family law
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© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 1
Chapter 53:Family Law
Chapter 53:Family Law
Business LawLegal, E-Commerce, Ethical, and International
Environments
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 2
Premarriage Issues• Promise to Marry
– 19th century courts recognized actions for breach of a promise to marry.
• Today, courts do not recognize this breach.– Persons breaking engagement
could be responsible for costs incurred.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 3
Engagement• Fault Rule: If groom breaks
engagement, woman keeps ring. If she breaks engagement, she returns ring.
• Objective Rule: If an engagement is broken off, the prospective bride must return the engagement ring, irrespective as to which party broke off the engagement.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 4
Prenuptial Agreements• A contract that is entered
into prior to marriage.• Specifies how property will
be distributed up the termination of the marriage either by divorce of death of a spouse.
• Each party must make full disclosure of all assets and liabilities.
• Each party should be represented by an attorney.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 5
Marriage• Legal union between
spouses.• Confers certain legal rights
and duties upon the spouse and the children born of the marriage.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 6
Marriage Requirements• State law establishes
requirements.• Most states require that
parties be a man and a woman.
• Must be of certain age, or have parental consent.
• Marriages between close relatives prohibited.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 7
Marriage License• State law requires marriage
licenses.– Obtained at county clerk’s
office.
• Some states require marriage ceremony.– After ceremony, license is
recorded.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 8
Common Law Marriage• Type of marriage
recognized in some states.– No marriage license required– Certain requirements must be
met– Parties must intend to be
husband and wife– Parties must hold themselves
out as husband and wife
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 9
Parents’ Rights and Duties• Parents have obligations to
provide food, shelter, clothing, medical care, and other necessities.
• Must provide these until child is 18 or emancipated.
• Child neglect if a parent does not provide.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 10
Paternity Actions• Suit to determine identity of
father.– Brought by government to get
financial assistance payments.– Brought by father to establish
if he is biological father.
• Most states presume that the husband of woman who bears a child is the father.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 11
Parent’s Liability for Child’s Wrongful Act
• Parents are not generally liable for child’s negligent acts.
• Parents are liable if their negligence caused their child’s act.
• Some states have enacted child liability statutes.– Make parents financially liable
for intentional torts of child.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 12
Adoption• Person becomes the legal
parent to a child that is not biologically theirs.
• Can be an agency adoption or an independent adoption.
• Procedures established by state.
• Biological parents’ rights are terminated by legal decree or death.
• Court must formally approve.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 13
Agency Adoption• Person adopts child from
social services organization of the state.
• May be open-adoption.– Biological and adoptive
parents introduces before adoption.
– Some states give visitation rights to biological parents.
• Requires court approval.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 14
Independent Adoption• Private arrangement
between biological and adoptive parents, usually through an intermediary.– Attorney– Adoption agency– Stepparent adoption
• Requires court approval.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 15
Foster Care• Children placed under state
care as temporary arrangement.
• State pays foster parent to care for child.
• Arrangement terminated when child returned to biological parents or adopted.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 16
Marriage Termination• Can occur through and
annulment or divorce.• Annulment can occur when
parties lacked capacity or consent. Declaration that marriage never existed.
• Divorce is an order of the court that marriage is terminated.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 17
Divorce• Legal proceeding• Must file a petition for
divorce.– Traditionally, had to prove
fault.– Today, most states are no-
fault.
• Divorce is final when a court orders that the marriage is terminated.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 18
Annulment• Order of court declaring that
marriage did not exist.• Certain ground must be
asserted.– One party lacked the capacity
to consent.– Duress– Fraud
• Children born of annulled marriage are legitimate.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 19
Divorce Proceedings• Commenced with filing a petition
for divorce.• Petition served on other party.• Other party has limited time to
file an answer.• If parties do not reach
settlement, case goes to trial.• Both parties call witnesses and
introduce evidence.• Judge issues a decree of divorce.
– Some states have waiting periods after trial before it is issued.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 20
Settlement• Termination of marriage
could be settled with a settlement.– Mediation frequently
employed
• Divorcing parties must sign a settlement agreement. – Document states that parties
have settled all property rights and other issues.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 21
Division of AssetsTwo types of property:• Separate property owned by
spouse prior to marriage, as well as inheritance and gifts received during marriage.– Each spouse usually is
awarded separate property.
• Marital property acquired during marriage, or separate property which changes title to jointly owned is considered marital asset.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 22
Marital Property• Some states follow the rule of
equitable distribution. – Means fair distribution of property to
both parties of the divorce.
• Other states follow the community property rule which means equal distribution of property.
• Community property means all property acquired during the marriage is divided equally between the individuals.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 23
Division of Debts• Type of debt and state law
determine how they are divided.
• Debts incurred during marriage for necessities are considered joint marital debts.
• Spouses are jointly liable for taxes incurred.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 24
Spousal Support
• Spousal support: also called alimony. Money paid by one divorced spouse to another.– Can be temporary,
rehabilitation, or permanent alimony.
• Spousal support terminates at death of spouse, remarriage, or if they become self-sufficient.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 25
Child Support• Payments made by non-
custodial parent to help pay for the financial support of his or her children.
• Duty to pay continues until child reaches the age of majority or is emancipated.
• Award may be modified based on changed circumstances.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 26
Child Custody• The awarding of legal
custody of a child to a parent.
• Based on the best interest of the child.
• Parent awarded custody is the custodial parent and has legal custody.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 27
Joint Custody• Custody could be joint.• Both parents are
responsible for making major decisions concerning the child.
• Sometimes awarded joint physical custody.– Child spends certain portion of
time being raised by each parent.