FAQ Family Law

Marriage is a legally-binding relationship between two people.

In the US, this means the couple now have a number of legal responsibilities and rights, including:

• Inheriting property from each other
• Making medical and financial decisions for each other
• Ability to open a joint bank account and/or tax return
• Ability to foster and adopt children together
• Sponsoring each other for immigration purposes.

In most societies, marriage is considered a social and cultural institution that is an important part of the community. It is typically marked by a formal ceremony, during which the couple makes vows to each other in the presence of friends, family, and a qualified officiant, such as a minister, rabbi, or justice of the peace.

Same-Sex Marriage

Same-sex marriage is a legally recognized union of two people of the same sex.
On June 26, 2015, the Supreme Court of the United States issued a landmark ruling in the Obergefell v. Hodges case, which recognized that same-sex couples have the same fundamental right to marry as opposite-sex couples in all 50 states.

This requires states to issue marriage licenses to same-sex couples and to recognize same-sex marriages performed in other states. This means that same-sex couples have the same legal rights and responsibilities as opposite-sex couples when it comes to marriage.

There are many different forms of marital agreements (besides a legally-binding marriage) from common law marriage to civil unions and domestic partnerships.

Common Law Marriage

Common law marriage, a.k.a. informal marriage or “marriage by habit and repute,” is a marriage where the couple lives together and portrays themselves as married to the public, but haven’t obtained a marriage license. This means it is not formally recognized by the federal government and in most states.

In fact, common law marriage is only recognized as an official marriage in the following states:

• Colorado
• Iowa
• Kansas
• Montana
• New Hampshire
• Oklahoma
• Rhode Island
• South Carolina
• Texas
• Utah
• District of Columbia

And in these states, the couple has to meet strict requirements, including:

• Both people must be over the age of 18
• The couple must have the intent to be married.
• The couple present themselves out to the public as being married. This may involve using the same last name, introducing each other as “husband” or “wife,” and filing joint tax returns.
• The couple must live together as husband and wife.

Note: If you have a common law marriage in one of the states that recognize it and you split up, you need to file for a divorce.

Civil Unions

Civil unions are a legal arrangement that provides some, but not all, of the rights and benefits of marriage to same-sex couples.

In a civil union, the couple needs to obtain a “civil union certificate” and have a civil union ceremony that recognizes their relationship. They’ll also need to provide necessary documentation (i.e. ID, proof of residence, etc) and pay any state fees.

While civil unions provide some legal protections and benefits to same-sex couples, they are not the same as marriage and do not have all the same legal rights and benefits.

In fact, civil unions are only recognized in these 5 US states:

• Colorado
• Hawaii
• Illinois
• Vermont
• New Jersey

The specific protections and rights provided by a civil union in these five states vary but typically include some or all of the following:

Property rights

Couples in a civil union may have the right to own property together, to inherit property from each other, and to make medical and financial decisions for each other.

Tax benefits

Couples in a civil union may be able to file state tax returns as a married couple and may be entitled to certain state tax benefits.

Health insurance benefits

Couples in a civil union may be able to add each other to their health insurance plans and may be entitled to certain health insurance benefits.

Retirement benefits

Couples in a civil union may be entitled to certain pension and retirement benefits, such as the ability to inherit a pension or the right to receive survivor benefits.

And, civil unions are not recognized by the federal government or in any of the other 45 states. This means that same-sex couples who are in a civil union are not entitled to the same federal benefits and protections as same-sex married couples.
In addition, civil unions can expire, be annulled, or be dissolved. However, the process varies from state to state.

For instance, in some states, a civil union can expire after a certain period of time if it is not renewed

In addition, in some states, a civil union must be dissolved or terminated by either party. The process will look similar to going through a formal divorce process.

In other states, a civil union can be annulled, which means that it is declared void or invalid. This may be possible if one party was not legally able to enter into the union (e.g., because they were already married), or if the union was entered into under duress or fraud.

Given the process varies widely from state to state, we recommend consulting a family law attorney and checking with the relevant government agencies to determine the specific process in your state.

Domestic Partnerships

A domestic partnership is a legally recognized relationship between two people who live together and are in a committed relationship, but are not married.

Domestic partnerships are similar to civil unions in that they provide certain legal protections and benefits to eligible couples who are not able to marry.

While the eligibility requirements can vary from state to state, the general requirements include:

• Both people must be over the age of 18
• Both partners are not married or in another domestic partnership
• Both partners are in a committed relationship and share a domestic life

In addition, in a domestic partnership, the couple must obtain a “domestic partnership declaration.” The couple also have to register their domestic partnership with their state government, provide necessary documentation, and pay applicable fees.

Just like with civil unions, domestic partnerships are not the same as marriage and are only recognized in a handful of states, including:

• California
• District of Columbia
• Maine
• Nevada
• Oregon
• Washington
• Wisconsin
• Hawaii (However, domestic relationships are referred to as reciprocal beneficiaries in Hawaii)

The level of protections that domestic partners have across insurance, tax, retirement and property rights also varies across these states.

In addition, domestic partnerships are not recognized by the federal government or in any state that is not listed above.

If you want to convert your domestic partnership into a legally-binding marriage, it is a good idea to consult a family law attorney. That’s because in some states you can convert a domestic partnership into a marriage. In other states, you have to legally dissolve the domestic partnership before getting married.

The main difference between a prenuptial agreement and a postnuptial agreement is the timing of when they are made. A prenuptial agreement is made before a couple gets married, while a postnuptial agreement is made after a couple is already married.

Prenuptial agreement

A prenuptial agreement, also known as a premarital agreement or prenup, is a legally binding agreement that is made by a couple before they get married.

The most common reasons why you should get a prenup are if you have significant assets, income, or children from a previous marriage.
The purpose of a prenup is to define the financial and property rights of each spouse in the event of a divorce or the death of one spouse.

They can cover a wide range of potential sticky issues like:

• Protection of premarital assets
• Division of assets
• Alimony
• Property ownership
• Business ownership
• Division of debt

Prenups must meet certain legal requirements in order to hold up in court. For instance, infidelity clauses and anything related to child custody and child support won’t hold up in divorce court.

There are two parts to getting a prenup. First, it is having the conversation and getting on the same page as your significant other on what should be in the prenup.

Then, you need to go through the legal process of getting it drafted and filed. For this part, it is a good idea to consult with a lawyer to ensure that your prenup is properly drafted.

Postnuptial agreement

On the other hand, a postnuptial agreement, also known as a postmarital agreement, is a legally binding agreement that is made by a couple after they are married.

Like a prenup, a postnuptial agreement is used to define the financial and property rights of each spouse in the event of a divorce or the death of one spouse. It can cover all of the same things as a prenup.

The most common reason for a postnuptial agreement is to make changes to financial arrangements, often because of a significant financial event.

Just like with prenups, we recommend consulting with an attorney when drafting one.

Divorce is a legal process that requires a legal reason and court judgment to end the marriage. However, some rules and paperwork may vary from state to state. For instance, a few states require a married couple to live apart and separate before filing for divorce.

During the process, the judge will resolve other issues related to the marriage before the divorce is finalized. For instance, some issues that will need to be decided include:

• Dividing assets
• Custody and support of children
• Alimony
• Determining who can live in the marital home
• Dividing debts

To start the process, you will need a legal reason, or grounds, for the divorce. There are seven “fault” reasons and a “no-fault” option.

For example, the “no-fault” grounds mean that while neither spouse blames the other for the failed marriage, the marriage is believed to be beyond repair. On the other hand, in a fault-based divorce, you must prove that your spouse caused the marriage to end, such as through adultery, desertion, or abuse.

Does common law marriage require a divorce?

Living together for an extended period is insufficient to create a common-law marriage. Additionally, not all states allow common-law marriages. So to determine if your common-law marriage is valid, you’ll first need to learn if the state recognizes your common-law marriage. The requirements can vary per state.

If the court determines your common-law marriage is valid, you will need to obtain a traditional divorce to end it.

What if both spouses don’t agree to divorce?

The divorce process is smoother if both parties agree to end the marriage. However, you don’t need your spouse’s agreement to proceed with a divorce. The law does not force you to stay in a marriage.

There may be rules or time limits that you must adhere to throughout the process if the spouse doesn’t agree to the divorce, depending on where you live. But, you are legally entitled to a divorce even if they don’t agree or refuse to sign the divorce papers.

Do spouses have to go to court to get a divorce?

While a divorce is only final when a judge signs a written divorce decree or judgment, you do have options other than going to court to resolve the issue.

Spouses that can work together to reach an agreement on all issues could consider filing for an uncontested divorce. These divorces are faster, simpler, and cheaper than going to court.

Another option is a collaborative divorce, where the spouses’ lawyers help them negotiate the divorce and reach an agreement. If successful, they can avoid going to court and can save money and time.

A legal separation involves a formal decision by the married couple to live separate lives. Most states require the couple to file a request in family court.

There are many reasons a couple would choose a legal separation. Sometimes it is required by the court before the spouses can proceed with a divorce. Some couples may choose a legal separation if their religion prohibits divorce. Other times, a couple selects legal separation if they may hope for a reconciliation.

Like a divorce, a legal separation requires the couple to divide assets, make custody decisions, and freezes a spouse’s ability to spend freely from joint accounts.

A legal separation doesn’t end the marriage. As a result, neither spouse can legally remarry.

Since the couple is still married in a legal separation, they don’t have to remarry if they change their mind about the separation. The couple simply has to submit a request to the court. If a divorced couple changes their mind, they have to remarry.

One spouse must file a legal petition requesting to terminate the marriage to get a divorce. The petition typically must show that at least one person meets the state’s residency requirements for divorce. Additionally, a reason or grounds for divorce must be provided. Different states may have further requirements.

The divorce process can take 12 months or more. So you can request temporary court orders at this point to address child support, child custody, and spousal support until the divorce agreement is finalized.

Next, you must file a “proof of service” with the court. This shows the court that you met the requirements for serving your spouse a copy of the divorce petition.

At this point, you and your spouse can negotiate to try and reach an agreement, including decisions about the division of assets, child custody, child support, and alimony.

If successful, you can avoid going to court. However, if you and your spouse can’t agree on the details, you’ll have to have a trial before a judge. In this case, the judge will make the decisions about the divorce agreement after hearing both sides, such as how assets are decided, child custody and support arrangements, and alimony.

Once an agreement is reached, a judge signs the judgment of divorce, which legally ends the marriage.

Divorce mediation

Divorce mediation provides an alternative way to negotiate your divorce agreement without going through a court trial.

In mediation, a trained, third-party mediator assists you and your spouse in reaching an agreement so you can finalize your divorce. For instance, a mediator may help a couple address issues regarding the division of assets, child support, child custody, and alimony.

Unlike a judge, a mediator does not make the decision. Instead, they facilitate the discussion to help the spouses come to a mutual agreement.

Divorce mediation is typically cheaper and faster than going before a judge. Plus, there is no public record, and the spouses have more say and control over the decisions made.

Divorce decree vs. divorce certificate

A divorce decree and a divorce certificate are proof of divorce. But, these documents are not the same.

A divorce decree or judgment of dissolution (JOD) is the court order that officially ends the marriage. It includes the court’s final orders regarding the divorce agreement, such as the division of assets, child support, and alimony.

However, a divorce certificate is an official document that provides proof of the divorce. It’s issued by the health department or office of vital records, depending on the state. It’s a brief document — usually one page. It can be used when applying to change your name or for a marriage certificate but does not include the agreement’s details like the divorce decree.

Alimony or spousal support involves one spouse paying the other either due to a court order or the divorce agreement.

Its purpose is to ensure that both parties can meet their financial needs. One spouse has to prove they were “dependent” on their spouse during the marriage. Alimony is not dependent on gender and can be awarded to either spouse.

Alimony is not included in all divorces. It is typically temporary. For example, it may be awarded temporarily during the proceedings. Sometimes, alimony is awarded as part of the divorce agreement, but it is usually for a set amount of time. However, there are some rare situations where it is permanent and lasts for the rest of the recipient’s life.

State laws set the rules that judges use when deciding on alimony payments. The court determines how much and for how long alimony is received based on the state’s guidelines.

Divorce Agreement

The divorce agreement outlines the terms of the alimony. Additionally, states may vary on aspects of alimony and enforcement. For instance, some states allow for alimony payments to be terminated if the recipient remarries — but not all.

Another common situation is whether the alimony agreement can be modified. Most states will allow a provision to be included in the agreement that addresses under what conditions the alimony could be modified. Typically, this may occur if there is a significant change in the person’s situation.

For divorces finalized after January 1, 2019, the spouse receiving alimony isn’t required to report it as income on their federal tax returns. Additionally, there is no deduction on federal taxes for the paying spouse.

A paternity action is a legal process to establish who is legally the father, especially when parents aren’t married or if there is a conflict.

This civil action can be started by the mother to gain child support from the alleged father or filed by the biological father to receive parental rights.

Unmarried parents

This determination is particularly essential for unmarried parents as it helps establish the following:

• Child support
• A father’s legal rights
• The child’s eligibility to receive benefits through the father
• The child’s access to health information from the father’s side

Paternity ensures that both legal parents’ rights and responsibilities are upheld. However, a separate legal process may be required to establish the specifics of any child support and custody agreements needed.

There are multiple ways to establish paternity that fit different situations.

In most states, paternity is determined by:

Paternity by assumption

The husband is presumed to be the legal father if the mother is married. However, a married man may legally challenge paternity if he believes he is not the father. Genetic testing (a DNA test) can be requested in this case.

Paternity by agreement

Both parties can sign an Acknowledgment of Paternity (AOP) form (also called an Affidavit of Paternity) if neither parent disputes paternity. This form helps unmarried parents voluntarily establish paternity and is signed by both parents. Hospitals may offer this form to a father present at the child’s birth. It can also be signed after the child’s birth. However, a fee may be involved, which includes changing the birth certificate.

Paternity set through legal action

For paternity disputes, the mother or father may file a paternity action to use the legal system to establish paternity. DNA testing can be court-ordered in contested paternity. The court can also use circumstantial evidence, such as if a man has publicly presented himself as the father.

Paternity laws vary per state. So it’s important to know the rules where the child was born. For instance, some states have a statute of limitations for establishing paternity, such as requiring a paternity suit to be filed before the child is 18 years old. However, other states have no restrictions on when you can file a paternity suit.

Paternity also can be established without the father, such as if the father died before legally determining paternity. Taking this step can ensure the child is legally eligible for any financial benefits or assets in the father’s will. Additionally, if a father doesn’t show up to the court date in a paternity action, the judge can still make him the legal father.

The specific process of filing a paternity action can vary per state. However, in most states, the mother or alleged father can file a paternity action to start the legal process.

Legal process

The case will typically start with the filing party completing paperwork with the court and paying a filing fee. Papers regarding the lawsuit will be served to the other party. That person has a set amount of time to respond to the complaint. A court date will be set.

An agreement can be reached before the court date if both parents agree to the legal paternity and sign a consent order. The court will typically adopt that order as the final order.

The case will be presented before a judge if an agreement isn’t reached before the court date.

Both parties must show up on the court date. If the alleged father does not appear, the judge can choose a default judgment — making him the legal father.

The court may also order a genetic test to help establish paternity.

In some states, paternity cannot be legally determined before the child is born. However, the legal process can often start before the child’s birth.

If a paternity action is filed against you, you should respond. If you don’t, a court can reach a final order without you, leaving you unable to present your side.

Papers

When you’re served, read the papers (or complaints) carefully, so you understand what the other party is requesting. Additionally, keep track of your deadline to ensure a default judgment isn’t entered against you.

You will have time to gather information and evidence to present your side and to respond to the complaint.

For instance, the alleged father can file an answer or response, including information such as genetic testing to show he is not the biological father.

However, depending on the circumstances, the court can still decide that a man is the legal father, even if he isn’t the biological father. So, it’s important to carefully respond to the paternity action and address all complaints listed.

The first step is to ensure legal paternity has been established. The child’s mother can initiate a paternity action against the alleged father to set legal paternity. If the alleged father refuses to acknowledge paternity, the courts will often request for him to complete genetic (DNA) testing.

Refusal

The alleged father can legally refuse to complete the testing. However, he will face consequences. For example, a judge can hold him in contempt of court, require him to pay fines, or enter a default judgment stating he is the legal father.

Once paternity is determined, both parents have legal rights and responsibilities regarding the child, including financial obligations, visitation, and custody.

A father that refuses to acknowledge a legally established paternity is still responsible for the child, including any required child support.