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Learn More: Family Law

The laws relating to families have changed dramatically since the 1970s as judges and legislators have reexamined and redefined the legal issues involved in divorces, child custody disputes, child support, domestic violence, and other family law matters. Family law has become entangled in national debates over family structure, gender bias, and morality. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in the cases and even the public at large. Despite the changes already made by courts and legislatures, family law remains a contentious and ever-changing area of law, which will continue to evolve as families and society evolve.

Divorce, or dissolution of marriage as some states call it, is no longer fault-based and has become easier to obtain. Whereas not too long ago one spouse had to accuse the other of some grave misdeed, such as adultery, cruelty, alcoholism, or drug addiction, divorce is now available on the basis of incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The division of marital property has also changed in recent years, so that now each spouse is given a more equitable share of the property upon divorce. One change that demonstrates this phenomenon is the recognition of the homemaker spouse's contributions to the accumulation of marital property. For example, whereas once the husband who developed and grew his own business while his "nonworking" wife stayed home would walk away from the marriage with all of the business assets, courts now award a significant portion of the business assets to the wife, who enabled that business growth by taking care of the home and children, and by entertaining business clients and associates. On the other hand, homemaker spouses are not considered as dependent as they once were, and as a result alimony, if awarded at all, is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-sufficient.

Issues like child custody, too, have evolved in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but now fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult, and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting, too, presents heart-wrenching custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children's rights, and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.

Another major change in family law in recent years is the recognition that many family disputes can be resolved more expediently and in a less acrimonious manner than through the traditional litigation process. In divorce and child custody cases in particular, the adversarial process has increased tensions between the parties that do not abate even when the process is complete. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation, which can save time and money and preserve relationships to the extent possible.

Family law lawyers can provide valuable counsel and objective representation in what can be emotionally charged situations. Their experience may focus on a particular area, or may include several or even all of the following family law issues.

Adoption is a legally recognized way of forming a family. Adoption options include international adoptions, domestic adoptions, agency adoptions, independent or private-placement adoptions, stepparent adoptions, blood-relative adoptions, surrogacy-related adoptions, open adoptions, and closed adoptions.

Alimony and spousal support are legal terms for income provided by one spouse or former spouse to the other during a separation or after divorce. Although once traditionally awarded primarily to wives for an indefinite period, alimony awards are now awarded to either spouse if he or she needs financial assistance and the other is able to provide it, and they tend to be temporary, for a period of rehabilitation that enables the recipient spouse to become self-supporting.

Child support is generally ordered by the court in situations in which a child lives with one but not both parents. The non-custodial parent, or the parent with whom the child does not live, is responsible for contributing a certain portion of his or her income, based on state child support guidelines, to help support the child, even if the custodial parent has income of his or her own.

Children's rights cover a broad spectrum, which includes not only the rights afforded to all U.S. citizens, but also those rights that are theirs due to their status as children, such as the right to food, clothing, shelter, medical care, and education. Children are not, however, guaranteed all of the constitutional protections that are provided to adults.

Custody and visitation issues can arise when parents are divorced or separated, when the parents have never been married, or when some type of reproductive technology, such as surrogate motherhood or sperm and egg donation cases, complicates the issues even further. Courts generally apply a "best interests of the child" standard when determining to whom custody should be awarded.

Divorce is the legal process by which a marriage is terminated. In a divorce proceeding, the parties' marriage is legally ended and the related issues, such as spousal and child support, child custody and visitation, and property and debt division, are resolved, either by the parties' voluntary agreement, through the assistance of a mediator, or after a court trial.

Domestic violence and neglect include physical, mental, and sexual abuse of children, mates, elderly persons, or other vulnerable adults in the perpetrator's household. Abuse and neglect have long-term consequences, but there are legal mechanisms through which victims or interested third parties can seek protection.

Juvenile law relates not only to juvenile delinquency proceedings, in which the juvenile is charged with an offense that would be a crime if committed by an adult, but also to juveniles charged with status offenses, abused and neglected children, and children in need of social services.

Paternity refers to a legal action to establish that a man is the father of a child. A paternity action may be brought in order to impose a child support obligation, establish a right to inheritance, secure consent for the child's adoption, or gain or prohibit custody or visitation rights.

Prenuptial agreements are contracts entered into by a couple in contemplation of marriage. They usually address property issues that may arise in the event of divorce or death, and are often used as vehicles to provide for greater awards of property to children from previous marriages, or when one spouse brings substantially greater assets to the marriage. They are only enforceable under certain circumstances.

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Disclaimer

This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

 




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The Law Offices of Michael R. Magaril
114 S. Euclid
Westfield, NJ 07090
Phone: (908) 389-0100
Fax: (908) 389-0141
Email: mrm@magaril.com