Family Law and Probate Law

CHAPTERCHAPTER 1515

Man sees but a short way into futurity; a single event, unforeseen, deranges all his plans; and teaches us that man with all his wisdom, toils for heirs he knows not who. Chief Justice Andrew Kirkpatrick, Supreme Court of Judicature of New Jersey Nevision v. Taylor, 8 N.J.L. 43, 46 (1824) Family and probate law are among those fields particularly well-suited to paralegal practice. Many legal assistants already practice in these fields, and family and probate law were among the fields mentioned in the Chapter 2 discussion of the possibility that “legal technicians” might someday be licensed to provide services directly to the public. Supervised paralegals do a very large portion of the legal work required for simple divorces and probate actions. For that reason, these might be called “paralegal-intensive” fields. Many court filings can be accomplished by filling out preprinted court forms, but it is not just the availability of these forms that makes it possible for legal assistants to do so much of the work. Both fields require the accumulation and organization of information about the assets and liabilities of individuals or businesses—a common assignment for paralegals. Both areas of practice sometimes require coordination with accountants, ven- dors, customers, creditors, and landlords. Much of this coordination can be done by a legal assistant. This chapter is divided into two parts—one for each area of practice. Within each part, there is a summary of the substantive law followed by a discussion of the paralegal’s role in that area of practice. Part I begins with a summary of family law and ends with typical paralegal duties in a family law practice. Like the chapter on civil litigation, this chapter is written with the attorney-supervised legal assistant in mind.

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SECTION I. FAMILY LAW

The student who has carefully read this chapter should be prepared to answer these questions: ■ Why is family life regulated by law? ■ How do cultural values influence family law in America? ■ What is marriage, in a legal sense? ■ What are the requisites for a valid marriage? ■ What are prenuptial agreements? ■ How does marriage affect property rights? ■ How does the law treat spousal abuse? ■ What is the difference between separate maintenance and a legal separation? ■ What are the grounds for annulment of a marriage? ■ What are the grounds for divorce? ■ How do annulment and divorce differ? ■ How is a couple’s property divided upon divorce? ■ When is spousal support required? ■ How are child custody and support determined? ■ What is the law of adoption? ■ When do the courts assert authority over a child? ■ What is the role of the legal assistant in family law practice?

SCENARIO

How to Prevent a Silly Law1 In the 1930s the state of Georgia proposed a luxury tax of two hundred fifty dollars per year on bachelors. It did not even have the merit of being a new idea. In The Percy Anecdotes, published in London in 1820, one finds the following curious item: A bill having been brought into the House of Legislature of New York, to lay a tax upon all bachelors above the age of twenty-eight, for the encouragement of literature among females, a meeting of upwards of two hundred old bachelors, and others . . . was held, to take the measure into consideration. After a good deal of fine speaking, and many witty observations, the oldest bachelor in the room was called to the chair, when the following recital and resolutions were of- fered, and passed unanimously. WHEREAS it appears in the public papers, that a bill has been intro- duced into the legislature of this state, to lay a tax upon bachelors, etc. In what manner the funds are to be applied, whether for the endowment of a seminary, in which old maids are to be employed as instructors, or whether to educate old maids in some of the useful and polite branches of literature, that they may be enabled to get a living without a helpmate, is unknown to us, not having seen the said bill, or its provisions; but whatever may be the provisions of the said bill, we conceive it unconstitutional to lay a specific tax upon old bachelors, and calculated to produce much Family Law and Probate Law 79

mischief in the community; because it will drive from the state many good citizens who prefer a life of celibacy; it will tend to increase bachelors, inasmuch as when women find they can be maintained in a single state, many will prefer that mode of life, and refuse all offers of matrimony; it will cause many bachelors to conceal their ages, and thereby lead them to tell untruths, which otherwise they never would have thought of; it will cause old maids to be ten times more intolerable than they usually are, by making them independent of husbands for a livelihood; it will have the effect to destroy that exquisite sensibility in men, who having lost their sweethearts by “hook or crook,” have made pledge to do penance all their lives by living in a single state; it will lead many a man to enter into the holy bands of wedlock, without being guided by that bewitching and electable passion, love (so essentially necessary to connubial felicity), and hurry them to marry merely to save the tax, and consequently produce many unhappy matches; for no marriage can be productive of happiness, without love. For Love is a curious thing you know, It makes one feel all over so. THEREFORE RESOLVED, that we will use our most earnest exertions to prevent the passing of the above named bill, which we consider unconstitutional, and fraught with the most alarming consequences to the peace and happiness of society. * * * * A. Wolkere, Chairman D. K. T. Smythe, Secretary The infamous bill was withdrawn.2 ■ All societies emphasize the importance of the family, even though various societies define the family unit differently. In primitive societies, the rules governing family relationships were both complex and strictly enforced. The great- est difference between the laws of primitive and modern societies is that modern laws are usually written (in statutes or court opinions) and, ostensibly, they are more “rational” and “civilized.” But of course, New York in 1820 and Georgia in 1930 were each regarded in their time as a civilized society in spite of the events described in the preceding scenario.

SOCIETY AND THE FAMILY UNIT

Consider family law in the broader context of human history: If any preindustrial society did not emphasize the importance of the family unit, that society most likely disappeared from the face of this Earth. That is because the family unit made survival possible. The success of the family unit was, quite literally, a matter of life and death for an entire community. The family provided nurture for the young, group labor for mutual sustenance, and an inheritance system that prevented fragmentation of the limited family holdings into unproductively small units. Those same functions continue to influence modern family law, even though child labor is less often needed for sustenance in an industrial society. Family law generally concerns these matters: ■ the marriage state ■ the rights and responsibilities of spouses ■ the rights and responsibilities between parents and children 80 CHAPTER 15

In all of these matters, family law also reflects the interests of society. In other words, family law does not exist solely for the well-being and protection of family members—it exists also for the well-being and protection of the community and society at large. Today, this is most obvious in the laws that require parents to send their children to school (or otherwise provide for their education). While the child benefits, so does society: Public education provides a more productive work force, adults better prepared for the responsibilities of citizenship, and a military force able to use modern technology. It also ensures that children will be indoctrinated with many of the core values of our society. Social change is complicating the once-familiar terrain of family law in America: ■ The courts of many states have upheld contracts (often unwritten) Palimony is financial support between unmarried partners for lifelong support (known as palimony) promised by one partner-in- in exchange for companionship, domestic labor, and other nonsexual cohabitation to the other, in consideration. However, the courts have held that a contract based exchange for companionship upon consideration for sexual services would violate public policy and and other contributions to their would, therefore, be unenforceable. home life. ■ Several state legislatures have considered granting official recognition to the “unions” of same-sex couples, with Vermont enacting the nation’s first statute recognizing same-sex civil unions. ■ There are attorneys who specialize in the legal rights of grandparents to intervene in the care and upbringing of their grandchildren. Medical advances have presented state legislatures and the courts with new legal issues. These include: ■ decision-making for brain-dead relatives on life support systems ■ care and education for children with severe handicaps who would not have survived infancy in prior generations, but who now live into adulthood ■ assistance of surrogate parents in conception and gestation In the near future we are likely to see a legal controversy over the right of would- be parents to use preconception genetic engineering on an ovum to eliminate a predisposition to some particular disease, such as hemophilia or cystic fibrosis.

THE LEGAL DEFINITION OF MARRIAGE

Marriage is the legal status of In a legal sense, marriage is the union of a man and woman in the relationship being joined as husband and of husband and wife. It is a legal status shared by a couple known as the “marital wife. state.” A man and a woman enter into marriage by making a contract with each other to live as husband and wife. The essence of that contract is incorporated in the marital vows that couples traditionally exchange, but the contract can be implied by their conduct even though the vows are incomplete or ambiguous— A ceremonial marriage as might occur when couples choose to write their own vows for the ceremony. conforms to all statutory In addition, their mutual responsibilities are established by law—both statutory requirements, such as a marriage license and the and common law—and a couple assumes those legal responsibilities even if couple’s mutual consent given both people are not fully aware of them. in the presence of a person Today, there are two recognized forms of marriage: ceremonial marriage and authorized to solemnize the common law marriage. A ceremonial marriage is one that conforms to all the marital union. statutory requirements, which typically require a license and a ceremony con- Family Law and Probate Law 81 ducted by an authorized person in the presence of witnesses. In addition, the couple to be married must be of sufficient age (the age of consent) and other- The age of consent is that age at wise competent to enter into the marriage contract. Depending upon state law, which a person may enter into a blood tests for sexually transmitted diseases, premarital counseling, and a statu- valid marriage without parental tory waiting period (between the issuance of the license and the marriage cere- consent. mony) might be required. Generally, the marriage must be consummated by cohabitation, unless the parties entered into the marriage with an understanding A marital union is consummated that their marriage relationship would not include sexual intercourse. (i.e., completed) by sexual intercourse, unless the couple A common law marriage is one entered into by mutual agreement, but with- entered into the marriage with out being solemnized by the statutory ceremony. The common law marriage an understanding that the agreement also must be followed by cohabitation, generally for a period of years marital relationship would not established by statute. A single act of intercourse is sufficient to consummate a include sexual intercourse. ceremonial marriage, but common law spouses must live in a continuing sexual relationship for a minimum period of some years. This requirement ensures that A common law marriage is the common law partners truly intend to be married. Common law marriage entered into by mutual agreements are typically oral, often made without witnesses. The absence of a agreement and cohabitation, statutory period of cohabitation would lead to many controversies in which one but without meeting the partner claimed the existence of a marriage agreement while the other denied requirements for a ceremonial such an agreement. Such controversies are far less likely after a couple has lived marriage. “as husband and wife” for 7 or 10 years. The common law couple must live openly as a married couple and must present themselves as a married couple to the community. Although the wife’s adoption of the husband’s surname would help to satisfy the latter requirement, it is not necessary that she do so. The man and woman can simply describe themselves to others as being a married couple and refer to each other as “my husband” and “my wife.” Common law marriage also requires that the couple be of sufficient age and otherwise competent to enter into the marriage agreement. Common law marriages can present problems when the couple separates or when either spouse dies. Without a written marriage agreement or other clear evidence of the marriage relationship, it is far easier to dispute the existence of a common law marriage because such marriages are not generally registered by the government. As a practical matter, therefore, a common law spouse can often remarry without presenting evidence of a divorce or annulment because no official record of the prior common law marriage exists. This does not mean that the second marriage is valid—it could be challenged by either the new ceremonial spouse or the common law spouse on grounds of bigamy. Because there is no public record of a prior ceremonial marriage, however, the challenging spouse would bear the burden of proving that a valid common law marriage existed at the time of the second marriage. If there are children from the common law marriage, inheritance rights can be disputed. The surviving spouse might find his or her inheritance rights disputed, as well, by other relatives of the deceased partner. For these reasons, and sometimes for reasons based upon concepts of morality, most states no longer recognize common law marriages.

THE REQUISITES FOR A VALID MARRIAGE Because one enters into marriage by making a contract, the requirements for a valid marriage are similar to those for any contract: ■ capacity to marry (capacity) ■ exchange of promises (consideration) ■ mutual consent to marry (meeting of the minds) ■ intent to form a valid marriage (legal purpose) 82 CHAPTER 15

Capacity requires both sufficient age and a “sound mind.” The age of consent A person of sound mind is not is established by state law. To be of sound mind, one must not be impaired by impaired by intoxication, mental intoxication, mental illness, inadequate intellectual development, etc. In this illness, inadequate intellect, or context, “impaired” means to be incapable of having an intention to marry or to other condition that would be unable to understand the meaning and significance of the marriage vows. Ca- prevent that person from either pacity also includes the physical ability to consummate the marriage—unless understanding the significance the marriage partners agree to enter into marriage in spite of that disability. of the marriage vows or being The promises exchanged might be the traditional wedding vows or those able to give free consent to the marriage. made in another form. The promises might even be inferred from the conduct of the parties. The law will presume that a couple who takes every other action required for a valid ceremonial marriage (e.g., obtaining the license, partici- pating in a ceremony before an authorized person and witnesses, signing the marriage certificate, and consummation of the marriage) exchanged mutual promises. Mutual consent will also be inferred from the actions of the couple, even if they do not utter words such as, “I do.” Of course, one issue of capacity—a sound mind—has special importance for mutual consent. Another issue related Duress is any form of pressure to consent is duress—any kind of pressure that overcomes one’s will, so that she or threat that overcomes does something she ordinarily would not consent to doing. Consent obtained by another person’s free will. duress is not valid because it is not freely given. For that reason, the “shotgun wedding” of former days would not make a valid marriage today. However, law- ful consent can be obtained by offering inducements: the adoption of a child from a former marriage, a promise to provide for the financial needs of the spouse’s parents, the offer to a celebrity of safe haven from an inquisitive and in- trusive world, and so forth. Consent obtained by fraud is also invalid. A person who falsely promises to beget children, but after marriage refuses to do so, has obtained the other’s consent by fraud if that promise to procreate was relied upon in deciding to marry. If a “look-alike” successfully poses as a famous movie star, the person who married the imposter because of her fame would not have given consent if the imposter’s true identity were known. An impediment is any Intent to form a valid marriage raises the matter of impediments to marriage. circumstance that makes a legal In most states, the following persons cannot form a valid marriage: two siblings, marriage impossible. two persons of the same sex, and any person already in a valid marriage relationship. In addition to siblings, some states extend the consanguinity rule to The consanguinity rule first cousins. Some states also bar marriages between siblings-by-adoption, be- prohibits specified blood tween stepparent and stepchild, and between persons in other degrees of relations (e.g., siblings, cousins, familial affinity. The consanguinity rule is based upon concerns for both ge- etc.) from entering into a netic risks and family harmony. The familial affinity rule is based upon the tra- marriage with each other. ditional concept of marriage transforming a husband and wife into one person— a “merging” of their identities. Being now the “same person,” each assumes the Familial affinity is the family family relationships of the other. relationship to the blood relatives of a spouse or to one’s steprelatives. THE EFFECT OF MARRIAGE UPON A SPOUSE’S PROPERTY RIGHTS Essentially, there are two questions here: How does marriage affect the ownership of property that each person brings to the marriage? And, how does marriage affect the ownership of property acquired during marriage? The modern rule is that property brought by each partner to the marriage continues to be separate property unless the owner takes some action to make it joint property. For example, real estate in the wife’s name will continue to be hers alone unless she deeds her ownership interest to her husband, or to her husband and herself. The same general rule applies to all personal property she owns: automobiles, furniture, bank accounts, etc. Family Law and Probate Law 83

However, a change in ownership of personal property can result from routine, everyday conduct of the spouses. For example, if the husband and wife deposit their separate paychecks into the wife’s bank account, their funds will then be commingled. One could argue that the husband was thereby making a gift of Funds from differing sources are his salary to his wife. But if the couple uses funds from that bank account to pay commingled when they are for mutual expenses—rent, food, car payments, vacations, etc.—a court will mixed together (e.g., by deposit probably conclude that the two intended to make the bank account and their re- into the same bank account) so spective salaries mutual property, even though the account remained in the that they lose their distinct wife’s name. That conclusion would be even more likely if the wife added her identity. husband’s signature to the account that was in her name alone. As for property acquired during the marriage, in most states a husband and wife can hold property separately, depending upon which of them earned or received that property. In other words, the ownership of property does not change just because they happen to be a married couple. In the traditional family where the husband was employed or operated a business and the wife worked at home without a separate income, most property was earned, received, and held in the husband’s name. If we go back a century or so, the husband even acquired ownership of the wife’s separate property that she brought to the marriage. As dual career families have become more common, married women own a larger share of real and personal property. Of course, a married couple can always choose to own property together, either as joint tenants or as tenants in common.

Community Property States Eight states are known as community property states (Arizona, California, Community property is Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington). By state law, property that a husband and most property acquired during the marriage is automatically the mutual prop- wife, who are residents of a erty of husband and wife. The law applies to wages and salaries, profits on in- “community property” state, vestments made with community property funds, etc. Even in the community acquire during their marriage and own jointly, each spouse property states, however, property received by gift or inheritance during the having an undivided half interest marriage usually remains separate property. Separate property owned prior to in that property. the marriage remains separate property. Depending upon the law of a particular community property state, separate property might become community property if it is commingled with community property or if it is otherwise treated by the separate owner as though it were community property.

Prenuptial Agreements and Spousal Property Rights A prenuptial agreement is an agreement made prior to marriage in which the prospective mates establish their future property rights. The agreement becomes effective at the time of their marriage and continues indefinitely unless the agreement provides otherwise. Prenuptial agreements are often made when one of the partners already has children and wants to secure their financial future. Wealthy persons are also likely to want prenuptial agreements, particularly if they fear that the marriage might not endure until their death. A prenuptial agreement is similar to a contract to marry, in the sense that it is executed in contemplation of marriage. A promise to marry might be part of the consideration for the agreement. Matters typically addressed in prenuptial agreements include: ■ ownership of property brought to the marriage by each partner ■ ownership (i.e., separate or mutual) of property acquired during the marriage ■ division of property in case of divorce ■ alimony and child support to be paid in case of divorce ■ distribution of separate property upon a partner’s death 84 CHAPTER 15

The agreement might include a provision that a partner’s will shall provide that certain property go to particular persons (e.g., the spouse, prior children, children of this marriage, etc.). Before making the agreement, each partner is obligated to make a full and fair disclosure to the other of his or her own assets and liabilities. Failure to fully disclose might make the agreement vulnerable to a later challenge for fraud. Prenuptial agreements can be attacked for other reasons, such as undue influence. To reduce the likelihood of unfair treatment and/or later court challenges, each partner should be represented by separate legal counsel when the agreement is negotiated, especially if one is more knowl- edgeable than the other in business and financial matters.

IN ADDITION TO “LOVE, HONOR AND CHERISH...” The promises made during traditional wedding vows are stated in very broad, general terms. In one sense, that is fortunate because our actual legal obligations to our spouse are quite sweeping. In fact, husbands and wives are sometimes surprised by some of the specific obligations they have unwit- tingly assumed. State law determines the legal obligations of spouses and ex-spouses toward each other. As mentioned in Chapter 14, the marriage contract is one in which the government dictates most of the terms. In that same chapter, we stated that the courts will not enforce a prenuptial agreement that violates state law or public policy. Consequently, a spouse might not be able to escape the obligation to care for his wife who is in the advanced stages of Alzheimer’s disease—even though she no longer even recognizes him or remembers his name. When one decides to marry, he implicitly accepts all spousal obligations laid down by law. The courts have even upheld the retroactive application of new statutory obligations to marriages formed years before. That presents a fascinating legal issue—the spouse can be bound by obligations she could not have contemplated with any certainty at the time of the marriage contract when she said, “I do.” The husband traditionally had an obligation to support his wife and children. Until fairly recently, there was no reciprocal obligation on the part of the wife. This disparity was reflected in the law of divorce, in that a wife could sue for divorce on the grounds of nonsupport, but a husband could not—no matter how superior her ability to earn a living as compared to his ability to do so. Many states have since modified that rule, recognizing that the obligation of support runs both ways and that the circumstances should determine which spouse should be burdened with the greater responsibility. Occasionally, ex-wives are ordered to pay spousal support to their less-prosperous former husbands.

THE TRADITIONAL VIEW: THE HUSBAND AS “HEAD OF THE FAMILY” There was a time, of course, when the husband held legal authority over the wife as well as their children, and was entitled to discipline her for any transgressions of her “wifely obligations.” That view might have derived from the concept that, upon marriage, the wife’s legal identity “merged” with that of her husband. More accurately, the wife’s legal identity as a separate person was largely extinguished—we say “largely” because, even in those times, husbands were occasionally convicted for seriously injuring or murdering their wives. Un- Chattel is a particular article of der the law, wives were reduced to little more than chattel, an article of personal personal property (e.g., book, property belonging to the husband. In contrast, the merging of their legal iden- necktie, or airplane). tities did not diminish in the least the identity of the husband. He retained his full legal identity, now enhanced by his status as head of the family and possessor of a wife and any property she had brought to the marriage. Family Law and Probate Law 85

A lingering legacy of that view is that, under the common law of some states, the wife is obliged to perform domestic duties for the husband with no compensation other than her housing, meals, and other “necessaries” (such as clothing and medical care). Some states even permit a husband to sue a third party for damages resulting from the loss of his wife’s domestic services due to in- juries caused by the defendant’s negligence. Another legacy of that view is the husband’s status, under the laws of some states, as the presumed “head of the household.” With that status goes the right to choose the family’s place of domicile (i.e., the place of “permanent” resi- One’s domicile is his place of dence). Some states still consider the wife legally obligated to join her husband permanent residence. whenever he determines to change the family’s domicile; her failure to follow the husband to his new abode is considered a desertion of the marriage. Under these traditional views, the husband suffered one disadvantage: Un- like the wife, he had a legal duty to support his spouse as long as they lived to- Practice Tip gether as a married couple. If he failed to do so, the wife could contract to obtain A victim of domestic violence necessities on the husband’s credit, creating a debt that the husband was obli- might need the protection of the gated to repay. If the couple separated, the husband’s obligations were generally courts. A common first step is to determined by the circumstances that led to the separation. A husband who tem- obtain a temporary restraining porarily left his domicile for business or pleasure was required to support his order. Many jurisdictions provide wife if she remained behind. If his wife left their domicile to escape the husband’s standard petition forms that misconduct, he still supported her during the separation. But if the separation identify the information required was due to the wife’s misconduct, the husband had no support obligation until of the petitioner. The paralegal she returned to his household. Under the traditional view, the husband deter- usually fills out the form (filling mined the family domicile, so a wife who moved out of the house to accept em- in blanks and checking appli- ployment or attend college in another community was not entitled to support. cable boxes) with the assistance of the client. The petition might THE MODERN VIEW: THE SPOUSES AS EQUALS require a sworn declaration or affidavit of the underlying facts The traditional view of marriage has undergone a gradual change under the com- that justify court intervention. mon law and this process of change continues. Courts are recognizing the gross The paralegal can draft the inequities imposed by the old rules of common law and increasingly accord to declaration based upon the wife equal standing with the husband. In some states, a husband and wife the information obtained in the may maintain separate domiciles without consent of the other and with no fault client interview. After review by attached to either partner. Many states have enacted statutes to recognize the the client and attorney, the equality of spouses in ownership of property, the right to make contracts, and client signs the declaration and the right to bring suit. And, as we will see later in this chapter, the legal obliga- petition under penalty of tion to support one’s spouse might depend as much upon relative need and abil- perjury. The paralegal then ity of the two as upon their gender. arranges to have the petition filed with the court. The court then issues an Responding to Domestic Abuse Order to Show Cause and Among the most important changes have been statutes protecting wives from Temporary Restraining Order rape and other physical abuse at the hands of their husbands. The law on phys- that must be served on the ical abuse by husbands has gone through three stages: person being restrained (e.g., spouse or paramour). The order ■ the early stage during which husbands were regarded to have a legal sets a date for hearing at which right to physically “discipline” their wives time the court will either vacate ■ a later stage during which physical abuse was an accepted ground for the order or make it permanent. divorce, but seldom resulted in criminal prosecution Until the hearing, the respon- ■ the current stage during which physical abuse is always a crime dent spouse must not do anything (e.g., telephone the One problem with treating spousal abuse as a crime is the frequency with victim) that is prohibited by the which complaining victims later refuse to testify against the abusive spouse. temporary restraining order. Some victims of chronic abuse are fearful of the consequences of doing so; others are manipulated by their abuser, overwhelmed by feelings of dependency, or 86 CHAPTER 15

deterred by their own misplaced sense of loyalty or guilt. For these and other reasons, many jurisdictions emphasize counseling for both partners and education or job training that will afford the wife greater opportunities to leave her husband, if that is her desire. In civil actions, the wife can seek court orders to protect her from further violence. In most states, the court can evict the husband from the household and order him to stay away from the wife and to refrain from further abuse. The problem with protective orders is that they are easily and frequently violated; a wife might have to continually summon police to enforce them. Their great advantage is that their violation provides unequivocal authority for the police to make an immediate arrest, even in the absence of further violence. Even so, it is not uncommon to find police officers persuading the violator to depart, rather than arresting him for the violation. It also is not unusual for courts to be reluctant to punish the violation of their own orders. Depending upon state law, the violator of a court order can be punished for civil or criminal contempt of court or for a misdemeanor. If a wife leaves her home to escape abuse, her husband might track her down to harass, threaten, or even attack her. Most states have enacted “stalking Stalking is the persistent statutes,” making such conduct criminal. Typically, such statutes define stalking infliction of unwanted attention as repeatedly engaging in the prohibited conduct (e.g., following, telephoning, or threatening behavior. threatening, verbally abusing, etc.), so that the victim is reasonably in fear for her safety or the safety of other family members. The client victim must, therefore, accumulate evidence of the repeated conduct, which can be quite difficult if there are no witnesses or threatening notes. Stored messages on telephone an- swering machines are useful if the stalker leaves hostile or sexually suggestive messages. Although studies show the overwhelming number of spousal abuse victims to be wives, an unknown number of husbands suffer from a similar pattern of chronic psychological and physical abuse at the hands of their wives. It is difficult to estimate the number of male victims of abuse. They may be less likely than women to report it and there is no support system (e.g., shelters) for abused husbands comparable to that for abused wives. Courts might be less concerned about males who are victimized by women, believing that men are in- herently better able to defend themselves.

THE ANNULMENT OF A MARRIAGE

An annulment is a retroactive An annulment is a retroactive court judgment that holds an ostensible marriage court judgment that holds an to be void. To enter a judgment of annulment, the court must find some “fatal de- ostensible marriage to be void. fect” in the marriage contract that the parties attempted to make. The defect is “fatal” in the sense that it must be so serious that it would absolutely prevent a valid marriage. In effect, the court finds that the putative “marriage” was void from the beginning. The grounds for a judgment of annulment fall into two cate- gories: lack of capacity to marry and lack of intent to marry. By their very nature, these impediments must exist at the time the putative marriage took place. However, these impediments will not be recognized legally unless brought to the court’s attention—the marriage will be found void only if one of the partners (or the parent of an underage spouse) asks the court to annul that marriage. Such marriages are “voidable,” as opposed to being automatically “void.” Absent such a request and subsequent judgment, the law will presume that marriage to be valid. The most common example of this is the marriage of a person below Family Law and Probate Law 87 the age of consent. If the spouses continue to live as a married couple after the younger spouse has passed the age of consent, no beneficial public interest is served by considering their marriage to be automatically void. But if they do obtain an annulment, the marriage is legally viewed as being nonexistent from the beginning. In contrast, however, a bigamous or incestuous marriage would be void, even if the parties were aware of the pre-existing marriage or of their disqualifying relationship in consanguinity or affinity. Because a void marriage—as opposed to a voidable marriage—never existed, it is not legally necessary to obtain a court judgment. Nonetheless, most persons would prefer to have the certainty of an annulment. Most states have a statute that determines whether a marriage is void or voidable. The most common grounds for annulment are youth, physical incapacity to consummate the marriage, and intoxication at the time the consent was given (e.g., during an impromptu, “quickie” wedding). Other grounds include fraud or duress in obtaining consent to the marriage. Generally, the courts will not penalize the children of a marriage that has been annulled. For example, their inheritance rights will generally be those that they would have had as children of a legitimate marriage. The duty to support children arises from being a parent, not from being married, so the children are entitled to the same child support they would have received following a divorce.

LEGAL SEPARATION AND SEPARATE MAINTENANCE

This is a complex area of family law. In fact, the law of marriage, divorce, separation, division of marital property, etc., is one of the most diverse among all fields of law—every state seems to have its own peculiar legal standards. Gen- eralization, then, can be more risky in this area of law than it is in most others. The reader should inquire into the specific law of his own state, which might differ from the general discussion here. When spouses live apart, separate maintenance is the arrangement Separate maintenance is the whereby their respective financial needs and responsibilities are determined. arrangement in which a husband Typically, the husband provides a monthly income to the wife, although the re- and wife live apart and their verse is sometimes true today. If there are children of the marriage, the agree- respective financial obligations ment will determine their custody and support. Separate maintenance might be to each other are established. an arrangement to provide for a “cooling off” period with a reconciliation antic- ipated. Or, to the contrary, it might be an arrangement made in contemplation of divorce. If it is the latter, courts will examine it with a critical eye. Public policy prefers that marital differences be amicably resolved and disfavors any “deal” made to facilitate divorce. Separate maintenance agreements may be private arrangements or they may be submitted for court review—in which case the court eventually makes the arrangement part of an enforceable order of the court. If done in anticipa- tion of divorce, the agreement might provide for division of the couple’s property. If the husband is wealthy, the wife might receive a lump-sum settlement, although that is more common in separate property states where the earnings of the doctor/entrepreneur/entertainer husband are not already mutually owned A legal separation (or “divorce by the wife. from bed and board”) is an In contrast to separate maintenance for a temporary period, a legal sepa- agreement to live apart for an ration (also known as a “judicial separation” or “divorce from bed and indefinite period while board”) is intended to be for an indefinite duration. For reasons that range remaining legally married. 88 CHAPTER 15

from religious scruples to the pursuit of separate careers, a couple may de- cide to live separately—but remain married—for their lifetimes. The couple might live separately forevermore, but their marriage remains intact. Legal separations always require a court decree. Issues of spousal support and child custody and support will be decided. The decree will also determine the division of the couple’s mutual property. Divorces from bed and board find their origin in ecclesiastical law and Eng- lish common law. When a husband or wife violated the marriage vows by adultery, extreme physical cruelty, or willful desertion and nonsupport, the Christ- ian church preserved the “indissolubility” of marriage by granting a divorce a mensa et thoro. This required the couple to live apart for the remainder of their lives, but retained the marital union in a spiritual and legal sense. The separated husband and wife could not remarry and their other marital obligations (e.g., the wife’s support by the husband) continued. This traditional arrangement is ex- emplified by a contemporary Kentucky statute: Practice Tip Kentucky Revised Statutes, § 403.050 Figure 15.1 shows a standard Divorce from bed and board may be rendered for any cause that allows divorce, California form that sometimes or for any other cause that the court in its discretion considers sufficient. A di- is used to initiate a court vorce from bed and board shall operate as to property thereafter acquired, and proceeding for one of the upon the personal rights and legal capacities of the parties, as a divorce from the following actions: bond of matrimony, except that neither shall marry again during the life of ■ dissolution of marriage the other, and except that it shall not bar curtesy, dower or distributive right. The judgment may be revised or set aside at any time by the court rendering it. (no-fault divorce) ■ legal separation of spouses ■ nullification of marriage If the client’s situation is uncom- MARITAL DISSOLUTION plicated, the attorney might have the legal assistant AND DIVORCE complete this form and file it with the court. In more compli- The terms “marital dissolution” and “divorce” are interchangeable, although cated situations, the attorney some believe “marital dissolution” is more descriptive of the legal effect of a di- will prefer to draft a petition vorce. However, because only valid marriages can be dissolved, neither term in- similar to the sample complaint cludes annulment. In addition to recognizing the validity of the marriage—an is- shown in Chapter 6—or the sue of great importance to many divorcing spouses and their families—a legal assistant might draft the divorce leaves undisturbed certain legal rights that could be wiped out by an an- formal petition for the attorney’s nulment (e.g., certain entitlements under Social Security or a spouse’s employ- review and revision. ment benefits). The form in Figure 15.1 has been approved by the Judicial THE GROUNDS FOR MARITAL DISSOLUTION Council of the California courts. The Judicial Council has Under English common law, divorces were granted only for the most serious adopted hundreds of such forms transgressions by one spouse against the other, such as adultery or desertion. in many fields of law—others Those standards of “fault” were adopted by the original 13 United States, and will be seen in Part II of this they continue to influence American family law today. In recent years, however, chapter for probate practice—to almost every state of the Union has recognized some form of “no-fault” divorce make access to the courts less (discussed later). Even so, traditional grounds for divorce continue to be im- difficult and costly. A number of portant in many states. In addition to adultery and desertion, the most com- other states provide similar monly recognized grounds are: forms for their jurisdictions. ■ nonsupport for the wife Such “fill-in-the-blank” forms ■ extreme cruelty also facilitate the use of paralegals to provide legal services in ■ habitual drunkenness less complex legal matters. ■ incarceration for a felony ■ insanity Family Law and Probate Law 89

FIGURE 15.1 Petition (Family Law) 1281 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY

TELEPHONE NO. (Optional):FAX NO.(Optional): E–MAIL ADDRESS (Optional): ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: MARRIAGE OF PETITIONER:

RESPONDENT: PETITION FOR CASE NUMBER: Dissolution of Marriage Legal Separation Nullity of Marriage AMENDED

1. RESIDENCE (Dissolution only) Petitioner Respondent has been a resident of this state for at least six months and of this county for at least three months immediately preceding the filing of this Petition for Dissolution of Marriage.

2. STATISTICAL FACTS a. Date of marriage: c. Period between marriage and separation b. Date of separation: Years: Months:

3. DECLARATION REGARDING MINOR CHILDREN (include children of this relationship born prior to or during the marriage or adopted during the marriage): a. There are no minor children. b. The minor children are: Child's name Birth date Age Sex

Continued on Attachment 3b. c. If there are minor children of the Petitioner and Respondent, a completed Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (form MC–150) must be attached. d. A completed voluntary declaration of paternity regarding minor children born to the Petitioner and Respondent prior to the marriage is attached.

4. Petitioner requests confirmation as separate property assets and debts the items listed in Attachment 4 below: Item Confirm to

NOTICE: Any party required to pay child support must pay interest on overdue amounts at the "legal" rate, which is currently 10 percent.

(Continued on reverse) Form Adopted for Mandatory Use PETITION Family Code, §§ 2330, 3409; Judicial Council of California Cal. Rules of Court, rule 1215 Rule1281 [Rev. January 1, 2001] (Family Law) 90 CHAPTER 15

FIGURE 15.1 Petition (Family Law) (continued )

MARRIAGE OF (last name, first name of parties): CASE NUMBER:

5. DECLARATION REGARDING COMMUNITY AND QUASI-COMMUNITY ASSETS AND DEBTS AS CURRENTLY KNOWN a. There are no such assets or debts subject to disposition by the court in this proceeding. b. All such assets and debts have been disposed of by written agreement. c. All such assets and debts are listed in Attachment 5c below(specify):

6. Petitioner requests a. Dissolution of the marriage based on d. Nullity of voidable marriage based on (1)irreconcilable differences. Fam. Code, § 2310(a) (1) petitioner's age at time of marriage. (2) incurable insanity. Fam. Code, § 2310(b) Fam. Code, § 2210(a) b. Legal separation of the parties based on (2) prior existing marriage. (1) irreconcilable differences. Fam. Code, § 2310(a) Fam. Code, § 2210(b) (2) incurable insanity. Fam. Code, § 2310(b) (3) unsound mind. Fam. Code, § 2210(c) c. Nullity of void marriage based on (4) fraud.Fam. Code, § 2210(d) (1) incestuous marriage. Fam. Code, § 2200 (5) force.Fam. Code, § 2210(e) (2) bigamous marriage. Fam. Code, § 2201(6) physical incapacity. Fam. Code, § 2210(f)

7. Petitioner requests that the court grant the above relief and make injunctive (including restraining) and other orders as follows: Petitioner Respondent Joint Other a. Legal custody of children to...... b. Physical custody of children to...... c. Child visitation be granted to ...... (1) Supervised for ...... (2) No visitation for ...... (3) Continued on Attachment 7c(3). d. Determination of parentage of any children born to the Petitioner and Respondent prior to the marriage. e. Spousal support payable to (wage assignment will be issued)...... f. Attorney fees and costs payable by ...... g. Ter minate the court's jurisdiction (ability) to award spousal support to respondent. h. Property rights be determined. i. Petitioner's former name be restored (specify): j. Other(specify): Continued on Attachment 7j. 8. If there are minor children born to or adopted by the Petitioner and Respondent before or during this marriage, the court will make orders for the support of the children. A wage assignment will be issued without further notice. 9. I HAVE READ THE RESTRAINING ORDERS ON THE BACK OF THE SUMMONS, AND I UNDERSTAND THAT THEY APPLY TO ME WHEN THIS PETITION IS FILED. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date:

...... (TYPE OR PRINT NAME) (SIGNATURE OF PETITIONER) Date:

...... (TYPE OR PRINT NAME) (SIGNATURE OF ATTORNEY FOR PETITIONER) NOTICE: Please review your will, insurance policies, retirement benefit plans, credit cards, other credit accounts and credit reports, and other matters you may want to change in view of the dissolution or annulment of your marriage, or your legal separation. However, some changes may require the agreement of your spouse or a court order (see Fam. Code,§§ 231–235). Dissolution or annulment of your marriage may automatically change a disposition made by your will to your former spouse. 1281 [Rev. January 1, 2001] PETITION Page two (Family Law) Family Law and Probate Law 91

To the extent that states adopt the modern rule that both spouses have a mutual obligation for support, the wife’s failure to support the husband might become a viable ground for divorce, particularly if the husband suffers from some disability.

“No-fault” Divorce versus Divorce “for Fault” The concept of no-fault divorce recognizes that some marriages fail, not be- A no-fault divorce is based upon cause one partner is guilty of some egregious or evil conduct, but because the one spouse’s claim that the marriage partners were either ill-suited to each other from the beginning or have marriage relationship has failed grown apart as they matured into persons very different from the couple that ex- due to irreconcilable differences changed vows years before. Although the ideal is that mutual love and respect without the need to show any will grow between spouses over the many decades of a lifetime marriage, ordi- misconduct by either spouse. nary human nature sometimes prevents that ideal from being realized. Advo- cates of no-fault statutes say that such laws recognize these realities of the human condition. California enacted the nation’s first no-fault statute in 1970. Under its terms, the court can grant a divorce upon petition by either partner for dissolution of A dissolution is the termination the marriage; a joint petition or mutual consent to the dissolution is not re- of a marriage by divorce. quired. The court may decree a dissolution of the marriage or a legal separation upon a showing by evidence (which can be affidavits) of irreconcilable differences that have caused the irremediable breakdown of the marriage (California Civil Code § 4508). Such irreconcilable differences and “incurable insanity” were made the only grounds for divorce or legal separation (California Civil Code § 4506). Furthermore, Section 4509 of that code states: “[E]vidence of specific acts of misconduct shall be improper and inadmissible, except where child custody is in issue and such evidence is relevant to that issue.” Consequently, except in child custody disputes, a California court will not permit evidence of al- coholism, desertion, adultery, nonsupport, etc., in a divorce proceeding. Within 15 years following California’s enactment, 48 other states had adopted some form of no-fault divorce law. Some states followed the California model, making irremediable breakdown (or “incompatibility”) and insanity the only grounds for dissolution. Other states added marital breakdown to the existing list of fault-based grounds for divorces, but required mutual consent to the “no-fault option.” The latter model—with its requirement of mutual consent— introduces another factor in predivorce negotiations. One commentator has observed that if marital partners have the option of using either a no-fault process or the traditional fault-based process, the threat of making fault-based accusations can extract concessions from a partner who wants to avoid a messy divorce proceeding. The threat of public scandal is not the only leverage in such threats. Fault-based divorce proceedings require more time and money and impose greater emotional stress. On the other hand, the “pure” no-fault system “shifts the power from the party who wants to stay married to the one who wants to get divorced.” The latter partner can obtain the divorce simply by petitioning the court, so the former partner must plead or bar- gain to keep the marriage intact.3 No-fault statutes have been adopted for a variety of reasons: ■ Many state legislators no longer see great value in forcing people to remain in unhappy marriages. ■ Unhappy marriages that are continued “for the sake of the children” often do not benefit those children. ■ Court battles to establish who is at fault often become brutal mud- slinging contests, which can distress children old enough to compre- hend what is occurring. 92 CHAPTER 15

■ Children are sometimes called as witnesses to prove the misconduct of one parent against the other. ■ The court battles tend to increase the bitterness that often accompanies a divorce, often to the detriment of children caught between the warring parents. ■ People find it demeaning and humiliating to present evidence of adultery, desertion, extreme cruelty, etc. ■ In most unhappy marriages, both spouses share some blame. The court battles are more often fought to determine child custody or the division of property rather than to justify the divorce itself. ■ Perjury becomes commonplace when states establish very narrow grounds for divorce. Regarding the latter reason, in the state of New York—which until 1966 recognized adultery as the sole grounds for divorce—a small industry once existed to provide a female “lover” who would be “discovered” nude (or nearly so) in a hotel room with the husband. A private investigator and the “victimized” wife would then rush into the room to obtain photographic “proof of the husband’s adultery.” The husband typically paid the fees of both the female pretender and the investigator. The investigator and the wife would then perjure themselves in court so that a divorce decree would be granted. Of course, the issue of adultery typically had nothing to do with the actual reasons for the couple’s mutual desire to divorce. Another factor leading to no-fault statutes was the increased social accept- ance of divorce and subsequent remarriage. Some would argue that no-fault divorce is also a reflection of the declining influence of religious values in Ameri- can life. Without question, no-fault divorce has made the wedding vows easier to break or to renounce (however one wishes to view it). The California Judicial Council’s form for responding to a unilateral petition for dissolution provides an opportunity for the respondent-spouse to contend that “there is a reasonable possibility of reconciliation” and to deny the grounds stated in the petitioner-spouse’s petition. However, that might be a futile gesture because the court will not make a determination on the issue of “irreconcilable differences.” In fact, the spouses’ opposing contentions on that very point might be deemed to constitute an irreconcilable difference. The most that the respondent- spouse might achieve is a recommendation that the couple consider counseling before proceeding with the divorce. So, in effect, there is no way to prevent one’s spouse from ending the marriage under a true no-fault system.

DIVORCE AND THE DIVISION OF PROPERTY There is great variation in state laws on property division. The fundamental issue is the determination of which property is owned jointly and which is separate property. The earlier discussion of marital property applies here. Thus: ■ Separate property brought to the marriage and not commingled remains the separate property of that spouse. ■ Separate property brought to the marriage and placed in both names or commingled generally becomes mutual property. ■ Property acquired during the marriage by gift or inheritance is generally separate property, unless it has been commingled. ■ Salaries and the profits from separate investments during the marriage remain separate property in most states, unless commingled. ■ Community property states have a legal presumption that all property acquired during the marriage, by either wife or husband, is mutually owned as “community property” (excepting gifts and inheritances). Family Law and Probate Law 93

Depending upon state law, whatever is separate property at the time of divorce usually is retained by that respective spouse. The couple’s mutual property is divided between the two, using a formula or criteria set by law. In some states, each spouse receives half of all mutual property. In other states, the law provides for “equitable distribution” of all mutual property according to the respective needs and earning capacities of the couple. Some “no-fault” states provide that even separate property may be divided “equitably” as though it were mutual property of the couple. Marital property is not limited to real estate and tangible personal property. If one spouse has accumulated an entitlement to a future pension (known as “vesting”), the value of that pension might be considered an asset of the marriage—particularly if the other spouse was not employed outside of the home while the right to that pension was accruing, but instead contributed services to the marriage as a homemaker. Other intangible assets might include life insurance policies and prospective settlements of litigation that arose during the marriage.

Alimony and Spousal Support Alimony (or spousal support) is money paid by one ex-spouse to the other to Alimony (or spousal support) is provide for ordinary living expenses. Its origin is the wife’s common law right to money paid by one ex-spouse to be supported by her husband. Today, however, either husband or wife may be the other to provide for ordinary ordered to provide support to the ex-spouse. The U.S. Supreme Court has even living expenses. declared unconstitutional state laws that authorize court-ordered alimony to be paid by the husband but not by the wife (Orr v. Orr, 440 U.S. 268 [1979]). Until the middle of the twentieth century, most states gave substantial consideration to “marital fault” (i.e., whichever spouse was the guilty party) in determining the amount of alimony. A wife who had committed a very serious offense, such as adultery or desertion, might receive no alimony at all. On the other hand, if the husband was guilty of such an offense, the alimony might be increased as a form of punishment of the husband and compensation for the wronged wife. The current trend, however, is to place much less emphasis upon marital fault in determining which spouse should pay and how much alimony is appropriate. In fact, some states prohibit any consideration of fault. In most states, the amount of the alimony depends largely upon the lifestyle to which the recipient spouse has become accustomed during marriage and the ability of the other spouse to pay. That explains why courts sometimes order wealthy spouses to pay more per month in alimony than many of us are able to earn in a year. No wonder some people are tempted to take a chance on marriage with a tycoon or movie star whom they would otherwise never agree to marry! However, many other factors can enter into the calculation of alimony. A husband who managed the career of his actress wife for 22 years might be entitled to more alimony than if their marital and professional relationship had lasted only 5 years. The registered nurse who supported her husband through years of medical school might be recompensed by a larger alimony award. The ability of a former spouse to support himself now, and his opportunity to increase his earning capacity through education, are other factors. A change in the financial circumstances of either ex-spouse could justify a court order modifying the amount of alimony. In some states, the alimony obligation is extinguished upon the remarriage of the recipient ex-spouse, and in other states the remarriage can be a basis for reducing alimony payments. Al- though bankruptcy does not discharge an ex-spouse from the alimony obligation, it can be a basis for reducing the amount. A wife who has been a homemaker for her entire adult life might not be expected to become self-supporting as quickly as a wife who has had an earlier or continuing career. A spouse who becomes the custodial parent of small children 94 CHAPTER 15

might be entitled to more alimony (in addition to child support) because his opportunities to earn money and to advance his earning capacity are both limited by the children’s need for his parental attention and supervision. Traditionally, wives were entitled to receive alimony until their death or remarriage. The modern trend, however, is to award alimony for some limited period, depending upon the recipient’s prospects for becoming self-supporting. Al- imony is intended not to punish the paying spouse, but to provide essential support to the needy spouse, so the recipient’s later enrichment might be grounds for terminating the alimony payments.

DETERMINING CHILD CUSTODY During marriage, parents living together have joint custody of their children. Each parent may make unilateral decisions concerning the child’s welfare unless the other parent obtains an order limiting that right. Generally, it is not necessary to obtain the consent of the other parent to such a decision. Thus, only one parent’s signature is required to authorize medical treatment or to enroll a child in school, for example. If one parent dies, the remaining parent has sole custody. If both die, a guardian will be appointed by the court. There are two types of child custody: physical custody and legal custody. Physical custody lies with the Physical custody lies with the parent(s) who live(s) with the child. A parent parent who lives with the child without legal custody cannot make decisions unilaterally about the child’s wel- and has responsibility for the fare (e.g., schooling). Parents who are married and living with their child have child’s daily care and well-being. both legal and physical custody. When divorced parents are reasonable and co- operative, the court might award physical custody to one but grant joint legal Legal custody gives the parent custody. In that circumstance, each parent has the same legal authority con- authority to make all decisions cerning the child’s welfare as would exist if both were still married and living about the child’s welfare (e.g., with the child. education and medical care). Although the issue of child custody usually arises in the context of marital separation or divorce, it can arise also in such circumstances as child abuse or neglect, parental unfitness, and disputes between putative parents and a surrogate mother. Recent decades have seen a remarkable increase in the number of grandparents who have legal custody of their grandchildren. In cases of separation or divorce, the traditional practice was to award custody of young children to the mother unless she was shown to be an unfit parent. This was known as the “tender years presumption.” In some unfortunate situations, fathers faced the dilemma of either challenging the mother’s fitness in a messy court battle or resigning the children to the care of a less than ade- quate parent. Because mothers had what was, in practice, a “presumptive” right to custody, they did not face that choice. There was no need to prove the father’s unfitness in order for the mother to obtain sole custody. The modern trend is to award custody to the parent more likely to meet the child’s needs for physical and emotional well-being. Thus, the contest—if there is one—theoretically can be fought in positive terms, rather than through at- tacks upon the character and conduct of the other parent. In reality, of course, emotions usually run high, and often one or both of the parents are unable to re- sist slinging mud. Courts sometimes split the year into two portions (e.g., the school year and the summer), granting each parent custody for a portion of the year (“split custody”). When one parent has physical custody—whether for the entire year or for a portion of the year—the court typically grants visitation rights to the other parent. Visitation rights can be denied, however, if the court determines that to be in the best interest of the child. The courts have extraordinarily broad discretion in deciding custody rights. Their decisions will not be reversed upon appeal except for a serious abuse of that discretion. Depending upon the age of the child, the court may consider the Family Law and Probate Law 95 child’s expressed wishes. To determine that, judges sometimes interview the child in chambers with only a court reporter present. Other factors commonly considered are the child’s relationship with the parents, the effect of the placement on the child’s schooling, and the parents’ fitness to provide a safe and healthy environment for the child. Most states have statutes setting forth the criteria to be applied by the court. Some require the court to consider a recommendation from the state child welfare agency. If the parents are to have joint physical and/or legal custody, the court will inquire into their ability to cooper- ate for the well-being of the child. If a court deprives a parent of visitation rights, it must not do so for arbitrary or capricious reasons, which would violate the parent’s due process rights under the 14th Amendment. In Santosky v. Kramer, 455 U.S. 745 (1982), the Supreme Court held that, to satisfy those due process rights, a parent’s unfitness must be established by “clear and convincing evidence,” a higher standard than the “pre- ponderance of the evidence” used for most civil matters. Some states have statutes granting visitation rights to the child’s siblings, grandparents, and step- parents. Visitation rights and custody orders are enforceable under the court’s contempt powers. In some cases, courts have made custody contingent upon the child continuing to reside in a particular state; if the custodial parent wants to move to another state, he or she would have to petition the court for modifi- cation of that order. Controversies over child custody when parents live in different states often are resolved by the Uniform Child Custody Jurisdiction Act.

DETERMINING FINANCIAL SUPPORT FOR THE CHILD Traditionally, the father bore the entire legal obligation of supporting his children. Today, however, most states impose that obligation on both parents in pro- portion to their ability to care and provide for the children. Depending upon state law, a stepparent might be obligated to support the children so long as he remains married to the child’s natural parent. Following a separation or divorce, the noncustodial parent might have the larger financial obligation because the custodial parent is providing a substantial portion of the child’s support through daily care and supervision. The obligation to support the children generally continues until they reach their majority or become legally emancipated (e.g., by marriage). Depending An emancipated minor is free upon state law, a parent might be obligated to support a seriously disabled child from parental control and able even into adulthood. The amount of child support generally depends upon the to order her own life as if she lifestyle that the children enjoyed during the marriage and upon the parents’ were an adult. Emancipation can ability to pay. As with alimony, the amount of child support may be modified be gained by court order or, in upon a showing that the circumstances of the parent and/or child have changed. some states, by entering a valid marriage. ENFORCING ORDERS FOR SPOUSAL AND CHILD SUPPORT Nonpayment of spousal and child support is a national problem of enormous magnitude. Support orders can be enforced through the court’s contempt powers; some states have statutes providing other measures as well. Nonpayment is a criminal offense in some states. Some states empower local prosecutors to collect support payments and distribute them to the spouse or child who is the beneficiary of a support order. In addition, the beneficiary of a support order can use the same enforcement measures available to anyone who has received a judgment for damages. Every state has adopted either the Uniform Reciprocal Enforcement of Sup- port Act (URESA) or its equivalent. URESA covers support payments to former spouses as well as to children. Under URESA, the courts of one state can enforce 96 CHAPTER 15

the support orders of courts in another state. In other words, the enforcement power arises out of mutual enactment of URESA by the states involved. Usually, the custodial parent files an enforcement action in the state where the child resides. The defendant must then answer that action in a court of the state where he resides. The latter court will hear the case; the local prosecutor will represent the child in that hearing. URESA also provides for criminal enforcement of support orders. In 1975, Congress enacted federal legislation to reduce the cost of welfare by recovering support payments from so-called “deadbeat” parents.

SCENARIO

Jack Nguyen is a paralegal in a small family law practice. As is common in this field, there are only two attorneys in the firm and Jack works for both. “The office might not need a full-time legal assistant if we were not in a family law practice,” Jack observes. “But in this field, there is an enormous range of tasks that I can do with minimal supervision by the attorneys. The only other employee is Julie, the receptionist, who doubles as billing clerk and legal secretary.” Jack acknowledges that he isn’t able to bill all of his time to the clients. “There’s just too many tasks that aren’t truly professional and can’t be billed. Sometimes, I have to help Julie out with filing, processing the client bills, and so forth. But that’s what you get with a job in a very small law office. Actually, I like the intimate atmosphere and close teamwork. And there’s plenty of variety in my work.” In addition to the typical paralegal tasks in a family law practice, Jack has gradually assumed a substantial amount of the legal research assignments. The firm’s practice has grown to include much more than divorces, custody disputes, prenuptials, and adoptions. Jack has done legal research on issues related to surrogate parenthood, adoption by same-sex couples, abduction by noncustodial parents, and the emancipation of minors. “There are a lot of cutting-edge issues coming up in family law practice, and I find it completely fascinating.” ■

THE LAW OF ADOPTION

Interestingly, legal adoption is a fairly recent innovation established by state statute. There were no rules or procedure for adoption under the common law; in fact, the common law did not recognize adoption. Of course, in the Christian church, godparents served as sponsors at baptism and sometimes assumed a responsibility for the child’s care in the event the natural parents later died. Rela- tives often did the same, as did couples who were unable to have children of their own. However, none of this was sanctioned by the law and there was no inquiry by the courts. Eventually, every state in the Union enacted statutes to recognize and govern adoptions, primarily as a protection for children. The legal effect of an Adoption extinguishes all rights adoption is to extinguish the rights and duties of the child’s natural parents or and duties of a child’s natural guardian and to substitute a new legal relationship with the adoptive parent(s). parent and assigns those rights Court approval is intended to ensure that the adoptive parents are fit for that and duties to the person role and that the child’s interests are protected. Depending upon state law, the adopting the child. consent of children over a certain age may be required for their adoption. The regulation of adoption varies widely among the states. However, most states have a government agency that either matches children with adoptive Family Law and Probate Law 97 parents, or at least makes a recommendation to the court concerning the ap- propriateness of a proposed adoption. Private agencies also coordinate placement for children needing a home; in some states, adoptions arranged by licensed private adoption agencies are not individually reviewed by the state child welfare agency, although they must be approved by the courts. In the latter states, the licensure process is intended to ensure responsible placement procedures.

PRIVATE ADOPTIONS There are also private adoptions in which the natural and adoptive parents make arrangements either directly or (more commonly) through one or more attorneys. In private adoptions, the adoptive parents pay for the legal fees involved, and—if the child is a newborn—often pay the medical expenses of the mother. If the adoption arrangement is made prior to birth, the adoptive parents may also provide reasonable living expenses for the birth mother during the final months of her pregnancy. It is illegal to pay for anything other than legal, medical, and living expenses that are related to the pregnancy, birth, and adoption. That prohibition is intended to prevent the placement of a child with the high- est bidder. A natural parent who accepts prohibited payments might be guilty of selling the child—an early practice that contributed to the enactment of adoption statutes. Private adoptions by close relatives are not supervised as strictly as adoptions by strangers because the law presumes some beneficial and unselfish mo- tivation on the part of persons who take into their home the child of a close re- lation. It is also assumed that the natural parent would know something of the character and temperament of the relative to whom the child is surrendered. Courts usually look favorably upon arrangements made by living parents for the care of their children in case the parents should die. In those cases, the court usually puts great reliance upon the judgment of the natural parent. Except for private adoptions, the identity of the natural and adoptive parents is kept confidential in most states. One result is that the child adopted as an infant will be unaware of the natural parents’ identity. Some states have authorized a voluntary process whereby natural parents and adoptees may con- tact each other if both consent. Court challenges to anonymity laws have generally been rejected on grounds of the privacy rights of the persons involved.

STANDARDS FOR COURT APPROVAL OF ADOPTION The standards for court approval of adoption are really very similar to those applied in child custody decisions, except that the child and the adoptive parents do not usually have a pre-existing relationship to be evaluated. For that reason, some states do not permit final court approval until the child has lived with the adoptive parents for a year or so, during which time a social worker makes pe- riodic evaluations. Although the courts of some states have been reluctant to approve single-parent adoptions, they are becoming more frequent. Some courts have refused to allow adoptions wherein the parents are of a different race or re- ligion from that of the child. In some states, courts have approved adoption by unmarried same-sex couples, while the courts of other states have rejected such petitions. A major issue is the consent of the natural parents, if living. Even a noncustodial parent can block adoption by refusing consent. Once parental consent has been freely given, it generally cannot be revoked. In the case of children born out of wedlock, the law is more complicated because there is no legally presumptive father. Paternity must be established by the mutual testimony of the 98 CHAPTER 15

parents or by scientific evidence. However, the U.S. Supreme Court has held that unmarried fathers have due process rights regarding their relationship with their children born out of wedlock (Stanley v. Illinois, 405 U.S. 645 [1972]). In Stanley, a natural father who had lived for some years with his children and their mother was denied custody upon the death of the mother, based upon an ir- refutable presumption under Illinois law that an unmarried father was patently unfit as a parent. The Supreme Court held that the father had a due process right to a hearing on the issue of his fitness and the appropriate custody arrangement for his children. That right of unmarried fathers was narrowed, however, in Quilloin v. Wal- cott, 434 U.S. 246 (1978). In that case, the Supreme Court held that the consent of an uninvolved father is not needed for an adoption by the child’s stepfather. Under Quilloin, due process rights accrue only to fathers who have demonstrated substantial interest in their children’s well-being (e.g., by providing financial support or seeking custody). In Caban v. Mohammed, 441 U.S. 380 (1979), the Court struck down a statute that required consent of the unmarried mother for an adoption, but not that of the unmarried father who had maintained a relationship with the child. The Supreme Court held that statute to violate the Equal Protection Clause of the 14th Amendment.

The Legal Presumption of a Husband’s Paternity A child born during a marriage is generally presumed to be the child of the husband. The husband may disclaim paternity, however, and may overcome that presumption if his disclaimer is supported by conclusive scientific evidence. However, the Supreme Court has upheld a conclusive presumption under state law that the husband is the father, although another man claims to be the father A conclusive presumption (Michael H. v. Gerald D., 491 U.S. 110 [1989]). A conclusive presumption estab- establishes one fact based upon lishes one fact—in this case, the husband’s paternity—based upon the proof of the proof of another fact, so that another fact—in this case, the child’s birth to the husband’s wife—so that, as a no amount of contrary evidence matter of law, no amount of contrary evidence can overcome that presumed fact. can overcome that presumed In Michael H., the husband and wife wanted to raise the child, whom they held fact. out to their community to be the husband’s child although Gerald D. was the true biological father. In the following Case in Point, Justice Antonin Scalia delivered the opinion of a fragmented court—several justices concurring in part and dissenting in part— while Justices Brennan, Marshall, White, and Blackmun dissented outright from the majority’s opinion. All italicized words in these excerpts are shown as they appear in the Supreme Court’s own opinion.

A CASE IN POINT

Michael H. v. Gerald D. 491 U.S. 110 (1989)

Under California law, a child born to a married woman living with her husband is presumed to be a child of the marriage. Cal.Evid.Code Ann. § 621 (West Supp. 1989). The presumption of legitimacy may be rebutted only by the husband or wife, and then only in limited circumstances. Ibid. The instant appeal presents the claim that this presumption infringes upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man, and the claim that it infringes upon the constitutional right of the child to maintain a relationship with her natural father. Family Law and Probate Law 99

I The facts of this case are, we must hope, extraordinary. On May 9, 1976, in Las Vegas, Nevada, Carole D., an international model and Gerald D., a top exec- utive in a French oil company, were married. The couple established a home in Playa del Rey, California, in which they resided as husband and wife when one or the other was not out of the country on business. In the summer of 1978, Ca- role became involved in an adulterous affair with a neighbor, Michael H. In Sep- tember 1980, she conceived a child, Victoria D., who was born on May 11, 1981. Gerald was listed as father on the birth certificate and has always held Victoria out to the world as his daughter. Soon after delivery of the child, however, Car- ole informed Michael that she believed he might be the father. In the first three years of her life, Victoria remained always with Carole, but found herself within a variety of quasi-family units. In October 1981, Gerald moved to New York city to pursue his business interests, but Carole chose to remain in California. At the end of that month, Carole and Michael had blood tests of themselves and Victoria, which showed a 98.07% probability that Michael was Victoria’s father. In January 1982, Carole visited Michael in St. Thomas, where his primary business interests were based. There Michael held Victoria out as his child. In March, however, Carole left Michael and returned to California, where she took up residence with yet another man, Scott K. Later that spring, and again in the summer, Carole and Victoria spent time with Gerald in New York City, as well as on vacation in Europe. In the fall, they returned to Scott in California. In November 1982, rebuffed in his attempts to visit Victoria, Michael filed a filiation action in California Superior Court to establish his paternity and right to visitation. In March 1983, the court appointed an attorney and guardian ad litem to represent Victoria’s interests. Victoria then filed a cross-complaint asserting that if she had more than one psychological or de facto father, she was entitled to maintain her filial relationship, with all of the attendant rights, duties, and obligations, with both. . . . * * * * II The California statute that is the subject of this litigation is, in substance, more than a century old. . . . In their present form, the substantive provisions of the statute are as follows: “§ 621. Child of the marriage; notice of motion for blood tests “(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. “(b) Notwithstanding the provisions of subdivision (a), if the court finds that the conclusions of the experts, as disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Divi- sion 7 are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.[”] * * * * III We address first the claims of Michael. At the outset, it is necessary to clarify what he sought and what he was denied. California law, like nature itself, makes no provision for dual fatherhood. Michael was seeking to be declared the father of Victoria. The immediate benefit he evidently sought to obtain from that status was visitation rights. [Citation omitted.] But if Michael were successful in being declared the father, other rights would follow—most importantly, the right to be considered as the parent who should have custody, Cal.Civ.Code Ann. § 4600 (West 1983), a status which “embrace[s] the sum of parental rights with respect 100 CHAPTER 15

to the rearing of a child, including the child’s care; . . . [citation omitted].” . . . [T]he Superior Court here, affirmed by the Court of Appeal, held that California law denies visitation, against the wishes of the mother, to a putative father who has been prevented by § 621 from establishing his paternity. [Citations omitted.] ...While § 621 is phrased in terms of a presumption, that rule of evidence is the implementation of a substantive rule of law. California declares it to be, except in limited circumstances, irrelevant for paternity purposes whether a child conceived during, and born into, an existing marriage was begotten by someone other than the husband and had a prior relationship with him. As the Court of Appeal phrased it: “‘The conclusive presumption is actually a substantive rule of law based upon a determination by the Legislature as a matter of overriding social policy, that give a certain relationship between the husband and wife, the husband is to be held responsible for the child, and that the integrity of the family unit should not be impugned.’” [Citation omitted.] Of course the conclusive presumption not only expresses the State’s substantive policy but also furthers it, excluding inquiries into the child’s paternity that would be destructive of family integrity and privacy.

* * * * Michael contends as a matter of substantive due process that, because he has established a parental relationship with Victoria, protection of Gerald’s and Carole’s marital union is an insufficient state interest to support termination of that [parental] relationship. This argument is, of course, predicated on the as- sertion that Michael has a constitutionally protected liberty interest in his relationship with Victoria. It is an established part of our constitutional jurisprudence that the term “liberty” in the Due Process Clause [of the 14th Amendment] extends beyond freedom from physical restraint. [Citations omitted.] . . . In an attempt to limit and guide interpretation of the Clause, we have in- sisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. [Footnote omitted.] As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Mass- achusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (Cardozo, J.)...... Michael reads [other landmark Supreme Court cases, citations omitted here] as establishing that a liberty interest is created by biological fatherhood plus an established parental relationship—factors that exist in the present case as well. We think he distorts the rationale of those cases. As we view them, they rest not upon such isolated factors but upon the historic respect—indeed, sanc- tity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family. [Citations omitted.] . . . Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society, or whether on any other basis it has been afforded special protection. We think it impossible to find that it has. In fact, quite to the contrary, our traditions have protected the marital family (Gerald, Carole, and the child they acknowledge to be theirs) against the sort of claim Michael asserts.

* * * * Moreover, even if it were clear that one in Michael’s position generally possesses, and has generally always possessed, standing to challenge the marital child’s legitimacy, that would still not establish Michael’s case. As noted earlier, Family Law and Probate Law 101 what is at issue here is not entitlement to a state pronouncement that Victoria was begotten by Michael. It is no conceivable denial of constitutional right for a State to decline to declare facts unless some legal consequence hinges upon the requested declaration. What Michael asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives. [Footnote omitted.] What he must establish, therefore, is not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them. . . .

* * * * ...It is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted. ...Here, to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa. If Michael has a “freedom not to con- form” (whatever that means), Gerald must equivalently have a “freedom to con- form.” One of them will pay a price for asserting that “freedom”—Michael by being unable to act as father of the child he has adulterously begotten, or Ger- ald by being unable to preserve the integrity of the traditional family unit he and Victoria [sic] have established. Our disposition does not choose between these two “freedoms,” but leaves that to the people of California. . . .

* * * * The judgment of the California Court of Appeal is Affirmed.

UNIFORM ACTS FOR PATERNITY, ADOPTION AND CHILD SUPPORT Because unmarried parents and their children so often move to other states, there has been a perceived need for uniform laws to resolve some of the issues involved in paternity, adoption, and child support. In addition, revision of existing state laws has lagged far behind a series of Supreme Court decisions on these issues, resulting in a situation in which some states have no statutes on the books that could withstand a challenge on constitutional grounds. Conse- quently, the National Conference of Commissioners on Uniform State Laws has proposed several uniform statutes for adoption by the states: The Uniform Parentage Act and The Uniform Putative and Unknown Fathers Act. The latter uniform statute was drafted in large measure to codify a series of decisions by the U.S. Supreme Court. These uniform statutes have yet to be enacted by any substantial number of states.

TERMINATING PARENTAL RIGHTS

In exceptional circumstances, a court may terminate the natural parents’ rights, usually based upon an evident unfitness demonstrated by abuse, neglect, or abandonment of the child. Such drastic action is open to close examination by the appellate courts because it is such an extreme intrusion upon the usual rights of natural parents. The guiding principle, however, is that the child’s right to a normal, safe, and healthy childhood must always take precedence over the parental rights of the mother and father. 102 CHAPTER 15

THE AUTHORITY OF PARENTS OVER THEIR CHILDREN

Under the early common law, the parents—especially the father—had almost unlimited authority over their children. In modern times, the states have restricted parental rights in order to protect children from abuse, neglect, exces- sive child labor, etc. The states have also imposed statutory responsibilities for parents, such as ensuring their child’s attendance in school. Of course, the question of parental authority is automatically juxtaposed to the rights of children— as one is increased, the other diminishes. Until recently, the U.S. Supreme Court generally regarded family life to be an exclusive concern of the states and not a constitutional issue. Lately, however, the Court has seen state authority over the family as a possible intrusion upon the constitutional rights of privacy and due process of both parents and children. As might be expected for such difficult issues, the Supreme Court has not easily resolved the competing interests of parents, children, and the state. In Parham v. J. R., 442 U.S. 582 (1979), the Court upheld the right of parents to con- fine their children in mental hospitals without a formal hearing. In Levy v. Louisiana, 391 U.S. 68 (1968), the Court upheld the right of illegitimate children to sue for the wrongful death of a parent. On the other hand, the Court refused to strike down state laws that restrict the inheritance rights of illegitimate children (Labine v. Vincent, 401 U.S. 532 [1971]). Except where restricted by constitutional or statutory law, parents have broad authority to determine a child’s education, medical care, socialization, and upbringing. The child may be held by the court to be a juvenile delinquent for failure to obey parental authority. It is not unknown for parents to seek a court declaration of delinquency on grounds of the child’s “incorrigibility.” When parents impose punishments, they must not be abusive or dangerous. Courts have intervened when parents used extreme measures, such as chaining a child to a bed or locking the child in a closet.

To stand in loco parentis means to have the legal authority and responsibility of a THE COURT AS STANDING IN LOCO PARENTIS child’s parents. Fundamentally, TO A CHILD it is a protective role. In some states, public school teachers Obviously, the courts assert authority when children are accused of crime and and school administrators have when the parents present custody issues to the court. In addition, the courts will that status during the child’s assert authority to protect the child from neglect or abuse. In the latter instance, presence at school. the court stands in loco parentis (i.e., in the place of the parent) and the child becomes a ward of the court. Although juvenile courts are ostensibly civil in A child becomes a ward of the nature, the Supreme Court has held that a juvenile court must accord essentially court when the court stands in the same due process as an adult criminal court if the juvenile is subject to con- loco parentis and places the finement as a result of the juvenile court proceeding (In re Gault, 387 U.S. 1 child in the care of a guardian under court supervision. [1967]). If a child and her parents have a conflict of interest in the matter before the court, the court may appoint an adult guardian ad litem to represent the child’s A juvenile court is a civil court with jurisdiction over children, interest in those specific proceedings. If parents are temporarily or permanently but with the power to commit a unable to properly care for or supervise a child, the court will appoint a guardian minor to civil confinement for for all purposes, who then has the same authority as a parent over the child’s criminal violations or other daily life. Such a guardian, however, generally needs court approval for certain serious misconduct. types of actions (e.g., investment of an inheritance). Family Law and Probate Law 103

OTHER ISSUES RELATED TO FAMILY LAW

Although a full discussion is beyond the scope of this book, there are other issues of family law the paralegal might find challenging. They include: ■ procreative rights of adults and minors ■ conception and gestation with the biological participation of surrogate parents ■ paternity disputes ■ parental liability for the torts of children ■ tort actions for loss of consortium ■ tort actions between family members ■ emancipation of minors ■ abduction of children by noncustodial parents ■ deprogramming children involved in cult-like groups

RESPONSIBILITIES OF PARALEGALS IN A FAMILY LAW PRACTICE

The family law paralegal usually has responsibilities in six general areas: ■ interviewing the client ■ gathering information about the client’s case ■ setting up and maintaining the case file ■ coordinating temporary child custody and support arrangements ■ preparing an inventory of assets and liabilities ■ drafting and filing court papers If the client’s case involves a contested matter (e.g., property settlement or child custody), the legal assistant will assume many of the litigation responsibilities discussed in Chapter 6. In addition, she might be assigned to conduct a field in- vestigation or research legal issues.

COMMON STEPS IN A DIVORCE CASE To illustrate some of the paralegal tasks in family law, we will assume that a hypothetical client, a husband, is initiating divorce proceedings. The family law attorney will usually conduct a brief interview before she accepts a new client matter. The purpose of that interview is to understand the scope of the case and determine whether to accept it. The attorney and prospective client will also discuss legal expenses and fee arrangements during that interview. If the client and the attorney are in mutual agreement, the client will sign a retainer agreement. At this point, the attorney might explain that a paralegal will be conducting a more extensive intake interview to obtain detailed information about the case. 104 CHAPTER 15

Interviewing the Client Practice Tip The intake interview was discussed in Chapter 10, and the legal assistant should The client has talked things over use the techniques described in that chapter. Of course, in family law matters, with his wife, and she has the situation tends to be highly emotional, so the legal assistant will need great agreed that the marriage has tact, consideration, and skill during the interview. Compared to the typical liti- no future. Because they have gation client, family law clients often have an even greater need to vent their been married less than 5 years, emotions. Listening skills and patience are especially important for a family law have no children, own no real paralegal. In fact, the initial intake interview might be so emotional that the estate, and have modest debts client will be unable to provide all of the information that is needed. In that and community property, they event, a follow-up interview will be necessary. Obviously, family law paralegals qualify for California’s Summary must work with deeply emotional situations. Dissolution procedures. By The law firm is likely to have an interview form that is used to record all of choosing this simpler procedure, the essential information about the client’s matter. The basic information both spouses waive all rights to needed—which will be obtained in great detail—includes: spousal support. The paralegal ■ personal data about the client will prepare a Joint Petition for Summary Dissolution of ■ personal data about the spouse Marriage (Figure 15.2). ■ present and prior marriage(s) of the client This is a classic situation for ■ all children of the client using the standard Judicial ■ employment information for client and spouse Council form because the Summary Dissolution process is ■ separate and mutual assets and liabilities designed to minimize complica- ■ monthly income and expenses tions and expense for the ■ existing wills and/or prenuptial agreements divorcing couple. The Summary Dissolution process also requires The legal assistant should ask the client to provide copies of all relevant docu- the couple to complete and sign ments: marriage certificates, divorce decrees, court judgments or orders, tax re- an agreement dividing all turns, will, insurance policies, deeds to real property, vehicle registrations, etc. community property between These documents will be needed to confirm the client’s information. The prob- them. After the attorney has lem is not usually one of dishonesty—it is more often caused by inaccurate or reviewed the completed forms incomplete information. Clients who are not accustomed to dealing with busi- and the client and his wife have ness matters, for example, might not understand information they have been ex- signed, the paralegal will have posed to. For example, it is not unusual for a client to believe that real property them filed with the court. is held in one form (e.g., as joint tenants), when in fact it is held in a different form (e.g., as tenants in common). A client might also believe that a bank account is in the name of both husband and wife because both can sign checks or withdraw funds, when in fact the account is in the name of only one. The account name must be correctly identified in any court order affecting it.

Ethics Watch In our hypothetical scenario, the client’s wife might be relying upon our law firm for guidance through the summary dissolution process. That raises a possible conflict of interest because her husband is the firm’s primary client. If both spouses genuinely want to end the marriage and can agree upon the division of community property, an actual conflict might not arise. In some states, the rules of professional conduct might prohibit representation of both spouses by the same firm. But, at minimum, the law firm has a clear duty to inform both spouses that: ■ Each has a right to separate legal counsel. ■ The wife should have separate counsel review the joint petition and the division of community property before she signs those documents. ■ At any time during the dissolution process, a material disagreement could arise between them that would prevent the law firm from representing both spouses from that point on. These statements should be acknowledged in a document that both spouses would sign. Family Law and Probate Law 105

FIGURE 15.2 Joint Petition for Summary Dissolution of Marriage

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO.: FOR COURT USE ONLY

ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: MARRIAGE OF HUSBAND:

WIFE: CASE NUMBER: JOINT PETITION FOR SUMMARY DISSOLUTION OF MARRIAGE

WE PETITION FOR A SUMMARY DISSOLUTION OF MARRIAGE and declare that all the following conditions exist on the date this petition is filed with the court: 1. We have read and understand the Summary Dissolution Information booklet.

2. We were married on (date): [A SUMMARY DlSSOLUTION OF YOUR MARRIAGE WILL NOT BE GRANTED IF YOU FILE THIS PETITION MORE THAN FIVE YEARS AFTER THE DATE OF YOUR MARRIAGE.]

3. One of us has lived in California for at least six months and in the county of filing for at least three months preceding the date of filing.

4. There are no minor children born of our relationship before or during our marriage or adopted by us during our marriage and the wife, to her knowledge, is not pregnant.

5. Neither of us has an interest in any real property anywhere. (You may have a lease for a residence in which one of you lives. It must terminate within a year from the date of filing this petition. The lease must not include an option to purchase.)

6. Except for obligations with respect to automobiles, on obligations either or both of us incurred during our marriage, we owe no more than $5,000.

7. The total fair market value of community property assets, excluding all encumbrances and automobiles, is less than $25,000.

8. Neither of us has separate property assets, excluding all encumbrances and automobiles, in excess of $25,000.

9. We also attach completed copies of the worksheets on pages 9, 11, and 13 of the Information Booklet used in determining the value and division of our property.

10. (Check whichever statement is true). a. We have no community assets or liabilities.

b. We have signed an agreement listing and dividing all our community assets and liabilities and have signed all papers necessary to carry out our agreement. A copy of our agreement is attached to this petition.

11. Irreconcilable differences have caused the irremediable breakdown of our marriage and each of us wishes to have the court dissolve our marriage without our appearing before a judge.

12. Wife desires to have her former name restored. Her former name is (specify name):

(Continued on reverse)

Form Adopted by Rule 1295.10 JOINT PETITION FOR SUMMARY WEST GROUP Family Code, §§ 2400–2406 Judicial Council of California Official Publisher 1295.10 [Rev. January 1, 1995] DISSOLUTION OF MARRIAGE (Family Law—Summary Dissolution) 106 CHAPTER 15

FIGURE 15.2 Joint Petition for Summary Dissolution of Marriage (continued )

HUSBAND: CASE NUMBER:

WIFE:

13.Upon entry of judgment of summary dissolution of marriage, we each give up our rights as follows: a. to appeal, and b. to move for a new trial.

14. EACH OF US FOREVER GIVES UP ANY RIGHT TO SPOUSAL SUPPORT FROM THE OTHER.

15. We stipulate that this matter may be determined by a commissioner sitting as a temporary judge.

16. Mailing Address of Husband 16. Mailing Address of Wife Name: Name: Address: Address:

City: City: State: State: ZipCode: ZipCode:

I declare under penalty of perjury under the laws of the State of I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. California that the foregoing is true and correct.

Date: Date:

(SIGNATURE OF HUSBAND) (SIGNATURE OF WIFE)

YOU HAVE A RIGHT TO REVOKE THIS PETITION ANY TIME BEFORE A REQUEST FOR JUDGMENT IS FILED. YOU WILL REMAIN MARRIED UNTIL ONE OF YOU FILES FOR AND OBTAINS A JUDGMENT OF DISSOLUTION. YOU MAY NOT REQUEST A JUDGMENT OF DISSOLUTION SOONER THAN SIX MONTHS FROM THE DATE THIS PETITION IS FILED.

NOTICE: Please review your will, insurance policies, retirement benefit plans, credit cards, other credit accounts and credit reports, and other matters you may want to change in view of the dissolution or annulment of your marriage, or your legal separation.

1295.10 [Rev. January 1, 1995] JOINT PETITION FOR SUMMARY WEST GROUP Page two Official Publisher DISSOLUTION OF MARRIAGE (Family Law—Summary Dissolution) Family Law and Probate Law 107

Gathering Information The client is asked to provide written authorization for the attorney to obtain a variety of records: medical, tax, school, etc. The paralegal will then send requests to the appropriate government agencies, businesses, and individuals. Credit reports should be obtained for both the husband and the wife. Govern- ment records should be checked for any liens on real property held by husband and/or wife and for any judgments against or in favor of either spouse. In child custody cases, the legal assistant might need to interview teachers and neigh- bors. A parent’s (or guardian’s) written authorization will be needed to interview a child’s teacher and to obtain copies of the child’s school records.

Setting Up and Maintaining the Case File The case file in family law matters will basically be the same as a file for civil litigation, although the family law firm is likely to organize the files with an emphasis on the types of documents that typically occur in family law: marriage, birth, adoption, divorce, and death certificates, financial and tax records, etc.

Coordinating Temporary Child Custody and Support Arrangements If child custody is an issue in the case, arrangements must be made for custody and support of the children. When a couple separates, one parent typically leaves the family home while the children remain with the parent still occupying that home. The obvious reason for that arrangement is to avoid the additional trauma induced by separating the children from their usual living quarters at the very time they see their parents separating. A second reason is for them to stay in the school they have been attending. If the parents cannot agree amicably on temporary living and custody arrangements for the children, it might be necessary to obtain court intervention. That is particularly true if there appears to be a possibility that one parent might abduct the children. More commonly, the parent who departs might want the court to approve a schedule for visitation if it appears that the other parent might attempt to place unreasonable limitations. The legal assistant would prepare a petition for child custody and support. It can be a fairly simple document setting forth the reasons that require court intervention (e.g., separation, filing of a divorce petition, etc.), stating that the pe- Practice Tip titioning parent is fit to have custody and that it is in the best interests of the For clients who do not qualify for children that temporary custody be granted to that parent, and requesting that California’s Summary Dissolu- the court order the responding parent to pay reasonable child support. tion process—or cannot agree upon a division of their community property—the Preparing an Inventory of Assets and Liabilities longer, more complex dissolution The paralegal will have obtained from the client and other agencies and persons process continues. A key part of much of the information needed for an inventory of assets and liabilities. In this step, this is the Schedule of Assets and the paralegal organizes that information and obtains actual dollar figures. Real prop- Debts, which typically is erty, jewelry, art works, and antiques will require professional appraisals. Some in- prepared by the paralegal. Each formation that the client cannot accurately or fully provide might be obtained from spouse prepares a schedule the other spouse. If a petition for legal separation or divorce has been filed, the same because it must state the value methods of discovery are used as in other civil litigation (see Chapter 6). of all property and also identify anything that is the separate property of either the husband Drafting and Filing Court Documents or wife. These are common In fairly simple family law matters, the legal assistant might draft all of the nec- points of disagreement. essary court documents. Following a review and approval by the attorney, the 108 CHAPTER 15

legal assistant then files those papers with the court and has them served on the defendant or responding party and on any other interested parties. In more complex cases, the legal assistant might draft the less complicated documents; the attorney drafts the more complex ones. This role is virtually identical to the litigation paralegal’s responsibilities.

SUMMARY FOR SECTION I

■ Family life is regulated by law because all societies regard the family unit to be essential to the survival and success of the community. ■ Family law attempts to impose a single, basic value system for family life. ■ American family law reflects primarily the values of Western Europe, modified by other values that have evolved in North American society over a period of three centuries. ■ Under law, marriage is the union of man and woman in the relationship of husband and wife; marriage is a legal status known as the “marital state.” ■ A ceremonial marriage conforms to all statutory requirements, including solemnization in a recognized marriage ceremony. ■ A common law marriage is entered into by mutual agreement, but without being solemnized by a statutory ceremony. ■ A prenuptial agreement establishes the future property rights of prospective spouses and becomes effective at the time of their marriage. ■ Property brought to a marriage remains the personal property of the respective spouses. ■ Property acquired during the marriage becomes either personal property or marital property depending upon: ■ the law in their state of residence ■ the source of the property ■ the provisions of any prenuptial agreement ■ In community property states, with certain exceptions, all property acquired during the marriage is presumptively marital property. ■ In some states, the husband continues to determine the couple’s domicile. ■ Separate maintenance is the arrangement whereby the respective financial needs and responsibilities of a husband and wife are determined for a temporary (although sometimes indefinite) period. ■ A legal separation is a permanent arrangement by court decree. ■ An annulment is a retroactive court determination that an ostensible marriage was void from the beginning. ■ Some form of no-fault divorce is recognized in every state, although some states also retain traditional grounds based upon the transgressions of a spouse. ■ No-fault dissolution is usually based upon “irreconcilable differences” or “irremediable breakdown of the marriage.” ■ Property division upon divorce varies widely, depending upon state law. ■ Spousal support is usually based upon the spouses’ relative need and ability to pay. Family Law and Probate Law 109

■ Child custody is usually determined upon the best interests of the child. ■ Physical custody is the routine supervision, care, and daily control of the child; physical custody does not carry the full authority of legal custody. ■ Legal custody is the authority to make all decisions about the child’s education and upbringing. ■ A noncustodial parent must not be deprived of visitation rights without due process of law. ■ Adoption is the extinguishing of the rights and duties of the natural parent(s) and the substitution of a new legal relationship with the adoptive parents. ■ Except where restricted by constitutional or statutory law, parents have broad authority to determine a child’s education, medical care, socialization, and upbringing; restriction of those rights must not violate due process.

SECTION II. PROBATE

For a great many people, “probate” is a dreaded word—and not simply because it follows upon someone’s death. People often think of probate as a lengthy and expensive process that consumes too much of the estate in legal fees and delays the distribution of the estate to the heirs and beneficiaries. It is not entirely inaccurate to describe probate as a legal process that sometimes frustrates, rather than facilitates, the wishes of the deceased person. However, that scenario usually results from the decedent’s own inadequate preparation (e.g., failure to up- date a will, or to transfer assets into a living trust). One disadvantage of probate is the public disclosure of the decedent’s financial affairs. All assets and liabilities of the decedent generally become assets and liabilities of the estate, which are listed in the probate court records for any interested party to inspect. In addition, the court records will eventually reflect exactly which assets went to each beneficiary or heir. To many people, this is an unwelcome invasion of privacy. As a result of this common dread of probate, some attorneys specialize in establishing living trusts for the primary purpose of making the probate process unnecessary, or at least reducing it to the level of a nuisance. For the wealthy, avoidance of federal estate taxes might be the primary purpose of a living trust. Because living trusts do not have to be approved by the court, the trust documents never become a matter of public record, thus preserving the privacy of the decedent and beneficiaries. The student who has carefully read this chapter should be prepared to answer these questions: ■ What is probate? ■ What is estate planning? ■ Do attorneys often practice in both probate law and estate planning? ■ How can someone avoid probate? ■ What is a trust? ■ What happens when someone dies without a will or living trust? ■ What are the requirements for a valid will? ■ What are typical provisions in a will? ■ What is the responsibility of an executor or administrator? ■ What is the legal assistant’s role in probate and estate planning? 110 CHAPTER 15

THE PROBATE PROCESS

Probate is the legal process for Probate is the legal process for administering and distributing the estate of a administering and distributing decedent. In a technical sense, probate is the procedure for proving a will—that the estate of a decedent to heirs is, establishing its validity. After the will has been proved, the probate courts (or or beneficiaries. other state courts with probate jurisdiction) also supervise the administration of the estate by the executor (named in the will) or the administrator appointed Proving a will is the process of by the court (if no executor has been named or if the named executor is unable establishing its legal validity. to serve). Depending upon state law, the executor or administrator often must seek court approval for certain actions, such as selling real property of the es- A probate court supervises the tate or continuing the operation of a business owned by the estate. Generally, administration of a decedent’s court approval is always required for the final distribution of the estate to the estate and its distribution to heirs and/or beneficiaries. The essential purposes of probate are: heirs or beneficiaries. In some states, probate courts also ■ to protect the interests of rightful heirs and beneficiaries appoint conservators “for the ■ to carry out the wishes of a decedent who has left a valid will estate” and/or “for the person” of individuals who are not ■ to prevent misconduct by executors and administrators—or by others competent to manage their own who might have control of the decedent’s assets affairs. The probate process is governed by probate law, which is a combination of statutes and common law. In fact, nearly all of the statutory law of probate is a The executor (if male) or legislative enactment of the common law of probate. The result has been to re- executrix (if female) is the duce some ambiguities, controversies, and uncertainties in the common law and person named in a will to to impose upon the courts a definitive statement of probate law. Many states administer the decedent’s estate. have codified these statutes in a probate code, but any issues not addressed in the statute continue to be governed by common law. The administrator (if male) or administratrix (if female) is a person (not named in a will) THE NATURE OF AN ATTORNEY’S PROBATE PRACTICE appointed by the court to administer the decedent’s Aprobate practice is usually part of a larger specialty. An attorney who has a estate. probate practice typically drafts wills and trust instruments for clients and as- sists them in planning for the tax consequences of their eventual demise. In fact, many probate attorneys refer to their practice as one in “estate and trusts” because that emphasizes the planning and preparation to be done during one’s lifetime. In many states, the fees that an attorney can collect for probate of an estate are based on either a fixed percentage of the estate or on a sliding scale under which the percentage that the attorney may receive declines as the value of the estate rises. The California statute illustrates the latter scheme for compensation: California Probate Code § 10810(a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows: (1) Four percent on the first fifteen thousand dollars ($15,000). (2) Three percent on the next eighty-five thousand dollars ($85,000). (3) Two percent on the next nine hundred thousand dollars ($900,000). (4) One percent on the next nine million dollars ($9,000,000). Family Law and Probate Law 111

(5) One-half of one percent on the next fifteen million dollars ($15,000,000). (6) For all above twenty-five million dollars ($25,000,000) a reasonable amount to be determined by the court.

Estate Planning Estate planning is a method for ensuring that the client enjoys the maximum Estate planning is the benefit from his property during his lifetime, and that after his death, his heirs protection of a person’s assets— and beneficiaries have the maximum opportunity to benefit from his remaining from taxes, creditors and/or the estate. In the fullest sense, estate planning includes the protection of his assets individual’s improvidence—by during his lifetime—from taxes, from creditors, and possibly from his own im- appropriate financial and legal arrangements. providence. It also includes planning for the tax consequences of his death so that estate and inheritance taxes are minimized. Estate planning is accomplished by creating an appropriate will and (possibly) trust documents and by making appropriate investments. Insurance policies and annuities often play an important role in estate planning. Depending upon the client’s wealth and other circumstances, effective estate planning might require the services of a good ac- countant, as well as an attorney. Generally speaking, the role of the legal assistant is much larger in probate than it is in estate planning and trust practice. In part, that is because so many legal issues have already been addressed by preparing wills and trust documents that a good portion of the probate process becomes a ministerial func- tion. Although Part II discusses a few issues in estate planning and trusts, the emphasis is on the law and process of probate.

ADMINISTRATION OF AN ESTATE WITHOUT AN ATTORNEY

For small, uncomplicated estates, it might be possible for an executor or administrator to handle the probate pro se—that is, without using an attorney. In When a person appears before some states, simple estates can be processed using blank forms provided by the the court in pro se (also known court. Guide books with titles like How to Probate without an Attorney are avail- as in propria persona, or in pro able with step-by-step instructions. This circumstance has led to a substantial per), he is acting as his own amount of unauthorized practice of law by unsupervised, self-described “para- attorney. legals” who offer to guide the layperson through the probate process—or, in some cases, effectively act as the lay executor’s “attorney” for all purposes except appearing in court.

Ethics Watch It is not unusual for a friend or relative to request a probate paralegal’s assistance with the probate of a “simple” estate. In most small estates, an experienced paralegal can prepare the necessary court papers and guide the lay executor or administrator through a successful probate. But, of course, there are two key problems: (1) the risk of not recognizing a situation requiring an attorney’s expertise; and (2) the statutes forbidding the unauthorized practice of law. It would be unethical for a paralegal to acquiesce to such a request, no matter how simple the estate appeared to be. It would be ethical for the paralegal to prepare the court papers for review by the friend’s attorney, thereby minimizing legal fees. 112 CHAPTER 15

AVOIDING PROBATE

Depending upon state law, it might be possible to avoid probate entirely. One way is to transfer ownership of all significant assets (real property, bank accounts, motor vehicles, etc.) prior to one’s death. Although some gifts might be subject to state or federal taxes—federal taxes currently apply to gifts in excess of $10,000 to one person in any given year—a person generally has an unlimited right to give away anything belonging to her. So, with sound planning over a period of years, it is possible for a “wealthy” person to die without any significant assets. The most effective way to “give away” one’s assets is to create a living trust (discussed later). The trust has the advantage of ensuring that the donor will have a continuing income during her lifetime—rather than relying upon relatives to whom she has already given everything. Living trusts can also have major tax advantages for wealthy persons. As a practical matter, if the decedent made no will and had nothing more than “personal effects” (i.e., clothing, furniture, books, jewelry, cash, etc.), but no real estate, bank accounts, stocks, or bonds at the time of death, the surviving relatives who would qualify as heirs often simply distribute those items among themselves or give them to charity. That does not mean that such a distribution is legal under the state laws governing inheritance. However, if no heir objects, such informal distribution of personal effects will not be disturbed by the courts. There are legal risks involved in such an informal distribution, particularly if any heir does not participate in and agree to the distribution. In those states that exempt small estates from probate, the requirements of the law can be met by filing with the court an affidavit that asserts that the estate qualifies for the exemption from probate and that all heirs and beneficiaries consent to a distribution of the estate outside of probate. Another way to avoid probate is to hold assets in joint tenancy with right of survivorship. Joint tenancy allows the surviving joint tenant to receive full ownership of the real property, bank account, motor vehicle, etc., without approval of the probate court. In the case of property that has appreciated substantially in value, however, joint tenancy can have undesirable tax consequences. A trust is a legal entity that a person establishes to hold her assets for the benefit of a beneficiary named in the trust THE NATURE OF A “TRUST” documents. A trust is a legal entity that is established to hold property for the benefit of a The grantor is a person who designated beneficiary. The person who establishes a trust and transfers her as- establishes a trust and transfers sets to that trust is the grantor. Some person (a relative, friend, bank, attorney, her assets into the trust. or trust company) must be named as trustee and will assume control of the trust assets. The trustee is a fiduciary and must administer the assets as provided in The trustee is a person who the trust document and by state law. holds the assets of the trust and administers them for the benefit Most grantors are wealthy persons who have sought the advice of tax ac- of the trust beneficiary. countants and attorneys. Most often, they are married people attempting to avoid the federal estate tax on assets exceeding an amount set by statute. How- A testamentary trust is created ever, people of modest means may use trusts as well, to avoid the problems of by the terms of a will so that probate. Trusts are a complex topic, as indicated by the fact that Black’s Law Dic- assets of the grantor transfer to tionary devotes more than six pages to definitions of the various forms of trusts. the trust upon the grantor’s A testamentary trust is one created by the terms of a will, so that upon the death. grantor’s death assets of the estate will be transferred to the trust. Testamentary Family Law and Probate Law 113 trusts are often intended to serve as spendthrift trusts—a method of preventing A spendthrift trust is an irresponsible beneficiary from rapidly exhausting the family fortune. A established by the grantor so spendthrift trust can also be used to shield the trust assets (known as the that the beneficiary may not principal or corpus of the trust) from prior creditors of the beneficiary, thereby rapidly exhaust the assets of the ensuring that some of the assets will remain for a subsequent beneficiary (e.g., grantor subsequent to his death. the child of the initial beneficiary). The initial beneficiary’s income from the spendthrift trust, however, cannot be shielded from creditors. The principal (or corpus) of the trust is those assets transferred by the grantor to the trust, as opposed to any interest or LIVING TRUSTS income the trust later earns on A living trust (also known as an inter vivos trust), which is created by a trust those assets. instrument separate from the grantor’s will, takes effect during the grantor’s lifetime. The living trust often names the grantor as a beneficiary during the A living trust (or inter vivos grantor’s lifetime and other persons as beneficiaries upon the grantor’s death. trust) is created by a document However, a living trust need not name the grantor as a beneficiary—the choice other than the grantor’s will and of beneficiary depends upon the wishes of the grantor and is often influenced by takes effect during the grantor’s various tax and financial considerations. It is common for the living trust grantor lifetime. Living trusts often name to serve also as the trustee, possibly causing him to have three distinct and con- the grantor as a beneficiary current legal capacities under the trust: grantor, beneficiary, and trustee. In that during the grantor’s lifetime and case, his fiduciary duty as trustee is to himself as beneficiary. A living trust may another person as beneficiary upon the grantor’s death. be revocable or irrevocable. The tax consequences are different for revocable and irrevocable trusts.

ESTABLISHING A TRUST WITHOUT USING AN ATTORNEY One type of trust can be safely established without consulting an attorney. A Totten trust is established by opening a bank account in the grantor’s name and A Totten trust is established by also naming a beneficiary. Under this arrangement, the bank account is auto- opening a bank account in the matically transferred to the beneficiary upon the grantor’s death. At that time, grantor’s name and naming it has the same effect as a bank account held as joint tenants with right of sur- another person as beneficiary vivorship. There is a crucial difference between a Totten trust and a joint bank upon the grantor’s death. account, however. A joint tenancy account would allow the intended “beneficiary” (i.e., the joint tenant) to draw funds from the account during the “grantor’s” lifetime. Because the transfer of a Totten trust is automatic upon the grantor’s death, there is no need to name a third-party trustee. The Totten bank account escapes probate, just like other types of trusts. A Totten trust can be revoked at any time. Other types of trusts can be established without the assistance of an attorney (although at some potential risk). There is even computer software on the market that guides the user through an interview process and then pieces together boilerplate (i.e., “prepackaged”) language to create a trust document. The problem, of course, is that the software program might omit a question that would reveal a significant legal or tax issue under the individual’s circumstances.

THE WILL AS AN ESSENTIAL COMPLEMENT TO THE LIVING TRUST Everyone should have a will, regardless of any trust they have established. First of all, it is impractical to transfer every asset to the trust. Whatever remains as the decedent’s property (as opposed to the trust’s property) might have to go through probate. Second, if there are minor children and no surviving parent, 114 CHAPTER 15

their custody will be decided by the court unless the decedent has designated a guardian in a will or in another document that is recognized for that purpose under state law. Third, many people name their estate as the beneficiary under insurance policies and retirement accounts. If that is the case, those assets must go through probate. Finally, it is not unusual for elderly people, shortly before their own death, to inherit property from spouses and siblings. The timing might be such that it is impractical to transfer that property to the living trust or the individual might be incapacitated by a stroke or other illness and therefore be unable to make the transfer. A will can provide for the distribution of any remaining property to the trust (or other beneficiaries) after the grantor’s death.

DYING WITHOUT A WILL

As some attorneys like to say, “If you don’t have a will, the state has one for you.” The implication is that, in the absence of a will, the state will determine how a decedent’s property is distributed—and, in a sense, that is absolutely Intestate describes a person true. A person who dies without a valid will is said to have died intestate. With who dies without a will. the exception of any trust assets and any property held in joint tenancy (with right of survivorship), all of his property will go through probate and be dis- An heir (or heir at law) is tributed to his heirs (also known as heirs at law). Inheritance rights and pri- someone who inherits by orities are determined by state statute; if no statute governs, then by the com- operation of law any assets not mon law of that state. distributed under a will or trust. In most states, a surviving spouse has primary inheritance rights. The ori- Heirs receive their inheritance gin of that principle might be the former theory that marriage merged two indi- rights and priorities based upon viduals into one legal person. It might be based also upon the assumption that their familial relationship to the a surviving spouse will care for the essential needs of all surviving children. decedent. Even so, depending upon state law, minor or disabled children might be able to challenge the spouse’s blatant misuse of property received intestate (and the simultaneous neglect of the children’s essential needs) on grounds that the A constructive trust is one spouse holds some portion of that property in a constructive trust for the ben- imposed by operation of law efit of the children. Generally, however, the spouse is free to use and dispose of upon a person who holds the intestate estate as he or she sees fit. property that in equity should If there is no surviving spouse, most states designate surviving children of belong to another person. the deceased person’s marriage(s) as next in priority, followed by grandchildren, parents, and siblings. As mentioned earlier in this chapter, state laws may restrict the inheritance rights of illegitimate children (Labine v. Vincent, 401 U.S. 532 [1971]). Although there can be only one surviving spouse, two or more children often survive the decedent. In that event, each child will receive an equal, undivided share of each asset of the estate, unless state law permits them to agree, with court approval, upon a different distribution. The latter arrangement can be helpful because it is cumbersome to have three or four siblings control a single piece of real property. In the absence of such authority under state law, it of- An asset is liquidated when it is ten is preferable for the assets to be liquidated (i.e., sold for cash during pro- sold or exchanged for cash or bate) so that each heir receives unfettered control of his or her share of the other easily marketable assets estate. A similar problem exists when one sibling has died, leaving grandchil- (e.g., gold or corporate stocks). dren who succeed as co-heirs (together with their aunts and uncles) to their parent’s share of the grandparent’s estate. Family Law and Probate Law 115

THE REQUIREMENTS FOR A VALID WILL

A will is a revocable document by which a person provides for the distribution of A will is a revocable document his property upon his death. A will can be revoked in its entirety or it can be mod- by which a person provides for ified by executing an amendment, known as a codicil. An earlier will is revoked in the distribution of his property its entirety when a new will—as opposed to a partial revision by codicil—is exe- upon his death. cuted. In other words, if two ostensibly valid wills exist, the more recent one nul- lifies the first. Because a codicil does not contain the entire will, it requires a prior A codicil is an amendment to an valid will to have any legal effect. existing will. It is not necessary that a will dispose of all assets in the decedent’s estate. The person making the will (the testator, if male; the testatrix, if female) may The testator (if male) or choose to designate particular beneficiaries for specific assets and leave the re- testatrix (if female) is the person mainder of the estate for division among any heirs. The more common practice, making a will. however, is to leave the remainder to be divided among those who are named as beneficiaries in the will. With some variation under state laws, the basic requirements for a valid will are: ■ The testator must be legally competent to make a will. ■ The will must not be made under duress or undue influence by another. ■ The will must not be induced by fraud. ■ The will must be in writing. ■ The will must be dated. ■ The testator must sign the will. ■ The will must be signed by two competent witnesses or verified by their affidavits. ■ The document must be intended to serve as a will. ■ The will must contain legally effective provisions expressing the testator’s wishes to take effect upon her death (e.g., distribution of property, designation of a guardian for minor children, etc.). ■ The document must be revocable by the testator.

LEGAL COMPETENCE TO MAKE A WILL The testator must be of sufficient age and “of sound mind.” Most states require the maker to be at least 18 years of age. Some states permit a married minor or a minor on active duty in the U.S. Armed Forces to make a will. To be of sound mind requires that the testator have normal intelligence and not be insane or senile. The testator must also be cognizant of his action and its significance. (Thus, a person who is intoxicated or delirious with fever might not be competent to execute his will.) Unfortunately, concepts such as “normal intelligence,” “senile,” and “intoxicated” are relative terms, difficult to evaluate years (or even months) later when a will is questioned on the issue of competence. Because the very essence of a will is the testator’s expression of his own wishes to be followed after death, any influence that causes him to express the wishes of someone else must disqualify that document from serving as his will. A disqualifying influence is one that causes him to write a will substantially different from the one he would write in the absence of that influence. 116 CHAPTER 15

DURESS OR UNDUE INFLUENCE Duress is any coercion that Duress is any coercion that deprives one of the free expression of his will. Coer- deprives one of the free cion is a pressure that induces in the testator a fear of the consequences should expression of her will. he not follow the instruction or desire of his coercer. Although overt coercion is more easily proved, coercion can be subtle and expressed through clear implication of the coercer’s words or actions. Duress does not require that the testator be in fear physically or financially. It could be sufficient if a favorite child threatened never again to speak to the parent who had a great emotional de- pendence upon their relationship. This particular example of duress is close to the concept of undue influence. Undue influence is the Undue influence is the exploitation of a special relationship with the testa- exploitation of a special tor to the extent that the testator loses her independence of thought and acts relationship with the testator, to under the influence of the exploiter. Undue influence connotes a domination of the extent that the testator loses the weaker person’s mind by one who is emotionally stronger or who possesses his independence of thought and some psychological leverage. Undue influence differs from duress in that the tes- acts under the influence of the tator is not usually conscious of any particular fear or anxiety, other than the exploiter. fear of making a mistake in her selection of beneficiaries. Persons with weak self- concepts, the very elderly, and the ill are common victims of undue influence. They are usually victimized by persons in whom they place special confidence and trust.

Ethics Watch It is a serious violation of professional ethics for an attorney to influence a client to make that attorney a substantial beneficiary under the client’s will. Although the Rules of Professional Conduct in some states permit an attorney to be an incidental beneficiary (i.e., of some token bequest), even in that circumstance an appearance of conflict of interest occurs if that attorney also drafts the client’s will. If a client wishes for the attorney to be a beneficiary, the attorney should insist that the client seek independent legal advice—preferably having another attorney draft the will. Under the laws of some states, there is a legal presumption of undue influence whenever someone in a confidential relationship with the testator has a substantial role in the creation of a will from which that person also benefits.

INDUCEMENT OF A WILL BY FRAUD Without the use of duress or undue influence, someone might use false repre- sentations to induce a testator to include particular provisions in a will. A friend or relative might propose that she and the testator both make wills naming the other as sole beneficiary. If the person making that suggestion had no intent of making such a will, but the testator agreed and did so based upon that promise, it would be a fraudulent inducement of the testator’s will. Be- cause a will is, by definition, revocable at any time prior to death, and because fraud requires an actual injury resulting from justifiable reliance upon the misrepresentation, fraudulent inducement cannot be established until after the testator’s death. To be fraudulent, that inducement must contain all of the required elements of fraud.

EXCEPTIONS TO THE REQUIREMENT THAT A nuncupative will is stated A WILL BE IN WRITING orally by the testator during a terminal illness and later Some states recognize a nuncupative will, which is stated orally by the testator reduced to writing and signed by during a terminal illness and later reduced to writing and signed by a sufficient witnesses to that oral statement. number of actual witnesses to that oral statement. Because such a will can be Family Law and Probate Law 117 fraudulently created after the decedent’s death, some states do not recognize nuncupative wills. Those that do regulate their creation very strictly to guard against fraud. Nuncupative wills generally cannot be used to devise real prop- When one devises real property, erty or bequeath personal property of substantial value. or bequeaths personal property, she gives that property upon her death by means of a will. Some HOLOGRAPHIC WILLS authorities use these terms It is not necessary to have a written will prepared by an attorney or even to have interchangeably for either real or personal property. it typed. A holographic will is one prepared in the handwriting of the testator. As with any will, a holographic will must be signed and dated by the testator. State laws regarding holographic wills vary widely. In some states, a holographic A holographic will is one will may not contain any words or marks in other than the testator’s handwrit- prepared in the handwriting of the testator. ing, so a will written on letterhead stationery, for example, would be invalid. Other states are much less strict, requiring only that the signature, date, and any “material” provisions be in the testator’s handwriting. In some states, a holographic will does not require the signature of witnesses if the testamentary intent is apparent from the words and a person long-familiar with the testator’s handwriting verifies that it is written in the testator’s hand. At the present time, oral or video recordings of the testator’s “last will and testament” are not usually recognized. It is quite likely, however, that in the future a properly authenticated video recording will become the testamentary document of choice because it offers visual and oral evidence of the testator’s identity, demeanor, and state of mind. Even now, a video recording of the testator reading the paper document aloud and then signing the will “on-camera” might be useful evidence to defeat accusations of forgery or incompetence.

WITNESSING A WILL Generally, the competency of a witness is similar to that of the testator: sufficient age, soundness of mind, cognizance of the nature and significance of the document, etc. Her participation must not be obtained by duress or fraud to witness a false will. In some states, a witness cannot also be a beneficiary of that will. If she is, that bequest or devise is invalidated. Some states, however, permit beneficiaries to witness a will if they are also a close relative of the testator.

NOTARIZED OR SELF-PROVING WILLS In general, notarization of the will itself is not required. Instead, the executor will later obtain affidavits from the witnesses verifying that the will was properly executed by the testator in their presence. Some wills are self-proving, which Self-proving wills are signed by means that at the time the will is executed by the testator, the witnesses sign a witnesses who verify that the statement under penalty of perjury verifying that the will was properly executed will was executed properly by in their presence. The self-proving will saves the executor a great deal of trouble the testator in their presence. because he does not need to track down the witnesses. It also avoids the problems occasioned by the death of one or more witness prior to the death of the testator. If permitted by state law, self-proving wills are clearly preferable.

DEMONSTRATING TESTAMENTARY INTENT Some states have very rigid laws regarding the content of a will. In those states, certain standard provisions are required, and unconventional wording might provide grounds for a challenge of the will’s validity. In those states, the assistance of an attorney is particularly important. The following discussion is meant to apply to the remainder of the states—the majority—that are less rigid in their requirements. 118 CHAPTER 15

Testamentary intent is the The crucial issue here is “testamentary intent.” The maker must intend that testator’s conscious purpose a document be a will. That is the purpose behind the classic phrase, “my last will that the document is her last and testament.” One benefit of having an attorney draft a will is his expertise in will and testament. making testamentary intent clear and unmistakable. If the document appears to have testamentary intent, there is no magic phrase that must be included. In the latter situation, problems occur only if someone decides to challenge the will. Essentially, “magic phrases” are insurance against challenges during probate. Absent a challenge, statements such as “I leave my house at 318 April Street, Whipsaw, North Dakota, to my eldest son John” carry a clear implication of testamentary intent. That intent can be strengthened by placing a title such as, “Last Will and Testament of Jo Doakes” as a heading on the document— assuming that is the testator’s name. Of crucial importance, however, is that the will contain nothing to suggest that it is irrevocable. To be valid, a will must be revocable by the testator up to the moment of death.

TYPICAL PROVISIONS IN A WILL The most obvious provisions identify assets and the beneficiaries who are to receive them. It is important that the assets be described specifically so that there will be no confusion about the testator’s intent. Legal descriptions for real property should be included. If they are too lengthy, the legal descriptions can be at- tachments to the will, “incorporated herein by reference” so that they become part of the will. A testator with a collection of Civil War memorabilia should not describe it simply as “my antique collection”—especially if he also owns a collection of ancient coins. Because it is impossible to identify every single asset, it is wise to include a provision for distribution of the remainder of the estate (the The residuary estate is all residuary estate). remaining property of the Federal estate tax, if any, is always imposed upon the estate prior to distri- decedent that is not itemized bution and is paid out of the estate by the administrator or executor. At this writ- in the will. ing, estates under $675,000 are exempt from federal estate tax. That amount can be passed upon death to one’s heirs without payment of a federal estate tax. Un- der legislation enacted in 2001, that exemption will gradually rise to $3.5 million in 2009. In 2010, the federal estate tax will expire entirely. Most states also impose either estate or inheritance taxes, or both. State taxes, however, might allow some flexibility about their payment. If a large residuary estate is expected, the testator often provides that state taxes be paid from that portion of the estate. That has the effect of allowing the beneficiaries of specific bequests to receive their inheritance free of any state taxes. Of course, the beneficiaries of the residuary estate will receive less, but that often coincides with the testator’s intent. Most testators name an executor (executrix, if a female) who will perform all legal steps necessary to take the will through the probate process and who will then carry out the provisions of the will. Parents with minor children often designate a personal guardian, in case there is not a surviving parent to care for the children. If possible, they should name alternative executors and guardians in case the original choice is unable to serve in that capacity. The courts can appoint either an administrator (administratrix, if female) or guardian, if necessary. An administrator has the same powers and functions as an executor, except that the latter is named in the will and the former is appointed by the court. A personal representative is an Both are also known by the term “personal representative.” administrator or executrix of an If permitted by state law, many testators include a provision that exempts estate. the executor from posting a financial bond with the court to guarantee her conduct as a fiduciary. This is typically done when the executor is a trusted friend or relative of the testator. Family Law and Probate Law 119

Other provisions commonly found include: ■ a clause expressly revoking any prior wills and codicils ■ a clause stating that certain named potential heirs have been intention- ally omitted as beneficiaries ■ a “no contest” clause providing that any beneficiary who contests the will shall forfeit any bequest or devise given by the will ■ a clause providing for the simultaneous death of the testator and spouse ■ a “pour over” clause that distributes property to a trust

Disinheriting a Spouse or Child Due to differences in state laws, disinheriting a spouse or child is a very complicated matter—so complicated, in fact, that this textbook cannot provide more than a hint at its explanation. In the nine community property states, the surviving spouse already owns half of all the assets acquired during the marriage (except for inheritances and gifts). Thus, a testator has control only over his half-share of the community property. Of course, he can “cut his wife out of the will” when it comes to separate property brought to the marriage or acquired by gift or inheritance during the marriage. In the 41 “separate property” states, it is possible for one spouse to own virtually all of the property acquired during marriage and the other spouse to own virtually nothing. The spouse with “nothing” was typically the wife who had stayed at home to care for the children and keep house, so most of these states saw no justice in allowing the husband to cut the wife out of his will entirely. Con- sequently, some separate property states enacted statutes giving the wife some share of the husband’s assets, regardless of what he wrote in his will. That share is usually what she would receive if her husband died intestate. In most states, children may be excluded from the will. In the case of minor children, however, it would seem archaic to allow a parent upon death to avoid the support obligations he or she would have during life, with the consequence that minor children are left dependent upon welfare or otherwise wanting for the necessities of life.

REVOKING A WILL The simplest method for revoking a will is destruction of the original will, but that could lead to controversy if someone suspects that the will was actually de- stroyed by someone other than the testator. A better method is to execute a written, dated document that expressly revokes all prior wills and codicils. The best method, however, is to execute a new will, which by virtue of its later date of execution automatically voids any earlier will. It is a good idea for the testator to inform close family members that a new will has been executed. Regardless of the method used, the testator must have the same legal competence at the time of revocation that is required to make a will. In some states, a will can be revoked by operation of law—that is, without any overt action of the testator with intent to revoke that will. For example, state law might automatically void a will upon the testator’s subsequent marriage. The theory is that, but for the testator’s oversight or procrastination, a new will would have been executed to provide for the new spouse. Some states do not void earlier wills unless the marriage results in the birth of a child, at which time the will becomes void. Of course, specific portions of a will might be revoked while all other provisions remain valid. This is done by executing a codicil. Because of the potential 120 CHAPTER 15

for unintended conflicts between the codicil and other portions of the original will, it is very important that a competent attorney assist in drafting any codicil.

THE RESPONSIBILITY OF THE EXECUTOR OR ADMINISTRATOR

The executor or administrator—we shall use the terms interchangeably—has three basic responsibilities: to fulfill the legal steps necessary to probate the will, to pay any bona fide creditors of the estate, and to distribute the property of the estate in accordance with the will and any court instructions. In a small, uncomplicated estate, those are not particularly difficult. In many cases, however, the administrator will be responsible for continuing the operations of a business during the probate process, collecting rents and other debts owed to the decedent (now owed to the estate), defending challenges to the will, and possibly liquidating (i.e., selling off) assets that have not been given to named beneficiaries. Even in simple estates, an executor might know that he has been named in the will but is unable to locate the will itself, which must be filed with the court. So, the first step might be a search for the will, usually with the assistance of close relatives. The will might be in the custody of the attorney who drafted it or some other attorney. It might be stored in a safe deposit box, which usually is sealed upon the testator’s death. It might be in a shoe box in the decedent’s attic. If a will does not name an executor, any qualified person may petition the court to be named as administrator of the estate. Heirs and beneficiaries must be notified of that petition and may object to the appointment of that petitioner. Most states give preference to spouses and certain other relatives. In the case of a missing will, the presumptive executor may petition to be named as temporary administrator of the estate until the will can be found and proved. Once the will has been filed with the court, the executor or administrator will notify all known potential heirs that the will has been submitted for probate. Generally, the heirs have a statutory period during which they must either consent to or challenge the will. If they fail to act within the prescribed period, they generally waive their right to challenge. However, a later challenge might be permitted on grounds that an heir was not properly notified of the probate or upon a later discovery that the will is false or was obtained by fraud, undue influence, or duress. If no one challenges the will and it appears to meet the requirements of state law, the court will accept the will as having been proved. (Usually, the executor will ask potential heirs to sign a consent to probate of the will and will file those consent statements with the court.) Once the will has been proved, the executor will proceed with the remainder of the probate process: ■ publishing a notice to all creditors so that they may present claims ■ obtaining court permission to continue operation of the testator’s business ■ preparing an inventory of the estate ■ obtaining appraisals of the estate assets ■ filing with the court a schedule of assets and liabilities ■ paying all taxes owed by the decedent Family Law and Probate Law 121

■ paying all creditors’ claims approved by the court ■ filing all state and federal tax returns on behalf of the estate ■ obtaining court permission to sell specific assets of the estate ■ transferring title to beneficiaries for real property, vehicles, and securities; etc. Some states permit executors to exercise independent administration of Independent administration of the estate, which means that they can take most actions without seeking specific an estate is carried out without court approval. Independent administration facilitates efficient administration seeking specific court approval and shortens the probate process. A court-appointed administrator must usu- for each action of the ally file a bond with the court to guarantee that he will properly manage and con- administratrix or executor. serve the estate. Depending upon state law, a named executor might be required to post a bond, unless exempted by a provision in the will.

THE LEGAL ASSISTANT’S ROLE IN PROBATE

The legal assistant will generally prepare most of the paperwork for the probate process and will file all necessary documents with the court. The typical documents to be prepared include: ■ petition for probate of the will ■ fiduciary oath of executor/administrator ■ notice to heirs and beneficiaries of petition for probate ■ notice to creditors to present claims ■ court order for probate of the will ■ letters testamentary (for an executor) or letters of administration ■ notice to beneficiaries of proposed action ■ inventory and appraisal of estate ■ schedule of assets and liabilities ■ petition for final distribution and notice of hearing ■ court order for final distribution ■ deed of distribution for real property ■ petition for discharge of executor/administrator and release from bond The original will is filed with the petition for probate, along with any documents needed to prove the will. If known heirs or beneficiaries cannot be located, the notice to them is published in newspapers in the community of their last known residence. (The executor might be required by state law to undertake other dili- gent steps to locate beneficiaries under the will.) The notice to creditors is mailed to known creditors and also published in the “legal notices” section of a Letters testamentary (or letters of administration) is a court newspaper of general circulation where the decedent lived and where the dece- document that verifies the dent conducted business. authority of the personal The letters testamentary (or letters of administration) is a court document representative to take that verifies the authority of the executor or administrator, respectively, to take possession of the estate. Despite possession of the assets of the estate. Copies must be provided to banks, gov- the plural form, they are ernment agencies, stock brokerages, and others who hold assets or maintain of- normally contained in a single ficial ownership records. document. 122 CHAPTER 15

The petition for final The petition for final distribution asks the court to approve the distribu- distribution is the tion of all assets to rightful beneficiaries and heirs. Upon entry of the court’s administrator’s request to the order for final distribution, the assets are transferred. The petition for dis- court that it approve the charge of the executor or administrator asks the court to close the probate distribution to rightful heirs or and release the personal representative from his or her duties. Any bond beneficiaries. posted is then returned. In addition to preparing and filing court documents, the legal assistant will be involved in: ■ corresponding with creditors and debtors ■ locating assets of the estate ■ locating heirs and beneficiaries ■ obtaining Social Security or veteran’s benefits for spouse and children ■ obtaining life insurance proceeds for policy beneficiaries Practice Tip ■ collecting rents and debts The Inventory and Appraisal lists ■ operating any business owned by the estate and values all personal and real property of the estate. In some ■ transferring ownership of securities and real property states, a neutral probate referee Probate practice offers an unusually varied and responsible role for the com- is appointed by the court to do petent legal assistant. An experienced probate paralegal is able to handle the that valuation. The personal bulk of most probate work for an uncomplicated estate with minimal supervi- representative lists the value of sion by the attorney. Senior probate paralegals might be assigned to resolve so- all cash assets (bank accounts, phisticated issues, such as: certificates of deposit, and cash ■ in possession of the decedent) at separating community and separate property the time of death. All other ■ dissolution or implementation of buy-sell agreements for partnerships personal and real property is or close corporations valued by the probate referee. ■ determining whether the decedent had more than one domicile These values are of great impor- ■ arranging temporary custody of minor children tance because they determine whether state or federal estate taxes will be levied against the estate. They also determine the “cost basis” (for income tax A QUESTION OF ETHICS purposes) of property received by heirs and beneficiaries. Myron Lang is a legal assistant in a small firm with 12 attorneys. Most of his work The legal assistant prepares has been in litigation, although he has also worked occasionally on bankruptcy the inventory and appraisal and probate matters. Myron’s sister-in-law recently passed away, leaving a small based upon a thorough investi- estate to her adult daughter, Marta. Other than a small bank account and an au- gation and inquiry into the tomobile, the only substantial asset of the estate is a parcel of undeveloped property owned by the decedent. mountain land worth approximately $100,000. She then sends that form to the Myron’s niece desires to keep the property for sentimental reasons even probate referee, together with though she has no prospect of being able to build or live on it in the foreseeable any background information future. Unless the land were to be sold in probate, however, neither the estate that will aid in reaching appro- nor Marta would have sufficient liquid assets to pay the legal fees to probate the priate values as of the date of estate. Consequently, Myron’s wife insists that he seek appointment as adminis- in pro se death. After the probate referee trator of the estate and appear in probate court (i.e., acting as his own has entered the values he has attorney). “You’ve got the legal skills, and this is a very simple estate,” she ar- determined, the legal assistant gues. Marta is delighted by the prospect of getting the estate settled without sig- will file the inventory and nificant expense and readily agrees with her aunt’s suggestion. appraisal with the probate court. Myron doubts that his wife or niece would make such a suggestion if he were not a legal assistant with some probate experience, and that troubles him. What should Myron do? Family Law and Probate Law 123

SUMMARY FOR SECTION II

■ Probate is the legal process for administering and distributing the estate of a decedent. ■ Probate practice is usually part of a broader practice known as “estates and trusts.” ■ Estate planning is the organization of a client’s financial affairs, including appropriate investments and the preparation of a will and appropriate trust documents. ■ Depending upon state law, it might be possible to avoid probate by appropriate estate planning. ■ A trust is a separate legal entity, created and funded by the client for the benefit of designated beneficiaries. ■ A testamentary trust is one created by the terms of a will. ■ A living trust is created during the grantor’s lifetime by the execution of trust documents. ■ When someone dies without a valid will, his heirs are determined and his estate is distributed according to state law. ■ The basic requirements for a valid will are: ■ competency to make a will ■ execution of the will free of any fraud, duress, or undue influence ■ all terms and conditions in writing ■ execution by the testator’s signature ■ signatures of two competent witnesses ■ intent that the document serve as a will ■ legally effective provisions for distribution of the testator’s estate ■ revocability by the testator. ■ Duress is any coercion that deprives the testator of the free expression of his will. ■ Undue influence is the exploitation of a special relationship with the testator so that the testator loses her independence of thought and acts under the influence of the exploiter. ■ Fraud in the inducement of a will is use of misrepresentation to obtain some advantage under the will. ■ A holographic will is prepared entirely in the handwriting of the testator. ■ A typical will identifies assets of the testator and designates one or more beneficiaries to receive the various assets, names an executor to administer the estate, and designates a guardian for surviving minor children. ■ A testator may revoke an earlier will by making a new valid will; a common clause in a will is the express revocation of any earlier wills or codicils. ■ A executor or administrator usually presents a will for probate, gathers and conserves the estate assets, and distributes those assets in accordance with the will and with court approval. 124 CHAPTER 15

KEY TERMS administrator (administratrix) executor (executrix) physical custody adoption familial affinity principal (corpus) age of consent grantor probate alimony (spousal support) heir (heir at law) probate court annulment holographic will pro se bequeath impediments proving a will ceremonial marriage independent administration residuary estate chattel in loco parentis self-proving will codicil intestate separate maintenance commingle juvenile courts sound mind common law marriage legal custody spendthrift trust community property legal separation stalking conclusive presumption letters testamentary (letters of testamentary intent consanguinity rule administration) testamentary trust constructive trust liquidate testator (testatrix) consummated living trust (inter vivos trust) Totten trust devise marriage trust dissolution no-fault divorce trustee domicile nuncupative will undue influence duress palimony ward of the court emancipated minor personal representative will estate planning petition for final distribution

ACTIVITIES AND ASSIGNMENTS

Section I. Family Law Section II. Probate Law 1. Research statutory and/or case law in your state 1. Review “how-to” guides for the probate of a to determine the inheritance rights of children simple estate. Prepare a report on potential born out of wedlock. problems and pitfalls for the layperson who might 2. Research statutory and/or case law to determine use such a guide without the assistance of an how a married couple’s domicile is determined attorney. under the law of your state. 2. Survey your friends and acquaintances to 3. On the Internet, search for news articles about determine how many of them have a will. Find out legal problems involving adoption. Select one if any changes in their family circumstances (e.g., problem and prepare a short report on the legal marriage, divorce, births and deaths of potential issues involved. heirs or beneficiaries, etc.) have occurred since the execution of their latest will. 4. Review the Case In Point in this chapter and then research statutory and/or case law of your state 3. Find out if the law of your state permits an to determine whether a husband is presumed to attorney to be a named beneficiary in a will he or be the father of children born to his wife. Does the she drafts for a client. Review the state bar law of your state provide for circumstances in association’s code of professional ethics to which paternity can be challenged? Prepare a determine if it addresses this issue. brief report on the legal status of this issue in 4. Research statutory and/or case law of your state your state. to determine the specific requirements for a valid holographic will. Family Law and Probate Law 125

END NOTES

1Excerpted from Peter Hay, The Book of Legal many women were members of either Anecdotes, Barnes & Noble, Inc. (1989), legislature—although no woman was permitted to pp. 246–248. vote for members of New York’s House of 2Mr. Hay does not specify which of the bills was Legislature in 1820, let alone serve as a member. 3 withdrawn—that of New York in 1820 or that of Lenore J. Weitzman, The Divorce Revolution, The Free Georgia in the 1930s. Nor does he mention how Press (1985), p. 42.