Frequently Asked Family Law Questions

Family law is the area of law that governs family relationships – often the dissolutions of those relationships.  Family law is governed by state law, so although the law may be similar from state to state, there are many differences.  What is true in Maine may not be so in other states.  This faq sheet is based on Maine law.

A family law attorney refers to lawyers who represent individuals in matters relating to family relationships.  Matters a family law attorney would handle include:

• divorce
• collaborative divorce
• parental rights and responsibilities (between unmarried parents)
• prenuptial agreements
• dissolution of partnership (for unmarried couples)

Other matters a family law attorney handles might include petitions for guardianship or conservatorship and will disputes in probate court.  On the more pleasant end of things, family law attorneys

A family law attorney will consult with the client to gain an understanding of the relevant relationships, develop a strategy to accomplish the client’s goals and represent the client in negotiations, mediation, hearings, and trial.  The attorney will gather pertinent financial documents and, if necessary, information relevant to parenting ability, such as mental health, criminal history, and other issues.  The attorney may file interim motions to be heard and decided by the judge to govern certain aspects of the relationship while the case makes its way through the legal process.  The attorney will calculate child support, assess reasonable spousal support (alimony), chart property division, and prepare the numerous legal forms that must be filed with the court.

Divorce is the legal process by which a married couple dissolves their marriage.  Issues in a divorce action include:

• grounds for divorce (usually irreconcilable differences),
• division of property and debt,
• spousal support (alimony), and
• payment of attorney’s fees

Where a couple has children under 18 years old, the divorce will also address issues of parental rights and responsibilities, including:

• primary residence (custody),
• parental contact (visitation),
• child support, and
• tax exemptions

Collaborative divorce is a relatively recent and more respectful way for divorcing couples to restructure their families.  In a collaborative divorce, the couple decides not to go to court until they have reached an agreement on all issues in the divorce.  If an agreement is not reached, the attorneys withdraw, and the parties retain new counsel.  Group meetings, voluntary exchange of information, and a team approach to problem-solving replace court hearings, battles for documents and court-imposed solutions.  The process is intended to reduce the bitterness of divorce, give the parties control of the outcome, set an example of good problem-solving for children, and allow for a “divorce with dignity.”  Not every case is suited to collaborative divorce, and both attorneys must be trained.  But if the parties are willing and able, it can provide an appealing alternative to traditional divorce.

For more information about collaborative divorce, see Attorney Mogul’s article.

1. Improves communications: In a Collaborative Divorce, the parties have the opportunity to practice communication in a safe environment. Usually, the trained Collaborative attorneys can keep a conversation under control and prevent the kind of explosive anger that can occur outside the Collaborative setting. As meetings progress, the parties learn how to communicate and listen better. By the end, the parties are often communicating more effectively than they have in years.

2. Sets a good example for children: Children of all ages have some idea of what their parents are going through. The young sense the tension in the environment, and the older children may know the details of particular issues in dispute. Many have heard horror stories from friends’ parents’ divorces. Younger children of Collaborative Divorce will understand that their parents had a “friendly” divorce, while the older children may know that their parents used a different forum to resolve difficult issues with open and respectful dialogue rather than fighting and court battles. The lessons of collaboration help children of all ages to resolve conflicts in their own lives.

3. Creative solutions unavailable through traditional litigation: In the context of the Collaborative meetings, parties and their attorneys have the opportunity to learn about each other’s needs and wants directly. This face-to-face interaction invites exploration that can get behind a party’s position. For example, a spouse’s insistence that they “get the house” can lead to a discussion about the reason the spouse has taken that position. If it’s because the house is in a nice neighborhood near good schools, an alternative might be suggested, such as finding a smaller home in an equally nice neighborhood near another good school. Understanding motives can be a great way to find solutions.

4. Communications unfiltered by attorneys: At a Collaborative meeting, hearing something directly from the horse’s mouth is much more convincing than hearing it from the horse’s lawyer. In addition, direct communication reduces bluffing, replacing negotiating positions and use of scare tactics with honest and productive brainstorming and problem-solving.

5. Master of your destiny: Working collaboratively with your spouse, you control the outcome. In a Collaborative Divorce, the parties are more likely to achieve a solution that is tailored to the parties’ unique circumstances. By playing a more active role in arriving at solutions, the parties have ownership of the outcome. The more ownership and control the parties have over the final settlement agreement, the less likely it is that they will be back to court for violation, contempt, and modification.

6. No winning or losing: If you’re the type of person who needs to win, Collaborative Divorce may not be for you. Rarely will the parties to a Collaborative Divorce come away feeling as if they’ve won or lost. Participants are more likely to leave the process feeling relieved that they were able to reach a fair agreement that will leave each of them secure in their future. If you don’t have the need to win, and you don’t mind if your spouse doesn’t lose, then Collaborative Divorce may be for you.

Many years ago, the amount of child support awarded differed greatly from judge to judge and county to county.  The amount was left to the judge’s discretion, and awards were inconsistent.  In 1995 the Maine legislature adopted child support guidelines, an updated version of which now governs the amount of child support a parent pays and has standardized child support awards regardless of the judge or the county.

The guidelines are a chart that factors the parents’ combined income, the number of children, and each parent’s proportional share of the combined income.  The result is a weekly child support obligation one parent must pay the other.  The formula is based on studies and updates of studies that determined regionally what a couple with a certain combined income would typically spend on raising a particular number of children.  Child support is based on the payor’s proportional share of the combined income.  For example, if mom earns $100,000 per year, and dad earns $50,000 per year, and the children live with mom, dad would pay 1/3 of the amount a married couple earning $150,000 per year would typically spend on raising a child.  The formula considers housing and utility costs, clothing, food, entertainment, health insurance, childcare expenses, and virtually all other expenses of raising a child to the age of 18, or to the age of 19 if the child is still attending high school.

As with many laws, there are exceptions to applying the child support guidelines in unusual circumstances.  Still, the adoptions of the guidelines has provided much more consistency and predictability.  When a couple knows in advance what the amount of child support is likely to be, it is one less issue to dispute, increasing the possibility of an agreed resolution.

Unlike child support, there is no set formula for calculating spousal support.  There are some parameters and some factors for a judge to consider when deciding whether, what type, and the amount of alimony to award.

There are three types of spousal support: general, transitional and reimbursement.

General support:

General support is to give financial assistance to a spouse with less earning potential than the other spouse, so that both can maintain a reasonable standard of living after the divorce.  There is a presumption that if a marriage has lasted less than ten years, there will be no spousal support.  If the marriage lasted ten, but less than twenty years there is a presumption that spousal support will last no longer that one-half the duration of the marriage.  If the marriage lasted twenty years or longer, there is no presumption regarding how long spousal support should last, although it usually terminates upon death or remarriage of the recipient.  Each of these presumptions may be rebutted, or overcome, if the judge decides that the presumptions would lead to an inequitable or unjust result.

Transitional support:

Transitional support is intended to assist a spouse for a limited period of time to provide for the transitional need of a spouse upon divorce.  These may include the cost to relocate, or to become trained or retrained to enter or reenter the workplace or to increase earning capacity such as through education

Reimbursement support:

Reimbursement support is reserved for instances where one spouse has committed financial misconduct, such as through gambling, mismanagement of investments or excessive spending.  It is also available in circumstances where one spouse contributed substantially to the cost of educational or occupational advancement which increased the other spouse’s earning capacity.  This type of spousal support is available when it is not possible to account for such factors in the division of property and debt.

Factors:

There is a long list of factors a judge may consider in deciding whether to award spousal support, the amount and the duration.  These factors include the earning capacity of each spouse, the contribution of a spouse who has limited his or her employment in order to raise children and maintain a home, employment and income history, educational background, the standard of living the couple enjoyed before the divorce, and available retirement benefits, among others.

The most important and overriding consideration a judge uses in deciding issues of parental rights is the best interest of the child.  The parents’ desires are secondary, and unless the child is breast feeding, neither the gender of the parent nor the gender of the child is relevant.

An important consideration is each parent’s capacity to foster a positive relationship between the child and the other parent.  A parent who degrades the other parent in front of a child, or who tries to limit or sabotage the child’s relationship with the other parent is not favored in this assessment.

Other factors considered by the judge include safety, the age of the child, the stability offered by each parent, and the child’s preference if old enough to express a meaningful choice.

Property that either party acquired during the marriage is considered marital property, which is subject to distribution by the judge, and property that was acquired separately by either party before the marriage is that party’s non-marital property which the judge may not distribute and remains the property of that spouse.  As usual, there are exceptions.

 For example, suppose one spouse receives only a gift intended for that spouse, such as an inheritance. In that case, that property is considered the spouse’s non-marital property, so long as it is not mixed in with the marital property.  Gifts from one spouse to the other spouse are the recipient’s non-marital property.  However, where an asset increases in value due to the owner’s efforts during the marriage, the increase in the value of the asset may be marital property.

The judge is empowered to divide the marital property, including marital debt, based on what the judge decides is fair and equitable under the circumstances.  Often, the judge may distribute property so that each party walks away with a roughly equal share of the assets and debts.  However, equitable division is the goal, not necessarily equal division.

The law of marital property is complex.  There are many exceptions to the general rule and many exceptions to the exceptions.  Often the source of funds for a particular asset must be meticulously traced back to its origin in order to sort out whether, and if so, to what extent, a particular piece of property is marital, non-marital or mixed-marital.  Accountants may be employed by either or both parties to help sort through these complex issues.