Islamic Family Law

Muslim Shariah Law and Family Court Law

A man can divorce his wife by saying “Talaq” in Islamic Family Law while following the required waiting period. First, he must say it once, then decide to settle or repeat it. Finally, if he says it a third time, the divorce is final.

As there could be many reasons to leave his wife by verbally uttering “Talaq” word.

Divorce Process Under Muslim Shariah Law

The wife has the right to keep the belongings that presented to her at the time of Islamic marriage ceremony declarations called “Nikah”.

The Quran does not allow a husband to ask for his belongings after he decide to Divorce his wife.

Khula and Petition Process in Islamic Family Law

“Khula”, is an option for a wife to file a petition with shariah court to get separation on several factors that causing the marriage unable to continue. There is a chance when man can deny to her allegations and claims and further counter present testimony to judge to justify the claims.

The judge decides whether the man is cooperative or not. If he is cooperative, he signs the filed Khula petition and releases his wife peacefully.

Process, Challenges, and Regional Differences in Khula Cases

In this type of filing, the wife must return the husband’s belongings unless he chooses to let them go and dissolve the marriage peacefully.

If the man ask her to return the belonging and also can reject signing until covering his belongings. It all depends on mutual agreement between the parties.

Local courts in Islamic countries delay Khula petitions making them complex to resolve in a timely manner and causing much damage to many lives.

In foreign countries, the khula petitions are handled in timely manners and much easier than back Muslim countries.

The Mufti or Judge has simplified the petition process. As a result, Muslim sisters can file for Khula and receive results quickly based on investigations and communication between the parties.

Civil Family Court Law

When a couple divorces, there are usually a host of decisions that need to be made. These may relate to issues including asset and debt division, spousal support/alimony, child support, custody and visitation, and other matters.

If a couple is able to come to an agreement about all the major issues before trial, that is called an uncontested divorce. Conversely, if there are one or more significant matters that the couple cannot agree on themselves, it is a contested divorce.

A divorce may start out as contested, but then become uncontested as the parties work out disagreements.

Uncontested vs. Contested Divorce

Uncontested divorce = the parties agree on all the major issues
Contested divorce = the parties do not agree on major issues and will rely on the court to determine the final outcome

In some cases, the couple may disagree about whether to get divorced at all. However, a judge will not require a couple to stay married if one of the parties does not want to be in the marriage.

Since all states allow “no-fault” divorce, anyone can get one, but an uncooperative party can delay the process significantly.

Generally, no-fault divorces are premised on a fundamental disagreement or incompatibility between the parties. When a couple that disagrees on whether or not to stay married, that can be an example of such a fundamental disagreement.

Differences Between Contested and Uncontested Divorce

One of the biggest differences between contested and uncontested divorces is the time it takes to become finalized. Uncontested divorces will usually go through relatively quickly. However, “quick” in divorce terms may still be a long time, depending on your state and courthouse.

Also, an uncontested divorce does not require a trial, discovery, or other time consuming legal procedures. That means that legal fees will be much less expensive in an uncontested divorce than a contested divorce.

No Appeals

Uncontested divorces are not appealable, but certain agreements may be modifiable.

Another difference between contested and uncontested divorces is the extent to which the outcomes are appealable. In an uncontested divorce, both parties agree to the terms. Therefore, they cannot appeal the decision.

Costs, Time Frames, and Modifications in Divorce

However, that does not mean that the parties are stuck with the agreement forever.

If circumstances change significantly or enough time passes, the agreement may be modified depending on the state’s laws. However, since the parties are making the decisions themselves, they are more likely to be happy with the outcome of the proceedings.

If a contested divorce does not settle, the judge ultimately makes the decisions for the couple. The judge may end up prioritizing some concerns over others, but this may not always align with the priorities of the couple.

For example, one spouse may want to keep the house, while the other prefers the car. However, the judge might decide to sell the house and award the car to one spouse. The more control the spouses have over the process, the more likely they are to come to an agreement that they both can live with.

An uncontested divorce has benefits, but sometimes it’s impossible to agree on important matters with your soon-to-be ex-spouse. Keep in mind that the spouses do not need to come to these agreements by themselves.

By hiring skilled divorce attorneys or pursuing mediation, couples can work toward a settlement and resolve their disputes effectively.

Order of Protection in New York

What is an Order of Protection?

An Order of Protection is a court order that tells one person what they cannot do to another person, or what contact is allowed.
Sometimes an Order of Protection is also called a restraining order.

What does an Order of Protection say?

An Order of Protection can require a person to stay away from another person, their home, school and work. The order could also prohibit some types of contact with the other person, or even all contact. The court can make exceptions such as to arrange visitation with a child.
An Order of Protection may allow some contact. However, it will order a person to commit no crimes against the other person or do anything offensive toward the other person.

How long does an Order of Protection last?

While the case is open, the court can issue a temporary Order of Protection. It has an expiration date before the case is closed and it can be renewed as the case continues.
At the end of the case, the court issues a permanent Order of Protection, which usually lasts one year. In certain circumstances, it can last up to five years.

Which courts issue Orders of Protection?

Criminal Court and Family Court can issue Orders of Protection. The person requesting the Order of Protection can go to either or both courts for the same problem.

How do I get an Order of Protection through Criminal Court?

If you are threatened or harmed by another person, you can call the police or go to the police station to report a crime. The police can charge the other person with a crime and during any of the court appearances in Criminal Court, the court can issue an Order of Protection.
The District Attorney prosecutes the defendant for the alleged crimes. You do not participate in the case other than as a witness so you do not need an attorney. And the District Attorney’s office may have a “Victim-Witness Coordinator” who could assist you.

How do I get an Order of Protection through Family Court?

You can file a family offense petition in Family Court to request an Order of Protection.
Additionally, you must have a certain relationship with the other person. So, you can be current or former spouses, be related by blood or marriage, or have a child together. Also, you can have a current or former intimate relationship, which means a relationship that is more than a casual or workplace relationship or a connection through third parties.
You must allege and prove that the other person committed certain crimes against you.
Family Court can issue a Temporary Order of Protection during any court appearance, even if there is no proof yet that the Respondent broke the law.
Either person in a family offense case has the right to an attorney. An attorney will be assigned to represent either if he/she cannot afford one.

Can an Order of Protection be changed?

Either person can ask the court to change the Order of Protection. The Family Court cannot change an order that was issued by the criminal court.
The court might add exceptions to an Order of Protection to allow visitation with a child.
Furthermore, the court might change a “refrain from” Order of Protection to a “stay away” Order of Protection if the situation worsened.
The court might change a “stay away” Order of Protection to a “refrain from” Order of Protection if the situation improves and the two people need or want to have contact.
Before the order expires, it can be extended for a longer period, if there is a good reason for that.

Domestic Violence Victims’ Rights and Information

Domestic abuse is a violent crime within the family structure. Most victims are women, though anyone, regardless of gender, can be perpetrators.

In many states, domestic abuse is categorized as a distinct crime. Accordingly, if an individual strikes their spouse or otherwise causes them harm, they could be charged with both domestic abuse and assault and battery.

Have a Safety Plan

If you are experiencing domestic abuse, have a plan BEFORE you leave. The National Coalition Against Domestic Violence advises victims to prepare before leaving. Specifically, they should gather:

Identification
Legal papers
Emergency numbers
Medication and other essentials

For more help on leaving an abusive relationship safely, call the National Coalition Against Domestic Violence hotline at 1−800−799−7233.

Cycle of Violence

Some states categorize isolated violence as domestic abuse, while others view it as a pattern of violence and intimidation. This pattern often involves one family member using power and control over others to manipulate behavior.

This leads to repetitive psychological or physical abuse, often called a “cycle of violence.” Domestic abuse stems from an abuse of authority, not a gender dynamic, and can take many forms.

It can be committed by either spouse, against children or elderly family members, and occur in both opposite-sex and same-sex relationships.

Forms of Violence

Although domestic abuse is often perceived as resulting in physical harm, such as a man punching or hitting a woman, it has many other insidious forms.

Domestic abuse can be psychological or emotional, involving threats, criticism, humiliation, or efforts to undermine self-worth. Additionally, it can result from imposed isolation, where a family member is separated from others and made dependent on the abuser.

Economic Abuse

Domestic abuse can involve economic control, where one spouse denies access to money or goods as punishment. This is especially common when one family member cannot legally work.

The abuser makes the victim financially dependent, controlling all resources. If the victim disobeys, the abuser can deny access to basic needs.

Finally, domestic abuse may also take the form of sexual abuse, including control over reproductive strategies and forced sexual contact, such as rape.

Violence Against Women Act

In 1994, the federal government passed the Violence Against Women Act (VAWA). It makes it a crime for intimate partners, parents, or guardians to use or threaten physical force against a victim.

The VAWA establishes domestic violence units across the country. It also trains law enforcement to handle domestic violence incidents.

Also, it provides a framework for individuals to seek restraining orders against abusers and requires all states to recognize and enforce these orders.

The VAWA also addresses the unique vulnerabilities of immigrants who may face threats or intimidation by their abusers based on their lack of legal status in the United States.

VAWA allows undocumented immigrants experiencing domestic violence to apply for special visas in exchange for cooperating in prosecuting their abusers.

Restraining Orders

Individuals experiencing domestic abuse may pursue several types of civil and criminal actions against their abusers, including claims of assault and battery, aggravated assault, or even attempted homicide.

One common remedy is the use of a restraining order, which prohibits an abuser from coming within a specified distance of the individual experiencing domestic violence and sometimes their family members.

Restraining orders require the abuser to distance themselves from the individual and to cease all contact. They are often an effective method for keeping individuals safe from violence.

Depending on the context of the abuse, restraining orders may also require that the abuser undergo certain counseling or give up possession of firearms or other deadly weapons.

Child Custody and Support

When the parents of a child are not married or in a relationship, issues may arise regarding the custody and support of the child. It is usually in the best interest of everyone involved if the parents can come to an amicable agreement between themselves regarding support and custody.

Even if parents reach an agreement, it’s wise to file it with a court that has jurisdiction. This protects both parties in case the relationship between the parents worsens later.

Many courts allow parents to file a consent order for custody and support, as long as the agreement benefits the child. To determine this, courts consider whether the agreement is harmful or beneficial to the child’s emotional and physical health.

Petition for Custody and Support

If parents cannot agree on custody or support, one or both can file a lawsuit for court intervention. Courts usually aim to preserve the parent-child relationship. They will not limit a parent’s access to the child without valid reason. When people hear “custody,” they often think of the right to decide the child’s primary residence.

Custody is more complex than just deciding where a child lives. Besides physical custody, custody orders can also define legal custody. Legal custody includes the right to make decisions about the child’s education, medical care, and religious upbringing.

Sole and Joint Custody

In addition to physical versus legal custody of a child, a court must determine whether joint or sole custody is appropriate if the parents have not already reached an agreement about this.

Determining Sole vs. Joint Custody

A court will usually grant parents joint custody unless it is determined to be in the child’s best interest for one parent to have sole custody. If parents share joint custody, however, it may not be an even split.

Factors Affecting Custody Arrangements and Modifications

The court considers factors such as the primary caretaker and the parents’ work obligations. Consequently, one parent may receive more custodial time than the other.

In some cases, such as where one parent resides in a different school district than the child, one parent may have primary physical custody of the child during the school year, and the other parent may have primary physical custody of the child during the summer.

Custody orders are not permanent, and may be modified either upon agreement between the parents or via a petition to the court.

Usually, unless the parents have agreed to modify the agreement, the court will look at whether there has been a change in circumstances significant enough to require a modification, such as a change in the residence of a parent or the child.

How Custody Affects Support

The court will consider the custody arrangement in determining support obligations, but is not the sole determining factor. A parent may be required to provide support payments regardless of whether he or she has joint or primary physical custody of the child.

First, the court will examine relevant factors as set forth within the guidelines of the applicable jurisdiction. The court will generally calculate the support obligations of each parent based on the custody arrangement, each parent’s income, and the expenses of each parent and the child.

Support orders can define which parent is responsible for providing health insurance for the child, and which parent must cover the cost of medical expenses not covered by insurance.

A support order can also outline obligations for the child’s education. Similarly to custody orders, if a parent’s income or living situation changes, the parents can agree to adjust the support obligation. Alternatively, one parent can ask the court to modify the order.

Duration of Support Obligations

In most cases, custody and support orders remain in effect until the child reaches the age of majority or completes high school. In some cases, such as where a child has disabilities, the custody and support obligations continue even after the child turns eighteen.

Additionally, some support orders require a parent to pay for higher education or provide medical insurance beyond the child’s eighteenth birthday.