- What is the difference between an agency adoption and an independent adoption?
- Under what circumstances will the court award alimony or spousal support?
- How is the amount of child support calculated?
- Once a court issues a child support order, can the amount of support that is paid be changed?
- How is child support collected if the person responsible for paying it moves to another state?
- What are parents’ obligations to their children?
- How does a court decide which parent will get custody of a child?
- What is the legal divorce process like?
- What kinds of assets are divided in a divorce?
- What terms should be included in a separation agreement?
- Learn More: Family Law
In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.
Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.
Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency’s selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.
Alimony is authorized, but not required, to be awarded to either party in accordance with the needs of the party and the ability of the other party to pay.
In determining whether or not to grant alimony, the court shall consider evidence of conduct of each party toward the other.
- Standard of living established in the marriage
- Duration of the marriage
- Age and physical and emotional condition of both parties
- Financial resources of each party
- The time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment
- The contribution of each party to the marriage, including but not limited to, services rendered in homemaking, child care, education and career building of the other party
- The condition of the parties, including the separate estate, earning capacity and fixed liabilities of the parties
- Any factors that the court deems equitable and proper
Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents’ incomes, expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. The purpose of guidelines is to aid the judge in determining child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.
Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including:
- The child’s standard of living before the parents’ separation or divorce
- The paying parent’s ability to pay
- The custodial parent’s needs and income
- The needs of the child or children, including educational costs, day care expenses and medical expenses (health insurance or special health care needs)
The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.
When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, the reasons supporting and opposing the modification. The general grounds for a child support modification are a change in circumstances that justifies the modification such as a significant increase or decrease in either parent’s income, or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
One way to enforce is to file a contempt or enforcement action in Georgia. As long as the order was issued in Georgia and the moving party/custodial parent continues to reside in Georgia, they can get served in other state and come back to Georgia to fight the enforcement.
If jurisdiction is not proper in Georgia (neither parent lives in the state anymore) then the custodial parent must file an enforcement action in the state and county where the noncustodial parent lives.
The custodial parent always has the option of contacting the office of child support enforcement to get advice on interstate on child support collection.
Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child enters the military or when the child marries. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the noncustodial parent must provide.
When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child’s best interests, the court may consider many factors, including:
- The child’s age
- The child’s gender
- The child’s physical and mental health
- The parents’ physical and mental health
- The parents’ lifestyles
- Any history of abuse
- The emotional bonds between the parent and the child
- The parent’s ability to give the child guidance
- The parent’s ability to provide the basic necessities such as food, shelter, clothing and medical care
- The child’s routines, including home, school, community and religious
- The willingness of the parent to encourage a healthy, ongoing relationship between the child and the other parent
- If the child is above a certain age, the child’s preference
- Which parent has been the child’s primary caretaker
Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.
- One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why file for the divorce.
- The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse’s response.
- The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
- The parties, through their attorneys, engage in “discovery,” during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
- The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party such as a mediator.
- If a settlement is reached, the agreement is submitted to the court.
- If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
- At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
- Under certain circumstances, either or both parties can appeal the judge’s decision to a higher court.
The parties in a divorce can agree to the division of (or the judge will divide) all marital property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.
The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse’s name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party’s lawyer may help with this issue through discovery. During discovery, the parties’ attorneys exchange documents that disclose each party’s income, assets and liabilities. In addition, each spouse may be deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed such as employers, bankers or business partners.
The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, 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 and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.
Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but 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 also presents 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 through alternative dispute methods such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, nonadversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.