Family Law Newsletter
Cohabitation
The
number of couples living together outside marriage has increased
dramatically over the past thirty years. In fact, about 5 million more
people lived together outside of marriage in the year 2000 than in 1970.
There
are legal benefits to cohabitating outside marriage. The most
substantial benefit is that unmarried cohabitants are not bound to the
restrictions of marital laws. A relationship can be dissolved much
quicker without the boundaries of marriage.
Respectively,
without the marital laws protecting the individuals involved, division
of personal belongings and distribution of property becomes a more
complicated matter.
Even more perplexing
is the event of the death of a cohabitant in an outside marriage
relationship. The laws of inheritance which protect a married spouse in
the event of death are not there for the unmarried cohabitant.
A
recent trend which is highly recommended for both heterosexual and
homosexual couples is to enter into a contract that provides rights to
both parties involved. A legal contract allows unmarried cohabitants to
create legitimate arrangements in the case of separation or death.
However, some state statutes still will not honor such arrangements in
the event that the contract is based on sexual relationships.
Children
Inheritance
Although
many restrictions on illegitimate children have been repealed, the
procedure for inheritance is still a more timely matter for children
born out of wedlock. A child born in wedlock does not need to establish
paternity to recover inheritance from the father. In most states it is
still necessary for a child born out of to establish paternity before
he or she can collect on inheritance.
Adoption
Although
more enlightened than in the past, many courts still show preference to
married couples in the case of adoptions. Traditional laws have
prevented unmarried couples from adopting. However, with new diversity
some states have begun to allow unmarried couples to adopt.
Divorce
Divorce
originated in primitive civilizations and was only implemented by the
individuals involved. During the reign of Augustus the Romans were the
first civilization to place marriage and divorce under state
regulation. The American Colonists were originally under British
control and all divorces had to be approved by the English Monarch.
Eventually the colonies broke away from England, and when the U.S.
Constitution was established, divorce was left to regulation by the
states.
The states established laws
mandating that a fault must be proven in order for divorce to be
granted by the courts. If the divorce petition was contested, then the
divorcing spouse would have to provide proof of fault to the court. If
the court did not feel that the divorcing spouse provided enough
evidence for the grounds alleged, the petition could be denied or
dismissed.
Grounds for divorce have
always included cruelty, desertion, and adultery. Many states have also
adopted as grounds for divorce non-support or neglect, alcoholism, or
other drug addiction, insanity, criminal conviction, and voluntary
separation. Beginning in 1933 with the state of New Mexico, many states
have amended the divorce laws by adding the ground of incompatibility.
In 1969 California revised its divorce laws allowing a party to attain
a divorce on the grounds of irreconcilable differences. This allowed
spouses an opportunity for divorce on the grounds that the marriage was
not able to be mended. California’s law was the first inclusive “no
fault” divorce law.
In 1970 the National
Conference of Commissioners on Uniform State Laws created a Uniform
Marriage and Divorce Act. This act allowed the courts to provide a
no-fault divorce if the marriage was found to be “irretrievable broken.”
By
1980 nearly all of the states had adopted the Act. Many state
legislatures enacted laws pertaining to no-fault divorces. Some states
modified current laws by adding a no-fault provision on the grounds of
irreconcilable differences to existing statutes. Other states
completely replaced all traditional grounds with a single no-fault
provision.
No-fault Divorce
By
1987 the entire United States had adopted no-fault divorce laws, either
as a complete replacement or as an option to traditional fault-grounded
divorce. Although there are many advantages to no-fault divorce laws,
the problem which emerges is the fact that the spouse is left
unaccountable of any harmful acts. Most states have laws which prevent
one spouse from suing the other. Marital misconduct is irrelevant to
the divorce itself, however may be applicable to the matters of child
custody, child support, child visitation rights, spousal maintenance,
and property distribution.
Legal Separation
Legal
Separation is similar to a divorce in the legal aspect that papers are
filed. The court orders custody and or property settlement documents,
however the parties involved remain married. The benefits to a legal
separation are few. The biggest dilemma with this process is the
difficulty in converting to a divorce. Often, parties who wish to
convert from a legal separation to a divorce have to file a new
petition for divorce. This is both time consuming and costly.
Annulment
Annulment
is the termination of a marriage which is deemed to have never been
legal. Annulments are not very common. Grounds for annulment include;
one party is incapable of consent due to intoxication or an incompetent
mental state, fraud about some aspect of the marriage, or a failure to
consummate the marriage. Annulments are regulated by the state.
Spousal Support
Alimony
or spousal maintenance is the financial support one spouse provides the
other after divorce. This support is in addition to or separate from
the division of property or any settlements obtained in the divorce.
The courts establish payments which the spouse must pay the other
spouse either permanently or temporarily. The amount of alimony or
spousal support paid is determined by the length of the marriage, the
income of both parties, the amount of dependence the spouse had on the
other spouse, and the amount of marital fault. Spousal maintenance may
also include health insurance and retirement policies.
Child Support
Child
support is determined by the amount of income both parents can
contribute. Child support is the responsibility of both parents. When
preschool aged children are involved, the primary caretaker may not be
required to seek employment.
All states
have enacted some form of the Uniform Reciprocal Enforcement of Support
Act (URESA). The URESA ensures cooperation in the collection of child
support and spousal support throughout the United States. The parent
owing child support is held accountable no matter where they live in
the United States. The state of Ohio determines child support
obligations based on the Income Shares Model and is calculated on net
income. Child support is terminated when the child reaches the age of
18 or graduates from high school, which ever occurs later.
Custody
Joint Custody
Joint
custody is now strongly advocated by some states. The presumptional
idea is that the child suffers less by still receiving equal time with
each parent. This form of custody requires a high amount of cooperation
between the parents. For joint custody to be granted by the courts,
both parties have to agree to the terms. If either party does not
agree, or in cases where there is evidence of domestic violence a joint
custody agreement may not be issued. Another dilemma the courts may
consider is later problems regarding medical or educational decisions.
These decisions can result in long and lengthy court proceedings.
Split Custody
Split custody involves cases which more than one child is involved and
each parent will gain full custody of a child. This form of custody is
very seldom granted because it separates siblings and is not considered
to be in the best interest of the children.
How custody is decided.
In
the modern era most States have adopted laws which place the best
interest of the child as priority when disputing custody. The courts
consider many factors when custody is being disputed. Marital
misconduct is one of the most relevant of these factors. The court will
use all relevant evidence when determining which type of custody is in
the child’s best interest. The court will consider the child’s and the
parent’s wishes. When determining custody, the courts will also look at
the relationship between each parent and the child, along any other
person who interacts with the child. Other people in the child’s life
which may affect the decision could include; stepparents, grandparents,
and other relatives or siblings. The courts will also consider the
psychological well being of the child and how the child will adjust to
the best new environment.
This aspect of
the decision will include home, school, community, and the mental and
physical health of all individuals involved. In addition; which parent
will foster a positive parent-child relationship between the child and
the other parent, who was the primary caretaker during the marriage or
cohabitant relationship, and whether either parent has had a domestic
violence order against them are all strong considerations. A parent’s
conviction for any domestic violence crime can strongly deviate against
them in the custody decision.
Inheritance
Inheritance
involves laws with extensive depth. Every situation is different, and
depends on many aspects of the decedents plan for his or her estate.
Inheritance is the property received from a decedent, either by will or
through State laws of Intestate succession. State laws of Intestate
succession apply when a decedent has failed to write a will or has left
certain property out of the will. Inheritance laws involve an immense
body of Statutory and case law relating to who will claim what property
when someone dies. Included in this vast array of laws are several
important components relating to wills, trusts, jurisdiction of probate
courts, additional ways of leaving property other than a will,
qualifications and duties of executors of wills, and estate and
inheritance taxes. Negative tax consequences created from Intestacy
laws are among the major reasons most individuals choose to have a
will.
Intestacy
When
the person whom is deceased (the decedent) dies and does not have a
legally binding will, this state is called intestate. The state of
Intestacy is what happens to the decedent’s property (estate) after
death without a legal will. The Intestacy laws of the State where the
decedent owned property will be applied to the estate. Federal law
leaves the creation of Intestacy laws largely up to the States.
Intestacy laws are designed to divide up the property of the decedent
in the case that there is no will.
Wills
A
will, also known as a “last will and testament,” is a legal document
providing written instructions of what to do when a person dies. It is
important to have a will written if you would like your property and
other assets distributed in a certain way. A will can name the person
who will handle any legal and financial matters left behind by the
decedent. A will can also grant guardianship of minor children. A will
does not cover all assets considered to be your property. Certain
assets such as pension plans, 401k plans, life insurance, annuities,
and property held through trusts can have a direct beneficiary named in
a separate document.
Administrator or Executor
The
administrator or Executor of your will is the person who will act as
your personal representative. This person will be responsible for
gathering and providing inventory of all of your property at the time
of your death. Your personal representative will determine your
outstanding debts, pay your legitimate debts, and distribute the
remaining property according to the instructions in your will. The
executor (personal representative) must also attend a probate
proceeding where your property must pass through the probate process.
Estate property is subject to your states probate rules and procedures.
In many states the court controls the activities of the personal
representative. The executor (personal representative) must obtain the
courts permission to sell, distribute, or otherwise take action with
respect to property in your estate.
The
personal representative is responsible for all of your assets. This is
the reason you should choose a trustworthy and dependable person. To
the extent possible, you should choose a person with some business
experience and intelligence.
Trusts
A
trust is another form of contract used to manage and distribute
personal property. A trust is a right to property. Once assets are put
into a trust, the property no longer belongs to the person or persons,
but to the actual trust. As long as property is part of a trust, it
remains subject to the rules and instructions of the trust contract.
The trustee is the one who holds title to the trust property. The
beneficiary is the person who receives the benefits of the trust.
Estate Taxes
The
Estate Tax is a tax on your right to transfer property at your death.
The executor of your Estate must provide an accounting of everything
you own. Includible property of an Estate consists of; cash and
securities, real estate, insurance, trusts, annuities, business
interests, and other assets. The fair market value is used to assess
these items, not necessarily what you paid for them, or what their
values were when you obtained them.
Presently,
only Estates which exceed $1,000,000 will actually have to pay tax. At
its current state, the estate tax only affects the wealthiest 2 percent
of all Americans.
There are ways of
shielding an Estate from the tax burden. Creating a will, creation of a
trust, purchasing life insurance policies, and making transfers of
property prior to your death (known as inter vivo gifts) can all be
legal methods of lessening the Estate tax. An Attorney can provide more
specific advice for planning an Estate.
This
website is intended for educational purposes only. It is not legal
advice, nor does it form a lawyer/client relationship. For legal
advice, you should contact a licensed attorney to discuss your
particular situation.
