3 Marriage

Concept of Family Has Evolved Over the Past 50 Years More than half of all first marriages end in divorce. The nuclear family is no longer the majority family model. The roles of men and women are less highly gendered.

Concept of Family Has Evolved Over the Past 50 Years There is an increased social acceptance of alternative lifestyles and living arrangements Cohabitation is no longer viewed by most as "living in sin".

Concept of Family Has Evolved Over the Past 50 Years Many states have granted legal recognition of some kind to same-sex couples Same-sex marriage, civil unions, domestic partnerships, etc.

Reasons Why the Concept of Family Has Evolved Women's rights movement Men's rights movement Gay rights movement Fathers' rights movement

Reasons Why the Concept of Family Has Evolved Decreased focus on marriage as a defining life event especially for women Greater legal protection of the right to privacy in sexual conduct between consenting adults

Forms of Monogamous Marriage in the United States Ceremonial marriage Available in all states, customarily requires a license and solemnization in a ceremony performed by an authorized person Covenant marriage A ceremonial marriage available in a small number of states that emphasizes the permanence of marriage

Forms of Monogamous Marriage in the United States Common law marriage Available in a minority of states, a marriage created by the conduct of the parties rather than in a formal ceremony Same-sex marriage A ceremonial marriage of two same-sex partners available in a limited number of states

Forms of Monogamous Marriage in the United States Putative marriage Recognized by courts in some states, a presumed marriage of a person who has cohabited with another in the good faith belief he or she was legally married to that person

Can the Right to Marry Be Restricted by the Government? The U.S. Supreme Court has definitively established that the right to marry is a fundamental right that cannot be restricted absent a compelling state interest. See Case 3.1 Loving v. Virginia on pages 74-76 of the text. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 1010 (1967)

Can the Right to Marry Be Restricted by the Government? The right to marry is not absolute and the states are permitted to regulate it to a reasonable extent. Impermissible restrictions include restricting the right on the basis of race, delinquency in child support payments, or incarceration in some circumstances.

Can the Right to Marry Be Restricted by the Government? The U.S. Supreme Court ruled in Obergefell v. Hodges (2015), that gay couples have a fundamental right to marry and that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize such marriages when lawfully licensed and performed out-of-state. Obergefell v. Hodges, 576 U.S. _____(2015)

Regulations the States Can and Do Legitimately Impose Marriage is a contract between the spouses regulated by the government. There are basically two types of requirements that are fairly standard state to state: Requirements relating to legal capacity to marry Technical requirements governing particular types of marriage

Common Requirements Relating to Legal Capacity to Marry Sex of the parties Only a limited number of states permit parties of the same sex to marry Age of the parties Under common law = 12 for females, 14 for males; now 18 in most states without parental consent and the requirement may be waived in some circumstances

Common Requirements Relating to Legal Capacity to Marry Marital status of the parties Neither party can be married to another person still living at the time of the marriage Some states allow the impediment to be removed by death or divorce)

Common Requirements Relating to Legal Capacity to Marry Degree of relationship between the parties by blood = consanguinity Degree of relationship between the parties by marriage = affinity

Common Requirements Relating to Legal Capacity to Marry Mental capacity of the parties Must be able to understand the nature, duties and responsibilities of marriage Physical capacity of the parties In a limited number of states must be free of syphilis for example

Common Technical Requirements for a Valid Ceremonial Marriage Application for a license Medical certificate In a limited number of states License Waiting period Usually 72 hours and may be waived in some circumstances

Common Technical Requirements for a Valid Ceremonial Marriage Ceremony conducted by a person authorized under state law Recording of the marriage license/ certificate of marriage

Common Requirements for a Valid Common Law Marriage The parties must have the legal capacity to marry. The parties must intend and simultaneously agree to be married. The parties must cohabit (though consummation may not be required).

Common Requirements for a Valid Common Law Marriage The parties must hold themselves out to the public as husband and wife. There is no requirement that the parties live together for a specific length of time except in the case of New Hampshire where there is a 3 year requirement and common law marital status is only applicable in the context of inheritance and death benefit claims.

Common Requirements for a Valid Common Law Marriage Most states will recognize a common law marriage that is valid in the state where it was entered. Important to check states that presently permit such marriages and the circumstances.

Expansion of the Relationship Menu Same-sex marriage Available in a limited number of states. Adult adoption Available in a limited number of states as a means of creating a "family" relationship.

Expansion of the Relationship Menu Functional family status Applied by some courts to extend limited benefits to same-sex partners who are in committed long-term intimate relationships, support each other emotionally and financially, share roles, and hold themselves out to others as spouses.

Expansion of the Relationship Menu Domestic partnership Available in a minority of states, it has been defined as a status granted to an unmarried couple who live together and receive a variety of economic and noneconomic benefits customarily granted to spouses.

Expansion of the Relationship Menu To enter a domestic partnership, the parties typically must: Be at least age 18 Not be a party to any other legally recognized status or be related in any way that would prevent them from legally marrying

Expansion of the Relationship Menu To enter a domestic partnership, the parties typically must: Share a residence and be in an exclusive relationship Agree to be responsible for each other's living expenses

Expansion of the Relationship Menu To enter a domestic partnership, the parties typically must: Not be related in a way that would prevent them from legally marrying Agree to file a certificate of dissolution if their relationship ends

Expansion of the Relationship Menu Civil unions Available in a minority of states, civil unions are essentially designed to afford same-sex partners the same benefits, protections, and responsibilities that married heterosexual spouses have under state law.

Expansion of the Relationship Menu To enter a civil union Must be of the same sex; be at least age 18 and mentally competent; and not be a party to any other legally recognized status or related in any way that would prevent them from legally marrying.

Expansion of the Relationship Menu To terminate their relationship, in a state that recognizes civil unions, they essentially use the same procedure as is used in dissolution of a traditional marriage.

Benefits of Domestic Partnerships and Civil Unions There is no standard set of domestic partnership benefits. They vary by state where such partnerships are recognized and are usually less extensive in nature and extent than benefits extended to partners in civil unions.

Benefits of Domestic Partnerships and Civil Unions The rights, benefits, and obligations of partners in civil unions are essentially the same as those of heterosexual spouses under state law.

Benefits of Domestic Partnerships and Civil Unions According to a report of the U.S. General Accounting office, there are more than 1,000 rights and duties that flow from traditional marriage including, for example: The right to receive support from a spouse The right to seek a division of marital property upon divorce (absent an agreement to the contrary)

Benefits of Domestic Partnerships and Civil Unions According to a report of the U.S. General Accounting office, there are more than 1,000 rights and duties that flow from traditional marriage including, for example: Absent an agreement, the right to inherit from a spouse and to receive certain governmental benefits such as Social Security and Veterans' benefits provided applicable conditions are met

Benefits of Domestic Partnerships and Civil Unions According to a report of the U.S. General Accounting office, there are more than 1,000 rights and duties that flow from traditional marriage including, for example: A right to continued employer-provided health insurance for a specified period under COBRA The right to make medical decisions for a spouse

Benefits of Domestic Partnerships and Civil Unions According to a report of the U.S. General Accounting office, there are more than 1,000 rights and duties that flow from traditional marriage including, for example: The right to file a claim for wrongful death of a spouse The right to exercise the marital communications privilege

Benefits of Same-Sex Marriage In states that recognize same-sex marriage, as of the summer of 2012 same-sex spouses are entitled only to benefits available to spouses under state law.

Benefits of Same-Sex Marriage The federal Defense of Marriage Act (DOMA) passed in 1996 (still in force in the summer of 2012 but being challenged) does not declare same-sex marriage illegal but does define marriage for all federal purposes as the legal union of one man and one woman as husband and wife.

Benefits of Same-Sex Marriage The federal DOMA also provides that no state can be forced to recognize a same-sex marriage. In response, a majority of the states have passed mini-DOMAs in the form of statutes or constitutional amendments effectively denying to same-sex couples the rights and privileges granted to heterosexual married couples.

Benefits of Same-Sex Marriage Every area of substantive law is influenced by extension of the right to marry to same-sex couples: Probate, tax, contract, business, immigration, health care, corporate, tort, criminal, conflict/choice of law, and constitutional, among others

The Paralegal's Potential Role in Cases Involving Marriage and Alternative Family Relationships The paralegal's role will vary depending on the nature of the case, the prevailing law in the jurisdiction, and the extent to which the employer's practice addresses issues involving same-sex relationships.

The Paralegal's Potential Role in Cases Involving Marriage and Alternative Family Relationships In cases involving a traditional marriage, the paralegal might be assigned to obtain copies of the marriage license and any necessary supporting documents or translations.

The Paralegal's Potential Role in Cases Involving Marriage and Alternative Family Relationships In a case involving a potential annulment, the paralegal may draft documents, research governing law, prepare discovery requests for review, etc.

The Paralegal's Potential Role in Cases Involving Marriage and Alternative Family Relationships In cases in which a common law marriage is claimed, the paralegal may gather information, affidavits, and documents needed to support the client's position. See Paralegal Application 3.4 Information Gathering in a Common Law Marriage Case on page 80 of the text.

The Paralegal's Potential Role in Cases Involving Marriage and Alternative Family Relationships Because this is a cutting edge and rapidly evolving area of law at the heart of heated debate, thorough research is a key task performed by the paralegal. Issues related to intimate relationships between different and same-sex partners will likely remain on the landscape for years to come and pose cutting-edge challenges.