Family Law

Domestic relations law is another name for family law. Yet, this area of the law extends beyond merely the family. Rather, it deals with the laws governing the familial relationship, which has changed substantially over the years.

Family law emanates from five sources:

• Each state’s statutory and constitutional law.
• The United States Constitution.
• Federal law directly addressing family-law matters, ranging from child support enforcement to interstate custody disputes.
• Tax and welfare laws, both federal and state, which provide or withhold benefits on the basis of marital status, dependency, and family configuration.
• Regulation, such as zoning laws (e.g., restricting a large proportion of living space to “single-family” uses).

Yet, despite the variety of sources regulating family law subjects, family law remains overwhelmingly in the hands of the states, mostly because of wariness on the part of federal legislators and judges to enter the thicket of family regulation. Given that marriage involves an institution of public interest, it is usually up to the states to regulate this type of conduct.

An example of state regulation involves the formalities involved in obtaining a marriage license. Historically, before couples were granted a marriage license, a blood test or other health examination of both parties (to screen for sexually transmitted diseases) was often required as a prerequisite. Today, the number of states requiring blood tests has declined.

Pre-Nuptial (also known as "antenuptial") Agreements

Approximately 2.3 million people marry each year. Of those marriages, over half will end in divorce. When national divorce statistics illustrate that the probability of a marital breakup is greater than 50/50, it should come as no surprise that the use of premarital (sometimes called either “prenuptial” or “antenuptial”) agreements is on the rise.

A prenuptial agreement is made before and in contemplation of marriage. Typically, the agreement discloses each party’s assets and debts and specifies what happens to those items upon death or if the parties divorce. When persons are engaged, their relationship is fiduciary in character. Accordingly, there is an affirmative duty on each partner to disclose his or her assets and income. Failure to do so renders the agreement invalid. 

There are three basic requirements for prenuptial agreements:

1. the contract must be in writing and signed by both parties,
2. there must be consideration (something must be given up by both parties), and
3. there must be no "overreaching" in the contract (there must be no fraud involved and the agreement must not be fundamentally unfair).

Marriage

Marriage is the civil status or relationship created by the legal union of a man and a woman as husband and wife. It imposes certain duties and responsibilities upon each to the other and to society. These last until the death of one spouse or the legal termination of the relationship. 

Historically, the purpose of marriage in practically all cases was for procreation. The social purpose was to provide an orderly setting for child rearing and economic security. In addition, it legalized sexual activity that was otherwise punishable. Today, of course, attitudes as to the purpose and the effects of marriage have changed.

Requirements for a Valid Marriage
Marriage creates a status as well as imposing rights and duties upon the parties to the marriage. To enter a valid marriage the following requirements must be met:

1. Competency: The parties must be competent to marry, i.e., free of legal disabilities. Possible legal disabilities include: consanguinity (when the parties are too closely related to each other); one party being underage; health problems (e.g., venereal disease); mental incapacity; and preexisting marriage by one or both parties.
2. Mutual present agreement: The parties must intend in good faith to enter into a true and complete marriage relationship, not a sham.
3. Opposite gender: Based on the U.S. SupremeCourt’s ruling in Obergefell v. Hodges,135 S. Ct. 2584 (2015), parties in a marriage are nolonger required to be of opposite sex. 
   

Common Law Marriage
A common law marriage is an agreement between a man and a woman to enter into the marital relationship without a civil or religious ceremony. The marriage must be valid in all other aspects—e.g., it cannot be a bigamous or incestuous marriage. 

Just living together is not enough to validate a common law marriage; not every couple that lives together intends to be married. There are four requirements for a valid common law marriage:

• The couple must live together;
• The couple must present itself to others as a married couple (e.g., using common surname and filing a joint tax return);
• The couple must live together for a significant period of time (not defined); and
• The couple must intend to be married. 

Most states do not recognize common law marriages. However, even those states will recognize common law marriages that occurred in sister states that do allow them.

Dissolution of the Marriage

Annulment
An annulment is the legal process by which a marriage is invalidated retroactively to the date of the inception of the marriage. Most states have statutes which set forth the grounds for annulment. In states which have not enacted such a statute, a court may, nevertheless, annul a marriage based upon its equitable powers.

Generally, states will grant an annulment for the following reasons:

• Fraud in the creation of the marriage
• Duress (one party physically or mentally coerced the other party into the marriage)
• Impotency
• Mental incapacity on the part of either party

Divorce
Divorce will be granted for reasons which are typically enumerated in each state’s statutes. Under the common law, the grounds for divorce must have been the "fault" of one or both of the parties. If a couple simply did not want to live together as husband and wife anymore, but had no specific wrongful conduct on each other's part to allege, they could not obtain a legal divorce. However, under the modern rules, states allow "no-fault" divorces on grounds such as "irreconcilable differences".

Although grounds for divorce vary from state to state, here is a sample list of grounds for divorce:

1. Cruel and inhuman treatment;
2. Abandonment or desertion of the plaintiff by the defendant for a period of one or more years;
3. Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant;
4. Adultery;
5. The husband and wife have lived apart pursuant to a decree or judgment of separation granted by a court for a period of one or more years after the granting of such decree or judgment;
6. The husband and wife have lived separate and apart pursuant to a written Separation Agreement, which must be filed with the office of the county clerk where the parties reside before the requisite one-year separation period begins.

Note that the last two provisions constitute "no fault" divorce provisions.

Financial Aspects of Divorce

Distribution of Property
Most states divide the marital property upon a divorce according to equitable distribution laws, which allow the courts to divide property equitably between the spouses. To aid in that division of property, certain classifications are used.

Separate property acquired before the marriage or by gift or inheritance during the marriage is not divided upon divorce. Rather, the property is returned to its respective owner. Property acquired during the marriage will usually be split close to 50-50.

Some states have community property rules, which inherently define all property owned by the spouses during the marriage as being owned equally be each spouse. Community property states also have exceptions for property brought into the marriage by one spouse and property received by only one spouse as a gift.

Alimony and Child Support 
When a couple separates, a court may order one spouse to pay the other spouse a monthly stipend to allow the second spouse a living. This payment is known as alimony. The alimony rules are based on the theory that the non-wage earning spouse helped the wage earning spouse in building a career and maintaining a job and should be entitled to share in the benefits of that help even if the marriage has dissolved.

Today, alimony awards are generally based upon the needs and abilities of each party, using the following factors:

• Age of the parties;
• Health and physical condition of the parties;
• The earning capacity of the parties;
• Present income of the parties.

Although alimony was originally allowed for women only, today, both men and women are equally eligible to receive alimony. 

A similar concept to alimony is that of child support. After a child's parents have divorced or separated, each parent has a continuing obligation to financially support minor children. As with child custody decisions, courts take into account all of the relevant factors, including:

• The financial resources of the child;
• The financial resources of the custodial parent;
• The standard of living previously enjoyed by the child;
• The physical and emotional condition of the child;
• The child’s education needs; and
• The financial resources and needs of the non-custodial parent.

Many states have set mathematical guidelines to determine exactly how much money must be paid in child support from the non-custodial parent to the custodial parent.