CHAPTER 17 Family Law and Estates

Introduction The legal relationships of people within a family are governed by family law Family law governs dissolution of families through divorce, which is a major area of work for paralegals Whether property is distributed before or during a marriage, or when one ends, property must be transferred when a person dies Wills and trusts are often used to transfer a person’s real and personal property, or estate, after death

Family Law Marriage and divorce Adoption Child support and custody Child and spousal abuse Parental rights and duties

Family Law Marriage Requirements Two persons Currently unmarried Not closely related by blood Over a certain age Usually 18 years old Exception: emancipated persons Cont.

Family Law Marriage Requirements Procedural requirements Marriage license Blood test Waiting period Marriage ceremony Marriage license must be recorded

Family Law Marriage Requirements Same-sex couples 2004: Massachusetts became first state to allow same-sex marriages Some states allowed civil unions, domestic partnerships Obergefell v. Hodges, 576 U.S. __ (2015) held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

Family Law Common Law Marriages Parties become married solely by mutual consent and without license or ceremony Four general requirements Must be eligible to marry Must have present and continuing intention and agreement to be a married couple Must live together as a married couple Must hold themselves out to the public as a married couple

Family Law Marital Duties Previously, marriages were private contracts arranged between families Now, marriage contracts are governed by the state

Family Law Marital Duties Financial support Spousal abuse One spouse has duty to support other spouse and children Food, shelter, medical care Spousal abuse Restraining order Domestic abuse

Family Law Parental Rights and Obligations Direct the upbringing of their children Parents have control over Where children live What school children attend What religion children practice What medical care children are given Behavior of their children Punishment of their children Cont. Learning Objective: The legal rights and obligations of parents and children.

Family Law Parental Rights and Obligations Must provide Food Shelter Clothing Medical care Schooling These duties generally end when child is 18

Family Law Parental Rights and Obligations Liability for children’s wrongful acts State laws vary considerably Child abuse and neglect In loco parentis Children born out of wedlock Law provides rights and protections for these children Paternity suits Inheritance rights

Family Law Adoption Procedure in which persons become legal parents of a child who is not their biological child Not to be confused with foster care, which is temporary Requirements for adoptions

Family Law Adoption Agency adoptions Independent adoptions Stepparent adoptions Surrogacy Court approval and probation

Family Law Marriage Termination Annulment Court decree that invalidates a marriage Children born during the marriage are considered legitimate May be based on various grounds Lack of genuine consent Fraud Bigamy Learning Objective: How marital property and debts are divided when a marriage is dissolved.

Family Law Marriage Termination Divorce Formal court proceeding legally dissolves a marriage Fault-based versus no-fault divorces Irreconcilable differences Living separately for a period of time specified by state statute Incompatibility Divorce procedures Petition for divorce Negotiation and mediation

Family Law Child Custody Typically the most contentious issue in a divorce Court may appoint a guardian ad litem Factors considered in determining child custody Types of custodial arrangements Legal custody Joint custody Visitation rights Right to have contact with the child

Family Law Child Support Court makes provision for child support, regardless of custody arrangements Financial support for child’s needs States have standardized guidelines, often percentage formulas based on parental income

Family Law Child Support Withholding payment Interstate enforcement of child-support decrees Uniform Interstate Family Support Act Every state agrees to enforce orders

Family Law Spousal Support Alimony, or maintenance Financial support paid to a former spouse Permanent or temporary Rehabilitative alimony Education Training Palimony

Family Law Property Division Marital property Separate property All property acquired during the course of a marriage Separate property Property that a spouse owned before the marriage, plus inheritances and gifts acquired during the marriage

Family Law Property Division Pension benefits Community property All property acquired during the marriage Common law marital property Equitable distribution

Family Law Prenuptial Agreements Contract between parties that is entered into before marriage Provides for disposition of property in the event of a divorce or death of one of the parties Must be in writing to be enforceable Uniform Premarital Agreement Act Adopted by about half the states Standardizes legal framework

Family Law Family Law and the Paralegal Many areas of opportunity in this area Divorce Adoptions State welfare departments Publicly sponsored legal aid foundations Groups that assist persons of low income with family-related legal problems Many different types of work and tasks

Wills, Trusts, and Estates Final declaration of a person’s wishes Testator Testate and intestate Intestacy laws Executor Administrator Learning Objective: What estate planning is and why it is important. Learning Objective: The various devices that are used in estate planning.

Wills, Trusts, and Estates Laws governing wills Probate Requirements for a valid will Testator must have testamentary capacity Will must be in writing Must be signed by the testator Must be witnessed In some states, must be published Learning Objective: The requirements for a valid will and the laws that govern property distribution when a person dies without a valid will.

Wills, Trusts, and Estates The probate process Procedures vary depending on size of estate Intent must be established by an affidavit Family settlement agreements Private agreements among the beneficiaries Formal probate likely Probate court typically supervises settlement of larger estates Learning Objective: What estate planning is and why it is important.

Wills, Trusts, and Estates Living trusts (inter vivos trust) Revocable or irrevocable Trust administration Testamentary trust Special types of trusts Life insurance trust Charitable trust Spendthrift trust

Wills, Trusts, and Estates

Wills, Trusts, and Estates Other Estate-Planning Devices Some persons arrange to have property transferred in ways other than by will and outside the probate process Establish a living trust Arrange to hold title to certain property as a joint tenant with a spouse or other person Making gifts to children or others while one is still living Take out a life insurance policy Learning Objective: The various devices that are used in estate planning.

Wills, Trusts, and Estates Online Help for Estate Planning Internet offers an abundance of estate-planning websites Where to begin www.estateplanninglinks.com www.law.cornell.edu

Wills, Trusts, and Estates Online Help for Estate Planning Other websites American College of Trust and Estate Counsel Society of Trust and Estate Practitioners (STEP) www.texasprobate.com Software tools Market Center of FindLaw Technology tip

Wills, Trusts, and Estates Estate Administration Process of collecting a decedent’s assets, settling his or her debts, and distributing all remaining assets Executor Personal representative who administers the estate Inventories and collects assets Arranges for appraisals, if necessary Manages assets during administration period

Wills, Trusts, and Estates Estate Administration Duties of personal representative Pays debts owed by decedent Arranges for estate to pay taxes Distributes estate pursuant to court order Renders accounting to the court

Wills, Trusts, and Estates Wills, Trusts, and Estates and the Paralegal General law practice Could handle tasks in all areas Estate planning and administration Probate proceedings Coordinating efforts of personal representatives Trust law Trust departments of banking institutions

Summary Marriage is a status conferred by state law that establishes the rights and duties of spouses to one another and to any children born to them Obergefell v. Hodges, 576 U.S. __ (2015) held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

Summary Adoption is a procedure by which persons become the legal parents of a child who is not their biological child A marriage can only be terminated by the state, through annulment or divorce A will is the final declaration of how a person desires to have his or her property disposed of after death To probate a will means to establish its validity and administer the estate through a court process

Summary A trust is an arrangement by which property is transferred from one person (the grantor, or settlor) to be administered by another (the trustee) for the benefit of a third party (the beneficiary) Other strategies to transfer property include owning property as joint tenants, giving gifts to children or others while one is still alive, and purchasing life insurance policies