Family Law Defined
Family law is a broad area of the legal system that focuses on the legal relationships between family members. In the majority of cases handled by family law attorneys, we are focused on the law around divorce and divorce settlements between spouses, and custody agreements between parents. A family law lawyer can also help with a number of other legal services , including: Family law can be a complicated area of the law that requires deep knowledge and understanding of the legal systems in place. In these litigations, knowledge of the law is only a part of the job; the vast majority of these negotiations hinge on interpersonal relationships and emotional intelligence. The goal is always to arrive at a favorable conclusion, but there are often many complex obstacles on the way to that conclusion, making family law an intense and oftentimes difficult area of legal practice.
Role of a Family Law Attorney
A family law lawyer is responsible for a variety of tasks related to the legal issues at hand. One of the primary duties of a family law attorney is to provide legal advice to their clients. This may include counseling on matters such as alimony, child custody, visitation rights, and property division. The attorney must be familiar with the laws in their state to properly advise their clients on their legal rights and potential outcomes of their case.
In addition to providing legal advice, a family law lawyer is responsible for representing their clients in court. This may involve filing petitions, motions, and other legal documents on their clients’ behalf, as well as attending court hearings and advocating for their clients’ interests. An attorney must be well-versed in legal procedures and rules of evidence to effectively represent their clients in court.
Another important duty of a family law attorney is to prepare legal documents related to their clients’ cases. This may include drafting divorce complaints, child custody agreements, prenuptial agreements, and other legal documents. The attorney must be skilled in legal writing and analysis to effectively draft these documents and ensure their validity.
Finally, a family law lawyer is also responsible for negotiating settlements between their clients and the other party. This involves communicating with the other party and their attorney to reach an agreement on the terms of their divorce or other legal matter. An attorney must be an effective negotiator to help their clients achieve the best possible outcome.
Overall, a family law lawyer plays a vital role in representing their clients in legal matters related to divorce, child custody, and other family issues. They are responsible for providing legal advice, representing their clients in court, preparing legal documents, and negotiating settlements.
Divorce and Legal Separation
During a Divorce or Legal Separation, the Family Law Lawyer assists the client in preparing a Petition for Divorce or a Petition for Legal Separation. A WARNING – this Petition is a document that includes lots of very personal and often sensitive information about the parties and the children. Not ever explaining to the client that the client should be prepared to file this document in Court and/or handing the client a copy of the document that includes lots of personal and sensitive information can be disastrous for the client and the attorney. First steps may prove to be crucial in a case!
These documents define the marriage, the wife and the husband; the marriage date, location, which spouse is filing; the custody, parenting time request and child support issues; the property to be divided; debts for which the parties are liable and requests as to how those debts will be paid; request for any retirement plans or money in bank accounts; requests for alimony, who will be responsible for certain expenses and attorney fees.
Then, between lawyers and client, negotiations occur. Those negotiations often include cash payouts, division of personal property, allocation of debt, assets, alimony, medical insurance, medical expenses, child support, retirement, college, parenting time (including vacations, holidays, birthdays etc). Each case is completely different. This is just an illustration of some of the issues.
When you are preparing for a divorce or legal separation, you need to list ALL of your income and show where the money comes from. You will need to provide answers to questions about how much cash a month you spend on yourself and the children – for fun, for health, for clothing, and food, share bills and more.
It is also important to discuss at the very beginning of an action, what may or may not happen to support. Sometimes, parents will agree to what is going to happen, and sometimes, people want to come to court and start fighting and spend as much money as possible. Be honest with your lawyer! Tell them exactly what you want, even if it is unfair, impossible or unrealistic. Most lawyers like to know what the parties have in mind, even if it is " pie in the sky".
Child Custody and Child Support
A lawyer who practices family law deals with a host of issues such as child custody and child support. In all matters relating to children, a lawyer puts the interests of the children above those of the parties. When parents separate or divorce, there are a number of questions that immediately arise, such as where the children will live, how long any access will be, when the children will switch houses, etc. Depending on the age of the children, they may want to have a voice in where they spend their time. When there are disputes between parties, the lawyer is often the one who has to help either draft these types of terms so that they end up as Attachment A in their consent orders or argue to a judge what is fair and in the best interests of the children. Of course, family lawyers cannot draft terms that are not agreed upon by the parties, nor can they force a judge to agree with them.
The divorce lawyer will also ensure that child support is properly calculated according to the Child Support Guidelines and any Federal Income Tax Act implications. A lawyer will ensure that the child support remains appropriate as the children age, and that any income changes do not negatively impact the child support award. Where there are disputes about paying child support, the lawyer will present to the court what is fair, reasonable and in the best interests of the children.
In Canada, the Divorce Act provides for shared parenting and split parenting so that parties have flexibility and choice when arranging their schedules for holidays, weekends, etc. The family lawyer in Calgary may have to explain to the judge how these shared or split arrangements occur and why they are important to the parties and their children in a way that still shows that the greatest concern is the quality of the child’s best interests. A good family lawyer will assist the court with expert witnesses who can provide opinions on what is best for the children.
Adoption and Guardianship
Adoption and guardianship are also common issues for family law lawyers. Although these may not fall under the umbrella of "family law" in the typical sense, and may seem outside this list of topics, these areas do intersect with family law. Ontario family law lawyers typically do handle adoption and guardianship issues for clients.
Family law lawyers can help with both the adoption of children and the adoption of adults. In some cases, a family law lawyer may only be required to be involved in the adoption process because the lawyers will assist in the drafting of different forms. Other times, family law lawyers do appear before the courts for the adoption application.
The lawyers may represent the adoptive parents or the birth parents, depending on the case. For example, if you are an adoptive parent, the family law lawyer will assist you in appealing a decision, if the process does not go in your direction. Family law lawyers will help with the case to ensure that the case precedes properly in court.
Alternatively, family law lawyers may represent the birth parents in an adoption setting. For example, you may have agreed to an adoption, but you are not being dealt with fairly throughout the process. You believe that you are being pushed into a decision that you do not want to make, even if it would be in the best interests of your child . In these cases, a family law lawyer will represent you throughout the process.
A legal guardian is a person that has been appointed by the court to make decisions on a child’s behalf. Without the proper authority, the guardian does not have rights over the child. For example, if a child was being adopted, but the adoptive parents were not acting in the child’s best-interest or were abusing the child, the child’s legal guardian would be able to take the child out of a bad situation.
To determine whether a guardian is needed for a child, the judge in a case must decide whether there are any conflicts in the case. Before a judge is appointed a guardian, the court will determine whether the parents are being abusive or neglectful. If that is the case, the child’s legal guardian will have full authority over the child until they become an adult.
Family law lawyers are involved in the process of appointing a legal guardian. This will typically be the lawyer’s first step. Once the appointment is in place, the guardian will make decisions about the personal care of the child, including medical decisions or educational decisions. The guardian will also make decisions about the child’s treatment plan, when applicable.
Family law lawyers may represent the parent if they object to the appointment of a guardian. Alternatively, family law lawyers may also represent the legal guardian, depending on the case.
Family Law in Domestic Violence Matters
Family law attorneys serve a critical role when it comes to domestic violence cases. Family law attorneys know the ins and outs when it comes to domestic violence and can help you gain the protection that you may need and want.
Domestic violence is defined under Idaho Code ยง 18-918 as: "Physical abuse or threat of physical abuse, either actual or perceived, of a present or former spouse, or a person with whom the abuser is residing, or has resided, or was previously dating, or is in an ongoing relationship, or with whom the abuser has a child in common."
A family lawyer can help you obtain an ex parte or a protection order. An ex parte can be obtained the same day you file for a protection order. After the ex parte is granted, the actual hearing to determine if a protection order will be granted will be held the following month. Family attorneys will represent your interests at both of these hearings.
To win a protection order, you need to establish to the satisfaction of the court three things: (1) that you are a victim of domestic violence or harassment; (2) that the abuser or harasser is likely to do further acts of domestic violence or harassment in the immediate future if the order is not granted; and (3) that the wellbeing of you and your family will be seriously jeopardized if the protection order is not granted.
A protection order can provide restrictions on an abuser such as prohibiting them from entering into the premises of an abused person’s residence and contact the abused person. A protection order can serve the purpose that the abuser is prohibited from contacting the victim but how do you obtain a divorce and custody of the child when the abuser is still in the same house as you and your children? How do you divide the community assets? How do you protect yourself financially?
One of the things you should look for in hiring a future family law attorney is that they are experienced with domestic violence cases. Family law attorneys that are experienced with domestic violence cases will be able to help you create a solid plan in moving forward with your divorce and child custody case.
An Overview of Mediation and Conflict Resolution
A significant portion of the work that a family law lawyer does is actually to facilitate mediation and conflict resolution, rather than going into court. For example, at my last case management conference with Judge D.A. Hoshizaki of the Alberta Court of Queen’s Bench, he stopped the files coming before him and suggested that they all try to resolve their matters through mediation. He indicated that there were 4 major benefits to this:
- You will never meet these people again as long as you live,
- You will never see another family member again,
- Difficult decisions must be made by people who know nothing about you,
- You are creating an environment for further conflict in the future.
He indicated that he has never known any family to walk away from court with the "perfect" decision and that there is always compromise. He also advised that litigation is not the place to solve historic issues and bring up all of the historical issues for the first time in front of a stranger to both parties. Family law litigation is about resolving the difficult situation you find yourself in at the present moment and the goal of mediation is exactly that. As a mediator, I too have never met a family that has been completely satisfied with the end result. As a result, my preference is to facilitate negotiations and conflict resolution for families prior to going to court. I find that for most people, mediation is a better option than going to court. Mediation is private, voluntary and no one leaves feeling like they have lost. A family law lawyer can assist in the process of facilitating this practical approach rather than going to court.
Conclusion: The Role of Family Lawyers
In conclusion, the work of family law lawyers is extremely important in dealing with complex legal issues that impact a person’s life. Without their work, many likely would not have had justice or support in the face of family breakdown. Family lawyers in the public sector perform an invaluable service in pursuing child support payors and seeking to remove barriers to children’s wellbeing and stability . In the private sphere, family law lawyers assist in negotiating agreements and seeking justice through the courts when parents cannot reach an agreement on the future parenting of their children. They help educate their clients and the general public about their rights and responsibilities, the processes involved in coming to resolution and the likely outcomes. Family law lawyers are at the front lines of helping with some of the most traumatic times in one’s personal life. They provide much needed support during challenging times.