What is family law?

What it covers

• Ending a marriage — divorce, legal separation, annulment. All states now offer a no-fault ground, such as irreconcilable differences or living apart for a set period; some still allow fault grounds as well.
• Children — legal custody (decision-making about school, health care and religion) and physical custody (where the child lives), parenting schedules, relocation, and modification as circumstances change.
• Money — child support set by state guidelines from both parents' incomes and parenting time; spousal support (alimony), which is far more discretionary.
• Property — community property in nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), equitable distribution in the rest.
• Protection — restraining and protective orders, often decided within days.
• Family formation — marriage and prenuptial agreements, adoption, paternity, guardianship, surrogacy and assisted reproduction agreements.

The standard that governs children

The best interests of the child — a list of statutory factors including each parent's relationship with the child, stability, each parent's willingness to support the child's relationship with the other, any history of abuse, the child's needs and, at some ages, the child's own preference. It is not a formula, and two judges can weigh the same facts differently, which is why negotiated parenting plans are usually more predictable than trials. Many states now start from a presumption that both parents should have substantial time, unless there are safety concerns.

Community property vs. equitable distribution

In community property states, most property acquired during the marriage belongs equally to both spouses and is generally divided in half. In equitable distribution states, marital property is divided fairly, which may or may not mean equally, taking into account factors such as each spouse's income, contributions and the length of the marriage. In both systems, property owned before the marriage or received as a gift or inheritance is usually separate — unless it was mixed with marital assets.

How most cases are resolved

By agreement. Many states require mediation before a contested custody hearing, and collaborative practice — where both sides and their lawyers commit to settling outside court — is an established alternative. Uncontested divorces with simple finances can often be completed with standard court forms. Contested trials are the exception, and they are the most expensive and slowest route by a wide margin, often costing each side tens of thousands of dollars.

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Jurisdiction and moving between states

To file for divorce, one spouse usually must have lived in the state for a minimum period, commonly three months to a year. Custody cases are governed by a uniform law adopted in almost every state, which generally gives jurisdiction to the child's “home state” — where the child lived for the last six months. Child support orders are enforced across state lines through another uniform act, and the federal government helps collect unpaid support through tax refund interception and license suspensions.

Orders that can be revisited

Custody and support can be modified on a substantial change of circumstances — a job loss, a move, a change in the child's needs. Property division generally cannot be reopened, which is why the financial disclosure stage deserves more attention than it usually gets. Hidden assets discovered later can sometimes justify reopening a judgment, but the process is difficult.

Domestic violence and family law

Protective orders can be issued quickly, sometimes the same day on a temporary basis, and can include temporary custody, exclusive use of the home and support. A finding of domestic violence affects custody in most states, often creating a presumption against giving custody to the abusive parent.

When to talk to a lawyer

Before signing any agreement about property, support or custody; when the other side has a lawyer; when there are significant assets, a business or retirement accounts; when a move with children is planned; and whenever safety is a concern. Many family law attorneys offer limited-scope help — reviewing an agreement or coaching you for a hearing — for people who cannot afford full representation, and legal aid organizations handle many family cases for low-income clients.