Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Introduction to Family Law Practice Chapter 1

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Family Law Theory Common Law & Statutory Law – Reflecting societal values & attitudes Support & maintenance of family members Care & custody of minor children Division & distribution of property

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Court Procedures Initiating family-related actions in court Acquiring & presenting evidence Pendente lite support, custody & visitation Enforcing or modifying court orders Using Alternative Dispute Resolution to: – Eliminate Issues – Encourage settlement Litigating unresolved, contested issues

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Office Procedures Interviewing clients, witnesses Investigation (facts) Collecting & recording client information File set-up (including conflicts check) Drafting legal documents for the attorney Docketing court hearings Time-keeping & billing

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved The Family Practitioner’s Role Represent the client’s legal interests – With the least amount of court intervention – With the least amount of additional pain & damage – With the least amount of time & expense Handle the most personal and intimate details of client concerns with sensitivity, respect, understanding, and care.

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved The Roots & Traditions of Family Law English Common Law, predicated upon: – Judeo-Christian traditions (husband & wife united as one flesh) – Ancient Greek traditions (women as chattel) – British traditions (merged into a single legal identity – the husband’s)

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Roots & Traditions, cont. Colonial America – Marriage as a sacred union – Divorce allowed Husband had continuing obligation of family support – Government legally authorized/dissolved marriages

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved United States Separation of Church & State Married Women’s Property Acts Spouses become responsible for each other Breach of marriage contract resulted in grounds for divorce Agrarian society required work from all members of large, intact families

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Early 20 th Century America Shift to industrial economy – Husband as bread-winner – Wife & children still workers Obligation of husband to support becomes mutual obligation Mothers develop into home-makers, child custodians Divorce still a stigma

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Later 20 th, Early 21 st Century Women re-enter workforce, resulting in an increase in paternal custody Grounds for divorce amended to include no- fault grounds Societal approbation of divorce declines Loss of some of the stigma associated with divorce, aided by no-fault grounds.

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Family Law Today Increase of divorce rate until the 1980’s – with a slow tapering off Possible reasons include: – Financial independence of women – Equitable distribution of property & debt – Changes in support awards (alimony) – Pro se (in propria persona) litigants using simplified divorce procedures – No-fault grounds

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Family Law Today, cont. Reasons for increase in the divorce rate may also include the fact that child support is set by statute (less fear of loss of support) Federal & state child support enforcement help: – Tax interception – Wage garnishment – Revocation of professional licenses – Interstate enforcement cooperation (long-arm, full faith & credit)

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Definition of Marriage Legal union of a couple as husband & wife Federal Defense of Marriage Act (DOMA) – States can deny recognition of another state’s same-sex marriage, union, or partnership laws – Defines marriage (for Federal purposes) as “a legal union of one man & one woman as husband & wife.”

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Same-sex Marriages, Civil Unions, & Domestic Partnerships NOT recognized by Federal law (DOMA) Some states have official recognition of same-sex relationships: – Massachusetts:Marriage – Vermont:Civil Union – California:Domestic Partnerships Some states have passed constitutional amendments prohibiting recognition of these relationships within their boundaries.

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Benefits of Marriage The protection of a state-supervised divorce Crime victims’ benefits Immigration/residency benefits Probate: – Statutory share of estate – Intestate succession – “Widow’s allowance”

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Marriage Benefits, cont. Tax benefits – Estate tax exemption – Gift tax exemption – Joint income tax returns Spousal communications privilege Step-parent adoption by-passes

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Marriage Benefits, cont. Family benefits – Insurance eligibility & benefits – Workers’ compensation benefits – Loss of consortium & wrongful death – Family Leave rights – Social Security – Disability benefits – Veterans’ & military benefits – Pension benefits

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Marriage Benefits, cont. Guardianship/conservatorship rights Priority in making medical decisions Hospital visitation rights Possession of deceased’s remains – Right to make funeral & burial arrangements

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved A Sampling of Marriage Requirements Not within the prohibited bounds of consanguinity or affinity (incest) Man & woman (according to birth certificates) Of the age of consent (varies by state) Blood tests (rare) License

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved License Requirements Must personally appear All prior marriages must be terminated Must identify status of any minor children Must provide biographical information: – Name, address, age, Social Security number, etc.

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Solemnization of Marriage States specify qualifications of those permitted to perform the ceremony, but can include: – Judges – Mayors – Clergy – Spiritual assemblies or congregations License required Ceremony must be recorded, resulting in the issuance of a Marriage Certificate

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Recognition of Foreign Marriages Generally, marriages that are validly entered in the jurisdiction where they are celebrated will be recognized: – If they are not contrary to public policy (polygamy) – Unless DOMA provisions are applied

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Sampling of Prohibitions Incest (marriage within the prohibited degrees of consanguinity or affinity) Polygamy (more than one marriage attempted) – Second marriage not valid – In some jurisdictions, the second marriage may be “revived” if the first is terminated. Same-gendered applicants

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Covenant Marriages Created in response to rising divorce rates Provides for “two-tiers” of marriages. Covenant marriages may require: – Pre-marital counseling – Signing of a covenant contract – In the event of a divorce, only fault grounds may be used – Pre-divorce counseling – Longer waiting periods before granting divorces.

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Common Law Marriages Recognized in some states if properly perfected. Recognized in some states only if perfected prior to a statutory moratorium. Recognized for inheritance purposes only in New Hampshire

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Common Law Marriage Requirements Vary from state to state Parties must live together for a specified or significant period of time Public indicia of marriage relationship Present intent to be married Parties must meet statutory requirements for ceremonial marriage eligibility Once proven, requires a formal, legal divorce.

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Termination of Marriage Relationship Legal separation Annulment Divorce, or dissolution Death

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Legal Separation Also, separate maintenance (“Alimony Only”) or divorce a mensa et thoro Remarriage not permitted Possible reasons: – Religious prohibitions – Retention of probate rights – Medical coverage – Various pension, other financial concerns

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Legal Separation, cont. Parties may want to attempt a trial separation before deciding about divorce Requires grounds in some states Property may distributed Spousal support may be awarded Children’s issues will be resolved – Custody – Visitation – Support

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Annulment Religious divorce or ecclesiastical annulment is totally independent of the legal action Must still settle all parental rights, obligations Based upon grounds that invalidate the marriage (therefore no alimony, as a rule): – Void (ab initio) – invalid from the moment of inception, and can’t be “cured” (e.g., incest) – Voidable – invalid, but requires a court declaration of termination; can be ratified after the removal of the impediment (e.g., nonage)

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Annulment, cont. Grounds for annulment usually include: – Bigamy – Incest – Lack of mental capacity – Not of the “age of consent” (nonage) – Sham or joke marriage – Fraud, duress or coercion – Entered under the influence of drugs/alcohol – Physical inability to consumate the marriage

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved Divorce or Dissolution Legal termination of an existing marriage Based upon fault or no-fault grounds May be contested or based upon a mutually acceptable Separation agreement. Fault grounds: – Create a stigma of misconduct – Are more expensive to prove – Tend to increase acrimony – May be harder on children