Note: This Family Law Manual is meant to be a general guide to family law concepts. It is not my intention to be giving legal advice or practicing law in your state. Any specific legal questions you have should be addressed to an attorney at law in your state. I hope that this manual will provide information of value so you can better determine if you need a lawyer and what kinds of questions you might want to ask him or her.
Family Law Manual-Part One
1. PRE-MARITAL AGREEMENTS
Two people contemplating marriage may make a contract with each other prior to their marriage which is intended to have an effect on their rights. Just as the state will decide how your property is disposed of if you die without a Will, the state will decide how your property is disposed of if you divorce without a pre-marital agreement. Most people are satisfied to let state laws determine their rights in the event of a divorce. Many people find the idea of a pre-marital agreement distasteful since it recognizes the possibility of divorce even before a marriage. However, pre-marital agreements are fairly common and do serve a valuable purpose in some cases.
If the parties have considerable property prior to marriage and want to be sure that the property goes to their children by a prior marriage rather than to a new spouse, a pre-marital agreement is one way to achieve that goal. Of course, that is not the only reason people want a pre-marital agreement.
The important fact to keep in mind is such agreements are often challenged at the time of a divorce and challenges are often successful. Therefore, it is very important for both parties to have their own attorney explain the agreement and their rights to them so the pre-marital agreement will be upheld in the event of a legal challenge later.
(Alternative Dispute Resolution)
Mediation, like apple pie and motherhood, is a concept which is warm and fuzzy and which almost everyone supports. However, whether or not mediation is for you depends on a number of factors. Generally, mediation is a voluntary process which offers both parties who want to mediate an opportunity to resolve their problems out of court. Mediation, therefore, requires a certain amount of goodwill by both parties. Mediators have no power to force anyone to do anything. The job of the mediator is to bring the parties to an agreement. Mediators sometimes do not try to ensure that the agreement is fair or just. They may not care about the fairness of the agreement. They may just care that an agreement is reached.
Successful mediation requires willingness of both parties to be open and honest with each other. A party who is not willing to lay all their cards on the table is a bad candidate for mediation. A party who has been in a subservient role during the marriage may not be able to negotiate for themselves a reasonable settlement. They are apt to be steamrollered into an unfair agreement for the sake of achieving peace and avoiding court. If you are such a person, you should be cautious about mediation.
Some states require mediation. In California, for example, before parents are permitted to go to court to litigate custody issues, they must first attempt mediation. The purpose of mandatory mediation is to try to reduce the load on the court system.
Frequently, anybody who is so inclined may call himself or herself a mediator. If you hire a mediator be careful to hire someone with experience and knowledge appropriate to the problem to be mediated. You may or may not need a mediator who is an attorney. You may or may not need a person who has a psychological background. Problems with children are obviously different from problems about dividing property. Don't be afraid to ask about the mediator's experience and credentials. Quality control for mediators is almost nonexistent. There are some very good mediators and some who simply want to make money from the business of mediation. Obviously, a mediator with his or her own agenda should be avoided.
Mediation costs vary considerably. Mediation can be expensive or save a lot of money. Mediation may be free and usually is when required by the courts. Mediators may charge a flat fee, a daily fee, or charge by the hour. Many mediators have a sliding fee scale. Since most insurance policies do not cover mediation, it is important to discuss with the mediator at the outset what the fees are and who will be paying the fees. There is a danger when one side is paying the fee of the mediator since that can effect the mediator's impartiality. Try to have the mediator paid equally by both parties. If one spouse has all the money, the spouse with the money can "give" the other spouse enough to pay half the mediator's bill, so the appearance of equality is maintained.
In the event a settlement is not achieved in mediation, a mediator may not later side with one party against the other in court since the information obtained in mediation should be confidential unless it is decided otherwise in advance by all the participants in mediation. It is imperative, therefore, there be a written agreement in advance, setting out the duties and responsibilities of the mediator and whether or not any of the information obtained in mediation can be disclosed. Are the mediator's notes subject to subpoena? Must the mediator disclose to the authorities instances of abuse alleged by one of the parties?
When mediation fails to result in an agreement, the parties will usually have to start over from scratch with new attorneys representing both parties, and the time and money spent in mediation will have been wasted. Assess your chances of successful mediation given your personality and motivation and that of your spouse before you commit to spending a lot of money on mediation.
Remember, mediation is not marriage counseling, and if there is a chance of saving your marriage, you should see a marriage counselor who is qualified as such.
For more on mediation, see www.gotomediation.com
3. Choosing A Lawyer
There are not only a great many lawyers but a great many types of lawyers. Since so much is at stake in a divorce, you must have confidence and trust in your attorney. If you are not happy with your lawyer, you should get another one.
Does it matter to you if you have a male or female attorney? To some people it does and to some people it doesn't. The competence of the attorney and the accessibility a client has to the attorney is what matters to most people, not whether the attorney is male or female. Are you hiring an individual or a firm? Will one person be responsible for your case or several? Will your phone calls be returned promptly? Will you be able to come in for an office visit right away? Will you have a long wait in the waiting room when you get there or is your attorney ready on time? What about fees ?
What about your lawyer's personality? Is she or he the type who is anxious to go to war with the other party? Is she or he overly aggressive or more interested in trying to resolve cases out of court? What personality type is best for you given the issues in your case? Do not be afraid to ask your lawyer to describe his or her philosophy when dealing with the issues that matter to you.
You would not want to have a doctor just out of medical school performing a delicate operation on your heart, and you should not hire an attorney with little or no experience. Ask your attorney about her or his experience practicing law. Has your attorney handled many divorce cases? Does she or he know the judges and other lawyers in the area or is this a new attorney? Does your lawyer have trial experience with contested matters in your area of the law? A custody case is not like a criminal trial. You need a lawyer experienced in family law.
Some jurisdictions have recognized specialists in certain areas of the law. To be a specialist, an attorney will have to have passed a test or proven their expertise in some way. Having a specialist does not guarantee you will have a successful outcome, however, and you ought to be just as careful choosing a specialist as you would with any other attorney.
Being a specialist is not the same as specializing. It is not necessary to have an attorney who is a specialist or who only practices family law, but it is important your attorney devotes a substantial portion of her or his practice to family law. You do not want an attorney who takes an occasional family law case from time to time. There is no way an attorney can keep up with the complex and constantly changing field of family law unless it is something he or she does almost every day.
Most attorneys who practice family law charge an hourly fee for their services. The hourly fee can range from $150.00 per hour to $350.00 per hour or more. Knowing an attorney's hourly rate, however, does not tell you much at all about the cost of your divorce. The only way to find out about the cost of the divorce is to ask the lawyer. Ask about the charge for a simple, uncontested divorce. Ask about the usual charge for a custody fight. A lawyer who is not willing to openly and freely discuss her or his fees should be avoided. Try to get an estimate of the number of hours involved in a case like yours. This will not be a guarantee of what your costs will be but will give you an idea of the charges and, importantly, give you an indication of the attorney's willingness to discuss fees.
A retainer is a deposit paid by the client to the attorney for legal services to be rendered to the client by the attorney. Is the retainer refundable if the attorney's work is terminated before the retainer is exhausted? Does the attorney require a further retainer as the case progresses? It is extremely important the contract you have with your lawyer, the retainer agreement, be in writing and that you understand the agreement. You should take the time to carefully read the retainer agreement and to ask your attorney about any provisions that are not clear. Your attorney may well be willing to modify the agreement to suit you. In a big case involving large legal fees, it makes sense to hire another attorney to review with you your divorce lawyer's retainer agreement.
We live in an age of cell phones, copy machines, fax machines and computers, so you could hire an attorney and never meet that attorney face to face. Most people want, and should have, easy access to their attorney. However, attorneys charge for their time, since time is their only product besides their knowledge, they have to sell. It does not make sense, in most cases, to hire an attorney who is far from the courthouse, because you will probably be paying the lawyer a high hourly rate just for the time it takes to get to the courthouse. If you live and work in one city but the divorce court is located in another city. or state, you will almost always be better off if you hire an attorney from the place where the court is located. Out of town attorneys will usually cost substantially more money, will not be familiar with the local practices and customs and may be discriminated against by the local judges in favor of a local attorney.
Finally, a word about legal document services. These services advertise that you will save money by avoiding lawyers. Unfortunately, they are usually simply typing services that charge a lot of money for the little service they provide. If you do not have much in the way of assets or debts and there are no children, a typing service probably will do you no real harm. However, if there is anything of value at risk in your case, spend the extra few hundred dollars and get an attorney.
4. Breach of Promise (To Marry)
In the old days, there were several types of law suits people could file related to marriage other than divorce. These law suits were based on what are called "heartbalm" statutes. The three common suits are:
1. Alienation of affection
2. Breach of promise to marry
"Alienation of affection" is a law suit based on suing a person who comes between a husband and wife. Sometimes a case makes the newspapers of a husband who sues a psychiatrist for treating his wife and counseling her to leave him for the psychiatrist's own benefit. Most states do not allow these suits anymore. If you think this might apply to you, check with a lawyer in your state.
"Breach of promise to marry" is a law suit based on suing a person who fails to keep a promise to marry and breaks off the engagement. The jilted party could sue the other party for damages as a result. Again, most states do not allow these suits anymore. However, there may be a remedy if actual damages can be proved which resulted from detrimental reliance in good faith on a promise to marry. For example, a party might sue to recover expenses incurred in advance of a wedding or honeymoon or to recover the cost of a ring. If you think this might apply to you, check with a lawyer in your state.
"Seduction" is a law suit based on a father suing a person for having sex with the father's daughter and failing to go through with a marriage. The daughter would have to have been a virgin who was seduced by a promise to marry. The theory of the suit is that the daughter is less valuable because of the loss of virginity. Most states do not allow these suits anymore.
States have fault based divorce systems, no fault systems or a combination of the two.
The trend for more than thirty years is for more and more states to change their divorce laws from a fault based system to a no fault system. (Because of the belief there are too many divorces and that divorce is too easy to obtain, there is interest by some conservative politicians in restoring fault based divorce to make divorces more difficult to obtain and to punish the "bad" spouse.
If you live in a state which has fault based divorce laws, in order to get a divorce you generally need to prove your spouse is guilty of bad behavior. The bad behavior could be adultery, cruelty, desertion or some other reason (grounds) recognized by your state.
To get a divorce in a no fault state, you will still need a reason for getting a divorce, but the grounds for the divorce is incompatibility or irreconcilable differences. If you say you and your spouse are incompatible, that is usually enough for the judge. You do not have to prove it, and if your spouse claims you are not incompatible it will not be persuasive. Counseling prior to the divorce is sometimes required if requested by one spouse. In no fault states, there is no giving a divorce or fighting one, but there still may be, and often are, major fights over other issues in the divorce, such as support payments or custody of children or division of property.
One advantage of a no fault divorce system is that such a system avoids the unfortunate result of having two people sue each other (let's say she sues him for adultery and he sues her for cruelty) and both parties fail to prove their case and end up still married to each other.
States that have changed to no fault systems have done so because of the belief that when relationships fail, l both parties usually share some of the blame (or neither party is to blame), and it is better for people to get on with their lives rather than to look back and try to assess fault.
If you live in a state with a fault based system there may or may not be laws that punish the spouse at fault when it comes to awarding support, dividing property or awarding custody of children. Check with an attorney regardless of your state's system when it comes to support, property or custody awards. Too much is at stake not to know your rights.
When people divorce, there are only two possibilities: either they agree on how to resolve all their differences and issues or they do not. If they agree, it is rare for a judge to object to the agreement. In other words, almost any agreement people want to make is fine. When people cannot agree on how to resolve all the issues, they have to go before a judge who will decide for them.
Obviously, a trial before a judge is traumatic and usually expensive, although people can avoid the cost of an attorney by representing themselves. There is a big risk in going to trial because you do not know what the judge will to decide, whereas, if you make an agreement with your spouse, even if you are not happy with it, at least you know what the result is and can live with it. Another reason to try to avoid a trial is that studies show people who make their own agreements, rather than have decisions imposed upon them, more often live up to the terms they have agreed to since they participated in the process. Finally, after a trial, one or both parties is apt to feel they have lost. When a party feels he or she has lost, there is a significant chance that party will be back in court in the future, trying to correct the wrong they believe was done to them. Litigation can drag on for years.
If a mistake is made by the judge, a party may appeal. Appeals are rarely successful. Another way to correct a mistake is by a writ. A writ is like an appeal but is a faster process for having a mistake by a judge reviewed by a higher court.
In some cases, a party may move to have a default judgment against them set aside. If a party claims they had no notice of the divorce because they were never served with the required legal papers (extrinsic fraud as opposed to intrinsic fraud) or if a default judgment was entered against them due to mistake, inadvertence or excusable neglect, they may be able to get relief from the default.
Many people mistakenly feel they are entitled to an annulment if they decide the marriage is not working after being married a short time. That is generally not the case. Usually, in order to qualify for an annulment, a party must satisfy certain requirements, such as proving the marriage was based on mistake or misrepresentation. If someone marries so they can stay in this country and has no intention of fulfilling the usual role of a spouse, the other person can get an annulment. A spouse who cannot or will not have sexual relations is another grounds for annulment.
A void marriage is a marriage that was never valid, such as an incestuous marriage (between brother and sister or parent and child.)
A voidable marriage is a marriage that was not valid when entered into but which can be made valid later. An example of this is when a person who is still legally married to spouse number one marries spouse number two (bigamy). If the first marriage is then legally terminated, the second marriage can become legal.
When people want to establish custody and visitation rights with their children or provide support and divide their property, but do not want to get a divorce, because, for example, they have strong religious beliefs that prohibit divorce, they can go to court to get a legal separation. They usually must follow the same procedures and resolve the same issues entailed in a divorce, so getting a legal separation is not a good way to save either time or money.
A physical separation, as opposed to a legal separation, is something else. A physical separation occurs when one spouse decides the marriage is over and makes that feeling known to the other spouse. That can happen by packing a suitcase and leaving the family home, but it can also happen by sleeping on the couch or by going to the divorce lawyer's office and telling the lawyer to file the divorce papers.
People can live thousands of miles apart for months or even years at a time and not be separated. The crucial factor is the intent of the marital partner to terminate the marriage.
In California and some other states, a common reason people file for a legal separation is that they do not have to be a resident of the state for six month first, as they do to file for a divorce. They can file for a legal separation right away and then convert the case to a divorce case later.
8. Common Law Marriage (Rights of Unmarried Persons)
Some states (not California) recognize two people living together as man and wife as having some or even all the rights of married persons. Some states do not.
However, states that do not recognize common law marriages will still give parties living together certain rights under certain circumstances.
For example, people can make a contract with each other. The contract may be expressed or implied and may be oral or written. People may enter into partnerships. A court may find that a party is entitled to a constructive trust or lien. A party may also sue for the reasonable value of their services as long as the contract for services is not illegal.
A new trend has developed giving persons of the same sex living together certain rights under certain conditions. Consult an attorney if you have questions about the law in your state. This is one area of the law which is changing rapidly and which varies greatly from state to state.