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FAMILY LAW

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CHAPTER 53 CHAPTER 53

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Premarriage Issues

• Promise to Marry– 19th century courts recognized actions for

breach of a promise to marry.

• Today, courts do not recognize this breach.– Persons breaking engagement could be

responsible for costs incurred.

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Engagement

• Fault Rule: If groom breaks engagement, woman keeps ring. If she breaks engagement, she returns ring.

• Objective Rule: If an engagement is broken off, the prospective bride must return the engagement ring, no matter who ended the engagement.

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Prenuptial Agreements

• Contract entered into prior to marriage.• Specifies how property will be distributed upon

termination of the marriage either by divorce or death.

• Each party must make full disclosure of all assets and liabilities.

• Each party should be represented by an attorney.

• If not voluntarily entered or if unconscionable, may be unenforceable.

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Marriage

• Legal union between spouses.

• Confers certain legal rights and duties upon the spouses and the children born of the marriage.– E.g., spouses must provide financial support.

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Marriage Requirements

• Established by state law.

• Most states require that parties be a man and a woman.

• Must be of certain age, or have parental consent.

• Marriages between close relatives prohibited.

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Marriage License

• State law requires marriage licenses.– Obtained at county clerk’s office.

• Some states require marriage ceremony.– After ceremony, license is recorded.

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Common Law Marriage

• In several states, even if no marriage license or ceremony, parties regarded as married if:– Parties eligible to marry,– They intend to be husband and wife,– They live together, and– They hold themselves out as husband and

wife.

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Same-Sex Marriage

• Available in Massachusetts and Connecticut.• Banned by state constitutions in over half the

states.• Several states allow civil unions but not

marriage.• Constitutional issues:

– Argument that Equal Protection Clause demands recognition of same-sex marriages.

– Question whether same-sex marriages obtained in other states must be recognized.

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Parents’ Rights and Duties

• Parents obliged to provide food, shelter, clothing, medical care, and other necessities.

• Must provide until child is 18 or emancipated.

• Child neglect if a parent does not provide.

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Parent’s Liability for Child’s Wrongful Act

• Parents not generally liable for child’s negligent acts.

• Parents liable if their negligence caused their child’s act.

• Some states have enacted child liability statutes.– Make parents financially liable for intentional

torts of child.

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Adoption

• Person becomes legal parent to a child who’s not his or her biological child.

• May be agency adoption or independent adoption.

• Procedures established by state.• Biological parents’ rights are terminated by

legal decree or death.• Court must formally approve.

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Agency Adoption

• Person adopts child from social services organization of the state.

• May be open adoption.– Biological and adoptive parents introduced

before adoption.– Some states give visitation rights to biological

parents.

• Requires court approval.

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Independent Adoption

• Private arrangement between biological and adoptive parents, usually through an intermediary.– Attorney– Adoption agency– Stepparent adoption

• Requires court approval

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Foster Care

• Children placed under state care as temporary arrangement.

• State pays foster parent to care for child.

• Arrangement terminated when child returned to biological parents or adopted.

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Marriage Termination

• May occur through annulment or divorce.

• Annulment can occur when parties lacked capacity or consent. Declaration that marriage never existed.

• Divorce is an order of the court that marriage is terminated.

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Divorce

• Commenced via petition for divorce.– Traditionally, had to prove fault.

– Today, no-fault divorce recognized in all states.

• Parties may reach settlement, or trial may be held.

• Divorce is final when a court issues decree of divorce.– May be waiting period before decree can be

issued.

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Types of Marital Property

• Separate property owned by spouse prior to marriage, as well as inheritance and gifts received during marriage.– Each spouse usually is awarded his or her

separate property.

• Marital property acquired during marriage, or separate property which changes title to jointly owned is considered marital asset.

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Division of Assets

• Some states follow the rule of equitable distribution. – Property is divided fairly between the

individuals.– Consider length of marriage, occupations,

child custody, other factors.• Other states follow community property rule.

– All property acquired during the marriage is divided equally between the individuals.

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Division of Debts

• Type of debt and state law determine how they are divided.

• Debts incurred during marriage for necessities and joint needs are considered joint marital debts.

• Spouses are jointly liable for taxes incurred.

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Spousal Support

• Alimony: money that court orders one divorced spouse to pay the other.– Can be temporary, rehabilitation, or

permanent alimony.

• Spousal support terminates at death of spouse, remarriage, or if he or she becomes self-sufficient.

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Child Support

• Court-ordered payments made by non-custodial parent to provide financial support for his or her children.– Federal Family Support Act may allow wage

withholding.• Duty to pay continues until child reaches the age

of majority or is emancipated.• Award may be modified based on changed

circumstances.

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Child Custody

• Parties agree or court decides who is legally and physically responsible for raising the child.

• Based on the best interest of the child.

• Parent awarded custody is the custodial parent and has legal custody.

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Joint Custody

• Both parents are responsible for making major decisions concerning the child.

• Sometimes awarded joint physical custody.– Child spends certain portion of time being

raised by each parent.

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Visitation Rights

• If there is no joint custody, the non-custodial parent may have visitation rights.

• Court may order only supervised visitation.