Audrey had been having a hard run. She knew she was at least in part to blame for it. Like her pregnancy with her boyfriend. And then her child-neglect proceeding when the social worker discovered drugs in her apartment. But Audrey didn’t feel she was to blame for all her problems. After all, her boyfriend could have married her rather than leaving her to raise their child. And then, when Audrey married her husband, he shouldn’t have left her after she caught him having an affair. She hadn’t meant to hurt him when throwing the lamp at him, and it wasn’t her fault that the police had arrested him rather than her when they arrived to investigate. Audrey also felt that her husband should have returned when she shared with him that she was carrying their baby. A hard run indeed. Audrey just hoped that the divorce judgment would be good to her.

Families

Families mean so much to individual health and welfare, and social order, that law would naturally give substantial attention to them. Things most important to us occur within families, from birth through infancy, education and maturation, love and intimacy, homemaking, sickness, disability, and demise. Laws that preserve, protect, and promote families are primarily state laws, although federal law addresses domestic-violence prevention, interstate child-support enforcement, division of retirement plans in divorce, and household income taxes.  Family laws become critical when families are in crisis. Yet even in stable and secure times, you can benefit by knowing and pursuing the protections of family laws. Consider the following discussion of the laws of cohabitation, marriage, divorce, children, and other family laws. Know your family rights, responsibilities, and opportunities.

Cohabiting

Law affects persons who live together without marrying. Laws affecting cohabitation are not specific to cohabitants. State legislatures and courts have been reluctant to develop specific laws governing the rights and responsibilities of non-married cohabitants. While states have alimony laws governing obligations between divorcing spouses, for instance, states do not generally recognize equivalent rights for separating non-married cohabitants, even when the cohabitation has been long, close, and stable. Instead, cohabitants must rely on general property law, contract law, tort law, and other general laws, fitting them to the cohabitation circumstance. Because law offers no particularly well-developed legal framework for cohabitation, some cohabitants enter into cohabitation agreements that provide a framework of mutual rights and obligations around home ownership and maintenance, personal-property ownership, financial support of one another whether in health or disability, household services, control of accounts, care for children and pets, and temporary or permanent separation. From a legal standpoint, cohabitation can take more thought and planning than marriage takes, where rights, obligations, and expectations are clearer. Do not underestimate the significance of the property, financial, support, services, and other issues that cohabitation can create. Consult your lawyer before you face cohabitation issues in the midst of a crisis. Let law help you order your relationships.

Audit: If you are cohabiting or considering doing so, then rank your greatest unaddressed concerns from among the following: (a) ownership, use, and maintenance of, and payment for, the residence; (b) ownership of, access to, and benefit from bank, brokerage, and retirement accounts; (c) ownership, use, and maintenance of, and payment for, vehicles; (d) support, care, and custody of children; (e) ownership, care, and custody of pets; (f) ownership of home electronics, recreational equipment, art, and other valuable personal property; (g) ownership, control, and use of kitchen and home appliances, linens, and other household effects; (h) financial support of one another whether in sickness or in health; (i) payment of joint credit cards or other loans and debts; (j) obligations on separation. Consult a qualified lawyer to help you negotiate and document agreements.

Marriage

Law provides a secure framework for married couples living together in long-term union and intimacy. Legislatures enact and courts interpret laws to promote marriage. State law defines what constitutes marriage, typically requiring a license, ceremony, and consummation between two competent, consenting, and not-already-married adults. States may impose other requirements to obtain a marriage license, such as residency within the state for some period, a waiting period, vaccination, blood testing particularly for venereal disease, and proof of lawful termination of prior marriages. A spouse need not but may take the last name of the other spouse. Few states authorize common-law marriages, recognized when living together while publicly claiming marriage but without the requisite license and ceremony. Marriage brings many legal advantages. Marriage can mean lower marginal income-tax rates for joint filers if one spouse earns all or most of the household income. On the other hand, if both of you earn about the same, then the marginal tax rates can be higher with a joint filing (known as the marriage penalty). Marriage affords dozens of other advantages around retirement plans, insurance plans, Social Security, inheritance, property rights, separation, divorce, and other important subjects. Some couples enter into prenuptial (also called antenuptial) agreements to modify some of those legal rights. Under certain conditions, they also have privileges not to testify against one another and to keep confidential private communications made between them during the marriage. 

Audit: Identify which of the following issues your marriage or anticipated marriage may implicate, on which you may need the advice of a qualified lawyer: (a) the validity of your prior divorce, making you eligible again for marriage; (b) the potential existence of a common-law marriage between you and someone with whom you cohabited as if husband and wife; (c) the advisability, offer, existence, or terms of a prenuptial agreement; (d) the legal requirements for marriage; (e) the sufficiency for legal purposes of alternative marriage venues and plans; (f) the preferred tax-filing status; (g) the impact on Social Security benefits; (h) the impact on estate plans and inheritance; (i) the impact on business interests; (j) the impact on other property interests; (k) the impact on child-support, custody, or visitation rights and obligations.

Debts

Marriage law demands that spouses support one another for necessities such as food, shelter, and medical care. Some states extend that obligation to mean that both spouses are liable to pay care providers. Generally, though, one spouse is not liable for the other spouse’s individual debts unless expressly acknowledging the debt such as on a joint credit card or by co-signing for the obligation. Indeed, one of the greater financial protections of marriage is that property held together in marriage (known as entireties property) is exempt from execution by judgment creditors of either individual spouse. Spouses are not liable for the misconduct or carelessness, or responsible for the crimes, of the other.  Consult your lawyer if you wish to know more about your rights, obligations, and opportunities within marriage.

Audit: If you are married, then how do you hold and designate your accounts, insurances, and properties?  Confirm that you hold joint savings and checking accounts, have designated each other as beneficiaries on any life insurance or retirement accounts, and are both on your home’s deed as spouses, but that you keep separate titles and registrations to your vehicles and, if creditworthiness is any issue, then also separate consumer loans and credit cards. If you are contemplating marriage, then consider planning and preparing to make these beneficial arrangements.

Divorce

Law provides the terms on which marriages end, whether by annulment or divorce. Divorce law is state law, varying somewhat from state to state. States generally have residency requirements varying from 30 days to one year to obtain a divorce within the state plus a waiting period of days or months between filing for divorce and obtaining a divorce judgment. Many states provide for no-fault divorce, meaning that only one spouse needs to attest that the marriage is irretrievably broken and wait the statutory period to obtain a divorce judgment. Other states give an option of no-fault or fault-based divorce including grounds like cruelty, adultery, or abandonment, proof of which may affect how the court divides property or assigns spousal support. Property division and spousal support are substantial issues in divorce. (See below for children’s issues.) State laws vary but tend to start with a presumption that divorcing spouses divide marital assets and debts equally. Adjustments in a property division can reflect several factors including each party’s ability to provide that party’s own support, income, education, and length of the marriage, for whether the court will require either party to support the other after divorce. Marital assets are generally those accumulated during the marriage other than by gift or inheritance. Courts usually enter divorce judgments by consent after the parties agree to terms but sometimes must impose the judgment after hearing or trial. State laws usually permit annulments instead of divorce only when one of the parties was still married (meaning the new marriage was unlawfully bigamous), one of the parties coerced or defrauded the other party, one of the parties is under the age of consent, or where the parties have not yet consummated the marriage. States also recognize formal separations short of complete divorce, giving separated parties access to the courts to help decide property and support issues. A divorce judgment may also restore the maiden or prior name of a spouse who changed a name at marriage. Consult qualified legal representation for more information on separation and divorce.

Audit: If you or your spouse are contemplating separation or divorce, then identify which of the following issues you have considered: (a) marriage counseling; (b) reconciliation; (c) mediation; (d) property division; (e) division of debts; (f) division of retirement accounts; (g) spousal support; (h) who retains the marital home; (i) if children, then child custody and support; (j) who retains pets; (k) legal representation; (l) place and timing of filing the divorce action. Consult qualified legal representation if you have questions regarding these or other issues relating to divorce or separation.

Children

Law governs many important rights and responsibilities regarding your children. Knowing the law can help you pursue the best interests of your children. Law first addresses who your children are. Paternity actions brought by the mother or state establish, by blood test, testimony, or default, who is a child’s father, after which the father will have the support obligations and may have the parenting rights of a father. State laws tend to promote and protect child-rearing within marriage by presuming that children born during the marriage are children of the marriage. Yet states may recognize a husband’s opportunity to dispute paternity and disavow parentage before acknowledgment. Once the family court establishes paternity, state law grants broad parental rights to raise, supervise, instruct, and provide for children without the interference of others. State laws also permit you to designate temporary guardians over your children while you are incapacitated or away. You may also in your will recommend permanent guardians in the event of your death. Parents can lose parental rights for abuse and neglect but only after notice and court hearing. 

Audit: Identify which of the following issues may exist with respect to your children, as to which you should have qualified legal representation: (a) paternity of your children; (b) your parental rights; (c) abuse or neglect allegations regarding your children; (d) interference by others with your parental rights; (e) temporary guardianship of your children in your absence; (f) permanent guardianship of your children at your recommendation, after your demise.

Custody

Parents who live apart must either agree on physical and legal custody of children or have a court decide custody based on factors including fitness, safety, and support. Joint legal custody where both parents together make major decisions regarding the child is common, while joint physical custody may also be possible with the child dividing time between households. Otherwise, the non-custodial parent will have parenting time (visitation rights) unless a court has safety or other reasons not to allow it.  Non-custodial parents generally pay child support based on the relative income of each parent. Courts can enforce child support with contempt sanctions including incarceration. Orders for an employer to withhold income from an employer to pay over to the custodial parent are common, to avoid payment and accounting issues. Consult a qualified legal representative when facing these or similar issues relating to your children.

Audit:  Identify which if any of the following concerns you have affecting the health, welfare, or other best interests of your child or children, for which you should have qualified legal representation: (a) paternity within marriage; (b) legal custody; (c) physical custody; (d) child support payments; (e) parenting time; (f) child support arrearages; (g) abuse; (h) neglect; (i) safety; (j) grandparent visitation.  

Youth

Law affords youths greater rights as they near adulthood, while also holding youths increasingly responsible. As youths mature into their teens and toward adulthood, judges are more likely to consider their preference as to which separated or divorced parent with whom to live. State laws provide for ages when a child’s minority becomes an adult’s majority for various purposes relating to independent decision-making. Depending on the state, that age is often 18 years of age for hazardous work or for entering into binding contracts but for other purposes as young as age 16 for consensual sex, marriage, or motor-vehicle driving, and for other purposes age 21 for drinking alcohol or smoking. States permit minors to petition the courts to lower the age of emancipation for some purposes, for example for living apart from parents and making their own decisions about schooling and medical care. Yet juvenile law rather than criminal law generally judges youth misconduct. Juveniles have the advantage of confidential proceedings and records, and detentions that typically end in freedom when the detained juvenile reaches adulthood. Minors engaging in adult conduct such as alcohol possession may face criminal charge or juvenile sanction. Adults who assist minors in conduct reserved for adults may face their own criminal charges, for instance for statutory rape for sex with an underage minor. Law may permit a court to reduce the age at which the court judges a youth under adult criminal laws, sometimes to as young as age 12 or 13. Some states hold parents civilly liable for willful or reckless injury, loss, or damage that their youths cause but limit that liability to a specific figure such as $5,000.

Audit: If you have a child maturing through youth or are responsible for a youth, confirm whether any of the following are concerns or issues for that youth: (a) custodial parents; (b) emancipation; (c) underage work; (d) underage marriage; (e) drinking alcohol; (f) smoking or vaping; (g) use of illicit drugs; (h) underage sex; (i) teen pregnancy; (j) association with adults engaged in criminal conduct. Consult a qualified legal representative about any of these subjects that are issues for your youth.

Care

As the above discussion on marriage indicates, spouses owe one another a duty of support for necessary items such as food, clothing, and shelter. State laws further provide in various contexts that spouses owe duties and enjoy privileges of love, society, services, and sexual intimacy, as well as fiduciary duties in financial transactions. A wrongdoer who injures one spouse in a way that prevents that spouse from fulfilling those duties to the other spouse will owe the uninjured spouse consortium-loss damages in addition to the damages that the wrongdoer would owe the injured spouse. Spouses also owe duties of reasonable care to one another, meaning that if one’s negligence injures the other, the injured spouse may be due compensation from the negligent spouse. A few states grant interspousal immunity to such negligence suits, but other states do not, and many states provide numerous exceptions where suits between spouses may proceed for things like motor-vehicle-accident injuries, assault and battery, and intentional infliction of emotional distress, or once divorced. Interspousal remedies make little sense for spouses who live together and share finances but more sense where liability insurance would pay for the loss. Some states require adult children to provide necessities for the support of an aged and destitute parent, but states seldom enforce those statutes. States may also criminalize an adult child’s knowing neglect to care for a dependent resident aged and infirm parent, but again seldom with enforcement. Social Security disability benefits may extend to the disabled person’s dependent spouse. Consult a qualified lawyer on questions of intra-family care and support.

Audit: Identify whether you have any of the following concerns or disagreements, or face any of the following issues, having to do with family support: (a) your support by a spouse; (b) your support of a spouse; (c) your support by an adult child; (d) your support of an aged and infirm parent; (e) your liability for necessary goods or services supplied to your spouse; (f) your spouse’s liability for necessary goods or services supplied to you. Consult a qualified lawyer over any of these intra-family support concerns. 

Disability

Law helps with the process of a family member’s disability and demise. Guardianships, conservatorships, healthcare powers of attorney, and advance directives (also known as living wills) can guide caretakers and service providers as a family becomes less able to make decisions. State laws regulate the probate court procedures and forms for these tools. A guardianship designates a trusted person, usually a spouse, adult child, or other family member, to make decisions about the ward’s care when the ward is no longer able to make those decisions. Guardianships usually require a probate or family court order. Conservatorships designate a trusted individual to care for another’s legal and financial affairs rather than physical needs. A durable power of attorney for healthcare authorizes a trusted individual to make medical care decisions when the signer is unable. An advance directive or living will tells guardians and care providers what medical, palliative, and resuscitative care to provide in the event of terminal illness or time of last days. The elderly or infirm may also execute legal and financial powers of attorney to enable a trusted individual to manage or share in managing affairs. See the guide Help with Your Legacy for more information on these legal tools.

Audit: Identify whether you or anyone for whom you have responsibility needs the following relating to disability, serious illness, or approaching demise: (a) guardianship because of declining ability to make decisions about physical security, safety, and care; (b) conservatorship because of increasing incompetence to make sound legal and financial decisions; (c) power of attorney to assist in managing legal and financial affairs; (d) durable power of attorney for healthcare decisions to manage long-term physical care; (e) patient designate to make healthcare decisions during surgery under general anesthetic; (f) advance directive regarding medical and palliative care for terminal illness. Consult a qualified lawyer for help with these legal documents and procedures.

Demise

Law also helps with an individual’s final demise. See the chapter below on your legacy and the guide Help with Your Legacy for more information on wills, trusts, foundations, and other estate planning issues. State law requires a designated professional to examine the body of a deceased individual and complete a certificate of death before the body’s release for disposition according to estate planning documents or family instructions. State laws closing regulate the handling and cremation, interment, or other disposition of the body including autopsy and organ donation. Consult a qualified estate planning lawyer for assistance with estate plans.

Audit: Do you have a will? Is it up to date regarding any change in your family makeup or relationships, or significant changes in your property or financial affairs? Have you made appropriate arrangements for the care of dependent family members your passing would leave behind? Have you shared memorial and burial preferences with a close family member, pastor, or trusted individual? 

Key Points

• Law promotes stability, predictability, and care in family relationships.

• Cohabiting couples depend on agreements rather than law for rights.

• Law defines marriage requirements, benefits, and obligations.

• Married couples can protect one another from most individual debts.

• Law defines the terms and conditions for divorce in family court.

• Law determines paternity and parental obligations and rights.

• The family court determines child custody and support in divorce.

• Law denies children the right to contract and engage in adult conduct.

• Law grants youths increasing adult rights and privileges as they age.

• Spouses owe obligations of care for one another and for their children.

• Law helps families care for their aging and disabled members.

• Law directs the disposition of property and remains on demise.

Read Chapter 13.