Family Law Basics

A divorce case is a lawsuit to end your marriage. Your spouse is entitled to some kind of notice (called service) of the case when it is filed. You may have to attend one or more court hearings as part of the case. Your spouse will have the right to notice of court hearings and to attend them.

All states have some form of “no-fault” divorce; that could mean you won’t have to prove your spouse caused the breakdown of your marriage to get the divorce.

If you can’t reach an agreement, the judge will divide property and debts. Some property and debts may be “separate” and won’t be divided between spouses. The judge decides if spousal support should be ordered. If you and your spouse have minor children together, the divorce case often decides custody and child support issues, too.

Your state’s laws will tell you where you can file the case, what property can be divided, when spousal support can be awarded, and what else can be ordered.

Like a divorce, legal issues about children depend on your state’s laws. The other parent of your child is entitled to some kind of notice (called service) of a case when it is filed. Service will be required even if the birth certificate doesn’t list both parents’ names.

You may have to attend one or more court hearings as part of the case. The other parent has the right to notice of court hearings and to attend them. A judge could order testing to determine who is the child’s father.

Generally, the judge looks at what is in a child’s “best interest” to decide custody and visitation. A parent’s job, criminal history, and many other things will be considered. Some states let older children tell the court whom they want to live with. Your state’s laws will determine what the judge will consider.

If you can’t reach an agreement, the judge will decide each parent’s rights. One parent usually gets the right to decide where the child lives. The other parent has a visitation schedule. Often, both parents keep the right to make major decisions about the child’s care, such as medical treatment or education.

Generally, child support is ordered to be paid to the parent with whom the child mainly lives. Some states look at the income and resources of the parent who will pay, along with the number of children that parent has. Other states look at the income and resources of both parents. A child support order can also say who will pay for health insurance and uninsured medical expenses of the child.

When you apply for Medicaid, CHIP, or SNAP for a child, you usually have to agree to seek child support from the child’s parent who doesn’t live with you. A state agency may contact you to start a child support case. If you’re a survivor of domestic violence, tell the agency caseworker and court staff. 

If any part of a custody or child support order isn’t followed, you may ask the court to enforce it. Either parent may ask the court to change an order later. State law will explain how orders can be enforced and when you can ask the court to change an order. Major changes in circumstances are often required to change a court order.

A state agency may be able to file a child support case for you. However, if parents don’t agree on custody, the state agency will ask you to find your own attorney for the case. A state agency may also be able to help you enforce a child support order if the other parent doesn’t pay as ordered.

A lawyer can tell you specifically about your state’s laws, your rights, and defenses. 

To learn more about child support, visit “Parents” at the Office of Child Support Enforcement (OCSE).

To learn more about divorce and custody, and to find legal help, visit LawHelp.org. Keep in mind:

• Legal aid programs have eligibility guidelines. They may ask about how much income you have and what you own. They may ask about your immigration status and other things, so they can see if you qualify for help.
• If you qualify, you could receive free legal advice or an attorney to represent you in the case for free.