Premarital Agreements, Cohabitation, and Same-Sex Marriages; family law in practice PA 250-Unit 1

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.



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.



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.



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.



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.



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!



Let’s Get Started!



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).



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



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?



Grading Rubric

See document in doc sharing – pay close attention to “elements of familial relationship and case analysis.”



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



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



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”



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



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



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



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



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



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)



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.



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



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



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



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



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



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



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.



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)



Roots & Traditions, cont.

Colonial America– Marriage as a sacred union– Divorce allowed

Husband had continuing obligation of family support

– Government legally authorized/dissolved marriages



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



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



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.



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



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)



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.”



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.



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”



Marriage Benefits, cont.

Tax benefits– Estate tax exemption– Gift tax exemption– Joint income tax returns

Spousal communications privilege Step-parent adoption by-passes




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




Guardianship/conservatorship rights Priority in making medical decisions Hospital visitation rights Possession of deceased’s remains

– Right to make funeral & burial arrangements



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



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



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.



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



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.



Termination of Marriage Relationship

Legal separation Annulment Divorce, or dissolution Death



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



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



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)



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



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



Quiz Prep!



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?”



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?

Documents

Premarital Agreements, Cohabitation, and Same-Sex Marriages; family law in practice PA 250-Unit 1