Lesson 48: The Family Court System

From the Divorce section of How You Can Avoid Legal Land Mines by Joseph S. Lyles (2003).

Divorce, custody, child support and similar cases are handled in many states in a special court, often called a Family Court. In other states the regular trial courts handle those cases. However, in most jurisdictions family law cases are decided by judges, not juries. Nonetheless, a few states allow juries to decide some aspects of these cases.

Family Courts may also decide cases such as juvenile crime cases and name changes. Family law litigation has become much more common over the last several decades. This rapid increase in divorce, custody, child support and juvenile criminal cases is often described as an explosion. Thus, there is a definite need for specialized courts to deal with these cases. There are those who argue that Family Court judges become too jaded to make good decisions and that the right to a jury trial should always be available to litigants in these cases, but a major change in this court system seems unlikely to occur.

In addition to having different systems of courts, states also have different laws concerning family law issues. For example, it is very easy to get a no-fault divorce in Georgia, Nevada, and Washington State. However, in South Carolina, to the contrary, you have to attend a hearing and present at least one witness before you can be awarded a no-fault divorce. Also, some states require that you live in the state for a year before you have access to its courts for a divorce, while others only require a few weeks or months.

Laws concerning alimony, child support, and marital property distribution also vary tremendously from state to state. The biggest difference is that some states are community property states and some are not. In community property states each spouse automatically has a one-half interest in all marital property (property acquired during the marriage). In other states the spouse’s interest in marital property is determined by the court based on such factors as: his or her contribution to the acquisition of the property; his or her contribution to the marriage; special needs of a spouse or the spouse’s ability to support oneself. The general tendency of the courts is to split the property 50/50 if the couple has been married for 10 or more years. Inheritances and gifts are usually not married property, but there are exceptions to that rule (as with most legal rules).

Child-support law varies from state to state, with some states requiring that a greater percentage of a spouse’s income go to child support than others. In some states the courts must apply a formula based on the parties’ respective income levels that is specific and consistent. Others allow the courts more discretion in setting child support levels. While there is a federal law that establishes a national child support collection system, the basic support amounts are set according to the state with jurisdiction over the child to be supported. Interstate collection of child support is typically slow, cumbersome and inconsistent.

Litigation in family court is often very stressful, complex, time-intensive and consequently expensive. Often feelings of betrayal, revenge, guilt and failure color the cases. Divorce always causes a net loss economically because two homes are more expensive to maintain than one. It is not unusual for a middle or working class family to be bankrupt after a divorce. Divorce contributes to the poverty and homelessness of many people, including children. But, for the foreseeable future, divorce is here to stay. If you find yourself facing a divorce or other Family Court case I strongly recommend that you learn as much as possible about the particular laws that apply to your case. Details are very important in family law cases, as is financial information. Try to gather as much evidence as you can before you walk into a family courtroom because it truly is a legal minefield.

The Lesson: The Family Court system, particularly as it applies to divorce and child custody, is complex and generally produces results that are, to varying degrees, unsatisfactory to every party involved. For this reason you should work hard to negotiate an amicable, legally valid settlement which can be presented to the court for approval. However, prior to agreeing to any terms in a settlement, document your case as thoroughly as you can, choose your attorney carefully and keep a lid on your expectations. While it is always desirable to settle a Family Court case, you must do the preparation to insure the terms are fair and reasonable to you. If you have to go to trial, be prepared for disappointing results.