What is Marriage? Traditional Union. Legal Partnership. woven couple protect/provide for mother and children health of individuals (sexual)

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1 John C. Hoelle, Esq. Disclaimer: This presentation does not represent legal advice or create an attorney-client relationship. The views here do not necessarily represent the opinions of Carrigan Law, LLC. Please note that the law related to families varies by state, and current law is constantly changing. Date: 10/23/2012

2 What is Family Law? Family law consists largely of divorce and custody proceedings under the jurisdiction of the state court system, but also includes out-of-court interactions such as negotiation, mediation, and execution of marital and pre-marital contracts. The definition of family is increasingly in flux, and the non-traditional families of today are wise to get legal advisement prior to any potential disputes, especially if there are unconventional issues involving children or financial arrangements.

3 What is Marriage? Traditional Union woven couple protect/provide for mother and children health of individuals (sexual) Legal Partnership like a business contract (partnership law) fiduciary responsibilities restrictions on intra-family lawsuits (for personal injury, etc) privileged spousal communications woven finances

4 Uniform Marriage Act Purpose to strengthen and preserve the integrity of the marriage, safeguard meaningful family relationships, and provide adequate procedures for the solemnization and registration of marriage Statutory formalities (for validity of any marriage) License Age, no blood relation, no undissolved former marriage, man + woman, (capacity to consent), (physical capacity to consummate the marriage), (no fraud/duress) Same-sex marriage is not recognized in Colorado. (Legislation to prohibit same-sex marriage was passed in 1996, but vetoed by the governor as not necessary. ) Solemnization (ceremony with proper officiant) Registration

5 Marriage: some practical effects Name change without going before a judge Joint income taxes and deduction list one spouse as a dependent Health and/or life insurance for spouse through employer Spousal benefits upon death of one spouse surviving spouse is principal intestate taker homestead rights after-married spouse gets intestate share (as if no will) Rebuttable presumption of paternity of children Children of marriage get parent s property if no will (managed by spouse until child reaches majority age) Medical decision-making for spouse by spouse in emergency Medical decision-making by spouse for children Property acquired during the marriage is divisible at dissolution Must file joint petition to adopt children

6 Legal rights of unmarried parties Civil claims Usually require a showing that the plaintiff has contributed financially to the property at issue or is titleholder Unjust enrichment One party contributes to other s gain (non property) Stronger remedy under Lewis v. Lewis (2008) More legal rights of unmarried cohabitants when dissolving a relationship [C]laims of unjust enrichment by close family members or confidants should be evaluated by considering the mutual purpose of the parties.

7 Custody Colorado: Parenting Time and Decision-Making At issue whether parties are divorced or were never married Best interests of the child Parenting Plan Part of court order Sets out schedules and agreements Difficult written agreement Legal advisement at the time of creation, as well as at the time of any modifications, is advisable Can be tricky to enforce Each parent entitled to reasonable, liberal time unless dangerous to child After parents, blood relatives (including grandparents) generally have preferred custody

8 Paternity Paternity presumptively established by: marriage (before or after) receiving the child into his home and openly holding out the child as his natural child acknowledge paternity in a writing filed with the court or registrar of vital statistics, if not disputed by mother. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted. genetic tests If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.

9 Factors for parenting time The wishes of the child's parents The wishes of the child (if sufficiently mature to express reasoned and independent preferences) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests The child's adjustment to his or her home, school, and community The mental and physical health of all individuals involved The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support The physical proximity of the parties to each other as this relates to the practical considerations of parenting time Whether one of the parties has been a perpetrator of child abuse or neglect Whether one of the parties has been a perpetrator of domestic violence The ability of each party to place the needs of the child ahead of his or her own needs

10 Factors for decision making All of the previous factors The ability of the parties to cooperate and to make decisions jointly Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties Whether one of the parties has been a perpetrator of child abuse or neglect, or domestic violence (then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the legal representative of the child, unless, if domestic violence, the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child)

11 Marriage alternatives : Common Law Marriage Colorado is one of the few states that still recognizes Two people who are eligible to be married mutually agree that they are married, and hold themselves out to the community as being married (objective manifestation)

12 Marriage alternatives : Joint venture/business formation Benefits Insurance plans, health savings accounts, etc. Tax-deductible property acquisition (if owned by the business for legit purposes) Types LLC flow through taxation (file informational return ) flexible design formalities (primarily for liability shield): Articles of Organization (in all cases) Operating Agreement Secretary of State reports minutes for major transactions biz and individual accounts kept separate hold out to world as LLC (versus individual) S-Corp same as C Corp, except not taxed (flow through like LLC or partnership) must file federal form with 75 days of incorporation Tips Run your business at least on a break even basis Keep current on filings

13 Marital Agreements signed in writing by both parties (amend/revoke same way) voluntary with fair and reasonable disclosure of property and/or financial obligations made in contemplation of marriage or between present spouses (must be signed by both parties prior to the filing for divorce or under circumstances accompanying, connected with, or surrounding a contemplated divorce ) note: different circumstances for agreement than a divorce settlement waiver of maintenance and attorney fees voidable if unconscionable

14 Marital Agreement ideas Carve out separate property, if desired vehicles, real estate, accounts, pensions, income streams, trust interest, damage/injury awards, debts Set up Legal Fund Set up conflict resolution scheme Maintenance Waive, if desired Stipulate regarding the relevance of future co-habitation Custody Memorialize decisions as to major issues regarding the children Stipulate between husband and wife, before or after marriage, that polyamory is a non-issue with respect to division of property or custody in the event of divorce Name the desired guardians for the children (if applicable)

15 Retaining custody in breakdown Prior agreements between the parties? Good psychological testimony about what is or is not in the children's "best interests Availability of empirical studies? If not, ask adverse expert How They Know What They Say They Know? Any cognitive biases in expert report? Challenge credentials of adverse expert Challenge currentness of adverse expert s sources Challenge assessment procedures Challenge testimony as using irrelevant and arbitrary groupings Life insurance on your life may help your financial picture

16 Other poly family issues: Inheritance/Wills Have a will Name guardians for the children (if applicable, with same priority in each will) grant authorizations for childcare (if applicable) Designated Beneficiary Agreements Create a living (revocable) trust Trust owns assets. If a member of the trust dies, the trust goes on and the property does not hit probate

17 Other poly family issues: Medical/Financial Decisions Medical Power of Attorney Financial Power of Attorney May not hold up if overly broad too old

18 Special notes Married, unmarried, and same-sex parents may request the allocation of parental responsibilities for their children In 2007, Colorado enacted a second-parent adoption statute to allow adoption by a second parent if the sole legal parent consents. Two unmarried same-sex parents may be legal parents of a child. Similar to divorcing or unmarried parents, same-sex parents may invoke the court system to determine parenting rights when a relationship ends

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