luppino and miller: family law and practice: the paralegal's guide, 2 nd ed. © 2008 pearson...

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.

© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved

Introduction to Family Law Practice

Chapter 1



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



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



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



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.



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)



Roots & Traditions, cont.

Colonial America– Marriage as a sacred union– Divorce allowed

Husband had continuing obligation of family support

– Government legally authorized/dissolved marriages



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



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



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.



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



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)



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.”



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.



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”



Marriage Benefits, cont.

Tax benefits– Estate tax exemption– Gift tax exemption– Joint income tax returns

Spousal communications privilege Step-parent adoption by-passes




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




Guardianship/conservatorship rights Priority in making medical decisions Hospital visitation rights Possession of deceased’s remains

– Right to make funeral & burial arrangements



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



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.



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



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



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



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.



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



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.



Termination of Marriage Relationship

Legal separation Annulment Divorce, or dissolution Death



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



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



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)



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



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

luppino and miller: family law and practice: the paralegal's guide, 2 nd ed. © 2008 pearson...

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