Overview: legal issues in family cases

Henry VIII of England by Joos van Clees (public domain)

Henry VIII of England, by Joos van Clees (public domain)

Parties to a marriage usually promise their love, care, and support will last “til death do us part,” but as the infamous King Henry VIII showed the world, sometimes the commitment fails for one reason or another. When this happens, numerous legal questions arise that must be dealt with.

Thankfully, society has moved beyond spousal execution as a legally-permissible form of marital dissolution, but today, most parties in a family case are still left with a lot to learn during an emotionally-difficult time.

Even when I was a new lawyer first learning about family law, I could have used a quick outline to grasp the big picture of the legal issues involved. In the hopes that others might find an overview to be helpful, here is a quick starting point (not a complete analysis) for understanding the typical issues in most family cases.

Legal Rights

Family cases are almost always heard by a judge (and not merely settled) because the case involves a question of changing someone’s legal rights. For legal rights between the couple, this may be a petition for an order of protection from further domestic violence, or a petition for an annulment, separation, or dissolution of a legal marriage. If there are children involved, the legal questions then get into who gets custody of the children, and what are the visitation rights for the parent without custody.

However, parentage rights may also be petitioned apart from marital questions; for an unmarried couple, there may be a paternity/maternity finding needed. Additionally, the court may be asked to terminate one parent’s rights and/or to adjudicate a petition by another party, such as a step-parent or a grandparent.

Property Division

Once the legal rights question is properly before the court, additional issues may be raised that determine a balance of equity between the parties. Between a couple, this involves determining what property is marital vs. non-marital out of all accounts, real estate, investments, business, pensions, and other property. From there, the court is asked to divide the property in an efficient manner. Additionally, the court may order a portion of the marital estate to be split/frozen in a manner to avoid dissipation of assets, or to pay attorney’s fees or other costs of litigation.

The court may also create ongoing responsibilities as well; this includes alimony and child support. These payments are often determined on the basis of preserving a status quo and/or the needs of the parties. These responsibilities usually continue until such a need is gone, such as once an ex-spouse remarries, or once a child becomes a legal adult and/or graduates college. However, these needs may be asserted in a temporary order even while a case is pending.

A Lawyer Can Help

Because the issues discussed above are often much more complicated and fact-dependent, it is almost always a good idea to contact a family law attorney to help with asserting the above legal and property rights in the context of a court proceeding.

DISCLAIMER: Please do not prepare your own documents / filings after reading this blog, without consulting an attorney first about your specific situation. I make no representations or guarantees here as to the applicability of any claim in your specific situation. This blog is ADVERTISING MATERIAL only, and should not be relied upon as legal advice, especially if you are not an Illinois resident. Please contact me if you have a legal question or concern, as no attorney-client agreement will exist between myself and any readers of this blog unless it is signed in writing.

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