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Family Law 01
 

Family Law 01

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Family Law 01 Family Law 01 Presentation Transcript

  • Intro to U.S. Law
      • Family Law and Related Topics
  • Sources of Law
    • Primarily State Law
      • Statutes set forth general elements
      • Court interpret and create precedent
    • Federal Law
      • Mostly concerns fundamental rights
      • Welfare benefits and child support enforcement
  • Ceremonial Marriage
    • Legal Capacity to Marry
      • Legal age – usually 16 to 18 years old
      • Mentally competent
        • Person must understand nature of act
      • Not already married
  • Michigan Age Statute
  • Additional Considerations
    • Valid formation
      • Voluntary
      • No fraud
    • Blood relationship
      • Many prohibit Uncle/Niece and Aunt/Nephew
      • Some prohibit first cousins
  • Incapacity Statutes
  • Marriage Procedure
    • First must obtain license from state
      • Must apply with the state
      • License usually issued by county clerk
        • Many states have waiting period between application and issuance date.
      • Few states require blood tests
    • Then marriage must be “solemnized”
      • Can be done by religious representative or civil official
  • Common Law Marriage
    • Recognized in about ¼ of states
    • Does not technically meet marriage requirement
      • No license, no solemnization, etc.
      • Considered as implied agreement to be married.
    • When this becomes issue?
      • Death benefits, taxes, etc.
  • Validity of Foreign Marriages
    • Foreign – different state OR different country
      • Between the States – Full Faith and Credit Clause
      • Between State and Foreign Country
        • Generally conflict of law, private law question
        • States generally do not have statutes directly on point
    • Gay Marriage and the recognition of “foreign” marriages
  • Foreign Marriage Statute
  • Marital Property
    • Under Common Law
      • “by marriage, the husband and wife are one person in the law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”
          • Blackstone, Commentaries of the Laws of England (1765-1769)
  • Married Women Property Act
    • Rules developed by equity courts in England started creating exceptions to common law.
    • By 1900, England and all states passed laws permitting woman to have and control separate property.
      • Eventually these laws provided full rights and responsibilities to married women.
  • Modern Approach
    • Common Law Separate Property Approach Upon Divorce
      • Followed in vast majority of states
      • Allows for “separate” property to be kept
      • MWPA laws plus “equitable distribution” of property upon divorce.
        • Requires equal distribution of property upon divorce
  • Community Approach
    • Similar to laws in civil law system
    • Used in only a minority of states
    • All property acquired during marriage becomes marital property with spouses being joint owners.
      • Equitable distribution upon divorce
  • Premarital Agreements
    • Contract setting forth property rights upon marriage.
      • Sometimes called “prenuptial” or “antenuptial”
      • Traditional use = death.
      • Modern use = divorce.
  • The Case of Anna Nicole Smith
    • Anna Nicole Smith
      • Age 26, former Playboy Playmate.
    • J. Howard Marshall
      • Age 89
      • Billionaire oilman
    • Marriage ends 14 months later upon his death.
  • Legal Responsibilities
    • Both parents have a legal duty to financially support their children.
    • All Assets and Debts are joint property unless otherwise noted.
      • Property brought into a marriage – differs from state to state.
    • Surviving spouse is legally entitled to portion of state upon death of spouse.
  • Legal Rights
    • Tax Benefits
      • Impacts particularly how business receipts are taxed.
      • What about the marriage penalty?
    • Estate Planning Benefits
      • Automatic inheritance
      • Estate tax exemption
    • Government Benefits
      • Spouse entitled to receive benefits
  • Legal Rights
    • Employment Benefits
      • Insurance via spouse's employer, Leave (family, bereavement, Pension
    • Medical Benefits
      • Visitation, making medical decisions
    • Death Benefits
      • Autopsies, burial decisions
  • Legal Rights
    • Family Benefits
      • Alimony, child support, etc.
    • Housing Benefits
      • Renewal of lease signed by spouse, living in “family only” neighborhoods.
    • Other legal protections
      • Immigration, marital privilege, crime victim's recovery benefits, etc.
  • Same-Sex Marriage & Rights
    • States Allowing for Same-gender Marriage
      • MA, CT (Hawaii for a few years, CA for a few months)
    • States Allowing for Domestic Partnerships
      • VT, NJ, NH, (full rights)
      • ME, HI, DC, OR, WA (limited rights)
    • These marriages/unions will not be recognized by Federal government or other states.
  • Gay Marriage by State