Family and divorce law addresses some of the greatest obstacles that people face when handling their affairs, such as dissolution of the marriage and its aftereffects on the children (custody and support). These branches of civil law also cover the division of property, payment of spousal support, and handling domestic violence issues.
Data retrieved in the report of the CDC shows that 672,502 cases of divorce and annulment were processed in the USA in 2023. This figure highlights the importance of being familiar with legal matters involving family responsibilities and rights.
Since family law matters are often closely connected, a decision involving one issue can affect others. The interrelatedness of things in family law makes it important to understand how the different areas of family and divorce law work together.
Let’s look at the basics of family law so you can better protect your interests, make informed decisions, and approach difficult legal matters with greater confidence.
The first question: community property or equitable distribution?
Several American states abide by the community property system. That includes states like California, Texas, Washington, Arizona, and Wisconsin. Under this legislation, spouses equally share all wealth and obligations contracted during the marriage. This belief results in an equal division of assets in the event of the dissolution of the marriage.
The remaining states apply the principle of equitable distribution, where the court follows a fair distribution of marital assets. Keep in mind that this distribution is not necessarily equal. Some of the factors taken into account include the length of the marriage, the financial status of both spouses, the contribution of a homemaker spouse, and the post-divorce economic condition of each spouse.
Separate property, which includes the properties that either spouse possessed prior to the marriage or that have been acquired as gifts or inheritances during the marriage, is usually not included in any form of division in either system. This problem emerges when the separate property is mixed with the marital property.
Determining whether a property is separate or community may be one of the most frequent causes of conflict in asset distribution. One would need financial records dating back several years to properly categorize such assets.
Child custody: What ‘best interests’ actually means in practice
Regardless of location, family law courts in every state of the United States adhere to a “best interest of the child standard” when making custody and visitation determinations. Bear in mind that the term signifies different aspects and definitions from one lawful system to the other. Numerous courts have rejected basing child custody decisions on simple moral assessments.
In 2022, the vast majority of custody fell on mothers, which census data reports as approximately 78%. Meanwhile, fathers were relegated to 22% of child custody cases. The proportion of single fathers has also gone up since 1994, indicating a consistent upward trend in the last three decades or so.
Recent child custody cases have shown that joint custody has become the most sought-after custody arrangement. This decision takes into account the equal concerns of both parents, the location and comfort of their residence, and their willingness to facilitate the other parent’s care and presence. If a child is of a mature age, his or her wishes will also be considered. The court will give weight to any past experience involving any form of abuse, drugs or alcohol, or neglect.
According to a Costa Mesa family lawyer, the family court prioritizes the interests of the child, which looks at several factors, such as the relationship between each parent and the child. The court is more likely to consider the wishes of a child aged 14 or older or a child who has demonstrated maturity in his or her decisions.
Courts do not punish parents for the circumstances of the divorce itself unless those circumstances directly affect the child’s welfare.
Child support: the formula and what can change it
Child support in most states is calculated using one of two models. Under the income shares model, the calculation determines the total amount both parents would have spent to support the child had they lived together. This amount is divided proportionally based on the parent’s earnings.
Meanwhile, the percentage-of-income model calculates support as a fixed percentage of the paying parent’s net resources. Factors that affect the calculation in both models include each parent’s gross income, the number of children, the cost of the child’s health insurance, work-related childcare costs, and the custody arrangement.
The Office of Child Support Enforcement maintains federal guidelines that states must follow to receive federal funding. States provide child support calculators based on those guidelines. The average child support payment received by custodial parents is approximately $3,431 annually. This figure may vary across jurisdictions.
Child support orders can be modified when there is a significant change in either parent’s income or changes to the custody arrangement.
Financial documentation: what gets built into every decision
Every financial decision in a divorce, including property division, child support, and spousal support, is built on documentation of each party’s income, assets, and debts.
Inadequate documentation is one of the most common reasons people receive settlements that do not reflect their actual financial situation. Some of the important documents that need to be secured include three to five years of tax returns, income records, at least two years of bank and investment statements, retirement account records, property and mortgage documents, and records of debts such as credit cards and personal loans.
When dealing with disputes that involve closely held enterprises or professional partnerships, a business valuation professional will typically be needed to determine the marital value of the ownership of the business entity.
Mediation: when it works and when it does not
The involvement of a neutral third party in the negotiation process of the conflicting parties, which aims to promote finding acceptable solutions, is known as mediation. The mediation procedure remains non-binding until a legally binding compact is accomplished between both parties. It is important to understand that the mediator abstains from making any choices.
A successful mediation provides quick, inexpensive solutions to the dispute and gives both parties greater control over the outcome than they would have had through court proceedings. For mediation to be truly successful, both individuals need to have fairly complete financial information. There cannot be a major power disparity between the two spouses and no involved party should be subjected to domestic violence.
In those cases where there is the presence of hidden assets, an abusive past, or when a party to the process is using mediation to prolong discovery, then litigation may be needed for complete disclosure.
According to current practices, many courts make it a condition for the parties to mediate before the announced hearing dates to avoid any disputes. Even so, the parties have the prerogative of going to court when the mediation process collapses.
The decisions made early define the outcome.
Most family law cases, including divorce, are not won at trial. Instead, these cases are commonly resolved at the negotiation stage, and the difference lies in how acceptable each party deems their terms. This acceptance varies according to the respective levels of understanding of the rights, the completeness of financial documents, and the stage of the dispute undertaken with or without the help of professionals.
The decisions made in the first weeks of a divorce, about financial documentation, about what assets to value and how, and about custody arrangements to propose and support, shape everything that follows.