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Family Law Badmouthing

Tue, 14 Oct 2008 21:18:05 GMT

What Happens When a Divorcing Parent Bad-Mouths the Other in Front of their Children?

Marriage is a contract between two people that can be ended simply by divorce at the time of their choosing, unless children are involved. Children entangled in divorce reasonably cause the courts to proceed cautiously and with concern for their hearts and minds. Accordingly, when a parent bad-mouths the other in front of the children, the legal system will step in to prevent this from reoccurring.

Dirty Tactics

Parents, previously concerned about their children’s well being, can suddenly lose all regard for the affect of their actions upon them during divorce. Although there are many down and dirty tactics used in custody disputes, one of the most frequently used is a parent saying disparaging remarks about the other parent to the children. These remarks can create uncomfortable situations which negatively affect a child, including: anger toward one or both parents, belief in false information, not wanting to spend time with a parent or no longer feeling comfortable around a parent.

Bad-mouthing is often used as a tactic to not only hurt the other parent but to also push to get one’s way. If a child hears negative remarks about a parent they may no longer want to visit them or may desire to live primarily with the other parent. It may also occur because a parent may feel like they have no control of the situation with their children and the only thing they can control is what they say to them.

Legal Response – Parenting Plans

Knowing that many normally rational and sane adults can suddenly become irrational and insane during a divorce and a custody dispute, most courts use preemptive actions in dealing with the children. Often a judge will require parents to together develop a parenting plan. A parenting plan can involve anything that is relevant in dealing with the children including living arrangements, visitation and most importantly dispute resolution. Therefore, when the parents disagree they must first turn to the parenting plan to determine how to resolve the dispute.

Diffusing Bad-Mouthing

There are many benefits to establishing a parenting plan early in the process:

    •    It ensures both parents are involved in the development of the child
    •    Brings parents together to determine what is most important
    •    It can establish a system to work out disputes that will avoid involvement of the legal system
    •    Puts the child first and foremost

Generally, when a divorce action is begun, parents are not permitted to speak disparagingly about the other to the children, although for many reasons previously discussed it may still occur. A parenting plan can preemptively prevent bad-mouthing and also diffuse an existing negative situation. It will give both parents an opportunity to discuss what is important to them and their children. Also, by providing an opportunity for agreement on these items, anger between parents that causes bad-mouthing may be diffused, thus providing an outlet for discussion and resolution rather than disagreement.

For more information on bad mouthing, contact a family law attorney today.

Distribution of Property Upon Divorce

Tue, 21 Oct 2008 19:21:51 GMT

Getting divorced involves a lot of financial decisions. The property, including real estate, stocks, personal property, bank accounts and other things, needs to be divided. Sometimes the couple getting divorced can work out an equitable arrangement themselves. If this is the case then the judge granting the divorce usually signs off on their agreement.

However, getting divorced is not always so simple. It is often contentious and the parties are not able to come to an agreement concerning the division of their property. In most divorces, the court is forced to divide the property for the couple.

How the property will be divided is, in part, dependent upon whether the governing state law is a "community property" state or an "equitable distribution" state. Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico are community property states. The rest of the states are considered equitable distribution states.

Community Property

Courts in these jurisdictions divide property owned by the couple into two categories. One category is the property that is jointly owned by the couple, or the community property, and the other category is the property owned by each spouse individually, or the separate property. Community property includes money that was earned during the marriage and the possessions acquired with any of those earnings. Separate property includes any gifts or inheritances given just to one spouse even if the gift or inheritance was acquired during the marriage. Courts usually divide the community property equally between the two spouses and allow each spouse to keep his or her separate property without division, though there are some exceptions. Also, it is important to note that if a couple mixed separate and community funds to make a purchase, for example a house, then the courts may consider the purchase to have been made with community property for purposes of distribution in a divorce proceeding.

Equitable Distribution

The remaining states are not community property states and instead base property division on the principle of equitable distribution. The assets and money acquired during the marriage, by both spouses, is divided fairly, although not always equally.

The House

This is one of the biggest issues surrounding the division of property in many divorce proceedings. If the house was purchased together by the spouses and the couple cannot agree on which spouse should leave the home, then the judge will decide the issue. Sometimes the judge will require that the house be sold and the profits split between the parties. Other times the judge will require one spouse to buy out the other spouse’s interest in the house or the judge can award the house to one spouse and property of equal value (cars, jewelry, personal property, money) to the other spouse. Usually, if the couple has children then the judge lets the spouse who is the primary caregiver remain in the house with the children and the other spouse is entitled to other property. However, if the house was purchased by just one spouse then that spouse usually gets to keep the house in a divorce proceeding.

It is difficult to divide property during a divorce. However, the laws are in place to help couples, their attorneys and the judge divide the property as equitably as possible.

For more information on distribution of property, contact a divorce attorney today.

Do I need to hire a lawyer to establish or enforce a child support order?

Mon, 10 Nov 2008 19:10:29 GMT

Every state has child support agencies that are set up to help you establish and enforce a child support order. By filling out a short application and submitting a copy of your support order, if one already exists, you easily can enlist the help of your local child support office. These offices offer free child support services to people who receive public assistance, such as Temporary Aid to Needy Families (“TANF”), Medicaid, or food stamps. Even if you don’t receive any sort of public assistance, you can still get help with a child support order by paying a fee of approximately $25.00.

You can also hire a lawyer in private practice to help you establish and/or enforce a child support order. This can be particularly wise when you not only have child support issues with your ex, but you also are having other problems with your ex that concern your child. While federal law requires that state and local child support agencies assist you in establishing and/or enforcing a child support order, you need to remember that these agencies deal strictly with child support, and not with any other issues concerning your child for which you might need help. Issues such as child custody and visitation are extraordinarily important to you, your ex, and most of all, your child, and often must be dealt with through the court system. For these types of issues, you are well advised to hire a lawyer who specializes in family law matters.

Whether you are working with a private lawyer or a lawyer from a child support agency, he or she will guide you through the often complex process of filing the appropriate paperwork with the court system in order to get a child support order. A lawyer can help you locate your ex, properly and legally serve your ex with notice that you want a child support order, and document any income that your ex receives. A lawyer can also help you determine what financial information you need in order to properly calculate a child support obligation for your ex. Calculating child support is often rather complicated, as well, and can require the use of specialized software programs.

Once a child support is established, it can be difficult for some parents to enforce it. If your ex won’t pay his or her child support, your only way to enforce the order is through your local child support office or your court system. Again, either a private lawyer or a child support office can help you with enforcement of your child support order. Both types of lawyers can obtain garnishment orders if your ex is employed, or file contempt of court proceedings against your ex for not following the court’s child support order. Other remedies include intercepting tax refunds, placing holds on passports, and entering liens against vehicles and real estate. A lawyer is helpful in pursuing any of these enforcement remedies.

Enforcing a Child Support Order Out of State

Mon, 10 Nov 2008 19:14:12 GMT

While a parent living out of state may make enforcing your child support order a bit tricky, it certainly doesn’t make it impossible. The first step is to find the other parent’s address. In some cases, this may require hiring a private investigator or using locator resources from your local child support office. Every state has a parent locator service, and local child support offices have access to resources such as federal new hire data, state new hire data, unemployment insurance information, criminal and civil court records, credit bureau data, Bureau of Motor Vehicles information, and other similar sources of information. In many cases, particularly if the other parent works, he or she will not be too hard to track down. Once you have other parent’s address, you’re halfway there, because now the courts have a way to contact him or her.

One easy way to enforce your child support order when the other parent is out of state is to have the courts send a garnishment order directly to the other parent’s employer. Under federal law, all employers must honor child support garnishment orders from other states. An employer can’t refuse to garnish an employee’s wages for child support just because the garnishment order comes from another state.

If you don’t know where the other parent works, there is still hope for enforcing your child support order. Every state has passed some version of the Uniform Interstate Family Support Act (“UIFSA”), which is a law that is designed specifically to enforce child support orders from one state against a parent who lives in another state. By using UIFSA, which usually requires hiring an attorney or contracting with your local child support office, you can ask the courts, the child support agencies, and/or a private attorney in the state where the other parent is living to enforce your child support order. The courts in that state must enforce your child support order just as if it was a child support order issued in that state.

Many states also have criminal laws that govern child support orders. If a parent fails to pay child support as ordered, your local prosecutor’s or district attorney’s office can file criminal nonsupport charges against the parent, even if he or she lives in another state. Your state can extradite, or bring the parent back to your state from another state, because he or she is charged with a crime. State felony nonsupport charges can result in various sanctions, including incarceration, home detention, and probation.

Failing to pay child support is also a federal crime, so you can ask the federal prosecutor or district attorney for your jurisdiction to bring charges against the other parent. Like state criminal laws concerning non-payment of child support, the other parent can be incarcerated or placed on probation for failing to pay child support as ordered.

How to Avoid Having Your Prenuptial Agreement Declared Invalid

Sat, 11 Jul 2009 17:57:34 GMT

Prenuptial agreements provide stability and certainty to married couples who decide to divorce but only if the prenuptial agreement was properly executed when it was created. Couples who go through the process of making the sometimes difficult decisions that are included in prenuptial agreements, hiring attorneys and executing the legal document should make sure that their prenuptial agreement will be valid should they need it.

A prenuptial agreement will be declared unenforceable by a Court if any of the following problems occur:

· The prenuptial agreement was not properly executed when it was created. In most states a prenuptial agreement must be in writing and signed by both parties. Some states require that the signatures be notarized. Any amendments to the prenuptial agreement must be executed in the same manner.

· The prenuptial agreement was not executed voluntarily. A prenuptial agreement, like other types of contracts, must be voluntarily executed. That means that both parties must be signing the contract of their own free will and without any type of coercion. Each party must also be represented by independent counsel if they so desire.

· The prenuptial agreement is unconscionable. In other words, the agreement cannot be grossly unfair. Each state has its own case law, or common law, which defines what is unconscionable. The agreement should not be unfairly one sided or shock the public conscience. It cannot require either spouse to do something illegal in exchange for money nor can it give a financial incentive for the parties to divorce.

· One or both of the spouses did not fairly and fully disclose all relevant information to the other spouse prior to the execution of the prenuptial agreement. Each party is entitled to a full and accurate description of the financial assets and financial liabilities of the other party. It would not be fair, for example, for one spouse to hide a million dollar trust fund or expensive vacation property and then claim that the other spouse is not entitled to benefit from those assets because of the terms of the prenuptial agreement that was executed when the other spouse had no knowledge of those assets.

Additionally, particular sections of a prenuptial agreement may be declared invalid by the court. For example:

· Child custody and child support agreements are usually not permitted in prenuptial agreements. Child custody and child support arrangements must be made in the best interest of a child and not predetermined prior to the time that they are needed. Any section about child custody and child support that is written into a prenuptial agreement is likely to be disregarded and deemed unenforceable by a court assuming that the children at issue are the children of both spouses.

· Spousal support agreements are typically permitted in prenuptial agreements. However, many courts will disregard the spousal support portion of a prenuptial agreement if enforcement of the provision would make one spouse eligible for public assistance or if the provision is unconscionable at the time that it is to be enforced.

Prenuptial agreements are important legal contracts that provide certainty to both spouses at the time of divorce or to the surviving spouse at the time of death. However, in order for the agreements to be enforced they must not have any of the problems described above.

Intercepting Tax Refunds When a Parent Fails to Pay Child Support

Mon, 10 Nov 2008 19:16:56 GMT

It seems only fair that if a parent is entitled to a tax refund, and he or she owes back child support, then back child support ought to be paid off first. For that reason, federal law provides that if a parent owes back child support, then a state child support office can intercept that parent’s tax refund for you and apply it to the back child support. Even if the child for whom child support is owed is now emancipated, a parent’s tax refund can still be applied to the back child support that he or she owes.

In order to qualify to receive the other parent’s tax refund for back child support, you need to make sure that you are enrolled in your state’s tax intercept program, which you can do by contacting your local child support office. If you or your child receives public assistance, then your local child support office’s services are generally free. Otherwise, you will have to pay up to $25.00 for an application fee. In some states, private attorneys also can obtain court orders requiring that parent’s state or federal tax refund be applied toward his or her back child support.

The federal tax intercept program also applies if the federal government issues stimulus payments to taxpayers, such as it did in the year 2008. This type of tax payment also can be intercepted and applied to a parent’s back child support.

Likewise, many states have state tax intercept programs, which essentially work the same way as the federal tax intercept program. State child support offices can intercept parents’ state tax refunds, and apply them to back child support. Those states that do not assess income tax, of course, would not have a state tax intercept program.

If a parent who owes child support is remarried, however, their tax refund might not be applied to back child support. If the parent and his or her new spouse has filed a joint tax return, and part of the tax refund is due to the new spouse’s income, the new spouse is entitled to his or her portion of the tax refund. In order to get that portion of the tax refund, the spouse must file an “injured spouse” form with the Internal Revenue Service (“IRS”). For this reason, joint tax refunds are held by state child support offices for six months before they are applied to back child support.

Tax refunds intercepted for back child support are first applied to back child support that has been assigned to the state, such as for periods when public assistance was drawn, and child support was not being paid. Once any balances owed to the state are paid off, the refund is applied to back child support that is owed to the other parent.

If the parent owes certain other government debts, such as federal student loans or federal income tax, the parent’s tax refund will go to pay those debts before back child support is paid. Additionally, the tax intercept program doesn’t help much when a parent doesn’t file his or her taxes, or isn’t entitled to a tax refund, which can happen for various reasons.

Prenuptial Agreements: Potential Benefits for Couples Who Stay Married

Sat, 11 Jul 2009 17:58:08 GMT

Some couples avoid creating a prenuptial agreement because they think that it is unromantic and that they will never be divorced. They may be right. A prenuptial agreement might not be romantic and the couple may stay married until death do they part. However, a prenuptial agreement is still important for them.

A Prenuptial Agreement Promotes Honest Communication about the Couple’s Finances

In order for a prenuptial agreement to be enforceable, each spouse must provide a fair and accurate disclosure of his or her property and financial obligations to the other spouse. That means that the very act of creating a prenuptial agreement should lead the couple to honest and complete communication about what they own and what they owe. With that knowledge, the spouses can work together to create a financial strategy that is beneficial to them as a married couple. Also, the attorney who works with the couple to create the prenuptial agreement can often help the couple with estate planning strategies based on the information that was shared while drafting the prenuptial agreement.

A Prenuptial Agreement is a Useful Estate Planning Tool

As much as we’d like to believe that marriages will last forever, every marriage ends either by divorce or death. A prenuptial agreement can be a useful part of a couple’s estate plan. For example, a prenuptial agreement can be used by a spouse to sign away his or her rights to be the beneficiary of an insurance policy or retirement plan. This is particularly important if the spouse is required by law to be a beneficiary of such a policy absent an agreement otherwise. A prenuptial agreement can also be used by a spouse to sign away his or her rights to the statutory spousal share of the other spouse’s property when the spouse passes away.

Married Couples Should Periodically Review Their Prenuptial Plans

Spouses who remain married should be aware of the contents of their prenuptial agreement and review it periodically, as they do their other estate planning documents, because their circumstances might change and they may wish to amend their original prenuptial agreement. Prenuptial agreements are easy to amend. Most states require that amendments be in writing and be signed by the spouses. The same rules of enforcement that apply to prenuptial agreements apply to prenuptial agreement amendments, meaning that each spouse must provide the other with a full and fair disclosure of his or her finances, the amendment must be made voluntarily and the amendment must not be unconscionable.

A party may wish to amend a prenuptial agreement if, for example, one or both of the spouses had minor children at the time the original prenuptial agreement was executed. The original prenuptial agreement may have financially provided for those minor children before providing for the spouse. However, as the years pass those minor children may be adults and financially independent and the spouses may agree to leave more assets to each other in the case of divorce or death.

Prenuptial plans are important tools for couple who stay married, as well as couple who divorce. A prenuptial attorney in your state can provide you with additional information about how a prenuptial agreement can benefit you and your future spouse.

Saying I Do: With a Prenuptial Agreement

Sat, 11 Jul 2009 17:58:45 GMT

Wedding days are often preceded by deciding on flower arrangements and planning a romantic honeymoon. While those things are important and make your special occasion extraordinary and personal, there are also some important practical matters that engaged couples should consider. Among those matters, is the often debated prenuptial agreement. Some critics claim that a prenuptial agreement is not romantic and creates an easy way out of a marriage. However, people who have created a prenuptial agreement will tell you that they do not create the agreement with the goal of getting married and divorced and couples who divorce will tell you that they would have divorced with or without a prenuptial agreement.

Why is a Prenuptial Agreement Important?

If the existence of a prenuptial agreement does not factor into a couple’s decision to divorce, then why is it important? A prenuptial agreement is important for many reasons, including:

· Protection of Property: Couples can decide to protect certain property for themselves or for other family members in a prenuptial agreement. This can be done for any number of reasons and in any number of ways. It is most commonly seen when there are children from a prior marriage whom the biological parent wants to provide for or when there are substantial assets or important family heirlooms that a person wants to keep from a spouse in the event of a divorce.

· It May Reduce Arguments and Save Attorney Fees at the Time of a Divorce: When a couple decides to divorce, each spouse is typically represented by an attorney who helps the couple negotiate the division of property. An enforceable prenuptial agreement can eliminate many of the billing hours of divorce attorneys since the couple has already decided how to divide their property and possessions. In some cases, the spouses may also decide the issue of spousal support or alimony in a prenuptial agreement. While some issues may remain such as child custody and child support, deciding on many of the financial issues in a prenuptial agreement can lead to a faster and less expensive divorce then the couple otherwise would have been able to obtain.

· Separating Debt Liability: A prenuptial agreement can describe how the couple will be responsible for debts incurred prior the marriage. For example, if one spouse comes to the marriage with significant credit card debt then the prenuptial agreement could make that spouse responsible for the credit card debt that predated the marriage in the event of a divorce.

· Protection of a Family Business: A family business can be seen as a valuable asset during a divorce and, in the absence of a premarital agreement, a court could award some of your ownership rights in a family business to your soon to be ex spouse. Obviously, that can lead to a potentially uncomfortable situation and a business that is not solely a “family” business any longer. A prenuptial agreement can protect your ownership of the family business and prevent a court from awarding any part of the ownership to your ex spouse.

A prenuptial agreement allows a couple to determine how they want their property divided while they are still on good terms and without animosity. It is, therefore, important to consider a prenuptial agreement before getting married for all of the reasons described above.

What to Know Before Your Wedding Day: The Legal Requirements of Getting Married

Thu, 11 Dec 2008 01:10:57 GMT

There is so much to think about when you are planning a wedding. Finding the right dress, the perfect location and planning the menu probably spring to mind immediately. However, there are also some important legal issues that engaged couples should be aware of and must address while planning their wedding.

Getting a Marriage License

In order to get married, a couple must meet the state requirements for obtaining a marriage license in the state in which the wedding will take place. For example, if the couple is getting married in Las Vegas, Nevada but resides in California then the marriage laws of Nevada apply to the couple’s wedding. Every state in the union recognizes the valid marriage of a couple that occurred in another state.

Every state has slightly different rules concerning marriage. In most states the couple should go to the city or county clerk’s office to obtain their marriage license.

Most states require that:

Both spouses have the mental capacity to enter marriage and that they are doing so without coercion and of their own free will;
Both spouses are of legal age to marry. Most states allow people to marry at age 18. Some states allow people to marry at age 16 or 17 with parental consent;
Both spouses are not legally married already;
The spouses are not close blood relatives (although a few states will allow cousins to marry); and
You pay a small fee.

Some states also require:

That both spouses have blood tests for certain diseases prior to getting married;
Proof of vaccination or immunity to certain diseases;
That the spouses obtain their marriage license at least three days prior to the wedding ceremony so that they have time to reflect on the commitment that they are making.

The Wedding Ceremony

All states allow couples the choice between a civil and a religious wedding ceremony. However, couples must be sure that whoever is officiating at the wedding is recognized by the state as having the power to marry people. In some states it is possible to have a friend or relative receive special permission by the county or state to have the authority to perform a marriage. However, if you are not being married by a justice of the peace, a judge or an ordained religious leader such as a minister, a priest or a rabbi then you should call your county clerk’s office and make sure that you understand all of the rules so that your wedding is valid. Most states also require witnesses to be present at the time of the wedding.

International Weddings

The rules for international weddings vary depending on your destination. Most international weddings are honored in the United States. However, if you are getting married in a country other than the United States then it is important for you to speak with the county clerk where you reside and with officials in the foreign country to determine exactly what you need to do to be validly married and for that marriage to be recognized in the United States.

In order to make your wedding as stress free as possible it is important to make sure that all of the necessary legal steps are completed prior to your wedding day.

How to Go Through a Divorce

Sat, 01 Aug 2009 18:37:54 GMT

No matter what the circumstances, a divorce is a big change. It fundamentally changes the family structure and often the day to day life of the soon to be ex-spouses and their children. The emotional consequences and financial costs of a divorce can be high but it is important, that no matter what you are feeling and no matter what your financial situation, that you follow the steps outlined below in order to ensure that your needs are met now and in the future.

If you are getting a divorce then you should consider:

Keeping Things Amicable, If Possible: This may be easier said than done depending on the reasons for your impending divorce. However, it is important to keep in mind your goal of dissolving your marriage and not to seek revenge during the divorce proceedings. It may be easier to convince your ex-spouse and a judge to see things your way if you are amicable and not angry.
Protecting Your Financial Accounts: You and your spouse may have joint bank accounts. Joint bank accounts can be held by any two people, not just spouses, so your separation or impending divorce will not impact either person’s ability to withdraw money from the joint accounts absent a court order. Since anyone who is named on a joint account can withdraw money in any amount, it is important that you keep a close eye on your bank accounts and consider, with your attorney, how you should act to protect your share of the available funds.
Keeping Comprehensive Records: Family law judges generally like documentation. The types of records that you need may depend on your goal in the proceedings. For example, if one of your goals is to keep primary custody of your children then you might keep a log of how much time your soon to be ex-spouse spends with your children. If, one of your goals is to collect alimony then you might want to have specific records about your income and expenses so that you can make a well reasoned argument to the judge about your need for alimony.
Getting Sound Legal Advice: Divorce is common in the United States but it is important to remember that it is still a legal proceeding that dissolves a marriage and it, therefore, has lasting implications. It is important for every divorcee to get legal advice either from trusted sources or a family law attorney, even if the divorce seems simple and amicable.

Despite what is often advertised online, there is no magic formula or manual that will guarantee a painless divorce for everyone. There are, however, specific steps, as described above, that can help most people through a difficult time in their lives. It is important to remember that the decisions made during your divorce are often long lasting and will greatly impact your future. Therefore, it is important to take the time to carefully consider your actions and make the decisions that are best for you and your family.

What to Do After the Wedding

Thu, 11 Dec 2008 01:12:42 GMT

Many couples look forward to a romantic honeymoon or at least some quiet relaxing time after the excitement and intensity of their wedding day. While this respite is undoubtedly welcomed, newlyweds should not lose sight of the business details that need to occur shortly after the wedding day.

Changing a Name

If one, or both, spouses are going to change their last name then it is important to be thorough and notify everyone who needs to know of the change.

In order for the change to be legal, the spouse(s) changing his or her name(s) must notify the local social security office and be issued a new social security card. The social security office will require a copy of your marriage license and a specific form that can be found on their website.

Next, you will need a new driver’s license. Typically, you need to go to your state Department (or Registry) of Motor Vehicles with your marriage license and current driver’s license. You will need to pay any fees associated with getting a new license issued.

Your passport will also need to be changed. This can be done by mail by sending in your current passport, a copy of your marriage license, the required forms, fees and photographs.

While you are likely excited to start using your new name, it is important to remember that it will take some time to change your official government identification cards, such as your driver’s license and passport. Therefore, if you are planning a trip immediately following your wedding you should make the reservations in your existing name so that you do not have problems clearing security when you present your identification.

Your employer must also be notified of your name change so that your benefits and paychecks are in your legal name. You might notify your employer prior to your wedding date if you want your e-mail address, business cards or stationery changed.

Combining Assets

Whether or not you change your name, you and your spouse may decide to make several or all of your financial accounts into joint accounts. You can change your bank accounts by both going to a local branch and providing proper identification. If you have any brokerage or investment accounts it is best to contact your financial advisor for directions.

Changing Beneficiaries

If you do not already have your spouse listed as your life insurance beneficiary then you might consider whether you want to make that change. If your spouse has changed his or her name since the wedding then make sure that the name is updated on your insurance information.

Notifying Insurance Companies

Often, one or both spouses have various insurance policies for various contingencies. Once a couple is married it might be less expensive for the couple to have a joint policy rather than separate policies. There are different timeframes for changing insurance coverage so it is important to inquire with your employer’s human resources department or with your insurance agent to make sure that you do not miss a window during which you can add your spouse to your policy. For example, if both spouses have health insurance through their employers, it might cost less to carry one family policy through one employer. However, if you wish to add your spouse to your coverage, you may have a relatively short time period of 30 days from your wedding day in which to do that. If you miss that time then you will have to wait until the next open enrollment period to add your spouse to your policy.

A wedding is an exciting and emotional event. It can be easy to lose sight of the business details that must be attended to once two individuals become a legally married couple. However, these details are important to attend to so that your married life starts smoothly.

Prenuptial Agreements

Thu, 11 Dec 2008 01:14:38 GMT

Marriage is forever. Or so is the intent when two people promise to love and support each other until death do they part. However, sometimes life does not work out as planned and, for whatever reason, a married couple seeks a divorce.

The divorce rate in America is often approximated at 40-50%. That rate is significantly higher if the spouses are on their second or third marriage. Knowing that the chances of divorce are statistically significant, many couples decide to enter prenuptial agreements prior to their wedding day.

A prenuptial agreement can explain how the couple’s property should be divided between the spouses in the case of a divorce and explains what each spouse’s responsibility will be to continue to financially support the other spouse after the divorce.

Are Prenuptial Agreements Valid?

Prenuptial agreements are recognized in every state of the union and will be honored if they are properly drafted and executed. In order to be considered by the court in a divorce proceeding, a prenuptial agreement must be in writing and must be entered into voluntarily. The agreement must be executed according to the specific requirements of state law. Many states require a notary public to witness the agreement.

If either spouse contests the validity or applicability of a prenuptial agreement then the court will need to decide whether the agreement should be followed. It is likely that a properly executed agreement will be set aside if the court finds either one of the following two circumstances to exist. First, if either party was not complete and truthful in his or her disclosure at the time the prenuptial agreement was executed then the agreement might be set aside. Neither spouse may lie about nor omit information about assets, income or anything else affecting his or her net worth. Second, if any part of the agreement is unconscionable then the agreement might be disregarded.

What About the Children?

It is important to emphasize that prenuptial agreements apply only to the spouses. Issues related to any children of the marriage, such as child support, visitation and custody cannot be determined by a prenuptial agreement. The reason is that the judge in the divorce proceeding is under an obligation to make determinations for the children based on the children’s best interest.

Do I Need a Prenuptial Agreement?

This is an intensely personal question that depends on your own circumstances. Many attorneys recommend prenuptial agreements to their clients who are wealthy, who are entering a second or subsequent marriage or who have children or other family members whom they want to provide for in the future. However, even young people who are entering their first marriages right out of school and have no money and no dependents may decide that a prenuptial agreement is important to their union.

Prenuptial agreements used to have a stigma attached to them. People used to assume that a couple was not committed to staying together forever if they executed a prenuptial agreement. Today, that stigma is largely gone and prenuptial agreements are an accepted part of the marriage process.

Divorce and Division of Assets

Thu, 11 Dec 2008 22:06:32 GMT

Divorce is the legal termination of a marriage
Divorce is different from a separation in that, by law, the marriage is considered to be formally ended. A separation may happen when couples are living separately but have not yet filed for a court order declaring a divorce.

Property which is acquired during marriage:
Property acquired during marriage is called marital property. Depending on the state of residence, marital property is treated differently upon divorce. There are two categories which states fall into when it comes to the treatment of marital property; Community Property and Equitable Distribution. Equitable distribution laws are followed by the majority of states. The following states are the exceptions, the community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

What happens in a Community Property State?
In community property states all property acquired by individuals before they enter into marriage is considered the separate property of that spouse. Also considered separate property is anything received by a spouse as a gift or inheritance, even if received during marriage, and any property that can be traced to a separate property asset. This means, for example, that an asset which is purchased entirely by gift money is considered separate property. Lastly, upon separation all earnings are considered separate property of the earning spouse. This separation need not be a legal separation, one formally recognized by a court. Living separately will constitute a separation when it comes to categorizing earnings as separate property (it is important to know the law in the applicable state, as the date of separation is treated differently in different states.) Upon divorce, separate property is awarded to the owning spouse.

What is Community Property?
Community property is anything that two spouses own together. Any earnings acquired during marriage until the date of separation are considered community property. Furthermore, any assets which are purchased with the community money are considered to be community property and owned equally by the spouses. Like earnings, all debts incurred during marriage until the date of separation are considered community debts. Debts include anything from credit card balances to car loans and house mortgages. This means that both spouses, no matter who earned the money or who accrued the debt, are considered to own the assets and debt in equal parts. Generally, upon divorce community assets and community debt will be distributed equally between the spouses.

What happens if I live in an equitable distribution state?
Equitable distribution states treat property upon divorce differently. Generally, equitable distribution refers to an equal distribution between spouses. However these states allow for the circumstances during the marriage and after the divorce to dictate which spouse will be awarded which assets as well as which debt. The goal in equitable distribution states is to give each spouse what is “fair” under the circumstances. This means that courts will consider, among other things, how much each spouse contributed to the marriage as far as earnings go, as well as who takes care of the children of the marriage and even the potential earning capacity of each spouse.

For more information about divorce and separation please contact a family law lawyer.

What is the difference between a same-sex marriage, a domestic partnership, and a civil union?

Mon, 09 Feb 2009 02:16:23 GMT

Under current law, same-sex marriages are legal in three states – Iowa, Massachusetts and Connecticut. Vermont has also approved same-sex marriages and they will become legal on September 1, 2009. Same-sex marriages were legal for about five months in California, but now are not legal; of course, this development leaves many questions as to the status of the marriages that were legally performed in California during that timeframe, as well as to whether same-sex marriage will again become legal in California. In the two where same-sex marriages are currently legal, members of same-sex marriages are entitled to all of the same rights and benefits as members of heterosexual marriages.

Domestic partnerships essentially involve economic and other types of benefits that are available to persons who are unmarried; some types of domestic partnerships only involve same-sex couples, but other types can apply to heterosexual unmarried couples, as well. In some states, such as California, Oregon, Maine, and Washington D.C., state law governs and regulates the rights and benefits of being involved in domestic partnerships, and these rights and benefits vary widely. Therefore, what may be a benefit of a domestic partnership in Maine may not be a benefit in California. Plus, domestic partnerships typically do not entitled a couple to all of the same benefits that a married heterosexual couple enjoys.

Furthermore, throughout the nation, there are private businesses and even governmental entities that offer varying degrees of domestic partnership benefits, such as health insurance, family leave, life insurance, etc. In other words, some companies extend to unmarried and/or same-sex couples some or all of the same job-related benefits to which married couples would be entitled. Of course, just as is the case for married couples, there may be restrictions and/or limitations on who qualifies for certain benefits.

By contrast, in New Jersey and New Hampshire, same-sex couples can enter into civil unions, which are designed to be legally equivalent to marriages. Just as marriage affects a person’s rights and responsibilities, so do civil unions. For instance, if you are part of a civil union, you could file a joint state tax return with your partner, just as if you were married. Your partner would be entitled to inherit property from you upon on your death, just as a spouse could. Plus, civil unions make same-sex couples subject to certain legal proceedings in state courts, such as annulment, divorce, child custody, and visitation. However, members of civil unions are not entitled to any rights and benefits governed by federal law, like getting Social Security benefits or filing joint federal tax returns.

One aspect of all three of these types of legal relationships – same-sex marriage, domestic partnerships, and civil unions – is the legality and recognition of these relationships in other states. While a same-sex marriage from Massachusetts might be legal in another state, for instance, the other state may still not legally acknowledge or recognize the marriage. In other states, the Massachusetts same-sex marriage might not be legal at all. As a result of conflicting or silent state laws regarding these legal relationships, you should keep in mind that enjoying any benefits of these relationships outside of the state in which they originated simply may not be possible.

Will my sexual orientation prevent me from adopting a child?

Sun, 15 Feb 2009 01:48:21 GMT

While adoption law can seem complicated for any parents looking to adopt, it becomes even more complex if the prospective adoptive parents are a same-sex couple, or if the prospective adoptive parent is both single and gay. Each state has different laws regarding adoption by same-sex couples and gay individuals; for instance, in some states, the law does not allow unmarried persons to adopt, which automatically rules out same-sex couples and gay individuals in many states, whereas in other states, there may be a specific law that prohibits same-sex couples from adopting. Therefore, if you are in a same-sex relationship, or if you are single, gay, and considering adoption, be sure to educate yourself about what rights you have to adopt in your state. Attorneys in your area who specialize in adoption law generally should be able to give you guidance about your specific state laws and what adoption avenues are open – and not open – to you as a same-sex couple or gay individual.

The good news is that a few states, such as Colorado, clearly permit same-sex couples and/or gay individuals to adopt children, and in a few other states, whether such adoptions are permitted is still unclear. Unfortunately, this is not the case in most states.

Until recently, Florida was the only state with a law that outright banned all adoptions by homosexuals, whether single or a part of a couple. Due in large part to the fact that Florida nonetheless does permit gay individuals and couples to become foster parents, a state court judge recently ruled Florida’s 30-year ban on such adoptions unconstitutional, and that case is still winding its way through the appeals process.

One of the most common scenarios for same-sex couples who wish to adopt a child is called “second parent” or “co-parent” adoption. This may be the easiest route for a same-sex couple to take when a state does not permit adoption by an unmarried or same-sex couple; at least 21 states have permitted second parent adoptions. In this situation, one of the two people that make up the same-sex couple go through the legal process in order adopt the child as his or her own. After that adoption is complete, the other person then files to adopt the child as well, but without terminating the first person’s parental rights. In this respect, second parent adoptions are similar to stepparent adoptions; the stepparent becomes the legal parent of the child, but there is no legal effect on the already existing parent relationship between the child and his mother or father. In this manner, a same-sex couple can achieve the goal of having both persons become a legally adoptive parent of the child.

While there are other arrangements through which a gay individual or a same-sex couple can parent a child, none of these arrangements have the binding effects of an adoption. For example, many states permit same-sex couples and gay individuals to become foster parents, which can lead to very long-term parenting relationships. Same-sex couples may also be able to take on guardianship of a child, which amounts to a legal custody arrangement. Both guardianships and foster care placements, however, are always subject to termination, thus leaving adoption as the only permanent means for a gay individual or same-sex couple to parent a child.

Termination of Parental Rights

Thu, 27 Aug 2009 03:11:30 GMT

A legal termination of parental rights differs significantly from simply agreeing to not seek custody and/or visitation with a child. While parents are typically free to choose to live apart from or refrain from visiting with their children, they likely have a legal right to do so if they so choose. On the other hand, a legal termination of parental rights permanently prohibits a parent from having any legal rights to the child, including the right to custody of the child, the right to visit or have any contact with the child, and the right to have any input in decisions made regarding the child. Termination of parental rights also relieves a parent of the responsibility to financially support his or her child. Every state has different laws that govern the termination of parental rights, and there are different situations in which a court may order that a person’s parental rights be terminated.

One of the most common proceedings in which parental rights are terminated is through abuse and neglect proceedings. While the specific circumstances under which termination of parental rights can occur varies somewhat from state to state, some common situations include abuse and/or neglect of a child by a parent, placing the child in danger by engaging in criminal activity, leaving the child without a home due to the incarceration of both parents, or being unable to care for the child due to alcohol and/or drug dependency. In these types of cases, the state alleges that a parent is unable or unfit to care for his or her child, and that it would be in the best interest of the child that parental rights be terminated. Prior to a termination of parental rights occurring, the state usually must have made some effort to involve the parents in the abuse and neglect proceedings, and engage the parents in working toward reunification with their children. It is only when these efforts fail, or when parents refuse or choose not to cooperate with the state regarding reunification with their children, that a termination of parental rights occurs.

Another circumstance in which parental rights are terminated is through adoption proceedings. In a routine adoption case, adoption proceedings legally and permanently terminate the biological parents’ parental rights to the child. It is common for biological parents to consent to an adoption, thus voluntarily terminating their parental rights. However, some states have laws under which a biological parent’s consent to adoption is not required in some situations, usually because the parent has failed to maintain contact with or financially support the child for a lengthy period of time. Likewise, in a stepparent adoption situation, the stepparent becomes the legal parent of the child through adoption proceedings, which results in the termination of the biological parent’s parental rights, whether it occurs voluntarily or involuntarily. In this situation, if the biological parent agrees to the stepparent adoption, or if the biological parent’s consent is not required by law, then the adoption will be granted, and the biological parent’s rights will be terminated, so long as the court agrees that the adoption would be in the best interests of the child.

Whatever the circumstances leading to a termination of parental rights, all courts use the standard of “best interest of the child” in determining whether termination of parental rights is appropriate. Some states’ laws regarding this standard are very general, in stating only that the child’s safety, health, and welfare must be protected. In other states, however, the court must consider a specific list of factors in determining whether termination is in the best interests of a child. Some common factors considered by courts under the best interest of the child standard include the age of the child, the specific health needs of the child, the child’s desires if the child is of a certain age, and the mental and emotional needs of the child.

The Difference Between Marriage and Civil Unions

Wed, 01 Apr 2009 02:01:47 GMT

Much is made in the media about the differences between marriage and civil unions but what exactly are those differences and are they significant? People, presumably, get married because they are in love and seek to make a life time commitment to each other. People enter domestic partnerships for the same presumptive reasons. However, a marriage brings certain legal benefits that domestic partners do not enjoy in all states.

The Legal Benefits of Marriage

There are financial and personal benefits that married couple enjoy as a result of their legal union. Those benefits include:

· Tax Benefits: married couples may file join tax returns with the IRS and with the state. Often, this provides tax benefits to the two individuals who have entered the marriage.

· Estate Planning and Other Benefits: surviving spouses are entitled to inherit all of their deceased spouse’s assets without incurring any taxes.

· Health Care Benefits: Married spouses who work for qualifying employers may be entitled to family leave under the Family Medical Leave Act to care for a sick spouse. Spouses may also have the right to make certain medical decisions for a sick spouse and to have unlimited visitation privileges while a spouse is hospitalized.

· Citizenship: non-U.S. citizens who marry United State citizens may have certain citizenship benefits that unmarried couples do not enjoy.

· Divorce: while this seems an unlikely benefit to marriage, married couples enjoy the certainty of a legal system that can dissolve their marriage and distribute their assets. Unmarried couples do not enjoy this certainty.

The Benefits of a Domestic Partnership are Limited

While some states recognize civil unions or domestic partnerships, many states do not recognize these unions and do not provide domestic partners with the same legal rights as married couples. Further, according to the federal Defense of Marriage Act (DOMA) the states that do not recognize domestic partnerships are under no obligation to recognize domestic partnerships that were entered into in other states. That means that if a couple enters a legally valid civil union or domestic partnership in one state and travels to another state that does not recognize their legal relationship and one partner becomes ill, the other partner does not have the legal right to visit in the hospital or to act as next of kin.

Further, since federal law does not recognize civil unions or domestic partnerships, federal tax returns are filed separately and partners may not be entitled to the same benefits as married couples. Other benefits such as social security and company retirement benefits may also be limited.

Finally, some people argue that marriage provides spouses with social recognition of their union that domestic partners and couples in civil unions do not enjoy.

For all of these reasons, there has been a movement in many states over the past decade for same sex couples to be able to be legally married rather than to simply be allowed to enter civil unions or domestic partnerships. Currently, only Massachusetts, Iowa and Connecticut allow same sex couples to be legally married with all of the benefits of the marriage union that is bestowed on heterosexual couples. Other states, such as California, are currently litigating the right of same sex couples to marry. The difference in legal benefits and social status are the forces driving the movement toward same sex marriages in many states.

How to Establish Legal Paternity

Tue, 01 Sep 2009 00:57:51 GMT

It is often important to legally establish a child’s paternity, whether or not the father will be involved in the child’s life. If a child is born to a married woman then the woman’s husband is automatically assumed to be the child’s father and it is his name that will go on the child’s birth certificate, unless either spouse contests the paternity. If the child is born to an unmarried woman then the issue of paternity must be legally established.

Uncontested Paternity

As stated above, if the child is born to a married couple and neither spouse contests the child’s paternity then the husband will automatically be named as the child’s father on the birth certificate. The parents need only complete the required paperwork for the issuance of the birth certificate which is typically done at the hospital when the baby is born.

Paternity for a child who is born to an unmarried mother is also easy to establish if neither parent contests the paternity. Most states require the parents to complete an Affidavit of Paternity if the mother and father agree on the identity of the child’s father. An Affidavit of Paternity must be completed according to the laws of the state in which the child was born. Some states, for example, require the Affidavit of Paternity to be notarized and then filed with the city or county clerk in the place of the child’s birth in order to be valid. Once the Affidavit of Paternity is filed the father’s name, as indicated on the Affidavit, will be added to the child’s birth certificate and the man becomes the legal father to the child.

Contested Paternity

For children whose paternity is contested, it is certainly more difficult to establish legal paternity but it is equally as important. Most states require a DNA test if either the mother or the alleged father contests a child’s paternity. Once the DNA test establishes paternity then an Affidavit of Paternity usually needs to be filed, as in cases of uncontested paternity.

Why It is Important to Legally Identify a Child’s Father

Whether contested or uncontested, it is important to legally establish a child’s paternity. Without a legal designation of paternity, a child has no rights to financial support while the father is living or to an inheritance when the father dies. Without a legal designation of paternity, a child has no legal right to be included on his or her father’s health insurance nor does the child have the right to demand access to the father’s health history should a medical need arise. Without a legal designation of paternity, the father has no right to visit the child nor to build a relationship with the child absent the mother’s consent.

While a legal designation of paternity does not guarantee a close father child relationship, it provides important legal benefits for the child. Therefore, it is important that a proper legal designation be made and appropriately designated on a child’s birth certificate or recorded with a court.

The Details of Proposition 8

Wed, 01 Apr 2009 02:02:33 GMT

In November 2008, California voters went to the polls for a general election. In addition to voting for a new president and other elected officials, voters were asked to vote on a ballot proposition commonly referred to as Proposition 8. Proposition 8 asked voters to decide whether the California state constitution should be amended to change the definition of marriage in California to include only heterosexual couples.

The History of Proposition 8

In the decade prior to the passage of Proposition 8, the California legislature and courts had been very involved in the issue of same sex marriage. There were legal successes and failures on both sides of the issue. In May 2008, the California Supreme Court issued an important ruling concerning same sex marriages. The court found that to exclude same sex couples from marriage would be unconstitutional because the exclusion violated the equal protection clause of the state constitution. This was an important decision in the midst of what was already a hotly contested debate in California.

The Specifics of Proposition 8

Proposition 8 was meant to bring certainty to the issue of same sex marriage in California. By a margin of 52.2% of voters in favor of Proposition 8 and 47.8% opposed to Proposition 8, the voters of the state voted to amend the California State Constitution to make same sex marriages unconstitutional and, therefore, illegal in the state. The passage of Proposition 8 meant that California would only allow and recognize marriages that occurred between one man and one woman.

While Proposition 8 is clear in its intent to prevent future marriages between same sex couples, the ballot proposition was not clear on how the approximately 18,000 marriages of same sex couples that occurred between May – November 2008 would be handled. This is a matter that is still before the courts.

The Impact of Proposition 8

The issue of same sex marriage is an important one in the United States and many people on both sides of the issue were carefully watching the outcome of Proposition 8 to decide how to proceed in their own states. Everyone is still watching as the California Supreme Court hears challenges to Proposition 8 and the remaining issues concerning Proposition 8’s validity and applicability are answered.

Many celebrities and important religious and lobbying groups were involved in supporting both sides of the Proposition 8 ballot initiative. However, the celebrity involvement and extensive media coverage should not overshadow the deeply personal impact that Proposition 8 has for many California couples and the important legal issues that it raises. The intense rhetoric used on both sides of this issue while highly relevant prior to the vote on Proposition 8 is also no longer the issue as the courts decide this future of same sex marriages in California.

The California Supreme Court must now decide whether Proposition 8 is constitutional and what the rights of same sex couples will be in the state of California. The Court has already heard oral arguments in a Proposition 8 challenge and the Court’s ruling is expected by June 2009.

The Legal Future of Proposition 8

Wed, 01 Apr 2009 02:06:36 GMT

In November 2008, California voters approved a ballot initiative known as Proposition 8. Proposition 8 added an amendment to the California State Constitution which read that, “only a marriage between a man and a woman is valid or recognized in California.” Proponents and opponents of Proposition 8 engaged in significant campaigns prior to the election which was to be expected as same sex marriage had already been a hotly contested political issue in California for many years. Proposition 8 was successful at the polls with just over 52% of voters supporting the ban on same sex marriage and just over 47% opposing the ban.

Given the controversy that preceded the vote on Proposition 8 and the close electoral results, it is not surprising that legal challenges were immediately filed with the California Courts. In fact the first lawsuits regarding the constitutionality of Proposition 8 were filed the day after the November election.

The Bases of the Legal Challenges

Several important legal questions are raised by the Proposition 8 lawsuits. As a matter of procedure, some of the lawsuits challenge whether Proposition 8 is in fact a constitutional amendment as it was described or whether it is in fact a constitutional revision. Constitutional amendments are less extensive changes that simply require a majority vote at the polls while constitutional revisions are more substantial changes that require both a majority vote at the polls and a 2/3 approval vote in the state legislature. Proposition 8 was passed according to the procedures set forth for constitutional amendments. The Court is being asked to determine whether Proposition 8 was in fact an amendment or a revision to the state constitution.

Additionally, challengers raise constitutional arguments about protecting the rights of minorities that are attempted to be taken away by the majority. Specifically, it is argued that the judiciary exists to protect the rights of the minority when the majority threatens those rights through seemingly legal maneuvers such as constitutional amendments. Another constitutional argument, which has been raised by the California Attorney General, is that California voters cannot overturn rights in California’s Declaration of Rights absent a “compelling justification” and that no such as compelling justification exists in these cases.

Finally, the Courts are being asked to decide whether the issue of approximately 18,000 same sex marriages that legally occurred between May 2008 and November 2008 in California. The Court must decide whether those marriages can be retroactively annulled or whether they are valid under California law.

The outcome of these legal challenges is not yet known. However, it is clear that important constitutional issues have been raised and that California, as well as the nation, is anticipating the decisions of the California Supreme Court.

The Future of Same Sex Marriage in California

At least 6 lawsuits have been filed that challenge the legality of Proposition 8. Three of those cases were consolidated and the Supreme Court of California heard oral argument for the cases on March 5, 2009. A decision is typically rendered within 90 days of oral argument. So, by June 2009 the Court should have announced its ruling and the future of Proposition 8 will enter its next phase.

What Happens When the Wedding is Called Off

Mon, 12 Oct 2009 14:08:36 GMT

When a wedding is called off there are often shattered dreams, broken promises and breaches of contracts that must be handled. Before you can rebuild your life and create new dreams you must determine each party’s entitlement to joint property and each party’s responsibility for joint obligations.

General Rules of Property Division for Unmarried Couples

Generally, any property that you acquired on your own, any debt that you obtained on your own and any contract that contains just your signature remains yours after your engagement has ended. However, the common law in various states has allowed courts to divide property between unmarried cohabitants. For example, in California, the 1976 case of Marvin v. Marvin resulted in what is known as the Marvin Rules. The Marvin Rules allow unmarried cohabitants to enter express contracts or oral contracts regarding the division of property. In the absence of a contract, the court can determine if an implied contract exists or determine if the legal doctrines of equity and fairness require a division of property among the cohabitants. Some states have adopted the Marvin Rules in their entirety and others only recognize written contracts between cohabitants as binding.

Who Keeps the Engagement Ring?

The answer to that question depends on where you live and the circumstances under which the engagement ring was provided. Some states, such as New York and Michigan, view the engagement ring as a conditional gift that is given in consideration of an upcoming marriage. The courts in these states typically find that if the marriage does not take place then the engagement ring must be returned. It does not matter which party called off the engagement or was at fault for the marriage not taking place. Other states, such as California, look at which party called off the engagement. If the party giving the ring ended the engagement then the person who received the ring can generally keep it. Likewise, if the person who received the ring broke the engagement the person who gave it can request its return. Finally, some states consider engagement rings to be unconditional gifts that do not legally have to be returned if a marriage does not occur.

Most states will recognize valid contracts that specify that a ring should be returned to the giver if an engagement does not end in marriage. It is especially important to consider entering this type of contract if you are providing your fiancée with a very expensive ring or with a family heirloom.

Who pays the Wedding Vendors?

The answer to this question, like the answer to who keeps the engagement ring question, is, in part, dependent on where you live. Some states will require both parties to share in the wedding vendor expenses. Other states will only require the party at fault for ending the engagement to pay the expenses.

It is important to read your wedding vendor contracts carefully. The vendors may be able to sue both parties for breach of contract if both parties signed the contract and did not pay the penalties or costs described in the contract for a wedding that does not occur.

While breaking an engagement is not as legally challenging as ending a marriage, it involves many of the same emotions and legal principles. Accordingly, it is advisable to contact a family law attorney when you are ending an engagement.

How to Establish Paternity

Wed, 26 Aug 2009 02:06:50 GMT

With steadily rising numbers of children being born out of wedlock, and a society that no longer stigmatizes having children outside of a marriage, paternity courts are overrun with unmarried litigants seeking to establish paternity, custody, visitation, child support and related matters regarding their children. Fortunately, paternity court is not the only means of establishing paternity, and family laws are changing to accommodate the reality of unmarried parents and their children.

In general, state laws provide for both voluntary and involuntary paternity proceedings. In order to ease the establishment of paternity, many states in recent years have provided a mechanism by which a putative father, or the alleged father of a child born out of wedlock, can voluntarily establish paternity by executing a sworn paternity affidavit or acknowledgement, which, when completed, establishes the father as the legal father of the child. Many couples who are unmarried, but intend to reside together with their child as a family unit, choose to execute such an affidavit or acknowledgment and/or otherwise place the father’s name on the child’s birth certificate, thus obviating the need for formal paternity proceedings in court. The downside to paternity affidavits, however, is when the parents’ relationship sours, and while paternity has been established, there are no formal court orders regarding custody, visitation, and/or child support. In this case, the family must visit the family court in order to establish applicable court orders regarding their child(ren).

All states laws also provide for the establishment of paternity through formal court proceedings, whether it is on a voluntary or involuntary basis. Typically, if paternity has not been otherwise established by affidavit or acknowledgment, the parties are given the opportunity to undergo genetic testing, or DNA testing, in order to determine whether a putative father is the biological father of a child. Given the accuracy of DNA testing, participating in a DNA test usually resolves the issue of whether a putative father is in fact the biological father of the child. The parties then would proceed to a court hearing at which paternity is established, and orders are issued regarding custody, visitation, child support, and/or other related issues.

Additionally, many states presume that if a child is born during a marriage, then the husband is the father of the child. In some states, this presumption can be rebutted by undergoing DNA testing, which can conclusively prove otherwise. However, in other states, there is no DNA testing or other method to disprove paternity that is legally available if a child was born during an intact marriage, even if all parties concerned know that the husband is not the biological father of the child. This can lead to non-biological fathers being responsible for the needs of the children, including the legal duty to pay child support in some instances.

A similar situation arises when a putative father signs the paternity affidavit or acknowledgement, while at the same time realizing that he is not, or at least might not be the biological father of the child. Likewise, a putative father might rely on the mother’s assertions that he is the only possible biological father of the child in choosing to sign the informal documents needs to establish paternity. In many jurisdictions, such a father is the legal father of the child, even if it is later proven or alleged that he is not the child’s biological father. In these cases, there may be no legal recourse for a legal father who is in fact not a biological father, and who is bound to legally support the child throughout his or her minority.

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