FORMAL AND INFORMAL MARRIAGE - University of Houston …



Family Law Notes (Chapters 30 – 35)More than 90% of all Americans will marry during their lives.FORMAL AND INFORMAL MARRIAGE Statutory Marriage Requirements usually include:Blood TestsMarriage License (§2.001)– All states. Traditional only issued to man and women (Now gays as of Obergefell v. Hodges, 2015). TX license expires if not married by 90 days. (§2.201) Waiting Periods Before Marriage Ceremony. (72 hours in TX. -- (§2.204)Wedding Ceremony – Civil (Justice of Peace) or Religious. (§2.202) Return license to County within 30 days of ceremony. (§2.206)Apart from “formal” requirements for marriage, some states (TX included) allow for common-law marriages. This grew out of “on-the-range” existence where no priests to be found. To be CL marriage, you need (§2.401(a)(2)):Agreement to be H and WCohabitation (no specific time span in TX)Presentment to others as H & W (“This is my old lady…”If one becomes CL married and later separate, they often must obtain a formal divorce!! TX now requires to assert within 2 years of separation or presumed not married. (§2.401(b)):MINIMUM REQUIREMENTS TO GET MARRIEDIn order to get married, you have to meet certain requirements:Age (§2.101-2.102)– Usually 18 or have consent of adult (14 in Texas). Sixteen – Eighteen with parental consent.Relationship – Can’t marry immediate family. Illegal as incest. (blood or adopted; Cannot marry first cousin in TX after Fundamentalist Mormons).No Bigamy (Mormon constitutional case)Consent – Must be freely and knowingly entering into union (no shotgun weddings or drunks. If one does “accidentally” get married, can have annulled. Another ground for annulment is fraud (e.g. want kids; impotent).Annulment is different from divorce. Divorce is the dissolution of a valid marriage. Annulment declares that a marriage was void and never existed.LEGAL DUTIES AFTER MARRIAGE1.DUTY OF SUPPORT (NECESSITIES)Marriage is considered a legally binding contract. Along with it come certain legal duties. Among these is a duty of support. (§2.501) Thus, a spouse is legally obligated to pay for support of their spouse and children. Thus, we have idea of alimony and child support (DISCUSS CHILD SUPPORT LATER) Most states have preserved the basic idea that a spouse is legally obligated to pay for the other spouse’s necessities (including such things as food, clothing, shelter, and medical care). B/c of this, you often see want ads declaring “From this day forward, I will only be responsible for my debts…./s/”PROPERTY OWNERSHIPProperty owned prior to marriage is separate property. Property acquired during marriage is community property and is owned 50/50 by spouses regardless of who earned it or bought it and without regard to whose name is on the title.(TX now allows for written agreements between spouses to convert property to and from separate property. This is important for creditor protection.)PRIVILEGED COMMUNICATIONSMarital Union used to legally make H & W one therefore some unusual rules evolved. Communications between spouses are privileged and cannot be made to testify against a spouse. Very important in civil and criminal matters. Also, previously, a H could not rape his W. This has now changed in most states.INHERITANCERegardless of what the spouse does in their Will, spouses usually have a statutory election to take a certain portion of the estate and cannot be dispossessed of the marital residence.RESPONSIBILITIES OF PARENTSEven without a marriage, parents are required to support their children. Paternity can be determined with 99.9% accuracy and most state Attorney Generals’ will assist mothers in seeking paternity and child support.1.DUTY OF SUPPORT & SUPERVISIONParent have a duty to support their children until 18 (or year graduate in TX, later). This duty to support can be ended by: Emancipation – legal declaration by courtMarriageJoin MilitaryParents have a legal obligation to ensure children get education and stay out of trouble. Thus, state holds parents responsible for truancy. Some states putting parents in jail if kids don’t go to school or if parents don’t stop kids from doing bad things.MUST NOT ABUSE OR NEGLECT CHILDRENThe government is careful to allow parents to raise their children, but it often becomes necessary to intervene to protect the welfare of a child. This is most common where there is abuse or neglect.Abuse is where a parent inflicts physical, emotional or sexual harm to a child.Neglect is where a parent fails to properly clothe, feed, shelter, educate or tend to the medical needs of a child.All states have laws requiring persons to report abuse of children. (TX makes it a misdemeanor and provides protection from lawsuits where make “good-faith” report.)In severe instances, the state or a private party may actually use abuse/neglect as grounds to terminate the legal parental relationship and take away someone’s kids. Thus, children will be removed by TXDPRS (CPS) and placed in foster care while investigating. Judge will then make temporary orders (usually give to relatives) while state considered how to reunite the family or proceed to terminate. If terminate parental rights, this allows adoption by another, but children over 12 may be asked to consent.Grounds for termination in TX include:Failure to support.Placing child in dangerous situation.Leaving with another and expressing intent not to return.DISSOLUTION OF MARRIAGEToday, about 50% of marriages end in divorce.1.GROUNDS FOR DIVORCEEven where people do not get divorced but just separate, there are reasons to get a Separation Agreement. These include determination of legal and financial obligations, alimony, support and division of property, etc. (TX doesn’t have “Legal Separation” but does have “Temporary Orders” in a divorce context which can last forever.)In order to obtain a divorce, people used to have to prove fault.Fault in a divorce context included:AdulteryDesertionMental / Physical CrueltyInsanityBecause of these requirements, there were often “planned” divorces where parties would agree to perjure themselves with stories of adultery to obtain a divorce. This gave rise to states adopting easier divorce standards. (States like Nevada became famous for quickie divorces/marriages.)Ultimately, most states adopted no-fault divorce based upon grounds of insupportability or irreconcilable differences. This some say, has led to a rise in divorce rates and Louisiana has now passed “Covenant Marriages” into law whereby couples can give up right to no-fault divorce.CUSTODY OF CHILDRENIn ancient times, it was thought that children were always better off with their mothers. This carried forward into law as the tender-years doctrine. This doctrine has largely been abandoned now.Courts now look to the best interest of the child as the standard in awarding custody of children. Custodial and Possessory parents have different legal rights regarding the children. (Grandparent access lawsuits have arisen in divorce context. Now pending before the U.S. Supreme Court.) GOVERNMENT ASSISTANCE FOR FAMILIES36 million people live in poverty in U.S. Poverty level set as a family of three living on an income of $12,158.00 per year. Governmental assistance is available.While these programs are often thought of as the “Welfare” programs that eat up the federal budget, they make up only about 25% of all federal “entitlement” spending. The rest is made up of gov’t programs for middle to upper income Americans that qualify because of age or medical status, etc.SOCIAL SECURITYGet benefits based upon amount paid into your account (Gov’t mailing out status summaries to encourage people to invest to support their own retirement.)Under the Social Security System, there are several types of benefits:Retirement Benefits – Usually get them at age 65. (Average $765.00/mos.)Disability Benefits – Get if blind, injured or too ill to work (Spouse/kids)SUPPLEMENTAL SECURITY INCOME (SSI)SSI was originally intended to assist those with a major disability that prevented employment for a year or more. Because of abuse, the Congress amended this law in 1996 to now consider one disabled if it causes “marked and severe functional limitation”. As a result, many kids have become ineligible for benefits.AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) – WELFARE REFORMAFDC is generally thought of as “Welfare” and was seen as being abused by those within the system that collected benefits “forever”. Thus, in 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act. This law replaced AFDC with Temporary Assistance to Needy Families (TANF). TANF is much stricter than AFDC and has limits on benefits and duration of benefits.Under TANF, after two years, recipients must work or attend vocational training for at least 20 hours per week to continue receiving benefits. There is a five year limit on receipt of benefits, but the law does allow a one year period of transition health benefits and allows payments to cover child care. Minor parents must live with adults and continue their education in order to get TANF benefits.FOOD STAMPS/ MEDICARE/ MEDICAID ................
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