Marriage and emerging alternatives
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Marriage and emerging alternatives Marriage and emerging alternatives Presentation Transcript

  • Chapter 3: Marriage and Emerging12 Alternatives Family Law for the Paralegal 2nd Edition WilsonClass NameInstructor NameDate, Semester
  • LEARNING OBJECTIVES After this lecture, you should be able to:3.1 Explain how and why the concept of “family” 12 has evolved over the past fifty years.3.2 Distinguish among different types of marriage. Identify ways in which the states regulate and3.3 restrict the fundamental right to marry. Class Name Instructor Name Date, Semester Cont.
  • LEARNING OBJECTIVES After this lecture, you should be able to:3.4 Identify common requirements for valid 12 ceremonial and common law marriages. Identify and describe legal statuses accorded3.5 same-sex couples in various states including domestic partnerships and civil unions. Distinguish among the rights and benefits that3.6 flow from traditional marriage, same-sex marriage, civil unions, and domestic partnerships. Class Name Instructor Name Date, Semester Cont.
  • LEARNING OBJECTIVES After this lecture, you should be able to:3.7 Describe the potential role of a paralegal in12 cases involving marriage and alternative family relationships Class Name Instructor Name Date, Semester
  • Learning ObjectiveAfter this lecture, you should be able to: Explain how and why the3.1 concept of “family” has evolved over the past fifty years.
  • Concept Of Family Has Evolved3.1 Over The Past Fifty Years • More than half of all first marriages end in divorce. • The nuclear family is no longer the majority family model. • The roles of men and women are less highly gendered. • There is an increased social acceptance of alternative lifestyles and living arrangements (cohabitation is no longer viewed by most as “living in sin”). • Many states have granted legal recognition of some kind to same-sex couples (same-sex marriage, civil unions, domestic partnerships, etc.)
  • Reasons Why The Concept Of3.1 Family Has Evolved • Women’s rights movement • Men’s rights movement • Gay rights movement • Fathers’ rights movement • Decreased focus on marriage as a defining life event especially for women • Greater legal protection of the right to privacy in sexual conduct between consenting adults 7
  • Learning ObjectiveAfter this lecture, you should be able to: Distinguish among different3.2 types of marriage. 8
  • Forms Of Monogamous Marriage3.2 In The United States• Ceremonial marriage: available in all states, customarily requires a license and solemnization in a ceremony performed by an authorized person• Covenant marriage: a ceremonial marriage available in a small number of states that emphasizes the permanence of marriage• Common law marriage: available in a minority of states, a marriage created by the conduct of the parties rather than in a formal ceremony• Same-sex marriage: a ceremonial marriage of two same-sex partners available in a limited number of states• Putative marriage: recognized by courts in some states, a presumed marriage of a person who has cohabited with another in the good faith belief he or she was legally married to that person 9
  • Learning ObjectiveAfter this lecture, you should be able to: Identify ways in which the states3.3 regulate and restrict the fundamental right to marry. 10
  • Can the right to marry be3.3 restricted by the government? • The U.S. Supreme Court has definitively established that the right to marry is a fundamental right that cannot be restricted absent a compelling state interest. (See Case 3.1 Loving v. Virginia on pages 70-72 of the text.) • The right to marry is not absolute and the states are permitted to regulate it to a reasonable extent. • Impermissible restrictions include restricting the right on the basis of race, delinquency in child support payments, or incarceration in some circumstances. 11
  • Regulations Can And Do The3.3 States Legitimately Impose •  Marriage is a contract between the spouses regulated by the government. •  There are basically two types of requirements that are fairly standard state to state: • Requirements relating to legal capacity to marry • Technical requirements governing particular types of marriage 12
  • Common Requirements Relating3.3 To Legal Capacity To Marry • Sex of the parties: only a limited number of states permit parties of the same sex to marry • Age of the parties: Under common law = 12 for females, 14 for males; now 18 in most states without parental consent and the requirement may be waived in some circumstances • Marital status of the parties: neither party can be married to another person still living at the time of the marriage (some states allow the impediment to be removed by death or divorce) 13
  • Common Requirements Relating3.3 To Legal Capacity To Marry• Degree of relationship between the parties by blood = consanguinity• Degree of relationship between the parties by marriage = affinity• Mental capacity of the parties: must be able to understand the nature, duties and responsibilities of marriage• Physical capacity of the parties: in a limited number of states must be free of syphilis for example 14
  • Learning ObjectiveAfter this lecture, you should be able to: Identify common requirements3.4 for valid ceremonial and common law marriages. 15
  • Common Technical Requirements For3.4 A Valid Ceremonial Marriage • Application for a license • Medical certificate (in a limited number of states) • License • Waiting period (usually 72 hours and may be waived in some circumstances) • Ceremony conducted by a person authorized under state law • Recording of the marriage license/ certificate of marriage 16
  • Common Requirements For A3.4 Valid Common Law Marriage • The parties must have the legal capacity to marry • The parties must simultaneously agree to be married • The parties must cohabit (though consummation may not be required) • The parties must hold themselves out to the public as husband and wife • There is no requirement that the parties live together for a specific length of time except in the case of New Hampshire where there is a 3 year requirement and common law marital status is only applicable in the context of inheritance and death benefit claims. 17
  • Learning ObjectiveAfter this lecture, you should be able to: Identify and describe legal statuses accorded same-sex3.5 couples in various states including domestic partnerships and civil unions. 18
  • Legal Statuses Are Accorded Same-sex3.5 Couples Other Than Traditional Marriage• Same-sex marriage: available in a limited number of states• Adult adoption: available in a limited number of states as a means of creating a “family” relationship• Functional family status: applied by some courts to extend limited benefits to same-sex partners who are in committed long-term intimate relationships, support each other emotionally and financially, share roles, and hold themselves out to others as spouses 19
  • Legal Statuses Are Accorded Same-sex3.5 Couples Other Than Traditional Marriage • Domestic partnership: Available in a minority of states, it has been defined as a status granted to an unmarried couple who live together and receive a variety of economic and noneconomic benefits customarily granted to spouses. • To enter a domestic partnership, the parties typically must: be at least age 18; not be a party to any other legally recognized status or be related in any way that would prevent them from legally marrying; share a residence and be in an exclusive relationship; agree to be responsible for each other’s living expenses; and agree to file a certificate of dissolution if their relationship ends. In some states, the status is extended to heterosexual couples as well. 20
  • What Legal Statuses Are Accorded Same-3.5 sex Couples Other Than Traditional Marriage? (Cont.)• Civil unions: Available in a minority of states, civil unions are essentially designed to afford same-sex partners the same benefits, protections, and responsibilities that married heterosexual spouses have under state law.• To enter a civil union, the parties typically must: be of the same sex; be at least age 18 and mentally competent; and not be a party to any other legally recognized status or related in any way that would prevent them from legally marrying.• To terminate their relationship, in a state that recognizes civil unions, they essentially use the same procedure as is used in dissolution of a traditional marriage. 21
  • Learning ObjectiveAfter this lecture, you should be able to: Distinguish among the rights and benefits that flow from traditional3.6 marriage, same-sex marriage, civil unions, and domestic partnerships. 22
  • What Are The Rights And Benefits That3.6 Flow From Traditional Marriage? • According to a report of the U.S. General Accounting office, there are more than 1,000 rights and duties that flow from traditional marriage including, for example: • The right to receive support from a spouse • The right to seek a division of marital property upon divorce (absent an agreement to the contrary) 23
  • What Are The Rights And Benefits That3.6 Flow From Traditional Marriage?• Absent an agreement, the right to inherit from a spouse and to receive certain governmental benefits such as Social Security and Veterans’ benefits provided applicable conditions are met• A right to continued employer-provided health insurance for a specified period under COBRA• The right to make medical decisions for a spouse• The right to file a claim for wrongful death of a spouse• The right to exercise the marital communications privilege 24
  • What are the benefits that flow3.6 from same-sex marriage • In states that recognize same-sex marriage, as of the summer of 2012 same-sex spouses are entitled only to benefits available to spouses under state law. • The federal Defense of Marriage Act (DOMA) passed in 1996 (still in force in the summer of 2012 but being challenged) does not declare same-sex marriage illegal but does define marriage for all federal purposes as the legal union of one man and one woman as husband and wife. • The federal DOMA also provides that no state can be forced to recognize a same-sex marriage. In response, a majority of the states have passed mini-DOMAs in the form of statutes or constitutional amendments effectively denying to same-sex couples the rights and privileges granted to heterosexual married couples. 25
  • What Are The Benefits That Flow From3.6 Domestic Partnerships And Civil Unions?• There is no standard set of domestic partnership benefits. They vary by state where such partnerships are recognized and are usually less extensive in nature and extent than benefits extended to partners in civil unions.• The rights, benefits, and obligations of partners in civil unions are essentially the same as those of heterosexual spouses under state law. 26
  • Learning ObjectiveAfter this lecture, you should be able to: Describe the potential role of a paralegal in cases involving3.7 marriage and alternative family relationships. 27
  • What Is The Potential Role Of A Paralegal In Cases3.7 Involving Marriage And Alternative Family Relationships? • The paralegal’s role will vary depending on the nature of the case, the prevailing law in the jurisdiction, and the extent to which the employer’s practice addresses issues involving same-sex relationships. • In cases involving a traditional marriage, the paralegal might be assigned to obtain copies of the marriage license and any necessary supporting documents or translations. 28
  • What Is The Potential Role Of A Paralegal In Cases3.7 Involving Marriage And Alternative Family Relationships?• In a case involving a potential annulment, the paralegal may draft documents, research governing law, prepare discovery requests for review, etc.• In cases in which a common law marriage is claimed, the paralegal may gather information, affidavits, and documents needed to support the client’s position. (See Paralegal Application 3.4 Information Gathering in a Common Law Marriage Case on page 80 of the text.)• Because this is a cutting edge and rapidly evolving area of law at the heart of heated debate, thorough research is a key task performed by the paralegal. 29
  • Chapter Summary3.1 Explain how and why the concept of “family” 12 has evolved over the past fifty years.3.2 Distinguish among different types of marriage. Identify ways in which the states regulate and3.3 restrict the fundamental right to marry. Class Name Instructor Name Date, Semester Cont.
  • Chapter Summary3.4 Identify common requirements for valid 12 ceremonial and common law marriages. Identify and describe legal statuses accorded3.5 same-sex couples in various states including domestic partnerships and civil unions. Distinguish among the rights and benefits that3.6 flow from traditional marriage, same-sex marriage, civil unions, and domestic partnerships. Class Name Instructor Name Date, Semester Cont.
  • Chapter Summary3.7 Describe the potential role of a paralegal in12 cases involving marriage and alternative family relationships. Class Name Instructor Name Date, Semester