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Archive for the ‘Family Law’ Category

Sixteen states recognize common law marriages, though several of these states have repealed their laws and only recognize these marriages entered into prior to a certain date. Unmarried cohabitants should check with the state and local laws in their jurisdictions to determine what rights may be available to them.

ALABAMA: The state recognizes common law marriages.

ALASKA: The state does not recognize common law marriages.

ARIZONA: The state does not recognize common law marriages.

ARKANSAS: The state does not recognize common law marriages.

CALIFORNIA: The state does not recognize common law marriages.

COLORADO: The state recognizes common law marriages.

CONNECTICUT: The state does not recognize common law marriages.

DELAWARE: The state does not recognize common law marriages.

FLORIDA: The state does not recognize common law marriages.

GEORGIA: The state recognizes common law marriages entered into before January 1, 1997.

HAWAII: The state does not recognize common law marriages.

IDAHO: The state recognizes common law marriages enter into before January 1, 1996.

ILLINOIS: The state does not recognize common law marriages.

INDIANA: The state does not recognize common law marriages.

IOWA: The state recognizes common law marriages.

KANSAS: The state recognizes common law marriages.

KENTUCKY: The state does not recognize common law marriages.

LOUISIANA: The state does not recognize common law marriages.

MAINE: The state does not recognize common law marriages.

MARYLAND: The state does not recognize common law marriages.

MASSACHUSETTES: The state does not recognize common law marriages.

MICHIGAN: The state does not recognize common law marriages.

MINNESOTA: The state does not recognize common law marriages.

MISSISSIPPI: The state does not recognize common law marriages.

MISSOURI: The state does not recognize common law marriages.

MONTANA: The state recognizes common law marriages.

NEBRASKA: The state does not recognize common law marriages.

NEVADA: The state does not recognize common law marriages.

NEW HAMPSHIRE: The state recognizes common law marriages but only for inheritance purposes.

NEW JERSEY: The state does not recognize common law marriages.

NEW MEXICO: The state does not recognize common law marriages.

NEW YORK: The state does not recognize common law marriages.

NORTH CAROLINA: The state does not recognize common law marriages.

NORTH DAKOTA: The state does not recognize common law marriages.

OHIO: The state recognizes common law marriages entered into prior to October 10, 1991.

OKLAHOMA: The state recognizes common law marriages.

OREGON: The state does not recognize common law marriages.

PENNSYLVANIA: The state recognizes common law marriages.

RHODE ISLAND: The state recognizes common law marriages.

SOUTH CAROLINA: The state recognizes common law marriages.

TENNESSEE: The state does not recognize common law marriages.

TEXAS: The state recognizes common law marriages.

UTAH: The state recognizes common law marriages.

VERMONT: The state does not recognize common law marriages.

VIRGINIA: The state does not recognize common law marriages.

WASHINGTON: The state does not recognize common law marriages.

WEST VIRGINIA: The state does not recognize common law marriages.

WISCONSIN: The state does not recognize common law marriages.

WYOMING: The state does not recognize common law marriages.

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Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony, or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of one spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage and the requirements of each are listed below. In addition, various other states will recognize a common law marriage if it was valid in one of these states and meets these requirements, even though those states do not themselves have statutes providing for common law marriages.

  • Alabama. In this state, the parties must agree to be husband and wife, they must have the mental capacity to enter into and understand such an agreement, and they must consummate the marital relationship.
  • Colorado. In order for a common law marriage to exist in Colorado, the relationship must be proven by the cohabitation of the common law spouses and their reputation for being married.
  • District of Columbia. In the District, a common law marriage is established by the parties’ explicit intent to be married and by their cohabitation.
  • Iowa. A common law marriage is established in Iowa by the parties’ intent and agreement to be married, their continuous cohabitation, and their public declarations that they are husband and wife.
  • Kansas. In Kansas, the man and woman must have the mental capacity to marry, they must agree to be married at the present time, and they must represent to the public that they are married in order for a common law marriage to exist.
  • New Hampshire. This state recognizes common law marriages only upon the death of one of the spouses. In other words, common law marriages are recognized in New Hampshire for inheritance purposes only.
    • Montana. In Montana, the parties must have the capacity to consent to marriage, they must agree to be married, they must cohabitate, and they must have a reputation of being married.
    • Oklahoma. The parties must be competent, agree to enter into a marriage relationship, and cohabitate in order to be considered as having a common law marriage.
    • Pennsylvania. A common law marriage is established in Pennsylvania by the exchanging of words between a man and a woman indicating an intent to be married at the present time.
    • Rhode Island. In Rhode Island, a common law marriage exists if a man and woman have a serious intent to be married and engage in conduct that leads to a reasonable belief by others in the community that they are married.
    • South Carolina. In this state, if a man and woman intend for others to believe they are married, a common law marriage may be established.
    • Texas. If a man and woman in Texas sign a form provided by the county clerk, agree to be married, cohabitate, and represent to others that they are married, a common law marriage exists.
    • Utah. In Utah, a common law marriage is established if the man and woman are capable of giving consent and getting married, if they cohabitate, and if they have a reputation of being husband and wife.

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In times past, particularly the frontier days, it was common for states to consider a woman and man to be married if they lived together for a certain length of time, had sexual intercourse, and held themselves out as husband and wife, even though they never went through a marriage ceremony. Such a marriage was often called a common-law marriage.

Today, at least three-quarters of the states no longer recognize common-law marriages. The remaining states recognize common-law marriages, but with significant restrictions. In order for there to be a legal common-law marriage (in the states that recognize them), the couple must: have the capacity to marry; regard themselves as husband and wife; live together; and clearly represent themselves to others as being husband and wife. Merely living together is not enough to create a marriage.

If a common-law marriage is valid, the partners have the same rights and duties as if there had been a ceremonial marriage. An interesting problem occurs if a couple had a valid common-law marriage in a state that recognizes common-law marriages, but then moved to a state that does not recognize common-law marriages. Would the marriage still be valid? Under principles of conflict of laws, the answer usually would be “yes.” Conflict of laws principles generally state that if a contract (in this case a marriage agreement) is valid in the place in which it was created, it will be treated as valid in a state to which the parties move, even though the parties could not have entered into a such an agreement in the new state.

A common-law marriage that is legal may end only with a formal divorce. There is not a United States counterpart to the tradition in Muslim law that allows a divorce to be accomplished by one party to the marriage–in Muslim law, that’s the husband–pronouncing the “Talek”: “I divorce thee. I divorce thee. I divorce thee.”

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When the Rich Split its sky’s the limit for child support 
Raising children today is expensive. Ask any number of parents. You are likely to hear the same thing: costs for everything from clothing to education seem to endlessly rise. How much money does it take to raise a child today? $500 a month? $1,000 a month? Or maybe more? Definitely more according to the Westchester, NY judge who handled Sean “P. Diddy” Combs’ case. The judge determined $35,000 a month in child support is a reasonable sum for the star to pay the mother of his first child. Combs’ attorney has complained the case is less about child support than “adult support.”
When parents split, one of the most contentious elements of the divorce is bound to be the care of the children. States have specific guidelines for determining child support amounts. The child support number crunching is typically based on factors like the net income of the parents, percentage of time the children spends with each parent, etc.
But, how much money does it really take to raise a child today? $500 a month? $1,000 a month? Maybe more? According to the Westchester, NY judge who handled Sean “P. Diddy” Combs’ case, it costs about $35,000 dollars more.
Yet, in the world of the rich and famous, requests for monthly child support often figure in the tens of thousands of dollars. But just how does one justify such “needs” in splits from wealthy spouses? Court records provide some interesting insight into the extravagant lifestyles of the children involved.

Take, for example, the case of Kirstie Alley and Parker Stevenson. Stevenson proclaimed he and Alley provided their children with “bountiful material possessions” throughout their marriage. Among the examples was a life size baby giraffe rocking horse costing $10,000 – only slightly more than your average toy. Along with the possessions came events of equal lavishness. Parker detailed annual Halloween parties complete with marching bands, cavalrymen and petting zoos that cost approximately $20,000-25,000. During Christmas festivities, the couple would fly in “The Santa Claus to the Stars” and spend $30,000-40,000 just on Christmas gifts. Considering this level of luxury, it isn’t the least bit surprising that a parent might request a higher numbers than in the more typical case.

Countless court requests over the last decade suggest Alley and Stevenson’s story is a norm for wealthy couples. In 1995, Jim Carey’s ex-wife Melissa requested an increase in child support payments from the $10,000 a month Carey had been ordered to pay. The former Ms. Carey saw the sum as insufficient to cover new expenses as their daughter grew older. Justification for the higher monthly price tag came from the need for horseback riding lessons, personal trainers, headshots, and a projected $200,000 pilates and music practice studio.

To say the least, the above expenses might seem over-inflated to the average parent. However, these figures pale next to the requests of Lionel Ritchie’s ex-wife. Richie’s child-related expenses included annual boarding school fees of $125,000, a monthly clothing expenditure of $750-$1,000 for each of her children, and at least $1,000 a month in gifts for other children’s birthday parties. Even the friends of such children are not to be left wanting after these couples split. While Ms. Ritchie’s numbers are certainly impressive, her children seem underprivileged in comparison to those of Lisa Kerkorian, ex-wife of perennial Forbes lister Kirk Kerkorian. Lisa provided a Los Angeles judge with child rearing costs of an unprecedented $323,000 a month. She claimed $3,386 a month for “French/ballet/tennis/piano/riding” lessons, a cash-on-hand estimate of $5,000 a month and $1,000 a month for toys/videos/books.

While the numbers above may seem absurd, child support is heavily based on the financial resources of the parents. In cases like those above, there is often a large income gap between the two parents. Courts typically consider the standard of living the child would have enjoyed if the marriage had continued. With that in mind, claims by ex spouses for continuing Junior’s French lessons in Paris or throwing birthday parties with $10,000 price tags aren’t so crazy.

After all, it wouldn’t be fair to deprive the child of a particular lifestyle just because mommy and daddy can’t get along. Ultimately, most of us don’t have to worry about shelling out $35,000 a month in child support. And if we are in the position to pay that kind of money, sympathy may not come fast from the public.

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Top 10 Things NOT to Do When You Divorce
As anyone who’s gone through a divorce can tell you, the process is rarely easy. Tensions run high, and couples often make poor decisions in the heat of the moment. Given the mountain of financial, practical and emotional details that have to be sorted, it’s not surprising so many couples wind up making critical mistakes on the road to divorce. That said there are a number of key things you should do, or more specifically not do, to lessen the chance you’ll regret your decisions later on. Here are the top 10 tips on what to avoid when filing for divorce.
10. Don’t Increase Your DebtDivorce is expensive. On top of attorney’s fees, you will need money to set up a new household. Though it may be difficult to make ends meet, you should get used to having less now. Remember, your legal bills and court costs may come due before you receive your first payment of alimony or even your share of the marital property. While it may seem stressful, the freedom you’ll enjoy down the line will be well worth the struggle.9. Don’t “Settle” Early

Just because you want out of your marriage immediately doesn’t mean you should forfeit your financial security. Make multiple copies of all of your important financial documents:pension statements, tax forms, brokerage and mutual fund statements, credit card statements, and other records. It will make you aware of what you own and even what you owe. Make sure that you and the children will continue to have health insurance during and after the divorce proceedings. While you are still married to your spouse, an illness or accident can change how property is divided. If you and your spouse can work out an amicable agreement on your own, you can file what’s known as an “uncontested” divorce. This will save you both time and money in court costs. If this is simply not possible, you may want to hire a professional mediator or an attorney. If you decide to retain legal counsel, remember to bring 3 things to the first meeting with your lawyer so you can assess what you will need once separated: a balance sheet listing the family’s assets and debts, an accounting sheet of your income and expenses, and your tax return.

8. Don’t Forget About Taxes

Typically, the person who is awarded custody of the children gets the house. But the house may not be the best deal. If you can’t afford the mortgage, taxes and upkeep on the house, you want to ask for the investment portfolio of equal value instead. However, before declaring yourself king or queen of your block, remember:single people are not allowed to shelter as many capital gains from taxes. Stocks can also be at issue. Newly-purchased stocks may be more desirable because they will cost you less in capital gains taxes.

7. Don’t Wait Until After the Holidays

You already know the holidays are not going to be difficult. So why wait? Divorce lawyers often see an increase in clients before, during, and after Christmas. It’s also easier to get used to an empty home before the holidays. If you wait (and fight) through the season, you may destroy any chances for an amicable spit and wind up hashing out your differences in court.

6. Don’t Refuse to See a Therapist

Seeing a therapist can help you get through the range of emotions that you will experience during your divorce. It is a good idea to get help before you become extremely depressed or angry. A therapist is not just someone to talk to. They are also a professional who can show you how to relax, how to talk to your kids, and how to remain calm in court. Most importantly, a therapist can help you figure out how to become self-sufficient.

5. Don’t Take It Out On the Kids

Children need a supportive environment to deal with divorce. Minimize the amount you talk about the process. It will give you more time to be there for them. Refocus your energy so you can attend their school and after-school events, help them with homework, and take them out once in a while to the movies or the zoo. When you are relaxed, they get more relaxed. Though you should be comfortable talking with your children about the divorce, the point of this divorce is to relieve stress on you and your family.

4. Don’t Sleep With Your Lawyer

It’s easy to get close to the one person who is on your side. But it’s also a big mistake. Some states prohibit all sexual activity between an attorney and client. Other states allow an attorney and client who had a sexual relationship before the case to continue the relationship. In either case, sleeping with your lawyer can compromise your attorney-client communications because you may be charged with adultery for the infidelity.

3. Don’t Dismiss the Possibility of Collaborative Divorce or Mediation

In a collaborative divorce, you can get the help of professionals—attorneys, divorce coaches and therapists, to divide property and manage emotional stress. Some critics of collaborative divorce believe that attorneys, divorce coaches and therapists who engage in collaborative divorce are not really experts, and cost too much time and money. But the majority of jurisdictions with collaborative divorce have stated that collaborative divorce is more cooperative and less adversarial than traditional divorce.

Mediation is different. Only one third-party professional—a divorce mediator—helps you and your spouse reach an agreement. Mediation is more of an-ongoing process than a one-time intervention. Although lawyers are generally not allowed into mediation sessions, you can consult a lawyer at any time during the process to make sure you are getting the right result.

2. Don’t Forget to Change Your Will

Divorce does not automatically revoke a will. If you want to prevent your soon-to-be-ex-spouse from receiving the monies and privileges granted them in your will, you need to update your will. You can re-do a will at any time. But if you die before you are granted a divorce, and you have left your spouse nothing, he or she can sue and recover part of your estate.

1. Don’t Get Pregnant

Having a baby during your divorce complicates a lot of things, and could even hinder your right to divorce. In November 2004, a Spokane County, Washington judge refused to allow Shawnna Hughes, a pregnant woman, to divorce her abusive husband. Hughes’ husband is not the father of her child. But because Hughes became pregnant during the divorce proceedings, state law presumes Hughes’ husband to be the father of her child born up to 300 days after her divorce. The judge refused to grant Hughes a divorce because he was concerned there would be no father to take financial responsibility for the child. Although many states now grant single parents the same rights as married ones, having a child when you’re in marital limbo can be problematic.

One Final Note

Putting aside strong emotions in favor of cooperating with your spouse and managing the thornier issues of your separation with a calm and level head will definitely pay off in the long run. Both of you will make wiser decisions and come out of the process with fewer bruises. After the agreements are ironed out and the papers are signed, if you still feel the need to express yourself, you can always sit down to dish up the dirt in your tell-all memoir.

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Men v. Women: Who does better in a divorce?
While the walk down the aisle ends in marital bliss for many couples, for an equal number the end of the aisle is a place far, far away from happily ever after. People who divorce often do so in eager anticipation of reclaiming their lost independence, forgotten autonomy and an identity lost during the course of the marriage.
Upon divorce, a couple’s marital property, property acquired by the two during the course of their marriage, is divided up according to the applicable state law. Parties may divide and settle their property 50/50 or in some other arrangement depending upon the given laws. The hope is that the parties are treated fairly.But even in a situation where all the assets are divided 50/50, divorced women may find that a seemingly fair settlement is still far from equitable. Women are typically awarded custody of the children. Because our predominant social values suggest that children are best situated with their mothers, women often do the lion’s share of child rearing in divorced families, even in shared custody cases.

Any parent who has ever fought a custody battle knows that child care responsibilities are a privilege, not a burden. Unfortunately, most divorce settlements fail to account for the damaged future earning potential of a woman with child care responsibilities. Since mothers usually take some time away from their careers, and since women still earn slightly less than men, it is fair to say that most women, even prior to divorce, have lower earning power than their male spouses.

The problem of lower earning power is exacerbated by child care responsibilities. They reduce a woman’s available work hours, thereby making it more difficult for her to increase her income through promotions, client cultivation and so forth. This marked reduced earning capacity is not factored into a divorce, since settlements focus on dividing marital property.

Ultimately, the overall economic quality of a man’s life, based on earnings and amount spent on living expenses, increases after his divorce. He continues to earn more but bears fewer family expenses. The overall economic quality of a woman’s life, post-divorce, decreases.

Of course, both parents are expected and legally required to contribute to the cost of raising their children, but the law still does not provide a mechanism to compensate a woman for the earning potential she has lost based on her decisions to marry and have children. Women often opt for careers that they feel will be more conducive to motherhood, working lower paying jobs because of the fewer hours they require.

A difficulty in reforming marital property laws to compensate these women lies in the fact that many women, even in today’s modern world, make career decisions based almost entirely on their family plans. Thus, a college professor who might have become a successful businesswoman had her family plans been different, has no way to show a court her lost earning potential. Her decision to take a lower paying job cannot be weighed by the court, since there is no real evidence of material economic damage.

The objective of a divorce court is to give each party what he or she fairly deserves based on their earnings during marriage. It is next to impossible to factor the broad social pressures that shape women’s career decisions into a given divorce settlement.

Legal scholars must either find a way to assess the lost earning power of the female spouse, or women as a collective must find a way to have their families and make honest career decisions too. The Medieval Period may be long gone from our history, but there are still some remnants of the dark age of divorce law at work in our courts today.

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How Do Family Courts Split Up Debt upon Divorce?
Debt may be as American as apple pie and baseball. After all, most American couples owe a staggering amount of money. They have mortgages on their homes, loans for their cars and use credit cards for both real emergencies and “emergency” luxury purchases. That debt may seem inconsequential when you are nesting in wedded bliss and everything is right in paradise, but if the marriage falls apart, who gets left holding the bills?
Family Court and the Bills

When people file for divorce, their first thought is frequently about their assets. However, debts are just as important since they also factor into a couple’s net worth. Look at every bill and financial statement that comes into your house to get an accurate picture of your economic position. Both spouses should have equal access to the family’s financial data and be involved in important money decisions.

As part of the divorce judgment, the court will divide the couple’s debts and assets. The court will indicate which party is responsible for paying which bills while dividing property and money. Generally, the court tries to divide assets and debts equally; however, they can also be used to balance one another. For example, a spouse who receives more property might also be assigned more debt.

It’s important to note that laws for dividing debts and assets vary by state. Some states take into account the assets and debts each party brought to the marriage. In states where community property rules, everything in the marriage is owned equally. Of course, one must also keep in mind that a prenuptial agreement would affect any settlement.

When Your Former Spouse Doesn’t Pay

Sometimes, people do not or cannot pay the debts they were assigned in the divorce settlement. In these instances, the creditors may come after the spouse responsible for the debt, even though originally both parties were responsible for the loan. Although this may seem unfair, it is actually done to protect the rights of the creditor.

So, what is the best thing to do if your ex isn’t paying and his credit card company is hounding you? You can petition the court to enforce the divorce agreement. Your spouse must then appear in court to explain why the order is not being followed and may be punished with fines or jail time.

If you can afford to, pay the debt and keep proof of your payment. Then, notify the family court and ask for assistance in getting reimbursed from your ex.

‘Til Bankruptcy Do Us Part?

Like the chicken and egg, no one is exactly sure which came first: divorce or bankruptcy. Sometimes the financial strain of a bankruptcy can be the last straw and a couple splits. Other times, the result of a divorce settlement is that one or both parties cannot pay their assigned debt and it’s straight to bankruptcy.

The important thing to note is that filing for bankruptcy does not stop payments for child or spousal support. Bankruptcy court will keep other creditors away, but court ordered family support maintains priority in bankruptcy judgments.

Best Divorce Debt Is No Debt

Debt adds complexity to a divorce and keeps ex-spouses connected just when they are trying to separate. The best scenario is to clear debt before or during divorce. Barring that, it is critical to have a clear picture of your finances so you can make sure assets and debts are both appropriately dealt with in court. If all goes well, you will be building, not breaking, the bank.

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