This chapter discusses how the concept of family has evolved over the past 50 years to become more diverse and less rigid. It identifies different types of marriage recognized in US states and the common requirements for valid ceremonial and common law marriages. The chapter also describes the legal statuses available for same-sex couples beyond traditional marriage, such as civil unions and domestic partnerships, and compares the rights and benefits associated with each. Finally, it outlines the potential roles of a paralegal in cases involving issues related to marriage and alternative family relationships.

1. Chapter 3:
Marriage and Emerging12
Alternatives
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester

2. LEARNING OBJECTIVES
After this lecture, you should be able to:
3.1 Explain how and why the concept of “family” 12
has evolved over the past fifty years.
3.2 Distinguish among different types of marriage.
Identify ways in which the states regulate and
3.3 restrict the fundamental right to marry.
Class Name
Instructor Name
Date, Semester
Cont.

3. LEARNING OBJECTIVES
After this lecture, you should be able to:
3.4 Identify common requirements for valid 12
ceremonial and common law marriages.
Identify and describe legal statuses accorded
3.5 same-sex couples in various states including
domestic partnerships and civil unions.
Distinguish among the rights and benefits that
3.6 flow from traditional marriage, same-sex
marriage, civil unions, and domestic partnerships.
Class Name
Instructor Name
Date, Semester
Cont.

4. LEARNING OBJECTIVES
After this lecture, you should be able to:
3.7
Describe the potential role of a paralegal in12
cases involving marriage and alternative family
relationships
Class Name
Instructor Name
Date, Semester

5. Learning Objective
After this lecture, you should be able to:
Explain how and why the
3.1 concept of “family” has evolved
over the past fifty years.

6. Concept Of Family Has Evolved
3.1 Over The Past Fifty Years
• More than half of all first marriages end in divorce.
• The nuclear family is no longer the majority family
model.
• The roles of men and women are less highly
gendered.
• There is an increased social acceptance of
alternative lifestyles and living arrangements
(cohabitation is no longer viewed by most as “living
in sin”).
• Many states have granted legal recognition of
some kind to same-sex couples (same-sex
marriage, civil unions, domestic partnerships, etc.)

7. Reasons Why The Concept Of
3.1 Family Has Evolved
• Women’s rights movement
• Men’s rights movement
• Gay rights movement
• Fathers’ rights movement
• Decreased focus on marriage as a defining life
event especially for women
• Greater legal protection of the right to privacy
in sexual conduct between consenting adults
7

8. Learning Objective
After this lecture, you should be able to:
Distinguish among different
3.2 types of marriage.
8

9. Forms Of Monogamous Marriage
3.2 In The United States
• Ceremonial marriage: available in all states, customarily
requires a license and solemnization in a ceremony performed
by an authorized person
• Covenant marriage: a ceremonial marriage available in a
small number of states that emphasizes the permanence of
marriage
• Common law marriage: available in a minority of states, a
marriage created by the conduct of the parties rather than in a
formal ceremony
• Same-sex marriage: a ceremonial marriage of two same-sex
partners available in a limited number of states
• Putative marriage: recognized by courts in some states, a
presumed marriage of a person who has cohabited with
another in the good faith belief he or she was legally married to
that person
9

10. Learning Objective
After this lecture, you should be able to:
Identify ways in which the states
3.3 regulate and restrict the
fundamental right to marry.
10

11. Can the right to marry be
3.3 restricted by the government?
• The U.S. Supreme Court has definitively
established that the right to marry is a
fundamental right that cannot be restricted
absent a compelling state interest. (See Case
3.1 Loving v. Virginia on pages 70-72 of the
text.)
• The right to marry is not absolute and the states
are permitted to regulate it to a reasonable
extent.
• Impermissible restrictions include restricting the
right on the basis of race, delinquency in child
support payments, or incarceration in some
circumstances.
11

12. Regulations Can And Do The
3.3 States Legitimately Impose
• Marriage is a contract between the spouses
regulated by the government.
• There are basically two types of requirements
that are fairly standard state to state:
• Requirements relating to legal capacity to
marry
• Technical requirements governing particular
types of marriage
12

13. Common Requirements Relating
3.3 To Legal Capacity To Marry
• Sex of the parties: only a limited number of
states permit parties of the same sex to marry
• Age of the parties: Under common law = 12 for
females, 14 for males; now 18 in most states
without parental consent and the requirement
may be waived in some circumstances
• Marital status of the parties: neither party can
be married to another person still living at the
time of the marriage (some states allow the
impediment to be removed by death or
divorce)
13

14. Common Requirements Relating
3.3 To Legal Capacity To Marry
• Degree of relationship between the parties by blood
= consanguinity
• Degree of relationship between the parties by
marriage = affinity
• Mental capacity of the parties: must be able to
understand the nature, duties and responsibilities of
marriage
• Physical capacity of the parties: in a limited number
of states must be free of syphilis for example
14

15. Learning Objective
After this lecture, you should be able to:
Identify common requirements
3.4 for valid ceremonial and
common law marriages.
15

16. Common Technical Requirements For
3.4 A Valid Ceremonial Marriage
• Application for a license
• Medical certificate (in a limited number of
states)
• License
• Waiting period (usually 72 hours and may be
waived in some circumstances)
• Ceremony conducted by a person authorized
under state law
• Recording of the marriage license/ certificate
of marriage
16

17. Common Requirements For A
3.4 Valid Common Law Marriage
• The parties must have the legal capacity to marry
• The parties must simultaneously agree to be married
• The parties must cohabit (though consummation may not
be required)
• The parties must hold themselves out to the public as
husband and wife
• There is no requirement that the parties live together for a
specific length of time except in the case of New
Hampshire where there is a 3 year requirement and
common law marital status is only applicable in the
context of inheritance and death benefit claims.
17

18. Learning Objective
After this lecture, you should be able to:
Identify and describe legal
statuses accorded same-sex
3.5 couples in various states
including domestic partnerships
and civil unions.
18

19. Legal Statuses Are Accorded Same-sex
3.5 Couples Other Than Traditional Marriage
• Same-sex marriage: available in a limited number of
states
• Adult adoption: available in a limited number of
states as a means of creating a “family” relationship
• Functional family status: applied by some courts to
extend limited benefits to same-sex partners who
are in committed long-term intimate relationships,
support each other emotionally and financially,
share roles, and hold themselves out to others as
spouses
19

20. Legal Statuses Are Accorded Same-sex
3.5 Couples Other Than Traditional Marriage
• Domestic partnership: Available in a minority of states, it
has been defined as a status granted to an unmarried
couple who live together and receive a variety of
economic and noneconomic benefits customarily
granted to spouses.
• To enter a domestic partnership, the parties typically
must: be at least age 18; not be a party to any other
legally recognized status or be related in any way that
would prevent them from legally marrying; share a
residence and be in an exclusive relationship; agree to
be responsible for each other’s living expenses; and
agree to file a certificate of dissolution if their relationship
ends. In some states, the status is extended to
heterosexual couples as well.
20

21. What Legal Statuses Are Accorded Same-
3.5 sex Couples Other Than Traditional
Marriage? (Cont.)
• Civil unions: Available in a minority of states, civil unions are
essentially designed to afford same-sex partners the same
benefits, protections, and responsibilities that married
heterosexual spouses have under state law.
• To enter a civil union, the parties typically must: be of the same
sex; be at least age 18 and mentally competent; and not be a
party to any other legally recognized status or related in any
way that would prevent them from legally marrying.
• To terminate their relationship, in a state that recognizes civil
unions, they essentially use the same procedure as is used in
dissolution of a traditional marriage.
21

22. Learning Objective
After this lecture, you should be able to:
Distinguish among the rights and
benefits that flow from traditional
3.6 marriage, same-sex marriage,
civil unions, and domestic
partnerships.
22

23. What Are The Rights And Benefits That
3.6 Flow From Traditional Marriage?
• According to a report of the U.S. General
Accounting office, there are more than 1,000
rights and duties that flow from traditional
marriage including, for example:
• The right to receive support from a spouse
• The right to seek a division of marital property
upon divorce (absent an agreement to the
contrary)
23

24. What Are The Rights And Benefits That
3.6 Flow From Traditional Marriage?
• Absent an agreement, the right to inherit from a
spouse and to receive certain governmental benefits
such as Social Security and Veterans’ benefits
provided applicable conditions are met
• A right to continued employer-provided health
insurance for a specified period under COBRA
• The right to make medical decisions for a spouse
• The right to file a claim for wrongful death of a
spouse
• The right to exercise the marital communications
privilege
24

25. What are the benefits that flow
3.6 from same-sex marriage
• In states that recognize same-sex marriage, as of the
summer of 2012 same-sex spouses are entitled only to
benefits available to spouses under state law.
• The federal Defense of Marriage Act (DOMA) passed in
1996 (still in force in the summer of 2012 but being
challenged) does not declare same-sex marriage illegal
but does define marriage for all federal purposes as the
legal union of one man and one woman as husband and
wife.
• The federal DOMA also provides that no state can be
forced to recognize a same-sex marriage. In response, a
majority of the states have passed mini-DOMAs in the
form of statutes or constitutional amendments effectively
denying to same-sex couples the rights and privileges
granted to heterosexual married couples.
25

26. What Are The Benefits That Flow From
3.6 Domestic Partnerships And Civil Unions?
• There is no standard set of domestic partnership
benefits. They vary by state where such partnerships
are recognized and are usually less extensive in
nature and extent than benefits extended to partners
in civil unions.
• The rights, benefits, and obligations of partners in civil
unions are essentially the same as those of
heterosexual spouses under state law.
26

27. Learning Objective
After this lecture, you should be able to:
Describe the potential role of a
paralegal in cases involving
3.7 marriage and alternative family
relationships.
27

28. What Is The Potential Role Of A Paralegal In Cases
3.7 Involving Marriage And Alternative Family
Relationships?
• The paralegal’s role will vary depending on the
nature of the case, the prevailing law in the
jurisdiction, and the extent to which the
employer’s practice addresses issues involving
same-sex relationships.
• In cases involving a traditional marriage, the
paralegal might be assigned to obtain copies
of the marriage license and any necessary
supporting documents or translations.
28

29. What Is The Potential Role Of A Paralegal In Cases
3.7 Involving Marriage And Alternative Family
Relationships?
• In a case involving a potential annulment, the
paralegal may draft documents, research governing
law, prepare discovery requests for review, etc.
• In cases in which a common law marriage is
claimed, the paralegal may gather information,
affidavits, and documents needed to support the
client’s position. (See Paralegal Application 3.4
Information Gathering in a Common Law Marriage
Case on page 80 of the text.)
• Because this is a cutting edge and rapidly evolving
area of law at the heart of heated debate, thorough
research is a key task performed by the paralegal.
29

30. Chapter Summary
3.1 Explain how and why the concept of “family” 12
has evolved over the past fifty years.
3.2 Distinguish among different types of marriage.
Identify ways in which the states regulate and
3.3 restrict the fundamental right to marry.
Class Name
Instructor Name
Date, Semester
Cont.

31. Chapter Summary
3.4 Identify common requirements for valid 12
ceremonial and common law marriages.
Identify and describe legal statuses accorded
3.5 same-sex couples in various states including
domestic partnerships and civil unions.
Distinguish among the rights and benefits that
3.6 flow from traditional marriage, same-sex
marriage, civil unions, and domestic partnerships.
Class Name
Instructor Name
Date, Semester
Cont.

32. Chapter Summary
3.7
Describe the potential role of a paralegal in12
cases involving marriage and alternative family
relationships.
Class Name
Instructor Name
Date, Semester