premarital agreements, cohabitation, and same-sex marriages; family law in practice pa 250-unit 1
TRANSCRIPT
Premarital Agreements, Cohabitation, and Same-Sex Marriages; family law in
practice
PA 250-Unit 1
Kaplan University -PA253 Wednesday, April 19, 2023
2
Teacher’s Assistant
Kaplan University -PA253 Wednesday, April 19, 2023
3
But First….
Things you should know about me…
I really appreciate how hard you all work, both in and out of school.
My philosophy is that I am here to help you learn the material, do as well as you can do, and have fun in the process!
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
About the Course
The syllabus will guide you throughout the course. It will remind you when graded items are due and what we are studying during each unit.
You can see from the syllabus a breakdown of your gradebook – when papers are due, and what they are worth.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Office Hours
I will hold my office hours via the chatroom located in the classroom every Thursday from 6 pm to 8 pm EST. If you cannot make it during this time but would like to meet with me, please either email me or post a note under Ask the Prof. and we will arrange for a different time to talk.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Seminars
I arrive in seminar about a half hour early in case you need me or want to talk.
Seminars are graded –if you cannot make it, you can write a 2 page summary and send it by email to earn your points.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Seminars (cont.)
If you try to enter the seminar but it won’t load, and you’ve been trying for 5-10 minutes, you should head over to the chatroom in the classroom. We call this Plan B.
In the rare event that neither the seminar platform nor the chatroom is working, we will have to reschedule the seminar.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Things to Know
1. You should try to turn your work in on time to stay on track, but if you can’t just email me so I know what is going on. I don’t deduct points for lateness if the assignment is turned in within a week of its due date).
2. You can cannot revise papers, but I will look at them for you before you submit in class – just send them to my email a few days before they are due.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
More Things to Know
Please, please, please do not copy and paste without using quotation marks or citing your source. We turn all assignments in to Turnitin.com and it will come up. Best to use your own voice and quote and cite correctly!
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Let’s Get Started!
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
First Assignment
In this Short Paper, you will analyze the case in which the Massachusetts Supreme Judicial Court held that there is a right to same-sex marriage under the Massachusetts Constitution, Goodridge v. Department of Public Health, 440 Mass. 309 (2003).
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
First Assignment
Go to Lexis, and click on the “Get a Document” tab and then click on the “Citation” tab in the next line down, then enter the following into the box:
440 Mass. 309
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
First Assignment
Read this court opinion, then reread the case of Loving v. Virginia. How are the reasoning and rulings in these two case similar? How are they different? Look at the constitutional arguments made in the cases. Based on what you are learning in this Unit, do you agree or disagree with the reasoning based on constitutional principles?
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Grading Rubric
See document in doc sharing – pay close attention to “elements of familial relationship and case analysis.”
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
The Prenuptial Agreement
Known as antenuptial, prenuptial, or premarital
Agreements (contracts) between two parties who intend to marry
Concerns the disposition of their assets upon either death or divorce
Consideration is marriage
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Who should have one?
Historically, protected a wealthy party from overreaching by a less affluent spouse– “Gold diggers”– “Gigolos”
Now more common, protecting a variety of interests:– Children from a previous marriage– Family inheritances or businesses– Separate property
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Legal Requirements
Prenuptials must be entered into prior to marriage, although some states permit “postnuptial” agreements
Cannot bind the parties during marriage– Can provide useful guidelines, but they are not
legally enforceable
Need to demonstrate a “meeting of the minds”
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Necessary Documentation
A list of assets and their Fair Market Value Income, both earned and passive Debts/liabilities Tax obligations Lawsuits/outstanding judgments Credit history/bankruptcies
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Uniform Premarital Agreement Act (UPPA)
Consideration for the agreement is marriage Must be in writing Must be signed by both parties
– Capacity– Voluntary
Full disclosure of assets (fair & reasonable) Not unconscionable
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Drafting the Agreement
Check local law – Over half the states have adopted the UPAA– Most other states have applicable statutory or case law
Need to determine the client’s interests– Is your client proposing the agreement?– Has your client received a proposed agreement?
Must arrange for full disclosure of assets, liabilities and/or income, and prepare a schedule of assets or financial statement
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Must be Voluntary
Must be a “meeting of the minds” in fair negotiations
No coercion, duress Timing of the presentation of the agreement
can be a factor – Too close to the wedding to permit independent
review– Presented as a condition to continuing the
relationship
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Unenforceable Agreements
Provisions contrary to public policy– Undermining individual rights– Will not be enforced
Not just unfair results, or a “bad bargain”– An agreement that is one-sided is not
automatically an example of “overreaching”
Lack of full disclosure of the parties’ assets and/or income
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Full Disclosure
Although precision is desirable, it is enough that:
“Wife had a reasonable and proximate knowledge of Husband’s net worth and income based upon the information provided…at the time the antenuptial agreement was signed….”
– Waton v. Waton, 887 So. 2d 419 (Fla. App. 4 Dist. 2004)
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Second Glance Doctrine
Although sound in its formation, an agreement may be challenged based on changes in circumstances, such as illness or disability:– Unconscionable results– Although there is adequate support available, the
agreement impoverishes one party so seriously that the state may have to assume the responsibility of support.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Cohabitation
Express, written agreement is the surest way to delineate rights & responsibilities
“Palimony” (quasi-alimony) is not available in many jurisdictions
Sexual services must not be the contract consideration
The same issues involving multiple representation/conflict of interest arise
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Same-Sex Marriage
DOMA prevents federal recognition of same-sex marriage, but some states have addressed the issue:– Some argue, based on the 14th Amendment,
equal protection clause, invoked to protect the fundamental right to marriage
– Others argue, based on state Equal Rights Amendments (ERAs), avoiding discrimination of the basis of gender
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Massachusetts Marriage Decision
“Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law….”
– Goodridge v. Dep’t of Pub. Health, 440 Mass 309, 798 N.E.2d 941 (2003)
Introduction to Family Law Practice
Chapter 1
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Family Law Theory
Common Law & Statutory Law – Reflecting societal values & attitudes
Support & maintenance of family members Care & custody of minor children Division & distribution of property
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Court Procedures
Initiating family-related actions in court Acquiring & presenting evidence Pendente lite support, custody & visitation Enforcing or modifying court orders Using Alternative Dispute Resolution to:
– Eliminate Issues– Encourage settlement
Litigating unresolved, contested issues
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Office Procedures
Interviewing clients, witnesses Investigation (facts) Collecting & recording client information File set-up (including conflicts check) Drafting legal documents for the attorney Docketing court hearings Time-keeping & billing
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
The Family Practitioner’s Role
Represent the client’s legal interests– With the least amount of court intervention– With the least amount of additional pain &
damage– With the least amount of time & expense
Handle the most personal and intimate details of client concerns with sensitivity, respect, understanding, and care.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
The Roots & Traditions of Family Law
English Common Law, predicated upon:
– Judeo-Christian traditions (husband & wife united as one flesh)
– Ancient Greek traditions (women as chattel)– British traditions (merged into a single legal
identity – the husband’s)
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Roots & Traditions, cont.
Colonial America– Marriage as a sacred union– Divorce allowed
Husband had continuing obligation of family support
– Government legally authorized/dissolved marriages
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
United States
Separation of Church & State Married Women’s Property Acts Spouses become responsible for each other Breach of marriage contract resulted in
grounds for divorce Agrarian society required work from all
members of large, intact families
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Early 20th Century America
Shift to industrial economy– Husband as bread-winner– Wife & children still workers
Obligation of husband to support becomes mutual obligation
Mothers develop into home-makers, child custodians
Divorce still a stigma
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Later 20th, Early 21st Century
Women re-enter workforce, resulting in an increase in paternal custody
Grounds for divorce amended to include no-fault grounds
Societal approbation of divorce declines Loss of some of the stigma associated with
divorce, aided by no-fault grounds.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Family Law Today
Increase of divorce rate until the 1980’s– with a slow tapering off
Possible reasons include:– Financial independence of women– Equitable distribution of property & debt– Changes in support awards (alimony)– Pro se (in propria persona) litigants using
simplified divorce procedures– No-fault grounds
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Family Law Today, cont.
Reasons for increase in the divorce rate may also include the fact that child support is set by statute (less fear of loss of support)
Federal & state child support enforcement help:– Tax interception – Wage garnishment– Revocation of professional licenses– Interstate enforcement cooperation (long-arm, full faith &
credit)
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Definition of Marriage
Legal union of a couple as husband & wife Federal Defense of Marriage Act (DOMA)
– States can deny recognition of another state’s same-sex marriage, union, or partnership laws
– Defines marriage (for Federal purposes) as “a legal union of one man & one woman as husband & wife.”
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Same-sex Marriages, Civil Unions, & Domestic Partnerships
NOT recognized by Federal law (DOMA) Some states have official recognition of
same-sex relationships:– Massachusetts: Marriage– Vermont: Civil Union– California: Domestic Partnerships
Some states have passed constitutional amendments prohibiting recognition of these relationships within their boundaries.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Benefits of Marriage
The protection of a state-supervised divorce Crime victims’ benefits Immigration/residency benefits Probate:
– Statutory share of estate– Intestate succession– “Widow’s allowance”
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Marriage Benefits, cont.
Tax benefits– Estate tax exemption– Gift tax exemption– Joint income tax returns
Spousal communications privilege Step-parent adoption by-passes
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Marriage Benefits, cont.
Family benefits– Insurance eligibility & benefits– Workers’ compensation benefits– Loss of consortium & wrongful death– Family Leave rights– Social Security– Disability benefits– Veterans’ & military benefits– Pension benefits
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Marriage Benefits, cont.
Guardianship/conservatorship rights Priority in making medical decisions Hospital visitation rights Possession of deceased’s remains
– Right to make funeral & burial arrangements
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Recognition of Foreign Marriages
Generally, marriages that are validly entered in the jurisdiction where they are celebrated will be recognized:– If they are not contrary to public policy (polygamy)– Unless DOMA provisions are applied
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Sampling of Prohibitions
Incest (marriage within the prohibited degrees of consanguinity or affinity)
Polygamy (more than one marriage attempted)– Second marriage not valid– In some jurisdictions, the second marriage may
be “revived” if the first is terminated.
Same-gendered applicants
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Covenant Marriages
Created in response to rising divorce rates Provides for “two-tiers” of marriages. Covenant marriages may require:
– Pre-marital counseling– Signing of a covenant contract– In the event of a divorce, only fault grounds may be used– Pre-divorce counseling– Longer waiting periods before granting divorces.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Common Law Marriages
Recognized in some states if properly perfected.
Recognized in some states only if perfected prior to a statutory moratorium.
Recognized for inheritance purposes only in New Hampshire
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Common Law Marriage Requirements
Vary from state to state Parties must live together for a specified or
significant period of time Public indicia of marriage relationship Present intent to be married Parties must meet statutory requirements for
ceremonial marriage eligibility Once proven, requires a formal, legal divorce.
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Termination of Marriage Relationship
Legal separation Annulment Divorce, or dissolution Death
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Legal Separation
Also, separate maintenance (“Alimony Only”) or divorce a mensa et thoro
Remarriage not permitted Possible reasons:
– Religious prohibitions– Retention of probate rights– Medical coverage– Various pension, other financial concerns
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Legal Separation, cont.
Parties may want to attempt a trial separation before deciding about divorce
Requires grounds in some states Property may distributed Spousal support may be awarded Children’s issues will be resolved
– Custody– Visitation– Support
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Annulment
Religious divorce or ecclesiastical annulment is totally independent of the legal action
Must still settle all parental rights, obligations Based upon grounds that invalidate the marriage
(therefore no alimony, as a rule):– Void (ab initio) – invalid from the moment of inception, and
can’t be “cured” (e.g., incest)– Voidable – invalid, but requires a court declaration of
termination; can be ratified after the removal of the impediment (e.g., nonage)
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Annulment, cont.
Grounds for annulment usually include:– Bigamy– Incest– Lack of mental capacity– Not of the “age of consent” (nonage)– Sham or joke marriage– Fraud, duress or coercion– Entered under the influence of drugs/alcohol– Physical inability to consumate the marriage
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Divorce or Dissolution
Legal termination of an existing marriage Based upon fault or no-fault grounds May be contested or based upon a mutually
acceptable Separation agreement. Fault grounds:
– Create a stigma of misconduct– Are more expensive to prove– Tend to increase acrimony– May be harder on children
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Quiz Prep!
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Quiz Prep
Issues arising from marital disputes include what kinds of things?
Procedures for bringing disputed substantive family law issues before the court include what?
What is “alienation of affection?” What is “separate maintenance?”
Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved
Quiz Prep
What is “common law marriage?” What is an “annulment” and is this still
permissible in the US? What is a “prenutial agreement” based on? Can part of a prenuptial agreement be
enforced and the rest discarded? Should parties disclose finances with a
prenup?