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Family Law

Q : What is Common-Law Marriage?

A : Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of a spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage are Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah. In addition to these states, some other jurisdictions will recognize a common law marriage if it was valid in one of the (common-law) states and meets the statutory requirements in those states, even if it is a jurisdiction that does not have a statute that provides for common law marriage.

The statutory requirements for common-law marriage may differ depending on the jurisdiction. However, many states have similar basic requirements such as

  • Consent of the parties to be husband and wife
  • Mental capacity for consent (including minimum age requirements)
  • Cohabitation (continuous in many jurisdictions)
  • Parties holding themselves out to the public as a married couple
  • Intent of couple to be married

In some states, the couple must also sign a form indicating their agreement to live as a married couple and their intent to abide by commonly held marital duties and obligations. Other states recognize common law marriage between couples only before a certain date. For example, in Georgia, a couple must have entered into a common law marriage prior to January 1st, 1997, anything after that date will not be recognized as a marriage by the state and will not be enforceable or valid. Yet in other states, common law marriages are only recognized by the state upon the death of one of the spouses. If the common law marriage is valid in the state, it will be considered a marriage for inheritance functions only.

Q : Ending a Common-Law Marriage

A : Even though some states recognize common-law marriage, there is no common-law divorce in those states. If a couple married at common-law wishes to terminate their marriage, they must do more than stop living as husband and wife to consider the marriage over. The marriage may not end the same way it was created, instead, there must be a formal procedure and legal process. In most states, the termination of a legal “ceremonial” marriage and a common-law marriage are the same. Parties must file a complaint with the court to terminate their marriage; forms may be for divorce, dissolution of marriage or annulment depending on the state law and the situation. The specific requirements vary by jurisdiction and are contained in state statute. The divorce complaint may also include provisions for distribution of property or assets, spousal maintenance or alimony and custody. It is important to speak to an attorney in your jurisdiction to learn more about the laws regarding common-law marriage and termination of common-law marriage in your state.

Q : What is the difference between an agency adoption and an independent adoption?

A : In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency’s selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

Q : Under what circumstances will the court award alimony or spousal support?

A : The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court will usually award alimony, at least temporarily.

Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.

Q : How is the amount of child support calculated?

A : Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents’ incomes, expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent’s income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge in determining child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including:

  • The child’s standard of living before the parents’ separation or divorce
  • The paying parent’s ability to pay
  • The custodial parent’s needs and income
  • The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)

Q : Once a court issues a child support order, can the amount of support that is paid be changed?

A : The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent’s income through a remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.

Q : How is child support collected if the person responsible for paying it moves to another state?

A : Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child’s home-state court may be stuck with the reduced amount.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer’s new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state’s court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer’s credit report.

Q : What are parents’ obligations to their children?

A : Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child graduates from high school, when the child enters the military or when the child marries, but the support obligation can extend beyond that point if the child is unable to support him or herself. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the non-custodial parent must provide.

Q : How does a court decide which parent will get custody of a child?

A : When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child’s best interests, the court may consider may factors, including

  • The child’s age
  • The child’s gender
  • The child’s physical and mental health
  • The parents’ physical and mental health
  • The parents’ lifestyles
  • Any history of abuse
  • The emotional bonds between the parent and the child
  • The parent’s ability to give the child guidance
  • The parent’s ability to provide the basic necessities, such as food, shelter, clothing and medical care
  • The child’s routines, including home, school, community and religious
  • The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
  • If the child is above a certain age, the child’s preference
  • Who has been the child’s primary caretaker?

Q : What is the legal divorce process like?

A : Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.

  • One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
  • The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse’s response.
  • The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
  • The parties, through their attorneys, engage in “discovery,” during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
  • The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
  • If a settlement is reached, the agreement is submitted to the court.
  • If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
  • At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce. Either or both parties can appeal the judge’s decision to a higher court.

Q : What kinds of assets are divided in a divorce?

A : The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.

The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse’s name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party’s lawyer may help with this issue through discovery, During discovery the parties’ attorneys’ trade documents that disclose each party’s income, assets and liabilities. In addition, each spouse is usually deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.

Q : What terms should be included in a separation agreement?

A : A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members’ needs will be met.

The terms of such separation agreements vary, but the following items are usually addressed:

  • The spouses’ right to live separately
  • Custody of the children
  • A visitation schedule
  • Child support
  • Alimony or spousal support
  • The children’s expenses (medical, dental, educational and recreational)
  • Property and debt division
  • Insurance (medical, dental and life)
  • Income taxes

Q: Family Law

A : The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, child support, domestic violence and other family law matters. Family law has become entangled in national debates over family structure, gender bias and morality. Few legal areas are as emotionally charged as family law and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.

The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse’s contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of “rehabilitation” these spouses can become self-supporting.

Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children’s rights and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.

Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.

Q : What is Pet Custody?

A : The end of a relationship is a difficult time for most individuals. When going through a divorce or separating, a couple must not only deal with the emotional aspects, but the division of marital possessions. Marital possessions may include finances and property, but also include any family companion animals. Custody over the family pet has become an important issue for many divorcing couples in recent years. As lifestyles have been changing, animals have become significant family members. For some individuals, the loss of the family pet may be as emotionally traumatic as losing a human loved one. Since animals have become such a central focus of many families’, custody of such a family member is a main concern of many couples.

Legally, a companion animal is treated as property. The court must view pets as part of the marital property; therefore, the options available to the court are limited. Even though the family dog may be like a child to the couple, the court cannot reflect this feeling when dividing the couple’s property. There is no legal authority to determine custody of a pet with a best interest’s standard, as a judge would when determining custody of a human child. Therefore, the options may be to give one individual custody of the pet, determine the worth of the animal and give one party the pet’s monetary value or sell the family pet and divide the proceeds between each party. There is no option of joint custody or visitation over property. If a couple would like to have dual ownership, or visitation, of their family pet, they must create an arrangement between themselves. The court will not have legal authority to enforce such an agreement. If the couple comes to an understanding regarding visitation or joint pet custody, the court will also not be able to include their agreement in the marital dissolution or the property settlement agreement; nor will the court have the power to enforce the couples’ pet custody arrangement if either party does not abide by the terms.

Naturally, the current legal options are not acceptable to most loving pet owners. In response to the emotional aspect of determining pet custody, some courts have been using an alternative viewpoint. Although there are no specific laws concerning pet custody, there are anti cruelty laws that apply to companion animals. Some courts have used these laws as authority to consider the animal’s best interests when deciding who should get custody of the family pet. Few courts have used this standard; however, it may be more of a growing trend in the future. As pets have more of an elevated status in the family unit, people may demand that their animals be treated as more than property in the eyes of the law. A pet is more important to most people then who get’s the wedding china or the lawn mower. The value of an animal is also more difficult to determine. The market price of the family pet may not take into consideration the emotional worth the pet brings to its owners. Thus, the value of a pet as property may not be truly accurate for the pet owners.

Q : Can Same-Sex Couples Marry?

A : Historically, state laws would only recognize a marriage between a husband and wife of the opposite gender. Some state statutes focused on the issue of same-sex marriage and declared that such a union would not be valid. Other state laws did not refer to gender in statutes regarding marriage. However, the courts in many states have still read the law as not allowing marriage between individuals of the same gender. In recent years, this view has been changing. It is true that the majority of states still do not recognize same-sex marriage, but a minority of states do. Moreover, there are some states that do not have same-sex marriage, but have laws that protect same-sex unions; these include civil unions and domestic partnerships. Presently, there are only two states that have statutes recognizing marriage between individuals of the same gender, California and Massachusetts. Most recently, California’s Supreme Court ruled that any statute that deprived persons of the right to marry (regardless of gender) was unconstitutional. Therefore, California’s marriage statute was changed to include same-sex couples. The law and courts in Massachusetts also recognizes marriage between individuals of the same gender. Other states, such as Connecticut, New Jersey, Vermont and Washington (to name a few) have statutes that recognize civil unions or domestic partnerships and the protections that each affords same-sex couples. However, these states do not specifically recognize same-sex marriage. There are additional states with same-sex marriage statues in the legislatures and it is probable that additional jurisdictions will extend the right to marry to couples of all genders in the future.

Q : What are Civil Unions and Domestic Partnerships?

A : Although most states do not have statutes, giving same-sex couples the same rights regarding marriage as opposite-gender couples, a minority of states offer same-gender couples other protections that are similar to some of the benefits that opposite-gender couples enjoy. Of these protections are civil unions or domestic partnerships. The purpose of a civil union is to give same-sex couples the same rights and privileges as married couples. However, civil union states will still not recognize the union as a marriage. Some of the benefits of civil unions are inheritance/rights of survivorship, family leave, workers compensation, wrongful death claims, adoption and the right to make medical decisions. However, the rights and benefits associated with a civil union are not upheld in states that do not recognize such a union. Similarly, domestic partnerships give same-sex couples some of the rights and benefits that married couples enjoy. However, where civil unions give most of the benefits of marriage, the benefits of domestic partnerships are fewer. The protections that are available for a domestic partnership differ from state to state, but often include survivorship rights and employment benefits. Some requirements for a domestic partnership are that the two persons are cohabitating, both eighteen or older (of the age of majority), not already married, in a civil union or a domestic partnership and (in some jurisdictions) have signed a Declaration of Domestic Partnership form. Like civil unions, domestic partnerships are not recognized by states that do not consider a civil union or domestic partnership valid. In those states, the rights and benefits associated with each type of union will not be extended to the couple.

Q : Who Gets Custody of Embryos?

A : The recent innovations in reproductive technology have helped many couples and individuals achieve pregnancies that may have been impossible just a few years ago. As with many innovations, however, rapid scientific advances have brought with them new ethical and legal dilemmas. Twenty years ago, judges and attorneys who were accustomed to dealing with the often challenging issues of child custody may not have guessed that they would soon be faced with potentially even tougher issues involving custody of frozen embryos.
Take the case of a Tacoma, Washington couple who had two embryos formed with donor eggs and the husband’s sperm “left over” after a successful birth using a surrogate. The couple had the eggs frozen with the intention that they, too, would someday be implanted in the uterus of a surrogate mother. The couple later divorced, and the judge awarded custody of the frozen embryos to the husband. The husband wanted to place any children born from the embryos for adoption in a two-parent family outside the state of Washington. The wife appealed from the court’s ruling, arguing that she wanted to raise any potential children. The egg donor also wanted a say, and sided with the wife. (Source).

A Michigan couple faced a similar dilemma. The divorced couple fought over five frozen embryos for years. The former wife wanted to have more children, using the embryos, but the former husband objected and the case went to court. The judge ruled in favor of the husband, stating that the husband had a right to choose not to have more children. In that case, too, the wife appealed. (Source).

An Illinois court struggled with a similar problem in another case involving frozen embryos, ordering in late 1999 that they remain frozen until the court could sort out the weighty constitutional questions involved. In that Cook County case, the husband and wife were in the midst of divorce when the husband asked the court to order the wife not to attempt to become pregnant through implanting the embryos they had frozen earlier in their marriage. The court issued the requested order, ruling that custody of the embryos would be decided as a part of the divorce trial. (Source).

These cases demonstrate that thorny legal issues may arise when assisted reproductive technology is implemented, further complicating an already stressful situation like divorce. Couples considering assisted reproductive technology are generally only thinking of the potential positive outcomes and fulfilling their dreams of starting a family. Such couples would be well advised, however, to discuss the legal implications of their decisions with their attorneys before the fact, so that if for some reason the marriage does not last,, they will have prepared themselves as well as possible to deal with the legal and ethical challenges presented by their situation. The law does not answer the question of who should have custody over embryos. If the couple has an agreement that settles this question, the court will generally uphold it. However, absent an agreement, courts treatment of embryo custody differs based on the jurisdiction and the situation involved. Due to the uncertainty, it is important to consult with your attorney when choosing to pursue conceiving a child through reproductive scientific advancements.

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