A guardian generally has powers over an individual (guardianship of the person), his or her estate (guardianship of the estate) or both. The individual may be a minor or an incompetent adult. Both parents are considered natural guardians of their child, unless the parental rights have been terminated or the child does not reside with either of his or her parents. Parents are considered joint guardians of their child; if one parent dies, the other parent is the sole guardian. The parents of a child may also appoint a guardian in the event of their death. This appointment is generally made by will. If the parents of a minor child die without appointing a guardian, the court may appoint a guardian of the child’s person and estate. If the court must appoint a guardian, there are certain criteria that must be considered. Some criteria taken into account, are the business knowledge, level of education, health, character, past conduct and background, religious beliefs (as compared to the ward’s parents) and where the appointee resides. If a court appoints a guardian, that person acts as an agent of the court in handling the responsibilities for his or her ward.
A court appointed guardianship will often have a hearing after a specified amount of time, to review how the guardianship is going and determine the future of the guardianship. Commonly, a guardianship of a minor child ends when the child reaches the age of majority (age 18). Alternatively, when the ward is an incompetent adult the guardianship may end in a number of ways including a competency hearing, an end date in the original court appointment order or the death of the ward.
A guardian ad litem is not the same as a guardian. A guardian ad litem is appointed by the court for a special purpose. The appointment is usually when there is litigation occurring where the minor or incompetent adult’s rights are at issue and he or she needs an unbiased person looking out for his or her best interests. The role of the guardian ad litem will end as soon as the litigation (he or she was appointed for) has concluded. A guardian ad litem is fulfilling a job for which they are compensated. This job has certain responsibilities that must be satisfied, such as representing the child or incapacitated adult’s best interests, remaining fair, ethical and professional, completing his or her own investigation of the facts, keeping records up to date for the court, keeping qualifications/licensing up to date and avoiding any conflicts of interest.
A premarital agreement is a contract entered into, by a prospective husband and wife, before marriage. This agreement generally lays out rights to property, finances and other assets of both parties. This type of agreement may also specify each individual’s rights in the case of a separation or divorce, equitable distribution, alimony, palimony and any attorney fees or costs. It is also possible for a premarital (prenuptial) agreement to contain a provision releasing the rights of one party, or specifying inheritance rights, in the event that something takes place in the future, such as divorce or death. After the premarital agreement has been made and the couple has been married, the provisions in the agreement may be altered or cancelled by the written agreement of both parties.
There are federal and state statutes that contain premarital/prenuptial agreement requirements. Such an agreement is valid and legal if it meets the statutory requirements. Generally, a premarital agreement must be in writing, must be signed by both parties, must not be induced by fraud or threat and is considered effective as soon as the couple is married. Some requirements that a premarital contract may address are as follows: The rights to property of each spouse (including ownership rights and control of property) Which spouse will retain the property rights if there is a divorce, separation or death Inheritance rights Spousal maintenance rights (after and during the marriage) Rights and obligations of each spouse during the marriage Provisions regarding the care and education of children Which state law governs the agreement Shared financial and business rights (such as stocks, bonds, business proceeds, etc.) Other personal matters, rights and responsibilities of both parties A premarital agreement may not cover some issues, such as diminishing the right to child support or a waiver of basic rights. Such an agreement will also not be enforceable if it is found to be involuntary by one of the parties, the agreement was based on undue influence, there was not full disclosure of finances or assets between the parties when the agreement was made and the right to disclosure was not waived in writing. Additionally, a premarital agreement may not contain provisions that go against public policy.
The amount of time a couple has to create, review and sign a prenuptial agreement may have a basis on whether the agreement is valid. Each party must have enough time to seek independent counsel before signing such an agreement. Courts have differed on the amount of time needed to ensure each party has been able to seek independent legal advice. One day to one week has been a sufficient amount of time in some jurisdictions and not sufficient in others. It depends on the parties and their situation; the courts may look at the timing in each premarital contract on a case-by-case basis to determine if the timing was sufficient and the contract valid.
By law, women are entitled to their maiden name. Generally, taking a husband’s surname is a custom and not a statutory requirement. Some states have statutory authority regarding name change upon marriage. In those states, a married person may use her birth-surname, the spouse’s surname or a combination of the two names (generally hyphenated). However, there are still a few other states that have statutes to the contrary; upon marriage, a wife takes her husbands surname. Although, even in states where the wife is assumed to take her husband’s surname, professional use of a woman’s maiden name has been a longstanding use. At common law, a man or a woman may change his or her name if it is not for a fraudulent purpose. Therefore, either would be able to adopt another name in a state that recognizes common law without a legal proceeding. However, most states have statutes that detail the procedures to legally change ones name. By following the state laws regarding name change, an individual will be able to change his or her name at common law and their legal identity.
Most jurisdictions have statutes that specify types of name changes available when two individuals marry. Most often, the couples are informed of their options in the marriage license application. It is important to check with the court, or an attorney, for the law in your jurisdiction. Commonly, most states have marital surname options such as:
- The surname of the other spouse
- The birth-surname of either spouse
- A surname combining all or a portion of each party’s birth-surname
- A hyphenated surname combining the former name of each spouse.
Many states also give the marrying couple the option to create a new surname for themselves in their license application. As a growing trend, most states will approve the name change of either gender in a married couple. The wife is not always the spouse that applies for a name change, nor must the married couple be of opposite sex.
If an individual would like to legally change his or her name, it is important to know the statutory requirements for a name change. The statutes in each state will lay out the name change procedure. Generally, there is an application or petition to file with the court of record and filing fees. The application will require specific information such as the legal name, the name the person wishes to adopt, date, age, birth date and, in some states, a reason for the name change. If the name change application is not approved, there may be a court hearing to produce evidence that the proposed name change is not fraudulent. Although name change applications are not approved automatically, it is rare that a court would deny an application, unless the proposed change would interfere with the rights of others or cause a substantial harm.
Each parent has a duty to support his or her child. It does not matter if the parents are separated, divorced or were never married. A parent’s duty to his or her child is not dependent on his or her relationship to the other parent. Child support is for the sole benefit of the child, not the parent the child lives with. Each jurisdiction has guidelines for the amount of child support that must be paid. Generally, the guidelines are based on the incomes of both parents. A judge determines the amount of child support that should be paid by each parent for each child and may deviate from the guidelines. The court weighs factors such as the needs of the child and the statutory guidelines when making the child support determination. In the case of unmarried parents, the father must honor his child support obligations once paternity has been established. Child support payments may also be retroactive. If a father is not aware of the child for a period of time, he may be required to pay back support to the time of the child’s birth. Adoptive parents have the same duties as biological parents in regards to child support obligations. Additionally, incarcerated parents continue to have child support obligations as well. However, incarcerated parents may have a valid claim for modification of child support payments due to their circumstances. Incarceration may also be a basis for the termination of parental rights, in some situations. Likewise, the legal obligation to pay child support is terminated if a parent gives up his or her parental rights. This may be done voluntarily, by court order or due to adoption by another individual (creating a new parental relationship).
A parent must continue to fulfill his or her legal duty to support his or her child even if the other parent has violated the visitation order. The duty to pay child support is separate from other parental duties or duties to the other parent, such as alimony or palimony. If one parent interferes with visitation, some courts may modify child support obligations until visitation is reinstated. However, this depends on the jurisdiction and the court. Legally, a court does not have to modify child support payments due to one parent’s interference with the other’s visitation rights. Visitation is for the benefit of the child, not to punish a parent for violating a court order and his or her parental responsibilities.
Generally, child support payments end when the child reaches the age of majority (usually age eighteen or nineteen), dies, gets married or becomes emancipated. However, there are some circumstances where the court may order post minority child support payments. One circumstance may be if the child has a mental or physical disability and is not able to support himself or herself. Another reason may be for educational purposes, such as higher education. Additionally, parents may agree, without a court order, to provide child support after their child reaches the age of majority.
Unmarried cohabitating couples do not have the same legal rights regarding property ownership as married couples. Due to this fact, it is important for unmarried couples to create a written agreement regarding rights to income, benefits and property. This type of agreement is especially important if one of the partners dies; a written agreement may protect the other party by transferring ownership of personal property. Without such an agreement, an individual may end up losing his or her home or other assets. Another reason for cohabiting individuals to have a written property agreement is to protect each person in the event that the relationship ends. A property agreement will protect against later disagreements, arguments and a possible legal dispute; the court will generally uphold the specifics in the agreement and divide the property accordingly. If there is not a property agreement, generally, the individual who holds the property in his or her name will own the property. In the event of that person’s death, the property would most likely pass to his or her heirs at law.
Some states have specific statutes regarding agreements between unmarried cohabitating couples. A common requirement is that the agreement be in writing and signed by both of the individuals. Additionally, both parties must have the capacity to enter into a contract and that contract must have consideration that is not based on the couple’s sexual relationship. When a cohabitating couple enters into a written property agreement, there are some requirements that they should include, such as:
- The intent of each party to enter into the agreement, full disclosure of financial worth for each party
- The jurisdiction applicable to the agreement (regardless of where couple resides)
- A list of separate property owned by each individual (this may mean property owned individually prior to the relationship or property acquired during that relationship that will be owned separately)
- A explicit division of the property in the event that the relationship does not last (the couple separates)
- The parties may also want to add alternatives, such as mediation, in case there is an argument regarding property at a later date.
It is also important that each party have his or her own attorney when entering into a written property agreement. This can ensure that each party’s interests are represented and that the contract is not entered into by one party under duress, threat or pressure.
Community & Non-Community Property
Whether property purchased or acquired by one spouse is owned solely by that spouse depends on the state in which the couple resides. States have differing laws regarding community property and non-community property. A community property state is one that recognizes property acquired during the course of the marriage as belonging to both spouses. A non-community property state recognizes property acquired by one spouse as the sole property of that spouse. There are states that recognize quasi-community property as well.
Community property: There are nine states with community property laws, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Under community property statues, if a married couple acquires personal property during the course of their marriage it is considered owned by the couple. Each spouse will have an equal one-half interest in the personal property, except in matters where the property was acquired by inheritance or by gift from one spouse to the other.
Quasi-community property: If a divorce or administration of an estate occurs in a community property state, some state laws may permit the court to treat the non-community property as community property. If the couple acquired the personal property while residing in a non-community property state and then files for divorce or the administration of an estate in a community property state, that property may be treated as if it were acquired while residing in the community property state.
Non-community property: If a married couple resides in a non-community property state and one spouse purchases property, that property is non-community (non-marital) property. If the married couple moves to a community property state, the property acquired prior to the move does not become community property. Likewise, if a spouse acquires property while living as a married couple in a community property state, that property remains community property even if the couple moves to a state that does not have community property laws.
If a couple is in a community property state or a non-community property state, the appreciation of martial/non-marital property may be an issue during a divorce or legal separation. Generally, if non-community property increases in value during the marriage and either spouse has not contributed to this increase (by adding funds, property or other action), the appreciation of the value is still considered non-community property, or the property of the spouse who acquired it. Alternatively, if personal property that is considered community (or marital) property increases in value during the marriage, that increase is owned by each spouse equally. However, the courts may view ownership of the property differently if the increase in value is due to conduct of one or both of the spouses. It some jurisdictions, if non-marital property appreciates due to marital funds, conduct or efforts, the amount of appreciation may be considered community property and thus owned by each spouse. To determine the affect of appreciation on your community or non-community property in our state, contact our firm to schedule a consultation with a family law attorney.
Any adult or minor child may be adopted as long as the individual is free to be adopted. An individual is considered free to be adopted if the statutory consent requirements have been satisfied. Generally, consent is required from the child (if over 12), the biological parents (if living, or surrendering parental rights of one or both parents may be required) and the guardian (if there is one).
- Adoption has become increasingly more common for gays and lesbians. This may be as a single parent or as a couple. Almost all states permit homosexual parents (gay or lesbian) to adopt. Although the law differs regarding adoption by homosexual/gay/lesbian parents from state to state, generally, the role of adoption is to give as many children good homes as possible and many courts uphold this goal.
- Generally, there is no law against a single person (heterosexual or homosexual) adopting another individual. However, if the adoptive parent is married (and not the legal parent of the adoptee), some jurisdictions may require the spouses to file a joint adoptive petition.
- An adult may adopt another adult or emancipated minor if the adoptee is not his or her spouse. The purpose of an adult adoption is to make the adoptee the adoptive parents’ heir at law. Some states have specific statutory requirements for adult adoptions and generally, the courts will look at the presence of a parent-child relationship before approving the adoption.
- A stepparent may petition to adopt a child if the stepparent’s spouse has sole custody of the child, or has joint legal custody of the child. Consent to the adoption is required by the stepchild (if 12 or over), the child’s biological parents or the child’s legal guardian.
- A grandparent may also adopt his or her grandchild. Grandparents are legally capable to adopt; however, there may be some special concerns for the court to consider. Some concerns are life expectancy or age of the grandparent, health concerns and the state law that would govern. Some states have statutes regarding grandparents as adoptive parents.
- Traditionally, closed adoptions were the standard type of adoption. In a closed adoption, the birth parents do not choose the adoptive parents. Nor do they have any contact with them. After the adoption has taken place, there is no contact between the birth parents and the adoptive parents, such as photos, updates or meetings. The adoption is usually handled by an agency and the birth parents records are sealed. In the past, this meant total secrecy. However, due to lack of access to medical records, more information may be shared with the adoptee and the adoptive parents. The amount of information shared depends on the wishes of the birth parents, adoptive parents and the state laws regarding closed adoption.
- Recently, open adoptions have been used more frequently. Open adoptions can range from sharing the names and contact information of birth parents and adoptive parents to a meeting between the parents. There are also open adoptions where the birth parents select the adoptive parents based on their information or even interviews. Additionally, the birth and adoptive parents may create an agreement to lay out the rights of the parents, amount/type of communication before the birth and any contact after the birth. In an open adoption, there may also be agreements regarding post adoption rights for the birth parents, visitation and grandparent visitation.
Custody does not have to go to one parent (sole or primary custody); joint/shared/split custody may be an option as well. There are two types of joint custody. If parents have joint legal custody, they each have equal rights to make major decisions for their child/children and must agree on these decisions. Some examples of major decisions are schooling, religion, healthcare, discipline, bedtime, age of driving and other activities. If parents have joint physical custody, the time each child spends with the parent is split equally. It is also possible for parents to have joint legal custody and not joint physical custody. Then the child may spend less time with one parent, such as weekends, holidays or other specified time periods. Different jurisdictions have statutes regarding joint or split custody with their own requirements. However, commonly, the courts look at the fitness of each parent, their ability to cooperate with each other, the child’s relationship with each parent and each parent’s desire to be involved in the child’s life.
Historically, the court presumed the mother to be the best parent to award custody of the child. Today, that is not the case. Courts must consider the best interests of the child when determining custody. The best interests of the child have nothing to do with a parent’s gender. The courts look at criteria such as the wishes of the child and the parents, the relationship of the child to the parents, siblings and any other extended family, the location of the parent (considering adjustment to school, church, etc.), the health of the child and/or parents, the financial situation of each parent and which parent has been the primary caretaker of the child thus far. Even though there is no legal presumption in favor of the mother, it is important to note that courts in some jurisdictions may still give preference to the mother in custody disputes where the child is an infant, under the age of six or a female child of mature years. However, if this is the practice, courts still consider who has been the primary caregiver, the mental and physical health of the parent, the financial situation of the parent and other similar criteria to the “best interests of the child.”
There is no difference between the parenting skills of homosexual, bisexual or transgender parents and heterosexual parents. Of course there are many misconceptions and falsehoods about homosexual and lesbian parents, a homosexual parent is not considered unfit (simply due to their sexual orientation) as a matter of law. The court considers the best interests of the child when determining custody. The sexual orientation of one or both parents is only considered a factor if there is evidence that his or her same-sex relationship has harmed the child. Absent evidence of harm, sexual orientation does not make a parent unfit and should not affect the courts decision regarding which parent receives custody of the child.
“No Fault” Divorce
Historically, most states had divorce statutes based on fault. However, in the 1970s and 1980s most states adopted “no fault” divorce statutes. In a no fault divorce, the fault of one spouse is not an issue. A divorce may be granted even over the objection of one of the spouses. It is enough that a marriage is considered irreconcilable by one or both of the spouses. In the past, the court had to make the determination that one of the parties was at fault and due to his or her actions there was an irretrievable breakdown of the marriage. In a no fault divorce, the courts determination is no longer necessary. Instead, the spouse who is filing for divorce must show that there has been a breakdown of the marriage and that there is no hope of reconciliation, not that one party has caused the breakdown due to his or her behavior or actions. Moreover, since one spouse is not legally “at fault” for the divorce proceeding, there are also no defenses in a no fault divorce action.
No fault divorce was created by the legislature for multiple reasons. One reason may be the rising number of divorces over the years. Another is the criticism that divorce statutes were not looking at the real reason behind the breakdown of a marriage; it is rare that one spouse is responsible for the breakdown of the marriage and the other spouse is blameless. An additional purpose may be to lessen the harm divorce may have on the spouses and their children due to one spouse having to present distasteful details to the court of the other spouse’s conduct. Furthermore, there are some situations where legislatures have deemed fault should not be a factor in a divorce. Some examples are mental illness, lengthy legal separation and incompatibility.
In states that have adopted no fault divorce, fault is commonly still a factor in determining alimony, support payments and property division. It depends on whether the legislature has abolished fault from the divorce statute in that state. Often, if the legislature has remained silent on the issue of fault, the court will deem it still a factor in determining alimony, spousal support, property division, attorneys fees and court costs, even in a no fault divorce. Also in no fault states, the moving party does not have to have proof to substantiate his or her claim that the marital relationship has broken down beyond repair.
No fault divorce statutes differ by jurisdiction. Some states may require a separation agreement prior to divorce; the length of the separation also varies according to state. Other states have a different procedure for a contested no fault divorce or an uncontested no fault divorce. Additionally, some jurisdictions require corroboration that the marriage has been irretrievably broken. This corroboration may be from the other spouse or the failure of the other spouse to deny claims of a broken marital relationship. If you are interested in learning more about the no fault divorce laws in our jurisdiction, contact our firm to schedule a consultation with a family law attorney.