Family Law Overview

Photo credit: Bruno Nascimento. A woman smiles and embraces a young child

What is Family Law?

"Family law" is the term lawyers use to describe laws that affect families.  The most common types of "family law" cases are:

  • divorce (with or without children) and
  • parental rights (where non-married parents address issues relating to their children).

"Family law" also includes adoption, state termination of parental rights, protection from domestic abuse, and other family-related issues. On this page, we'll talk about divorce and parental rights.

Where can I get help with a divorce or other family law matter?

Many legal services offices serving low-income families handle family law matters for free.  Find an office near you. Or try getting legal help from a JAG or civil legal assistance officer in your state (serving active duty servicemembers and their families and retirees).

Can I get a divorce if my spouse is in the military?

You may have heard that this is not possible. It is true that federal law provides some protections for servicemembers against lawsuits.  This includes divorces.  This law assures servicemembers that they do not lose their rights to defend against lawsuits while doing military service.  This is especially important for those serving overseas. But if a servicemember is in the U.S. and available, or waives his or her right to oppose, a divorce may still be processed during the term of service.

What issues will be decided in a divorce?

Divorce laws vary from state to state. In general, the court can decide a number of issues. First and foremost, the divorce order will end the marriage. If you have children, it will likely address:

  • where the children are going to live,
  • where and when the other parent can visit the children
  • who will be able to make decisions about the children and their well-being
  • how much child support will be paid, and
  • who will provide health care coverage

You may also address who gets to claim the child for tax purposes and how to divide up any expenses that child support doesn’t cover.

Sometimes a court will appoint a person to look out for the children’s best interests. This person may be called a Guardian ad Litem, a Friend of the Court, or something else. In general, this person’s job is to investigate the situation, speak with the parents and children and make recommendations to the Court. Ultimately, though, the Court makes the final decisions.
 
The court may also decide:
  • who will get any real property (like a home),
  • who gets certain personal property,
  • who will pay on the debts, and
  • whether anyone will pay alimony or spousal support.

It will also address what happens to retirement accounts, whether property is marital or non-marital and who pays attorneys fees (if there are any).

What if we're not married but have children together?

You can still get a court order deciding issues relating to your children.  The Court's order will address all of the child-related issues listed above. 

What if there is a question about who is the father of a child?

The court can also address any paternity issues. Often this is done through a divorce or parental rights case. Sometimes, the State may bring a case to determine paternity. This is most likely where one parent is getting TANF (welfare benefits). 
 
If there is any doubt about the paternity of a child, get a paternity test. Do this sooner, rather than later. Once you acknowledge paternity, or a divorce court assumes you are the father, it can be very difficult to undo the consequences. If you have questions about the legal issues around paternity, try to talk to a lawyer.
 
This is very general information about how the state divorce laws work.

July 2018