FAQ Family Law

Marriage is a legally-binding relationship between two people.

In the US, this means the couple now have a number of legal responsibilities and rights, including:

• Inheriting property from each other
• Making medical and financial decisions for each other
• Ability to open a joint bank account and/or tax return
• Ability to foster and adopt children together
• Sponsoring each other for immigration purposes.

In most societies, marriage is considered a social and cultural institution that is an important part of the community. It is typically marked by a formal ceremony, during which the couple makes vows to each other in the presence of friends, family, and a qualified officiant, such as a minister, rabbi, or justice of the peace.

Same-Sex Marriage

Same-sex marriage is a legally recognized union of two people of the same sex.
On June 26, 2015, the Supreme Court of the United States issued a landmark ruling in the Obergefell v. Hodges case, which recognized that same-sex couples have the same fundamental right to marry as opposite-sex couples in all 50 states.

This requires states to issue marriage licenses to same-sex couples and to recognize same-sex marriages performed in other states. This means that same-sex couples have the same legal rights and responsibilities as opposite-sex couples when it comes to marriage.

There are many different forms of marital agreements (besides a legally-binding marriage) from common law marriage to civil unions and domestic partnerships.

Common Law Marriage

Common law marriage, a.k.a. informal marriage or “marriage by habit and repute,” is a marriage where the couple lives together and portrays themselves as married to the public, but haven’t obtained a marriage license. This means it is not formally recognized by the federal government and in most states.

In fact, common law marriage is only recognized as an official marriage in the following states:

• Colorado
• Iowa
• Kansas
• Montana
• New Hampshire
• Oklahoma
• Rhode Island
• South Carolina
• Texas
• Utah
• District of Columbia

And in these states, the couple has to meet strict requirements, including:

• Both people must be over the age of 18
• The couple must have the intent to be married.
• The couple present themselves out to the public as being married. This may involve using the same last name, introducing each other as “husband” or “wife,” and filing joint tax returns.
• The couple must live together as husband and wife.

Note: If you have a common law marriage in one of the states that recognize it and you split up, you need to file for a divorce.

Civil Unions

Civil unions are a legal arrangement that provides some, but not all, of the rights and benefits of marriage to same-sex couples.

In a civil union, the couple needs to obtain a “civil union certificate” and have a civil union ceremony that recognizes their relationship. They’ll also need to provide necessary documentation (i.e. ID, proof of residence, etc) and pay any state fees.

While civil unions provide some legal protections and benefits to same-sex couples, they are not the same as marriage and do not have all the same legal rights and benefits.

In fact, civil unions are only recognized in these 5 US states:

• Colorado
• Hawaii
• Illinois
• Vermont
• New Jersey

The specific protections and rights provided by a civil union in these five states vary but typically include some or all of the following:

Property rights

Couples in a civil union may have the right to own property together, to inherit property from each other, and to make medical and financial decisions for each other.

Tax benefits

Couples in a civil union may be able to file state tax returns as a married couple and may be entitled to certain state tax benefits.

Health insurance benefits

Couples in a civil union may be able to add each other to their health insurance plans and may be entitled to certain health insurance benefits.

Retirement benefits

Couples in a civil union may be entitled to certain pension and retirement benefits, such as the ability to inherit a pension or the right to receive survivor benefits.

And, civil unions are not recognized by the federal government or in any of the other 45 states. This means that same-sex couples who are in a civil union are not entitled to the same federal benefits and protections as same-sex married couples.
In addition, civil unions can expire, be annulled, or be dissolved. However, the process varies from state to state.

For instance, in some states, a civil union can expire after a certain period of time if it is not renewed

In addition, in some states, a civil union must be dissolved or terminated by either party. The process will look similar to going through a formal divorce process.

In other states, a civil union can be annulled, which means that it is declared void or invalid. This may be possible if one party was not legally able to enter into the union (e.g., because they were already married), or if the union was entered into under duress or fraud.

Given the process varies widely from state to state, we recommend consulting a family law attorney and checking with the relevant government agencies to determine the specific process in your state.

Domestic Partnerships

A domestic partnership is a legally recognized relationship between two people who live together and are in a committed relationship, but are not married.

Domestic partnerships are similar to civil unions in that they provide certain legal protections and benefits to eligible couples who are not able to marry.

While the eligibility requirements can vary from state to state, the general requirements include:

• Both people must be over the age of 18
• Both partners are not married or in another domestic partnership
• Both partners are in a committed relationship and share a domestic life

In addition, in a domestic partnership, the couple must obtain a “domestic partnership declaration.” The couple also have to register their domestic partnership with their state government, provide necessary documentation, and pay applicable fees.

Just like with civil unions, domestic partnerships are not the same as marriage and are only recognized in a handful of states, including:

• California
• District of Columbia
• Maine
• Nevada
• Oregon
• Washington
• Wisconsin
• Hawaii (However, domestic relationships are referred to as reciprocal beneficiaries in Hawaii)

The level of protections that domestic partners have across insurance, tax, retirement and property rights also varies across these states.

In addition, domestic partnerships are not recognized by the federal government or in any state that is not listed above.

If you want to convert your domestic partnership into a legally-binding marriage, it is a good idea to consult a family law attorney. That’s because in some states you can convert a domestic partnership into a marriage. In other states, you have to legally dissolve the domestic partnership before getting married.

The main difference between a prenuptial agreement and a postnuptial agreement is the timing of when they are made. A prenuptial agreement is made before a couple gets married, while a postnuptial agreement is made after a couple is already married.

Prenuptial agreement

A prenuptial agreement, also known as a premarital agreement or prenup, is a legally binding agreement that is made by a couple before they get married.

The most common reasons why you should get a prenup are if you have significant assets, income, or children from a previous marriage.
The purpose of a prenup is to define the financial and property rights of each spouse in the event of a divorce or the death of one spouse.

They can cover a wide range of potential sticky issues like:

• Protection of premarital assets
• Division of assets
• Alimony
• Property ownership
• Business ownership
• Division of debt

Prenups must meet certain legal requirements in order to hold up in court. For instance, infidelity clauses and anything related to child custody and child support won’t hold up in divorce court.

There are two parts to getting a prenup. First, it is having the conversation and getting on the same page as your significant other on what should be in the prenup.

Then, you need to go through the legal process of getting it drafted and filed. For this part, it is a good idea to consult with a lawyer to ensure that your prenup is properly drafted.

Postnuptial agreement

On the other hand, a postnuptial agreement, also known as a postmarital agreement, is a legally binding agreement that is made by a couple after they are married.

Like a prenup, a postnuptial agreement is used to define the financial and property rights of each spouse in the event of a divorce or the death of one spouse. It can cover all of the same things as a prenup.

The most common reason for a postnuptial agreement is to make changes to financial arrangements, often because of a significant financial event.

Just like with prenups, we recommend consulting with an attorney when drafting one.

Alimony or spousal support involves one spouse paying the other either due to a court order or the divorce agreement.

Its purpose is to ensure that both parties can meet their financial needs. One spouse has to prove they were “dependent” on their spouse during the marriage. Alimony is not dependent on gender and can be awarded to either spouse.

Alimony is not included in all divorces. It is typically temporary. For example, it may be awarded temporarily during the proceedings. Sometimes, alimony is awarded as part of the divorce agreement, but it is usually for a set amount of time. However, there are some rare situations where it is permanent and lasts for the rest of the recipient’s life.

State laws set the rules that judges use when deciding on alimony payments. The court determines how much and for how long alimony is received based on the state’s guidelines.

Divorce Agreement

The divorce agreement outlines the terms of the alimony. Additionally, states may vary on aspects of alimony and enforcement. For instance, some states allow for alimony payments to be terminated if the recipient remarries — but not all.

Another common situation is whether the alimony agreement can be modified. Most states will allow a provision to be included in the agreement that addresses under what conditions the alimony could be modified. Typically, this may occur if there is a significant change in the person’s situation.

For divorces finalized after January 1, 2019, the spouse receiving alimony isn’t required to report it as income on their federal tax returns. Additionally, there is no deduction on federal taxes for the paying spouse.

Parents who don’t pay their mandatory child support payments may be found in contempt of court. The court could tally the missed payments, categorized as in arrears. This allows the court to start enforcement procedures to recover the payments.

The parent who receives payments can request help from the court to enforce the child support order.

Enforcement Procedures

Delinquent parents who owe back child support may have their:

• Tax refund sent to the child’s other parent
• Wages garnished
• Driver’s license suspended
• Passport denied
• Professional licenses suspended

 

Child custody is a legal term. It refers to the rights and responsibilities assigned to parents for taking care of their children following divorce or separation. These laws also can vary from state to state.

The overall goal of child custody is to set the legal and physical custody of the child.

Legal and Physical Custody

Legal custody refers to who gets to make major decisions about the minor. Physical custody provides the parent the right to care for the child’s daily needs and allow the minor to live with them.

These are not the same as placement, which refers to the actual time a child spends in a parent’s care.

Parents can determine child custody and visitation agreements if they can work together on a solution. Additionally, some parents may use child mediation to help them work through disagreements without going through a formal court proceeding.

Written Settlement Agreement

In both situations, the parties involved will typically get a written settlement agreement of their decisions. This documentation ensures that the terms are clear and allows the agreement to be enforced if difficulties or disagreements arise later.

However, if parents cannot reach a decision, the issue will go before a judge in family court. The judge will hear arguments from both parents and make decisions based on the child’s best interests.

Determining the final child custody orders takes time. Therefore, temporary orders may be issued until all aspects of the child custody arrangement can be resolved. The temporary orders are only in place until the final order is made.

The final order remains in place until:

• The child turns 18
• The child is legally declared independent from both parents
• A parent modifies the order or parenting plan

A parent can request a modification if circumstances have significantly changed since the original order was finalized. Most states allow modifications after a year has passed from the original order. A modification may be made when:

• A parent moves
• One party doesn’t follow the order
• The child’s or a parent’s situation has significantly changed

There are many different types of child custody arrangements. However, two common types of custody are sole and joint.

Sole Custody

Sole legal custody occurs when only one of the parents has full responsibility for making major decisions for the child, such as medical or school decisions. Even though the other parent does not have a say in major decisions, that parent may still have visitation rights and may have child support responsibilities.

Sole physical custody involves the child living with one parent. However, the other parent typically will still have parenting time with the child.

Sole custody agreements are typically harder to get, as most states prefer to have both parents involved. However, the court may grant sole legal and physical custody when it’s in the child’s best interest, such as if a parent isn’t involved in the child’s life or engages in dangerous, criminal, or abusive behavior.

Joint Custody

In joint legal custody, both parents are involved and work together to make major decisions about the child’s life.

Joint physical custody ensures that the child lives with each parent for set amounts of time. However, the specific time frames and arrangements will vary depending on the parenting plan agreed on by both parties.

Visitation or parenting time lets a parent visit with their child. The court can set the specifics of the visitation, including how often visits happen, where visits take place, and if visits need to be supervised.

Visitation Rights

Visitation rights are not the same as legal or physical custody. A parent who does not have legal or physical custody may be unable to make major decisions about the child or have the child live with them long-term.

You’ll want to present information to help the judge make a decision. Typical information you’ll want to gather includes:

• Copies of communication and correspondence with your child’s other parent, such as texts and emails
• Income information, such as paystubs and tax returns
• Photos of important information or events that can help the judge make a decision and fully understand the current situation
• Log or calendar of key events, such as showing the frequency of a parent missing scheduled time with the child
• Third-party records such as medical records, school reports, and police reports (if applicable)

Every situation is different. A lawyer can help you determine what types of documentation and evidence can best assist your case.

Courts will consider a history of domestic violence when deciding custody and visitation.

Domestic violence can contribute to significant difficulties in communication between parents and raise safety issues for either a parent, the child, or both. These factors can negatively impact the child. For instance, a court would not want a child in a situation where they may witness domestic violence or be at risk of child abuse.

Safety

However, the court may offer additional solutions that ensure the child’s safety and allow the person to see them. For example, a judge may order supervised visits or request the person attend therapy.

The adoption process allows an adult to become the legal parent of a child who is not biologically their own. An adoptive parent accepts full custody and is legally responsible for the child’s support costs and obligations.

As part of the process, the biological parent or parents no longer have parental rights once the adoption is finalized. However, sometimes the birth parents can be awarded some rights if requested.

 

A paternity action is a legal process to establish who is legally the father, especially when parents aren’t married or if there is a conflict.

This civil action can be started by the mother to gain child support from the alleged father or filed by the biological father to receive parental rights.

Unmarried parents

This determination is particularly essential for unmarried parents as it helps establish the following:

• Child support
• A father’s legal rights
• The child’s eligibility to receive benefits through the father
• The child’s access to health information from the father’s side

Paternity ensures that both legal parents’ rights and responsibilities are upheld. However, a separate legal process may be required to establish the specifics of any child support and custody agreements needed.

There are multiple ways to establish paternity that fit different situations.

In most states, paternity is determined by:

Paternity by assumption

The husband is presumed to be the legal father if the mother is married. However, a married man may legally challenge paternity if he believes he is not the father. Genetic testing (a DNA test) can be requested in this case.

Paternity by agreement

Both parties can sign an Acknowledgment of Paternity (AOP) form (also called an Affidavit of Paternity) if neither parent disputes paternity. This form helps unmarried parents voluntarily establish paternity and is signed by both parents. Hospitals may offer this form to a father present at the child’s birth. It can also be signed after the child’s birth. However, a fee may be involved, which includes changing the birth certificate.

Paternity set through legal action

For paternity disputes, the mother or father may file a paternity action to use the legal system to establish paternity. DNA testing can be court-ordered in contested paternity. The court can also use circumstantial evidence, such as if a man has publicly presented himself as the father.

Paternity laws vary per state. So it’s important to know the rules where the child was born. For instance, some states have a statute of limitations for establishing paternity, such as requiring a paternity suit to be filed before the child is 18 years old. However, other states have no restrictions on when you can file a paternity suit.

Paternity also can be established without the father, such as if the father died before legally determining paternity. Taking this step can ensure the child is legally eligible for any financial benefits or assets in the father’s will. Additionally, if a father doesn’t show up to the court date in a paternity action, the judge can still make him the legal father.