Frequently Asked Family Law Questions

What is family law?

Family law is the area of law which governs family relationships – often the dissolutions of those relationships.  Family law is governed by state law, so although the law may be similar from state to state, there are many differences.  What is true in maine may not be so in other states.  This faq sheet is based on maine law.

What is a family law attorney?

A family law attorney refers to lawyers who represent individuals in matters relating to family relationships.  Matters a family law attorney would handle include:

  • divorce
  • collaborative divorce
  • parental rights and responsibilities (between unmarried parents)
  • prenuptial agreements
  • dissolution of partnership (for unmarried couples)

Other matters a family law attorney handles might include petitions for guardianship or conservatorship and will disputes in probate court.  On the more pleasant end of things, family law attorneys may perform marriage ceremonies and help couples or individuals through the legal process of adoption.

What does a family law attorney do?

A family law attorney will consult with the client to gain an understanding of the relevant relationships, develop a strategy to accomplish the client’s goals, and represent the client in negotiations, mediation, hearings and trial.  The attorney will gather pertinent financial documents and if necessary, information relevant to parenting ability, such as mental health, criminal history and other issues.  The attorney may file interim motions to be heard and decided by the judge in order to govern certain aspects of the relationship while the case makes its way through the legal process.  The attorney will calculate child support, assess reasonable spousal support (alimony), chart property division, and prepare the numerous legal forms that must be filed with the court.

What is divorce?

Divorce is the legal process by which a married couple dissolves their marriage.  Issues in a divorce action include:

  • grounds for divorce (usually, irreconcilable differences),
  • division of property and debt,
  • spousal support (alimony), and
  • payment of attorney’s fees

Where a couple has children under 18 years old, the divorce will also address issues of parental rights and responsibilities, including:

  • primary residence (custody),
  • parental contact (visitation),
  • child support, and
  • tax exemptions

What is a collaborative divorce?

Collaborative divorce is a relatively recent and more respectful way for a divorcing couple to restructure their family.  In a collaborative divorce, the couple decides not to go to court until they have reached and agreement on all issues in the divorce.  If an agreement is not reached, the attorneys withdraw and the parties each retain new counsel.  Group meetings, voluntary exchange of information, and a team approach to problem solving replace court hearings, battles for documents and court imposed solutions.  The process is intended to reduce the bitterness of divorce, give the parties control of the outcome, set an example of good problem solving for children, and allows for a “divorce with dignity.”  Not every case is suited to collaborative divorce, and both attorneys must be trained in the process.  But if the parties are willing and able, it can provide an appealing alternative to traditional divorce.

For more information about collaborative divorce, see attorney Mogul’s facebook note.

How is child support calculated?

Many years ago, the amount of child support awarded differed greatly from judge to judge and county to county.  The amount was left to the discretion of the judge and awards were inconsistent.  In 1995 the maine legislature adopted child support guidelines, an updated version of which now governs the amount of child support a parent pays and has standardized child support awards regardless of the judge or the county.

The guidelines are actually a chart which factors the combined income of the parents, the number of children and each parent’s proportional share of the combined income.  The result is a weekly child support obligation which one parent must pay to the other.  The formula is based on studies and updates of studies which determined regionally what a couple with a certain combined income would typically spend on raising a particular number of children.  The child support is based on the payor’s proportional share of the combined income.  For example, if mom earns $100,000 per year, and dad earns $50,000 per year, and the children live with mom, dad would pay 1/3 of the amount which a married couple earning $150,000 per year would typically spend on raising a child.  The formula takes into account housing and utility costs, clothing, food, entertainment, health insurance, childcare expenses and virtually all other expenses of raising a child to the age of 18, or to the age of 19 if the child is still attending high school.

As with many laws, there are exceptions to the application of the child support guidelines in unusual circumstances.  Still, the adoptions of the guidelines has provided much more consistency and predictability.  When a couple knows in advance what the amount of child support is likely to be, it is one less issue to dispute, increasing the possibility of an agreed resolution.

How is spousal support (alimony) determined?

Unlike child support, there is no set formula for calculating spousal support.  There are some parameters and some factors for a judge to consider when deciding whether, what type, and the amount of alimony to award.

There are three types of spousal support: general, transitional and reimbursement.

General support:

General support is to give financial assistance to a spouse with less earning potential than the other spouse, so that both can maintain a reasonable standard of living after the divorce.  There is a presumption that if a marriage has lasted less than ten years, there will be no spousal support.  If the marriage lasted ten, but less than twenty years there is a presumption that spousal support will last no longer that one-half the duration of the marriage.  If the marriage lasted twenty years or longer, there is no presumption regarding how long spousal support should last, although it usually terminates upon death or remarriage of the recipient.  Each of these presumptions may be rebutted, or overcome, if the judge decides that the presumptions would lead to an inequitable or unjust result.

Transitional support:

Transitional support is intended to assist a spouse for a limited period of time to provide for the transitional need of a spouse upon divorce.  These may include the cost to relocate, or to become trained or retrained to enter or reenter the workplace or to increase earning capacity such as through education.

Reimbursement support:

Reimbursement support is reserved for instances where one spouse has committed financial misconduct, such as through gambling, mismanagement of investments or excessive spending.  It is also available in circumstances where one spouse contributed substantially to the cost of educational or occupational advancement which increased the other spouse’s earning capacity.  This type of spousal support is available when it is not possible to account for such factors in the division of property and debt.

Factors:

There is a long list of factors a judge may consider in deciding whether to award spousal support, the amount and the duration.  These factors include the earning capacity of each spouse, the contribution of a spouse who has limited his or her employment in order to raise children and maintain a home, employment and income history, educational background, the standard of living the couple enjoyed before the divorce, and available retirement benefits, among others.

What does a judge consider when deciding parental rights?

The most important and overriding consideration a judge uses in deciding issues of parental rights is the best interest of the child.  The parents’ desires are secondary, and unless the child is breast feeding, neither the gender of the parent nor the gender of the child is relevant.

An important consideration is each parent’s capacity to foster a positive relationship between the child and the other parent.  A parent who degrades the other parent in front of a child, or who tries to limit or sabotage the child’s relationship with the other parent is not favored in this assessment.

Other factors considered by the judge include safety, the age of the child, the stability offered by each parent, and the child’s preference if old enough to express a meaningful choice.

How is property divided?

Property that was acquired by either party during the marriage is considered marital property, which is subject to distribution by the judge, and property which was acquired separately by either party prior to the marriage is that party’s non-marital property which the judge may not distribute and remains the property of that spouse.  As usual, there are exceptions.  For example, if one spouse receives a gift intended for that spouse only, such as an inheritance, that property is considered that spouse’s non-marital property, so long as it is not mixed in with marital property.  Gifts from one spouse to the other spouse are the recipient’s non-marital property.  However, where an asset increases in value due to the owner’s efforts during the marriage, the increase in the value of the asset may be marital property.

The judge is empowered to divide the marital property, including marital debt, based on what the judge decides is fair and equitable under the circumstances.  Often, the judge may distribute property so that each party walks away with a roughly equal share of the assets and debts.  However equitable division is the goal, not necessarily equal division.

The law of marital property is complex.  There are many exceptions to the general rule and many exceptions to the exceptions.  Often the source of funds for a particular asset must be meticulously traced back to its origin in order to sort out whether, and if so, to what extent, a particular piece of property is marital, non-marital or mixed-marital.  Accountants may be employed by either or both parties to help sort through these complex issues.