1. Premarital Agreements, Cohabitation, and Same-Sex Marriages; family law in practice
PA 250-Unit 1

2. Teacher’s Assistant

3. But First….
Things you should know about me… I really appreciate how hard you all work, both in and out of school. My philosophy is that I am here to help you learn the material, do as well as you can do, and have fun in the process!

4. About the Course
The syllabus will guide you throughout the course. It will remind you when graded items are due and what we are studying during each unit.
You can see from the syllabus a breakdown of your gradebook – when papers are due, and what they are worth.

5. Office Hours
I will hold my office hours via the chatroom located in the classroom every Thursday from 6 pm to 8 pm EST. If you cannot make it during this time but would like to meet with me, please either me or post a note under Ask the Prof. and we will arrange for a different time to talk.

6. Seminars
I arrive in seminar about a half hour early in case you need me or want to talk.
Seminars are graded –if you cannot make it, you can write a 2 page summary and send it by to earn your points.

7. Seminars (cont.)
If you try to enter the seminar but it won’t load, and you’ve been trying for 5-10 minutes, you should head over to the chatroom in the classroom. We call this Plan B.
In the rare event that neither the seminar platform nor the chatroom is working, we will have to reschedule the seminar.

8. Things to Know 
1. You should try to turn your work in on time to stay on track, but if you can’t just me so I know what is going on. I don’t deduct points for lateness if the assignment is turned in within a week of its due date).
2. You can cannot revise papers, but I will look at them for you before you submit in class – just send them to my a few days before they are due.

9. More Things to Know 
Please, please, please do not copy and paste without using quotation marks or citing your source. We turn all assignments in to Turnitin.com and it will come up. Best to use your own voice and quote and cite correctly!

10. Let’s Get Started!

11. First Assignment
In this Short Paper, you will analyze the case in which the Massachusetts Supreme Judicial Court held that there is a right to same-sex marriage under the Massachusetts Constitution, Goodridge v. Department of Public Health, 440 Mass. 309 (2003).

12. First Assignment
Go to Lexis, and click on the “Get a Document” tab and then click on the “Citation” tab in the next line down, then enter the following into the box:
440 Mass. 309

13. First Assignment
Read this court opinion, then reread the case of Loving v. Virginia.  How are the reasoning and rulings in these two case similar?  How are they different?  Look at the constitutional arguments made in the cases.  Based on what you are learning in this Unit, do you agree or disagree with the reasoning based on constitutional principles? 

14. Grading Rubric
See document in doc sharing – pay close attention to “elements of familial relationship and case analysis.”

15. The Prenuptial Agreement
Known as antenuptial, prenuptial, or premarital
Agreements (contracts) between two parties who intend to marry
Concerns the disposition of their assets upon either death or divorce
Consideration is marriage

16. Who should have one?
Historically, protected a wealthy party from overreaching by a less affluent spouse
“Gold diggers”
“Gigolos”
Now more common, protecting a variety of interests:
Children from a previous marriage
Family inheritances or businesses
Separate property

17. Legal Requirements
Prenuptials must be entered into prior to marriage, although some states permit “postnuptial” agreements
Cannot bind the parties during marriage
Can provide useful guidelines, but they are not legally enforceable
Need to demonstrate a “meeting of the minds”

18. Necessary Documentation
A list of assets and their Fair Market Value
Income, both earned and passive
Debts/liabilities
Tax obligations
Lawsuits/outstanding judgments
Credit history/bankruptcies

19. Uniform Premarital Agreement Act (UPPA)
Consideration for the agreement is marriage
Must be in writing
Must be signed by both parties
Capacity
Voluntary
Full disclosure of assets (fair & reasonable)
Not unconscionable

20. Drafting the Agreement
Check local law
Over half the states have adopted the UPAA
Most other states have applicable statutory or case law
Need to determine the client’s interests
Is your client proposing the agreement?
Has your client received a proposed agreement?
Must arrange for full disclosure of assets, liabilities and/or income, and prepare a schedule of assets or financial statement

21. Must be Voluntary
Must be a “meeting of the minds” in fair negotiations
No coercion, duress
Timing of the presentation of the agreement can be a factor
Too close to the wedding to permit independent review
Presented as a condition to continuing the relationship

22. Unenforceable Agreements
Provisions contrary to public policy
Undermining individual rights
Will not be enforced
Not just unfair results, or a “bad bargain”
An agreement that is one-sided is not automatically an example of “overreaching”
Lack of full disclosure of the parties’ assets and/or income

23. Full Disclosure Although precision is desirable, it is enough that:
“Wife had a reasonable and proximate knowledge of Husband’s net worth and income based upon the information provided…at the time the antenuptial agreement was signed….”
Waton v. Waton, 887 So. 2d 419 (Fla. App. 4 Dist. 2004)

24. Second Glance Doctrine
Although sound in its formation, an agreement may be challenged based on changes in circumstances, such as illness or disability:
Unconscionable results
Although there is adequate support available, the agreement impoverishes one party so seriously that the state may have to assume the responsibility of support.

25. Cohabitation
Express, written agreement is the surest way to delineate rights & responsibilities
“Palimony” (quasi-alimony) is not available in many jurisdictions
Sexual services must not be the contract consideration
The same issues involving multiple representation/conflict of interest arise

26. Same-Sex Marriage
DOMA prevents federal recognition of same-sex marriage, but some states have addressed the issue:
Some argue, based on the 14th Amendment, equal protection clause, invoked to protect the fundamental right to marriage
Others argue, based on state Equal Rights Amendments (ERAs), avoiding discrimination of the basis of gender

27. Massachusetts Marriage Decision
“Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law….”
Goodridge v. Dep’t of Pub. Health, 440 Mass 309, N.E.2d 941 (2003)

28. Introduction to Family Law Practice
Chapter 1

29. 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

30. 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

31. 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

32. 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.

33. 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)

34. Roots & Traditions, cont.
Colonial America
Marriage as a sacred union
Divorce allowed
Husband had continuing obligation of family support
Government legally authorized/dissolved marriages

35. 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

36. Early 20th 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

37. Later 20th, Early 21st 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.

38. 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

39. 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)

40. 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.”

41. 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.

42. 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”

43. Marriage Benefits, cont.
Tax benefits
Estate tax exemption
Gift tax exemption
Joint income tax returns
Spousal communications privilege
Step-parent adoption by-passes

44. 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

45. 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

46. 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

47. 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

48. 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.

49. 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

50. 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.

51. Termination of Marriage Relationship
Legal separation
Annulment
Divorce, or dissolution
Death

52. 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

53. 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

54. 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)

55. 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

56. 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

57. Quiz Prep!

58. Quiz Prep
Issues arising from marital disputes include what kinds of things?
Procedures for bringing disputed substantive family law issues before the court include what?
What is “alienation of affection?”
What is “separate maintenance?”

59. Quiz Prep What is “common law marriage?”
What is an “annulment” and is this still permissible in the US?
What is a “prenutial agreement” based on?
Can part of a prenuptial agreement be enforced and the rest discarded?
Should parties disclose finances with a prenup?