Family Law
http://law.yourdictionary.com/family family legal definition
A group of individuals who share ties of blood, marriage, or adoption; a group residing together and consisting of parents, children, and other relatives by blood or marriage; a group of individuals residing together who have consented to an arrangement similar to ties of blood or marriage.
http://legal-dictionary.thefreedictionary.com/family family n. 1) husband, wife and children. 2) all blood relations. 3) all who live in the same household including servants and relatives, with some person or persons directing this economic and social unit.
http://www.law.cornell.edu/wex/marriage
Marriage
Definition
The legal union of a couple as spouses. The basic elements of a marriage are: (1) the parties' legal ability to marry each other, (2) mutual consent of the parties, and (3) a marriage contract as required by law.
See also Common-law marriage[->0].
Overview
In the English common law tradition from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Marriage was viewed as the basis of the family unit and vital to the preservation of morals and civilization. Traditionally, the husband had a duty to provide a safe house, pay for necessities such as food and clothing, and live in the house. The wife's obligations were maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple's children. Today, the underlying concept that marriage is a legal contract still remains, but due to changes in society the legal obligations are not the same.
Marriage is chiefly regulated by the states. The Supreme Court has held that states are permitted to reasonably regulate the institution by prescribing who is allowed to marry and how the marriage can be dissolved. Entering into a marriage changes the legal status of both parties and gives both husband and wife new rights and obligations. One power that the states do not have, however, is that of prohibiting marriage in the absence of a valid reason. For example, prohibiting interracial marriage is unconstitutional because it violates the Equal Protection Clause of the Constitution.
The majority of states limit people to one living husband or wife at a time and will not issue marriage licenses to anyone with a living spouse. Once an individual is married, the person must be legally released from the relationship by either death, divorce, or annulment before he or she may remarry. Other limitations on individuals include age and close relationship. Limitations that some but not all states prescribe are: the requirements of blood tests, good mental capacity, and being of opposite sex.
In 1996, President Clinton signed into law the Defense of Marriage Act (DOMA)[->1], which, for federal purposes, defined marriage as "only a legal union between one man and one woman as husband and wife" (1 U.S.C. § 7[->2]). DOMA further provided that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship" (28 U.S.C. § 1738C[->3]). (See Conflict of laws[->4], Constitutional law[->5])
A marriage may in some cases be void[->6] or voidable[->7].
Definition from Nolo’s Plain-English Law Dictionary
The legal union of two people. Once a couple is married, their rights and responsibilities toward one another concerning property and support are defined by the laws of the state in which they live. A marriage can only be terminated by a court granting a divorce or annulment.
Definition provided by Nolo’s Plain-English Law Dictionary.[->8]
August 19, 2010, 5:19 pm
http://family.findlaw.com/marriage/legal-requirements-for-marriage-faq-s.html
Legal Requirements for MarriageMany people think the legal requirements for marriage are confusing and overwhelming. The reality is, once you know what is required in your state, the steps are simple, leaving you more time to concentrate on the more enjoyable parts of getting married. Although the legal requirements vary state to state, all legal marriages between a man and a woman performed in one state must be recognized by all other states. This article answers the most frequently asked questions regarding legal requirements for marriage.
What are the legal documents required for marriage?
You need to obtain a marriage license from your county clerk and pay the clerk a fee. As long as you and your spouse meet the requirements, discussed below, your marriage license should be granted. You can then proceed with your ceremony. After the ceremony, whoever officiated your wedding has the duty of filing your marriage certificate with the applicable recording agency in your county. If that person fails to do so, it does not invalidate or nullify your marriage; it just may make it harder to document your marriage.
Are blood tests still required before marriage?
Many states have done away with mandatory premarital physical exams or blood tests. Some states still require blood tests for venereal diseases, and a few also test for rubella, sickle-cell anemia, and tuberculosis. No state requires mandatory HIV/AIDS testing, but most states require that marriage license applicants be offered such tests or information where they can obtain a test.
Can I marry anyone I want?
Not necessarily. Most states require both fiancs to be 18 years old or older. Otherwise, they must obtain consent from a parent or judge. The most common situations in which a judge consents to an underage marriage is when the woman is pregnant, and in these circumstances, the judge often requires proof that the couple can financially support themselves.
People who are already married, even if they have been separated for a long period of time, cannot get married until they divorce their former spouse. Proof of dissolution (divorce), annulment, or death of previous spouse is required to show termination of any and all prior marriages. When in a legal marriage, changing your legal status from married to unmarried or single is obtained via a dissolution or divorce.
Both people must have the mental capacity to enter into a contract. If because of mental illness, drugs or alcohol, or other issues that affect judgment, either person cannot and does not understand what it means to be married, then that person lacks the mental capacity to consent to the marriage.
The two people cannot be blood relatives. In most states, they cant be closer than third cousins. Many states allow first cousins to marry if they are of an elderly age and no longer able to conceive.
Most states only allow marriage to be between a man and a woman - but laws are changing everyday. Same sex marriage is constantly evolving and states are passing laws allowing same sex marriages at a fast pace. Federal currently law defines marriage as a union between one man and one woman - but the Supreme Court is expected to weigh in on this and other related gay marriage issues. For purposes of taxes and other federal matters, marriage is primarily governed by state law. FindLaw's Same Sex Marriage sections has a wealth of information on this hot button issue.
What states recognize same sex marriage?
Although the federal government does not recognize same sex marriage, some states do, while others recognize civil unions or something similar for same sex couples. The following states recognize same sex marriage AND perform them: Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont. Recent Washington D.C. legislation implies that D.C. could be performing same-sex marriages, recognized only on a state level, as early as February, 2010. California performed same-sex marriages between June 16, 2008 and November 4, 2008; however, the California electorate then approved a voter initiative that reinstated the ban on same-sex marriage as part of the state constitution. Marriages performed between June 16, 2008 and November 4, 2008, or performed in other jurisdictions before or during this period, are still recognized in California. New York recognizes same sex marriages that were legally validated in other states, but does not grant same-sex marriage licenses or perform same sex marriages. This area of law is rapidly changing and readers should verify with state officials on the status of same sex marriage.
If my state does not recognize gay marriage, can we still have a same sex wedding?
Yes, but it will not be legally recognized. You can even enter into a contract with your partner regarding property ownership and expectations of your relationship. As long as there is nothing in your contract that is illegal and the consideration of your contract is not sexual, it is legally binding and can be reviewed in court in the case of a contract default or separation. This type of contract is just a contract, however. It does not make you and your partner legally spouses or domestic partners. The contract would not entitle you to any tax breaks, partnership benefits, spousal rights, or even get you into divorce court should you end the relationship. However, many people living in states that do not recognize gay marriage do have weddings that are symbolic for them and their loved ones; they then form partnership contracts that spell out things like what each person will bring to the partnership and who gets the shared property in the event of a separation.
Whats the difference between a marriage license and a marriage certificate?
A marriage license is a document you must obtain from the county clerk before you get married. A marriage certificate is a document that proves you are married.
Typically, couples obtain a marriage license, hold the wedding ceremony, and then have the person who performed the ceremony file a marriage certificate in the appropriate county office within a few days. This may be the office of the county clerk, recorder or registrar, depending on where you live. The married couple will then be sent a certified copy of the marriage certificate.
Most states require both spouses, along with the person who officiated and one or two witnesses, to sign the marriage certificate. This is often done just after the ceremony.
Where do I obtain a marriage license?
You can usually apply for your marriage license at any county clerks office in the state in which you want to be married. Some states require you to apply in the county clerks office in which you want to be married. Most states require a small fee, and receiving your marriage license usually takes a few days.
In most states, your marriage license will expire 30 days after it is issued. If this happens, do not panic, you can apply for a new one. On the other hand, most states imply a waiting period from the date of the issuance of your marriage license until the date of your actual ceremony. Usually, this time period is only one to five days. The idea behind the waiting period is to allow the parties to change their minds. This waiting period can be waived for good cause, such as one of the parties being deployed, or only arriving in town the day before the wedding. The following twenty-six states have wait periods:
1 day wait period: Delaware, Illinois, South Carolina
2 day wait period: Maryland, New York
3 day wait period: Alaska, Florida, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, Oregon, Pennsylvania, Tennessee, Washington
4 day wait period: Connecticut
5 day wait period: Minnesota, Ohio, Wisconsin
What if I lost my marriage certificate?
Each state differs on the steps required and the locations to obtain copies of marriage certificates. The process is fairly simply in each state, and you can obtain copies of yours or even someone elses. Visit the website of the National Center for Health Statistics to learn where in your state you can write, call, fax, or email for the documents you need. There will probably be a small fee, between $5 and $10.
Can anyone officiate a marriage?
No. The officiant must be qualified by the county. Civil unions, which are non-religious, are performed by a judge, justice of the peace, or, in some states, a court clerk. Sometimes, people will be given temporary legal authority to perform marriages by a judge or a court clerk. Weddings that are religious ceremonies are conducted by a member of the clergy. This is usually a priest, minister, or rabbi. Native American tribes can designate certain officials to perform weddings, but usually the tribal chief performs the weddings.
What are the legal requirements of marriage ceremonies?
The marriage ceremony must be performed in front of witnesses and an officiant, qualified by the state, such as a priest, rabbi, or judge. Civil ceremonies are conducted by judges or, in some states, county clerks and government officials. No state authorizes ship captains to perform marriages. Most states require at least two witnesses to sign the marriage certificate.
Do we have to do anything after the wedding?
First of all, every state has different laws on the books so you must confer with your state to find out what laws apply. Generally speaking, most states have no legal requirements for marriage after the ceremony. A handful of states require consummation of the marriage through sexual relations. Most states do not require consummation and simply consider the two married once the marriage ceremony ends. In other states, after your wedding, it is the responsibility of the person who performed your wedding ceremony to make sure the license is recorded with the county where you were married. Generally, a few weeks after your wedding, you will receive your marriage certificate in the mail. That said, even if the officiant fails to file the marriage certificate, the two are usually still considered married.
http://www.hrc.org/resources/entry/an-overview-of-federal-rights-and-protections-granted-to-married-couples
An Overview of Federal Rights and Protections Granted to Married Couples b There are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law. [1] Because the Defense of Marriage Act defines "marriage" as only a legal union between one man and one woman, same-sex couples - even if legally married in their state - will not be considered spouses for purposes of federal law.
The following is a summary of several categories of federal laws contingent upon marital status.
Social Security
Social Security provides the sole means of support for some elderly Americans. All working Americans contribute to this program through payroll tax, and receive payments upon retirement. Surviving spouses of working Americans are eligible to receive Social Security payments. A surviving spouse caring for a deceased employee’s minor child is also eligible for an additional support payment. Surviving spouse and surviving parent benefits are denied to gay and lesbian Americans because they cannot marry. Thus, a lesbian couple who contributes an equal amount to Social Security over their lifetime as a married couple would receive bdrastically unequal benefits, as set forth below.
Family Eligible for Surviving Child Benefits Eligible for Surviving Parent Benefits
Family #1: Married husband and wife, both are biological parents of the child
Eligible for Surviving Child Benefits
Eligible for Surviving Parent Benefits
Family #2: Same-sex couple, deceased worker was the biological parent or adoptive of the child
Eligible for Surviving Child Benefits
Not Eligible for Surviving Parent Benefits
Family #3: Same-sex couple, deceased worker was not the biological parent nor able to adopt child through second-parent adoption
Not Eligible for Surviving Child Benefits
Not Eligible for Surviving Parent Benefits
Tax
According to the GAO report, as of 1997 there were 179 tax provisions that took marital status into acbcount. The following is a limited sample of such tax provisions.
Tax on Employer-Provided Health Benefits to Domestic Partners
In growing numbers, both public and private employers across the country have made the business decision to provide domestic partner benefits in order to promoted fairness and equality in the workplace. For example, as of August 2003, 198 (almost forty percent) of the Fortune 500 companies and 173 state and local governments nationwide provide health insurance benefits to the domestic partners of their employees. Federal tax law has not kept up with corporate and governmental who take advantage of it are taxed inequitably.
As policymakers have put an increasing emphasis on delivering health coverage through the tax code and as the cost of healthcare has once again begun to skyrocket, the current inequities in the tax code have placed a burden on the employers who provide healthcare coverage to domestic partners and on the employees who depend upon these benefits to provide security for their families.
1. Burden on Employees
Employers who provide health benefits to their employees typically pay a portion of the premium – if not the entire premium. Currently, the Code provides that the employer’s contrbibution of the premium for health insurance for an employee’s spouse is excluded from the employee’s taxable income. An employer’s contribution for the domestic partner’s coverage, however, is included in the employee’s taxable income as a fringe benefit.
2. Burden on Employers
An employer’s payroll tax liability is calculated based on their employees’ taxable incomes. When contributions for domestic partner benefits are included in employees’ incomes, employers pay higher payroll taxes. This provision also places an administrative burden on employers by requiring them to identify those employees utilizing their benefits for a partner rather than a spouse. Employers must then calculate the portion of their contribution that is attributable to the partner, and create and maintain a separate payroll function for these employees’ income tax withholding and payroll tax. Thus, the employers are penalized for making a sound business decision that contributes to stability in the workforce.
Inequitable Treatment of Children Raised in LGBT Households
Recent data shows that at least 1 million children are being raised by same-sex couples in the United States. The Code contains competing definitions of “child.” Certain provisions of the Code defining child penalize for the marital status of their parents and caregivers.
1. Earned Income Tax Credit
Eligbibility for the earned income tax credit (EITC) is based in part upon the number of “qualifying” children in the taxpayer’s household. See 26 USC § 32. The definition of qualifying child under this provision includes only a child who is the taxpayer’s (a) biological child or descendent; (b) stepchild of the taxpayer; or (c) adopted child. Certain children of lesbian and gay couples are disadvantaged by this provision. For exampled, a taxpayer and their partner domestic are jointly raising the partner’s biological child. The taxpayer works full-time and the child’s legal parent stays home to care for the child. The state in which the taxpayer resides does not permit them to adopt through second-parent adoption or to marry the partner and become the child’s step-parent. This working family is therefore ineligible for an adjustment of the EITC, and therefore has decreased the resources to devote to the child’s care.
2. Head of Household Status
Heads of household, as defined by 26 U.S.C. § 2, are eligible for an increased standard deduction that, among other things, provides taxpayers with increased funds to care for their dependents. The “limitations” section of this provision explicitly denies the benefit of head-of-household status to taxpayers supporting non-biological, non-adopted children. Thus, a gay or lesbian taxpayer who supports his or her partner’s child (and who is ineligible to adopt the child) has fewer post-tax dollars with which to support the child.
b3. Child Tax Credit
Taxpayers meeting income eligibility requirements are entitled to a credit against tax for qualifying children in their households. This provision limits the child tax credit to children who meet the relationship test set fourth in the earned income tax provisions, § 32(c)(3)(B). As set forth above, § 32 does not include children of a taxpayer’s domestic partner if the children are not related to the taxpayer biologically or through adoption.
All three of these inequities have the effect of penalizing families who choose to have one parent in the work force and the other caring for the children full-time. In addition, they disadvantage such couples and their children by limiting the choice of which parent will be a full-time caregiver. Although similarly situated married couples may choose which parent will fulfill that role without consequence, lesbian and gay couples, as well as other unmarried couples, face negative tax consequences for the same decision.
Tax on Gain from the Sale of the Taxpayer’s Principal Residence
Under Internal Revenue Code §121, a single taxpayer may exclude up to $250,000 of profit due to the sale of his or her personal principal residence from taxable income. Married couples filing jointly may exclude up to $500,000 on the sale of their home. Lesbian and gay couples, who are not permitted to marry or to file jointly, are therefore taxed on all gain abbove $250,000, creating a large tax penalty compared to similarly situated married couples.
Estate Tax
Internal Revenue Code § 2056 exempts amounts transferred to a surviving spouse from the decedent’s taxable estate. For same-sex couples who are legally barred from marriage, this exemption is not available, creating an inequity in taxation.
Taxation of Retirement Savings
Under current law, when a retirement plan participant dies, plan benefits must be distributed in a lump sum or remain in the plan to be distributed in accordance with the minimum distribution requirements of § 401(a)(9). This problem does not exist if the beneficiary is the deceased participant’s surviving spouse, because the surviving spouse may transfer plan benefits to an IRA or a retirement plan in which he or she is a participant. This entitlement is valuable because (a) it allows the surviving spouse to defer taxation of the proceeds, often until the survivor is in a lower tax bracket; and (b) it protects the surviving spouse from being forced to withdraw from an investment program when its value is depressed. Because gay and lesbian couples are treated as strangers under federal tax and pension law, they cannot transfer plan benefits without incurring significant penalties, and do not have the flexibility to withdraw funds when they choose. The example below demonstrates this inequity: b Michelle and Sarah have been in a committed relationship for over 10 years. They have registered as domestic partners under the laws of the District of Columbia. Throughout their relationship, they have taken every legal step available to formalize their relationship and protect themselves, legally and financially as domestic partners. Michelle participated in her employer’s 401(k) retirement plans, naming Sarah as the primary beneficiary. Sarah purchased an individual retirement account (IRA). While driving to her job, Michelle is killed in a car accident. Sarah does not have the option to transfer Michelle’s 401(k) funds into her existing IRA because, under current law, only a “spouse” may roll over 401(k) and inherited IRA plans upon the death of a plan participant. Sarah must then take the entire proceeds of the inherited 401(k) in a lump sum and pay taxes on them immediately at a much higher rate, rather than rolling it over into her own name tax free as a surviving spouse can do.
Family and Medical Leave
The Family and Medical Leave Act (FMLA) guarantees family and medical leave to employees to care for parents, children or spouses. As currently interpreted, this law does not provide leave to care for a domestic partner or the domestic partner’s family member. Family and medical lebave should be a benefit for all American workers.
Immigration Law
Currently, U.S. immigration law does not allow lesbian and gay citizens or permanent residents to petition for their same-sex partners to immigrate. Approximately 75% of the one million green cards or immigrant visas issued each year are granted to family members of U.S. citizens and permanent residents. However, those excluded from the definition, under current immigration law of family, are not eligible to immigrate as family. Such ineligible person include (but are not limited to) same-sex partners and unmarried heterosexual couples.
Each year, current law forces thousands of lesbian and gay couples to separate or live in constant fear of deportation. In some cases, partners of lesbian and gays face prosecution by the Immigration and Naturalization Service (INS), hefty fines and deportation and U.S. citizens are sometimes left with no other choice but to migrate with their partner to a nation whose immigration laws recognize their relationship. This creates a tremendous hardship, not only for those involved, but for their friends and family, and leads to a drain of talent and productivbity for our country.
Fifteen countries: Australia, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom recognize lesbian and gay couples for the purposes of immigration.
Employee Benefits for Federal Workers
According to the GAO Report, marital status affects over 270 provisions dealing with current and retired federal employees, members of the Armed Forces, elected officials, and judges. Most significantly, under current law, domestic partners of federal employees are excluded from the Federal Employees Health Benefits Program (FEHBP). Although married couples are eligible for reimbursement for expenses incurred by a domestic partner are not reimbursable. As of August 2003, nine states and the District of Columbia and 322 local governments offer health benefits to the domestic partners of their public employees, while the nation’s largest employer – the federal government – does not.
Continued Health Coverage (COBRA)
Federal law requires employers to give their former employees the opportunity to continue their employer-provided health insurance coverage by paying a premium (the requirement was part of the consolidated Omnibus Budget Reconciliation Act of 1985; hence the common name COBRA). An increasing number of employers, including 198 of the Fortune 500, now offer their employees domestic partner benefits. Although this trend is encouraging, the Federal COBRA law does not require employers to provide domestic partners the continued coverage guaranteed to married couples. Under 29 U.S.C. § 1167, an employer is only required to offer continuation coverage to the employee and to “qualified beneficiaries,” defined as the employee’s spouse and dependent children, regardless of whether the employee’s original benefits plan covered other beneficiaries. Because of the narrow definition of “spouse” under federal law, employees are not guaranteed continued coverage for their domestic partners. [2]
http://www.courts.ca.gov/1040.htm
Overview of the Court Process
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In general, this is the court process for a divorce, legal separation, or annulment of a marriage, or domestic partnership (Or, click to see a list of the legal steps for a divorce with links for detailed information on each step):
1. The person starting the court case (the petitioner) figures out:
How do I want to end my marriage or domestic partnership? Divorce, legal separation, annulment?
If I want a divorce, do we qualify for a summary dissolution?
If I want a divorce, can I file it in California? What county or counties can it be filed in?
How much money will it cost to file the forms, and how can I pay the fees?
Are there any special procedures that apply in the local court in my county? Are there any required local forms I should be aware of? How many copies of my papers will I have to turn in?
2. If appropriate, the petitioner can talk to his or her spouse or domestic partner (the respondent) to see if they can work out an agreement about the terms of the divorce or legal separation.
If they can work out an agreement, they may be able to save on filing fees (maybe only the petitioner needs to file papers in court) and save a lot of time by avoiding having to go to court a lot.
They can get help working out their disagreements from a mediator.
These conversations and attempts to work out the terms of the divorce can happen throughout the case. Even if a couple cannot reach an agreement early on, it is possible they will be able to as the case moves along. So do not give up trying to work out an agreement, either on the whole case or at least some parts of it.
DO NOT try this if you are a victim of domestic violence and are concerned about your safety. Talk to a lawyer or domestic violence counselor first if this is your situation. Click for more information about domestic violence.
3. The petitioner gets and completes all the required forms (including any local forms he or she may need).
The forms can be found on this website, at most courthouses, and in public or county law libraries.
Click for information on working with court forms.
4. The petitioner files his or her court forms.
“Filing the forms” means taking the forms to the courthouse and giving them to a court clerk. The clerk will put the original forms in a file that starts the court case, then stamp the photocopies “Filed,” and return them to the person doing the filing.
There is a filing fee to file court forms. Find out how much the court fee is for filing a divorce petition. If you cannot afford the fees, you can apply for a fee waiver.
5. A person at least 18 who is not involved in the case gives the other spouse or partner (the respondent) copies of the court forms.
When a lawsuit is filed, the person being sued (the respondent) has a right to be told about it. This needs to be done in time for the respondent to go to court and tell the judge his or her side of the story before the judge makes a decision. This is called “service of process” and is very important.
The person who serves copies of the court forms on the respondent fills out a form called a “proof of service” to show that he or she has given the correct forms to the respondent in the right way.
The petitioner files the proof of service form with the court clerk.
The petitioner is NOT done. There are more steps after the respondent’s time to file a response runs out. Without these additional steps, the divorce will NOT be final.
6. The respondent decides how he or she wants to handle the case.
The respondent will decide if he or she wants to file a response with the court. If he or she does not, the judge can make a decision ending the marriage or dissolving the registered domestic partnership without hearing the respondent’s side of the story.
He or she can try to work out an agreement with the petitioner about the terms of the divorce. If there is domestic violence in the relationship, read the domestic violence section to make sure you are safe while you go through the court process.
7. If the respondent chooses to file a response, he or she gets the forms he or she needs, fills them out, and files them with the court clerk.
The respondent files his or her court forms within 30 days of being served with the petitioner’s paperwork.
The respondent files the papers at court and will have to pay a filing fee. Find out how much the court fee is for responding to the divorce petition. If you cannot afford the fees, you can apply for a fee waiver.
8. A person over 18 who is not involved in the case gives (serves) the petitioner a copy of the respondent’s court forms.
The person who serves copies of the court forms on the petitioner fills out a form called a “proof of service” to show that he or she has given the correct forms to the petitioner in the right way.
The respondent files the proof of service form with the court clerk.
9. The parties will exchange financial documents that show what they own and owe. This process is called “preliminary declaration of disclosure.”
The declaration of disclosure will help both parties to come up with a fair way to divide their property and debt.
10. To let a couple become divorced or legally separated, the court must approve and sign a judgment. The process of obtaining a judgment will depend on whether the respondent files a response and whether the spouses or domestic partners can reach an agreement about the terms of the divorce or legal separation. The terms of the divorce become a part of the judgment.
You cannot legally end your marital status until at least 6 months after the case is filed and the respondent has been served with a copy of the petitioner’s paperwork. AND the divorce will not become final on its own. One or both sides will have to file more papers before that happens. Make sure you follow all the necessary steps to make sure you finish your divorce.
In general, if the couple can reach an agreement about all their issues, they may not need to go to in front of a judge.
If they cannot reach an agreement, they will have to go to court to handle the issues that they cannot work out themselves.
http://www.abct.org/docs/Members/FactSheets/DIVORCE%200707.pdf
Explaining Divorce to a Child
The meaning of divorce is quite different for children of different ages, and explanations need to be tailored accordingly. Infants and toddlers obviously do not understand what divorce means, but they do understand if their daily routine changes. Security and consistency are what is most important to them. Preschoolers and young school-age children may understand the word “divorce,” but they, too, are more interested in practical things. Some of the questions they want answered are:
• Where will I stay?
• Where will my stuff be?
• When will I see Mom?
• When will I see Dad?
• Do you still love me?
School-age children want to know more about the reasons for divorce; and, as time passes, they may ask tricky questions that need to be answered honestly but simply. Whatever their age, children need a “G rated” not an “R rated” explanation of the reasons for divorce. Eight- to twelve-year-olds also need answers to their many practical questions about their daily routines, and they can use a parent’s help with the tricky question of what to tell their friends. Adolescents want the most information, and they should get an honest but limited explanation. It is appropriate for teenagers to know why their parents split up, but it is inappropriate for them to know all the details of their parents’ marriage. They are children, not friends.
In thinking about what to tell children of different ages about divorce, it may be helpful to think about what is appropriate to tell a child of the same age about “where babies come from.”
Children of any age deserve honest information about both topics, but they do not need to know every detail. Of course, repeated and increasingly sophisticated explanations are needed, as children grow older; but just as with what they learn about sex, much of what children believe about divorce will differ from what they are told. Children’s beliefs will be closer to parents’ explanations when parents offer information designed to help the children, not to unburden themselves or to blame their spouses.
A few tips may help in making sure that explanations meet the needs of children, not parents. • Always reassure children that they are loved.
• Always try to be neutral (or positive, if possible) about children’s relationship with the other parent.
• Always think about the conversation in advance, and maybe try it out on a friend first.
• Most important of all, put yourself in your children’s shoes. What would you want to know, and how would you want to be told?
Legalities and the Children
Divorced families are still families, and a major task that parents face is renegotiating their family relationships with their children and with each other. Deciding how each parent will spend time with the children is one of the biggest issues that must be negotiated legally. This tricky question may be tied to other things, such as who will move from the family residence, the question of financial support, or the desire of a parent to relocate to a different part of the country. No one type of legal or physical custody arrangement has been found best for children.
Many people feel that the best arrangement is joint legal and physical custody, in which parents share decisions and spend approximately equal time with their children. Others argue sole custody is best, insisting that children need one home and one parent in charge. A few other people want different arrangements, such as having children live primarily with the parent of the same sex.
Research does not strongly support any one of these alternatives over the others. What works best depends on a family’s circumstances, not on some abstract legal term. When determining what will work best, some principles to consider should be:
• Keep conflict to a minimum
• Maximize quality contact
• Maintain consistency
• Keep it simple.
Children’s Relationships with Both Parents
As a rule, more contact with both parents is better for children, but only if the parents’ conflict is contained. If fighting is uncontrolled, children may do better to see one parent less -- and be exposed to less fighting as a result. More contact with each parent may mean sharing time with the children equally; but that arrangement is the exception, not the rule. Many divorced families maximize contact between children and both parents by keeping a stable routine during the school week but then coming up with creative options for using weekends, school vacations, and summer holidays. Other parents recognize that major changes are likely to take place as children grow older, and this helps them to accept less attractive options for the time being.
Consistency in schedules and rules makes life less stressful for everyone. Once parents agree on a plan for spending time with their children, they do well to stick to it religiously.
Children want to know where they are going to be at what times, and, while a change or delay may seem small to a parent, it can be a big deal to a child. Everyone needs some flexibility, of course; but flexibility works best if it follows after a consistent routine has been established.
A few rules on parenting alone can be useful to keep in mind. Children need love, but they also need discipline. Each household needs a few clear and reasonable rules about such things as bedtimes, responsibilities, and appropriate behavior; and parents should expect these rules to be followed. No means no, and parents make a big mistake if they let their guilt turn no into “maybe not.” Of course, a positive focus is the best way to discipline. Praising children for doing ”good” works much better than criticizing children for doing ”bad”.
Finally, get children involved in taking responsibility for their actions and duties. Call a family meeting, explain the problem, and ask children what they (realistically) think is an appropriate solution. Children can discipline themselves pretty strictly if given the chance, and it is hard for them to argue against rules that they set for themselves.
[->0] - http://topics.law.cornell.edu/wex/common-law_marriage
[->1] - http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396:
[->2] - http://www.law.cornell.edu/wex-cgi/wexlink?wexns=USC&wexname=1:7
[->3] - http://www.law.cornell.edu/wex-cgi/wexlink?wexns=USC&wexname=28:1738C
[->4] - /wex/Conflict_of_laws
[->5] - /wex/Constitutional_law
[->6] - http://topics.law.cornell.edu/wex/void_marriage
[->7] - http://topics.law.cornell.edu/wex/voidable_marriage
[->8] - http://www.nolo.com/dictionary/marriage-term.html
A group of individuals who share ties of blood, marriage, or adoption; a group residing together and consisting of parents, children, and other relatives by blood or marriage; a group of individuals residing together who have consented to an arrangement similar to ties of blood or marriage.
http://legal-dictionary.thefreedictionary.com/family family n. 1) husband, wife and children. 2) all blood relations. 3) all who live in the same household including servants and relatives, with some person or persons directing this economic and social unit.
http://www.law.cornell.edu/wex/marriage
Marriage
Definition
The legal union of a couple as spouses. The basic elements of a marriage are: (1) the parties' legal ability to marry each other, (2) mutual consent of the parties, and (3) a marriage contract as required by law.
See also Common-law marriage[->0].
Overview
In the English common law tradition from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Marriage was viewed as the basis of the family unit and vital to the preservation of morals and civilization. Traditionally, the husband had a duty to provide a safe house, pay for necessities such as food and clothing, and live in the house. The wife's obligations were maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple's children. Today, the underlying concept that marriage is a legal contract still remains, but due to changes in society the legal obligations are not the same.
Marriage is chiefly regulated by the states. The Supreme Court has held that states are permitted to reasonably regulate the institution by prescribing who is allowed to marry and how the marriage can be dissolved. Entering into a marriage changes the legal status of both parties and gives both husband and wife new rights and obligations. One power that the states do not have, however, is that of prohibiting marriage in the absence of a valid reason. For example, prohibiting interracial marriage is unconstitutional because it violates the Equal Protection Clause of the Constitution.
The majority of states limit people to one living husband or wife at a time and will not issue marriage licenses to anyone with a living spouse. Once an individual is married, the person must be legally released from the relationship by either death, divorce, or annulment before he or she may remarry. Other limitations on individuals include age and close relationship. Limitations that some but not all states prescribe are: the requirements of blood tests, good mental capacity, and being of opposite sex.
In 1996, President Clinton signed into law the Defense of Marriage Act (DOMA)[->1], which, for federal purposes, defined marriage as "only a legal union between one man and one woman as husband and wife" (1 U.S.C. § 7[->2]). DOMA further provided that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship" (28 U.S.C. § 1738C[->3]). (See Conflict of laws[->4], Constitutional law[->5])
A marriage may in some cases be void[->6] or voidable[->7].
Definition from Nolo’s Plain-English Law Dictionary
The legal union of two people. Once a couple is married, their rights and responsibilities toward one another concerning property and support are defined by the laws of the state in which they live. A marriage can only be terminated by a court granting a divorce or annulment.
Definition provided by Nolo’s Plain-English Law Dictionary.[->8]
August 19, 2010, 5:19 pm
http://family.findlaw.com/marriage/legal-requirements-for-marriage-faq-s.html
Legal Requirements for MarriageMany people think the legal requirements for marriage are confusing and overwhelming. The reality is, once you know what is required in your state, the steps are simple, leaving you more time to concentrate on the more enjoyable parts of getting married. Although the legal requirements vary state to state, all legal marriages between a man and a woman performed in one state must be recognized by all other states. This article answers the most frequently asked questions regarding legal requirements for marriage.
What are the legal documents required for marriage?
You need to obtain a marriage license from your county clerk and pay the clerk a fee. As long as you and your spouse meet the requirements, discussed below, your marriage license should be granted. You can then proceed with your ceremony. After the ceremony, whoever officiated your wedding has the duty of filing your marriage certificate with the applicable recording agency in your county. If that person fails to do so, it does not invalidate or nullify your marriage; it just may make it harder to document your marriage.
Are blood tests still required before marriage?
Many states have done away with mandatory premarital physical exams or blood tests. Some states still require blood tests for venereal diseases, and a few also test for rubella, sickle-cell anemia, and tuberculosis. No state requires mandatory HIV/AIDS testing, but most states require that marriage license applicants be offered such tests or information where they can obtain a test.
Can I marry anyone I want?
Not necessarily. Most states require both fiancs to be 18 years old or older. Otherwise, they must obtain consent from a parent or judge. The most common situations in which a judge consents to an underage marriage is when the woman is pregnant, and in these circumstances, the judge often requires proof that the couple can financially support themselves.
People who are already married, even if they have been separated for a long period of time, cannot get married until they divorce their former spouse. Proof of dissolution (divorce), annulment, or death of previous spouse is required to show termination of any and all prior marriages. When in a legal marriage, changing your legal status from married to unmarried or single is obtained via a dissolution or divorce.
Both people must have the mental capacity to enter into a contract. If because of mental illness, drugs or alcohol, or other issues that affect judgment, either person cannot and does not understand what it means to be married, then that person lacks the mental capacity to consent to the marriage.
The two people cannot be blood relatives. In most states, they cant be closer than third cousins. Many states allow first cousins to marry if they are of an elderly age and no longer able to conceive.
Most states only allow marriage to be between a man and a woman - but laws are changing everyday. Same sex marriage is constantly evolving and states are passing laws allowing same sex marriages at a fast pace. Federal currently law defines marriage as a union between one man and one woman - but the Supreme Court is expected to weigh in on this and other related gay marriage issues. For purposes of taxes and other federal matters, marriage is primarily governed by state law. FindLaw's Same Sex Marriage sections has a wealth of information on this hot button issue.
What states recognize same sex marriage?
Although the federal government does not recognize same sex marriage, some states do, while others recognize civil unions or something similar for same sex couples. The following states recognize same sex marriage AND perform them: Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont. Recent Washington D.C. legislation implies that D.C. could be performing same-sex marriages, recognized only on a state level, as early as February, 2010. California performed same-sex marriages between June 16, 2008 and November 4, 2008; however, the California electorate then approved a voter initiative that reinstated the ban on same-sex marriage as part of the state constitution. Marriages performed between June 16, 2008 and November 4, 2008, or performed in other jurisdictions before or during this period, are still recognized in California. New York recognizes same sex marriages that were legally validated in other states, but does not grant same-sex marriage licenses or perform same sex marriages. This area of law is rapidly changing and readers should verify with state officials on the status of same sex marriage.
If my state does not recognize gay marriage, can we still have a same sex wedding?
Yes, but it will not be legally recognized. You can even enter into a contract with your partner regarding property ownership and expectations of your relationship. As long as there is nothing in your contract that is illegal and the consideration of your contract is not sexual, it is legally binding and can be reviewed in court in the case of a contract default or separation. This type of contract is just a contract, however. It does not make you and your partner legally spouses or domestic partners. The contract would not entitle you to any tax breaks, partnership benefits, spousal rights, or even get you into divorce court should you end the relationship. However, many people living in states that do not recognize gay marriage do have weddings that are symbolic for them and their loved ones; they then form partnership contracts that spell out things like what each person will bring to the partnership and who gets the shared property in the event of a separation.
Whats the difference between a marriage license and a marriage certificate?
A marriage license is a document you must obtain from the county clerk before you get married. A marriage certificate is a document that proves you are married.
Typically, couples obtain a marriage license, hold the wedding ceremony, and then have the person who performed the ceremony file a marriage certificate in the appropriate county office within a few days. This may be the office of the county clerk, recorder or registrar, depending on where you live. The married couple will then be sent a certified copy of the marriage certificate.
Most states require both spouses, along with the person who officiated and one or two witnesses, to sign the marriage certificate. This is often done just after the ceremony.
Where do I obtain a marriage license?
You can usually apply for your marriage license at any county clerks office in the state in which you want to be married. Some states require you to apply in the county clerks office in which you want to be married. Most states require a small fee, and receiving your marriage license usually takes a few days.
In most states, your marriage license will expire 30 days after it is issued. If this happens, do not panic, you can apply for a new one. On the other hand, most states imply a waiting period from the date of the issuance of your marriage license until the date of your actual ceremony. Usually, this time period is only one to five days. The idea behind the waiting period is to allow the parties to change their minds. This waiting period can be waived for good cause, such as one of the parties being deployed, or only arriving in town the day before the wedding. The following twenty-six states have wait periods:
1 day wait period: Delaware, Illinois, South Carolina
2 day wait period: Maryland, New York
3 day wait period: Alaska, Florida, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, Oregon, Pennsylvania, Tennessee, Washington
4 day wait period: Connecticut
5 day wait period: Minnesota, Ohio, Wisconsin
What if I lost my marriage certificate?
Each state differs on the steps required and the locations to obtain copies of marriage certificates. The process is fairly simply in each state, and you can obtain copies of yours or even someone elses. Visit the website of the National Center for Health Statistics to learn where in your state you can write, call, fax, or email for the documents you need. There will probably be a small fee, between $5 and $10.
Can anyone officiate a marriage?
No. The officiant must be qualified by the county. Civil unions, which are non-religious, are performed by a judge, justice of the peace, or, in some states, a court clerk. Sometimes, people will be given temporary legal authority to perform marriages by a judge or a court clerk. Weddings that are religious ceremonies are conducted by a member of the clergy. This is usually a priest, minister, or rabbi. Native American tribes can designate certain officials to perform weddings, but usually the tribal chief performs the weddings.
What are the legal requirements of marriage ceremonies?
The marriage ceremony must be performed in front of witnesses and an officiant, qualified by the state, such as a priest, rabbi, or judge. Civil ceremonies are conducted by judges or, in some states, county clerks and government officials. No state authorizes ship captains to perform marriages. Most states require at least two witnesses to sign the marriage certificate.
Do we have to do anything after the wedding?
First of all, every state has different laws on the books so you must confer with your state to find out what laws apply. Generally speaking, most states have no legal requirements for marriage after the ceremony. A handful of states require consummation of the marriage through sexual relations. Most states do not require consummation and simply consider the two married once the marriage ceremony ends. In other states, after your wedding, it is the responsibility of the person who performed your wedding ceremony to make sure the license is recorded with the county where you were married. Generally, a few weeks after your wedding, you will receive your marriage certificate in the mail. That said, even if the officiant fails to file the marriage certificate, the two are usually still considered married.
http://www.hrc.org/resources/entry/an-overview-of-federal-rights-and-protections-granted-to-married-couples
An Overview of Federal Rights and Protections Granted to Married Couples b There are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law. [1] Because the Defense of Marriage Act defines "marriage" as only a legal union between one man and one woman, same-sex couples - even if legally married in their state - will not be considered spouses for purposes of federal law.
The following is a summary of several categories of federal laws contingent upon marital status.
Social Security
Social Security provides the sole means of support for some elderly Americans. All working Americans contribute to this program through payroll tax, and receive payments upon retirement. Surviving spouses of working Americans are eligible to receive Social Security payments. A surviving spouse caring for a deceased employee’s minor child is also eligible for an additional support payment. Surviving spouse and surviving parent benefits are denied to gay and lesbian Americans because they cannot marry. Thus, a lesbian couple who contributes an equal amount to Social Security over their lifetime as a married couple would receive bdrastically unequal benefits, as set forth below.
Family Eligible for Surviving Child Benefits Eligible for Surviving Parent Benefits
Family #1: Married husband and wife, both are biological parents of the child
Eligible for Surviving Child Benefits
Eligible for Surviving Parent Benefits
Family #2: Same-sex couple, deceased worker was the biological parent or adoptive of the child
Eligible for Surviving Child Benefits
Not Eligible for Surviving Parent Benefits
Family #3: Same-sex couple, deceased worker was not the biological parent nor able to adopt child through second-parent adoption
Not Eligible for Surviving Child Benefits
Not Eligible for Surviving Parent Benefits
Tax
According to the GAO report, as of 1997 there were 179 tax provisions that took marital status into acbcount. The following is a limited sample of such tax provisions.
Tax on Employer-Provided Health Benefits to Domestic Partners
In growing numbers, both public and private employers across the country have made the business decision to provide domestic partner benefits in order to promoted fairness and equality in the workplace. For example, as of August 2003, 198 (almost forty percent) of the Fortune 500 companies and 173 state and local governments nationwide provide health insurance benefits to the domestic partners of their employees. Federal tax law has not kept up with corporate and governmental who take advantage of it are taxed inequitably.
As policymakers have put an increasing emphasis on delivering health coverage through the tax code and as the cost of healthcare has once again begun to skyrocket, the current inequities in the tax code have placed a burden on the employers who provide healthcare coverage to domestic partners and on the employees who depend upon these benefits to provide security for their families.
1. Burden on Employees
Employers who provide health benefits to their employees typically pay a portion of the premium – if not the entire premium. Currently, the Code provides that the employer’s contrbibution of the premium for health insurance for an employee’s spouse is excluded from the employee’s taxable income. An employer’s contribution for the domestic partner’s coverage, however, is included in the employee’s taxable income as a fringe benefit.
2. Burden on Employers
An employer’s payroll tax liability is calculated based on their employees’ taxable incomes. When contributions for domestic partner benefits are included in employees’ incomes, employers pay higher payroll taxes. This provision also places an administrative burden on employers by requiring them to identify those employees utilizing their benefits for a partner rather than a spouse. Employers must then calculate the portion of their contribution that is attributable to the partner, and create and maintain a separate payroll function for these employees’ income tax withholding and payroll tax. Thus, the employers are penalized for making a sound business decision that contributes to stability in the workforce.
Inequitable Treatment of Children Raised in LGBT Households
Recent data shows that at least 1 million children are being raised by same-sex couples in the United States. The Code contains competing definitions of “child.” Certain provisions of the Code defining child penalize for the marital status of their parents and caregivers.
1. Earned Income Tax Credit
Eligbibility for the earned income tax credit (EITC) is based in part upon the number of “qualifying” children in the taxpayer’s household. See 26 USC § 32. The definition of qualifying child under this provision includes only a child who is the taxpayer’s (a) biological child or descendent; (b) stepchild of the taxpayer; or (c) adopted child. Certain children of lesbian and gay couples are disadvantaged by this provision. For exampled, a taxpayer and their partner domestic are jointly raising the partner’s biological child. The taxpayer works full-time and the child’s legal parent stays home to care for the child. The state in which the taxpayer resides does not permit them to adopt through second-parent adoption or to marry the partner and become the child’s step-parent. This working family is therefore ineligible for an adjustment of the EITC, and therefore has decreased the resources to devote to the child’s care.
2. Head of Household Status
Heads of household, as defined by 26 U.S.C. § 2, are eligible for an increased standard deduction that, among other things, provides taxpayers with increased funds to care for their dependents. The “limitations” section of this provision explicitly denies the benefit of head-of-household status to taxpayers supporting non-biological, non-adopted children. Thus, a gay or lesbian taxpayer who supports his or her partner’s child (and who is ineligible to adopt the child) has fewer post-tax dollars with which to support the child.
b3. Child Tax Credit
Taxpayers meeting income eligibility requirements are entitled to a credit against tax for qualifying children in their households. This provision limits the child tax credit to children who meet the relationship test set fourth in the earned income tax provisions, § 32(c)(3)(B). As set forth above, § 32 does not include children of a taxpayer’s domestic partner if the children are not related to the taxpayer biologically or through adoption.
All three of these inequities have the effect of penalizing families who choose to have one parent in the work force and the other caring for the children full-time. In addition, they disadvantage such couples and their children by limiting the choice of which parent will be a full-time caregiver. Although similarly situated married couples may choose which parent will fulfill that role without consequence, lesbian and gay couples, as well as other unmarried couples, face negative tax consequences for the same decision.
Tax on Gain from the Sale of the Taxpayer’s Principal Residence
Under Internal Revenue Code §121, a single taxpayer may exclude up to $250,000 of profit due to the sale of his or her personal principal residence from taxable income. Married couples filing jointly may exclude up to $500,000 on the sale of their home. Lesbian and gay couples, who are not permitted to marry or to file jointly, are therefore taxed on all gain abbove $250,000, creating a large tax penalty compared to similarly situated married couples.
Estate Tax
Internal Revenue Code § 2056 exempts amounts transferred to a surviving spouse from the decedent’s taxable estate. For same-sex couples who are legally barred from marriage, this exemption is not available, creating an inequity in taxation.
Taxation of Retirement Savings
Under current law, when a retirement plan participant dies, plan benefits must be distributed in a lump sum or remain in the plan to be distributed in accordance with the minimum distribution requirements of § 401(a)(9). This problem does not exist if the beneficiary is the deceased participant’s surviving spouse, because the surviving spouse may transfer plan benefits to an IRA or a retirement plan in which he or she is a participant. This entitlement is valuable because (a) it allows the surviving spouse to defer taxation of the proceeds, often until the survivor is in a lower tax bracket; and (b) it protects the surviving spouse from being forced to withdraw from an investment program when its value is depressed. Because gay and lesbian couples are treated as strangers under federal tax and pension law, they cannot transfer plan benefits without incurring significant penalties, and do not have the flexibility to withdraw funds when they choose. The example below demonstrates this inequity: b Michelle and Sarah have been in a committed relationship for over 10 years. They have registered as domestic partners under the laws of the District of Columbia. Throughout their relationship, they have taken every legal step available to formalize their relationship and protect themselves, legally and financially as domestic partners. Michelle participated in her employer’s 401(k) retirement plans, naming Sarah as the primary beneficiary. Sarah purchased an individual retirement account (IRA). While driving to her job, Michelle is killed in a car accident. Sarah does not have the option to transfer Michelle’s 401(k) funds into her existing IRA because, under current law, only a “spouse” may roll over 401(k) and inherited IRA plans upon the death of a plan participant. Sarah must then take the entire proceeds of the inherited 401(k) in a lump sum and pay taxes on them immediately at a much higher rate, rather than rolling it over into her own name tax free as a surviving spouse can do.
Family and Medical Leave
The Family and Medical Leave Act (FMLA) guarantees family and medical leave to employees to care for parents, children or spouses. As currently interpreted, this law does not provide leave to care for a domestic partner or the domestic partner’s family member. Family and medical lebave should be a benefit for all American workers.
Immigration Law
Currently, U.S. immigration law does not allow lesbian and gay citizens or permanent residents to petition for their same-sex partners to immigrate. Approximately 75% of the one million green cards or immigrant visas issued each year are granted to family members of U.S. citizens and permanent residents. However, those excluded from the definition, under current immigration law of family, are not eligible to immigrate as family. Such ineligible person include (but are not limited to) same-sex partners and unmarried heterosexual couples.
Each year, current law forces thousands of lesbian and gay couples to separate or live in constant fear of deportation. In some cases, partners of lesbian and gays face prosecution by the Immigration and Naturalization Service (INS), hefty fines and deportation and U.S. citizens are sometimes left with no other choice but to migrate with their partner to a nation whose immigration laws recognize their relationship. This creates a tremendous hardship, not only for those involved, but for their friends and family, and leads to a drain of talent and productivbity for our country.
Fifteen countries: Australia, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom recognize lesbian and gay couples for the purposes of immigration.
Employee Benefits for Federal Workers
According to the GAO Report, marital status affects over 270 provisions dealing with current and retired federal employees, members of the Armed Forces, elected officials, and judges. Most significantly, under current law, domestic partners of federal employees are excluded from the Federal Employees Health Benefits Program (FEHBP). Although married couples are eligible for reimbursement for expenses incurred by a domestic partner are not reimbursable. As of August 2003, nine states and the District of Columbia and 322 local governments offer health benefits to the domestic partners of their public employees, while the nation’s largest employer – the federal government – does not.
Continued Health Coverage (COBRA)
Federal law requires employers to give their former employees the opportunity to continue their employer-provided health insurance coverage by paying a premium (the requirement was part of the consolidated Omnibus Budget Reconciliation Act of 1985; hence the common name COBRA). An increasing number of employers, including 198 of the Fortune 500, now offer their employees domestic partner benefits. Although this trend is encouraging, the Federal COBRA law does not require employers to provide domestic partners the continued coverage guaranteed to married couples. Under 29 U.S.C. § 1167, an employer is only required to offer continuation coverage to the employee and to “qualified beneficiaries,” defined as the employee’s spouse and dependent children, regardless of whether the employee’s original benefits plan covered other beneficiaries. Because of the narrow definition of “spouse” under federal law, employees are not guaranteed continued coverage for their domestic partners. [2]
http://www.courts.ca.gov/1040.htm
Overview of the Court Process
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In general, this is the court process for a divorce, legal separation, or annulment of a marriage, or domestic partnership (Or, click to see a list of the legal steps for a divorce with links for detailed information on each step):
1. The person starting the court case (the petitioner) figures out:
How do I want to end my marriage or domestic partnership? Divorce, legal separation, annulment?
If I want a divorce, do we qualify for a summary dissolution?
If I want a divorce, can I file it in California? What county or counties can it be filed in?
How much money will it cost to file the forms, and how can I pay the fees?
Are there any special procedures that apply in the local court in my county? Are there any required local forms I should be aware of? How many copies of my papers will I have to turn in?
2. If appropriate, the petitioner can talk to his or her spouse or domestic partner (the respondent) to see if they can work out an agreement about the terms of the divorce or legal separation.
If they can work out an agreement, they may be able to save on filing fees (maybe only the petitioner needs to file papers in court) and save a lot of time by avoiding having to go to court a lot.
They can get help working out their disagreements from a mediator.
These conversations and attempts to work out the terms of the divorce can happen throughout the case. Even if a couple cannot reach an agreement early on, it is possible they will be able to as the case moves along. So do not give up trying to work out an agreement, either on the whole case or at least some parts of it.
DO NOT try this if you are a victim of domestic violence and are concerned about your safety. Talk to a lawyer or domestic violence counselor first if this is your situation. Click for more information about domestic violence.
3. The petitioner gets and completes all the required forms (including any local forms he or she may need).
The forms can be found on this website, at most courthouses, and in public or county law libraries.
Click for information on working with court forms.
4. The petitioner files his or her court forms.
“Filing the forms” means taking the forms to the courthouse and giving them to a court clerk. The clerk will put the original forms in a file that starts the court case, then stamp the photocopies “Filed,” and return them to the person doing the filing.
There is a filing fee to file court forms. Find out how much the court fee is for filing a divorce petition. If you cannot afford the fees, you can apply for a fee waiver.
5. A person at least 18 who is not involved in the case gives the other spouse or partner (the respondent) copies of the court forms.
When a lawsuit is filed, the person being sued (the respondent) has a right to be told about it. This needs to be done in time for the respondent to go to court and tell the judge his or her side of the story before the judge makes a decision. This is called “service of process” and is very important.
The person who serves copies of the court forms on the respondent fills out a form called a “proof of service” to show that he or she has given the correct forms to the respondent in the right way.
The petitioner files the proof of service form with the court clerk.
The petitioner is NOT done. There are more steps after the respondent’s time to file a response runs out. Without these additional steps, the divorce will NOT be final.
6. The respondent decides how he or she wants to handle the case.
The respondent will decide if he or she wants to file a response with the court. If he or she does not, the judge can make a decision ending the marriage or dissolving the registered domestic partnership without hearing the respondent’s side of the story.
He or she can try to work out an agreement with the petitioner about the terms of the divorce. If there is domestic violence in the relationship, read the domestic violence section to make sure you are safe while you go through the court process.
7. If the respondent chooses to file a response, he or she gets the forms he or she needs, fills them out, and files them with the court clerk.
The respondent files his or her court forms within 30 days of being served with the petitioner’s paperwork.
The respondent files the papers at court and will have to pay a filing fee. Find out how much the court fee is for responding to the divorce petition. If you cannot afford the fees, you can apply for a fee waiver.
8. A person over 18 who is not involved in the case gives (serves) the petitioner a copy of the respondent’s court forms.
The person who serves copies of the court forms on the petitioner fills out a form called a “proof of service” to show that he or she has given the correct forms to the petitioner in the right way.
The respondent files the proof of service form with the court clerk.
9. The parties will exchange financial documents that show what they own and owe. This process is called “preliminary declaration of disclosure.”
The declaration of disclosure will help both parties to come up with a fair way to divide their property and debt.
10. To let a couple become divorced or legally separated, the court must approve and sign a judgment. The process of obtaining a judgment will depend on whether the respondent files a response and whether the spouses or domestic partners can reach an agreement about the terms of the divorce or legal separation. The terms of the divorce become a part of the judgment.
You cannot legally end your marital status until at least 6 months after the case is filed and the respondent has been served with a copy of the petitioner’s paperwork. AND the divorce will not become final on its own. One or both sides will have to file more papers before that happens. Make sure you follow all the necessary steps to make sure you finish your divorce.
In general, if the couple can reach an agreement about all their issues, they may not need to go to in front of a judge.
If they cannot reach an agreement, they will have to go to court to handle the issues that they cannot work out themselves.
http://www.abct.org/docs/Members/FactSheets/DIVORCE%200707.pdf
Explaining Divorce to a Child
The meaning of divorce is quite different for children of different ages, and explanations need to be tailored accordingly. Infants and toddlers obviously do not understand what divorce means, but they do understand if their daily routine changes. Security and consistency are what is most important to them. Preschoolers and young school-age children may understand the word “divorce,” but they, too, are more interested in practical things. Some of the questions they want answered are:
• Where will I stay?
• Where will my stuff be?
• When will I see Mom?
• When will I see Dad?
• Do you still love me?
School-age children want to know more about the reasons for divorce; and, as time passes, they may ask tricky questions that need to be answered honestly but simply. Whatever their age, children need a “G rated” not an “R rated” explanation of the reasons for divorce. Eight- to twelve-year-olds also need answers to their many practical questions about their daily routines, and they can use a parent’s help with the tricky question of what to tell their friends. Adolescents want the most information, and they should get an honest but limited explanation. It is appropriate for teenagers to know why their parents split up, but it is inappropriate for them to know all the details of their parents’ marriage. They are children, not friends.
In thinking about what to tell children of different ages about divorce, it may be helpful to think about what is appropriate to tell a child of the same age about “where babies come from.”
Children of any age deserve honest information about both topics, but they do not need to know every detail. Of course, repeated and increasingly sophisticated explanations are needed, as children grow older; but just as with what they learn about sex, much of what children believe about divorce will differ from what they are told. Children’s beliefs will be closer to parents’ explanations when parents offer information designed to help the children, not to unburden themselves or to blame their spouses.
A few tips may help in making sure that explanations meet the needs of children, not parents. • Always reassure children that they are loved.
• Always try to be neutral (or positive, if possible) about children’s relationship with the other parent.
• Always think about the conversation in advance, and maybe try it out on a friend first.
• Most important of all, put yourself in your children’s shoes. What would you want to know, and how would you want to be told?
Legalities and the Children
Divorced families are still families, and a major task that parents face is renegotiating their family relationships with their children and with each other. Deciding how each parent will spend time with the children is one of the biggest issues that must be negotiated legally. This tricky question may be tied to other things, such as who will move from the family residence, the question of financial support, or the desire of a parent to relocate to a different part of the country. No one type of legal or physical custody arrangement has been found best for children.
Many people feel that the best arrangement is joint legal and physical custody, in which parents share decisions and spend approximately equal time with their children. Others argue sole custody is best, insisting that children need one home and one parent in charge. A few other people want different arrangements, such as having children live primarily with the parent of the same sex.
Research does not strongly support any one of these alternatives over the others. What works best depends on a family’s circumstances, not on some abstract legal term. When determining what will work best, some principles to consider should be:
• Keep conflict to a minimum
• Maximize quality contact
• Maintain consistency
• Keep it simple.
Children’s Relationships with Both Parents
As a rule, more contact with both parents is better for children, but only if the parents’ conflict is contained. If fighting is uncontrolled, children may do better to see one parent less -- and be exposed to less fighting as a result. More contact with each parent may mean sharing time with the children equally; but that arrangement is the exception, not the rule. Many divorced families maximize contact between children and both parents by keeping a stable routine during the school week but then coming up with creative options for using weekends, school vacations, and summer holidays. Other parents recognize that major changes are likely to take place as children grow older, and this helps them to accept less attractive options for the time being.
Consistency in schedules and rules makes life less stressful for everyone. Once parents agree on a plan for spending time with their children, they do well to stick to it religiously.
Children want to know where they are going to be at what times, and, while a change or delay may seem small to a parent, it can be a big deal to a child. Everyone needs some flexibility, of course; but flexibility works best if it follows after a consistent routine has been established.
A few rules on parenting alone can be useful to keep in mind. Children need love, but they also need discipline. Each household needs a few clear and reasonable rules about such things as bedtimes, responsibilities, and appropriate behavior; and parents should expect these rules to be followed. No means no, and parents make a big mistake if they let their guilt turn no into “maybe not.” Of course, a positive focus is the best way to discipline. Praising children for doing ”good” works much better than criticizing children for doing ”bad”.
Finally, get children involved in taking responsibility for their actions and duties. Call a family meeting, explain the problem, and ask children what they (realistically) think is an appropriate solution. Children can discipline themselves pretty strictly if given the chance, and it is hard for them to argue against rules that they set for themselves.
[->0] - http://topics.law.cornell.edu/wex/common-law_marriage
[->1] - http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396:
[->2] - http://www.law.cornell.edu/wex-cgi/wexlink?wexns=USC&wexname=1:7
[->3] - http://www.law.cornell.edu/wex-cgi/wexlink?wexns=USC&wexname=28:1738C
[->4] - /wex/Conflict_of_laws
[->5] - /wex/Constitutional_law
[->6] - http://topics.law.cornell.edu/wex/void_marriage
[->7] - http://topics.law.cornell.edu/wex/voidable_marriage
[->8] - http://www.nolo.com/dictionary/marriage-term.html
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