Chapter 53: Family Law Business Law Legal, E-Commerce, Ethical, and International Environments
- 19 th century courts recognized actions for breach of a promise to marry.
- Today, courts do not recognize this breach.
- Persons breaking engagement could be responsible for costs incurred.
- Fault Rule: If groom breaks engagement, woman keeps ring. If she breaks engagement, she returns ring.
- Objective Rule : If an engagement is broken off, the prospective bride must return the engagement ring, irrespective as to which party broke off the engagement.
- A contract that is entered into prior to marriage.
- Specifies how property will be distributed up the termination of the marriage either by divorce of death of a spouse.
- Each party must make full disclosure of all assets and liabilities.
- Each party should be represented by an attorney.
- Legal union between spouses.
- Confers certain legal rights and duties upon the spouse and the children born of the marriage.
- State law establishes requirements.
- Most states require that parties be a man and a woman.
- Must be of certain age, or have parental consent.
- Marriages between close relatives prohibited.
- State law requires marriage licenses.
- Obtained at county clerk’s office.
- Some states require marriage ceremony.
- After ceremony, license is recorded.
Common Law Marriage
- Type of marriage recognized in some states.
- No marriage license required
- Certain requirements must be met
- Parties must intend to be husband and wife
- Parties must hold themselves out as husband and wife
Parents’ Rights and Duties
- Parents have obligations to provide food, shelter, clothing, medical care, and other necessities.
- Must provide these until child is 18 or emancipated.
- Child neglect if a parent does not provide.
- Suit to determine identity of father.
- Brought by government to get financial assistance payments.
- Brought by father to establish if he is biological father.
- Most states presume that the husband of woman who bears a child is the father.
Parent’s Liability for Child’s Wrongful Act
- Parents are not generally liable for child’s negligent acts.
- Parents are liable if their negligence caused their child’s act.
- Some states have enacted child liability statutes.
- Make parents financially liable for intentional torts of child.
- Person becomes the legal parent to a child that is not biologically theirs.
- Can be an agency adoption or an independent adoption.
- Procedures established by state.
- Biological parents’ rights are terminated by legal decree or death.
- Court must formally approve.
- Person adopts child from social services organization of the state.
- Biological and adoptive parents introduces before adoption.
- Some states give visitation rights to biological parents.
- Private arrangement between biological and adoptive parents, usually through an intermediary.
- Children placed under state care as temporary arrangement.
- State pays foster parent to care for child.
- Arrangement terminated when child returned to biological parents or adopted.
- Can occur through and annulment or divorce.
- Annulment can occur when parties lacked capacity or consent. Declaration that marriage never existed.
- Divorce is an order of the court that marriage is terminated.
- Must file a petition for divorce.
- Traditionally, had to prove fault.
- Today, most states are no-fault.
- Divorce is final when a court orders that the marriage is terminated.
- Order of court declaring that marriage did not exist.
- Certain ground must be asserted.
- One party lacked the capacity to consent.
- Children born of annulled marriage are legitimate.
- Commenced with filing a petition for divorce.
- Petition served on other party.
- Other party has limited time to file an answer.
- If parties do not reach settlement, case goes to trial.
- Both parties call witnesses and introduce evidence.
- Judge issues a decree of divorce.
- Some states have waiting periods after trial before it is issued.
- Termination of marriage could be settled with a settlement.
- Mediation frequently employed
- Divorcing parties must sign a settlement agreement.
- Document states that parties have settled all property rights and other issues.
Division of Assets
- Separate property owned by spouse prior to marriage, as well as inheritance and gifts received during marriage.
- Each spouse usually is awarded separate property.
- Marital property acquired during marriage, or separate property which changes title to jointly owned is considered marital asset.
- Some states follow the rule of equitable distribution.
- Means fair distribution of property to both parties of the divorce.
- Other states follow the community property rule which means equal distribution of property.
- Community property means all property acquired during the marriage is divided equally between the individuals.
Division of Debts
- Type of debt and state law determine how they are divided.
- Debts incurred during marriage for necessities are considered joint marital debts.
- Spouses are jointly liable for taxes incurred.
- Spousal support: also called alimony. Money paid by one divorced spouse to another.
- Can be temporary, rehabilitation, or permanent alimony.
- Spousal support terminates at death of spouse, remarriage, or if they become self-sufficient.
- Payments made by non- custodial parent to help pay for the financial support of his or her children.
- Duty to pay continues until child reaches the age of majority or is emancipated.
- Award may be modified based on changed circumstances.
- The awarding of legal custody of a child to a parent.
- Based on the best interest of the child.
- Parent awarded custody is the custodial parent and has legal custody .
- Both parents are responsible for making major decisions concerning the child.
- Sometimes awarded joint physical custody.
- Child spends certain portion of time being raised by each parent.
- If there is no joint custody, the non-custodial parent may have visitation rights.
- Can order court-supervised visitation.