptcy
What is bankruptcy?
Bankruptcy allows individuals or businesses ("debtors") who owe others ("creditors") more money than they're able to pay to either work out a plan to repay the money over time or completely eliminate ("discharge") most of the bills.
What type, or chapter, of bankruptcy should I file?
Consumers typically file Chapter 13 bankruptcy, where repayment is made to creditors or under Chapter 7 where the debts are discharged. Each chapter of bankruptcy spells out:
- What bills can be eliminated
- How long payments can be stretched out
- What possessions you can keep
- Additional information
The selection of which type to file depends on your particular circumstances and whether or not there are assets available to repay all, or part, of the debts owed. Bankruptcy laws can be tricky and involved, so determining if you should file bankruptcy and what type of bankruptcy you need should be made with the input of an experienced bankruptcy lawyer.
Can all types of debt be discharged?
No. The debts that cannot be discharged vary slightly between the different chapters of bankruptcy. Generally, the following cannot be discharged:
- Debts for taxes owed to local, state, or federal agencies
- Debts for money, property, services, or an extension, renewal, or refinancing of credit, which was obtained fraudulently
- Debts which were neither listed nor scheduled or which the debtor waived discharge
- Debts which are owed to a spouse, former spouse, or child of the debtor, for alimony, maintenance, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record
- Debts owed for willful and malicious injury by the debtor to another person or property owned by another.
- Debts for government-sponsored educational loans, unless it can be shown that repayment will cause an undue hardship
- Debts for death or personal injury caused by the debtor's drunk driving or from driving while under the influence of drugs or other substances
- Debts incurred after a bankruptcy was filed
How long does a bankruptcy stay on my record?
Bankruptcies remain on credit reports anywhere from seven up to 10 years.
Wills and Trusts
What is a ‘will’? Is it the same as a ‘last will and testament’?
A Will is a written document, generally prepared with the help of an attorney, that provides instructions for the disposition of a decedent's (dead person's) property. The term "Last Will and Testament" is simply a more complicated name for a Will.
Who should have a will?
Anyone who cares how his/her property is distributed upon his/her death, or who would handle matters for those she or he leaves behind, or be guardian for minor children. After all, "you can't take it with you."
What is a trust?
A Trust is a well-recognized type of legal entity which is used to hold legal title to property for the benefit of one or more persons. The person creating the Trust is often known as the Trust Creator or Grantor. The person or institution holding legal title to the property is called the Trustee. The persons who are intended to benefit from the Trust are known as Beneficiaries.
Who are the parties to a trust?
There are typically three main parties to a Trust:
(1) The Trust Creator, sometimes called the Grantor or Settler, is the person who started out as owner of the property that is to be transferred to and held by the Trust.
(2) The Trustee is the person or financial institution (such as a bank or Trust company) that holds the legal title to the Trust estate. There may be one or more Trustees. If a Trustee is unwilling or unable to serve, then a successor Trustee steps in to hold and manage the Trust estate. The Trustee is obligated to act in accordance with the terms of the Trust for the benefit of the Trust beneficiaries.
(3) The Beneficiaries are the persons who the Trust Creator intended to benefit from the Trust estate. The rights of the beneficiaries depend on the terms of the Trust. Beneficiaries are said to have the "equitable title" to the property held in the Trust.
Personal Injury
I was injured. What law governs my ability to recover damages?
There is a large body of law that governs your right to recover for personal injuries you sustained.
The first thing is to determine what type of ‘personal injury’ took place, as in what caused the injury?
- Car Accident?
- Slip and Fall?
- Defective or Dangerous product?
- Medical Malpractice?
- Workplace Accident?
- An intentional act by another person?
And then the following needs to be addressed as well:
- Who was injured?
- What was the extent of the injury?
- Who was responsible for the injury?
The answers to the questions above form a large part of the answer as to whether you will be able to recover damages for any injury.
Civil Litigation
What is ‘litigation’?
A controversy before a court or a "lawsuit" is commonly referred to as “litigation.” If it is not settled by agreement between the parties, it would eventually be heard and decided by a judge or jury in a court. Litigation is one way that people and companies resolve disputes arising out of an infinite variety of factual circumstances.
The term "litigation" is sometimes to distinguish lawsuits from “alternate dispute resolution” methods, such as "arbitration" in which a private arbitrator would make the decision, or “mediation” which is a type of structured meeting with the parties and an independent third party who works to help them fashion an agreement among themselves.
Real Estate Law
With all these signed agreements, is it important to have a lawyer?
Although many people buy and sell houses each year on their own, it is a good idea to have an attorney represent your interests when you are buying or selling a house. An attorney who has experience in real estate can help you to draw up a contract that can be sure all contingencies have been considered. The real estate agent will be trying to get the deal done, so as to receive his/her commission, so it is good to have someone who specifically represents you, whether you are the buyer or the seller.
A lawyer can also help you do a "title search" to be sure the property is free from any claims against it by creditors of the seller or of previous owners.