FAMILY LAW | BACK TO PRACTICE AREAS
FREQUENTLY ASKED QUESTIONS

I. General Information about Family Law
II. Marriage
         A. Traditional
         B. Common Law
III. Premarital/Prenuptial Agreement
IV. Divorce
         A. Grounds
         B. Fault or No-Fault
         C. Annulment
         D. Alienation of Affection
V. Alimony, Spousal Support and Maintenance
VI. Division of Property
         A. Community Property
         B. Equitable Distribution
VII. Adoption
         A. Public Adoption
         B. Private Adoption
         C. Transracial Adoption
         D. Intra-national and International Adoption
         E. Single-Parent Adoption
         F. Summary of Adoption Procedure
VIII. Child Custody and Visitation
IX. Child Support
X. Conclusion

Marriage

A marriage is a relationship between or among individuals, usually recognized by civil authority and/or bound by the religious beliefs of the participants.  Because marriage often has the dual nature of a binding legal contract plus a moral promise, it is often difficult to characterize.

Traditional

In some form or another, marriage is found in virtually every society.  Marriage has traditionally been understood as a monogamous union.  In some parts of today’s world, polygamy is a common form of marriage.  However, all states prohibit a marriage to more than one person.  Marriage is also prohibited between close family members.  A few of the more common restrictions are:

• A marriage between blood related siblings, parent and child, and aunt or uncle and niece and nephew.
• Generally the minimum age requirement for marriage is 18 years old, although some states permit marriage at a younger age if parents consent to the marriage.
• One or both parties must meet state residency requirements.

It is mandatory in most states that a formal ceremony of some kind be performed with witnesses and a religious or licensed official.

Federal and state laws give married couples many benefits.  Such benefits include:

• Decision making powers about your spouse in case of disability
• Claimant rights for loss of consortium (loss of interest that one spouse is entitled to receive from the other, including companionship, cooperation, affection, aid and sexual relations)
• Certain tax advantages
• Inheritance rights under state intestate succession laws
• Federal benefit rights including disability, unemployment, social security, veterans’ pension and public assistance benefits
• Creating a marital estate fund
• Receive family rates on insurance
• Avoid deportation of a non-citizen spouse.

In some instances, many couples find it advantageous to consult an attorney about entering into a premarital or prenuptial agreement.  This is useful as it allows them to work through financial issues and the potential disagreements that can be created prior to marriage.

Common Law

Common law marriage is a marriage that results from the actions of a couple despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state’s statutory marriage laws.  Typically this means that a couple has lived together for a significant period of time, while having an agreement to be married and presenting themselves to the public as husband and wife.  No state stipulates the exact time period, but generally a ten year old relationship is required.  The evidence to prove the necessary intent includes such things as sharing the same last name, filing of joint tax returns and referring to each other as husband or wife.

Not every state permits common law marriages.  As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another.

There are few states that recognize common law marriages:

• Alabama • Colorado • Iowa

• Kansas • Montana • Oklahoma

• Rhode Island • South Carolina • Texas

• Utah • District of Columbia

States permitting certain common law marriages:

• Georgia (if the elements were met prior to January 1, 1997)
• Idaho (if the elements were met prior to January 1, 1996)
• New Hampshire (for inheritance only)
• Ohio (if the elements were met prior to October 10, 1991)
• Pennsylvania (if the elements were met prior to January 1, 2005)

In states which recognize common law marriage, once the requirements are satisfied, the marriage is treated in the exact same manner as any other marriage.  Therefore, a valid common law marriage must typically be ended through a formal divorce process.

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DISCLAIMER: The information you obtain at our firm web site is not, nor is it intended to be, legal advice. It is recommended that you should consult an attorney for individual advice regarding your own situation.

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