Family Law & Practice: The Paralegal’s Guide

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Family Law & Practice:The Paralegal’s GuideGrace A. LuppinoJustine FitzGerald MillerPEARSON EDUCATION, INC.

CUSTOM EDITIONFamily Law & PracticeThe Paralegal’s GuideGrace A. Luppino Justine FitzGerald MillerTaken from:Family Law & Practice: The Paralegal’s Guideby Grace A. Luppino and Justine FitzGerald MillerTaken from:Family Law & Practice: The Paralegal’s Guide, Fourth Edition by Grace A. Luppino and Justine FitzGeraldMiller. Copyright 2002 by Pearson Education, Inc. Published by Prentice Hall, Inc. Upper Saddle River,New Jersey 07458

All rights reserved. No part of this book may be reproduced, in any form or by any means, withoutpermission in writing from the publisher.This special edition published in cooperation with Pearson Custom Publishing.All trademarks, service marks, registered trademarks, and registered service marks are the propertyof their respective owners and are used herein for identification purposes only.Printed in the United States of America10 9 8 7 6 5 4 3 2 1ISBN 0-536-17399-02005932114EHPlease visit our web site at www.pearsoncustom.comPEARSON CUSTOM PUBLISHING75 Arlington Street, Suite 300, Boston, MA 02116A Pearson Education Company

DEDICATIONThis book is dedicated to Margaretann Antonelli, my nieceGrace, and my nephews Rocco and Jhonnatan, and to mylegal mentors: Elizabeth Gleason, Herbert L. Grayson, MaryMoers Wenig, Patricia Buck Wolf, and Gerald Zuckerman.Grace A. LuppinoDedicated to my children, Justine and George.Justine FitzGerald Miller

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CONTENTSPREFACEACKNOWLEDGMENTSCHAPTER 1CHAPTER 2I NTRODUCTION TO FAMILY LAW PRACTICExviixix1FAMILY LAW THEORYFAMILY LAW PRACTICE23Court ProceduresOffice ProceduresAPPLYING FAMILY LAW THEORYTO FAMILY LAW PRACTICE33SettlementMediationTHE FAMILY PRACTITIONER’S ROLEIN THE DISSOLUTION PROCESSREVIEW QUESTIONS & EXERCISES44356THE ROOTS AND TRADITIONS OF AMERICAN FAMILY LAW7MARRIAGE, DIVORCE, ANDFAMILY LAW FROM COLONIAL AMERICA TOTHE TWENTIETH CENTURY8The Industrial Revolution and the FamilyFAMILY LAW FROM THE DAWN OF THE TWENTIETHCENTURY TO THE PRESENT DAYTYPES OF ACTIONS IN THE AREAOF FAMILY LAWBreach of Promise to MarryAlienation of AffectionCommon Law Marriage DissolutionsAnnulment9111112161617v

viCONTENTSLegal SeparationSeparate MaintenancePaternity ActionsTHE TRANSITION TO CONTEMPORARY FAMILY LAWTHEORY AND PRACTICEREVIEW QUESTIONS & EXERCISESCHAPTER 3CHAPTER 4ETHICS IN FAMILY LAW232424242728AUTHORIZED PRACTICE OF LAWUNAUTHORIZED PRACTICE OF LAW2930UPL ViolationsRULES OF ETHICSOVERVIEW OF BASIC ETHICAL PRINCIPLES323639ConfidentialityConflict of InterestCommunicating with Opposing PartyThe Pro Se LitigantCompetenceFeesSolicitationEXHIBITSREVIEW QUESTIONS & EXERCISES394146474749525359PRENUPTIAL AGREEMENTS, COHABITATION, ANDSAME-SEX MARRIAGE60PRENUPTIAL AGREEMENTSIntroductionLegal Requirements of a Valid Prenuptial AgreementAcquiring the Necessary DocumentationWho Should Have a Prenuptial Agreement?Know Your State LawThe Intent of the Parties Must Be ClearCompliance with the Statute of FraudsAdequate DisclosureAdvice of Independent Counsel61616464656566666667

CONTENTSCHAPTER 5viiFairnessAssessing the Client’s Position Regardingthe Enforceability of the Prenuptial AgreementThe Contract Must Be Entered Into VoluntarilyJurisdictionUnenforceable ProvisionsCOHABITATION67IntroductionWhy Cohabitation?Marvin v. MarvinSAME-SEX MARRIAGE69697072IntroductionDomestic PartnershipsMarriage StatutesThe Legal Battle for Recognition of Same-Sex MarriageThe Fourteenth Amendment ArgumentThe State Equal Rights Amendment ArgumentEXHIBITREVIEW QUESTIONS & Y OF ALIMONY84Ecclesiastical CourtsOrigins of the Alimony AwardAlimony in Early AmericaALIMONY AWARDS IN A NO-FAULT SETTINGDETERMINING ALIMONYRESOURCES FOR ALIMONYDETERMINING SPOUSAL NEEDBALANCING PROPERTY DIVISION, CHILD SUPPORT,AND ALIMONYTYPES OF ALIMONY84858686909394Pendente Lite AlimonyFinal OrdersMODES OF ALIMONY PAYMENTMODIFICATION OF ALIMONY94959596103103

viiiCHAPTER 6CONTENTSESCALATION CLAUSES AND COST-OF-LIVINGINCREASE CLAUSESMEDICAL INSURANCEATTORNEY’S FEESTERMINATION OF ALIMONY105105106107RemarriageCohabitationDeathTAX CONSEQUENCES OF ALIMONY107107107108The IRS Recapture RuleFamily Support Payments versus Separate Payments ofAlimony and Child SupportEffects of Bankruptcy on Alimony, Child Support, andProperty DivisionPRACTICAL TIPS FOR CLIENTSENFORCEMENT OF COURT-ORDERED PAYMENTSATTORNEY’S FEES IN CONTEMPT ACTIONSREVIEW QUESTIONS & EXERCISES108PROPERTY AND DEBT DISTRIBUTIONBASIC PRINCIPLES OF PROPERTYPROPERTY AND DEBT DISTRIBUTION UPON MARITALDISSOLUTIONTHE DISTINCTION BETWEEN SEPARATE AND MARITALPROPERTYVALUATION OF ASSETSRETAINING EXPERTS FOR VALUATION OF PROPERTYEFFECT OF PRENUPTIAL AGREEMENTS ON PROPERTYDISTRIBUTIONRESOLVING THE ISSUE OF PROPERTY DISTRIBUTION:CONTESTED OR UNCONTESTEDJURISDICTIONAL APPROACHES TO PROPERTYDISTRIBUTIONEquitable DistributionCommunity 126126127

CONTENTSCHAPTER 7ixTHE NOT-SO-OBVIOUS ASSETS OF MARRIAGE129GoodwillPensionsProfessional DegreeDISTRIBUTION OF THE MARITAL DEBTSDISSIPATION OF MARITAL ASSETSEXHIBITREVIEW QUESTIONS & EXERCISES130132135138139142144CHILD CUSTODY, VISITATION, AND RIGHTS OF THIRD PARTIES145A HISTORICAL PERSPECTIVE ON CUSTODY146The Age of Paternal DominanceThe Shift to Maternal ControlTHE TENDER YEARS DOCTRINEEQUALIZING THE CUSTODIAL PLAYING FIELD: THETRANSITION FROM “TENDER YEARS” TO “BESTINTEREST”THE BEST INTEREST STANDARD AS THE ULTIMATEDETERMINANTTHE BROADER RESULTS OF APPLYING THE BESTINTEREST STANDARDJOINT CUSTODYTYPES OF JOINT CUSTODY146146147Joint Custody with Physical Custody in One ParentShared Physical Joint CustodySplit CustodyHOW TO DETERMINE WHAT IS IN THE CHILD’S BESTINTERESTFACTORS CONSIDERED IN DETERMINING BESTINTERESTPsychological ParentPrimary CaregiverChild’s PreferenceParents’ Physical and Mental Health148149149149150150150150153153154154155156

xCHAPTER 8CONTENTSReligionParental ConductVISITATION RIGHTSRIGHTS OF THIRD PARTIESSTATUS OF UNMARRIED PARENTS AND THEIRRIGHTS AND RESPONSIBILITIES156156160161The Absent ParentChallenges to Child Support OrdersPaternity IssuesREVIEW QUESTIONS & EXERCISES164165165166CHILD SUPPORTCHILD SUPPORT GUIDELINES: FEDERALLYMANDATED REQUIREMENTSDETERMINING EACH PARENT’S OBLIGATION FORCHILD SUPPORTMODIFICATION OF CHILD SUPPORT ORDERSCHILD SUPPORT ENFORCEMENTCivil EnforcementAdministrative EnforcementInterstate Enforcement of Child Support ObligationsSEPARATION OF CHILD SUPPORT OBLIGATIONFROM THE RIGHT TO VISITATIONASPECTS OF SUPPORT ORDERSPOSTMAJORITY CHILD SUPPORTEXHIBITSREVIEW QUESTIONS & EXERCISESCHAPTER 9THE CLIENT I NTERVIEWTHE PARALEGAL’S ROLE IN THE INITIAL SCREENINGPROCESSPREPARING FOR THE CLIENT INTERVIEWUnderstanding the Emotional Aspects of DivorceDeveloping a Relationship of Trust and ConfidenceDeveloping Good Listening SkillsPreinterview 9188189189191191192192193

CONTENTSCHAPTER 10xiTHE CLIENT INTERVIEW193The Client’s ArrivalThe Actual InterviewREFERRING CLIENT TO SUPPORT SERVICESREFERRALS FOR CHILDRENCONDUCTING THE INITIAL INTERVIEWMAINTAINING A HIGH DEGREE OFPROFESSIONALISMPREPARING FOR THE CLIENT INTERVIEWFUNDAMENTALS OF CLIENT INTERVIEWING IN THEFAMILY LAW OFFICEOBTAINING ESSENTIAL INFORMATION FROM THECLIENTREPRESENTING THE DEFENDANT SPOUSE193193195196196199204Preparing ReleasesTHE RETAINER LETTEREXHIBITSREVIEW QUESTIONS & EXERCISES204205207223I NITIAL AND RESPONSIVE PLEADINGS197198198224PROCESSING THE DISSOLUTION ACTIONINITIAL PLEADINGS IN A DISSOLUTION ACTION225226The PleadingsThe ComplaintForm of the Dissolution ComplaintPreprinted Complaint FormPre-return Date ReliefTEMPORARY RESTRAINING ORDERSERVICE OF PROCESS OF THE DIVORCE COMPLAINTRESPONSIVE PLEADINGS TO THE DISSOLUTIONCOMPLAINTTHE APPEARANCE AND THE ANSWERTHE CROSS-COMPLAINTEXHIBITSREVIEW QUESTIONS & EXERCISES226226226229229230231232233234235253

xiiCHAPTER 11CHAPTER 12CONTENTSPENDENTE LITE MOTIONS AND ORDERS255PENDENTE LITE MOTIONSANATOMY OF A ionMOST FREQUENTLY USED FAMILY LAW MOTIONS257257257258259260Motion for AlimonyMotion for Custody of Minor ChildrenMotion for Child SupportMotion for VisitationMotion for Counsel FeesMotion for Exclusive Possession of the Marital ResidenceMotion for Use of Motor VehicleMotion for Payment of Mortgage and InsurancePremiumsRestraining OrdersTHE PARALEGAL’S ROLE IN FACILITATING PENDENTELITE MATTERSDOCKET CONTROL SYSTEMMOTIONS FOR CONTEMPT AND ModificationEXHIBITSREVIEW QUESTIONS & EXERCISES266266267288THE DISCOVERY PROCESS IN FAMILY LAWDISCOVERY TOOLSInterrogatoriesRequests for ProductionRequest for Physical or Psychiatric Examination263263289290290293294

CONTENTSRequest for AdmissionDepositionsNoticing of Nonparty WitnessesMotion for Disclosure of AssetsThe Financial AffidavitEXHIBITSREVIEW QUESTIONS & EXERCISESCHAPTER 13SEPARATION AGREEMENTSMERGER OF SEPARATION AGREEMENT INTO THECOURT’S DECREEADVANTAGES OF REACHING AN AGREEMENTPARALEGAL’S ROLE IN DRAFTING THESEPARATION AGREEMENTFINALIZING THE SEPARATION AGREEMENTBASIC CLAUSES AND STRUCTURE OF THESEPARATION e BreakdownSeparation of the PartiesAlimonyReal PropertyPersonal PropertyCustody and VisitationChild SupportHealth InsuranceLiabilitiesTaxesDisclosureRepresentation of the PartiesMiscellaneous ClausesSignature ProvisionsAcknowledgmentREVIEW QUESTIONS & 330331332

xivCHAPTER 14CONTENTSTHE DIVORCE TRIALUNCONTESTED HEARINGCONTESTED HEARINGTHE PARALEGAL’S ROLE IN TRIAL PREPARATIONDAY OF THE TRIALEXHIBITSREVIEW QUESTIONS & EXERCISESCHAPTER 15CHAPTER 16POSTJUDGMENT DIVORCE MATTERS333334336338341342362363NONMODIFIABLE TERMS OF THE DISSOLUTIONDECREEMODIFIABLE TERMS OF THE DISSOLUTION DECREE364364Modification of AlimonyModification of Child SupportModification of Custody and VisitationRELOCATION OF CUSTODIAL PARENTENFORCEMENT OF COURT ORDERSKIDNAPPING AND CROSSING STATE LINESEXHIBITSREVIEW QUESTIONS & EXERCISES364367368368369370373381STATE I NTERVENTION IN FAMILY MATTERSINTEGRITY OF THE FAMILYSTATES’ OBLIGATIONS TO PROTECT CHILDRENDETECTING CHILD NEGLECT AND CHILD ABUSEInvestigation of a Complaint of Child Neglect or ChildAbuseSERVICE AGREEMENT APPROACHORDER OF TEMPORARY CUSTODYEFFORTS FOR REUNIFICATION OF THE CHILD WITHTHE PARENTSSpecific StepsExtension of Commitment382382383383384384385385386386

CONTENTSxvTERMINATION OF PARENTAL RIGHTS387Voluntary Termination of Parental RightsInvoluntary Termination of Parental RightsGrounds for Termination of Parental RightsConsideration of the Child’s Best InterestsADOPTION387387388388388Agency AdoptionsPublic Adoption AgenciesPrivate Adoption AgenciesPrivate AdoptionsREVIEW QUESTIONS & EXERCISES388389389389390APPENDIX AU NIFORM PREMARITAL AGREEMENT ACT391APPENDIX BQUALIFIED DOMESTIC RELATIONS ORDER (J IM CARREY)394APPENDIX CSTATE OF CONNECTICUT CHILD SUPPORT ANDARREARAGE G UIDELINES407U NIFORM RECIPROCAL E NFORCEMENT OF SUPPORTACT (AS AMENDED IN 1952 AND 1958)427REVISED U NIFORM RECIPROCAL E NFORCEMENT OFSUPPORT ACT (1968)434APPENDIX FU NIFORM I NTERSTATE FAMILY SUPPORT ACT (1996)444APPENDIX GRESTRAINING ORDER (ROSEANNE)464APPENDIX HMARITAL SETTLEMENT AGREEMENT (MADONNAAND SEAN PENN)475APPENDIX DAPPENDIX EAPPENDIX IU NIFORM CHILD-CUSTODY J URISDICTION AND E NFORCEMENT ACT(1997)494APPENDIX JG UIDES FOR DISTANCE LEARNING AND LEGAL RESEARCH510APPENDIX KFINDING STATE LAW514G LOSSARY517I NDEX529

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PREFACEThis book evolved from the need to have an understandable, interesting,and relevant textbook from which to teach and a book that would prepareparalegal students to respond successfully to the numerous demands in areal-world family law practice.The goal of this book is to thoroughly prepare students in the areas offamily law that they are most likely to encounter in the real world. Therefore, the major emphasis in this book is on the theoretical, procedural, andpractical aspects of the divorce process with its attendant issues such as alimony, property distribution, child custody, and child support, as well asother matters arising after the divorce occurs, such as postjudgment modifications of orders for custody, child support, and alimony.The book is logically ordered to guide the student through the varioustheories underlying family law and the procedures that translate these theories into practice. There is a balance between chapters on theory and chapters that focus on practice. For instance, Chapter 1, “Introduction to Family Law Practice,” addresses the practical aspects of working as a paralegalin a family law practice. Chapter 2, “The Roots and Traditions of AmericanFamily Law,” provides an historical backdrop for the emergence of thechanging and evolving theory of family law, including the changing viewson the nature of marriage, and the role of women and children in a family.Chapter 3, “Ethics in Family Law,” presents a mix of theory and practice in that it outlines the legal professional code of ethics and how it applies to a family law setting. This chapter includes cases involving paralegals who violated various rules of ethics such as the divorce paralegal whoslept with the client’s husband and revealed confidential information regarding the case to him during the course of their affair.Chapter 4 deals with the issues of prenuptial agreements, cohabitationand same-sex marriage. Chapters 5 through 8 provide a black letter lawoverview of the four major areas encountered in the practice of family law:alimony, property and debt distribution, child custody, and child support.Along with a recitation of the rules, these chapters provide the theoreticaljustification for each rule and also provide excerpts of interesting and entertaining cases that demonstrate how some courts apply the legal principles of family law to decide disputes over the myriad of issues these areasembrace.Chapters 9 through 15 focus exclusively on practice and the paralegal’srole in the process. These chapters contain examples of the type of documents prepared throughout the divorce process. These chapters also present model complaints, motions, orders, and agreements which the paralegal can modify to the requirements of his or her jurisdiction. Also includedxvii

xviiiPREFACEare selections of legal documents filed by celebrities, for example, LucilleBall’s divorce complaint against Desi Arnaz. The appendixes includeMadonna and Sean Penn’s separation agreement.Finally, Chapter 16 addresses the issue of state intervention in familymatters, such as child abuse and neglect, termination of parental rights, andadoption.Although this book is national in scope, we have tried to provide cases,statutes, and forms from various jurisdictions. However, the need for students to become familiar with and knowledgeable about the law, procedure, and documents in their own jurisdiction is paramount. This need isaddressed in the end-of-chapter exercises that require students to go out inthe field—to their courthouses and law libraries—and acquire hands-on experience with their jurisdiction’s statutes, cases, forms, and proceduralrules.It is our hope that this book will be a long-time companion to the paralegal student who finds employment in a family law practice.Grace A. LuppinoJustine FitzGerald Miller

ACKNOWLEDGMENTSWe wish to thank the following people for their support and encouragement in making this book a reality:Dana Meltzer and Elizabeth Sugg at Prentice Hall; our colleagues andstudents at Branford Hall Career Institute and Briarwood College; Dawn A.Chuley for her expertise on distance learning and Internet research;Heather Bell for preparing the transparencies and distance learning portionof this book and her expertise on Internet research; Connie Luppino for herphotocopying; Margaretann Antonelli for her many errands and meals;Katharine Hunt for her expertise and assistance in preparing the final manuscript; our friends and families; and to the following paralegal students fortheir legal research: Diane Allen, Sherrian Benson, Kelly Butler, ChristyCash, Domenica Colavolpe, Laurie Coppola, Raymond Daley, Lori DiGiovanni, Connie Esposito, Mia Garmizo, Andrew Gister, Cheryl Granoff,Joann Gleason, Gail LaGreca, Deanna Lozowski, Susan McClintock, LindaMcCue, Cynthia McQueen, Mary Notarangelo, Joann O’Leary, MelanieRieder, Margaret Sabilla, Christine Van Vliet, and Elizabeth Young.Our special thanks to paralegal Pamela Robicheau for her countlesshours of legal research, editing, and preparation of the manuscript. Thisbook could not have been completed without her hard work, expertise, anddevotion to this project.Special thanks to the American Bar Association, the National Association of Legal Associates, Inc., W. Kelsea Wilbur Eckert, and the NationalConference of Commissioners on Uniform State Laws for their permissionto reprint documents in this book.Grace A. LuppinoJustine FitzGerald Millerxix

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AAP P E N D I XU NIFORM PREMARITAL AGREEMENT ACT1. DEFINITIONSAs used in this Act:(1) ‘Premarital agreement’ means an agreement between prospective spousesmade in contemplation of marriage and to be effective upon marriage.(2) ‘Property’ means an interest, present or future, legal or equitable,vested or contingent, in real or personal property, including income andearnings.2. FORMALITIESA premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.3. CONTENT(a) Parties to a premarital agreement may contract with respect to:(1) the rights and obligations of each of the parties in any of the propertyof either or both of them whenever and wherever acquired or located;(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;(3) the disposition of property upon separation, marital dissolution,death, or the occurrence or nonoccurrence of any other event;(4) the modification or elimination of spousal support;(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;391

392APPENDIX A(6) the ownership rights in and disposition of the death benefit from a lifeinsurance policy;(7) the choice of law governing the construction of the agreement; and(8) any other matter, including their personal rights and obligations, notin violation of public policy or a statute imposing a criminal penalty.(b) The right of a child to support may not be adversely affected by a premarital agreement.4. E FFECTS OF MARRIAGEA premarital agreement becomes effective upon marriage.5. AMENDMENT, REVOCATIONAfter marriage, a premarital agreement may be amended or revoked only by awritten agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.6. E NFORCEMENT(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:(1) that party did not execute the agreement voluntarily; or(2) the agreement was unconscionable when it was executed and, beforeexecution of the agreement, that party:(i) was not provided a fair and reasonable disclosure of the propertyor financial obligations of the other party;(ii) did not voluntarily and expressly waive, in writing, any right todisclosure of the property or financial obligations of the otherparty beyond the disclosure provided; and(iii) did not have, or reasonably could not have had, an adequateknowledge of the property or financial obligations of the otherparty.(b) If a provision of a premarital agreement modifies or eliminates spousalsupport and that m

the family practitioner’s role in the dissolution process 5 review questions & exercises 6 chapter 2 the roots andtraditions ofamericanfamily law 7 marriage, divorce, and family law from colonial america to the twentieth century 8 the industrial revolution and the family 9 family law from the dawn of the twentieth century to the present day .

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