The Legal Answer Book for Families

The Legal Answer Book for Families

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The Legal Answer Book for Families

, Attorney & Mediator and

, 2nd Edition

Get the legal information your family needs quickly and easily with this comprehensive reference guide.  This book provides:

  • a clear and concise overview of the laws that affect families and personal relationships of all kinds
  • quick, accurate answers to everyday legal questions, from adoption to elder care
  • key family laws for all 50 states and extensive resources for couples, seniors, and children

Tackle your family's legal issues with confidence!

 

 

The quick legal reference for every family

Here, in plain English, are answers to the everyday legal questions that nearly everyone encounters at one time or another. Written by family law experts, this book covers hundreds of legal issues, including:

Couples: Marriage requirements, prenuptial agreements, green cards for fiancés, rights of same-sex partners, obligations for a spouse’s debt, divorce, changing your name after marriage or divorce, and more.

Children: Rights of birth and adoptive parents and adopted children, foster care, guardianships, child support, custody and visitation, bullying, teenage run-ins with the law and juvenile court, and kids’ rights when it comes to work, driving, and special education.

Seniors: Government programs for health insurance and residential care, and essential estate planning documents such as a health care power of attorney.

This new edition has been completely updated with the latest legal information and resources affecting families—from state divorce laws to the best websites for seniors.

Easy-to-use, concise, and clear, The Legal Answer Book for Families is the perfect addition to any family's collection of practical reference books.

“ When it comes to self-help legal stuff, nobody does a better job than Nolo.” -USA Today

ISBN
9781413319750
Number of Pages
400

Your Family Legal Companion

1. Marriage

  • The Legal Rights and Benefits of Marriage
  • Getting Married: Rules, Licenses, and Ceremonies
  • Changing Your Name After Marriage
  • Sharing a Spouse’s Debts, Property, and Income
  • How Marriage Affects Your Credit—and How to Avoid Problems
  • Prenuptial Agreements
  • Green Cards for Fiancés or Spouses
  • Same-Sex Marriage
  • Domestic Partnerships and Civil Unions
  • Common Law Marriage
  • Living Together

2. Divorce

  • Separation or Divorce
  • Annulment
  • Divorce and Family Court Proceedings
  • Where Can You Get Divorced? State Residency Requirements
  • Kinds of Divorce
  • Will You Need a Lawyer?
  • Divorce for Same-Sex Couples
  • Property, Custody, and Support
  • Estate Planning After Divorce
  • Changing Your Name After Divorce
  • Changing Your Child’s Name After Divorce

3. Child Custody

  • Temporary Custody
  • When Parents Decide on Custody: Parenting Agreements
  • Physical and Legal Custody
  • Visitation (Shared Parenting)
  • Custody Decisions When Spouses Are in Different States
  • How Courts Rule on Custody: The Best Interests of the Child
  • Same-Sex Parents and Custody
  • Mediating Child Custody and Visitation Disputes
  • Changing Custody and Visitation Orders
  • Custodial Interference
  • Custody Issues Involving Unmarried Parents
  • Surrogacy and Custody

4. Child Support

  • Who Must Pay Child Support
  • How Child Support Obligations Are Calculated
  • How Long Child Support Lasts
  • When a Parent Falls Behind on Child Support Payments
  • Modifying Child Support Payments
  • Child Support and Taxes

5. Adoption

  • Who Can Adopt
  • The Birth Parents’ Consent
  • Adoption Without Parental Consent
  • Ways to Adopt
  • Stepparent Adoptions
  • Investigating Adoptive Parents: The Home Study
  • Family Court Approval of Adoption
  • International Adoptions
  • Same-Sex Couples and Adoption
  • Working With a Lawyer
  • Adopted Children’s Right to Their Birth Records
  • Guardianship

6. Children

  • Baby’s First Legal Documents
  • Is Your Child a U.S. Citizen?
  • Tax Breaks for Parents
  • Keeping Children Safe
  • Age of Consent to Have Sex
  • Medical Care
  • School
  • Children at Work
  • Juvenile Crime
  • When Does a Child Become an Adult?

7. Elder Care

  • Getting the Right Documents in Place
  • Conservatorships and Guardianships
  • Medicare and Medicaid
  • Long-Term Care Insurance
  • Finding At-Home or Long-Term Residential Care

8. Wills & Estate Planning

  • Preparing a Basic Will
  • If You Die Without a Will
  • Estate Planning and Blended Families
  • Planning for Loved Ones With Special Needs
  • Spouses’ and Children’s Right to Inherit
  • Probate and How to Avoid It
  • Estate and Inheritance Taxes
  • Funeral Planning and Other Final Arrangements
  • Keeping Your Estate Plan Up to Date

9. Lawyers

  • Will You Need a Lawyer?
  • Free or Low-Cost Legal Help
  • Working With Lawyers
  • How to Find a Good Lawyer
  • How to Make Your First Meeting Successful
  • Legal Fees
  • How to Help Your Lawyer Do the Best Job

Appendixes

A. State Rules & Resources: Marriage, Divorce, Child Custody & Support

B. Adoption, Children, and Elder Care Resources

  • Adoption
  • Children
  • Elder Care

Index

Chapter 1
Marriage

The Legal Rights and Benefits of Marriage

Getting Married: Rules, Licenses, and Ceremonies

     Who Can Get Married

     Marriage Licenses and Certificates

     Marriage Ceremonies

Changing Your Name After Marriage

Sharing a Spouse’s Debts, Property, and Income

     Common Law Property States

     Community Property States

How Marriage Affects Your Credit—and How to Avoid Problems

     How One Spouse’s Credit Report Affects the Other’s

     Ways to Hold Credit

     How to Improve a Spouse’s Bad Credit Record

Prenuptial Agreements

     What You Can Do With a Prenup

     What You Can’t Do With a Prenup

     Lawyers and Prenups

Green Cards for Fiancés or Spouses

     Eligibility for Fiancé and Marriage Visas

     What’s Next in the Green Card Application Process?

Same-Sex Marriage

     States That Allow Same-Sex Marriages

     Federal Nonrecognition Issues

Domestic Partnerships and Civil Unions

     Marriage Equivalent Relationships

     Limited Rights and Benefits

Common Law Marriage

Living Together

     Preparing a Written Property Agreement

     Inheriting From an Unmarried Partner

     Making Medical Decisions for an Unmarried Partner

     Paternity, Custody, and Adoption

     Changing Your Name

     Handling Housing Discrimination

 

We think of marriage as a romantic institution, but it’s also a legal arrangement—a contract, really, with terms written by the state. Most people enter into that contract with no real idea of what those terms are. Most people planning to get married haven’t considered how a prenuptial agreement works, and most newlyweds (or not-so-newlyweds) don’t know what marriage means in terms of sharing a spouse’s property, income, and debts. Things get even murkier if your fiance is from another country or you’re in a same-sex relationship. Here are some of the basics about marriage and marriage-like relationships.

 

State Rules and Resources

The Marriage section of each state’s listing in Appendix A contains:

your state’s rules on marriage requirements, such as blood tests, waiting periods before marriage, and the like; same-sex marriages and domestic partnerships; common law marriages, and more, and

links to relevant government and nonprofit agencies, including courts that handle family matters.

The Legal Rights and Benefits of Marriage

Married couples receive numerous rights and benefits under both federal and state law. These include:

income tax benefits, such as the ability to transfer property between spouses with no tax consequences

inheritance rights to a deceased spouse’s property (see Chapter 8 for more on this)

government benefits, such as Social Security spousal retirement and death benefits

employment benefits, such as the right to take medical leave to care for a spouse who becomes ill

the right to make medical decisions if your spouse is incapacitated and to make decisions about body disposal and organ donation

financial support, including equitable property division and the right to seek alimony in a divorce

the ability to sponsor your spouse for a green card

the right to leave your spouse unlimited amounts of money not subject to the federal estate tax

protection from having to testify against your spouse in a court proceeding, and

consumer benefits, such as family rates for health, homeowners’, auto, and other types of insurance.

These are just some of the many benefits that come with marriage. Some of them—the ones that are governed by state law—also apply to same-sex couples who are legally married or are in domestic partnerships or civil unions in marriage equivalent states.

Now that a key provision of the federal Defense of Marriage Act (DOMA) has been overturned, legally married same-sex couples will qualify for federal benefits just as opposite-sex married couples do. However, eligibility rules vary among federal agencies. Some agencies will recognize all legally valid same-sex marriages, regardless of where married couples live. Others, such as the Social Security Administration, use the “place of domicile” rule, which means that married couples must live in a state that recognizes same-sex marriage in order to qualify for benefits. This means that same-sex spouses living in a nonrecognition state, such as Texas, will not qualify for Social Security benefits based on their spouses’ work records.

Getting Married: Rules, Licenses, and Ceremonies

Whether you’re planning a wedding in a church or another religious venue, at city hall, on the beach, or in Las Vegas, you must follow the same basic rules.

Who Can Get Married

Only opposite-sex couples may get married in all but 17 U.S. jurisdictions. The exceptions are discussed below, in “Same-Sex Marriage.”

Other rules vary slightly from state to state, but here are the essentials:

Each person must be at least the age of consent, which is usually 18. Younger people may be able to marry with their parents’ consent.

The intended spouses cannot be too closely related, such as siblings, aunts or uncles, or nieces or nephews or, in some states, first cousins.

Both people must have the mental capacity to understand what they are doing and its consequences.

The parties must be sober at the time of the marriage.

Neither party can be married to someone else.

The couple must get a marriage license.

You do not need to be a legal resident of a state to be married there, although there is usually a residency requirement for divorce.

Three’s a Crowd: Adultery, Bigamy, and Polygamy

Adultery, consensual sexual relations by a married person with someone other than the person’s spouse, is illegal in some states. In states that still allow fault grounds for divorce, adultery is always sufficient grounds for a divorce. In addition, some states factor in adultery when dividing property between divorcing spouses, and adultery may find its way into custody proceedings.

Bigamy means having two spouses at the same time; polygamy is having more than two. A marriage in which one of the parties is already legally married is bigamous and usually therefore void. In most states, if the bigamy was intentional, it is also a crime. Polygamy is a crime in all states.

 

Marriage Licenses and Certificates

A marriage license is the piece of paper that authorizes you to get married before the fact, while a marriage certificate is the document that proves you are married once the wedding ceremony is over. Following are the typical steps couples take to get married.

Get the license from the appropriate city or county official, such as the county clerk, in the state where you want to be married. Before you go into the county office, find out what documents you might need to bring—you’ll need some kind of identification, and you might also need to bring a birth certificate or divorce decree. Also, find out any requirements for witnesses. You might be able to make an appointment, which should cut down on standing-in-line time.

There’s a fee for the license (usually $25 to $100, depending on the state and county).

Licenses are good for 30 days to one year, depending on the state. If your license expires before you get married, you can apply for a new one.

 

State Rules and Resources

Where to find state license requirements. See your state page in Appendix A for license requirements, including blood tests (discussed below).

Have a ceremony. Depending on the state, there may be a short waiting period (usually just a few days) between getting a license and getting married.

Get the marriage certificate. Most states require both spouses, the person who officiated, and one or two witnesses to sign the marriage certificate; often this is done just after the ceremony. Then the person who performed the ceremony must file the certificate with the appropriate county office (for example, the county clerk’s office) where you live. A few weeks after getting the marriage certificate, the county sends the newlyweds a certified copy of the marriage certificate.

 

 

Will It Hurt to Get Married? Required Blood Tests

The vast majority of states do not require premarriage blood tests to check for sexually transmitted diseases (STDs) in both partners, and to see whether or not the bride to be has immunity to rubella, which can cause problems during pregnancy. The tests may also disclose the presence of genetic disorders, such as sickle-cell anemia or Tay-Sachs disease. No states require HIV tests, but some give out information about HIV and AIDS. In most states, blood tests aren’t required for people over 50 or if someone is pregnant or sterile.

If either partner tests positive for an STD, what then happens depends on the state. Some states may refuse to issue a marriage license.

 

Marriage Ceremonies

A wedding ceremony may be nonreligious (civil) or religious. Civil ceremonies must be performed by a judge, justice of the peace, or court clerk who has legal authority to perform marriages, or by a person given temporary authority by a judge or court clerk. Religious ceremonies must be conducted by a clergy member—for example, a priest, minister, or rabbi. Some states have programs —like California’s “deputy for a day” system—that allow a nonclergy friend or relative to officiate at a wedding; check your county clerk’s office for details on the California program. There’s also the Universal Life Church, which will ordain anyone over the Internet, but the organization has occasionally run into legal problems over the validity of the ordinations (and therefore the marriages performed by Universal Life ministers).

Usually, no special words are required as long as the spouses acknowledge their intention to marry each other—once you’ve included that, you can design whatever type of ceremony you want.

Who Keeps the Ring?

If an engagement ends, the former sweethearts may well disagree about who should get to keep the engagement ring.

Most courts consider the gift of an engagement ring a conditional gift, which isn’t final until the wedding actually takes place. If there’s no wedding, then the giver has the right to get the ring back.

But, some courts delve into the reasons the engagement was broken. So, a man who gave his fiancée a ring but then called off the wedding, especially if the bride to be stood ready to go ahead, might not get the ring back. But, if she precipitated the breakup by being unfaithful, a court might order her to return the ring.

 

Changing Your Name After Marriage

No law requires you to change your name just because you get married, though many people do.

If you want to take your new spouse’s name, promptly and consistently begin to use that name. A court procedure isn’t required, but it still takes some time and effort to change your name.

Some institutions will accept your marriage certificate as proof of your name change. Others require a government-issued form of identification in your new name, so it’s a good idea to change your name with the Social Security Administration (SSA) first. Visit www.ssa.gov to download the required application form, or call the SSA at 800-772-1213. Then mail or take the completed application—along with your marriage certificate and proof of your identity—to a local Social Security office. A few weeks later, you will receive your new Social Security card and you can begin to change your name with other institutions.

The big bureaucracies will take the longest to process your request, so you’ll want to get the ball rolling with your state motor vehicle agency (usually called DMV), and the U.S. passport office. Then you can dive into the long list of other businesses and organizations in your life—banks, insurance agencies, health care practitioners, the voter registration office, employers, clubs, utilities, publications, and so on. Some of these may require that you fill out forms and provide proof of your new name, but others may simply change your name over the phone at your request. Finally, don’t forget to update your personal documents, such as your will, living trust, or health care directive.

If this seems overwhelming, there are online businesses that can help. They collect your information and then provide already completed forms and letters for you to send to the SSA, DMV, and passport office, as well as banks and utilities. This can save a good deal of time and may be worth the money. Just double-check to make sure they’re using the most current government forms and instructions, and ask about how they keep your private information secure.

 

Creating a New Name

If you and your spouse both want to take a new name, such as a hyphenated version of your last names, you may be able to put the name on your marriage certificate. But if you want a brand-new name, you’ll need a court order. There are some restrictions on the new name you may choose:

You cannot choose a name with fraudulent intent—for example, to avoid paying debts, keep from getting sued, or get away with a crime.

Your new name cannot interfere with the rights of others—for example, you can’t take the name of a famous person with the intent to mislead.

You cannot use a name that would be intentionally confusing, such as a number or punctuation.

You cannot choose a name that is a racial slur, or that includes threatening or obscene words or words likely to incite violence.

 

 

Resource

For more information on changing your name, see www.nolo.com/legal-encyclopedia/name-change. If you live in California, you can use How to Change Your Name in California, by Lisa Sedano and Emily Doskow (Nolo). See www.nolo.com for a sample chapter and full table of contents.

Sharing a Spouse’s Debts, Property, and Income

How you will share and, if you divorce, divide the debts, property, and income that you and your spouse accrue after marriage depends mostly on where you live—specifically, whether your state follows community property rules or the common law system of dealing with marital property. (Chapter 2 explains how these rules play out in divorce cases, and Chapter 8 explains their relevance for estate planning.)

Common Law Property States

The majority of states (all but the community property states listed below) follow “common law” (also known as equitable distribution) property rules. In these states, debts incurred by one spouse in that spouse’s name alone are usually that spouse’s debts alone. However, a debt is owed by both spouses if it was:

for a family necessity, such as food or shelter for the family or tuition for the kids

jointly undertaken—for example, if both spouses’ names are on an account or on the title to a house, or

incurred for medical purposes (in some states only).

All other debts, such as a business debt from one spouse’s business, are considered the separate debts of the owner spouse—and generally a creditor cannot go after the income or property of the other spouse to collect.

Property also generally belongs to the spouse who earns it or whose name is on the title document. In most common law states, all of the following are separate property:

income earned by one spouse, if it’s kept separate (if it’s mixed with the other spouse’s money, it can be nearly impossible to tell what belongs to whom)

property bought with one spouse’s separate income or funds, unless the title to the property (such as a car) is put in both spouses’ names

gifts and inheritances received by one spouse, and

property owned by one spouse before marriage (and kept separate).

Community Property States

In community property states, all of the income earned and property acquired, as well as all debts incurred, belong to both spouses together. (Together, the spouses are called “the community.”) A couple who prefers to keep some or all of their debts and income separate can do so by signing a prenuptial agreement (discussed below).

 

Community Property States

Alaska*

Idaho

New Mexico

Washington

Arizona

Louisiana

Texas

Wisconsin

California

Nevada

 

 

* In Alaska, spouses can sign an agreement making specific assets community property.

 

Most debts incurred by one spouse during the marriage are owed by both spouses, even if only one spouse signed the paperwork for the debt. Debts incurred before marriage, such as a student loan, don’t automatically become joint debts. However, a creditor can come after community property funds if the person who owes the debt fails to pay it. For example, if your spouse defaults on a student loan, the lender can try to collect from your joint accounts, even if you earned most of the money that’s in those accounts.

All income earned by either spouse during marriage, as well as property bought with that income, is community property, owned equally by the spouses. Even if the spouse who earns income keeps the money in a separate account, that money still belongs to the other spouse too. However, money and property that the spouses owned before marriage are considered separate property as long as they’re kept in the name of the person who owned them and not mixed up with the community money. It’s common, however, for spouses to mix their money together once they marry, making it nearly impossible to tell what might still be separate property.

Gifts and inheritances received by one spouse are the separate property of that spouse.

When one spouse owns a business that was started before the marriage, the business is considered that spouse’s separate property—but the income generated by the business is community property, and the community often acquires an interest in the business itself because of increases in its value or because the nonowner spouse contributed work or ideas to it during the marriage.

How Marriage Affects Your Credit—and How to Avoid Problems

Many couples assume that a new, merged credit record is created when they marry. But, in fact, every credit record is tied to a single Social Security number. That means that your credit record, and any credit report you get, stays separate from your spouse’s.

Both credit records do, however:

list accounts that you and your spouse open jointly

list accounts with one of you named as cosigner, and

reflect the addition of a spouse to an existing account as either a joint account holder or an authorized user.

How One Spouse’s Credit Report Affects the Other’s

Lenders use credit reports and scores to decide whether to lend you money and how high an interest rate to charge. Some employers, landlords, and insurance companies also take into account an applicant’s credit history when making a decision.

When you and your spouse apply jointly for credit, a rental home, or insurance, both of your credit histories will be considered. If either one of you has unfavorable information in your credit report, it will hurt your chances of getting credit—or at least getting it at a good rate.

Ways to Hold Credit

When you’re married, you have four choices when it comes to applying for credit:

Apply individually.

Apply jointly.

Make one spouse a cosigner for the other.

Make one spouse an authorized user but not a joint account holder.

Which one is best? It depends on the circumstances. Here are some factors to consider.

Individual Credit

One way to avoid trouble is to apply for credit individually—that is, without your spouse. Of course, this strategy works only if your income and assets alone are substantial enough to qualify you for the credit. Qualifying on one income can be particularly difficult when applying for a large loan, such as a mortgage.

If you live in a community property state, as a practical matter it may be difficult to get a large loan on your own; lenders generally insist that couples apply together, because both spouses are responsible for the debt no matter who applies for it. If your spouse’s credit record is bad, the lender may be reluctant to lend to you in the belief that your spouse’s bad financial habits will make you less likely to be able to pay off the debt.

If you live in a common law state and you take out a loan in your own name using only your own credit record, you’re the only person responsible for paying it back. If you don’t pay the loan, you’re the only one whose credit will be damaged.

In either case, if your name is the only one that appears on the loan documents, only your credit will be damaged if you do not make payments.

Joint Accounts

If you and your spouse are joint account holders, you are both liable for the debt. If you open a new account, each of you is legally responsible for repaying the entire debt. (And remember, if you live in a community property state, you may be liable even if your name isn’t on the account.)

If one spouse adds the other to an existing account, the credit history—positive or negative—of the person with the existing account will affect that of the spouse who is added to the account. For example, if you have a positive credit history and add your spouse as a joint account holder to your existing account, your positive credit history will be factored into your spouse’s score. If you have poor credit and add your spouse, your spouse’s credit score will be harmed.

Adding your spouse to your account as a joint account holder will not affect your credit score unless your spouse uses much or all of your available credit.

Cosigners

Someone who cosigns for a debt becomes fully responsible for that debt if the primary borrower does not pay. Usually, lenders require a cosigner only if they’re concerned that the borrower won’t be able to pay. If your spouse has bad credit and a lender wants a cosigner, do it only if you are prepared to make payments if necessary.

Remember that if you are in a community property state, you are probably going to be liable for your spouse’s debts even if you are not a cosigner.

 

Level With Each Other Before Marriage

Experts recommend that couples review their credit reports together before getting married or taking on joint financial liabilities. If you’re already married, a review is still a good idea. You can get a yearly free copy of your credit report from each of the three credit reporting bureaus—Equifax, Experian, and TransUnion—at www.annualcreditreport.com.

Check the reports for derogatory information such as:

late payments and past-due amounts

high balances

collection accounts and charge-offs

bankruptcy

tax liens

unpaid student loans, and

foreclosures.

Although bad credit can be the result of extenuating circumstances, such as extensive medical bills, it also can result from poor money management. If your spouse’s credit report reveals high balances, unpaid debts, or other negative history, you’d be well advised to keep your finances separate for the time being—until you’ve had a chance to discuss the reason for the credit issues and observe your spouse’s financial habits. That means not opening new accounts jointly, not adding your partner to your existing accounts or being added to your partner’s accounts, and not sharing a checking account.

 

 

Authorized User

If one spouse has poor credit, an alternative to applying for credit jointly is to designate that spouse as an authorized user on the other spouse’s credit account. That way the less-qualified spouse can use the credit but is not liable for the debt (again, unless you’re in a community property state).

Making one spouse an authorized user will not affect the account holder’s credit score unless the authorized user uses much or all of the available credit—using up a large percentage of one’s available credit has a negative affect on a person’s credit rating. And, if the more solvent spouse decides later to remove the other from the account, it is much easier than if both were joint account holders.

If one spouse becomes an authorized user on the other’s account, the account will appear on the authorized user’s credit report. It may or may not affect his or her credit score. 

How to Improve a Spouse’s Bad Credit Record

Bad credit is not an insurmountable problem, but it can take time to turn things around. If you have excellent credit, you can help your spouse by:

adding your spouse to one or more of your existing accounts (do this only if you are convinced your spouse will not charge up your balance)

helping to pay down your spouse’s balances, particularly if they are closer to the credit limit than yours are

transferring your spouse’s debt to one of your lower-interest accounts

taking over bill paying if your spouse has spending or money management problems

setting financial goals together, and

checking your credit reports annually.

 

Resource

More about maintaining good credit and repairing bad credit. See Credit Repair, by Robin Leonard and Margaret Reiter (Nolo). Also, the Bankruptcy section of Nolo.com includes lots of useful articles on debt and credit, including the basics of credit reports, and the Personal Finance and the Social Security & Retirement sections include articles on budgeting and money management.

Prenuptial Agreements

A prenuptial or premarital agreement (“prenup”) is a written contract created by a couple in anticipation of getting married, for the purpose of defining each person’s financial rights and responsibilities. Typically, a prenup lists each person’s property and debts and specifies what each person’s property rights will be if the couple divorces. Without a prenup, state law controls how property is divided at divorce.

What You Can Do With a Prenup

Prenups have commonly been used by very wealthy people to protect assets, but couples of more modest means are increasingly turning to them. Prenups can be used to:

keep finances separate and clarify financial rights and responsibilities during marriage by stating who owns income earned and property acquired during marriage

clarify ownership of and interests in a spouse’s business

create a plan for how property will be divided in the event of divorce

decide on (in most states) alimony or spousal support in case of divorce

state intentions regarding an estate plan and waive inheritance rights

get protection from the other spouse’s debts, and

reach other financial agreements, such as how you will buy a house together, start a business, put each other through college, or set aside money for savings.

What You Can’t Do With a Prenup

While state laws vary, in general, you cannot use a prenup to:

restrict child support, custody, or visitation rights

encourage divorce (by appearing to offer a financial incentive for one spouse to end the marriage), or

make rules about nonfinancial matters, such as having and raising children, or how you’ll share household chores.

In a few states, you can’t use a prenup to give up the right to alimony.

Lawyers and Prenups

To get started, an engaged couple should evaluate their circumstances, agree on what they want their prenuptial agreement to cover, and even start writing a draft of it. Most states require (or least suggest) that each person have an independent lawyer review the agreement, and it’s a good idea whether your state requires it or not. Having two independent lawyers involved will help you craft a lasting agreement that both of you understand, and will help avoid court fights should you end up in an acrimonious divorce. In particular, if one spouse has much less money or assets than the other, the lower-earning spouse must have an attorney; otherwise, if there’s ever a lawsuit over the prenup, the court may set it aside because the weaker party didn’t have good advice.

If you make a prenup, be sure to follow through by making your estate plan. For example, if you are using a prenup to waive inheritance rights, make sure that your will and other estate planning documents actually transfer property as you intend. The prenup itself isn’t enough to make sure your wishes are carried out.

Information about finding and working with an attorney is in Chapter 9.

 

Resource

Help with prenuptial agreements. Before you visit a lawyer, you can decide essential terms and begin drafting your own prenuptial agreement, using Nolo’s Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving. This book includes a summary of each state’s prenuptial laws. See www.nolo.com for a sample chapter and full table of contents.

Green Cards for Fiancés or Spouses

If you are a U.S. citizen or permanent resident, and you are engaged or married to a citizen of another country, your fiancé or spouse may be eligible for a green card. This includes a same-sex marriage, if legally valid in the state or country where it took place.

However, many people believe, wrongly, that they can just bring their fiancé or spouse to the United States or (if the immigrant is already here) to an office of U.S. Citizenship and Immigration Services (USCIS) and the immigrant will be given an instant green card or even U.S. citizenship—a belief that has led to sad cases of people being sent right home again.

The reality is that your fiancé or spouse will have to go through a multi-step application process. It’s your job to start the process, by submitting to USCIS either a fiancé visa petition (Form I-129 F) or an immigrant visa petition (Form I-30).

A fiancé or spouse who is currently overseas won’t be allowed to enter the United States until both the visa petition and subsequent applications have been approved.

If your fiancé or spouse is already in the United States, the process gets even more complicated. A very recent entry by the immigrant on a tourist visa with the intention of applying for a green card could be considered visa fraud and disqualify your spouse for a green card. Completing the application process at a USCIS office within the United States is not permitted for some immigrants, depending on whether you (the petitioning spouse) are a U.S. citizen and whether your immigrant spouse entered the United States lawfully. That leads to further problems, because if your spouse has no choice but to leave the United States to complete the application process, but has lived in the United States illegally, your spouse may face a penalty and be forced to spend years outside the United States before returning. (Fortunately, there’s a waiver the immigrant can apply for in some cases, before leaving the United States.)

Even if everything goes right, be prepared for a long wait. Every type of visa application involves several stages, including application forms, a medical examination, fingerprinting, various approvals, and an interview with a U.S. government official.

 

CAUTION

If you’re not yet a U.S. citizen. If you have U.S. permanent residence (a green card), you cannot bring your fiancé to the United States until you’re married. Even then, your spouse will have to spend some years on a waiting list before entering the country. Work on getting U.S. citizenship to speed things up.

Eligibility for Fiancé and Marriage Visas

The basic requirements for the fiancé visa and the marriage visa are different.

Fiancé Visas

To qualify for a fiancé visa, the immigrant must:

intend to marry a U.S. citizen (same or opposite sex)

have met the citizen in person within the last two years, and

be legally able to marry under the laws of the state where the wedding will be held.

Also, the immigrant must be living in another country—someone who is already in the United States isn’t eligible for a fiancé visa.

As part of the fiancé visa application process, you’ll have to prove your intention to marry. That means providing a selection of documents, such as copies of your love letters, wedding announcement, emails, and wedding ceremony contracts for services such as catering and flowers. You’ll also have to prove that you’ve met within the last two years, by submitting copies of plane tickets, hotel bills, or any other relevant documents.

Marriage-Based Visas (Green Cards)

To be eligible for an immigrant visa or a green card based on marriage, the immigrant must be legally married (it doesn’t matter in what country) to a U.S. citizen or permanent resident (same or opposite sex). Neither the immigrant nor the U.S. spouse can be married to someone else.

In the application process, you’ll have to prove all of these things. Legal marriage is usually the easiest to prove, simply by providing a copy of your marriage certificate. Do your best to get your marriage certificate from a government office. Unless it’s all that’s available in the country where you were married, USCIS will reject a certificate from a ship’s captain or another nongovernmental place.

A binational marriage must be the real thing, not just a sham to get a green card. You’ll have to prove that your marriage is for real by providing copies of documents such as joint bank statements, children’s birth certificates, photos of the wedding and honeymoon, correspondence that demonstrates an intimate relationship, and more. Also, near the end of the application process, you’ll have to attend an interview, either at an overseas U.S. consulate or (in the rare case where the immigrant is in the United States and eligible to complete the green card application process here) at a USCIS office. Similar to what you’ve seen in the movies, an interviewing officer who suspects fraud may separate you and your spouse and ask you detailed personal questions about your marriage and your life together.

Inadmissibility

To qualify for any type of visa, an immigrant must show that he or she is not “inadmissible.” A person who can’t show a means of support in the United States outside of public assistance, who has a criminal record or associations with a terrorist organization, who has committed visa fraud or repeatedly entered the United States illegally and been removed, or who abuses drugs or has a communicable disease like tuberculosis would not be admitted to the United States. Inadmissibility is a major stumbling block for many immigrants, though waivers are available in some cases.

What’s Next in the Green Card Application Process?

How and where an immigrant actually applies for a green card depends on a number of factors. These can include the immigration status of the person the immigrant is marrying, whether or not the immigrant is in the United States already, and, if so, whether the person got here legally. In some cases, particularly where inadmissibility may be an issue, hiring an experienced immigration attorney is well worth the cost.

 

Resource

More on fiancé and marriage visas. The Immigration section of www.nolo.com includes many useful articles on U.S. green cards, visas, and citizenship, including eligibility and sponsorship requirements, interviews, exams, and bringing your spouse to the United States.

Fiancé & Marriage Visas: A Couple’s Guide to U.S. Immigration, by Ilona Bray (Nolo), can help you complete the application forms, assemble the appropriate documents, and have a successful interview. See www.nolo.com for a sample chapter and full table of contents.

Same-Sex Marriage

In the last two decades, the legal landscape for same-sex couples has changed in extraordinary ways and continues to change rapidly. Legal marriage is now available to any same-sex couple willing to travel to a marriage equality state—although the marriage will now be recognized by the federal government, it may not be recognized by the couple’s home state (and a few federal agencies) if they reside in a nonrecognition jurisdiction. In short, for same-sex couples, marriage is a lot more complicated than just saying “I do.”

States That Allow Same-Sex Marriages

As of the time of this writing, sixteen states and the District of Columbia allow a same-sex couple to get married and enjoy all of the benefits of marriage under their laws.

 

States Where Same-Sex Couples Can Marry

California

Iowa

New Jersey

Connecticut

Maine

New York

Delaware

Maryland

Rhode Island

District of Columbia

Massachusetts

Vermont

Hawaii

Minnesota

Washington

Illinois (June 2014)

New Hampshire

 

 

While these marriages are legal for all purposes in the state where they are entered into and the federal government now recognizes same-sex marriages, many states refuse such recognition. (see “Nonrecognition Issues,” below).

All of the states that allow same-sex marriage recognize same-sex marriages—as well as civil unions and domestic partnerships—performed elsewhere. In addition, Oregon recognizes valid, out-of-state same-sex marriages although same-sex marriage is not yet legal in the state. In these states, as long as you were legally married in a state or country that allows same-sex marriage, you will be treated like any other married couple: You can file a joint state tax return, provide health and retirement benefits for your spouse if you work for the state government, and enjoy numerous other rights that come with marriage under state laws, including divorce, child custody, property division, family leave benefits, and medical rights such as hospital visitation.

Federal Nonrecognition Issues

On a federal level, recognition issues changed dramatically in 2013, when the United States Supreme Court issued a historic decision in United States v. Windsor. The Court struck down the federal definition of marriage under the federal Defense of Marriage Act or “DOMA,” which limited marriage to a union between a man and a woman.

The DOMA case involved Edith Windsor and Thea Spyer, a lesbian couple that was married in Canada in 2007—after being in a relationship for 40 years. When Spyer died in 2009, Windsor was forced to pay $363,053 in federal taxes on Spyer’s estate, which she would not have had to pay if she’d been Spyer’s husband. She argued that DOMA, which prevented her from being considered Spyer’s spouse for federal purposes, cost her $363,053.

In a 5-4 decision, the Court found that the section of DOMA defining marriage as between a man and a woman violates the Equal Protection Clause and is therefore unconstitutional.

Now, under Windsor, legally married same-sex couples are considered “married” in the federal government’s eyes and eligible for federal benefits in the same way that opposite-sex married couples are. However, the eligibility rules vary among federal agencies and as a result, some same-sex married couples living in nonrecognition states will not qualify for all federal benefits.

The Place of Celebration Rule

Many federal agencies, such as the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Office of Personnel & Management look to the “place of celebration” (where the marriage was performed) to determine whether same-sex married couples are eligible for benefits. Under this rule, if you’re in a valid marriage, you will qualify for federal benefits even if you live in a nonrecognition state.

The same goes for the IRS and eligibility for federal tax benefits. In August 2013, the U.S. Department of Treasury issued a ruling, which states all same-sex couples that are legally married in any U.S. state, the District of Columbia, a U.S. territory or a foreign country will be recognized as married under all federal tax provisions where marriage is a factor.

The Treasury Department further clarified that federal recognition for tax purposes applies whether a same-sex married couple lives in a jurisdiction that recognizes same-sex marriage (such as California) or a nonrecognition jurisdiction (such as Texas). But the decision does not apply to same-sex couples in domestic partnerships or civil unions.

The Place of Domicile Rule

Some federal agencies, such as the Social Security Administration, only recognize marriages that are valid in the “place of domicile” (where the couple lives) for the purposes of granting federal benefits. This means if you’re in a same-sex marriage, but live in a nonrecognition state, you aren’t eligible for Social Security benefits on your spouse’s work record. If you live in one of the 17 jurisdictions that recognize same-sex marriage (listed in the chart above), you will qualify for benefits. This also applies to Medicaid and Supplemental Security Income, Medicare, bankruptcy filings, and benefits under the Family Medical Leave Act. These rules may change in the future, but this is where things stand now.

If you are in a domestic partnership or civil union in any of the states that offer those relationship options, none of the benefits of marriage under federal law will apply to you because the federal government doesn’t yet recognize these same-sex relationships.

State Nonrecognition Issues

On a state level, nonrecognition means that a couple can travel to a marriage equality state, get legally married, and then return home to their nonrecognition state and find that their marriage has very little meaning where they live. In at least two states, judges have refused to grant divorces to married same-sex couples because the state where the couple sought the divorce did not recognize the marriage itself. This leaves the couple in the position of having to either stay married or move to a state where the marriage is recognized and establish residency (which can take as long as six months to a year) in order to file for divorce there.

Domestic Partnerships and Civil Unions

A number of states have established legal relationships that are the functional equivalent of marriage for same-sex couples, but are called something else—either domestic partnerships or civil unions. The term “domestic partners” is somewhat confusing, because it is used to describe legal marriage equivalent relationships; legal relationships that only provide partial marital rights; and unmarried couples, of the same or opposite sex, who live together in a family relationship, and in some cases are recognized by local governments, businesses, colleges, and universities.

Marriage Equivalent Relationships

California, D.C., Nevada, Oregon, and Washington State offer domestic partner­ship status that is the functional equivalent of marriage; Colorado, Hawaii, and Illinois do the same but call the relationship a civil union. (Now that same-sex marriage is legal in Illinois and Hawaii, it remains unclear whether these states will continue to grant and recognize civil unions or convert civil unions into marriages at a later date.) Some of these states limit domestic partnership registration to same-sex couples, but some include opposite-sex couples in which one partner is 62 or older. (This is to avoid affecting Social Security benefits, which can sometimes be reduced when the person receiving benefits gets married.)

No license is required to enter a domestic partnership or civil union—usually it’s just a matter of filing a notarized form with a state office like the secretary of state. Ending a domestic partnership or civil union in a marriage equivalent state usually requires that the partners go through the same court procedures that opposite-sex couples must use. There may be an abbreviated process for couples who haven’t been registered for very long and don’t own any property, but not many people qualify for that. Couples living in a nonrecognition state generally need some legal advice on how to terminate their domestic partnership or civil union. (Chapter 2, “Divorce,” provides more detail on ending a same-sex marriage or domestic partnership.)

Limited Rights and Benefits

Wisconsin provides for some form of legal relationship, but the rights that come along with its domestic partnership are a far cry from the marital rights provided in the marriage equality and marriage equivalent states.

In addition to these state level rights and benefits, some public and private entities may offer domestic partners benefits such as:

health, dental, and vision insurance

sick and bereavement leave

accident and life insurance

death benefits

parental leave (for a child you coparent)

housing rights and tuition reduction (at universities), and

use of recreational facilities.

 

Resource

Helpful resources on same-sex marriage, domestic partnerships, and civil unions. For details on laws in your state, including municipalities and other entities offering domestic partnership benefits, see the “In Your State” section of www.lambdalegal.org, or call 866-542-8336. Also, see the National Center for Lesbian Rights (www.nclrights.org, phone 800-528-6257), a national lesbian and gay legal organization that provides education, resources, and support.

Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz with Emily Doskow, fully explains same-sex relationship laws, reviews key issues that influence the decision to marry, and offers practical guidance. You can see a sample chapter and the full table of contents at www.nolo.com.

The LGBT section of www.nolo.com contains a wide range of articles that discuss issues affecting gay and lesbian couples.

Chapter 9 of this book provides advice on finding and working with attorneys. You’ll want to see an experienced lawyer for advice about your marriage or domestic partnership (especially if you got married in a state that recognizes same-sex marriages but live in a state that doesn’t), advice on legally ending your relationship, or other legal questions.

Common Law Marriage

In many states, heterosexual couples can become legally married without a license or ceremony (see the Marriage section of your state page in Appendix A for details). This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. To have a valid common law marriage (in states that recognize it), the couple must do all of the following:

live together for a significant period of time (not defined in any state)

hold themselves out as a married couple—typically this means using the same last name, referring to the other as “my husband” or “my wife,” and filing a joint tax return, and

intend to be married.

Common law marriages are not that common—they’re actually fairly unusual. When one exists, the spouses receive the same legal treatment given to formally married couples, including the requirement that they go through a legal divorce to end the marriage.

Living Together

Many laws control the property ownership rights of married couples. In most states, no such laws exist for the many unmarried couples who live together, except for the handful of states with marriage-like domestic partnerships or civil unions. If you and your partner (gay or straight) are unmarried, you must take steps to protect your relationship and define your property rights. You will also face special concerns if you are raising children together.

Preparing a Written Property Agreement

If you want to legally establish how you will own property during your relationship, as well as what will happen if you separate or if one of you dies, you must put your intentions, desires, and expectations in writing. Your agreement will be called a “nonmarital agreement” or “living together contract.” (Or, if you are planning for what happens when you die, you’ll need to make a will.)

 

Palimony

“Palimony” is a word coined by journalists—not lawyers—to describe the division of property or the alimony-like support paid by one unmarried partner to the other after a breakup. Members of unmarried couples are not legally entitled to such payments unless they have an agreement. In the famous 1976 case of Marvin v. Marvin, the California Supreme Court ruled that a person who cohabitated and later sued for support could argue that an implied contract existed between the partners. To avoid argument, it’s best to have a written agreement about any payments to be made if the relationship ends.

 

Almost all states now enforce written contracts between unmarried partners. And the longer you live together, the more important it is to write a contract making it clear who owns what. Otherwise, you might face a serious (and potentially expensive) battle if you split up and can’t agree on how to divide what you’ve acquired.

A written property agreement is particularly important if you buy a house together. It should cover all of the following:

How you will take title to the property. Your options vary from state to state. Many states let you hold title as “joint tenants with rights of survivorship,” meaning that when one partner dies, the other automatically inherits the whole house. Or you might want to hold title as “tenants in common,” so that each owner can choose who gets that partner’s share by making a will or trust.

How much of the house each partner owns. If you’re joint tenants, then in most states, you must own equal shares.

What happens to the house if you break up. Will one of you buy out the other, or will you sell the house and divide the proceeds? If you don’t agree on who can buy the other out, how will you decide who gets first choice?

Inheriting From an Unmarried Partner

If your unmarried partner dies, will you inherit? Not automatically. Your rights depend on whether your late partner made a will, trust, joint tenancy agreement, or some other estate planning document to leave property to you. (See Chapter 8 for more on this.)

 

How Marriage Affects a Living Together Agreement

If you and a longtime partner make a property agreement while you are unmarried, will it be enforceable after you get married? Probably not. To be enforceable, premarital contracts must be made in contemplation of marriage. So, unless your living together contract is made shortly before your marriage, when you both plan to be married, a court will disregard it. It’s best to review your contract and rewrite it as a premarital agreement.

 

Making Medical Decisions for an Unmarried Partner

If you are injured or incapacitated, your partner will not be allowed to make medical or financial decisions on your behalf unless you have executed the appropriate documents. To give your partner the right to make medical decisions for you, you must sign a form called a “durable power of attorney” (sometimes included in a “health care directive”). Without a durable power of attorney, the fate of a severely ill or injured person could be in the hands of a biological relative who won’t honor the wishes of the ill or injured person. It is far better to prepare the necessary paperwork so the loving and knowing partner will be the decision maker. If you want your partner to be able to make financial decisions for you—when you become incapacitated or even for a short time because you’re out of the country or otherwise unavailable—you need to execute another type of power of attorney, one that covers financial matters. (For more information about durable powers of attorney, see Chapter 7.)

Paternity, Custody, and Adoption

Unmarried same-sex couples who have children together need to take special steps when it comes to children. Unmarried heterosexual couples, on the other hand, aren’t generally treated any differently than married straight couples from a legal perspective. Later chapters explain how you can head off problems over custody (covered in Chapter 3) and adoption (see Chapter 5).

Changing Your Name

Some unmarried couples want to share a last name. If you don’t have a marriage certificate, you will need a court order (this is usually fairly simple) to change your name. For more information, see www.nolo.com/legal-encyclopedia/name-change.

Handling Housing Discrimination

In most states, landlords may legally refuse to rent to an unmarried couple. About 20 states ban discrimination on the basis of marital status, and most of them protect married couples only. Federal law does not protect unmarried couples from housing discrimination. Housing discrimination based on sexual orientation and gender identity, however, is prohibited in many states and cities. Many of these laws also protect unmarried heterosexual couples.

Check your state fair housing agency for laws that apply to you. To find your state information, see the U.S. Department of Housing and Urban Development (HUD) website at portal.hud.gov/hudportal/HUD/states.

 

Resource

For unmarried couples. Living Together: A Legal Guide for Unmarried Couples, by Ralph Warner, Toni Ihara, & Frederick Hertz (Nolo), explains the legal rules that apply to unmarried couples and includes sample contracts about jointly owned property. See www.nolo.com for a sample chapter and full table of contents.

The U.S. Department of Housing and Urban Development (HUD), at www.hud.gov, offers advice on fighting housing discrimination.

A Legal Guide for Lesbian & Gay Couples, by Frederick Hertz and Emily Doskow (Nolo), sets out the law on everything from medical and financial issues to parenting and estate planning and contains useful sample agreements. See www.nolo.com for a sample chapter and full table of contents.

The Unmarried Equality website, www.unmarried.org, is a national organization that provides resources, support, and advocacy for unmarried people living together.

The Renters’ & Tenants’ Rights section of www.nolo.com has many useful articles about housing.

The National Center for Lesbian Rights (www.nclrights.org, phone 800-528-6257) is a national lesbian and gay legal organization that provides education, resources, and support.

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