Family Law for the Paralegal

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page i Family Law for the Paralegal CONCEPTS AND APPLICATIONS Mary E. Wilson Northern Essex Community College Upper Saddle River, New Jersey Columbus, Ohio

A01_WILS3688_01_SE_FM.QXD 8/13/08 8:32 PM Page ii Library of Congress Cataloging-in-Publication Data Wilson, Mary E. Family law for the paralegal : concepts and applications / Mary E. Wilson. p. cm. Includes bibliographical references and index. ISBN 978-0-13-159368-8 (alk. paper) 1. Domestic relations United States. 2. Legal assistants United States Handbooks, manuals, etc. I. Title. KF505.Z9W55 2009 346.7301'5 dc22 2008033819 Editor in Chief: Vernon Anthony Acquisitions Editor: Gary Bauer Development Editor: Linda Cupp Editorial Assistant: Megan Heintz Production Coordination: Elm Street Publishing Services Project Manager: Christina M. Taylor Senior Operations Supervisor: Pat Tonneman Art Director: Diane Ernsberger Cover Designer: Jason Moore Cover art/image/photo[s]: SuperStock Director of Marketing: David Gesell Marketing Manager: Leigh Ann Sims Marketing Assistant: Thomas Hayward Photo credits: Chapter 1: Getty Images; Chapter 2: Roger Dixon Dorling Kindersley; Chapters 3, 4, 5, 7, 10, 12, 14, 15: Richard A. Tauson; Chapter 6: Joel Gordon 2004; Chapter 8: Estelle Tomson; Chapter 9: Photolibrary.com; Chapter 11: Steve Gorton Dorling Kindersley This book was set in Minion by Integra Software Services, Inc. and was printed and bound by Edwards Brothers. The cover was printed by Phoenix Color Corp./Hagerstown. Copyright 2009 by Pearson Education, Inc., Upper Saddle River, New Jersey 07458. Pearson Prentice Hall. All rights reserved. Printed in the United States of America. This publication is protected by Copyright and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or likewise. For information regarding permission(s), write to: Rights and Permissions Department. Pearson Prentice Hall is a trademark of Pearson Education, Inc. Pearson is a registered trademark of Pearson plc Prentice Hall is a registered trademark of Pearson Education, Inc. Pearson Education Ltd., London Pearson Education Singapore Pte. Ltd. Pearson Education Canada, Inc. Pearson Education Japan Pearson Education Australia Pty. Limited Pearson Education North Asia Ltd., Hong Kong Pearson Educación de Mexico, S.A. de C.V. Pearson Education Malaysia Pte. Ltd. 10 9 8 7 6 5 4 3 2 1 ISBN-13: 978-0-13-159368-8 ISBN-10: 0-13-159368-4

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page iii Dedication This book is dedicated to: My mother, Florence Ruth Purcell Wilson, who is, at 104, an abiding source of love and inspiration My father, the late Honorable Robert Gardiner Wilson, Jr., who set the bar high My partner in life and in this work, Richard A. Tauson, who encourages me to accept uncertainty and embrace adventure My professors, the Honorable John E. Fenton, Jr. and John G. Schuler, who made a difference and My students, past, present, and future, who keep me learning and who make it all worthwhile

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page iv Brief Contents Contents v Preface xviii Acknowledgments About the Author List of Exhibits xxv xxiii xxiv CHAPTER 1 Introduction 1 CHAPTER 2 Premarital Agreements 31 CHAPTER 3 Marriage 60 CHAPTER 4 Annulment 89 CHAPTER 5 Nonmarital Families 115 CHAPTER 6 The Divorce Process 145 CHAPTER 7 Discovery and Financial Statements 202 CHAPTER 8 Child Custody 231 CHAPTER 9 Child Support 276 CHAPTER 10 Spousal Support 311 CHAPTER 11 Property Division 349 CHAPTER 12 Separation Agreements 388 CHAPTER 13 Parenthood 428 CHAPTER 14 Adoption 473 CHAPTER 15 Family Violence 510 Endnotes 550 Appendix A Paralegal and Legal Assistant Associations 564 Appendix B National Federation of Paralegal Associations, Inc.: Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement 566 Appendix C Organizations and Resources 576 Appendix D Websites of General Interest 580 Glossary 586 Table of Cases 604 Index 610 iv

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page v Contents Preface xviii Acknowledgments About the Author xxiii xxiv List of Exhibits xxv CHAPTER 1 Introduction 1 In This Chapter You Will Learn 1 Introduction 2 The Nature and Scope of a Contemporary Family Law Practice 3 The Role of a Paralegal in a Family Law Practice 5 Topics Applicable to Law Practices in General 8 Client Intake 8 Fee Agreements and Billing 12 Legal Research 13 Jurisdiction 18 Ethics 20 Chapter Summary 27 Key Terms 28 Review Questions 28 Focus on the Job 28 Focus on Ethics 29 Focus on Case Law 29 Focus on State Law and Procedure 29 Focus on Technology 29 Companion Website 29 Websites of Interest 29 Assignments 30 CHAPTER 2 Premarital Agreements 31 In This Chapter You Will Learn 31 What Is a Premarital Agreement and What Is Its Purpose? 32 Premarital Agreements in Perspective 32 How Is a Premarital Agreement Different from Other Kinds of Agreements Made by Married and Unmarried Partners? 34 What Kinds of Individuals and Couples Might Want to Execute a Premarital Agreement? 34 What Are the Legal Requirements for a Valid Premarital Agreement? 35 The Basic Requirements Applicable to All Contracts 36 The Requirement of Procedural Fairness 36 The Requirement of Substantive Fairness 39 v

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page vi vi Contents Preparation for Drafting a Premarital Agreement 40 What Kinds of Provisions Does a Premarital Agreement Contain? 41 What Are the Trends Regarding Enforceability of Premarital Agreements? 50 The Uniform Premarital Agreement Act s Position on Enforceability 50 Enforceability of Premarital Agreements in States That Have Not Adopted the UPAA 51 The Role of the Paralegal in a Premarital Agreement Case 55 Chapter Summary 56 Key Terms 56 Review Questions 57 Focus on the Job 57 Focus on Ethics 58 Focus on Case Law 58 Focus on State Law and Procedure 58 Focus on Technology 59 Websites of Interest 59 Assignments 59 CHAPTER 3 Marriage 60 In This Chapter You Will Learn 60 Marriage Definitions and Historical Perspective 61 Definitions 61 Historical Perspective 63 The Promise to Marry and Breach of the Promise What if you say you will and then you won t? 65 Marriage A Fundamental Right 67 Marriage Requirements 70 Requirements Relating to Legal Capacity to Marry 70 Technical Requirements for a Ceremonial Marriage 72 Requirements for a Common Law Marriage 77 Marriage as a Source of Rights, Benefits, and Obligations 79 Same-Sex Marriage 81 Federal and Interstate Recognition of Marriage 84 The Paralegal s Role 85 Chapter Summary 85 Key Terms 86 Review Questions 86 Focus on the Job 87 Focus on Ethics 87 Focus on Case Law 87 Focus on State Law and Procedure 88 Focus on Technology 88 Websites of Interest 88 Assignments 88

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page vii Contents vii CHAPTER 4 Annulment 89 In This Chapter You Will Learn 89 Definition of Annulment 90 Historical Perspective 90 Divorce and Annulment: A Comparison 91 Procedure for Obtaining an Annulment 92 Burden of Proof 94 Standing to Petition for Annulment 94 Grounds for Annulment 95 Bigamy 97 Impotence 97 Fraud 98 Lack of Consent, Duress, and Undue Influence 100 Nonage/Underage 101 Defenses to an Annulment Action 101 Compliance with State Statutes Governing Marriage 101 Ratification of the Marriage by Subsequent Conduct 102 Consummation of Marriage 103 Laches 103 Equitable Estoppel 103 Judicial Estoppel 104 Unclean Hands 104 Consequences of an Annulment Decree 106 For the Parties 106 For the Children 111 The Paralegal s Role in an Annulment Case 111 Chapter Summary 112 Key Terms 112 Review Questions 113 Focus on the Job 113 Focus on Ethics 113 Focus on Case Law 114 Focus on State Law and Procedure 114 Focus on Technology 114 Assignments 114 CHAPTER 5 Nonmarital Families 115 In This Chapter You Will Learn 115 Introduction 116 Cohabitation 117 Cohabitation Agreements 119 Forms of Relief Absent a Cohabitation Agreement 121 Alternative Nonmarital Family Structures 130 Domestic Partnerships 134 Civil Unions 137

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page viii viii Contents Implications for the Future 138 The Role of Family Law Practitioners 138 The Paralegal s Role 140 Chapter Summary 140 Key Terms 141 Review Questions 141 Focus on the Job 142 Focus on Ethics 143 Focus on Case Law 143 Focus on State Law and Procedure 143 Focus on Technology 143 Websites of Interest 143 Assignments 144 CHAPTER 6 The Divorce Process 145 In This Chapter You Will Learn 145 Historical Perspective 146 Methods of Altering a Marital Relationship 146 Divorce 146 Legal Separation 147 Separate Maintenance 147 Annulment 148 Religious Considerations in Divorce Cases 148 Divorce Under Jewish Law 148 The Muslim Religion 148 The Divorce Process A Skeletal Road Map 148 The Initial Interview in a Divorce Case 151 Dispute Resolution Options in Divorce Cases 154 Direct Negotiation 154 Mediation 155 Collaborative Law 156 Negotiation Through Counsel 156 Neutral Case Evaluation 157 Arbitration 157 Jurisdictional Issues in Divorce Actions What is the Proper Forum? 158 Does the Plaintiff Satisfy the State s Residency Requirements? 162 Which Court Has Subject Matter Jurisdiction Over Divorce and Related Matters? 163 Does the Court Have Personal (In Personam) Jurisdiction Over the Defendant? 163 Does the Court Have In Rem Jurisdiction Over the Property Involved in the Action? 164 In Which Specific Court Should the Complaint for Divorce Be Filed? 166

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page ix Contents ix Grounds for Divorce 166 No-Fault Grounds 167 Fault Grounds 168 Defenses to a Divorce Action 174 Drafting and Filing of the Complaint 175 Service of the Complaint and Return of Service 179 Defendant s Response to the Complaint 180 Motions for Temporary Orders and Other Purposes 181 Hearings on Motions 184 Discovery 185 Negotiation and Drafting of the Separation Agreement 186 Pretrial Activities 186 The Trial 187 Preparation for Trial 187 The Trial 191 The Judgment 191 Post-Divorce Proceedings 191 Post-Trial Motions 192 Appeal of a Final Judgment 192 Complaint for Modification 193 Complaint for Contempt 193 Follow-up Matters 193 The Uncontested Scenario 194 Chapter Summary 195 Key Terms 195 Review Questions 196 Focus on the Job 197 Focus on Ethics 199 Focus on Case Law 200 Focus on State Law and Procedure 200 Focus on Technology 200 Websites of Interest 200 Assignments 201 CHAPTER 7 Discovery and Financial Statements 202 In This Chapter You Will Learn 202 Definition of Discovery 203 Purpose of Discovery 203 Scope of Discovery 204 Informal Discovery 204 Formal Discovery Methods 205 Interrogatories 207 Depositions 209 Requests for Admissions 212

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page x x Contents Requests for Production of Documents or Things 215 Requests for Physical or Mental Examination 216 Electronic Discovery 220 Objections to Discovery Requests 222 Financial Statements 223 Court Involvement in the Discovery Process 227 Chapter Summary 228 Key Terms 228 Review Questions 228 Focus on the Job 229 Focus on Ethics 229 Focus on Case Law 230 Focus on State Law and Procedure 230 Focus on Technology 230 Website of Interest 230 Assignments 230 CHAPTER 8 Child Custody 231 In This Chapter You Will Learn 231 Introduction 232 Types of Custody 232 Jurisdictional Issues in Child Custody Cases 234 UCCJA 235 UCCJEA 236 PKPA 237 The Hague Convention on the Civil Aspects of International Child Abduction 237 Evolving Legal Standards for Making Custody Decisions 238 Paternal Preference 238 Maternal Preference and Tender Years Doctrine 239 Best Interests of the Child 239 The Primary Caretaker Presumption 241 The American Law Institute s Approximation Rule 243 A Closer Look at Some of the Issues Courts Consider When Making Decisions About Custody and Visitation 243 Availability 243 Stability 244 Gender 244 Race 244 Religion 245 Parental Health or Disability 247 Sexual Activity 247 Parental Lifestyle 249 History of Abuse 250 Child Preference 250 Parental Alienation Syndrome 253

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xi Contents xi Visitation Rights and Schedules 253 Defined v. Flexible Visitation Schedules 254 Supervised and Unsupervised Visitation 255 Virtual Visitation 255 Parenting Plans 256 Parent Education Programs 257 Modification of Custody Orders 258 Relocations 259 Enforcement of Custody and Visitation Orders 260 Third Parties in the Custody Context 261 Standing 262 Who Speaks for the Child in Custody Matters? 268 What is the Paralegal s Role in a Custody Case? 269 Chapter Summary 271 Key Terms 272 Review Questions 272 Focus on the Job 273 Focus on Ethics 274 Focus on Case Law 274 Focus on State Law and Procedure 274 Focus on Technology 274 Websites of Interest 274 Assignments 275 CHAPTER 9 Child Support 276 In This Chapter You Will Learn 276 What Child Support Is and When, How, and to Whom It Is Awarded 277 In What Contexts Do Child Support Issues Arise? 277 Who Has a Duty of Support? 277 When Does the Child Support Duty End? 279 Initiatives the Federal Government Has Undertaken in the Area of Child Support 279 The Major Jurisdictional Issues in Child Support Cases 281 Obtaining Personal Jurisdiction Over a Resident Defendant 281 Obtaining Personal Jurisdiction Over a Nonresident Defendant in the Petitioner s Own State 281 Obtaining Personal Jurisdiction Over a Nonresident Defendant in His or Her Own State 283 Continuing Exclusive Jurisdiction Under UIFSA 283 What Child Support Guidelines Are and How They Are Applied 283 The Origin and Purpose of the Guidelines 283 The Nature of State Guidelines 283 Definition and Proof of Income 284 Imputed Income 286 Deviations from the Guidelines 290

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xii xii Contents When and How a Child Support Award Can be Modified 295 Modification by Agreement 295 Modification Based on Proof of a Substantial Change in Circumstances 296 Modification Based on a Periodic Review and Adjustment of Orders by the State s IV-D Agency 297 How and by Whom Support Orders are Enforced 297 Whereabouts of the Noncustodial Parent 298 The Basic Title IV-D Process 298 Enforcement of an Order Against a Nonresident Defendant 299 Enforcement Methods 299 Tax Implications of Child Support 302 Tax Treatment of Child Support Payments 302 The Dependency Exemption 302 The Child Tax Credit 303 The Role of the Paralegal in Child Support Cases 303 General Responsibilities 303 Specific Tasks Pertaining to Separation Agreements 303 Chapter Summary 306 Key Terms 306 Review Questions 307 Focus on the Job 307 Focus on Ethics 308 Focus on Case Law 308 Focus on State Law and Procedure 309 Focus on Technology 309 Websites of Interest 309 Assignments 310 CHAPTER 10 Spousal Support 311 In This Chapter You Will Learn 311 What Is Spousal Support? 312 How Has Spousal Support Evolved in Society and the Law? 312 An Historical Perspective: Before No-Fault Divorce 312 The Contemporary Perspective: No-Fault Divorce 313 What Are the Differences Between Alimony and Property Division? 314 Relationship Between Alimony and Property Division 314 How Does a Party Obtain an Alimony Award? 316 Procedure 316 Initial Steps Toward an Alimony Award 316 What are the Various Types of Alimony Awards? 319 Temporary Alimony/Alimony Pendente Lite 320 Permanent Alimony 320 Term Alimony 321 Lump-Sum Alimony/Alimony in Gross 321

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xiii Contents xiii Rehabilitative Alimony 323 Restitution Alimony 325 What Factors Will a Court Consider When Making an Alimony Determination? 326 When and How Can Alimony Awards be Modified or Terminated? 335 Modification 335 Termination 338 How Are Alimony Awards Enforced? 339 What Are the Tax and Bankruptcy Implications of Alimony? 340 Tax Implications 340 Bankruptcy 341 Trends 342 The Role of Fault in an Alimony Determination 342 The Use of Guidelines in Alimony Determinations 343 The Rise and Fall of Rehabilitative Alimony? 343 The Role of the Paralegal in a Spousal Support Case 344 Chapter Summary 345 Key Terms 345 Review Questions 345 Focus on the Job 346 Focus on Ethics 347 Focus on Case Law 347 Focus on State Law and Procedure 347 Focus on Technology 348 Websites of Interest 348 Assignments 348 CHAPTER 11 Property Division 349 In This Chapter You Will Learn 349 Introduction 350 The Five Phases of the Property Division Process 350 Definition of Property 351 Classification of Property as Separate or Marital 357 Identification of the Property Subject to Division 360 Valuation of Property 363 Division of Property 366 The Role of Conduct in the Context of Property Division 374 Division of Major Assets 376 The Marital Residence 376 Pensions, Retirement Benefits, and Qualified Domestic Relations Orders (QDROs) 377 Division of Liabilities 379 Tax Consequences of Property Division 381 The Paralegal s Role in the Property Division Process 382

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xiv xiv Contents Chapter Summary 383 Key Terms 384 Review Questions 384 Focus on the Job 385 Focus on Ethics 386 Focus on Case Law 386 Focus on State Law and Procedure 386 Focus on Technology 386 Websites of Interest 386 Assignments 387 CHAPTER 12 Separation Agreements 388 In This Chapter You Will Learn 388 What Is a Separation Agreement? 389 What Is the Purpose of a Separation Agreement? 389 What Are the Characteristics of an Effective Separation Agreement? 390 How Is a Separation Agreement Developed? 395 The Form of the Separation Agreement 396 The Paralegal s Role in Drafting the Separation Agreement 397 Sample Separation Agreement 398 The Court s Role 419 Review of the Agreement at the Time of Trial or Final Hearing 419 Modification of the Agreement 421 Enforcement of the Agreement 422 Action to Vacate the Agreement 422 Chapter Summary 425 Key Terms 425 Review Questions 425 Focus on the Job 425 Focus on Ethics 426 Focus on Case Law 426 Focus on State Law and Procedure 427 Focus on Technology 427 Websites of Interest 427 Assignments 427 CHAPTER 13 Parenthood 428 In This Chapter You Will Learn 428 Introduction 429 The Child s Legal Status 429 Who Are the Interested Parties? 431 The Child 431 The Parents 432 The Government 434

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xv Contents xv How Is Parentage Established? 434 The Marital Presumption 436 Acknowledgment of Parentage 436 Adjudication of Parentage 440 Uniform Parentage Act 445 How Is Parentage Disestablished? 446 Paternity Fraud 447 Assisted Reproductive Technology 448 Ethical Issues 451 Surrogacy 453 Cryopreserved Embryos 460 Disposition of Frozen Embryos Upon Divorce 460 Posthumously Conceived Children 462 Children Born to Same-Sex Couples Through ART 463 The Legal Liability Fallout From Assisted Reproductive Technology 466 The Role of the Paralegal 467 Chapter Summary 469 Key Terms 469 Review Questions 470 Focus on the Job 470 Focus on Ethics 471 Focus on Case Law 471 Focus on State Law and Procedure 471 Focus on Technology 472 Websites of Interest 472 Assignments 472 CHAPTER 14 Adoption 473 In This Chapter You Will Learn 473 Introduction 474 Historical Perspective and Purpose of Adoption 474 Definition of Adoption 474 Legal Effect of Adoption 474 Types of Adoption 475 Types of Adoption Based on Who Is Adopting the Child 475 Types of Adoption Based on Who Facilitates the Adoption 476 Types of Adoption Based on Extent of Post-Adoption Contact 478 The Adoption Process 481 The Rights of Biological Parents in the Adoption Context 481 The Biological Mother 481 The Married Father 482 The Father Whose Identity or Whereabouts Are Unknown 482 The Nonmarital Biological Father 482 State Initiatives 484

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xvi xvi Contents Termination of Parental Rights 488 Consent 489 Involuntary Termination of Parental Rights 492 Identification of Potential Adoptive Parents and Adoptees 494 Who Can Adopt? 494 Who May Be Adopted? 497 Home Studies 498 Jurisdiction and Venue 498 Petition for Adoption 500 Notice, Preliminary Hearing, Interlocutory Decree, Pre-Adoption Placement, and Final Decree 500 Challenges to the Adoption 504 The Paralegal s Role in Adoption Cases 506 Chapter Summary 506 Key Terms 507 Review Questions 507 Focus on the Job 507 Focus on Ethics 508 Focus on Case Law 508 Focus on State Law and Procedure 508 Focus on Technology 508 Websites of Interest 508 Assignments 509 CHAPTER 15 Family Violence 510 In This Chapter You Will Learn 510 Introduction 511 Defining Family Violence 511 Family Violence Against Adult Victims 511 The Scope of the Problem 511 Federal Recognition of the Problem: The Violence Against Women Act 514 Remedies Available to Victims 515 Criminal Prosecution 515 Civil Actions 518 Protective Orders 519 Guardianship 523 Recognizing and Responding When Intimate Partner Violence is an Issue in a Case 523 When the Client Is a Victim 524 When the Client Is a Perpetrator 525 Impact of Intimate Partner Violence on Spousal Support and Property Division 526 Child Victims of Family Violence 526 The Scope of the Problem

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xvii Contents xvii Federal Recognition of the Problem 527 Types of Child Abuse 527 Neglect 528 Physical Abuse 529 Emotional Abuse 529 Sexual Abuse 532 Substance Abuse 532 Reporting of Child Abuse 534 Custody Disputes 536 Criminal Actions Against Parents 540 Tort Actions 541 To Know or Not to Know... to Tell or Not to Tell 543 Chapter Summary 545 Key Terms 545 Review Questions 545 Focus on the Job 546 Focus on Ethics 546 Focus on Case Law 547 Focus on State Law and Procedure 547 Focus on Technology 547 Websites of Interest 547 Assignments 549 Endnotes 550 Appendix A Paralegal and Legal Assistant Associations 564 Appendix B National Federation of Paralegal Associations, Inc.: Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement 566 Appendix C Organizations and Resources 576 Appendix D Websites of General Interest 580 Glossary 586 Table of Cases 604 Index 610

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xviii Preface Given my professional background as an attorney, a professor, a department chair, and a dean, I appreciate the fact that the best textbooks address the demands of several audiences with related needs: Students who want an interesting, readable text that presents course content in a manner designed to build their knowledge base, strengthen their skills, and enhance their employment prospects Instructors who want to employ diverse teaching strategies but who often lack the time or resources to develop course materials that will promote conceptual, critical-thinking, problem-solving, interpersonal, and technical job skills Prospective employers who want well-trained graduates who can transition easily into the workplace setting Accrediting bodies that articulate program requirements designed to ensure the quality and integrity of paralegal programs and their graduates Educational institutions and paralegal programs that are compelled to address the sometimes competing needs of all of the above This text is designed to effectively meet the needs of each of these groups. To that end, each chapter includes the following features: Opening scenario. The scenario is designed to pique the reader s interest and place the chapter content in context. Each scenario anticipates one or more of the exercises at the end of the chapter. In this chapter you will learn. The scenario is accompanied by a series of learning objectives that essentially introduce the basic content and organization of the chapter. Paralegal Applications. Each chapter includes a number of real-world applications and exercises designed to reinforce substantive content, illustrate applications in the workplace, and promote class discussion. Paralegal Practice and Drafting Tips. Tips provide nuggets of information that are useful to be aware of in a family law practice and that may enhance job performance and give a paralegal an edge in the workplace. Many of them expose students to ideas, concepts, beliefs, and points of view different from their own. They also provide a level of practical detail not usually available in texts or reached in class lectures. Cases. The text contains a broad selection of excerpts from current and landmark cases, some with accompanying questions designed to promote case analysis, application of legal concepts, critical-thinking skills, and lively class discussion. Full texts of a majority of featured opinions are readily accessible on the companion website for the text. Exhibits. Each chapter contains a series of exhibits that summarize and visually illustrate a variety of concepts, forms, terms, principles, etc., reinforcing the chapter content in another format. Many of the exhibits highlight multistate variations in approaches to specific family law topics and issues in order to sensitize the reader to the importance of researching and applying the law and procedure applicable to a particular case. xviii

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xix Preface xix Key Terms. A list of chapter-specific key terms appears at the end of each chapter. Context specific definitions are provided in chapter margins for emphasis as well as in a Glossary at the end of the text. Review Questions. A series of review questions are presented at the end of each chapter to focus content review. Focus on the Job. An extensive hypothetical is provided at the end of each chapter that picks up on the opening scenario and calls for students individually, in a pair, or in a small group to complete a work assignment, such as drafting a pleading, preparing a discovery request, or conducting an interview. Focus on Ethics. Attention to ethical concerns permeates the text. In particular, each chapter includes an end-of-chapter exercise that requires the student to analyze, discuss, and/or recommend a response to a situation related to the Focus on the Job hypothetical with reference to a specific code of paralegal conduct. Focus on Case Law. This focus requires the student to address a particular case in some fashion (e.g., IRAC, brief, respond to a series of questions, etc.). Focus on State Law and Procedure. This end-of-chapter activity requires the student to relate chapter content to his or her home state by locating a form, statute, case, etc., and completing a related assignment. Focus on Technology. This focus provides a list and brief description of websites related to the chapter content as well one or more online assignments.

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xx Message to Students Welcome to Family Law for the Paralegal: Concepts and Applications. As you embark on your study of family law, I want to share a few thoughts with you about the nature, purpose, and use of this text as a resource. One of the primary purposes of the book is to introduce you to basic principles of family law and procedure. Although the focus is on traditional terminology and generic topics, an effort is made to alert you to the considerable variation that exists in both law and procedure from jurisdiction to jurisdiction. Each chapter provides opportunities for you to consider issues through the lens of your own state and the facts of a particular case. You are likely to find that the initial response to almost every question is It depends. It depends on the facts of the case, the client s needs and goals, where the action is brought, how many and which jurisdictions are involved, which areas of substantive law must be considered (probate, tax, contract, tort, etc.), the source and nature of law governing the matter, and a host of other potential factors. No textbook can address these issues with respect to a particular case. However this text can help you identify the questions that need to be raised, explored, and addressed, and point you in the direction of answers. A major purpose of this text is to foster development of your practical skills and self-confidence so that you are better prepared to enter the workforce well equipped to carry out your responsibilities as a valued member of a family law team or as a resource in a general practice that addresses domestic as well as other matters. This text focuses specifically on the role of the family law paralegal afforded the opportunity to be involved in all phases of legal representation including, for example, interviewing clients, maintaining client contact in emotionally charged contexts, preparing discovery requests, drafting documents, conducting research, engaging in creative problem solving, and preparing for and assisting at trial. Every effort has been made to ensure that the material contained in this text is current and accurate including URL addresses. However, sources of information and the law continually evolve. The success of a client s case may ultimately turn on a recently decided case or a newly passed statute. Practical applications and exercises throughout the text are designed to emphasize the need to continually update your knowledge base, particularly with respect to the governing law and procedure where you are employed. Family law is an exciting and rapidly evolving area of substantive law. It is no longer solely about who is to blame for the breakup of the marriage and who gets the kids and the house. You may well be surprised and challenged by the range of topics considered in this text. Although grounds for divorce, child custody, and property division are still central to family law, it now encompasses many additional emotionally charged and frequently controversial topics: Should same-sex partners be permitted to marry? Should a father who has been defrauded by the mother of a child as to his parental status be permitted to disestablish paternity? If couples freeze embryos for later use and then divorce, what should happen to the embryos? Should grandparents be granted visitation rights xx

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xxi Message to Students xxi over the objection of a biological parent? Should premarital agreements be treated like contracts between strangers rather than between partners who owe each other a special fiduciary duty? Should a mother be deprived of custody of her child if the child witnesses her being abused by an intimate partner? Should visitation provisions include opportunities for virtual visitation? Should parties to a divorce action be required to participate in mediation before litigating their case? Should gay individuals or couples be permitted to adopt minor children? There is much to learn about. Companion Website Students can access a wealth of study aids at www.prenhall.com/wilson. The online Companion Website includes the following for each chapter: learning objectives, test-prep quizzes with immediate feedback, cases, statutes, various state forms, and additional resources including models of motions, charts, statistics, and supplemental terms. Now take a deep breath and enjoy the adventure!

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xxii Message to Instructors When I began teaching family law more than a decade ago, I initially assumed that if I wasn t lecturing, students weren t learning and I wasn t doing my job. After all, as an adjunct faculty member, I was being paid to bring my real-world knowledge and expertise into the classroom. However, accomplishing that purpose solely through lectures contradicts everything we know about adult learners. It sacrifices the opportunity for discussion and debate, for questions and explanations, and for practical exercises and skill building. This book is designed to address this tension and the need for balance. It is a more self-contained text than most and requires less outside supplementation. Pedagogical assists woven into the body and at the end of each chapter provide built-in opportunities to, for example, explore an ethical challenge using a hypothetical situation commonly encountered in a family law practice, debate a cutting-edge issue such as disestablishment of paternity, role-play an interview with an abused spouse, or draft documents in class such as a complaint for divorce, parenting plan, or property division proposal based on a comprehensive fact pattern. The text is not designed to teach a family law course for you. Rather, it is designed to provide built-in tools that enable you to actively engage students in the teaching and learning experience. I sincerely hope you enjoy using them as much as I do and will welcome your comments and suggestions regarding any aspect of the text or ancillary materials at rooesq@juno.com. Resources for Instructors The Instructor s Manual, Microsoft PowerPoint slides, and additional instructor resources are available for download from our Instructor s Resource Center. To access supplementary materials online, instructors need to request an instructor access code. Go to http://www. pearsonhighered.com/educator, click the download instructor resources link, and then click Register Today for an instructor access code. Within 48 hours of registering you will receive a confirmation e-mail with an instructor access code. Once you have received your code, go to the site and log on for full instructions on downloading the materials that you wish to use. Instructor s Manual with Test Item File The Instructor s Manual contains chapter objectives, lecture outlines and several suggested class activities, answers to discussion questions and case problems, and comments about the exercises. Prentice Hall Testgenerator Powerpoint Lecture Presentation Package xxii

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xxiii Acknowledgments Primary thanks go to my partner, Richard Tauson. Ric has been my number-one supporter and most constructive critic. His long hours of research, attention to detail, manuscript preparation, and review were invaluable. His patience, and that of friends and family, make many things possible. Much appreciation is due the Commonwealth of Massachusetts Trial Court Law Library Lawrence Division (Head Law Librarian Brian J. Archambault, Assistant Law Librarians Kathleen J. MacKinnon, Laurie Paszko, and Rachel A. Diaz); the Massachusetts Trial Court Library Salem Division (Head Law Librarian Richard Adamo); and the Northern Essex Community College Library (most especially Librarians Gail Stuart and Louise Bevilacqua). I also want to thank my paralegal program colleagues for providing input and encouragement, and my family law students at Northern Essex for their enthusiastic pilot testing of several of the Paralegal Applications, research assignments, ethics exercises, and drafting projects. Finally, I want to thank personnel at Prentice Hall for their guidance, assistance, and support, especially Gary Bauer, Linda Cupp, Christina Taylor, and Leigh Ann Sims. Thanks also are due the following reviewers for their helpful suggestions: Richard Q. Barrett, Simpson College Heidi Getchell-Bastien, Northern Essex Community College Erma Hart, Wharton County Junior College Annette R. Heim, University of North Carolina-Charlotte Jennifer Jenkins, South College Tracy Kaiser, Manor College Heidi K. Koeneman, Ivy Tech Community College, Ft. Wayne Genia Lee, McNeese State University Elaine S. Lerner, Kaplan University Beth R. Pless, Northeast Wisconsin Technical College Annalinda Ragazzo, Bryant and Stratton College Joan Stevens, Loyola University of Chicago Laura Tolsma, Lansing Community College Buzz Wheeler, Highline Community College and, most especially, Julia O. Tryk, Cuyahoga Community College xxiii

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xxiv About the Author Mary E. Wilson is a graduate of Suffolk University Law School in Boston, Massachusetts. In addition to her law degree, she earned a Masters in Education from Boston University and a Bachelor s Degree from Middlebury College in English and Psychology. She presently is a member of the American Bar Association Family Law Section and is admitted to the practice of law in Massachusetts and New Hampshire. She is an adjunct faculty member at Northern Essex Community College in Haverville and Lawrence, MA where she teaches courses in the paralegal and criminal justice programs, having retired as a full professor in 1997. In her more than twenty years of teaching at both public and private institutions, she has designed and taught a variety of behavioral science and education courses. She has also directed a statewide training program for foster parents and social workers through the Massachusetts Community College system and has authored training manuals on child discipline and working with abused and neglected children. A former department chair, she has also served as a director and dean at Northern Essex. xxiv

A01_WILS3688_01_SE_FM.QXD 8/12/08 10:22 PM Page xxv List of Exhibits EXHIBIT 1.1 EXHIBIT 1.2 EXHIBIT 1.3 EXHIBIT 1.4 EXHIBIT 2.1 EXHIBIT 3.1 EXHIBIT 3.2 EXHIBIT 3.3 EXHIBIT 3.4 EXHIBIT 3.5 EXHIBIT 3.6 EXHIBIT 4.1 EXHIBIT 5.1 EXHIBIT 5.2 EXHIBIT 5.3 EXHIBIT 5.4 EXHIBIT 5.5 EXHIBIT 6.1 EXHIBIT 6.2 EXHIBIT 6.3 Paralegal Job Description Fee Agreements Basic Terminology Sample Time Sheet Types of Jurisdiction Sample Premarital Agreement Types of Monogamous Marriage Louisiana Covenant Marriage Statute The Illinois Anti-Heartbalm Statute La. Rev. Stat. Ann. 9:272-274 (enacted in 1947) Selected Marriage Laws State by State (as of Summer 2007) West Virginia Code 16-3C-2 New Hampshire Statute Concerning Cohabitation New Hampshire Revised Statutes Annotated 457:39 Differences Between Divorce and Annulment Marriage and Cohabitation a Comparison Legal Bases for Granting Relief to Cohabitants upon Dissolution of Their Relationship Minnesota Cohabitation and Necessity of Contract Statutes Summary of State Approaches to Status of Same-Sex Marital and Nonmarital Couples (as of June 2008) Employers That Lead the Way Is the Client Missing Anything? A Skeletal Outline of the Divorce Process in a Contested Case Jurisdiction in Divorce Actions Tenn. Code Ann. 36-4-101. Grounds for Divorce from Bonds of Matrimony EXHIBIT 6.4 Complaint for Absolute Divorce (Maryland) EXHIBIT 6.5 Sample of a Motion to Vacate the Marital Home EXHIBIT 6.6 Example of a Proposed Judgment EXHIBIT 7.1 Sample Deposition Questions EXHIBIT 7.2 Sample Request for Admissions EXHIBIT 7.3 Summary Table re Formal Discovery Methods EXHIBIT 7.4 Example of a Financial Affidavit State of Connecticut EXHIBIT 8.1 New Jersey Statute re Custody of Child, Rights of Both Parents Considered N.J. Stat. 9:2-4 EXHIBIT 8.2 Statutory Provisions re Child Preference in Custody Context Ga. Code Ann. 19-9-3 EXHIBIT 8.3 Statutory Provisions re Testimony in Custody Cases Utah Code Ann. 30-3-10(1)(c)(d) and (e) EXHIBIT 8.4 EXHIBIT 8.5 EXHIBIT 9.1 EXHIBIT 9.2 Kentucky Statute KRS 403.270 (2006) Pertaining to Custody Issues Best Interests of Child Shall Determine Joint Custody Permitted De Facto Custodian Illinois Statute 750 ILCS 5/601(b)(3) (2006) Pertaining to Jurisdiction; Commencement of [Custody] Proceeding Child Support and Spousal Support (Alimony) A Comparison Child Support Guidelines Worksheet for the State of Tennessee EXHIBIT 9.3 North Dakota Formula for Child Support with Equal Physical Custody EXHIBIT 10.1 Alimony and Property Division A Comparison EXHIBIT 10.2 Types of Alimony/Spousal Support EXHIBIT 11.1 Property Potentially Subject to Division EXHIBIT 11.2 Summary Table re Equitable Distribution and Community Property Approaches EXHIBIT 11.3 Illinois An Equitable Division Jurisdiction 750 ILCS 5/503 (8)(d) EXHIBIT 11.4 Community Property Ten Commonly Asked Questions EXHIBIT 12.1 Checklist of Basic Topics Covered in Separation Agreements EXHIBIT 12.2 Sample Separation Agreement EXHIBIT 12.3 Distinction Between Merger and Survival as an Independent Contract EXHIBIT 13.1 When Is a Parent a Parent? EXHIBIT 13.2 Complaint to Establish Paternity (Massachusetts) EXHIBIT 13.3 Assisted Reproductive Technology Basic Terminology EXHIBIT 13.4 Ethical Considerations in ART EXHIBIT 13.5 Fla. Stat. 742.15 Gestational Surrogacy Contract EXHIBIT 14.1 Types of Adoption EXHIBIT 14.2 Iowa Administrative Code/Human Services Department [441]/ CHAPTER 108 Licensing and Regulation of Child-Placing Agencies/ 441-108.9 (238)(4) Services to Adoptive Applicants (c) Adoptive Home Study and (d) Record checks EXHIBIT 15.1 Family Violence A Statistical Profile EXHIBIT 15.2 Elder Abuse EXHIBIT 15.3 Stalking A Statistical Profile EXHIBIT 15.4 Profile of an Abuser xxv

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