Marriage A marriage is a relationship between or among individuals, usually recognized by civil authority and/or bound by the religious beliefs of the participants. Because marriage often has the dual nature of a binding legal contract plus a moral promise, it is often difficult to characterize. Traditional In some form or another, marriage is found in virtually every society. Marriage has traditionally been understood as a monogamous union. In some parts of today’s world, polygamy is a common form of marriage. However, all states prohibit a marriage to more than one person. Marriage is also prohibited between close family members. A few of the more common restrictions are: A marriage between blood related siblings, parent and child, and aunt or uncle and niece and nephew. Generally the minimum age requirement for marriage is 18 years old, although some states permit marriage at a younger age if parents consent to the marriage. One or both parties must meet state residency requirements. It is mandatory in most states that a formal ceremony of some kind be performed with witnesses and a religious or licensed official. Federal and state laws give married couples many benefits. Such benefits include: Decision making powers about your spouse in case of disability Claimant rights for loss of consortium (loss of interest that one spouse is entitled to receive from the other, including companionship, cooperation, affection, aid and sexual relations) Certain tax advantages Inheritance rights under state intestate succession laws Federal benefit rights including disability, unemployment, social security, veterans’ pension and public assistance benefits Creating a marital estate fund Receive family rates on insurance Avoid deportation of a non-citizen spouse In some instances, many couples find it advantageous to consult an attorney about entering into a premarital or prenuptial agreement. This is useful as it allows them to work through financial issues and the potential disagreements that can be created prior to marriage. Common Law Common law marriage is a marriage that results from the actions of a couple despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state’s statutory marriage laws. Typically this means that a couple has lived together for a significant period of time, while having an agreement to be married and presenting themselves to the public as husband and wife. No state stipulates the exact time period, but generally a ten year old relationship is required. The evidence to prove the necessary intent includes such things as sharing the same last name, filing of joint tax returns and referring to each other as husband or wife. Not every state permits common law marriages. As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another. There are few states that recognize common law marriages: Alabama Colorado Iowa Kansas Montana Oklahoma Rhode Island South Carolina Texas Utah District of Columbia States permitting certain common law marriages: Georgia (if the elements were met prior to January 1, 1997) Idaho (if the elements were met prior to January 1, 1996) New Hampshire (for inheritance only) Ohio (if the elements were met prior to October 10, 1991) Pennsylvania (if the elements were met prior to January 1, 2005) In states which recognize common law marriage, once the requirements are satisfied, the marriage is treated in the exact same manner as any other marriage. Therefore, a valid common law marriage must typically be ended through a formal divorce process. Premarital/Prenuptial Agreement A Premarital/Prenuptial Agreement (referred to as “prenup” for short) is a written contract between two people drawn up before marriage. It generally details any and all property either party owns (along with any debts) and what each person’s property rights will be after marriage and sometimes whether alimony will be paid if the couple should divorce. Also, a prenuptial agreement may state what is to be done about property distribution should one of them die. The Uniform Premarital Agreement Act provides for division of property due to separation, divorce and death, alimony, wills, ownership of property as well as management and control, and life insurance benefits. The states that have adopted the Uniform Premarital Agreement Act are: • Arizona • Illinois • Nevada • South Dakota • Arkansas • Indiana • New Jersey • Texas • California • Iowa • New Mexico • Virginia • Colorado • Kansas • North Carolina • Wisconsin • Connecticut • Maine • North Dakota • Dist. of Columbia • Delaware • Montana • Oregon • Hawaii • Nebraska • Rhode Island Divorce A divorce is the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution in some states) by one party. Some states still require at least a minimal showing of fault (grounds), but no-fault divorce is now the rule in which incompatibility is sufficient to grant a divorce. The major issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney’s fees. Only state courts have jurisdiction over divorces so the petitioner/complainant can only file in the state in which he/she has been a resident for a period of time. In many states, the time period from original filing for divorce and final judgment (or decree) takes several months to allow for a chance to reconcile. From the legalities, divorce gives both parties the legal right to marry another. A divorce also legally divides the couple’s assets and debts as well as determines the care and custody of their children. Every state approaches these issues differently although most states use similar standards. The most relevant issues to be decided during divorce proceedings are alimony or spousal support, division of marital assets, and, if children are involved, child custody, visitation and child support. Grounds The grounds for divorce are set regulations in each state that specify under what circumstances can either party be granted a divorce. A fault divorce is a divorce that takes place on the grounds that one party can be considered at fault. In several states, the couple must live apart for several months before they are granted a divorce. Following is a brief explanation of a few of the many reasons for one party to be granted a fault divorce. Adultery is a consensual sexual relation when one of the participants is legally married to another person. In some states it is still a crime and is grounds for divorce for the spouse of the married adulterer. Extreme cruelty is an archaic requirement to show infliction of physical and/or mental abuse by one of the parties to his/her spouse to support a judgment of divorce or an unequal division of the couple’s marital assets. In some states, evidence of cruelty may result in division of property favoring the suffering spouse. Infertility is the inability to conceive a child or carry a pregnancy to full term. If infertility of the other party was not discussed prior to marriage, this can be grounds for divorce. Abandonment means willfully leaving one’s spouse and/or children, intending not to return, without the abandoned spouse’s consent. Fault or No-Fault A fault divorce traditionally requires one spouse to prove that the other spouse was legally at fault to obtain a divorce. The “innocent” spouse is then granted a divorce from the “guilty” spouse. Today, many states still allow a spouse to allege fault in obtaining a divorce. The traditional fault grounds for divorce are adultery, abandonment (desertion), cruelty, imprisonment, physical incapacity and incurable insanity. Some courts consider fault in determining the amount of spousal support. A no-fault divorce is a divorce in which the dissolution of a marriage does not require fault of either party to be shown. Either party may request, and receive, the dissolution of the marriage, despite the objection of the other party. The following list of states allows no-fault divorce as the sole grounds for divorce: • Arizona • Florida • Michigan • Washington • California • Hawaii • Minnesota • Wisconsin • Colorado • Indiana • Montana • Deleware • Iowa • Nebraska • District of Columbia • Kentucky • Oregon The following list of states indicates those that have added no-fault to traditional divorce: • Alabama • Maine • New York South Dakota • Alaska • Maryland • North Dakota Tennessee • Arkansas • Massachusetts • Ohio Texas • Connecticut • Mississippi • Oklahoma Utah • Georgia • Missouri •Pennsylvania •Vermont • Idaho • New Hampshire •Rhode Island •Virginia • Illinois • New Jersey • South Carolina • West Virginia • Louisiana • New Mexico The following list represents states that consider incompatibility as grounds for divorce: • Alabama • Mississippi • New Mexico • Wyoming • Alaska • Montana • Ohio • Kansas • Nevada • Oklahoma Many states have a “waiting period” before a couple can file for divorce. This is to enable them to possibly reconcile. The following list shows the prerequisite for couples residing apart and filing for divorce: • Alabama - 2 years • Nevada - 1 year • Tennessee - 2 years • Arkansas - 18 months • New Hampshire - 2 years • Texas - 3 years • Connecticut - 18 months • New Jersey - 18 months • Utah - 3 years • Hawaii - 2 years • New York - 1 year • Vermont - 6 months • Illinois - 2 years • North Carolina - 1 year • Virginia - 1 year • Louisiana - 6 months • Ohio - 1 year • West Virginia - 1 year • Maryland - 2 years • Pennsylvania - 2 years • District of Columbia - 1 year • Missouri - 1-2 years • Rhode Island - 3 years • Montana - 180 days • South Carolina - 1 year Annulment An annulment differs from a divorce as it is a judicial statement that there was never a marriage. An annulment means that the individuals were never united in marriage as husband and wife. Currently, most states have annulment statutes. An annulment declares that a marriage, which appears to be valid, is actually invalid. There are two kinds of invalid marriages. A void marriage is one that was invalid from the very beginning. The major grounds for a void marriage are incest, bigamy and lack of consent. A voidable marriage is one that can be declared illegal but continues as valid until an annulment is sought. Fraud is the most common ground for annulment. The misrepresentation, whether by lies or concealment of the truth, must encompass something directly pertinent to the marriage, such as religion, children or sex, which society considers the foundation of a relationship. Physical or emotional conditions may also be elements for an annulment, especially if they interfere with sexual relations or procreation. Other health conditions providing grounds for an annulment include, but not limited to, alcoholism, incurable insanity and epilepsy. Alienation of Affection Alienation of affection is a tort claim for willful or malicious interference in a marriage by a third party without excuse or justification. There are only nine states that consider alienation of affection a viable cause for action: • Hawaii • Missouri • North Carolina • Illinois • New Hampshire • South Dakota • Mississippi • New Mexico • Utah There are five states that have judicially eliminated alienation of affection: • Idaho • Kentucky • Washington • Iowa • South Carolina The following states have statutorily eliminated alienation of affection: • Alabama • Indiana • Nevada • Texas • Arizona • Kansas • New Jersey • Vermont • Arkansas • Maine • New York • Virginia • California • Maryland • North Dakota • West Virginia • Colorado • Massachusetts • Oklahoma • Wisconsin • Connecticut • Michigan • Oregon • Wyoming • Delaware • Minnesota • Pennsylvania • Dist. of Columbia • Florida • Montana • Rhode Island • Georgia • Nebraska • Tennessee Currently, Alaska does not have case law or statutes that clearly address this issue. Louisiana has never recognized alienation as a pliable cause for action and Ohio does not allow (by statute) monetary recovery for alienation of affection. Recently, North Carolina has extended the time frame in which one spouse can file an action for alienation of affection. Alimony, Spousal Support and Maintenance Alimony, also known as spousal support or maintenance, is an obligation of financial support paid by one spouse to the other. There are basically three types of alimony. Permanent alimony is an allowance for support and maintenance (for example clothing, shelter, food or other necessities) of a spouse. A marriage of over ten years is often a candidate for permanent alimony. If permanent alimony is requested, it must be proven that there is a need for support and the other spouse has adequate means and the ability to provide for part or all of the need. Permanent alimony is generally reserved for long-term marriages. Reimbursement alimony is intended for spouses who have supported their partners through years of advanced schooling. Rehabilitative alimony is designed for spouses in shorter marriages who need some assistance reestablishing themselves in the job market and who have a specific vocational plan. The factors the courts consider differ on a state to state basis. Some of the possible factors that weigh on the amount and length of the support are: Length of marriage Time separated while still married Age of the parties at the time of divorce Income of the parties Future financial prospects of the parties Health of the parties Fault in the marital breakdown If the parties fail to agree on the terms of their divorce, the court will make a fair determination based on the legal argument as well as the testimony submitted by both parties. Modification can occur at any future date depending on a change of circumstances by either party on appropriate notice to the other party as well as application to the court. The courts are generally reluctant to modify an existing agreement unless there are compelling reasons. Alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income. In order to qualify as alimony, the payments must meet the following five criteria: 1. Payment is in cash. 2. Payment is received by a divorce or separation instrument. 3. The instrument does not specify that the payments are not for alimony. 4. The payer and the payee are not members of the same household when payments are made. 5. There is no liability to make payments for any period after the death or remarriage of the recipient. Division of Property Division of property between spouses is a difficult issue to resolve during a divorce. There are two different systems in place that each state uses for property division: Community Property or Equitable Distribution. No matter which system is used, each state has its own guidelines for dividing marital property. You should seek legal advice from one of our experienced attorneys as this is a complicated area of family law. Community Property Community property is a system of property division in which all property is divided equally, regardless of whose name it is in, that was acquired during the duration of the marriage, not including inheritances and gifts in some jurisdictions. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In these states, property that was acquired prior to the marriage stays with the party who acquired it. Although some community property states permit equitable distribution where justice is served, rules vary state to state and are filled with exceptions. Equitable Distribution In equitable distribution states, all property, whenever or however acquired, regardless of legal title, is subject to equal or unequal division. “Equitable” does not mean equal. Courts strive for a fair division between the parties and take into consideration several factors to make that determination. There are 16 states in which all property of either spouse is subject to distribution on divorce, in the discretion of the court. These states include: • Alaska • Massachusetts • New Hampshire • Utah • Delaware • Michigan • North Dakota • Vermont • Hawaii • Mississippi • Oregon • Washington • Kansas • Montana • South Dakota • Wyoming Adoption Adoption is the practice in which an adult assumes the role of parent for a child who is not biologically their own and giving him or her all the rights and privileges of one’s own child. Most laws are designed with the best interests of the child in mind, not the best interests of the adult who intends to adopt. The adoption procedure varies depending on whether the child comes from an agency which handles adoptions or comes from a stranger or relative, along with the age of the child and the adoptive parent or parents. Adoption law is generally governed under state law. All 50 states have statutes governing adoption. Public adoption What you face in a public adoption are children who are wards of the state because their parents could not provide adequate care for them, or neglected or abused them. These children are of all ages and most have been in foster homes for a long period of time. Public adoptions are run by a government funded agency. Private adoption Private adoption is a legal method of building a family through adoption without using an adoption agency. The biological parents relinquish their parental rights directly to the adoptive parents. Private adoption is also governed by state laws. Transracial adoption A trans-racial adoption places children with an adoptive family of another race. Such adoptions may be through public and private agencies. However, most trans-racial adoptions take place through the public child welfare system. Intra-national and International adoption Due to a shortage of healthy, Caucasian infants, potential adoptive white parents started adopting children from other countries. International adoption has grown in popularity as more families recognize the need to provide homes for waiting children. International adoption is a wonderful option for people who have been trying unsuccessfully to adopt in the United States. Each country has policies regarding the age, income level and marital status of prospective parents. Single parent adoption As one-parent households become more common, single parent adoption increases. The issue of personal finances and single income families has become less important since adoption subsidies are available nationwide. Summary of Adoption Procedures The formal steps involved in adoption are generally the same in all states. Notice of adoption is given to all parties who have a legal interest in the case, except for the child. The parents seeking to adopt must file a petition in court that contains specific information such as the adoptive parents names as well as the child’s, the child’s gender and age, and the names of the natural parents, if known. Written consent of the agency or the natural parents must be attached with the petition. A hearing is then held so the court may review the qualifications of the potential parents and either grant or deny the petition. Most states require a period of probation during which time the child resides with the adoptive parents and a state agency monitors the development of such relationship. If the relationship is working well for all parties concerned, the agency will recommend to the court that a permanent decree of adoption be issued. However, if the agency feels the relationship in unsatisfactory, the child is either returned to his or her previous home or is taken care of by the state. Following the adoption proceedings, a certificate of adoption is issued for the adopted child which replaces the original birth certificate. The certificate of adoption lists the new family name, the date and place of the child’s birth along with ages of the adoptive parents at the time the child was born. The old birth certificate is sealed away and may only be opened with a court order. If you are considering adoption, please seek the advice of one of our experienced family law attorneys. Child Custody and Visitation Child custody and visitation is one of the most difficult aspects of getting divorced, especially if one parent wants sole legal custody. Couples frequently come to an agreement pertaining to this issue and sometimes the court decides for them. Courts have frequently given mothers physical custody in the past and have given fathers visitation. However, in today’s society, courts have begun to realize that in some instances it in the best interest of the children to live with their father. In order for a court to grant custody, the court must find that the custodian is a fit and proper person and that custody with that person is in the best interest of the children. Physical custody is the right and obligation of a parent to have his child live with him. Legal custody is the right and obligation to make decisions about a child’s upbringing, including school and medical care. Many states usually have parents sharing in legal custody of a child. Divorcing parents face many options pertaining to the division of these rights and responsibilities. Some solutions are: Sole custody: An arrangement in which one parent has both physical and legal custody of a child and the other parent has visitation. Split custody: This pertains to a custody arrangement with multiple children involved. One parent will be awarded sole custody of one child while the other parent is awarded sole custody of another child. The courts do not favor this resolution as they are usually reluctant to split up the children. Joint custody: A n arrangement in which parents who do not reside together share in the upbringing of the children. This can mean joint physical custody where the children spend a significant amount of time with each parent or joint legal custody where the parents share in the decision making pertaining to the children. If custody is contested, many courts make a decision on a custody arrangement by the best interest of the children, including their age and the closeness to the parent who has been their primary caretaker, the physical capability of the parent as well as their mental health, whether or not there is an issue of domestic violence and, depending on the children’s age, what the children’s wishes may be and the purpose for their wish. Visitation is the right to see a child on a regular basis, generally given to the parent who does not have physical custody of the child. Visitation plans should be specific so as to avoid any possible conflicts and avoid confusion. Supervised visitation is an alternative used when a child’s safety and well-being require visits with the other parent be supervised by you, another adult or a professional agency. No visitation is an option used in an extreme situation is which contact with the other parent would be detrimental to the child. Custody and visitation schedules are always subject to change when circumstances affecting the child’s best interests change significantly. Once the conflict of custody and a visitation schedule is settled, there are certain policies that must be followed in order to modify the arrangement. If custody and visitation were determined through a court, then the parties will have to return to court in order to modify said arrangement. If the agreement was reached through mediation, the couple may have to return to mediation to modify said arrangement. Ex parte custody refers to motions, hearings or orders granted on the request of and for the sole benefit of one party only. An ex parte motion mat be used in a case where one parent strongly believes a child is in extreme danger. Many jurisdictions require at least an attempt to contact the other party’s attorney of the time and place of an ex pate hearing. A visitation schedule depends on the child’s age and whether there is somewhere for the child to sleep during the overnight visits. A typical arrangement, depending on the child’s age, consists of every other weekend usually from Friday through Sunday, one evening each week and every other holiday. However, for a child younger than 6 years of age, it is generally recommended by child development experts that visitation may be scheduled for 2 or 3 days weekly of 2 to 8 hours each visit. In some instances, a third party seeks visitation with a child, being a step-parent or a grandparent. Laws vary from state to state regarding this issue. Although a grandparent may be a biological grandparent, the court does not always grant visitation. Several factors play a role in the decision making of the court such as: The grandparent was abusive to their own child; Interference with ordinary parental decision making; or Bad-mouthing one or both parents to the child, creating unnecessary conflict. Seek advice from one of our experienced family law attorneys to assist you with the best interests of both you and your children. Child Support Child support is court-ordered funds to be paid by one parent to the custodial parent of a minor child after a divorce or separation. Generally the amount of child support is based on each parents’ income, number and special needs of the children, and the expenses of the custodial parent. Child support may also include health insurance, school tuition or other expenses. Child support payments are due at a certain time every month. The paying parent can make the child support payments to a child support registry, which will then send the payments to the custodial parent, or can have their wages garnished meaning the child support payments may be withheld from their paycheck. Child support laws vary from state to state. Depending on the jurisdiction, a custodial parent might legally be required to account for how child support money is spent. In the United States, there are 11 states that demand an accounting from the custodial parent on how child support payments are spent: • Colorado • Indiana • Missouri • Oregon • Delaware • Kansas • Nebraska • Washington • Florida • Louisiana • Oklahoma Most generally, to obtain child support, you must request an order for support from a state family court. The court will use a set of guidelines to set the amount of child support paid if the parties are not in agreement of the amount. There are different worksheets used in the calculation depending on the custodial arrangement. The worksheets are available at the Clerk of Court. Either parent may seek a change (increase or decrease) in child support at any time if a substantial change in circumstances occurred after the court entered the order. To ask for an increase in child support, the receiving parent must be able to prove to the court that the paying parent’s income has increased, specifically if the current amount of child support does not meet the child’s immediate needs. Child support may also be increased due to such circumstances as medical treatment, therapy or special tutoring. The paying parent may seek to have child support decreased under such circumstances as a reduction in income, loss of a job or if the custodial parent has an increase in their income. Generally however, courts are disinclined to decrease child support payments. Non-custodial parents who refuse to pay their child support obligation are often termed as dead-beat parents. In 2003, the US Department of Health and Human Services estimated that 68% of child support cases had arrearages. Although a non-custodial parent is not paying court ordered child support, the custodial parent can not interfere in the visitation schedule. In the same sense, the paying parent (non-custodial) can not stop making child support payments because the custodial parent is not in compliance with court ordered visitation schedule. These are matters that need to be addressed in court and an experienced family law attorney can assist you with these matters. If a non-custodial parent does not pay court ordered child support, he/she can be held in contempt or prosecuted for failure to support, therefore being taken into custody and remanded to jail. Your driver’s license and other licenses can be suspended. Your tax refunds can be seized. The courts have numerous options to enforce child support orders. If the biological parents were never married, they both still owe the child financial support. In some cases, the person named as the father denies paternity and requests a DNA test. Once paternity of the child is determined, an order for child support will be entered. Child support generally terminates when a child turns 18 or 21 (depending on state law), or graduates from high school, or becomes self-supporting. Family Law is a very complex area of the law, covering many issues, which require careful, sensitive representation to obtain an outcome that is in your best interest. If you or a loved one are dealing with an issue in this area, contact one of our experienced attorneys for assistance with your situation.