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家族法

“Legal Implications of Living Together”

アメリカ 弁護士 法律事務所 法律 同居の法的意義If you are unmarried and live with a significant other, you are by no means alone. Increasing numbers of couples are choosing to live together without being formally married. Generally referred to in the law as “cohabitating,” the popularity of this living arrangement has many causes: the desire of many young people to marry later in life, high housing costs, and an increasingly broad social acceptance of such arrangements. Whatever the reason, if you have chosen to cohabitate, your decision has important legal implications.

Even though you may be very close to your partner, if you aren’t married, legally you aren’t family. There are many rights associated with marriage that aren’t extended to cohabitations. These include property settlements if the relationship ends, the opportunity to file joint tax returns, the right to receive certain government benefits owed to your partner (Social Security for example), and an automatic right to health and life insurance policies. Some of these rights can be acquired through affirmative actions, such as making your partner the beneficiary of your insurance policy. However, it is important to remember that legally you are otherwise strangers.

If you currently cohabitate or are considering it, you and your partner should talk about a cohabitation agreement. These are similar to prenuptial agreements in that they outline what will happen if the relationship ends, including the division of property, how debts will be split, and any support obligations. Cohabitation agreements should also summarize what will happen to the couple’s property upon the death of one partner and create a health care proxy or medical directive. Either clause allows you or your partner to make medical decisions on behalf of the other should it become needed.

Since family law does not regulate cohabitation agreements like it does marriage and prenuptial agreements, there is some flexibility in drafting. You should be able to tailor the agreement according to your own circumstances. Cohabitation agreements are enforced through general contract law, and as such, you and your partner should work with an attorney to draft an agreement that is both legally valid and a fair reflection of your desires.

If you and your partner plan to live together for an extended period of time, be aware that some state statutes allow for “common law marriages.” Common law marriage allows a heterosexual couple to be considered married in the eyes of the law without the formal steps. Only a minority of states recognize common law marriage today. If your state is one of these, you should speak with your attorney, especially if you are not interested in establishing common law status. Because common law marriage can be implied from your conduct, if you don’t want to be considered married, your attorney should draft an agreement explicitly stating that you and your partner are living together as unmarried cohabitants. If, on the other hand, you are interested in establishing a common law marriage, there are steps you will likely need to take: you must affirmatively agree to common law marriage, hold yourself out as married, and live together for an extended period of time (length varies between states). A valid common law marriage will create the same rights and obligations as an official marriage, without requiring the formal steps.

Cohabitation is becoming a common step in the modern dating process, and in some cases, an alternative to marriage. However, planning for your cohabitation doesn’t end after the boxes are all unpacked. Being aware of the law, and working with your partner and, when appropriate, your attorney, will ensure that both you and your partner are protected and don’t hit any legal road bumps.

(Fall 2007)

"Reviewing Custody"

Reviewing CustodyAs blended families become steadily more prevalent, it is important that parents understand their rights and responsibilities. With youngsters out of school for the summer, custody agreements are on many peoples’ minds as noncustodial parents around the country exercise their legal parenting time (often called visitation rights).

If you are considering divorce, the custody arrangement may be the most important aspect of your divorce agreement. Divorce agreements dictate whether children live primarily with one parent (a sole custody arrangement) or split their time more or less evenly between their parents (a joint custody arrangement). In sole custody, one parent takes care of the child most of the time and makes major decisions about the child. That parent is usually referred to as the custodial parent. The other parent is the noncustodial parent. Unless he or she is deemed a danger to the child’s welfare, the noncustodial parent is granted a right to parenting time.

Situations in which both parents share in making major decisions about the child and both parents spend substantial amounts of time with the child are known as joint custody arrangements.

When parents cannot agree between themselves about the custody of their child, the court decides. Courts base their decisions on an assessment of the best interests of the child. Factors affecting the courts’ understanding of children’s best interest are often listed in states’ family law statutes, domestic-relations statutes, and earlier court decisions.

The wishes of a child can be a factor in custody decisions. Though some courts will not consider the preferences of a child under seven, an older child’s expressed preferences are taken seriously by the court.

If you are already divorced, and recent changes in your or your ex-spouse’s circumstances makes a review of the custody arrangement necessary, courts do have the power to make changes. A parent seeking to modify custody through the court against the other parent’s wishes must show substantial change in circumstances since the last custody order.

In order to discourage parents from constantly litigating custody, some states apply a special standard for custody modifications sought within the first year or two after a prior custody order.

If both parents wish to voluntarily change custody or visitation schedules, they may do so without obtaining a court order. However, if the parent receiving custody or more visitation wants to protect the changes from future reversal, it is best to obtain a court order to that effect. Additionally, informal changes in custody do not affect a parent’s support obligation-only the court can change court-ordered child support.

If you and your spouse have already decided to divorce, it may be worthwhile to get a legal separation first. A legal separation can be an agreement signed by both parties, an order of the court, or both. The legal separation articulates rights that can be enforced by a court while a divorce is pending. These rights might include child support or allocation of time with children, among other things.

While it is possible to get divorced without the help of a lawyer, this is never advisable when children are involved. Even amicable divorces may require an attorney’s hand to assure that custody issues are treated fairly. Talk to your lawyer before signing any custody agreements or if you feel you’d like to change your existing agreement.

(Summer 2007)

"Premarital Agreements"

Premarital AgreementsWeddings have always been about family and ceremony and celebration. To keep it that way, many couples are taking steps to clarify their money matters before their big day.
Sometimes one (or both) partners who want to get married also want to avoid the risk of losing assets, income, or a family business in the event of a divorce. Others, who may be marrying for a second or third time, might wish to make sure that most of their assets or personal belongings will be passed on to the children or grand-children of their prior marriages rather than to their new spouse.

The law has developed a legal instrument to address these concerns—the premarital agreement. Also known as a prenuptial or antenuptial agreement, premarital agreements are usually in the news only when a celebrity has or (as in the case of ex-Beatle Paul McCartney) fails to have one. But premarital agreements aren’t just for the rich and famous. They are for anyone who would like to clarify his or her expectations and avoid uncertainties about how a divorce court might divide their property or decide spousal support if their new marriage fails.

In signing a premarital agreement, a spouse agrees to have his or her property rights and support obligations determined by the agreement rather than by the usual rules of law that a court otherwise would apply upon a divorce or death. The agreement can give the spouse more or less than state law would otherwise provide. In most states, courts divide property as the court considers fair, and the result is less predictable: the split could be fifty-fifty or something else. If one spouse dies, courts normally follow the instructions of that person’s will, but in most states the surviving spouse is entitled to one-third to one-half of the estate regardless of what the deceased spouse’s will says.

If the husband and wife have signed a valid premarital agreement, that agreement will supercede the usual laws for dividing property and income upon divorce or death. In many cases, the less wealthy spouse will receive less under the premarital agreement than he or she would receive under the usual laws of divorce or wills.

In general, the premarital agreement must be in writing and signed by the parties. In most states, the parties must fully and clearly disclose in writing their income and assets to each other. This way the parties will know more about what they might be giving up. In some states, it may be possible to waive a full disclosure of income and assets, but the waiver should be done knowingly, and it is still best if each party has a general idea of the other’s net worth.

Many states do not set a specific time at which a premarital agreement must be signed. Generally, however, it is better to negotiate and sign the agreement well before the wedding to show that each person has considered it thoroughly and signed it voluntarily. If the wealthier person shows the agreement to the prospective spouse only one day before the wedding, a court may later find that agreement invalid because of duress. While a last-minute premarital agreement is not automatically invalid, timing may be a significant factor in determining whether the agreement is valid.

Of course, the premarital agreement must not be the result of fraud or duress. An agreement is likely to be invalid on the basis of fraud if one person (particularly the wealthier one) deliberately misstates his or her financial condition. For example, if a man hides assets from his future wife so that she will agree to a low level of support in case of divorce, a court probably would declare the agreement invalid. Similarly, if one person exerts excessive emotional pressure on the other to sign the agreement, a court might declare the agreement to be invalid because of duress.

A lawyer can help you make sure that the agreement is drafted properly and that both parties are making informed decisions. The lawyer for the wealthier party usually prepares the initial draft of the agreement, but the less wealthy party should also ask his or her own lawyer to review the agreement. Although you do not need to have a lawyer in order to have a valid agreement, the agreement is more likely to be enforceable if each person’s interests are represented and significant back-and-forth negotiations have taken place. The agreement is more likely to be challenged if one of the parties does not have an independently chosen lawyer.

In addition to ensuring that a premarital agreement is legally valid and appropriate to your goals, your attorney can also help you assess whether other instruments such as a trust might help you carry out your wishes before your wedding day.

(Spring 2007)

"The Legal Side of Marriage"

The Legal Side of MarriageWhen you say, “I do”, you are making a personal commitment to another person. What you may not realize is that you are also agreeing to a battery of new legal rights and responsibilities. More than 1,000 rights and responsibilities are automatically accorded to married couples. Marriage is a private bond between two people, but it is also an important legal institution.

Here’s a quick look at some of the things you agree to when you’re at the altar. If you have specific questions, your lawyer will have the answers.

Family Law

Married couples have a variety of rights and responsibilities with respect to family issues. Many of these rights will only be relevant if the couple divorces or separates. For example, marriage entitles a person to an equitable distribution of marital property upon divorce. (Most property that is acquired during a marriage is considered marital or community property.) Marriage also entitles a person to seek support (alimony or maintenance) in the event of a separation or divorce.

Real Estate

In some states you are eligible to own property with your spouse in tenancy by the entirety. In this form of ownership, which is traditionally only available to husbands and wives, each tenant effectively owns the entire estate. Neither can deal with the property independently of the other. The main advantage of this is that creditors of one spouse cannot force the sale of the home without the other spouse’s consent. In addition, when one spouse dies, the remaining spouse automatically becomes the owner of the entire property, regardless of what the will of the deceased spouse says. Spouses also have homestead rights, which may protect the home from forced sale for collection of debts or may grant favorable property tax treatment.

Taxes

Marriage gives you and your spouse the right to file jointly, although you can file separately if you prefer. Filing jointly is likely to benefit couples if one spouse has a high income and the other spouse has a low income.

Health Care Laws

If you are married, you automatically have the right to visit your spouse in hospital if he or she is injured. It’s easy to take this right for granted―but if you are one half of an unmarried couple, such access could be denied.

If one spouse becomes incapacitated and can no longer make medical decisions, a court will usually name the other spouse as guardian or conservator to watch over his or her affairs. If the incapacitated person is unmarried, the court may name the adult children, siblings, or parents as guardians.

Wills and Estates

If you are unmarried and you die without a will, your property is distributed in accordance with state intestacy laws, which distribute property to your family. If you have a partner, then he or she could receive nothing, even if you have been living together for years. On the other hand, if you’re married and you die without a will, the state intestacy laws give your spouse rights to your property.

If you’re married, your spouse can’t disinherit you, no matter what he or she says in a will―you’re entitled to a share of the estate. Marriage also gives you preferential status to be named guardian or executor.

Government Benefits

The moment you marry, you have rights to certain government benefits via your spouse, including survivor benefits under Social Security and a broad range of military benefits if your spouse is in the military.

Private Sector Benefits

If you are married, you may be entitled to health insurance through your spouse’s employer. You may also be entitled to the right to take sick-leave to care for your spouse or child. And as a minor money-saving bonus, you may be eligible for family memberships at gyms, clubs, and other organizations, as well as receiving family rates for auto insurance.

Other Rights

There are many other rights you may be entitled to if you are married, across a variety of legal areas. If your spouse is killed, you may have the right to sue a third person for wrongful death. If your spouse is injured, you may have the right to sue for loss of consortium. Marriage can give spouses the right to immigrate. And if one spouse is involved in criminal activities, the other spouse cannot be compelled to testify against him or her. If one spouse ends up in jail anyway, the other will have the consolation of visiting rights.

(Summer 2005)

"Domestic Partnerships and Civil Unions"

Domestic Partnerships and Civil UnionsIf a couple is unmarried, each person must do a lot of additional paperwork―from writing a will to drafting powers of attorney for health care―to have the same rights as a married person. And there are some rights that married people are entitled to, such as the right to government benefits through their spouse, that unmarried couples cannot receive, no matter how long they have been together.

Some state and local governments allow persons of the same sex (and in some jurisdictions, persons of different sex) to register as domestic partners. The benefits and rights that arise from a domestic partnership vary from jurisdiction to jurisdiction. Common rights include eligibility for family health insurance, sick-leave to care for a family member or partner, bereavement leave, rights to visit a partner in the hospital, and the right to make health care decisions for an incapacitated partner. In Vermont, a law enabling same sex couples to enter into civil unions extends to lesbian and gay couples the effect of every Vermont law, regulation, and court precedent in the state that applies to married couples.

(Summer 2005)

"Divorce, Later in Life"

Divorce, Later in LifeWhether you’ve been married for five years or fifty years, deciding whether to divorce may be the most important decision of your life. Regardless of your age, you will need to navigate a number of emotional, financial and legal obstacles.

However, if you are an older adult, you may face some particularly significant issues. You are more likely to have assets (including a pension), a fixed income, and limited opportunities to increase your financial assets. Health insurance and social security benefits may also be important concerns. If you are considering divorce later in life, speak to a lawyer about steps you can take to protect your rights.

Retirement Benefits

For many families, a pension is the largest asset after the family home. Retirement benefits accumulated during the marriage are subject to division in a divorce. Retirement benefits that were earned before the marriage or that will be earned after the marriage are not subject to division.

Many divorcing spouses agree to divide the pension between them. If you cannot agree on how to divide the pension, the court will step in. Many courts prefer to give full rights to a pension to the party who earned it, as long as the other party will have a sufficient amount of income and property from other sources. However, the court is likely to divide rights to the pension if it is one spouse’s primary source of income, even if he or she did not earn it. The court can divide the pension between the spouses by percentage―for example, 60 percent for one spouse and 40 percent for the other―or by giving a fixed cash amount to one spouse with the remainder going to the other spouse.

Federal law regulates the division of pensions. Specifically, the law allows a court to make orders called qualified domestic relations orders (QDROs). These orders require the administrator of a pension plan to send pension checks not only to the worker, but also to the worker’s former spouse. Most plans by private employers honor QDRO’s but some military and governmental plans allow for marital division of retirement benefits under different rules and procedures. To find out how marital distribution is available under your or your spouses’ plan, contact the plan administrator.

Social Security

Although Social Security retirement benefits are not property and are not subject to division in a divorce, they are income and deserve consideration when a couple divorces. If you are divorced after at least 10 years of marriage, you can collect retirement benefits on your former spouse’s Social Security record if you are:

  • at least age 62,
  • unmarried,
  • not entitled to other benefits―for example, retirement or disability benefits―that exceed one-half the wage earner’s primary benefit amount, and
  • your former spouse is entitled to or receiving benefits.

Because the age at which you or your former spouse retires can have a significant impact on your social security benefits, you may want to try to reach an agreement about the age at which one or both of you can retire. For example, although retirement benefits are available at age 62, the amount received at this age will be less than that payable at full retirement age. To find your full retirement age, visit www.ssa.gov/retirechartred.htm.

Health Care Planning

When going through a divorce, it is important to address health care planning―health insurance and medical bills may be among your most significant expenses. When a couple divorces, the family health insurance policy, if any, will no longer cover both spouses. The policy will only cover the spouse who purchased the policy or who acquired the insurance through work. Children covered under a family policy generally will still be covered after a divorce.

However, a federal law passed in 1986―the Consolidated Omnibus Budget Reconciliation Act, also known as COBRA―requires most employer-sponsored group health plans to offer divorced spouses of covered workers continued coverage at group rates for eighteen months after a divorce, and up to thirty-six months in some circumstances. The worker’s divorced spouse must pay for the coverage. If you wish to take advantage of COBRA, you should act as soon as the divorce is final. You should contact the human resources or personnel department of the covered worker’s employer to learn what steps you must take. Generally, you must act within sixty days after the divorce decree becomes final; continued coverage is not automatic.

Other Steps to Take

Often people are so caught up in the process of divorce that they forget about other aspects of health care and financial planning, including wills, trusts, powers of attorney, and health care advance directives.

It is crucial to revise these documents if you get divorced. In particular, you should be sure to change your will, any trusts that designate your former spouse as a beneficiary or trustee, health care planning documents, and life insurance policies that name your former spouse as a beneficiary. If you have a lawyer assisting you with your divorce, he or she may be able to help you do this.

(Spring 2006)

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