439
I. Teacher to Teacher Dialogue
An entire body of family law has arisen in the states in the context of divorce proceedings,
child custody disputes, and child protective proceedings.
sex life partners should be afforded the full benefits of civil marriage.
A legal marriage can be ended by death, divorce, or annulment. Divorce is the most
frequently used vehicle for ending a marriage, and the numbers in the U.S. are increasing every
Annulment is a special legal action that nullifies the marriage, and requires specific
The courts recognize the responsibility of parents to support their offspring until the age of
majority. In the past, the mother would almost always become the custodial parent, but
making the custodial determination.
Child custody law has changed dramatically in the U.S. Children, like wives, were originally
considered to be the property of the husband. Children of “tender years” were traditionally placed
in the custody of the mother, as were female children. Male children beyond that age were
awarded to the father. Contemporary laws hold that the courts will consider what placement
II. Chapter Objectives
FAMILY LAW
53
Chapter 53
1. Define marriage and enumerate the legal requirements of marriage.
2. Explain adoption and describe how adoption proceedings work.
3. Define divorce and no-fault divorce and describe divorce proceedings.
III. Key Question Checklist
What are the forms of marriage?
What are marital assets and how are they treated in a divorce?
IV. Text Materials
Introduction to Family Law
Family law and domestic relations is a broad area of the law, involving marriage, prenuptial
Premarriage Issues
Promise to Marry – In the 19th century, the breach of a promise to marry was treated as a breach
Engagement – The engagement period begins when the woman accepts a man’s proposal of
marriage and terminates with the wedding or a broken engagement. If the engagement is ended
Marriage
Marriage confers certain legal rights and duties upon a couple as established by the state.
Marriage Requirements – State law establishes the requirements that must be met before
marriage. All require that the parties be of a certain age, unless they have parental permission or
Marriage License – State laws usually require that couples obtain a marriage license and
participate in some form of marriage ceremony, after which the license is recorded.
Family Law
Common Law Marriage – A number of states recognize common law marriage, which does not
require a license. The parties must be eligible to marry, have voluntarily intended to be
Same-Gender Marriage
Over twenty states allow same-sex couples to be granted a civil marriage. Under the Full Faith
and Credit Clause of the U.S. Constitution, states must recognize and give full faith and credit to
Case 53.1 Same-Gender Marriage: Griego v. Oliver
ensued.
Issue: Do New Mexico laws that prohibit same-gender marriage violate the state constitution?
Decision: Yes, this is a violation of the New Mexico state constitution and the equal protection
clause.
Ethics Questions: Yes, this case actually shows off the exceptional quality of the state
Parents and Children
Parents’ Rights and Duties – Parents must supply the necessities of life to unemancipated minor
children. They also must ensure that their children attend school until a certain age. Parents have
Marriage Termination
Marriages may be terminated either through divorce or annulment.
Divorce – This legal proceeding occurs when a court issues a decree ordering the marriage
terminated. Traditionally, married persons were required to prove that the other person was at
Chapter 53
If the spouses cannot work out an agreement for the distribution of their property, the case
Pro se Divorce – There is a growing trend for the parties to represent themselves in the divorce
Settlement Agreement – Most divorces are settled before trial using negotiation or mediation.
reached.
Contemporary Environment: Prenuptial Agreement
Premarital agreements specify how property will be distributed in the event of the marriage
ending in divorce. The agreement must be in writing, both parties must make a full disclosure of
Division of Assets
Separate Property – Spouses will be awarded separate property that they owned prior to
marriage, as well as inheritances and gifts received during the union, unless the property was
names.
Critical Legal Thinking – A prenuptial agreement serves many purposes. This is a good
question to ask students.
marital property.
Equitable Distribution of Marital Property – This rule calls for a fair distribution of property,
but not necessarily equal distribution. The court may consider the length of the marriage,
the parties.
Case 53.2 Separate Property: In the Matter of the Marriage of Joyner
196 S.W.3d 883, 2006 Tex. App. Lexis 5691 (2006), Court of Appeals of Texas
Facts: Belinda Ann Joyner filed for divorce from Thomas Stephen Joyner, and the parties
Family Law
mother. The court clearly and explicitly decided which party should have ownership of these
items.
agreed with Thomas and awarded him the money. Belinda appealed.
Issue: Was the $2,080,000 lottery winnings separate property that Thomas may keep, or was it
community property that needed to be divided equally between Thomas and Belinda?
Decision: Yes. The court of appeals held that the Joyner’s divorce was final when the trial court
and complete judgment at that point in time.
Ethics Questions: Marital property consists of property acquired during the course of the
marriage using income earned by the spouses during the marriage, and separate property that has
been converted to marital property. It seems that Belinda failed to act ethically, since the divorce
Division of Debts – Debts acquired during the marriage are divided based on the type of debt and
state law. Joint marital debts are usually the joint liability of both parties.
Spousal and Child Support
Spousal Support – Alimony is awarded to support a spouse. Temporary or rehabilitative alimony
Family Support Act – This federal law provides that there can be automatic wage withholding
from a noncustodial parent’s income. The federal government passed this 1994 law to provide for
Chapter 53
child, and makes all the decisions for the child. Joint custody means that both parents share in the
parent.
Visitation Rights – The noncustodial parent is usually granted the right to visit the child for
limited amounts of time that may be subject to other restrictions.
V. Key Terms and Concepts
proceeding. This determination is made based on the best interests of the child.
Child neglect—A parent’s failure to provide a child with the necessities of life or other basic
needs.
Child support—Payments for the necessities of life for an offspring.
requirements.
Community property—This doctrine holds that all property acquired during the marriage
using income earned during the marriage will be divided evenly between the partners.
Custodial parent—Parent with legal custody of a child.
Decree of divorce—This is the final decree by a court terminating a marriage.
marriage.
Emancipation—A minor’s act of legally separating from his or her parents and providing for
himself or herself.
Engagement—This period starts with the proposal and continues until the wedding.
Equitable distribution—A law used by many states in which the court orders a fair
Irreconcilable differences—A spouse wishing to obtain a divorce merely has to assert
irreconcilable differences with his or her spouse.
Joint custody—Both parents are responsible for making major decisions concerning the child.
Joint marital debts—Debts acquired for necessities and other joint needs during the marriage
are the joint responsibility of both parties.
Family Law
Legal custody—The custodial parent who is awarded custody has legal custody of the child.
minister, priest, rabbi, or imam. At the ceremony, the parties exchange wedding vows, in
which they make a public statement that they will take each other as wife and husband.
Marriage license—A legal document issued by a state which certifies that two people are
married.
blamed for the divorce.
Objective rule—A rule which states that if an engagement is broken off, the person who was
given the engagement ring must return the ring, regardless of which party broke off the
engagement.
Permanent alimony—Lifetime alimony payments for the support of a divorced spouse.
proceeding.
Prenuptial agreement—Premarital agreements that allow for how property will be distributed
in the event of a divorce.
Postnuptial agreement—Sometimes the parties enter into an agreement during the marriage,
setting forth the distribution of property upon the termination of the marriage or death of a
postnuptial agreement.
Pro se divorce—In this divorce action, the parties represent themselves and do not use
attorneys.
Promise to marry—This usually would occur if a person proposed marriage, the other person
accepted, and then the person who proposed backed out before the marriage took place.
the other partner.
Same-sex marriage—A marriage between two people of the same sex.
Separate property—Property owned by a spouse prior to marriage, as well as inheritances and
gifts received by a spouse during the marriage.
Settlement agreement—A written document signed by divorcing parties that evidences their
divorced spouse.
Visitation rights—The right of the noncustodial parent to visit with the child for limited
periods of time.