Family Law

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 1

Chapter 53:Family Law

Chapter 53:Family Law

Business LawLegal, E-Commerce, Ethical, and International

Environments

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 2

Premarriage Issues• Promise to Marry

– 19th century courts recognized actions for breach of a promise to marry.

• Today, courts do not recognize this breach.– Persons breaking engagement

could be responsible for costs incurred.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 3

Engagement• Fault Rule: If groom breaks

engagement, woman keeps ring. If she breaks engagement, she returns ring.

• Objective Rule: If an engagement is broken off, the prospective bride must return the engagement ring, irrespective as to which party broke off the engagement.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 4

Prenuptial Agreements• A contract that is entered

into prior to marriage.• Specifies how property will

be distributed up the termination of the marriage either by divorce of death of a spouse.

• Each party must make full disclosure of all assets and liabilities.

• Each party should be represented by an attorney.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 5

Marriage• Legal union between

spouses.• Confers certain legal rights

and duties upon the spouse and the children born of the marriage.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 6

Marriage Requirements• State law establishes

requirements.• Most states require that

parties be a man and a woman.

• Must be of certain age, or have parental consent.

• Marriages between close relatives prohibited.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 7

Marriage License• State law requires marriage

licenses.– Obtained at county clerk’s

office.

• Some states require marriage ceremony.– After ceremony, license is

recorded.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 8

Common Law Marriage• Type of marriage

recognized in some states.– No marriage license required– Certain requirements must be

met– Parties must intend to be

husband and wife– Parties must hold themselves

out as husband and wife

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 9

Parents’ Rights and Duties• Parents have obligations to

provide food, shelter, clothing, medical care, and other necessities.

• Must provide these until child is 18 or emancipated.

• Child neglect if a parent does not provide.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 10

Paternity Actions• Suit to determine identity of

father.– Brought by government to get

financial assistance payments.– Brought by father to establish

if he is biological father.

• Most states presume that the husband of woman who bears a child is the father.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 11

Parent’s Liability for Child’s Wrongful Act

• Parents are not generally liable for child’s negligent acts.

• Parents are liable if their negligence caused their child’s act.

• Some states have enacted child liability statutes.– Make parents financially liable

for intentional torts of child.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 12

Adoption• Person becomes the legal

parent to a child that is not biologically theirs.

• Can be an agency adoption or an independent adoption.

• Procedures established by state.

• Biological parents’ rights are terminated by legal decree or death.

• Court must formally approve.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 13

Agency Adoption• Person adopts child from

social services organization of the state.

• May be open-adoption.– Biological and adoptive

parents introduces before adoption.

– Some states give visitation rights to biological parents.

• Requires court approval.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 14

Independent Adoption• Private arrangement

between biological and adoptive parents, usually through an intermediary.– Attorney– Adoption agency– Stepparent adoption

• Requires court approval.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 15

Foster Care• Children placed under state

care as temporary arrangement.

• State pays foster parent to care for child.

• Arrangement terminated when child returned to biological parents or adopted.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 16

Marriage Termination• Can occur through and

annulment or divorce.• Annulment can occur when

parties lacked capacity or consent. Declaration that marriage never existed.

• Divorce is an order of the court that marriage is terminated.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 17

Divorce• Legal proceeding• Must file a petition for

divorce.– Traditionally, had to prove

fault.– Today, most states are no-

fault.

• Divorce is final when a court orders that the marriage is terminated.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 18

Annulment• Order of court declaring that

marriage did not exist.• Certain ground must be

asserted.– One party lacked the capacity

to consent.– Duress– Fraud

• Children born of annulled marriage are legitimate.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 19

Divorce Proceedings• Commenced with filing a petition

for divorce.• Petition served on other party.• Other party has limited time to

file an answer.• If parties do not reach

settlement, case goes to trial.• Both parties call witnesses and

introduce evidence.• Judge issues a decree of divorce.

– Some states have waiting periods after trial before it is issued.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 20

Settlement• Termination of marriage

could be settled with a settlement.– Mediation frequently

employed

• Divorcing parties must sign a settlement agreement. – Document states that parties

have settled all property rights and other issues.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 21

Division of AssetsTwo types of property:• Separate property owned by

spouse prior to marriage, as well as inheritance and gifts received during marriage.– Each spouse usually is

awarded separate property.

• Marital property acquired during marriage, or separate property which changes title to jointly owned is considered marital asset.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 22

Marital Property• Some states follow the rule of

equitable distribution. – Means fair distribution of property to

both parties of the divorce.

• Other states follow the community property rule which means equal distribution of property.

• Community property means all property acquired during the marriage is divided equally between the individuals.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 23

Division of Debts• Type of debt and state law

determine how they are divided.

• Debts incurred during marriage for necessities are considered joint marital debts.

• Spouses are jointly liable for taxes incurred.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 24

Spousal Support

• Spousal support: also called alimony. Money paid by one divorced spouse to another.– Can be temporary,

rehabilitation, or permanent alimony.

• Spousal support terminates at death of spouse, remarriage, or if they become self-sufficient.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 25

Child Support• Payments made by non-

custodial parent to help pay for the financial support of his or her children.

• Duty to pay continues until child reaches the age of majority or is emancipated.

• Award may be modified based on changed circumstances.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 26

Child Custody• The awarding of legal

custody of a child to a parent.

• Based on the best interest of the child.

• Parent awarded custody is the custodial parent and has legal custody.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 27

Joint Custody• Custody could be joint.• Both parents are

responsible for making major decisions concerning the child.

• Sometimes awarded joint physical custody.– Child spends certain portion of

time being raised by each parent.

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 28

Visitation Rights

• If there is no joint custody, the non-custodial parent may have visitation rights.

• Can order court-supervised visitation.