Can Cohabitating Partners Be Considered Legal Parents?

Although it has been traditionally frowned upon in many circles, cohabitation has become increasingly common in the Western world. In the United States, it is now considered completely normal to be unmarried yet live with a romantic partner. Most people don’t consider it a long-term alternative to marriage since most cohabiting partners either split up or marry within a couple of years, but most couples find themselves living together at some point during their relationship. Naturally, this leads to some questionable legal issues, particularly when these unmarried couples have children together.

Traditionally, two people would be legally married before they have children, and the legality of their status as parents would never be called into question. Today, 22 percent of children are born to unwed couples, and that number is on the rise. The Office for National Statistics in Great Britain has even predicted that most children will be born out of wedlock by 2016. Considering these alarming numbers, it’s important to take a look at the legality of cohabiting partners as legal parents.

Unmarried Biological Parents as Legal Guardians

In the United States, a child born to an unmarried couple is the legal responsibility of both parents. However, in the case of cohabiting partners, a paternity test is required to determine the rights and responsibilities of the father. In other words, cohabiting partners can legally be parents, but they still don’t have the same legal responsibilities as married couples. For example, when a married couple gets a divorce, child custody must be divided in a specific way, and both the mother and the father are able to contest their rights in court. When cohabiting couples decide to split up, the father has no legal financial responsibilities when it comes to raising the children.

When There is No Biological Relation to the Children

The laws regarding cohabiting partners with children usually only apply to biological children. In many cases, two partners ends up caring for children that are biologically related to only one of them. In these situations, the unrelated adult usually has no parental rights, but they can still become the legal guardian of their partner’s children through adoption or if the non-custodial parent is either deceased or deemed unfit or guilty of abandonment in a court of law.

The process of gaining custody of an unrelated child is cumbersome, but it can be very important. If something were to happen to the biological parent, the partner may want to take the time to go through the adoption process and become the legal guardian of the couple’s children. Without going through the adoption process, the biological parent maintains custody of the children, should the couple become separated.

One thing that becomes clear when dealing with the issues of unmarried couples raising children is that while cohabitation may appear to be similar to marriage, it is obviously not the same. Unmarried partners do not have the same level of commitment to each other or their children, even when they live together. They may legally be parents, but that legality only lasts for as long as they are together.

Kyle Brand is a freelance legal blogger and writer based in Boston, Massachusetts. Kyle recommends that those who need assistance with asbestos litigation visit Shrader Law.

Family Law Property Issues in Australia

(Victorian & Australian Law)

In recent times, the jurisdiction of property disputes in Family Law has broadened. Traditionally, property was only divisible between married or divorced couples. De-facto and same sex partners are now able to apply for a property settlement, though under different law. In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court, to be decided on the basis of need.

The settlement reached becomes legally binding and enforceable by the courts. Here’s a rough guide to what usually happens in these situations…

Applications

Parties can make a property settlement by agreement or, if agreement cannot be reached, make an application to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court or to the Federal Magistrates Court where a property dispute is worth less than $700,000.

Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. De-facto and same sex partners can make an application under the Property Law Act 1958 (Vic) in the Supreme Court, County Court or Magistrates’ Court.

Once an application is made, the parties will be asked to attend a case conference, with the aim of settling the property dispute by agreement before it goes to court. Present at this conference will be the parties, any family lawyer involved and a court registrar. If this conference is unsuccessful, the parties will go to court.

Property disputes in de-facto and same sex relationships (domestic relationships) are dealt with under the Property Law Act 1958 (Vic). A domestic relationship is a relationship between two people (regardless of gender) who live together as a couple on a domestic basis but are not married. The domestic relationship must have existed for at least two years for an application for a property dispute to be made under Part 9 of the Property Law Act . If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. The relationship must have ended after 8 November 2001 for Part 9 to apply.

Property

The type of property divisible in a property settlement includes assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account. In a domestic relationship, as governed by the Property Law Act , superannuation and retirement benefits are not included in a property settlement. In making an order for property settlement, the court calculates the total pool of assets of the parties.

The division of these assets is based on both contributions made by each of the parties to the asset pool and future needs. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.

If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.

Spousal Maintenance

A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once.

Spousal maintenance cannot be applied for where a domestic relationship exists.

Enforcement

If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied.

If a party is not complying with the orders made, an application can be made to the court for enforcement. In this application, the party applying must set out exactly what the problem is. The court will then decide whether an order is needed to enforce the existing order.

A family law property settlement is an important process to go through after the breakdown of a marriage or domestic relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.

Florida Same Sex Separations and Collaborative Family Law

Though the U.S. Supreme Court recently struck down portions of the federal Defense of Marriage Act (“DOMA”), state DOMAs were not affected by the ruling.  This means that same sex couples cannot get legally married in states, such as Florida, that enacted a DOMA.

This also means that gay and lesbian couples cannot get divorced in many DOMA states and oftentimes do not have any legal remedy to separate.  If the domestic partners did not adopt each other’s children, even if both partners had been considered the parents of the children, then child custody, visitation, and child support laws usually will not apply.  Equitable distribution laws (laws related to division of marital assets and debts) do not apply, so separating property and liabilities can get real messy, real quick.  Further, alimony and spousal maintenance laws do not apply, so a partner who spent years homemaking and taking care of children may suddenly become destitute.  So what are separating same sex couples to do?

Domestic partners who are dissolving their relationship should seriously consider entering into a collaborative family law process.

Collaborative family law is a form of private dispute resolution that allows clients to enter into agreements and achieve results that could never be attained through a court process. Each client retains a separate attorney who advises and counsels the client and helps in the negotiating process.  A neutral facilitator, who is a mental health professional or mediator, helps the clients focus on their interests, such as the welfare of clients’ children, continued relationships with each other’s family members, or financial stability.  If there are substantial assets or debts or a business, a neutral accountant or financial planner will be brought in to educate the parties in finances, help fairly and cost-effectively divide property and liabilities, and, if requested, develop a budget for the clients’ future.

As you can see, collaborative family law is a holistic process that takes into account not only the legal, but also the emotional and financial needs of the clients.

The crux of collaborative family law is that the clients agree at the beginning that they will not seek to resolve their dispute through court battles, but rather they will come to a mutually agreeable settlement through this private process.  The clients, and their attorneys, enter into a participation agreement which disqualifies the attorneys from representing the clients in any contested court action.  This provides a safe space in collaborative meetings because each client knows that the other client’s attorney is not conducting opposition research and is committed solely to helping the clients reach a mutually acceptable agreement.  This allows clients to feel more comfortable offering and listening to potential solutions.

In truth, the disqualification clause has much more of an effect on heterosexual couples who are getting divorced, rather than homosexual couples who are separating.  This is because, as stated above, most DOMA state courts just do not have remedies that would properly address the clients’ concerns, and so attempts to fight it out in court will oftentimes be dismissed.

If you are experiencing a same sex separation, make sure to speak with an attorney who offers collaborative family law, and check to see whether the attorney has received collaborative law training that meets at least the minimum Basic Training standards of the International Academy of Collaborative Professionals.

If you have questions regarding a Tampa Bay collaborative family law process, or you want to learn more about your Florida family law rights, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our contact form.

Adam B. Cordover currently serves as Research Chair of the Collaborative Family Law Council of Florida and Vice President of the Collaborative Divorce Institute of Tampa Bay.  Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit of Florida to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida) and has completed over 40 hours of basic and advanced collaborative family law continuing legal education credit.

 

The Marriage (Same Sex Couples) Bill: legal update

Background

Civil partnerships were introduced in the UK in 2005, but legislation such as the Matrimonial Causes Act 1973 has historically prevented the marriage of same sex couples.  In a bid to step closer to equality, the Coalition Government introduced the Marriage (Same Sex Couples) Bill (“the Bill”) which will legalise the civil and religious marriage of same sex couples.  If the Bill receives Royal Assent it will undoubtedly mark an important milestone in the battle for equality.  A number of YouGov surveys published between 2012 and 2013 reveal that although the precise figures vary, the majority of participants have confirmed their support of the legalisation of same sex marriage.

On overview of the area

While the majority of the British public appear to be in favour of same sex marriage, presumably many of us anticipated that making it legal would simply require the Government to extend the current legislation to include the gay community.  However, some unanticipated difficulties have arisen during the drafting of the required new legislation.

One of the main causes of confusion that has arisen is that under the present drafting adultery will only be a ground for divorce if the adultery has taken place between the cheating spouse and a member of the opposite sex.  In other words, if two men are married and one of them is unfaithful with another man, his husband will not be able to petition him for divorce on grounds his adultery.  Instead, he will have to rely on grounds of unreasonable behaviour.  If, however, his husband were to be unfaithful with a woman, the aggrieved husband could petition for divorce on grounds of adultery.

There has been concern that some couples will choose to wed to benefit from tax and other reasons disassociated from traditional factors such as love and children.  Others argue that those who take this view are simply opponents of same sex marriage seeking to opportunistically discredit the viability of the Bill.

The Marriage (Same Sex Couples) Bill was not featured in the Queen’s Speech this year, but it continues to progress speedily through the House of Commons and is expected to reach the House of Lords in June.  The Bill may be subject to amendment on its way to Royal Assent and once it becomes law certain aspects may be made subject to judicial interpretation (for example, notions of consummation and adultery seem particularly vulnerable to litigation given the unanticipated difficulties).  Despite the technical difficulties faced by the legislators so far, the majority of the British public supports the right of same sex couples to marry and we are well on the way to making it legal, despite some bumps in the road.

For more information on same sex marriage of any area of family and matrimonial law contact Lisa Kemp

What To Look For When Seeking a Family Lawyer

What To Look For When Seeking a Family Lawyer

If you’ve never been through the legal process before, realizing the amount of time, effort, and stress that go into it can be more than daunting.  Hiring a lawyer alone is intimidating; how can you determine a good lawyer from a bad one if you’ve never had to hire one before?  Below you’ll find the qualities you should look for when seeking the right lawyer for your family law case.

Background Information on the Practice of Law
There’s a misconception that a lawyer is a lawyer, in the sense that they all have the same knowledge and practice law.  However, this is simply not the case.  There are three types of lawyers you’ll come across on your lawyer search.  Specialized lawyers are those whose practice is specialized in a specific type of law, such as personal injury law.   General lawyers, i.e. lawyers that practice a broader area of law, might practice personal injury law and business law simultaneously.  Then there are Referral lawyers.  These lawyers may be either specialized or general lawyers, but they advertise as if they practice various types of law.  When clients come to them in a specialty outside of their practice area, which is typical due to referral lawyers affinity to advertise a broad range of specialties, referral lawyers then refer the client to another attorney.  The reason they do this is because referral lawyers get a percentage of the lawyer fees for all cases they refer out.  For instance, Lawyer A refers a client to Lawyer B.  When Lawyer B wins the case, Lawyer B must forfeit a percentage of his/her fees from the case.  So, put bluntly, referral lawyers get paid for doing absolutely nothing in a case they’ve referred to another lawyer.

Qualities You Want in a Family Lawyer
You should look for three factors when determining if a lawyer is right for your divorce, separation, will, children’s rights or divorce settlement legal needs.

First, you should look for a lawyer who has experience handling family law cases.  You will want to avoid “referral lawyers” as the fees they take can deter the lawyers they refer your case to from actually taking it; lawyers, like any professional, are in it for the money and if they have to forfeit percentage of their winnings on a case that already isn’t worth that much, they aren’t going to take it.  You should seek out lawyers who have a long history of experience with family law cases and who have been successful with such cases.  While a general attorney might have a lot of experience with family law cases, you should generally look for a lawyer who specializes in family law as he/she is the more likely to be adept to the legal procedures of such a case.

And do not rely on lawyer rating sites, like Super Lawyers, AVVO, and Best Lawyers to give you reliable information on a lawyer’s success rate and the like.  These sites’ “rankings” are determined by how much a lawyer is willing to pay and the information on the lawyers is not generally verified by the lawyers themselves.  For example, attorney John Smith might be stated as a family lawyer on a lawyer ranking site when in fact he is a slip and fall lawyer.  You don’t want a personal injury lawyer handling your family law case, do you?  It would be like having an accountant acting as your stock market investment advisor; it’s simply the wrong specialist handling the wrong specialty.

Second, you need a lawyer who is capable of giving your case the time and attention it deserves.  And third, you need a lawyer with knowledge about your case type.  General lawyers handle many different types of cases, which means they must have a vast working knowledge of different laws and law procedures.  For instance, a general lawyer handling a business law case, a personal injury case, and a criminal case will need to know the necessary laws for each of those law specialties as well as the procedures required by each.  That’s a lot of work and knowledge that a single person must endure and retain.  A general lawyer may be less knowledgeable about your case type and less able to spend time on your case because he/she is handling so many different types of cases.

Amber Paley is a guest post and article writer bringing to us what qualities one should look for when seeking a family lawyer.  Outraged by the prevalence of elder neglect in the U.S., Amber spends much of her professional life writing education articles to help those affected another’s negligible care find good nursing home abuse attorneys.

The Divorce Process: Family Law Information

The Divorce Process

Divorce is the legal process through which two people end their marriage and the legal status that it provides. It is usually an extremely emotional time for the parties involved and also for their children, if they have any. The best way to make your divorce process as smooth as possible is to find a solicitor who you can trust and work comfortably with.

It is important that both parties understand their legal position on divorce and know exactly to what they are entitled. A divorce solicitor can make sure finances and property are properly distributed and arrangements are made for children, leaving no room for disagreements.

Petitioning for divorce

In order to begin the process of divorce one party to the marriage must present a petition for divorce on the grounds that the marriage has broken down irretrievably. It is important to note that the parties must have been married for at least a year before they are able to make such a petition.

Whether the marriage is broken down irretrievably is not simply a matter of opinion, and there is legislation stating that at least one of five factors must be present before any court will make a ruling that the marriage has in fact broken down irretrievably. These five grounds for divorce are as follows: unreasonable behaviour, adultery, living apart for two years and both parties consent to the divorce, living apart for five years, and desertion.

Acknowledgment of service

A copy of the petition must be sent to the other party along with a statement of arrangements for the children (if applicable) and an acknowledgment of service. The respondent must inform the petitioner in the acknowledgment of service whether they will be contesting the divorce. The acknowledgment of service is therefore an extremely important document as it shows the court that the other party is aware of the petition. If the other party refuses to return the acknowledgment of service you may have to arrange for a process server or bailiff to serve the document and make an affidavit stating that they have done so.

Decree nisi

If the court is satisfied that there are valid grounds for divorce it may well grant what is known as a decree nisi. A decree nisi will generally be granted when a divorce is not being contested and there are valid grounds for divorce. The party who made the petition must then apply to have the decree made absolute which they cannot do until at least six weeks and one day from the date of the decree nisi.

Decree absolute

The decree absolute is what actually ends the marriage, as opposed to the decree nisi which merely declares there are satisfactory grounds. Once the decree absolute has been pronounced the marriage has officially ended and usually the parties will begin ancillary relief proceedings: the name given for deciding how the matrimonial assets should be split.

Ancillary relief proceedings

The ancillary relief proceedings are often fiercely contested as a judge will rule on who should have what from the matrimonial assets. The ancillary relief process can be quite long and usually involves three trips to court.

  • A first appointment in which a judge outlines his position and ensures appropriate disclosure has taken place.
  • A financial dispute resolution hearing in which a judge (a different judge from who will be in attendance at the final hearing) will give an indication of what he would order in the hope the parties then settle on similar terms and avoid a final hearing.
  • A final hearing in which an order will be made.

With the potential for several court visits, it is in both parties’ interests to try to facilitate an early settlement to avoid significant legal costs.