Marriage and divorce are two of the most important life decisions you will ever make. They can also be some of the most complex. If you are considering getting married or divorced, it is important to understand the basics of family law. This blog post will provide an overview of family law in the United States, including topics such as marriage, divorce, child custody, and alimony.
Family law is the area of law that governs relationships between family members. It covers a wide range of topics, including marriage, divorce, child custody, and alimony.
Legal Definition of a Marriage
Marriage is a legal union between two people. In order to get married in the United States, you must first obtain a marriage license from your local government. Marriage licenses are valid in all states.
What is Divorce?
Divorce is the process of dissolving a marriage. In order to get divorced in the United States, you must file for divorce in state court. Divorce proceedings can be complex and often involve disagreements over child custody, property division, and alimony payments.
Child custody refers to the legal guardianship of children after their parents divorce. In the United States, there are two types of child custody: legal custody and physical custody. Legal custody refers to the right to make decisions about a child’s welfare, while physical custody refers to the right to have a child live with you.
Alimony is financial support that one spouse pays to another following a divorce. Alimony payments can be temporary or permanent, and they are typically based on factors such as the couple’s income level and length of marriage.
What Constitutes a Valid Marriage?
In order for a marriage to be valid in the United States, it must meet certain criteria.
First, both parties must be of legal age to marry. In most states, this is 18 years old.
Second, both parties must consent to the marriage. This means that they must agree to the marriage willingly and without coercion from another person.
Third, the marriage must be entered into for the right reasons. This means that the couple cannot marry simply for immigration purposes or to receive financial benefits.
Fourth, the couple must not already be married to someone else. Lastly, the marriage must be officiated by a licensed officiant, such as a priest, rabbi, or judge.
Types of Marriage Licenses
There are two types of marriage licenses: civil and religious.
A civil marriage license is obtained from the government and does not require that the couple be married by a religious official.
A religious marriage license is obtained from a church or other religious organization. To obtain this type of license, the couple must usually be married by a priest, rabbi, or other religious officiant.
Most couples in the United States choose to get a civil marriage license because it does not require them to be affiliated with any particular religion.
However, some couples choose to get a religious marriage license because it has personal meaning for them.
No matter which type of license you choose, both types of marriages are legally recognized in all states.
Presumption of Marriage
In the United States, there is a legal presumption that a couple is married if they meet certain criteria.
- First, the couple must live together for a certain period of time. This period of time varies from state to state, but it is typically between one and two years.
- Second, the couple must hold themselves out to the public as husband and wife. This means that they must use the same last name and refer to each other as husband and wife in front of others.
- Third, the couple must share a common residence. Finally, the couple must intend to be married. This means that they must have no plans to divorce in the future.
If a couple meets all of these criteria, there is a legal presumption that they are married. This presumption can be rebutted, but it is a strong one.
Importance of The Presumption of Marriage
The legal presumption of marriage is important because it has many implications for couples who live together but are not married.
For example, if a couple presumed to be married has a child together, the husband will be automatically assumed to be the child’s father.
This presumption can have both positive and negative effects on couples who choose to live together without getting married.
Marriage is a legal status with many rights and responsibilities attached to it.
Rebuttals to The Presumption of Marriage
There are two main rebuttals to the presumption of marriage.
- First, the couple can rebut the presumption by showing that they did not intend to be married. This can be done by providing evidence that they never intended to live together permanently or have children together.
- Second, the couple can rebut the presumption by proving that they did not hold themselves out as husband and wife. This can be done by providing evidence that they never used the same last name or referred to each other as husband and wife in front of others.
If a couple is able to successfully rebut the presumption of marriage, they will not be considered married under the law.
This is important because it means that the couple will not have any of the rights or responsibilities that are attached to marriage.
Offences in The Marriage Law
There are a few offences under the marriage law.
- First, it is a crime to marry someone who is already married. This is called bigamy and it is punishable by up to five years in prison.
- Second, it is a crime to marry someone under the age of 18 without parental consent. This is called statutory rape and it is punishable by up to ten years in prison.
- Third, it is a crime to knowingly marry someone who does not have a valid marriage license. This can be punished by up to six months in jail and/or a fine of up to $500.
- Finally, it is a crime to officiate a marriage without a valid marriage license. This can be punished by up to one year in jail and/or a fine of up to $1000.
These are just a few of the offences under the marriage law. It is important to consult with an attorney if you have any questions about your specific situation.
Invalid Marriages: Void and Voidable Marriages
There are two types of invalid marriages: void marriages and voidable marriages.
A void marriage is one that was never valid under the law. This can happen if one of the spouses is already married, if both spouses are under the age of 18, or if the marriage license was not valid.
A voidable marriage is one that can be declared invalid by a court. This can happen if one of the spouses is unable to consummate the marriage, if either spouse was under the influence of drugs or alcohol at the time of the marriage, or if either spouse was coerced into getting married.
The Legal Position of Same-Sex or Gay Marriages
At the federal level, same-sex marriage is not recognized. This means that couples who are married in states where it is legal will not be recognized as married by the federal government.
This can have a number of implications, such as being unable to file joint tax returns or receive spousal benefits from Social Security.
The legal position of same-sex marriage is also different at the state level.
States Where Same Sex or Gay Marriages are Legal
Currently, there are 17 states plus the District of Columbia where same-sex marriage is legal.
- These states are:
- Illinois Iowa,
- New Hampshire,
- New Jersey,
- New York,
- Rhode Island,
- Vermont, and
It is important to note that the legality of same-sex marriage can change at any time. It is always advisable to consult with an attorney before getting married if you are in a same-sex relationship.
Is The Promise to Marry Actionable?
The promise to marry is generally not actionable. This means that you cannot sue someone for breaking a promise to marry you.
There are a few exceptions to this rule.
- First, if the person who made the promise had no intention of keeping it, then it may be possible to sue for fraud.
- Second, if you can prove that you suffered some type of damages as a result of the broken promise, such as financial losses or emotional distress, then it may be possible to sue for breach of contract.
- Finally, if the person who made the promise was already married at the time they made it, then it may be possible to sue for bigamy.
Prenuptial agreements are contracts that couples enter into before getting married. These agreements typically outline how property and assets will be divided in the event of a divorce.
They can also include provisions for child custody and alimony.
It is important to note that prenuptial agreements are not always enforceable. This depends on the state where you live.
For example, in California, prenuptial agreements are generally considered to be binding and enforceable. However, in New York, they are not automatically enforced and may have to go through a court process to be approved.
If you are considering getting married, it is important to speak with an attorney about whether a prenuptial agreement would be appropriate for your situation.
Marital Rape: Sexual Consent in Marriage
It is a common misconception that marital rape is not illegal. This is not the case.
Marital rape is a form of sexual assault, and it is illegal in all 50 states.
The definition of marital rape can vary from state to state, but it generally refers to any non-consensual sex act that takes place within marriage.
It is important to remember that marital rape is still rape, and it is never okay. If you have been raped by your spouse, you should contact the police immediately.
In addition to being a crime, marital rape can also be grounds for divorce.
Divorce: The Basics
Divorce is the legal process of ending a marriage.
In order to get divorced, you must first file a petition with the court.
The petition will state your grounds for divorce, and it will also ask the court to make decisions about things like child custody, alimony, and property division.
Once the petition has been filed, your spouse will be served with divorce papers. They will then have the opportunity to respond to the petition.
If they do not respond, or if they agree with everything in the petition, then the divorce will be uncontested.
If they disagree with anything in the petition, then the divorce will be contested.
Contested divorces can be very expensive and time-consuming. They often require the involvement of lawyers and can take years to resolve.
If you are considering getting divorced, it is important to speak with an attorney about your options.
Grounds for Divorce
The grounds for divorce vary from state to state, but they generally fall into one of two categories: fault-based or no-fault.
Fault-based divorces are those in which one spouse is considered at fault for the dissolution of the marriage. The most common grounds for fault-based divorce are adultery and abandonment.
No-fault divorces, on the other hand, do not require either spouse to be at fault. The most common ground for no-fault divorce is irreconcilable differences.
It is important to note that some states do not offer no-fault divorce. This means that if you want to get divorced in one of these states, you will need to find a grounds for divorce.
Grounds for divorce include:
- Cruel and inhuman treatment;
- Divorce after legal separation;
- Divorce after annulment;
- Mental illness;
- Drug and Substance abuse.
Each state has its own specific grounds for divorce, so it is important to check with an attorney to see what applies in your state.
In some states, there are additional grounds for divorce, such as:
Irreconcilable differences: This is the most common ground for no-fault divorce. It simply means that the husband and wife are unable to get along and there is no hope for reconciliation.
- Separation: Some require that couples be separated for a certain period of time before they can file for divorce.
- Living apart: This is similar to separation, but does not require that the couple be physically separated.
- Fault grounds: As mentioned earlier, most states have fault-based grounds for divorce. These are generally adultery, abandonment, or cruelty.
- Mutual consent: In some states, if both spouses agree to the terms of the divorce, it can be granted without either spouse having to prove any fault.
Each state has its own set of ground for divorce, so it is important to check with an attorney in your state to see what applies.
Remember that you do not need to have a ground for divorce in order to get divorced.
Legal Effects of Divorce
When you get divorced, the court will issue a decree of dissolution of marriage. This decree will terminate the marriage and will divide all of the couple’s assets and debts.
The decree will also establish custody arrangements for any children of the marriage, and it may award alimony to one spouse or the other.
Finally, the decree will contain a provision called a restraining order. A restraining order is a legal order that prohibits either spouse from harassing or abusing the other spouse.
It is important to remember that divorce is permanent. Once you are divorced, you cannot get married again unless you remarry your ex-spouse.
Property Right Upon Divorce
In most states, all property that is acquired during the marriage is considered to be marital property. This means that it will be divided between the husband and wife in the event of a divorce.
However, there are some exceptions to this rule.
- For example, inherited property or gifts that were given to one spouse is usually not considered to be marital property.
- Another exception is premarital property. Pre-martial property is any property that was owned by either spouse before the marriage. This type of property is usually not subject to division in a divorce.
- Finally, post-nuptial agreements can also affect how property is divided in a divorce. A post-nuptial agreement is a contract that is signed by the husband and wife after they are married.
This type of agreement can be used to designate which property is considered to be marital and which is not.
Child Custody After Divorce
In the United States, there are two types of child custody: legal custody and physical custody.
Legal custody refers to the right of a parent to make decisions about their child’s upbringing. This includes decisions about education, religion, and medical care.
Physical custody refers to which parent the child will live with.
There are three types of physical custody:
- Joint physical custody,
- Sole physical custody, and
- Primary physical custody.
Joint physical custody means that the child will spend an equal amount of time living with each parent. Sole physical custody means that the child will live with only one parent.
Primary physical Custody means that the child will primarily live with one but will have regular contact with the other.
The type of custody that is awarded will depend on the best interests of the child.
The court will consider factors such as the child’s age, the relationship between the child and each parent, and each parent’s ability to provide for the child.
It is important to remember that even if one parent is awarded sole physical custody, both parents still have legal custody of the child and both must be consulted about major decisions in the child’s life.
In some cases, a grandparent or other relative can be awarded custody of a child. This is known as third-party custody.
Third-party custody can be awarded if it is in the best interests of the child and if both parents consent to it.
If one parent does not consent to third-party custody, the court will consider whether or not awarding custody to a third party is in the best interests of the child.
Alimony After Divorce
Alimony is a payment that one spouse makes to the other spouse after a divorce.
It is usually awarded when one spouse is earning significantly more than the other spouse.
The purpose of alimony is to ensure that both spouses are able to live in a similar fashion after the divorce.
There are two types of alimony:
- Temporary alimony and
- Permanent alimony.
Temporary alimony is awarded while the divorce proceedings are taking place. It is designed to help the lower-earning spouse until they can get on their feet financially.
Permanent alimony is awarded once the divorce has been finalized. It is usually paid for a set period of time or until the receiving spouse dies or remarries.
The amount of alimony that is awarded will depend on a number of factors, including the length of the marriage, the earning capacity of each spouse, and the standard of living during the marriage.
Polygamy is a marriage that includes more than two people.
It is illegal in the United States, and any spouse who participates in polygamy can be charged with bigamy.
Bigamy is the crime of marrying someone while you are still married to another person.
If you are considering getting married to someone who is already married, it is important to make sure that they are not committing bigamy.
You can do this by checking the marriage records in your state. Most states keep track of every marriage that takes place within their borders.
If you think that your spouse may be involved in polygamy, it is important to speak with an attorney right away. Polygamy can have serious legal consequences, including jail time.
When it comes to divorce, things can get even more complicated if polygamy is involved.
If one spouse is married to multiple people, the court will have to determine how to divide the assets and debts between the spouses.
This can be a very difficult process, so it is important to have an experienced attorney on your side.
Polygamy is a sensitive topic, and it is important to remember that everyone has the right to practice their religion freely in the United States.
However, when polygamy intersects with the law, things can get complicated quickly. If you are considering getting married to someone who is already married, make sure you understand the potential legal consequences before moving forward.
Family law is a complex and sensitive area of the law. If you are considering getting married or divorced, it is important to understand the basics of family law.
This blog post has provided an overview of some of the most important topics in family law, including marriage, divorce, child custody, and alimony. Remember, if you have any questions about your specific situation, it is always best to consult with an experienced attorney.