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Family Law

Marriage
• - Marriage is an institution that carries both personal and legal consequences. Because of the responsibilities that come along with entering into a marriage, the law places restrictions on who can get married that reflect concern for those entering into the marriage contract as well as the moral concerns of the constituency. In order to obtain a marriage license, the parties to the marriage must meet certain requirements including (but not limited to):
  • Minimum age
    – Most states require that any person seeking to enter a marriage without parental consent be at least 18 years of age.
  • State of mind
    – In order to enter into a marriage, a person must be of sound mind (the people must understand the ramifications of their decision). Being of sound mind also means that a person is not making the decision to be married under duress (“shotgun weddings” can be annulled)
  • Disease testing
    – Some states require that people seeking to get married be tested for communicable diseases (at least one state requires being tested for Rabies prior to obtaining a marriage license).
  • Opposite sex
    – While this is an issue of significant controversy, states require that only people of the opposite sex enter into a marriage contract by and large.
  • No prior marriage
    – Being married to more than one person at a time is called Bigamy and is illegal in every state. All prior marriages, if any, must be dissolved (either by death or divorce) before entering into a marriage.
  • Consanguinity Restrictions
    – The amount of relation that people can have to one another and still have the ability to be married varies by state (DISTANT cousins can marry in most states). Just remember that one cannot marry his/her cousin/aunt/uncle/mother/father/brother/sister.
  • Common Law Marriage
    – When a couple exchanges consent, lives together or a period of time, and hold each other out publicly as husband and wife, the result is what is called a common law marriage. This type of marriage does not involve the other legally required steps for marriage and no solemnization is required. The concept of common law marriage has been eliminated in almost every state, but it is important to remember that most states will recognize common law marriages from other states, even if they don’t allow them by statute provide that the marriage meets other requirements. For example, a state that does not recognize same sex marriage will probably not recognize a same sex common law marriage that occurred in another state.
  • Pre-Nuptial agreements
    – We have heard about Pre Nuptial Agreements on television and movies, and they are a reality (albeit a less dramatic version of these exist in the real world). Parties that enter into a marriage can enter into contracts prior to the marriage ceremony and these contracts can include any provision that is not against public policy or illegal. Some of the more common inclusions in Pre Nuptial Agreements include (but not limited to):
    1. Property division
    2. Control of property
    3. Spousal support provisions
    4. Estate issuesPre nuptial agreements are by and large enforceable, however, the agreement must be entered into voluntarily, be in writing and signed by both parties, include a fair accounting of financial worth on the part of both the parties, and be fair. Courts will not enforce a pre nuptial agreement that is unconscionable (i.e. an agreement that will leave one party to the marriage a pauper that will be reliant on public assistance – that would be against public policy). It is highly recommended that both parties consult with separate attorneys before entering into a pre nuptial agreement as this will make the agreement much easier to enforce (and to avoid the appearance of duress).

Rights and Responsibilities
• Name change
  – neither spouse is obligated to change his or her name after the marriage is solemnized.
• Spousal rape
  – Most rape statutes do not include a marital exception, in other words, it is possible for a husband to rape his wife and vice versa. Living apart when the crime occurs is a strong consideration in some jurisdictions.
• Spousal abuse
  – Both parties to the marriage hold the right to be free from mental, physical, and emotional abuse (among other forms of abuse). Some form of protective order is available in all jurisdictions in order to provide shelter to the battered spouse.
• Support
  – Both spouses hold the duty of mutual support. This means that each spouse holds the right to claim support from the other spouse. This right and duty applies to both spouses in regard to children that the couple produce/adopt as well.
• Privacy
  – The right to privacy is recognized by the United States Constitution and the Supreme Court has produced several opinions on the issue. While this right is not unlimited (the government can regulate this right if it can show a compelling public interest), restrictions on the right to privacy are not taken lightly. A few rights that fall under the right to privacy in the realm of family law include:
  1. Right of Marriage to a person of your choosing (with restrictions, such as prohibition of marriage for same sex couples)
  2. Right to make your own procreation decisions
  3. Use and sale of contraceptives
  4. Abortion rights (with many restrictions)
  5. Right to make educational decisions regarding children produced/adopted by the couple (such as taking children out of public school)
  6. Rights to make decisions regarding care, custody, and control of children.

Spousal Immunity
• - A married person cannot be compelled to testify against his or her spouse in any criminal proceeding. However, it is very important to know that this privilege can only be invoked during a valid marriage. If a former spouse is asked to testify regarding confidential communications during the marriage, this privilege can be invoked as well, although it would only apply to communications that took place during the marriage. The privilege that applies to such marital communications survives divorce. This privilege does not apply actions between spouses or in cases in which crime is involved against a spouse or children of the marriage.

Loss of Consortium
• - Loss of Consortium occurs when one spouse loses the services of another spouse through the negligence of another, which means that this concept falls under tort law. The services that can be lost or interfered with range from basic housekeeping to actions of a sexual nature and either spouse can maintain an action for Loss of Consortium.

Divorce
• - In order to terminate a marriage, a decree of divorce from a court of law is necessary. This decree can be based on fault (reasons for a fault based divorce include adultery, mental/physical cruelty, desertion, and drug addiction) or no fault (irreconcilable differences for example). Spousal or child abuse is a ground for divorce and is also illegal (all states allow for some type of protective order to be issued against an abusive spouse). The division of property between the divorcing couple is dependent upon the facts of the case, but most states implement what is called equitable distribution to marital property. The factors that the court will consider under equitable distribution include age, education, vocational skills, standard of living during the time of the marriage, and health of the parties. A few states follow what is called the Community Property standard which means that marital property is divided equally. A decree of divorce typically includes any agreements that the divorcing couple has reached including alimony, child custody, visitation, and division of property.

Annulment
• - An annulment is different from a divorce because in the eyes of the law, a marriage that is annulled is treated as if it never happened. Annulled marriages come in two types: A void marriage is voidable from the outset (i.e. the parties cannot ratify the marriage after the ceremony) and voidable (meaning that the parties to the marriage can ratify it, even if the marriage was in contra a statute). The grounds for annulment include the following:
  1. Bigamy – if one of the parties has a living spouse at the time of the marriage, the subsequent marriage is void.
  2. Consanguinity – most states do not recognize marriage to persons who are too closely related (i.e. a person cannot marry his or her cousin etc). These types of marriages are considered void far and wide.
  3. Nonage – Every state has a minimum age that a person must be in order to be issued a marriage license. If the age requirement is not met for any reason, a marriage that involves a minor can be annulled. This type of marriage can be ratified once the minor reaches the age of majority. In some states, there is no ratification for any marriage that involves a minor.
  4. Impotency – failure to consummate the marriage is a ground for annulment. However, ratification is also possible here.
  5. Lack of Capacity – a marriage that involves a person that lacks the capacity to consent to the union (such as a person under extreme duress, or a person who is mentally challenged) is subject to annulment, however, the parties can also ratify this type of union.There are some important things to remember in terms of annulment. There is only really one defense to annulment, and that is that the defect does not exist. The children that are the fruits of an annulled marriage are treated the exact same as marital children are treated in a divorce action (entitled to child support, visitation etc). Spousal support is generally not available in an annulment situation. Finally, as a general matter, courts try to put the parties to an annulled marriage as closely as possible to the position they were in when they got married and each party will generally receive the property to which he or she holds legal or equitable title.

Spousal support
• - This is also commonly known as alimony. During the course of the marriage, both spouses have a duty to support one another (i.e. each spouse is liable for necessaries such as medical care, food, and clothing). Once the marriage ends, this duty of support sometimes continues. Spousal support generally comes in two types: Lump sum (in which the court awards a specific amount of money to one spouse) which is not modifiable and survives the death of either spouse, and periodic, which terminates at the death of either spouse or the re marriage/co habitation with a person of the opposite sex of the receiving spouse. When determining the amount of spousal support, the court will generally consider duration of the marriage, standard of living during the marriage, contributions made by the parties during the marriage, and earning capacity. Spousal support that is periodic in nature is modifiable, but only by a court order combined with a substantial change in circumstances in terms of the ability of the payor to pay or the needs of the recipient spouse.

Child support
• - In any circumstance where one parent is not living with the child, the absent parent is obligated to pay child support for each child that was born during the marriage. This does not apply to any child that a person has not helped produce or adopted – you do not have to pay for a child that is not yours. If child support payments are being sought from a person that is not a parent of the child, a paternity test is necessary.The most important thing to remember when thinking of child support is that this is a legal right that children hold (the right to be supported physically by their parents until the age of majority) completely separate and apart from any right that the former spouse has to any support. A failure to keep up with child support hurts the children (and possibly the delinquent payer) and no one else. If you are ordered to pay child support, it is absolutely essential that your payments are kept current for the sake of the children who hold the right to that support. The amount that a person must pay in child support is modifiable only with a substantial change in circumstances of the payor (such as a loss of employment or illness that prevents a person from working). Late payments cannot be retroactively modified however. Consequences of late payment of child support include orders to pay attorney’s fees, wage garnishment, and loss of real property.

Child Custody/Visitation
• Disputes over custody and visitation can be traumatic for both the parents and the children involved. As a general matter, a person is entitled to see his or her children unless that person puts his or her children in danger or is unable to care for the children. In other words, it is very difficult for a person to lose his or her parental rights. It is important to remember that there are circumstances where one can lose his or her parental rights however (such as abandonment of the children – in some states for as little as six months – combined with a lack of payment of child support). No person can have his or her rights taken away without a trial before a juvenile court judge. That does not mean, however, that limits cannot be placed on what kinds of contact that a person is allowed to have with his or her children. For example, if a person is a drug addict, a family court judge is not going to give that person unfettered visitation with the children, rather, the visitation is likely be supervised by someone appointed by the court.When determining custody/visitation issues, the court must determine what is in the best interests of the child. Some states allow the child to be a part of this decision when the child reaches a certain age (generally, the age that is used is in early adolescence). This is not always determinative however. For example, if a child wants to live with one parent who spoils the child and provides no structure, it is unlikely that the “cool” parent will get sole physical custody. The determining factor is always what is in the best interest of the child, and more often than not, a court is likely to decide that it is in the best interest of the child to have both parents in his or her life. The bottom line is that anyone, unless there are aggravating factors, who has participated in the child rearing process has the right to see his or her children. Aggravating factors that can lead to limitations on custody/visitation, or even a termination of parental rights (although this is exceptionally rare), include:
  1. Mental Illness
     – mental illness can interfere with one’s ability to provide a safe and stabile environment for children and may even prevent a person from being able to care for his or her children. Supervised visitation is usually called for in cases such as this.
  2. Past History of Abuse
     – When there is a past history of abuse on the part of one or both parents, a court will not allow the child to be put in harm’s way by allowing that child access to the abuser with unsupervised visitation. The court may decide that the child is safe with neither parent and decide to grant both parents supervised visitation. Again, the court must consider the best interests of the child.
  3. Delinquency of Child Support
     – When child support is ordered as part of the divorce decree, the payer must stay current on those payments. When thinking of child support, it is very important to remember that this is a right of the child, separate and apart from any rights of support that the former spouse might be entitled to denying children their right to support only hurts the children. Not staying current on child support payments can lead to severe consequences including jail time, garnishment of wages, and court fines. In very severe circumstances, such as abandonment (for as little as six months in some states) combined with delinquent child support payments, parental rights can be terminated completely. For the reasons listed above, it is absolutely essential that child support payments are kept current.
  4. Drug Abuse
     – Abuse of illegal or even prescription drugs can lead to having limits placed on the access that you have to your children. Obviously, drugs can interfere with a lot of things, most notably decision making and judgment. No court will allow a person that is known to abuse drugs unfettered access to his or her children. However (once again) this by itself is not a ground for a termination of parental rights, but can lead to having limits placed on any contact that you may have with your children.
  5. Mediation
     – Mediation is an alternative to litigation that is widely used in the domestic realm. Mediation, essentially, is when parties get together in front of a mediator (a ringmaster, so to speak), and at least make an attempt to come to an amicable solution. In many states, this is required if there are contested issues in any complaint for divorce, such as disagreements over custody and child support/alimony amounts. While solid statistics are hard to find, it is widely reported that agreements reached through mediation have a very high success rate of compliance. What this means, essentially, is that couples that resolve their divorce issues through mediation tend to spend less time in court than couples that don’t partake in mediation. This method of dispute resolution has become very popular and highly recommended (if the parties will submit to it). The attorneys at 1Law are prepared to assist you through the mediation process (if necessary or desirable).
  6. Adoption
     – In a nutshell, adoption means to terminate a child’s relationship with his or her natural parent, and forming a relationship with a new parent or set of parents. The adoption process varies by state, but there are some general principles that do apply to any adoption that include:
     • Consent of the natural parents – this can be waived if a court feels that consent is being withheld in contra the best interests of the child. In any case where a person’s parental rights are at stake, that person has a right to notice and a right to be heard. Nobody’s parental rights can be taken without some type of court procedure, and a trial is usually required.
     • Consent of adoptee – the age that a child must be in order to require his or her consent to an adoption varies by state, but generally, if a child is twelve or over, the consent of the child must be obtained in order for an adoption to take place.
     • Court approval – all adoptions require some type of court approval and this usually involves some type of investigation into the fitness of the prospective parents.
     • Compensation – it is prohibited across the board that the natural parent be compensated for anything other than medical costs related to pregnancy.
     • Confidentiality – adoption records are usually sealed, which means that the proceedings are not available to the public, including the adoptee.
     • Adoption results – Once an adoption is completed, the responsibility for the child’s care transfers to the adoptive parents. This means that the adoptive parents are listed on the birth certificate and the natural parents are no longer obligated to care for the child