The statutory requirements for common-law marriage may differ depending on the jurisdiction. However, many states have similar basic requirements such as
- Consent of the parties to be husband and wife
- Mental capacity for consent (including minimum age requirements)
- Cohabitation (continuous in many jurisdictions)
- Parties holding themselves out to the public as a married couple
- Intent of couple to be married
In some states, the couple must also sign a form indicating their agreement to live as a married couple and their intent to abide by commonly held marital duties and obligations. Other states recognize common law marriage between couples only before a certain date. For example, in Georgia, a couple must have entered into a common law marriage prior to January 1st, 1997, anything after that date will not be recognized as a marriage by the state and will not be enforceable or valid. Yet in other states, common law marriages are only recognized by the state upon the death of one of the spouses. If the common law marriage is valid in the state, it will be considered a marriage for inheritance functions only.
Ending a Common-Law Marriage
Even though some states recognize common-law marriage, there is no common-law divorce those states. If a couple married at common-law wishes to terminate their marriage, they must do more than stop living as husband and wife to consider the marriage over. The marriage may not end the same way it was created, instead, there must be a formal procedure and legal process. In most states, the termination of a legal “ceremonial” marriage and a common-law marriage are the same. Parties must file a complaint with the court to terminate their marriage; forms may be for divorce, dissolution of marriage or annulment depending on the state law and the situation. The specific requirements vary by jurisdiction and are contained in state statute. The divorce complaint may also include provisions for distribution of property or assets, spousal maintenance or alimony and custody. It is important to speak to an attorney in your jurisdiction to learn more about the laws regarding common-law marriage and termination of common-law marriage in your state.
Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.
Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency’s selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.
Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.
Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including
- The child’s standard of living before the parents’ separation or divorce
- The paying parent’s ability to pay
- The custodial parent’s needs and income
- The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)
When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent’s income through a remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child’s home-state court may be stuck with the reduced amount.
Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer’s new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state’s court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer’s credit report.
- The child’s age
- The child’s gender
- The child’s physical and mental health
- The parents’ physical and mental health
- The parents’ lifestyles
- Any history of abuse
- The emotional bonds between the parent and the child
- The parent’s ability to give the child guidance
- The parent’s ability to provide the basic necessities, such as food, shelter, clothing and medical care
- The child’s routines, including home, school, community and religious
- The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
- If the child is above a certain age, the child’s preference
- Who has been the child’s primary caretaker?
- One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
- The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse’s response.
- The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
- The parties, through their attorneys, engage in “discovery,” during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
- The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
- If a settlement is reached, the agreement is submitted to the court.
- If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
- At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
- Either or both parties can appeal the judge’s decision to a higher court.
The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.
The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse’s name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party’s lawyer may help with this issue through discovery, During discovery the parties’ attorneys’ trade documents that disclose each party’s income, assets and liabilities. In addition, each spouse is usually deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.
The terms of such separation agreements vary, but the following items are usually addressed:
- The spouses’ right to live separately
- Custody of the children
- A visitation schedule
- Child support
- Alimony or spousal support
- The children’s expenses (medical, dental, educational and recreational)
- Property and debt division
- Insurance (medical, dental and life)
- Income taxes
The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse’s contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of “rehabilitation” these spouses can become self-supporting.
Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children’s rights and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.
Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.