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The issues of same-sex marriage and termination of such marriages may be dealt with in Texas sooner that this commentator expected. Thursday, October 1, 2009, Dallas Judge Tena Callahan ruled that the state’s ban on same-sex marriage violates the equal protection clause of the Constitution. Texas Attorney General Greg Abbott filed a petition in intervention, which was denied by the judge. Abbott’s office indicated the State would seek an appeal of Judge Callahan’s decision. For more information, see today’s Houston Chronicle and The Dallas Morning News.

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On Friday, April 3, 2009, the Iowa Supreme Court declared unconstitutional a 1998 state law limiting marriage to one man and one woman. Iowa is now the 3^rd state in the U.S. to legalize same-sex marriage. The other two states are Massachusetts and Connecticut. 

The Iowa Supreme Court Opinion cited a constitutional duty to ensure equal protection under the law – “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”

Though this is a victory for advocates of same-sex marriage, there are many unanswered legal questions that remain, such as what happens when same-sex couples relocate to another state that does not recognize their marriage, or what happens when and if the couple wants to divorce. 

For more information on same-sex marriage and domestic partnerships across the country, see the story in The Houston Chronicle. 

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In 2004 Massachusetts became the first state to legalize gay marriage, and California was soon to follow. While couples in these jurisdictions have the right to marry, there is the uncomfortable issue of how they go about divorce – especially in Texas with a constitutional amendment prohibiting same sex-marriages. Many same-sex couples establish residency in states where they can marry. Not surprisingly, people relocate, and that may even include coming home to Texas. 

Because Texas law recognizes marriage as a union existing between man and woman, the law specifically excludes same-sex marriages. If the parties to a divorce action cannot establish they are legally married, it follows that a family court cannot grant a divorce. Divorce provides a just and right division of community property and may confirm a party’s separate property. Divorce also addresses children’s issues such as parenting plans, custody, and child support.

It is naïve to think that divorce will not be an issue for same-sex couples who reside in jurisdictions that do not recognize their status. At some point, there will be a challenge to the current Texas law, and we can only wait and see what issues are presented, the arguments made, and the ultimate outcome. For now, relief in dividing property owned by same-sex couples in Texas is likely limited to a civil partition suit. 

For more information on issues throughout the country, see the recent article from The Chicago Tribune.

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Recently the media went wild with stories about the availability of retail DNA paternity tests from Sorenson Genomicis and Identigene. Like pregnancy tests and cholesterol tests, a DNA tests can now be completed in the privacy of one’s own home. For more information on the product, see http://www.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=20071126005139&newsLang=en. 

The at home kit costs about $30.00, plus there is an additional lab fee of $119.00 that must be submitted with the samples. However, before you run to a Houston-area drug store, be aware of two important facts. First, the tests are presently sold in only West Coast and Midwestern stores. Second (and most importantly) the results of an at-home DNA tests are most likely inadmissible in court to prove or disprove allegations of parentage. This is due to sample collection procedures and chain of custody issues.

Nevertheless, availability of at-home testing is another modern convenience which allows consumers to obtain parentage answers in the privacy of their own home through non-invasive procedures. 

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Finally, the lawyer better remember that he/she also has a duty of respect to the Court/Judge, which is outlined below:

            Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1. I will always recognize that the position of judge is the symbol of both the judicial system and the administration of justice. I will refrain from conduct that degrades this symbol.
2. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.
3. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility and will not manifest by words or conduct bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation.
4. I will be punctual.
5. I will not engage in any conduct which offends the dignity and decorum of proceedings.
6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7. I will respect the rulings of the Court.
8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

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In addition to the duties a lawyer owes to his/her client, the lawyer also owes the profession a degree of respect, which is outlined in the section of the Texas Lawyer's Creed entitled Lawyer to Lawyer.

            A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

            1.         I will be courteous, civil, and prompt in oral and written communications.

            2.         I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

            3.         I will identify for other counsel or parties all changes I have made in documents submitted for review.

            4.         I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.

            5.         I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are canceled.

            6.         I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.

            7.         I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.

            8.         I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.

            9.         I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.

            10.       I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

            11.       I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel’s intention to proceed.

            12.       I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.

            13.       I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

            14.       I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

            15.       I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

            16.       I will refrain from excessive and abusive discovery.

            17.       I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.

            18.       I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

            19.       I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.

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During the most recent legislative session in Austin, lawmakers approved a bill creating a new family district court to serve citizens of Montgomery County, Texas (Conroe and Magnolia areas). 

The new district court -- the 418th -- will serve as the primary family law court in the county.  Since family cases comprise approximately 60% of all new civil court filings, this will be a welcome relief to citizens of Montgomery County. 

For more information on potential judicial appointments to 418th's bench, see the story published in The Conroe Courier earlier this month. 

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1. ALWAYS tell the truth
2. Listen carefully to the question
3. Do not rush to answer the question -- if you don't understand, ask the attorney rephrase it
4. If you forget the question, ask that the attorney repeat it
5. Be precise in your answers and do not exaggerate
6. Answer orally and loud enough for the court and court reporter to hear
7. Do not argue with the opposing attorney
8. Ignore the demeanor, facial expressions and tone of voice of opposing counsel

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Getting a divorce is fraught with lots of new and possibly intimidating terminology.  The following are some useful terms and their definitions. 

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How to create a divorce agreement with the help of a mediator -- without going to court.

How can a divorcing couple find a good mediator?

Personal referrals are usually the best way to find any professional, including a mediator. But because mediation is a relatively new field, personal referrals may not be possible. In that case, divorcing couples may need to do a little research.

Copyright © 2006 Nolo

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How to create a divorce agreement with the help of a mediator -- without going to court.

How long does mediation take?

Mediation almost always takes less time than litigation. Depending on the issues, it can even take place in one day, although most divorcing couples meet for several sessions on separate days over a period of days or weeks or months.

Copyright © 2006 Nolo

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How to create a divorce agreement with the help of a mediator -- without going to court.

How much does mediation cost?

Most mediations involve an hourly or per-session fee, except for those that are ordered by a court or conducted through a community-based mediation agency. These agencies may provide mediation at a reduced cost or even for free. The number of sessions needed to gather information and negotiate an agreement will vary from couple to couple, so the cost of the mediation will also vary. Mediation, however, will usually be much less costly than adversarial litigation. A divorce mediator in private practice might charge anywhere from $100 to a couple of hundred dollars an hour, depending on where the mediator practices.

Copyright © 2006 Nolo

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How to create a divorce agreement with the help of a mediator -- without going to court.

Does the mediator meet with both spouses together or separately?

Some mediators prefer to work separately with each spouse, acting as a go-between. Others prefer joint meetings where both spouses are present and communication is more direct. There can be advantages and disadvantages to each approach, depending on the circumstances of the particular couple. This is a question that divorcing spouses should address in advance with a potential mediator.

Copyright © 2006 Nolo

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How to create a divorce agreement with the help of a mediator -- without going to court.

How do mediating spouses protect their legal rights?

Because divorce involves legal questions, every divorcing spouse should know and understand his or her legal rights before agreeing to a settlement. One way for a mediating spouse to do this is to work with a consulting lawyer who knows and understands mediation. For more information, see [Lawyers and Divorce Mediation].

Doing some independent legal research is another option. It's best to do this as early in the process as possible, then follow up with a legal review before signing the settlement agreement that comes out of the mediation.

Copyright © 2006 Nolo

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How to create a divorce agreement with the help of a mediator -- without going to court.

What is the difference between court-ordered mediation and private mediation?

As its name implies, court-ordered mediation is mediation that is required by the court as a part of a divorce proceeding. In many places, mediation is mandatory when there are custody or visitation issues. In fact, court-ordered mediation usually is limited to child custody and visitation issues, while private mediation often also covers financial issues and property division. There is often no fee charged for court-ordered mediation, whereas private mediators usually charge an hourly or per-session fee. The mediator in a court-sponsored program often makes a report to the court; private mediation is usually confidential.

Copyright © 2006 Nolo

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How to create a divorce agreement with the help of a mediator -- without going to court.

Why is mediation better than going to a lawyer -- or is it?

Using mediation to negotiate a divorce agreement is almost always going to take less time, cost less, and result in a more solid agreement than using a lawyer to take the same case through the courts. When you are going to have an ongoing relationship with your ex-spouse, such as when you have kids together, mediation can help to improve communication and make your future interactions a little bit easier.

For some couples, however, negotiating directly with each other, even with the help of a mediator, is not possible -- either because of problems in the relationship (such as domestic violence or substance abuse) or because a spouse is unwilling to mediate. Even if you decide to mediate, you may want to hire a lawyer in a limited capacity to consult with you outside of the mediation. Many mediating spouses find it helpful to work with a consulting lawyer who can offer legal advice and review the settlement agreement before it is signed.

Copyright © 2006 Nolo

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How to create a divorce agreement with the help of a mediator -- without going to court.

What is divorce mediation, and how is it different from arbitration?

Divorce mediation is a process in which divorcing spouses try to negotiate an acceptable divorce agreement with the help of a neutral third party: the mediator. The mediator helps the spouses to communicate and negotiate but doesn't make any decisions for them.

Both mediation and arbitration involve a neutral third party who is not a judge. In mediation, the neutral party has no power to make decisions. In arbitration, the neutral third party -- the arbitrator -- listens to the facts and then decides the case, just as a judge would. Although the parties can present evidence and make arguments, they have no say in the final decision.

Copyright © 2006 Nolo

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Long after the heartbreak has healed, one nagging question often remains: Who gets to keep the ring?

The engagement is over. In addition to the sorrow, the heartbroken must deal with the return of the deposits left with the caterer, the florist, and the dressmaker. But when all that dust has cleared, one rankling question often remains: Who gets to keep the ring?

For the answer -- or for vengeance -- many turn to the legal system. State courts around the nation that have considered the ring issue have reached differing conclusions.

When Is a Gift a Gift?

Courts generally treat the engagement ring as a gift, from the donor (the person who gave the ring) to the donee (the person who received it). To be considered a legal gift, three things must be present: the donor's intent to give the ring as a gift, the donor's delivery of it to the donee, and the donee's acceptance of the item. If the person to whom the ring was given can show all three elements, a court will consider the ring to be a gift to him or her.

Conditional Gifts

But the majority of courts also consider such a gift to be a conditional one. That means that, until some future event occurs, the gift isn't final; if that event does not occur, then the donor has the right to get the gift back. In real life, many parents use this concept by, for example, giving a teenage daughter the keys to the family car, on the condition that she maintain a certain grade point average for a specified period of time. If she doesn't make the grade, the keys must be returned.

Women who want to keep their engagement rings often argue that the condition needed to make the engagement ring a final gift is simply the acceptance of the proposal of marriage, not the completion of the marriage ceremony. That way, if the engagement is broken, the ring remains her property.

But this argument often loses. The majority of courts find that the gift of an engagement ring contains an implied condition of marriage; acceptance of the proposal is not the underlying "deal." Absent some other understanding -- say, that the ring is merely a memento of a great trip to Hawaii -- most courts look at engagement rings as conditional gifts given in contemplation of marriage: "Once it is established the ring is an engagement ring, it is a conditional gift." Heiman v. Parrish, 942 P.2d 631, 633 (Kan. 1997). However, the Supreme Court of Montana has come down on the opposite side of this fence, rejecting the conditional gift theory and declaring that an engagement ring is an unconditional, completed gift and that's that. Ex-fiances in that western state are unlikely to get help from the courts if they want to get an engagement ring back. Albinger v. Harris, 2002 WL 1226858 (Mont. 2002).

Fault for the Break-Up

When divining who gets to keep the engagement ring, courts do not agree on whether it should matter who did the breaking up or why. To some judges, it isn't fair that the donor should always get the ring back, especially if the donee stood ready to go ahead with the marriage and the donor broke it off. These same judges think it would be unfair for the donee to keep the ring if the engagement was broken because of the donee's unfaithfulness or other wrongdoing. In such cases, they order that the ring should be returned to its purchaser. This "fault-based" rule is the majority approach.

Other judges, though, think that the whole matter of who broke up with whom isn't any of their business. If the wedding's off, they say, the donor should get the ring back, regardless of who, why, where, or when the engagement ended. After all, they reason, no-fault divorce makes it possible for marriages to end without bitter court fights over whose fault it was; engagements should be treated the same way.

Just a few years ago, the Supreme Court of Pennsylvania stuck steadfastly to the no-fault reasoning and decreed that the donor should always get the ring back if the engagement is broken off, regardless of who broke it off or why. Lindh v. Surman, 742 A.2d 643 (Pa. 1999). Iowa, Kansas, New Jersey, New Mexico, New York, and Wisconsin have the same rule.

Justices on the Supreme Court of Kansas, which also adopted the no-fault rule in 1997, detailed the difficulties that they imagined would be theirs with a fault-based approach:

[S]hould courts be asked to determine which of the following grounds for breaking an engagement is fault or justified? (1) The parties have nothing in common; (2) one party cannot stand prospective in-laws; (3) a minor child of one of the parties is hostile to and will not accept the other party; (4) an adult child of one of the parties will not accept the other party; (5) the parties' pets do not get along; (6) a party was too hasty in proposing or accepting the proposal; (7) the engagement was a rebound situation which is now regretted; (8) one party has untidy habits that irritate the other; or (9) the parties have religious differences. Heiman v. Parrish, 942 P.2d 631, 637 (Kan. 1997).

But consider the case of George J. Pavlicic, a 75-year-old man, who had a romance with Sara Jane Mills, aged 26. They became engaged in 1949. He bought her a house, two cars, an engagement ring, and a diamond ring in anticipation of their marriage. George then lent her a significant amount of money, including $5,000 to buy a saloon. Sara Jane then disappeared. The next time she was heard from, she had indeed used the $5,000 to buy a saloon, but it was in another city, and she had married another man.

George went to court. He wanted everything that he'd given Sara Jane back. He won. But Sara Jane argued on appeal that a new law, the Heart-Balm Act, made his lawsuit illegal, because it outlawed all legal actions for "breaches of contract to marry." But the Pennsylvania Supreme Court sided with George. The act, it held, was meant to end a kind of legal blackmail, where people threatened lawsuits for breach of the promise to marry that would tarnish the other person's reputation. But the act, the court concluded, didn't alter the rule of conditional gifts. Pavlicic v. Vogtsberger, 136 A.2d 127, 130 (Penn. 1957).

Some courts applying this fault-based rule consider the exchange of the ring to be more like a contract than a conditional gift: The ring is just a symbol of the agreement to marry. If that agreement is not performed, then those involved should be restored to their former positions -- as they would be if the contract was for, say, the delivery of a bushel of wheat -- and the ring should be returned to the person who first had it. But if the donor backs out, the donee should keep the ring, because a person who breaches contracts should not be rewarded for doing so. Spinnell v. Quigley, 785 P.2d 1149 (1990).

Copyright © 2006 Nolo

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What you need to know about your taxes if you pay or receive child support.

For federal income tax purposes, child support is tax-free to the recipient, meaning neither the ex-spouse nor the child owes taxes on it. However, child support payments are not tax-deductible by the parent who makes the payments -- unlike spousal support payments. (Spousal support is tax-deductible for the person who makes the payments and taxable to the recipient.)

Be careful how support is characterized in your marital settlement agreement, as it may have significant tax consequences.

What Qualifies as Child Support?

In order to qualify as child support, the payments received by an ex-spouse must be designated as child support in the divorce or separation agreement. If the agreement lumps the payments together as "family support" or "alimony," or doesn't otherwise designate a specific portion of each payment as child support, none of the payment will be considered child support for tax purposes.

This can have adverse tax consequences for the recipient of child support payments, because family support or alimony is taxable to the recipient. So instead of receiving nontaxable child support, the ex-spouse will be receiving alimony, which is taxable to the payee, regardless of what the payee actually uses the money for.

Who Gets to Claim a Child as a Dependent?

Generally, in order for someone to claim a child as a dependent, he or she must provide at least 50% of the child's support during the tax year. For couples who are still married and living together, claiming kids as dependents is usually a slam-dunk.

Things get complicated, however, when parents divorce or separate. Now, only one of you can claim the dependent exemption. (The IRS will come down hard if both of you try to claim it; they cross-reference dependents' Social Security numbers to make sure taxpayers aren't doing this.)

Special Rule for Parents Living Apart

If the parents lived apart at all times during the last six months of the calendar year, or if they have a written divorce decree, maintenance agreement, or separation agreement, there is a special rule that applies.

In this case, if the child received more than half of his or her total support for the year from one or both parents and was in the custody of one or both parents during the year, the IRS rules assume that the custodial parent (defined as the parent who has custody of the child for the greater part of the year) should get the exemption for the dependent. However, the parties may change this presumption and allocate the exemption to the noncustodial parent if either of the following are true:

• The divorce decree or separation agreement contains a provision in which the custodial parent waives the right to claim the dependent exemption. (The rules are slightly different if the agreement was entered into prior to 1985; the noncustodial parent must also provide at least $600 of support to receive the exemption.)
• The custodial parent signs a declaration (using IRS Form 8332) relinquishing his or her right to claim the dependent exemption, and the noncustodial parent attaches this declaration to his or her tax return. Using this form, the custodial parent can relinquish the exemption for one year, a number of years, or forever, depending on what the parties agree to.
• If you relinquish the exemption, you are also relinquishing eligibility for the child tax credit.

The IRS is very picky about Form 8332, and can (and often does) disallow the dependent exemption for the noncustodial parent if this form isn't signed and attached to the tax return, even if the divorce decree or separation agreement allocates the exemption to the noncustodial parent. That means it's very important for the noncustodial parent to attach a copy of this declaration to his or her return in every tax year in which he or she claims the exemption.

If the custodial parent refuses to sign Form 8332, the noncustodial parent can attach part of the divorce decree or separation agreement (the cover page, the page that discusses the exemption and the signature page) to his or her tax return to prove that he or she is entitled to the exemption. However, the IRS will accept this only if the decree or agreement doesn't require that certain conditions be met before the noncustodial parent can claim the exemption. If there are conditions, the noncustodial parent must use Form 8332 or not get the exemption.

Rule for Unmarried Parents or Those Still Living Together

If the parents are not married, did not live apart during the last six months of the calendar year, or do not have a written document, the test for determining which parent can claim the child as a dependent is that the parent who provides more than 50% of a child's support during the tax year can claim the child as a dependent.

Rules for Parents Who Contribute Equal Amounts of Support

If neither parent provides more than half of the child's support for the year, things get even more complicated. For more information on how to handle this situation, see IRS Publication 504, Divorced or Separated Individuals, which you can download for free from www.irs.gov.

Copyright © 2006 Nolo

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Paternity must usually be established before child support can be collected.

The question "Who is the father?" is not as simple a question as you might think. There are important legal distinctions between different situations relating to paternity.

When Paternity Is Agreed On or Presumed

Acknowledged father. An acknowledged father is a biological father of a child born to unmarried parents for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support.

Presumed father. If any of the following are true, a man is presumed to be the father of a child, unless he or the mother proves otherwise to a court:

• The man was married to the mother when the child was conceived or born, although some states do not consider a man to be a presumed father if the couple has separated.
• The man attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the "marriage."
• The man married the mother after the birth and agreed either to have his name on the birth certificate or to support the child.
• The man welcomed the child into his home and openly held the child out as his own.

In some states, any of these presumptions of paternity is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child.

A presumed father must pay child support.

Equitable parent. In Michigan (Atkinson v. Atkinson, 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H., 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent. Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child or where the biological parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.

Alleged father. An unmarried man who impregnates a woman is often referred to as an alleged father, or sometimes simply as an unwed father. An alleged or unwed father will be required to pay child support if a court determines or he acknowledges that he's the father; in addition, an alleged or unwed father has the right to visitation with his child and may seek custody.

Stepfather. A stepfather is the spouse of a legal mother and is not also the biological father of the woman's children. A stepfather is not obligated to support the children of the woman to whom he is married unless he legally adopts the children.

Paternity Actions

A paternity action, a court suit filed to have a man declared the father of a child, can be brought by either the mother or the father. Paternity actions are sometimes called establishment hearings, filiation hearings, or parentage actions.

Most paternity actions are initiated by welfare officials who provide TANF (Temporary Aid to Needy Families) to the mother and are required by law to seek reimbursement from the father. The mother must cooperate in these proceedings; failure to do so can result in a reduction or loss of her TANF grant.

Today, blood and DNA tests can affirmatively determine paternity with a 99.99% accuracy and can rule out paternity with 100% accuracy.

If paternity is established following a paternity action, the court will order the father to pay child support and grant him custody or visitation rights.

Copyright © 2006 Nolo

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How to find property your spouse may be concealing when you divorce.

This list includes common ways in which a spouse may undervalue or disguise marital assets:

• Antiques, artwork, hobby equipment, gun collections, and tools that are overlooked or undervalued. Look for antique furnishings, original paintings, or collector-level carpets at the office.
• Income that is unreported on tax returns and financial statements.
• Cash kept in the form of travelers' checks. You may be able to find these by tracing bank account deposits and withdrawals.
• A custodial account set up in the name of a child, using the child's Social Security number.
• Investment in certificate "bearer" municipal bonds or Series EE Savings Bonds. These do not appear on account statements because they are not registered with the IRS. (The government is phasing out these bonds, realizing that it is losing a lot of money.)
• Collusion with an employer to delay bonuses, stock options, or raises until a time when the asset would be considered separate property.
• Debt repayment to a friend for a phony debt.
• Expenses paid for a girlfriend or boyfriend, such as gifts, travel, rent, or tuition for college or classes.
• Retirement accounts that your spouse never tells you about.

In addition, business owners may try to hide assets in these ways:

• Skimming cash from the business.
• Salary payments to a nonexistent employee, with checks that will be voided after the divorce.
• Money paid from the business to someone close -- such as a father, mother, girlfriend, or boyfriend -- for services that were never actually rendered (asuming the money is given back to your spouse after the divorce is final).
• A delay in signing long-term business contracts until after the divorce. Although this may seem like smart planning, if the intent is to lower the value of the business, it is considered hiding assets.

When you're looking for these items, you may have difficulty finding them or getting the proof you need to show they exist. Formal discovery procedures through litigation may help. For instance, you could take the deposition (legal interview) of your spouse's boss or payroll supervisor. But you may also need to hire a forensic accountant or a private investigator. (A forensic accountant is an accountant who is trained to look into accounting practices in order to gather evidence that can be used in court.) Usually an attorney can refer you to these specialists.

Document Your Finances Before Filing for Divorce

If you suspect that your spouse may attempt to hide assets, it's best to start investigating your household and business finances before initiating divorce proceedings. Make copies of important documents such as tax returns from the past several years, bank account statements, pay stubs, and any other documents that reflect joint assets or debts. Keep copies of these documents outside the home if you're still living with your spouse or partner.

Copyright © 2006 Nolo

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What records you should keep when you pay or receive alimony payments.

Alimony, also called spousal support, means paymenta by one spouse to another following a divorce. Courts don't always grant alimony, but where the marriage was long and one spouse earns a lot more than another, or one spouse left the workforce in order to raise children or manage the household, alimony is fairly common.

You must keep adequate records if you are paying or receiving alimony. This point cannot be over-emphasized. Frequently after a divorce, the spouses dispute, or the IRS challenges, the amounts that were actually paid or received. Without adequate documentation, the payer may lose the alimony tax deduction and/or be ordered to pay back support if the other spouse makes a claim in court.

Payer

Here are suggestions of records to keep:

• a list showing each payment (date, check number, address to which the check was sent)
• the originals of checks used for payments (keep in a safe place, such as a safe deposit box) -- be sure to note on each check the month for which the support is being paid, and
• if you pay in cash, receipts for each payment, signed by the recipient.

Be sure to keep these records for at least three years from the date you file the tax return deducting the payments.

Recipient

Make a list that shows each payment received. Include the following information:

• date payment was received
• amount received
• check number or other identifying information (for example, the number of the money order)
• account number on which any check is written
• name of bank on which check is drawn or money order issued
• a photocopy of the check or money order, and
• a copy of any signed receipt you give for cash payments.

Copyright © 2006 Nolo

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Learn when divorce mediation is likely to succeed -- and when it might not.

Even if you (or your spouse) don't feel ready to mediate, when you consider the financial and emotional costs of a contested divorce, you might want to give mediation a try. But before you do, consider your relationship with your spouse. You are most likely to have a successful mediation experience if all or most of the following statements are true.

The Decision to Divorce Is Mutual

Sometimes, the decision to divorce is mutual. Both spouses come to the conclusion, more or less at the same time, that the marriage is over. For other couples, the decision is more one-sided. One spouse decides that a divorce is necessary, while the other spouse is unprepared for, and perhaps opposed to, the idea of getting divorced.

When the decision to divorce is mutual, spouses usually find it easier to begin working together on a settlement in mediation than they would if one spouse initiates the divorce. Where one spouse makes the decision, it is natural for the other to resist cooperating with any requests to move along in the process, including a request to mediate. This usually changes with the passage of time, so factor timing into your assessment of your readiness. If the divorce was more one person's decision than the other's, more time may be needed before you begin mediating.

You Have No Desire to Reconcile

If you and your spouse have accepted (however reluctantly) the reality of your separation's being permanent, and if neither one of you has an overwhelming desire to reconcile, then the odds are that each of you has reached an emotional point in the divorce when mediation can be productive. This doesn't mean you must rule out the possibility of reconciliation. But you do have to be ready to focus on what happens if you and your spouse don't get back together.

You Want to Stay on Good Terms With Your Spouse

Spouses who want to remain on good terms with each other, either because they have children together or because of their own values, can use this motivation to get through the rough spots in negotiating and compromising during mediation. It is not essential to a good mediation, but it certainly helps.

Do you have a high level of animosity toward your spouse that could undermine mediation? If so, you might find it helpful to work with a counselor on ways to keep this animosity in check while you go ahead with mediation. Another option is to find a mediator who will conduct some or all of the mediation in separate meetings so that you don't have to deal directly with your spouse.

You Don't Blame Your Spouse for Your Separation

It's natural at times to blame your spouse for things that went wrong in your marriage or for the decision to divorce. But, if you feel that your spouse is entirely, or almost entirely, to blame, you might find it hard to enter into any agreement in mediation that your spouse considers acceptable.

Also, if you want your spouse to acknowledge and pay for his or her wrongdoing in some way, such as giving you the bulk of the marital property, mediation may not succeed, because your spouse may not be prepared to accept any blame, let alone pay for it in some tangible way. If your state's laws allow you to prove fault as a ground for the divorce, and you have the emotional and financial resources for it, maybe a contested divorce is the right approach for you.

You Understand the Financial Situation

Financial issues are a big part of any divorce. In order to negotiate a good financial settlement, you need to understand the financial reality with which you are working. The mediation process can help you get a better handle on your financial situation, but the more you know to start with, and the more comfortable you are talking about financial matters, the more confident you will be going into mediation and the fewer surprises you'll encounter. If you know very little about your joint finances and your spouse is very knowledgeable, you may feel at a disadvantage going into the mediation.

Your Spouse Has Not Lied to You About Anything Important

If your spouse has lied to you in the relationship, you may need to take a close look at whether or not you can trust your spouse to be truthful and sincere during the mediation. If your spouse has lied to you about an affair, you may understandably be afraid to believe anything your spouse tells you, especially if you only recently discovered the deceit. But this doesn't necessarily mean that your spouse will lie about other crucial aspects of the relationship, such as finances and property.

If your spouse has lied to you about property or finances, you have a different problem. It might not be wise for you to rely on the voluntary exchange of information. You may want to consult a lawyer about other ways to verify important facts independently. You may even need to ask the lawyer to conduct legal discovery of the facts and records to give you a complete financial picture before starting mediation and attempting to negotiate a settlement. It may also be important to work closely with a lawyer or financial adviser during mediation to develop settlement options that don't rely on your spouse to provide information in the future.

You Can Disagree With Your Spouse Without Saying or Doing Things You Later Regret

If this statement is true, you have the ability to stand up for yourself during a conflict with your spouse without losing control of your own behavior. You don't need to be perfect to have a good experience in mediation. After all, helping you communicate constructively is one of the mediator's main jobs. But, if your emotional reactions to your spouse are so strong that even attempting this seems impossible, then mediation may not be the right thing for you just now.

You Are Not Easily Intimidated by Your Spouse

In mediation, you will speak for yourself and negotiate your own agreement. If you find yourself easily intimidated in your spouse's presence, speaking up may be hard for you. Practicing in mediation, with the coaching and support of the mediator, can help you get better at this, but you'll need a minimum level of self-confidence just to start the process.

Physical Violence Is Not an Issue in Your Relationship

If physical violence is part of the relationship with your spouse, it may not be possible to keep the playing field level and tempers cool enough to negotiate an agreement directly in mediation.

Alcohol or Drug Abuse Is Not an Issue in Your Relationship

An alcohol or drug problem can impair someone's ability to think clearly and make sensible decisions. It can also lead to out-of-control behavior. This can undermine the success of any negotiation, whether it is conducted between lawyers or during mediation.

You Feel That Your Spouse Is a Good Parent

Mediation is usually considered one of the best ways for divorcing parents to negotiate agreements about their children. You can talk, parent to parent, about what is best for your children, rather than leaving the decisions up to strangers. Differences in parenting styles or the amount of time each of you spends with your children can be addressed in mediation.

However, if you and your spouse strongly disagree about the ability of one of you to take care of your children, you may not be able to negotiate an acceptable custody arrangement until that issue is fully evaluated. This is especially true if the problem you are concerned about is so serious as to constitute child abuse. If your disagreement about parenting issues is so pervasive that you cannot agree about how to proceed, you may need to get things started through the court. Even so, you might be able to use mediation to negotiate an agreement after the evaluation phase is completed. In fact, you may be required by the laws of your state to attend mediation in a court-sponsored program before a judge will even hear your case.

Copyright © 2006 Nolo

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by Attorney-Mediator Katherine E. Stoner

Who is at a disadvantage in mediation: men or women? An expert debunks myths about divorce mediation.

Myth: Mediation allows one spouse to dominate another.

Fact: A good mediator pays close attention to the power balance between the spouses and uses specific techniques to address any imbalance. If one spouse persists in dominating behavior, the mediator will call a stop to the mediation rather than allowing it to continue. One caveat: Even the best mediator can be unaware of a power imbalance if it only goes on outside of the mediation sessions and the spouses don't let the mediator know about it.

Myth: Women are at a disadvantage in mediation.

Fact: Women are no more at a disadvantage in mediation than in divorce court. In fact, women can often obtain a better result in mediation than they can in court, because the mediation process allows separating spouses to negotiate an agreement that considers nonlegal factors. Also, except for court-ordered (mandatory) mediation, a woman is free to stop the mediation and/or refuse to sign an agreement that seems unfair to her.

Myth: Mediation is more hassle than hiring a lawyer to handle the divorce.

Fact: Whether divorcing spouses mediate or hire a lawyer to handle the divorce, they have to do a certain amount of legwork in gathering information and making decisions. Mediation offers a streamlined approach to the information-gathering and decision-making processes. In contrast, using the courts is cumbersome and expensive.

Myth: Mediation is for wimps.

Fact: In mediation, the spouses stand up for themselves and what they want. They don't have lawyers speaking for them and telling them what to do. As a result, people who mediate often come out of their divorce with greater communication skills and self-confidence, as well as agreements they can really live with.

Myth: Mediation makes the divorce take longer.

Fact: Mediation almost always takes less time than litigating a divorce. Unless the spouses have worked everything out ahead of time, hiring lawyers to handle the divorce will almost always take as long or longer than mediating, even if the lawyers are able to settle out of court.

Myth: There's no place for lawyers in mediation.

Fact: Lawyers who understand and support mediation can help mediating spouses in several ways: by informing them of their legal rights and options, by coaching them through the negotiations, by coming up with creative settlement ideas, and by preparing the necessary divorce paperwork once an agreement is signed. Most consulting lawyers charge a reasonable hourly fee and don't require a large retainer (advance deposit). A spouse pays for only as much consulting time as is needed.

Myth: All divorce lawyers understand and support mediation.

Fact: Divorce mediation is still a relatively new phenomenon. Many adversarial lawyers have little or no experience with the nonadversarial approach used in mediation. Some even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through lawyers. These attitudes are slowly changing, as divorce lawyers become more aware of mediation and its benefits for their clients. Meanwhile, spouses wishing to mediate their divorce need to find consulting lawyers who are "mediation-friendly."

Myth: In mediation, the mediator decides what's fair.

Fact: Unlike a judge or an arbitrator, a mediator has no power to make decisions for the divorcing spouses. The mediator's job is to help the spouses negotiate an agreement that each of them considers fair enough to accept.

Myth: Mediation is always the best option for every divorcing couple.

Fact: Mediation works for most divorcing couples. As long as both spouses are able to speak up for what's important to them, and can behave themselves appropriately in mediation, the process can work for them. On the other hand, mediation may not offer enough protection and structure for some couples. For example, a couple with domestic violence or substance abuse issues may need to have lawyers speak for them instead of trying to negotiate directly. In addition, some spouses may prefer to assume the risks and cost of adversarial litigation in order to make a point or assert a legal right rather than compromise in a settlement.

Copyright © 2006 Nolo

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by Attorney-Mediator Katherine E. Stoner

You can mediate without a lawyer, but here's how consulting a legal adviser can help you.

A legal adviser is a special type of lawyer -- one who is willing to consult with you as an integral part of the mediation process. While business lawyers have long served the role of consultant to their clients, divorce lawyers are accustomed to taking over and handling the entire case. For this reason, many lawyers who have special expertise in the divorce area are unwilling to stay on the sidelines as a consultant. As mediation is used by more and more divorcing couples, however, the need for consulting lawyers also increases. As a result, many divorce lawyers are becoming mediators, and these lawyers usually are happy to work as consulting lawyers on cases they aren't mediating.

Why Consult a Legal Adviser

At some point before or during mediation, you may want to consult with someone about your legal rights. While you can learn a lot about your rights from doing your own legal research, consulting with an actual legal adviser can help you get answers that are specifically tailored to your case.

Even before the mediation, a legal adviser/law coach can help you evaluate the option of mediation, select a mediator, and persuade your spouse to mediate.

During the mediation, a legal adviser can act as a law coach on an as-needed basis. Between sessions, you can consult with your law coach to clarify questions and prepare for negotiations. A good legal adviser can coach you in negotiating techniques and help you think up creative solutions to propose in the mediation that are better than or at least as good as what you could get in court.

A legal adviser can also help predict the range of possible legal outcomes if you were to go to court -- and the cost of paying a lawyer to fight for them. Knowing the possible outcomes can be essential to a successful negotiation.

Perhaps most important, a legal adviser can review any written agreement prepared by the mediator to make sure that it says what you want it to say and that it will be legally binding once signed.

Finally, your legal adviser can interface with the court, helping you prepare the papers needed for an uncontested divorce once your settlement agreement is signed, if your mediator does not do that for you.

When to Consult a Legal Adviser

It's a good idea to have a brief consultation with a legal adviser early on during the mediation process. If you wait until you've already negotiated an agreement to consult a legal adviser, you may be in for some surprises about your legal rights that could undermine your commitment to the agreement you've just negotiated. Going back to mediation and trying to renegotiate the agreement at that point is often disastrous.

If you instead start the process with solid legal information, you can negotiate an agreement that takes into account all of your legal rights. This makes it much less likely that the mediation will fall apart at the last minute.

As your mediation progresses, you should feel free to consult with your legal adviser on an as-needed basis between mediation sessions, whenever you have questions about your legal rights or proposed settlement terms.

Qualifications of a Legal Adviser

Your legal adviser will most likely be a lawyer licensed to practice law in your state. But you will want to look for some more specific qualifications as well.

You want a lawyer with significant experience in the area of divorce law. In some states, lawyers can get certified as specialists in certain fields of the law. If this is true in your state, consider looking for a certified specialist in divorce law, family law, or matrimonial law. Many certified specialists are quite knowledgeable about mediation and are experienced as consulting lawyers. Their high hourly fee is often justified by the quality and efficiency of their advice.

In addition, your legal adviser should have a good reputation for competence, honesty, and respectful treatment of clients. Ask your referral sources about these qualities.

It is also critical that your legal adviser be experienced in and supportive of mediation. A legal adviser who is ignorant of or hostile to mediation can undermine everything you are trying to accomplish in mediating your divorce. For example, a lawyer who doesn't approve of mediation or who thinks mediation is a good idea but doesn't know enough about it could easily advise you to take a position that is legally correct but extremely adversarial. What you want is advice designed to inform you of your legal rights and to help you promote a reasonable settlement.

Fees

Most divorce lawyers charge an hourly fee. Most of them also expect to be paid an initial large retainer (advance deposit) of several thousand dollars to cover the cost of beginning a contested case. Because you hope that mediating your case will lead to an agreement for an uncontested divorce, you shouldn't have to pay a large retainer. Look for a legal adviser who will charge you only by the hour, without a big retainer. But be prepared for the hourly fee to range as high as $250 to $500, especially in or near big cities. When you find a legal adviser who charges by the hour without requiring a retainer, be sure to confirm the fee arrangement in writing.

Copyright © 2006 Nolo

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What kind of temporary orders you can get in family court, and how.

Typical lawsuits take months, if not years, to make it to court. But if you're getting divorced and need a quick decision from a judge about who gets the kids, the car, the money in the bank accounts, or the house -- or if you need money for support right away -- obviously you can't wait that long.

You don't have to. When couples separate, important issues are often resolved in a short hearing before a judge, instead of requiring a full-scale trial. These hearings are usually held in a special court, called family court in most states.

Even though these quick hearings are less formal than standard court hearings, their brevity means that you must be prepared and know exactly what you want. You may have only a few minutes to ask for it.

What Temporary Orders Are For

Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.

Spouses can also ask a court to temporarily:

• restrain a spouse from coming near or contacting the other (or, if he or she hasn't already done so, to move out of the family home)
• establish child custody and visiting arrangements
• provide for spousal support (alimony) and/or child support payments
• order either spouse not to sell valuable assets, and/or
• give possession of the family home or car to one of the spouses.

These temporary orders are usually valid until the court holds another hearing or until the spouses arrive at their own settlement through negotiation or mediation.

When to Ask for a Temporary Order

When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.

This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children -- often granting physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. This may sound extreme and unlike your future ex-spouse, but some people behave uncharacteristically when under duress and feeling threatened. And, if your future ex-spouse raises such a claim, the police or judge are usually obligated to hear her or him out. However, when you arrive with proof that you filed for custody and child support, the court will most likely dismiss a kidnapping claim.

How to Ask for a Temporary Order

To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states -- unfortunately, not many -- court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.

Here's what you'll probably need:

• A request for the court order you want. In some states, the forms you need are called an Application for Order to Show Cause (OSC) and an Order to Show Cause. An Order to Show Cause is a simple, fill-in-the-boxes legal form or short typed legal document that sets out what you are asking for -- for example, a temporary child support order. It orders your spouse to come to court at a specific date and time and explain ("show cause") why the court should not grant this request.
• A supporting declaration. This is a written statement, under penalty of perjury, setting out facts that legally justify the issuance of the temporary order -- for example, the need for money to support your children. You can also submit declarations of other people who have first-hand knowledge of the facts.
• A proposed temporary order granting you the relief requested. This order will be signed by the family court judge if he or she grants the relief you request.
• A proof of service. This is a document that proves to the court that the papers have been properly delivered to your spouse. Your best bet is to send everything to your spouse by U.S. certified mail, if your state allows it -- but some don't. Check for instructions that come with the proof of service form; if there aren't any you can check your own state's law about serving papers.

In some courts, you won't be allowed to file papers asking for a short hearing unless you've already filed for divorce. You can do both at the same time; it just means filling out even more forms to get your divorce started.

What to Expect at the Hearing

Your next step is to attend the court hearing where the judge will consider your request. In emergencies, the hearing can be held within a few days. In legal jargon this is often called an "order to show cause hearing."

The hearing may be held in a courtroom or just in the judge's office or "chambers." The judge may listen to a few minutes of testimony from you, your spouse, and possibly other witnesses. Or the judge may only accept written evidence. To support a request for temporary child support, you will probably need to produce copies of an income and expense budget.

The judge will:

• review the details of the requests and the underlying facts
• possibly ask you some questions
• ask your spouse, if present, for his or her side of the story, and
• in child support cases, refer to state guidelines on recommended support, given factors such as each spouse's income and who has primary custody of the kids.

Often this kind of hearing takes less than 20 minutes. At its conclusion, the judge will likely make an immediate ruling, usually either issuing the temporary order you requested or modifying it somewhat. If more information is needed, or your spouse wasn't given the proper notice before the hearing, the judge may issue an order that is effective only until another hearing can be held. In any event, orders such as these stay in effect only until the divorce is finally settled, either through a trial or when you and your spouse reach an agreement.

Copyright © 2006 Nolo

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How to get divorced without using a lawyer -- and when you might really need one.

You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?

The answer can depend, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. The less you use the court, the less cost and heartache, and, in many cases, the better quality of the final result. But how do you avoid courts and lawyers?

Make Decisions by Yourselves

In theory, at least, it's simple: You do best if you work out thorny issues yourselves, with help from a neutral third person, such as a mediator, if you need it. You don't let lawyers haggle over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you can work these issues out yourselves -- and many, if not most, couples can -- you will save yourselves time, money, and anguish. More important, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.

If you are able to solve the big questions of children, money, and property, you need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle the whole process without a lawyer.

But first, you've got to tackle those big questions. Can you and your spouse -- someone you may not feel much like cooperating with at the moment -- do it on your own? A surprising number of divorcing couples are eventually able to come to terms without outside assistance.

If You Fear Violence

If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep the spouse away.

Some people may advise you to close joint bank and credit card accounts, but this could be held against you during future court proceedings. Since joint bank and credit accounts are usually viewed as joint property, your future ex may accuse you of fraud or theft and a judge may agree, despite the fact that violence is raised as an issue.

Your best bet is to take the amount of money you realistically need (you do have this right, but try not to take more than half of what's there unless you absolutely have to), plus some extra for emergencies, and immediately file an action in court for support.

How Lawyers Fan the Flames

To an emotionally distraught or angry person, turning all the details and hassle of a divorce over to a lawyer may seem like a perfect solution. Unfortunately, it can turn out to be a deal with the devil. Most observers -- and people who have been through an acrimonious divorce -- agree that lawyers frequently make things worse, not better.

This happens because all lawyers operate under a prime directive: the zealous pursuit of their clients' interests. One lawyer can't fully represent both divorcing spouses, because each spouse's best interests are different. So, when one spouse brings a lawyer into a divorce, the other usually does likewise. There may even be a third lawyer to represent the children if there is a custody dispute. And then it can get ugly. When two or more lawyers are fighting for their clients' interests, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.

But, if there are children, the fight depletes not only your pocketbook but also your children's sense of security and self-esteem. And, once the legal fight is over, trying to establish normal ongoing relationships between both parents and the children through a flexible custody and visitation arrangement can be very difficult.

When a Couple Can Use One Lawyer

There's an exception to the rule that no one lawyer may work for both divorcing spouses (who are assumed to have different, if not conflicting, interests). This is allowed when:

• the clients have agreed on major issues
• the clients are confident they can work out the minor issues
• the clients understand that the lawyer cannot fully represent both under the circumstances
• the clients have agreed to this in writing, and
• the clients just want the lawyer to do the paperwork.

However, if a disagreement arises between the couple, the lawyer ethically has to transfer at least one client to another lawyer. The lawyer may have to transfer both clients to other lawyers if the lawyer has learned some things about the couple that make it unfair for him to represent one of them.

How to Keep Lawyers Civil

If you and your spouses do hire lawyers, you have the power to stop your lawyer from engaging in lengthy, expensive arguments with your spouse's attorney. Simply tell him or her to stop and explain that a combative approach does not suit your or your children's needs. Most lawyers would rather have a satisfied client than feed their ego by fighting the other side's attorney. Better still, try to hire a lawyer who'll work to minimize conflict with the other side from the start.

Some family lawyers are also trying a new method called "collaborative law," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.

When to Hire a Lawyer

It makes a lot of sense to hire a lawyer if there is a real problem with abuse -- spousal, child, sexual, or substance. In that situation, a lawyer may help you get the arrangement you need to protect yourself and the children, if there are any.

It can also make sense to hire a lawyer if your spouse is acting dishonestly or vindictively and you just can't cope with it. In that case, you may need someone to protect your interests.

It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.

If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will at a minimum discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings. If the legal aid attorney's caseload permits, he or she may take your case, usually at little or no cost. Also, ask if the legal aid office has a pro bono program. The legal aid office may have a list of private attorneys that are willing to take on cases recommended by legal aid. These services are also at little or no cost.

If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you.

How Mediation Can Help

Mediators help you and your spouse get over the emotional barriers to negotiation and help you fashion a sensible divorce agreement that meets the both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate an ongoing negotiation between the spouses that in most cases results in an agreement satisfactory to both sides.

Copyright © 2006 Nolo

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Fast facts to help you decide whether you'd want to pop the question if you could.

For same-sex couples living in Massachusetts, California, Connecticut, and Vermont, same-sex marriage -- or a reasonable facsimile of marriage -- is now a reality. If you live in any of these four states, you and your partner have a decision to make that same-sex couples have never had to make before: whether marriage is right for you.

A few other states -- Hawaii, Maine, and New Jersey -- have domestic partnership laws, but they offer limited rights that don't really approximate marriage. But for folks living in these and other states, it's never too early to think about what you might do if new relationship options became available where you live. Here are some things to consider as you think about how you want to structure your relationship.

• Having children. In most cases, if you have children or hope to raise a family, marriage is probably the right option. Married couples by law have equal rights to raise their children, as well as equal obligations of support. In a divorce, both parents can seek visitation and custody, and, if one parent dies, the other one steps right in as the primary legal parent. It's pretty difficult to make these sorts of arrangements absent a legal marriage or a second parent or stepparent adoption.
• Jointly owning property. Marriage isn't a prerequisite for owning property together, but if you get married, in most situations your property will be jointly owned regardless of who pays for it. This is the reverse of the presumption that applies to unmarried couples. Getting married may be the most efficient way of establishing a property merger -- though, if keeping things separate is more to your taste, you will have to sign a prenuptial agreement to avoid the joint ownership presumptions of a legal marriage.
• Splitting up property. In most states, each married spouse's earnings are owned by the two of you, and, if the marriage breaks up -- regardless of who's at fault -- you each generally get half of everything you've accumulated. By contrast, if you are unmarried, your property is co-owned only if you have an agreement to that effect. Likewise for debts and obligations. Divorcing spouses are also entitled to demand alimony if the marriage doesn't last, without the need for any explicit contract providing for post-separation support.
• Formalities. Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action -- and quite often the help of a lawyer. Unmarried couples can break up informally, on their own terms.
• Inheritance and death taxes. Without a legal marriage, a couple needs to sign several agreements to create even a partial framework of protection in the event of death, and certain tax benefits are forever denied to unmarried couples. If you are married, however, the surviving spouse generally inherits all the property if the partner dies without a will. (However, laws exempting married couples from inheritance taxes and gift taxes don't yet apply to same-sex couples, because the federal government does not recognize same-sex relationships even if state law provides for marriage or marriage-like benefits.)
• Transfer taxes. In theory, transfers of property upon dissolution of the relationship are tax-free for legally married couples, but not for unmarrieds. It's unclear yet how these rules will apply to same-sex couples, because of the federal government's refusal to recognize same-sex relationships.
• Government benefits. Marriage can bestow a bevy of important benefits, including military or Social Security benefits, health care benefits, and nursing home coverage. Marriage may also qualify you for unpaid leave from your job under the Family Leave Act. But watch out -- a married person's income could disqualify a spouse from receiving Social Security, welfare, or medical benefits she'd receive if she were unmarried.
• Immigration. A legal marriage is the only reliable method of providing a foreign partner with the privileges of immigration to this country when he doesn't qualify under work or other provisions of the Immigration Act. However, again because the federal government does not recognize same-sex relationships, this benefit is not yet available to married couples. In fact, couples in which one partner is a nonresident are advised against getting married or entering a civil union or domestic partnership, which could threaten their visa status in some situations.

If you are in the position of needing to make this difficult decision, first decide whether you fall into one of the got-to-marry or better-not-marry situations. Raising kids or facing a serious illness, for example, generally favors a marriage (unless it disqualifies you for Medicaid), whereas getting saddled with your partner's debts or losing Social Security benefits probably favors a no vote.

If you don't find yourself at either extreme, take a close look at the marital property rules for your state, evaluate the benefits and burdens given your personal situation, and get a good sense of what being married would do for you financially. Then, consider whether being married feels right for both of you emotionally. If the answers come back positive for both of you, then proceed, but consider creating a prenuptial agreement if any aspect of the traditional marriage structure doesn't meet your needs. If the impact of marriage feels unduly negative for one or both of you, however, maybe you should hold off.

Copyright © 2006 Nolo

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Learn about the benefits of domestic partnerships -- and whether they may be available to you.

Despite the fact that it's estimated only 10% of American families are made up of a working husband, a stay-at-home wife, and children, our legal and social systems still provide benefits and protections based on that model. Having been left out of this structure, lesbian and gay activists in the early 1980s sought new definitions of family and recognition of their relationships -- and domestic partnerships were born.

Domestic partners are unmarried couples, of the same or opposite sex, who live together and seek economic and noneconomic benefits granted their married counterparts. In a few states, domestic partnership status is offered and regulated by the state and grants many of the rights and responsibilities of marriage -- generally limited to same-sex couples. In other places, domestic partnership is offered by smaller governmental entities or businesses and carries more limited benefits. In either case, benefits can include:

• health, dental, and vision insurance
• sick and bereavement leave
• accident and life insurance
• death benefits
• parental leave (for a child you coparent)
• housing rights and tuition reduction (at universities), and
• use of recreational facilities.

When a state, municipality, county, organization, private company, or university or college considers providing domestic partnership benefits, it must address several important issues: Who qualifies as a domestic partner -- should heterosexual couples be covered as well as gay and lesbian couples? How will an employer identify the employee's domestic partner -- by registration? Must the couple be together a minimum number of years? Must the couple live together? Must they share expenses? Must they be financially responsible for each other? How does a couple terminate their domestic partnership? (Note that even though most domestic partnership applications ask you to state that you are financially responsible for each other's needs, these applications are generally not considered binding contracts of support.)

In 1982, the Village Voice newspaper became the first private company to offer its employees domestic partnership benefits. The City of Berkeley was the first municipality to do so in 1984. In 1995, Vermont became the first state to extend domestic partnership benefits to its public employees. In 1997, Hawaii became the first state to extend domestic partnership benefits to all same-sex couples throughout the state. In addition, California, Connecticut, Maine, and New Jersey all now offer domestic partnership status to same-sex couples who register, with a wide variance in the type of benefits offered.

Today, a number of states and hundreds of municipalities, counties, private companies, organizations, colleges, and universities offer domestic partnership benefits. The complete list of institutions is extensive; the benefits offered by each is not, however. In some cases, all that is offered is bereavement or sick leave. In other situations, the benefits offered are comprehensive -- but also costly. Often, either the employee foots the bill for his or her partner, or the company pays (when it also pays for spouses) but the employee must pay taxes on the benefits. This is because the IRS considers benefits awarded to an unmarried partner as taxable compensation.

Copyright © 2006 Nolo

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Learn what a living together contract is and whether or not you need one.

A contract is no more than an agreement to do (or not to do) something. Marriage is a contractual relationship, even though the "terms" of the contract are rarely stated explicitly or even known by the marrying couple. Saying "I do" commits a couple to a well-established set of state laws and rules governing, among other things, the couple's property rights if they split up or when one of them dies.

Unmarried couples, on the other hand, do not automatically enter into a contract when they start a relationship. If you want to legally establish how you will own property during your relationship, as well as what will happen if you separate or if one of you dies, you must write out your own rules. (Married couples do something similar when they create a premarital agreement. Your agreement will be legally called a "nonmarital agreement," but we prefer the term "living together contract.")

Some couples find it unromantic or depressing to even think about making a contract governing mundane details like money and property, particularly if doing so involves thinking about what might happen in the event of separation. But preparing a sound living together agreement can help you in a whole host of ways. Practically speaking, your agreement will help you avoid trouble when you mix your money and property, and it will make clear your intentions and expectations regarding property ownership, household expenses and the like. It can also greatly ease the division or distribution of property after a breakup or death. On a more personal note, the process of negotiating and drafting your agreement may well strengthen your abilities to communicate with and understand each other.

That said, here's an overview of the legal rules and practical concerns you should think about before drafting a contract of your own.

Legal Rules Governing Living Together Contracts

For the most part, courts and judges -- not legislatures -- have made the legal rules governing living together contracts. The leading court case is the well-known Marvin v. Marvin, 557 P.2d 106, decided by the California Supreme Court in 1976. It involved the actor Lee Marvin and the woman he lived with, Michele Triola Marvin. (She used his last name even though they weren't married.) In its decision, the court announced what were to become the common legal principles governing the right of unmarried couples to make contracts. First, the court ruled that marital property laws do not apply to couples who are not legally married. Then, the court recognized that unmarried couples are here to stay. Finally, the court declared four contract principles:

• Unmarried couples may make written contracts.
• Unmarried couples may make oral contracts.
• If a couple hasn't made a written or oral contract, the court may examine the couple's actions to decide whether an "implied" contract exists.
• If a judge can't find an implied contract, she may presume that "the parties intend to deal fairly with each other" and find one partner indebted to the other by invoking well-established legal doctrines of equity and fairness.

Although Marvin directly applies only in California, other states have upheld the application of these principles to contracts made by unmarried partners -- both straight and gay. Depending on the state, however, a court may follow different legal rules. Almost all states now enforce contracts between unmarried partners, although in some states only written contracts will be enforced.

Getting Help

If you're not sure whether living together contracts are valid in your state, you'll need to consult a lawyer or do some legal research of your own. Even if you know that you can make a legal agreement, there are some situations in which you should seek a lawyer's help. Get legal advice before signing an agreement if it involves a lot of money or property -- or complicated estate planning. This is just common sense, particularly if one partner has substantially more assets than the other. Also, you should get help if it might appear that one of you has much greater bargaining power than the other. A living together contract may not be enforced if a judge concludes that one person has taken unfair advantage of the other. For example, a court is unlikely to uphold a one-sided living together contract entered into between an experienced lawyer and an unsophisticated but wealthy 19-year-old who just moved to America and speaks little English, under which the immigrant agrees to support the lawyer.

When You Need a Living Together Contract

Obviously, you don't need a contract if you are in a brief relationship. But in a long-term and serious partnership, whether you're basking in the glow of having just "joined forces" or you've been together 20 years, you should consider the legal consequences of dealing with money and property. If you are planning to mix assets or share expenses, you should most definitely put your agreement in writing, especially if a significant amount of money is involved. If you're both stone-broke, with no property and little prospect of getting any soon, you can still benefit by deciding how you will handle money and property if it ever arrives. Also, you can put more emphasis on the practical issues of day-to-day living together, such as how expenses will be paid.

What to Include in a Living Together Contract

A living together contract can be comprehensive, covering every aspect of your relationship, or it can be specific, covering only one transaction (such as a new house purchase). These contracts need not be like the fine-print monsters pushed at you when you buy insurance or a car. You can, and should, design your contract to say exactly what you both want, in words you both understand. A simple, comprehensible and functional document using common English is much better than one loaded with "heretofores" and "pursuants."

If you want your living together contract to include personal details about your relationship, make two agreements. The first one should pertain only to property and finances. Then, if the worst ever happens and you find yourselves in court, the property and finance terms will be the only ones a judge sees. Write up a second agreement, if you wish, about who will do the dishes, who will walk the dog, how many overnight guests you'll allow and whose art goes in the living room. A court won't -- and shouldn't be asked to -- enforce this kind of agreement. In fact, if you do make just one agreement that includes personal as well as financial clauses, you run the risk that a court will be distracted by the personal clauses and will declare the entire contract illegal or frivolous, thus negating the more important financial clauses.

Here are the issues that couples most often include in a living together contract:

Property and Finances Clauses

Your living together agreement should cover all of your property -- including the property you had before you began the relationship, as well as the property either or both of you accumulate during it.

Property owned before living together. You each probably had some property before you met. Making an agreement about this property may seem unnecessary, but it's not. Think about trying to sort things out ten years from now, when you've both been referring to everything around the house as "ours." You can agree to keep all of your previously owned property separate, or you might want to share some or all of it with each other. Do what suits you best.

Property inherited or received by gift during the relationship. Many people will want to keep separate the property they inherit or receive by gift. Others will want to "donate" the property to the relationship. Again, it's up to you. Remember that any property given to both of you is legally owned by both -- this includes gifts you receive at a commitment ceremony or anniversary party, even if given by a relative or friend of just one of you.

Property bought during the relationship. Many people make purchases item by item, understanding that whoever makes the purchase owns the property. Purchases can also be pooled. A consistent approach to property ownership may simplify things, but is required by neither law nor logic. Some items may be separately owned, some pooled 50-50, and some shared in proportion to how much money each contributed toward the purchase price or how much labor each put into upkeep.

Expenses

Your agreement should cover how you want to handle expenses during your relationship. For example, how will you divide the day-to-day costs for food, utilities, laundry, housing and the like, especially if expenses increase or decrease? Here are a few suggestions about how to share expenses:

• Share and share alike. Many couples have only one checking account. They both deposit their paychecks into it and pay all household bills out of it. They figure it all evens out in the end.
• Split 50-50. Some couples prefer this method. When one partner buys something for the house or pays a bill, he writes his name on the receipt and throws it into a jar. Every few months, they empty out the receipt jar and total up how much each has spent. One then writes the other a check to even things up.
• Each contributes in proportion to her income. This works especially well for people with large income discrepancies.

Separation or Death

It's wise to include at least brief provisions in your agreement stating what will happen if you split up or if one of you dies. You may simply want to say that if you separate, each of you will have the right to take immediate possession of your separate property and that all jointly owned property will be divided equally. If there is property that you own together -- but not in equal shares -- you'll want to specify a method for dividing it between you.

Though it may be difficult to think about it, it's especially important to consider what will happen if one of you dies. Without properly prepared documents, members of an unmarried couple have no right to inherit property from one another. You can use your living together agreement to specify how you want to provide for each other; it will serve as strong evidence of your intentions. Be aware, however, that writing out a plan in your agreement is not enough. You should also use a will, living trust or other estate planning documents to ensure that your plan is carried out as you wish. For more information about ways to leave your property at death, see the Wills and Estate Planning area of Nolo's website.

Dispute Resolution

We recommend that every couple who prepares a living together contract include a method for resolving any disagreements that later arise out of it. Traditionally, it this type of dispute was severe, a couple had to go to court to resolve it, but there are better alternatives now. You may want to make mediation your first-choice method for resolving disputes, stating in your agreement that you will choose a third party to help you resolve any disagreements about your living together contract. If mediation is unsuccessful, you might allow either partner to submit the dispute to formal and binding arbitration. This should be enough to avoid the complications and expenses of a lawsuit.

What Happens to Your Living Together Agreement If You Get Married?

Your living together contract will be enforceable after marriage only if it was created shortly before your marriage at a time when you both planned to marry. To be enforceable, prenuptial (or premarital) contracts must be made in contemplation of marriage.

Copyright © 2006 Nolo

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There are five tests you must meet to claim your partner as a tax dependent.

If you financially support your partner (heterosexual or same-sex), you may be able to file a tax return as a single person and claim your partner as a dependent. To be able to do this legally, you must meet the following five tests.

Support. The supporting partner must provide at least 50% of the other partner's total support for the year. Support includes food, shelter, clothing, medical and dental care, education, entertainment, and just about anything you can think of.

Citizen or resident. The supported person must be a U.S. citizen, resident alien, or citizen of Canada or Mexico.

Income. The supported person's taxable income cannot exceed $2,900. Nontaxable money, such as gifts, welfare benefits, and nontaxable Social Security benefits don't count toward gross income.

Relationship. Under IRS regulations, a person who lived in your home for the entire year can be considered a dependent as long as the relationship does not violate local law. Our advice: If you meet the other four tests but may be violating the law in a state where fornication, cohabitation, or sodomy is still against the law, go ahead and claim your partner as a dependent anyway. Recent court decisions have made those laws questionable at best, and the worst that can happen is that the IRS won't allow your deduction and your tax bill will be recomputed without the deduction.

Unmarried person. If the supported person is married and files a joint tax return with his spouse, the supporting partner in this relationship cannot claim him as a dependent. There's one exception: If the married couple did not earn enough to have to file a tax return and did so only to get a refund, the supporting partner can claim the dependent.

Copyright © 2006 Nolo

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To allow your partner to take care of things for you if you can't speak for yourself, you must prepare the right legal documents.

If you ever become unable to make your own health care decisions or manage your own finances -- because of injury, serious illness, or advanced age -- you probably want your partner to step in and take care of you. Unfortunately, members of unmarried couples, unlike their married counterparts, often aren't permitted to handle medical or financial decisions for each other without signed authorization.

There are a few simple legal documents you should prepare if you want to ensure that critical decisions stay in the hands of your partner: health care directives and a durable power of attorney for finances. Without these documents, your partner may face tremendous emotional and practical problems if he or she tries to make health care decisions for you in the event of a medical emergency or handle a simple financial transaction on your behalf when you're not able to. At worst, your health care and finances may be placed in the hands of a biological relative who won't consider your partner's input. And this relative may well make decisions that go against what you want.

Fortunately, the documents you need are straightforward and usually easy to complete.

Health Care (Medical) Directives

Every state has laws authorizing individuals to create simple documents setting out their wishes about the type of medical treatment they want (or don't want) if they become unable to communicate their own decisions. These documents may also name someone to direct their care.

Health care directives are particularly important for unmarried partners, although married people should have them, too, to avoid conflict with other family members. If you don't take the time to prepare them and you become incapacitated, doctors will turn to a family member designated by state law to make medical decisions for you. Most states list spouses, adult children, and parents as top-priority decision makers, making no mention of unmarried partners.

A few states do include partners in their list of potential surrogate decision makers -- including Arizona, Delaware, Maine, and New Mexico. However, only New Mexico gives priority to a long-term partner. Other states make room for unmarried partners (sometimes classifying them as "close friends") only if listed family members are unavailable. And, in the few states where domestic partnership is available for same-sex couples, registered partners have priority over other family members. However, no matter what state you live in, you can save your partner a great deal of time and trouble by planning ahead.

There are two documents that permit you to set out your health care wishes, both grouped under the broad label "health care directives." First, you need a health care "declaration," a written statement you make directly to medical personnel that spells out your wishes for medical care if you become incapacitated. Your declaration functions as a contract with your treating doctor, who must either honor your wishes for health care or transfer you to another doctor or facility that will honor them.

The second document is usually called a "durable power of attorney for health care." In this document you appoint the person you choose -- most likely your partner -- to see that your doctors and other health care providers give you the kind of medical care you want to receive. You can also use your durable power of attorney for health care to give your partner (who may be called your "attorney-in-fact," "agent," or "proxy," depending on where you live) other rights to participate in your medical care, including:

• directing your health care under any circumstances that you don't specifically address in your declaration
• hiring and firing medical personnel
• visiting you in the hospital or other facility even when other visiting is restricted
• having access to medical records and other personal information, and
• getting court authorization to enforce your health care wishes if a hospital or doctor refuses to honor them for any reason.

In some states, your declaration and durable power of attorney for health care will be combined into a single document, often called an "advance health care directive."

You can make valid health care directives if you are at least 18 years old and of sound mind. Being of sound mind essentially means that you are able to understand what the document means, what it contains, and how it works. Physically disabled people may make valid health care documents; they can direct another to sign for them if they are unable to do so.

You may change or revoke your health care directives at any time as long as you are of sound mind.

Financial Powers of Attorney

A durable power of attorney for finances allows you to name someone you trust (called your "attorney-in-fact" or "agent") to handle your finances if you become unable to take care of yourself. Every state recognizes this type of document.

As with documents directing medical care, you should seriously consider making a durable power of attorney for finances if you want your partner to manage your money if you become unable to. If you don't prepare the document and you later become incapacitated, your partner or other family members will have to ask a court for authority over your financial affairs. These proceedings, called "conservatorship proceedings," can be time-consuming and expensive -- and they can be disastrous for unmarried couples if the court names another family member to take over, especially if your finances have been intertwined with those of your partner for a long time.

You can make your financial power of attorney effective immediately, or you can specify that it should go into effect only if you become incapacitated; the latter is called a "springing" power of attorney. While some people are more comfortable making a springing document, an immediately effective document holds a potential advantage for unmarried couples in a long-term, trusting relationship. If you make your document effective immediately, your partner can handle financial transactions for you at any time, even when you are not incapacitated. This can be useful if you are out of town, under the weather, or temporarily unavailable for any other reason.

When you make a durable power of attorney for finances, you can give your partner (or other attorney-in-fact) as much or as little control over your finances as you wish. The powers you grant may include:

• using your assets to pay your bills and everyday expenses
• buying, selling, maintaining, paying taxes on, and mortgaging real estate and other property
• collecting benefits from Social Security, Medicare, or other government programs or civil or military service
• investing your money in stocks, bonds, and mutual funds
• handling transactions with banks and other financial institutions
• buying and selling insurance policies and annuities for you
• filing and paying your taxes
• operating your small business
• claiming property you inherit or are otherwise entitled to
• hiring someone to represent you in court, and
• managing your retirement accounts.

Like health care directives, you can make a durable power of attorney for finances if you are at least 18 years old and of sound mind. And you can change or cancel your document at any time, as long as you are of sound mind.

Copyright © 2006 Nolo

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by Shae Irving & Attorney-Mediator Katherine E. Stoner

Understand what you can accomplish by making a prenuptial contract before you marry.

If you're trying to decide whether or not to make a prenuptial agreement, you'll need to understand what this type of contract can -- and can't -- do for you.

What You Can Do With a Prenup

Prenuptial agreements are most often used for the following puposes:

Keep finances separate. Every state has laws designating certain kinds of assets accumulated during marriage as marital property or community property, even if these assets are held in the name of just one spouse. If a couple divorces, or when one spouse dies, the marital or community property will be divided between them, either by agreement or by a court. If you want to avoid having some or all of your individual accumulations during marriage divided up by a court, you can do so with a premarital agreement.

Protect each other from debts. Some of us bring debts, as well as assets, to a marriage. If there's no prenup, creditors can sometimes turn to marital or community property to satisfy the debts of just one spouse. But if you want to make sure that saying "I do" does not mean saying "I owe," you can use a prenup to limit your liability for each other's debts.

Provide for children from prior marriages. A prenup is helpful (perhaps essential) if either of you has children from another relationship and you want to make sure that your children inherit their share of your property. In a prenup, one or both spouses can give up the right to claim a share of the other's property at death, perhaps in exchange for an agreed upon amount of property.

Keep property in the family. If your property includes something you want to keep in your birth family, whether it be an heirloom or a share in a family business, you and your spouse can agree that it will remain in your family, and you can specify that item in your prenup. This can even include property that you expect to receive in a future inheritance.

Follow through by making your estate plan. In addition to using your prenup to waive inheritance rights and state your intentions for passing on your property at death, it's vital that you prepare the estate planning documents -- a will, living trust, and so on -- that actually transfer your property as you intend.

Define who gets what if you divorce. Without a prenup, state law will specify how your property will be divided if you ever divorce. These laws may dictate a result that neither of you wants. You can use a prenup to establish your own rules for property division and avoid potential disagreements in the event of a divorce. In most states, you can also make agreements about whether or not one or both of you will be entitled to alimony. Some states forbid or restrict agreements about alimony, however. (See "What You Can't Do With a Prenup," below.)

Clarify responsibilities during the marriage. In addition to the reasons listed so far, there are countless other uses for a prenup, depending on your circumstances. Here are some examples of other matters people include in their prenups:

• whether to file joint or separate income tax returns or to allocate income and tax deductions on separate tax returns
• who will pay the household bills -- and how
• whether to have joint bank accounts and, if so, how you will manage them
• agreements about specific purchases or projects, such as buying a house together or starting up a business
• how you will handle credit card charges -- for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments
• agreements to set aside money for savings
• agreements for putting each other through college or professional school
• whether you will provide for a surviving spouse -- for example, in your estate plan or with life insurance coverage, and
• how to settle any future disagreements -- for example, you might agree to hire either a mediator or a private arbitrator.

What You Can't Do With a Prenup

There are some things you just can't -- or shouldn't -- do with a prenup. State laws differ as to what matters are considered off-limits. However, as a general rule, any agreement to do something that is illegal or against state-defined public policy will be considered unenforceable -- and may even jeopardize other valid aspects of the premarital agreement. Here are some things that you can't do, at least in some states:

Restrict child support, custody, or visitation rights. No state will honor agreements limiting or giving up future child support. The same holds true of agreements limiting future custody and visitation rights. This is because state lawmakers consider the welfare of children to be a matter of public policy and do not enforce any private agreements that would impair a child's right to be supported or to have a relationship with a parent in the future.

Give up the right to alimony, in a few states. A handful of states similarly limit your ability to give up your right to alimony -- also called spousal support or separate maintenance -- if there is a divorce. Other states permit such waivers, so you will need to know what your state laws say if you are considering this kind of agreement.

"Encourage" divorce. At one time, many courts viewed any prenup specifying how things would be divided up in case the couple splits as void and unenforceable because it promoted divorce. The modern approach allows such agreements, but judges in some states still take a hard look at them. If the agreement appears to offer a financial incentive for divorce to one party, it may be set aside.

Make rules about nonfinancial matters. For practical reasons, you should keep personal agreements out of your prenup. Here is a partial list of nonfinancial matters that sometimes find their way into prenups, but are better dealt with separately. Of course, the possible issues are endless and you may well think of many that aren't mentioned here:

• responsibility for household chores -- from laundry to cleaning to car care
• use of last names after you marry
• agreements about having and raising children, such as birth control, having children, children's names, child care responsibilities, and education
• how you will relate to in-laws or stepchildren, and
• whether you will have any pets and who will be responsible for them.

These kinds of nonmonetary agreements aren't binding in court, and in fact they could cause a judge to take your entire prenup less seriously. Rather than including personal matters in your prenup, you may find it helpful to simply make a list of your most important concerns and discuss them together. If you want to take it a step further, you can underscore your commitment by writing down your personal agreements in a separate document -- perhaps in a letter that each of you writes to the other, clarifying your intentions and wishes.

Copyright © 2006 Nolo

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by Shae Irving & Attorney-Mediator Katherine E. Stoner

It may sound surprising coming from advocates of self-help law, but yes, you do need a lawyer when making a prenuptial agreement.

If you want to end up with a clear and binding premarital agreement, you should get help from a good lawyer. In fact, you will need two lawyers -- one for each of you. Here's why.

Our Anglo-American legal system views marriage as a matter of contract between two consenting adults. The terms of the "marriage contract" are dictated by the laws of the state where the married people live, unless they have a prenuptial, or premarital, agreement in which they set their own terms.

Varying State Laws

The laws governing marriage contracts vary tremendously from state to state. You can certainly do some of your own research to find out general information on your state's laws relating to prenups. But, if you don't want to invest your time learning the ins and outs of your state's matrimonial laws, a lawyer who knows the intricacies of those laws will be an important resource. The lawyer can help you put together an agreement that meets state requirements and says what you want it to say.

Independent Legal Advice

This explains the desirability of having one lawyer, but why two? Prenuptial agreements are still scrutinized by the courts, sometimes very closely. If you want your agreement to pass muster, having independent lawyers advise each of you can be critical. While most courts don't require that each party to a prenup have a lawyer, the absence of separate independent advice for each party is always a red flag to a judge. On a practical note, having separate legal advisers can help you and your fianc?ɬ� craft a lasting agreement that you both understand and that doesn't leave either of you feeling that you've been taken advantage of.

Decide What You Want Before Seeing a Lawyer

That said, it's best not to ask your lawyers to start writing up a draft or final agreement until the two of you have settled on its essential terms. You should put those terms in writing -- either in a written outline or a draft agreement you create yourselves. A prenup prepared by a lawyer who isn't working from terms you've both agreed on is likely to be one-sided and adversarial. If you provide your lawyers with an outline or draft prepared by both of you, the whole process -- and the final document -- will be more balanced.

All of this assumes that you select and use lawyers who are not only competent and experienced in matrimonial law, but who are also capable of supporting the two of you in negotiating and writing up a loving, clear, and fair agreement. Finding the right lawyers can take some time, but it's worth the effort.

Copyright © 2006 Nolo

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By Shae Irving & Attorney-Mediator Katherine E. Stoner

These steps will help you decide whether a prenuptial agreement makes sense for you.

Whether to have a prenup is as personal and unique a decision as whether to marry in the first place. Here are a couple of things you can do to figure out whether a prenup is what you need.

Consider the Pros and Cons

Before getting to the specifics of your own situation, it can be helpful to look at the general pros and cons of making a prenup. We'll look at the good news first, then a few downsides.

Prenup Benefits

Making a prenup can:

• protect your separate property
• support your estate plan
• define what property is considered marital property or community property
• reduce conflicts and save money if you divorce
• clarify special agreements between you, and
• establish procedures and ground rules for deciding future matters.

In addition, creating a prenup may actually strengthen your relationship. While people often imagine that negotiating a prenup is potentially divisive, communicating about money matters can actually improve the quality of your relationship and support good communication in your marriage. Even if you don't end up signing a written agreement, just sitting down and hashing out the basics about money and property can eliminate misunderstandings that might otherwise create conflict. Remember that sooner or later you and your intended will be talking about money. If you think you can handle it, most psychologists and legal experts would tell you there's no time like the present.

Disadvantages of a Prenup

While there is a lot to be said for a carefully considered, clearly written prenup, there are some downsides to consider.

It's not romantic. Let's face it, a prenup is not romantic. Being engaged conjures up images of candlelit dinners and walks in the moonlight. Although marriage is a financial partnership as well as a romantic one, if you feel that discussing something as mundane as property and finances, as well as the possibility of divorce, will mar an otherwise beautiful time of your lives, you may not be candidates for a prenup.

The time may not be right. The need for a prenup is partly a question of timing. The issues covered in a prenup will probably arise sooner or later in your marriage: money management, property rights, responsibility for debts, estate planning. And if your marriage doesn't work out, you'll certainly need to deal with divorce decisions.

But making a prenup forces you to confront many of these issues now, at a time when your relationship may still be new and untested. Discussing what goes into a prenup could be unpleasant and stressful, leaving one of your with bad feelings about the relationship. (If now is not the time to make a written agreement, you may be able to make a contract after you marry (a "postnup"); but be advised that postnups have their own disadvantages, including stricter legal rules.)

State law may protect you without a prenup. The laws of your state may do a fine job of accomplishing what you want. For example, you may live in a community property state where assets owned before marriage are separate property and those accumulated during marriage are community property that is owned fifty-fifty. If this is essentially what you would want in your prenup, or maybe even better than what you expected, why go through the work of negotiating a prenup? Still, you'll want to be sure that you're not facing any special circumstances where your state law is unclear. Proceed to the next step and take a careful look at your situation.

Examine Your Situation

Now that you have an overview of the pros and cons, you can focus on the specifics of your circumstances and figure out whether a prenup is what you need.

Step One: Take a Prenup Quiz

If you or your fiance can answer yes to any of the following questions, there is a good chance a prenup would be helpful. If you answer no to every question, you might still benefit, but having a prenup might not be as critical.

• Do you own any real estate?
• Do you own more than $50,000 worth of assets other than real estate?
• Do you own all or part of a business?
• Do you currently earn a salary of more than $100,000 per year?
• Have you earned more than one year's worth of retirement benefits or do you have other valuable employment benefits, such as profit sharing or stock options?
• Does one of you plan to pursue an advanced degree while the other works?
• Will all or part of your estate go to someone other than your spouse?

Step Two: Identify Important Issues

Jot down on a piece of paper a list of the things you might want to include in a prenup, such as separate property identification, decisions about how you will handle money and property while you are married, whether alimony will be paid or waived in the event of divorce, retirement benefit agreements, and agreements about how you want to leave property at your death.

Common Prenup Topics

Here's a quick list of some of the issues that can be included in a prenup:

• separate vs. joint property
• estate planning issues, such as providing for children from prior marriages or leaving family property
• how to handle a separate business
• retirement benefits
• nonresponsibility for the other person's debts
• who gets what, including alimony, if you separate or divorce
• procedures for filing tax returns, including allocating income and deductions
• who pays household bills -- and how
• whether to have joint bank accounts and, if so, how to manage them
• agreements about specific purchases or projects, such as buying a house together or starting up a business
• how you will handle credit card charges
• agreements to set aside money for savings
• agreements for putting each other through college or professional school
• provisions for a surviving spouse in your estate plan or through life insurance coverage
• how to settle any future disagreements, such as with the help of a mediator or by a private arbitrator acting as judge.

Step Three: Assess Your Comfort Level

Next, ask yourself this question: On a scale of one to five, how comfortable am I with the idea of having a prenup? If you give yourself a one or a two, try to identify the reasons for your discomfort. If it is because you are uncertain how the terms of a prenup might compare to your legal rights without one, you may want to investigate the laws of your state before making a decision. If you are pretty sure you want a prenup and your discomfort comes from fear of starting an argument or offending your fiance, then you might take this as an opportunity to practice talking about difficult matters in a loving way. You may even find it helpful to work on communication and negotiation skills with a counselor who specializes in premarital counseling. The same is true if you don't think you want a prenup and you feel that your fiance is pressuring you to make one. This is a good time to practice communicating -- clearly and kindly -- about stressful issues. Whether or not you eventually make a prenup, you're sure to learn more about what you each need and want.

If you scored a three, four, or five on the comfort scale, you are ready to start talking specifics with your fiance. Even so, bear in mind that every good conversation involves some give or take. Don't assume that you and your fiance will see eye-to-eye on everything, especially when you first start talking. Allow plenty of time to talk -- and be willing to get help if you need it.

Copyright © 2006 Nolo

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Learn some of the legal and practical ways that getting married changes your life.

Whether or not you favor marriage as a social institution, there's no denying that it confers many rights, protections, and benefits -- both legal and practical. Some of these vary from state to state, but the list typically includes:

Tax Benefits

• Filing joint income tax returns with the IRS and state taxing authorities.
• Creating a "family partnership" under federal tax laws, which allows you to divide business income among family members.

Estate Planning Benefits

• Inheriting a share of your spouse's estate.
• Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
• Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
• Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse?��Ǩ�Ѣs behalf.

Government Benefits

• Receiving Social Security, Medicare, and disability benefits for spouses.
• Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.
• Receiving public assistance benefits.

Employment Benefits

• Obtaining insurance benefits through a spouse's employer.
• Taking family leave to care for your spouse during an illness.
• Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.
• Taking bereavement leave if your spouse or one of your spouse?��Ǩ�Ѣs close relatives dies.

Medical Benefits

• Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
• Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Death Benefits

• Consenting to after-death examinations and procedures.
• Making burial or other final arrangements.

Family Benefits

• Filing for stepparent or joint adoption.
• Applying for joint foster care rights.
• Receiving equitable division of property if you divorce.
• Receiving spousal or child support, child custody, and visitation if you divorce.

Housing Benefits

• Living in neighborhoods zoned for "families only."
• Automatically renewing leases signed by your spouse.

Consumer Benefits

• Receiving family rates for health, homeowners', auto, and other types of insurance.
• Receiving tuition discounts and permission to use school facilities.
• Other consumer discounts and incentives offered only to married couples or families.

Other Legal Benefits and Protections

• Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
• Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
• Claiming the marital communications privilege, which means a court can?��Ǩ�Ѣt force you to disclose the contents of confidential communications between you and your spouse during your marriage.
• Receiving crime victims' recovery benefits if your spouse is the victim of a crime.
• Obtaining domestic violence protection orders.
• Obtaining immigration and residency benefits for noncitizen spouse.
• Visiting rights in jails and other places where visitors are restricted to immediate family.

• Copyright © 2006 Nolo

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If you have children, you should choose a personal guardian -- someone to raise them in the unlikely event you can't.

If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the extremely unlikely event you can't raise your kids, they will be well cared for.

All you need to do is use your will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if a court ever needs to step in and appoint a guardian, the judge will appoint the person you nominated in your will -- unless it is not in the best interests of your children for some reason.

If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.

Naming a Personal Guardian

You should name one personal guardian (and one alternate, in case your first choice can't serve) for each of your children. Legally, you may name more than one guardian, but it's generally not a good idea because of the possibility that the co-guardians will later disagree.

Here are some factors to consider when choosing a personal guardian:

• Is the prospective guardian old enough? (You must choose an adult -- 18 years old in most states.)
• Does the prospective guardian have a genuine concern for your children's welfare?
• Is the prospective guardian physically able to handle the job?
• Does he or she have the time?
• Does he or she have kids of an age close to that of your children?
• Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?
• Does the prospective guardian share your moral beliefs?
• Would your children have to move?

If you're having a hard time choosing someone, take some time to talk with the person you're considering. One or more of your candidates may not be willing or able to accept the responsibility, or their feelings about acting as guardian may help you decide.

Choosing Different Guardians for Different Children

Most people want their children to stay together; if you do, name the same personal guardian for all of your kids.

You can, however, name different personal guardians for different children. Parents may do this, for example, if their children are not close in age and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. Or, if you have children from different marriages, they may be close to different adults. In every situation, you want to choose the personal guardian you believe would be best able to care for each child.

Choosing a Different Person to Watch the Checkbook

Some parents name one person to be the children's personal guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money.

For example, you might feel that your brother-in-law would provide the most stable, loving home for your kids, but not have much faith in his abilities as a financial manager. Perhaps you have a close friend who cares about your kids and would be better at dealing with the economic aspects of bringing them up. Provided that your brother-in-law and your friend agree, you can name one as personal guardian and the other as custodian or trustee to manage your children's inheritance.

If You and the Other Parent Can't Agree

When you and your child's other parent make your wills, you should name the same person as personal guardian. If you don't agree on whom to name, there could be a court fight if both of you die while the child is still a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what's in the best interests of your child.

Again, talk with the people you'd each like to name. Candid discussions with your potential guardians may bring new information to light and help you reach an agreement.

If You Don't Want the Other Parent to Raise Your Child

If one of a child's parents dies, the other parent usually takes responsibility for raising the child. This, of course, is what most people want.

If you are separated or divorced, however, you may feel strongly that the child's other parent shouldn't have custody if something should happen to you. But a judge will grant custody to someone else only if the surviving parent:

• has legally abandoned the child by not providing for or visiting the child for an extended period, or
• is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, unless he or she has serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.

If you honestly believe the other parent is incapable of caring for your children properly, or simply won't assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge may take it into account. Judges are always required to act in the child's best interests. In choosing a guardian, a judge commonly considers a number of factors; you may want to address them if you write a letter explaining your choice for personal guardian. Here are the big ones:

• the child's preference, to the extent it can be ascertained
• who will provide the greatest stability and continuity of care
• who will best meet the child's needs
• the relationships between the child and the adults being considered for guardian, and
• the moral fitness and conduct of the proposed guardians.

Making Your Wishes Known to the Guardian

Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from religious teachings to what college you'd like a particular child to attend.

One option is to write a letter to the personal guardian, outlining thoughts and feelings about how the children should be raised. Try not to put in too much detail, though; it could cause your nominee much guilt and frustration later if unexpected circumstances thwart his or her attempts to carry out your plans to the letter.

The best guarantee of an upbringing you would approve of is simply to choose someone who knows you and your children well, and whom you trust to navigate life's complexities on your children's behalf.

Copyright © 2006 Nolo

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Advice for single people, married couples, domestic partners, and lesbians and gay men.

As a general rule, any adult who is considered a "fit parent" may adopt a child, but some states have special requirements for adoptive parents. In a few states, adoptive parents must be a certain number of years older than the child. In others, adoptive parents must be state residents for a specified length of time before they are allowed to adopt. If you're adopting through an agency, you may also have to meet additional agency requirements, which are often stricter than state laws.

In addition, some individuals or couples are likely to have more difficulty adopting than others. For instance, a single man or a lesbian couple may have a harder time finding a placement than a married heterosexual couple will, even though technically they should be able to adopt. This happens because all states look to the "best interests of the child" when making a placement determination. Many state courts or agencies will use the "best interests" argument to judge a prospective adoptive parent or couple according to preconceived biases about who makes a good or a fit parent. And sometimes birth parents who are placing their children with an agency for adoption have some of the same biases. Below we discuss the issues or roadblocks some folks are likely to run into.

Different Race or Ethnic Background

You do not need to be the same race as the child you want to adopt, but some states do give preference to prospective adoptive parents of the same race or ethnic background of the child. Adoptions of Native American children are governed by a federal law -- the Indian Child Welfare Act -- that outlines specific rules and procedures that must be followed when adopting a Native American child.

Lesbians and Gay Men

Only Florida and Utah specifically prohibit lesbians and gay men from adopting children, but that doesn't mean it's easy to adopt in other states. Even if sexual orientation is not specifically mentioned in a state adoption statute, it can become an issue in court. Some judges will use it to find a prospective adoptive parent to be unfit.

In addition, in some states it is difficult for a lesbian or gay person or couple to find an agency that will work with them.

On the other hand, gay men and lesbians all over the country do adopt children, and an increasing number of states are allowing gay and lesbian couples to adopt jointly. However, lesbians and gay men will need an experienced attorney to handle an adoption. Do your homework: The National Center for Lesbian Rights provides information for gay men and lesbians who want to adopt.

Single People

As a single person you may have to wait longer for a placement or be flexible about the child you adopt. Agencies often "reserve" healthy infants and younger children for two-parent families, putting single people at the bottom of their waiting lists. And birth parents themselves often want their children to be placed in a two-parent home.

If you're a single person wishing to adopt, you should be prepared to make a good case for your fitness as a parent. You can expect case workers to ask why you haven't married, how you plan to support and care for the child on your own, what will happen if you do marry, and other questions that will put you in the position of defending your status as a single person. To many single adoptive parents such rigorous screening doesn't seem fair, but it is commonplace.

Agencies serving children with special needs may be a good option for singles, because they often cast a wider net when considering adoptive parents. Being flexible about your choices will make it easier to overcome the resistance to single-parent adoptions.

Domestic Partners

There is no specific prohibition against unmarried couples' adopting children (sometimes called a two-parent adoption). Like singles, however, you may find that agencies are biased towards married couples. You may have a longer wait for a child, or you may have to expand your ideas about the child you are willing to adopt.

Copyright © 2006 Nolo

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In a stepparent adoption you need to get the consent of the birth parent or have the birth parent's rights terminated.

In most states, a stepparent adoption is much easier to complete than a non-relative adoption. The procedure is generally the same as for other types of adoption, but specific steps are sometimes waived or streamlined. For instance, the waiting period, a home study, and even the adoption hearing are sometimes dispensed with in a stepparent adoption. The only difficult step may be getting the other birth parent to consent to the adoption.

Getting Consent

In all stepparent adoptions, the child's other birth parent will need to consent to the adoption because he or she is the other legally recognized parent. If the other birth parent refuses to consent, the adoption will not be allowed unless his or her parental rights are terminated for some other reason -- abandonment, unfitness, or failure to support the child, for example.

It may be difficult to get the consent of the other birth parent, because giving consent to the adoption means giving up all parental rights, including any right to visit the child or make decisions regarding issues such as medical treatment or education. Of course, some birth parents are willing to consent to stepparent adoptions because they agree that it's in the child's interest--or because they will no longer be responsible for child support once their parental rights are terminated.

Emotional Issues

Stepparent adoptions can be complicated when the non-custodial biological parent is still alive and in contact with the child. There may be no legal reason why the adoption cannot take place, but the emotional impact of the adoption also needs to be considered.
The impact on the child should be of primary importance. If an adoption will bring stability to your new family and help your child feel more secure, it may be the right choice. But no matter how well your child gets along with a stepparent, the child may still feel conflicting loyalties between his or her stepparent and birth parent, and this may be hard to handle. Generally speaking, the less contact a child has with the other birth parent, the more sense it makes for an adoption to take place.

Terminating Parental Rights

If the other birth parent refuses to give consent or is out of the picture and cannot be found, there are a few specific ways to proceed with a stepparent adoption.

Proving the absent parent has abandoned the child. First, it is possible to go forward without a biological parent's consent if you can prove that the absent parent has not exercised any parental rights and if you can convince the court that it's appropriate to legally terminate that parent-child relationship. Most states' laws allow parental rights to be terminated when a parent has willfully failed to support the child or has abandoned the child for a period of time, usually a year. Generally, abandonment means that the absent parent hasn't communicated with the child or supported the child financially.

Proving the absent parent is not the presumed father. If the absent parent is male, another common way to terminate his parental rights is to show that he is not, legally speaking, the presumed father of the child. Most states have statutes establishing who the presumed father of a child is in certain situations. In this case, you won't have to prove that the father has abandoned the child. You simply must show that he does not meet the legal definition of presumed father. For instance, in all states, a man who is married to a woman at the time she gives birth is legally presumed to be the child's father. Another way of establishing presumed fatherhood in many states is by marrying the mother after the child has been born and being named as the father on the child's birth certificate.

If you can show that the father doesn't meet any of the tests in your state for presumed fatherhood, the court may terminate his rights and allow you to proceed without his consent. (If, however, the father meets one of the state's tests for presumed fatherhood, you'll need either to obtain the father's consent to the adoption, or to have his rights terminated by proving abandonment, willful failure to support the child, or parental unfitness.)

Domestic Partners and Stepparent Adoptions

In a few states, stepparent adoption procedures are used in adoptions by same-sex partners. For example, in California, registered domestic partners may adopt their partners' children using stepparent procedures instead of the more cumbersome independent adoption procedures that were previously required. And in Massachusetts, where same-sex couples can marry, same-sex spouses can also use stepparent adoption procedures.

Copyright © 2006 Nolo

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The advantages and disadvantages of skipping the agency when you adopt a child.

Independent adoptions are attractive to birth parents and prospective adoptive parents because they allow the people involved to keep control over the adoption process. However, there are risks and costs involved in independent adoptions that don't come with agency adoptions, as well as more work for the adoptive parents.

Advantages of Independent Adoptions

Many adoptive parents are reassured by knowing the birth parents personally and dealing with them directly, instead of being afraid that their adoption may fall apart before it is completed. Rather than relying on an agency as a go-between, the birth parent and adoptive parents can meet, get to know each other, and decide for themselves whether to go ahead with the adoption. Independent adoptions also avoid the long waiting lists and restrictive qualifying criteria that can be part of agency adoptions. And independent adoptions usually happen much faster than agency adoptions, often within a year of beginning the search for a child. Finally, independent adoptions can be less expensive than using an agency -- although the adoptive parents will have many of the same costs, like paying the birthmother's expenses, they will save the agency fees.

Disadvantages of Independent Adoptions

Many states place significant restrictions on independent adoptions. For example, states may prohibit adoptive parents from advertising for a birth mother, or limit the amount of money adoptive parents can contribute to the birth mother's prenatal care and medical expenses.

Another concern is that birth parents might not receive adequate counseling during the adoption process. States differ quite a bit on how much counseling they require birth parents to have before making their final decision to give up a child for adoption. If the birth parents do not get the required amount of counseling, this may make your adoption agreement vulnerable.

Some states extend the period during which birth parents may revoke their consent in independent adoptions -- making it longer than for agency adoptions -- and this places your adoption agreement at additional risk. If the agreement does fall apart, the prospective adoptive parents can lose significant investments of time and money without any recourse -- in addition to the heartbreak of losing the child they hoped for.

Even when they are successful -- and they do succeed quite often -- independent adoptions are a lot of work, even with a lawyer's help, which is almost always necessary. Adoptive parents often spend enormous amounts of time and money just finding a birth mother, not to mention the efforts required to follow through and bring the adoption to a close.

Check the legality of independent adoptions in your state. In a few states -- Connecticut, Delaware, Massachusetts, and Minnesota -- independent adoptions are illegal, although in these states it is possible to do an agency-directed adoption after you have identified birth parents. Be sure to check your state laws before you proceed.

The Costs of an Independent Adoption

Because each situation is unique, fees for independent adoptions vary widely. Prospective adoptive parents must generally cover the costs of finding a birthmother, the costs related to the pregnancy and birth, and the costs involved in the legal adoption process. Items such as hospital bills, travel expenses, phone bills, home study costs, attorneys' fees and court costs can often surpass $10,000. Some states allow the birthmother's living expenses during the pregnancy to be covered as well. (Usually, most of these expenses are subject to a federal adoption tax credit.)

All states allow adoptive parents to pay certain "reasonable" costs that are specifically related to the adoption process. Because it is illegal in any state to buy or sell a baby, each state has its own laws defining which expenses may be paid by adoptive parents in any kind of adoption proceeding -- agency or independent. If you pursue an independent adoption, you must adhere to these laws when you give any money to the birthmother. Most states allow the adoptive parents to pay the birthmother's medical expenses, counseling costs, and attorney's fees. Some states also allow payments to cover the birth mother's living expenses such as food, housing, and transportation during pregnancy.

Most states require all payments to be itemized and approved by a court before the adoption is finalized. Be sure to know and understand your state's laws, because providing or accepting prohibited financial support may subject you to criminal charges. And the adoption itself may be jeopardized if you make improper payments.

Open Adoptions

An open adoption is one in which the birth parents and the adoptive parents meet and get to know each other before the adoption, and, usually, in which the parties all come to an agreement about the birth parents having some degree of contact with the child after the adoption is finalized.

There is no one standard for open adoptions; each family works out an arrangement that works well for them. Some adoptive parents want to meet the birth parents just once before the birth of the child, while others form ongoing relationships. In some agreements contact is limited to the adoptive parents sending photographs on the child's birthdays, and in others the parties agree to regular visits between the birth parents and the child. (Although these visitation agreements are often part of the legal proceedings for the adoption, they are not enforceable by a court. If the adoptive parents don't keep up their part of the bargain, there's not much the birth parents can do.)

Open adoptions can help reduce stress and worry by eliminating the fear of the unknown. Adoptive parents are reassured by knowing the birth parents personally instead of being afraid that one day a stranger will come knocking on their door to meet their child. This openness can be beneficial to the child as well, who will grow up with fewer questions and misconceptions than a child of a closed adoption might have.

Copyright © 2006 Nolo

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The procedures and costs involved when you adopt a child through an agency.

Using an agency to manage your adoption can be helpful for a number of reasons. Agencies are experienced in finding children, matching them with parents, and satisfying the necessary legal requirements. Agencies will help adoptive parents with everything from finding a birth parent to finalizing the adoption papers. An agency will take care of many of the crucial elements of the adoption, such as conducting the home study, obtaining the necessary consents, and advising them on any specific state requirements.

Private vs. Public Agencies

The key advantage of a private agency adoption is the extensive counseling that agencies provide. Typically, counseling is available for adoptive parents, birth parents, and the children (if they are older). Careful counseling can help everyone involved weather the emotional, practical, and legal complexities that can arise throughout the adoption process. And it's particularly important for the protection is provides the adoptive parents. A birth parent who receives appropriate counseling early in the process is less likely to change her mind when it comes time to sign the actual consent forms after the baby's birth.

On the down side, private agencies are often extremely selective when choosing adoptive parents. This is because they have a surplus of people who want to adopt and a limited number of available children. Agencies weed out parents based on age, marital status, income, health, religion, sexual orientation, family size, and personal history (including criminal conduct).

Public agencies have many children ready to be adopted, but they are often older or special-needs children. If you want a newborn or an infant, a public agency may not be able to help you. And public agencies generally do not provide the many other services, such as much-needed counseling, that private agencies offer. Of course, along with offering fewer services, public agencies come at a much lower cost. It may cost you next to nothing to adopt through a public agency (and the agency may even provide a small stipend during the adoption process), whereas a private agency adoption will cost many thousands of dollars.

Even if you do use an agency, you will probably need to hire a lawyer to draft the adoption petition and to represent you at the hearing. Although there is no legal requirement that a lawyer be involved in an adoption, the process can be quite complex and should be handled by someone with experience and expertise. When seeking a lawyer, find out how many adoptions he or she has handled, and whether any of them were contested or developed other complications.

Cost of Agency Adoptions

Private agencies charge fees to cover the birth mother's expenses as allowed by state law; these expenses may include medical costs, living expenses during the pregnancy, and counseling. Add to this the agency's staff salaries and overhead -- and charges can mount up quickly.

Many agencies charge a flat fee for adoptions, while others add the birth mother's expenses to a fixed rate for the agency's services. Some agencies use a sliding scale that varies with adoptive parents' income levels, usually with a set minimum and maximum fee. You can expect to pay between $1,000 and $6,000 to adopt a young child, and $10,000 or more to adopt a newborn. Some agencies charge a lower rate for handling special needs adoptions.

Public agencies generally do not charge fees for placing children in adoptive homes.

Even if you use an agency, you may need to hire a lawyer to draft the adoption petition and to represent you at the adoption hearing. Although there is no legal requirement that a lawyer be involved in an adoption, the process can be quite complex. Attorney fees, of course, add to the cost of the adoption.

Waiting Periods

Agencies sometimes wait to place a child in an adoptive home until all necessary consents have been given and are finalized. Because of this, a child may be placed in foster care for a few days or weeks, depending on the situation and the state's law. The lag-time concerns many adoptive parents who want their child to have a secure, stable home as soon as possible. Some agencies get around this by placing infants immediately through a type of adoption known as a "legal risk placement." The risk is that the birth mother may decide she wants her child back before her rights have been legally terminated -- then the adoptive parents will have to let the child go.

Finding an Adoption Agency

There are an estimated 3,000 adoption agencies in the United States, public and private. If you live in a state like California or New York, you'll have more options than if you live in a less populated state. But wherever you live, you'll probably have to do some searching to find an agency that meets your needs and is able to work with you. You can contact a national adoption organization for referrals to get you started. One place to start is the National Adoption Information Clearinghouse. Also, talk to anyone you know who has adopted children -- personal referrals are often the best way to find a good agency.

When considering an agency, check out the agency's reputation and accreditation. Start with the licensing department of your state. It can tell you whether the agency has been cited for licensing violations and whether the licensing office has received any complaints about the agency. You can request a copy of the state rules governing adoption agencies so that you understand the standards your agency must follow. Your state department of social services or your state or local department of consumer affairs may also be able to give you information about the agency.

International Adoptions

You can adopt a foreign child through an American agency that specializes in international adoptions. (You can adopt directly, but most people use an agency since because direct adoption from an international country can be very difficult and the risk of problems is high.) An agency will know the U.S. immigration laws and the laws of the country of the child, as well as the adoption laws of your state.

U.S. immigration laws require that prospective adoptive parents be married or, if single, at least 25 years old. The adoptive parents must file an Orphan Petition (Form I-600) with the agency now known as U.S. Citizenship and Immigration Services (USCIS, formerly called the INS), to show that the child's parents have died, disappeared, or abandoned the child, or that one remaining parent is not able to care for the child and consents to the child's adoption and immigration to the U.S. If there are two known parents, the child will not qualify as an orphan under any circumstances.

Along with the Orphan Petition, you will need to submit a number of other documents, including a favorable home study report from the agency you choose. If USCIS approves the petition, and there are no disqualifying factors such as a communicable disease, the child can be issued an immigrant visa.

Much of the paperwork for an international adoption can be completed even before you have identified a specific child to adopt. Advance preparation is a valuable option because the paperwork often takes a long time to process, and may hold up the child's arrival in the U.S. even after all foreign requirements have been met.

Finally, be sure you check your own state laws for any preadoption requirements. Some states, for instance, require you to submit the written consent of the birth mother before they approve the entry of the child into the state. Some experts recommend that parents who adopt overseas readopt the child in their own state in order to make sure that the adoption fully conforms to state law, and in order to get a birth certificate that is in English. Sometimes, readoption is a legal necessity -- required either by the state in which you live, or by the country in which you adopted.

No foreign countries allow the adoption of children by openly gay or lesbian parents. Nonetheless, many lesbian and gay parents adopt children through international adoption procedures, keeping their sexual orientation a secret from the foreign country.

Copyright © 2006 Nolo

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Learn about types of adoption, rules about consent, and how a home study works.

Types of Adoption

There are quite a few different ways to bring a child into your life, or confirm your legal relationship with one, through adoption. Here?��Ǩ�Ѣs the lowdown on the different ways that adoption can work.

Agency Adoptions

Agency adoptions involve the placement of a child with adoptive parents by a public agency, or by a private agency licensed or regulated by the state.

Public agencies generally place children who have become wards of the state for reasons such as orphanage, abandonment, or abuse. Private agencies are sometimes run by charities or social service organizations. Children placed through private agencies are usually brought to the agency by a parent or parents who have or are expecting a child they want to give up for adoption.

Independent Adoptions

In a private, or independent, adoption, no agency is involved in the adoption. Some independent adoptions involve a direct arrangement between the birth parents and the adoptive parents, while others use an intermediary such as an attorney, doctor, or clergyperson. But for most independent adoptions, whether or not an intermediary is used, an attorney will be needed to take care of the court paperwork.

Most states allow independent adoptions, though many regulate them quite carefully. Independent adoptions are not allowed in Connecticut, Delaware, or Massachusetts.

An "open adoption" is an independent adoption in which the adoptive parents and birth parents have contact during the gestation period and the new parents agree to maintain some contact with the birth parents after the adoption, through letters, photos, or in-person visits.

Identified Adoptions

An identified, or designated, adoption is one in which the adopting parents and the birth mother find each other and then ask an adoption agency to take over the rest of the adoption process. The process is a hybrid of an independent and an agency adoption.

Prospective adoptive parents are spared the waiting lists of agencies by finding the birth parent themselves, but they reap the benefits of the agency's experience with adoption legalities and its counseling services. Everyone may simply feel more comfortable if an agency is involved. Identified adoptions are available to parents in the states (Connecticut, Delaware, and Massachusetts) that ban independent adoptions.

International Adoptions

In an international adoption, the new parents adopt a child who is a citizen of a foreign country. In addition to satisfying the adoption requirements of both the foreign country and the parents' home state in the U.S., the parents must obtain an immigrant visa for the child through U.S. Citizenship and Immigration Services (USCIS, formerly called the INS). The child will be granted U.S. citizenship automatically upon entering the United States.

Many countries with children available for adoption will not permit adoption by openly gay or lesbian parents; some countries, like China, require the adopting parent to sign an affidavit that he or she is heterosexual. Despite this, many gay and lesbian adoptive parents have successfully completed international adoptions as single parents, with their partners later becoming legal parents through second parent or stepparent adoptions in the United States.

You can adopt a foreign child through an American agency that specializes in international adoptions -- or you can adopt directly. Most people use an agency, because direct adoption can be difficult.

Stepparent Adoptions

In a stepparent adoption, a parent's new spouse adopts a child the parent had with a previous partner. Stepparent adoption procedures are less cumbersome than agency or independent adoption procedures. The process is quite simple, especially if the child's other birth parent consents to the adoption. If the other birth parent cannot be found or if he or she refuses to consent to the adoption, there is more paperwork to do and the adoptive parents may need an attorney.

Domestic Partner Adoptions

In California, a new law allows a same-sex domestic partner to adopt the children of his or her partner under stepparent adoption procedures, so that the process is relatively quick and easy. The parties must be registered as domestic partners with the state in order to qualify for these procedures. Similar procedures are used in Vermont for partners in civil unions.

Relative (Kinship) Adoptions

In a relative adoption, also called a kinship adoption, a member of the child's family steps forward to adopt. Grandparents often adopt their grandchildren if the parents die while the children are minors, or if the parents are unable to take care of the children for other reasons (such as being in jail or on drugs). In most states, these adoptions are easier than non-relative adoptions. If the adopted child has siblings who are not adopted at the same time, kinship adoption procedures usually provide for contact between the siblings after the adoption.

Consent to Adoption

For any adoption to be legal, the birth parents must consent to the adoption (unless their parental rights have been legally terminated for some other reason, such as unfitness).

Most states won?��Ǩ�Ѣt let birth parents consent to an adoption until after the child is born, and some states require even more time -- typically three to four days after the birth -- before the parents can sign a consent form. This means that birth parents can legally change their minds about adoption at any point before the birth of the child, because they haven't yet given their consent to the adoption. Be sure to check your state's laws. States differ widely on when birth parents can consent and when the consent becomes final.

Even after the birth parents have given their consent and the child has been placed in the adoptive home, many states give birth parents a specified period of time to revoke their consent -- in other words, to change their minds about the adoption. In some states this period can be as long as three months -- a nerve-wracking time period for the adoptive parents who have begun to care for the child.

This is one of the reasons why birth parents in some states must undergo counseling before giving their consent -- their intention to go through with the adoption is explored at an early stage, in the hopes of reducing the likelihood of a change of heart later.

Investigation of Adoptive Parents: The Home Study

All states require adoptive parents to undergo an investigation to make sure that they are fit to raise a child. This investigation is called a home study. Typically, the study is conducted by a state agency or a licensed social worker who examines the adoptive parents' home life and prepares a report that the court will review before allowing the adoption to take place. The social worker makes a recommendation about whether the adoption should be approved, but a court always makes the final decision.

The social worker will commonly ask about a number of areas considered important to the adoptive parents?��Ǩ�Ѣ ability to raise a child:

• financial stability
• marital stability
• lifestyles
• other children
• career obligations
• physical and mental health, and
• criminal history.

In recent years, the home study has become more than just a method of investigating prospective parents: It serves to educate and inform them as well. The social worker helps to prepare the adoptive parents by discussing issues such as how and when to talk with the child about being adopted, and how to deal with the reaction that friends and family might have to the adoption.

If the social worker ends up writing a negative report that claims the adoption isn't in the child's best interests, you may contest the conclusion. Each state has different appeal procedures. Some states provide for a separate procedure, while other states make the appeal part of the adoption hearing.

Court Process

All adoptions, whether handled by an agency or done independently, must be approved by a court. The adoptive parents must file an adoption petition -- basically a request for approval -- with the court and go through an adoption hearing.

Notice

Before the adoption hearing, anyone who is required to consent to the adoption must receive notice. Usually this includes the biological parents, the adoption agency, the child's legal representative if a court has appointed one and the child himself if he is old enough (12 to 14 years old in most states). States vary on the particular notice requirements, so check your state's laws.

Adoption Petition

A standard adoption petition will generally include this basic information:

• the names, ages, and residence address of the adoptive parents
• the name, age, and legal parentage of the child to be adopted
• the relationship between the adoptive parents and the child to be adopted, such as blood relative or stepparent
• the legal reason that the birthparents' rights are being terminated (the reason usually being that they consented to the termination)
• a statement that the adoptive parents are the appropriate people to adopt the child, and
• a statement that the adoption is in the child's best interests.

The written consents of the birthparents or the court order terminating their parental rights may be filed along with the petition. Adoptive parents also often include a request for an official name change for the child.

Adoption Hearing and Order

At the adoption hearing, if the court determines that the adoption is in the child's best interest, the judge will issue an order approving and finalizing the adoption. This order, often called a final decree of adoption, legalizes the new parent-child relationship, and usually changes the child's name to the name the adoptive parents have chosen.

Lawyer Involvement

If you do not use an agency in your adoption, you will definitely need to hire a lawyer experienced in adoptions. Even if you do use an agency, you may need to hire a lawyer to draft the adoption petition and to represent you at the hearing. Although there is no legal requirement that a lawyer be involved in an adoption, the process can be quite complex and should be handled by someone with experience and expertise. When seeking a lawyer, find out how many adoptions he or she has handled, and whether any of them were contested or developed other complications.

Copyright © 2006 Nolo

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QUESTION:

My fiancée has asked about putting her name on the deed to my house after we get married. I don't want to do that in case things don't work out and we divorce. But I've heard that when I marry all of my assets automatically become half hers, anyway. I should say that I will be the only one paying for the mortgage and home improvements. What does the law say, and will a premarital agreement remedy the situation?

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Understand what you can accomplish by making a prenuptial contract before you marry.

If you're trying to decide whether or not to make a prenuptial agreement, you'll need to understand what this type of contract can -- and can't -- do for you.

What You Can Do With a Prenup

Prenuptial agreements are most often used for the following puposes:

Keep finances separate. Every state has laws designating certain kinds of assets accumulated during marriage as marital property or community property, even if these assets are held in the name of just one spouse. If a couple divorces, or when one spouse dies, the marital or community property will be divided between them, either by agreement or by a court. If you want to avoid having some or all of your individual accumulations during marriage divided up by a court, you can do so with a premarital agreement.

Protect each other from debts. Some of us bring debts, as well as assets, to a marriage. If there's no prenup, creditors can sometimes turn to marital or community property to satisfy the debts of just one spouse. But if you want to make sure that saying "I do" does not mean saying "I owe," you can use a prenup to limit your liability for each other's debts.

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A divorce obtained in a different state or country from the place where one spouse resides at the time of the divorce. As a general rule, foreign divorces are recognized as valid if the spouse requesting the divorce became a resident of the state or country granting the divorce, and if both parties consented to the jurisdiction of the foreign court. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the nonconsenting spouse later acts as if the foreign divorce were valid, for example, by remarrying.

Copyright © 2005 Nolo

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A situation in which the partners in a married couple live apart. Spouses are said to be living apart if they no longer reside in the same dwelling, even though they may continue their relationship. A legal separation results when the parties separate and a court rules on the division of property, such as alimony or child support -- but does not grant a divorce.

Copyright © 2005 Nolo

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Learn when divorce mediation is likely to succeed -- and when it might not.

Even if you (or your spouse) don't feel ready to mediate, when you consider the financial and emotional costs of a contested divorce, you might want to give mediation a try. But before you do, consider your relationship with your spouse. You are most likely to have a successful mediation experience if all or most of the following statements are true.

The Decision to Divorce Is Mutual

Sometimes, the decision to divorce is mutual. Both spouses come to the conclusion, more or less at the same time, that the marriage is over. For other couples, the decision is more one-sided. One spouse decides that a divorce is necessary, while the other spouse is unprepared for, and perhaps opposed to, the idea of getting divorced.

When the decision to divorce is mutual, spouses usually find it easier to begin working together on a settlement in mediation than they would if one spouse initiates the divorce. Where one spouse makes the decision, it is natural for the other to resist cooperating with any requests to move along in the process, including a request to mediate. This usually changes with the passage of time, so factor timing into your assessment of your readiness. If the divorce was more one person's decision than the other's, more time may be needed before you begin mediating.

You Have No Desire to Reconcile

If you and your spouse have accepted (however reluctantly) the reality of your separation's being permanent, and if neither one of you has an overwhelming desire to reconcile, then the odds are that each of you has reached an emotional point in the divorce when mediation can be productive. This doesn't mean you must rule out the possibility of reconciliation. But you do have to be ready to focus on what happens if you and your spouse don't get back together.

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Any divorce in which the spouse who wants to split up does not have to accuse the other of wrongdoing, but can simply state that the couple no longer gets along. Until no-fault divorce arrived in the 1970s, the only way a person could get a divorce was to prove that the other spouse was at fault for the marriage not working. No-fault divorces are usually granted for reasons such as incompatibility, irreconcilable differences, or irretrievable or irremediable breakdown of the marriage.

Copyright © 2005 Nolo

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A conflict in personalities that makes married life together impossible. In a number of states, incompatibility is the accepted reason for a no-fault divorce.

Copyright © 2005 Nolo

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The act of freeing someone from restraint or bondage. For example, on January 1, 1863, slaves in the confederate states were declared free by an executive order of President Lincoln, known as the "Emancipation Proclamation." After the Civil War, this emancipation was extended to the entire country and made law by the ratification of the thirteenth amendment to the Constitution. Nowadays, emancipation refers to the point at which a child is free from parental control. It occurs when the child's parents no longer perform their parental duties and surrender their rights to the care, custody and earnings of their minor child. Emancipation may be the result of a voluntary agreement between the parents and child, or it may be implied from their acts and ongoing conduct. For example, a child who leaves her parents' home and becomes entirely self-supporting without their objection is considered emancipated, while a child who goes to stay with a friend or relative and gets a part-time job is not. Emancipation may also occur when a minor child marries or enters the military.

Copyright © 2005 Nolo

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Like a divorce, an annulment is a court procedure that dissolves a marriage. But, unlike a divorce, an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce.

Grounds for annulment vary slightly from state to state. Generally, an annulment requires that at least one of the following reasons exists:

•Misrepresentation or fraud -- for example, a spouse lied about the capacity to have children, falsely stated that she had reached the age of consent, or failed to say that she was still married to someone else.

•Concealment -- for example, concealing an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease, or impotency.

•Refusal or inability to consummate the marriage -- that is, refusal or inability of a spouse to have sexual intercourse with the other spouse.

•Misunderstanding -- for example, one person wanted children and the other did not.

These are the grounds for civil annulments. Within the Roman Catholic Church, a couple may obtain a religious annulment after obtaining a civil divorce, so that one or both people may remarry, within the church or anywhere else, and have the second union recognized by the church.

Most annulments take place after a marriage of a very short duration -- a few weeks or months -- so there are usually no assets or debts to divide, or children for whom custody, visitation, and child support are a concern. When a long-term marriage is annulled, however, most states have provisions for dividing property and debts, as well as determining custody, visitation, child support, and alimony. Children of an annulled marriage are not considered illegitimate.

Copyright © 2005 Nolo

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A divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.

Copyright © 2005 Nolo

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Learn about tax breaks available to most parents.

New parents often find themselves overwhelmed by the expenses that come with a baby. From nursery furnishings to "onesies" to countless diapers, your little bundle of joy is going to cost you, well, a bundle. Fortunately, the federal government offers a number of tax breaks to offset the cost of raising a child. Here you'll learn about two tax breaks for which most parents qualify: the dependent exemption and the child tax credit.

The Dependent Exemption

You might be surprised to learn that the IRS does not tax every single dollar that you earn. Instead, the IRS gives you a very modest tax exemption ($3,200 per person in 2005) to cover your basic living expenses. Single people can take one exemption for themselves. Married couples can take two exemptions (one for each of them).

When you add a new child to your family, you can add one more exemption to your income taxes -- called a "dependent exemption." This means that you get an additional tax deduction of more than $3,000 every year until your child turns 19 -- a nice baby gift from Uncle Sam!

In terms of actual tax savings, the amount you save with the dependent exemption depends on your tax bracket. The higher your tax bracket, the more savings you get -- unless your income is so high that you cannot claim the exemption at all (see below). For example, if you were in the 10% tax bracket, you would save about $320 per child with the dependent exemption in 2005. But if you were in the 25% tax bracket, the dependent exemption would save you $800 per child.

Like many tax breaks, however, the dependent exemption is phased out for higher earning families. For the 2004 tax year, for example, married couples filing jointly could not claim the dependent exemption at all if their adjusted gross income was more than $336,550, and they lost a portion of their dependent exemption if their adjusted gross income exceeded $214,050.

If you qualify for the dependent exemption, claiming it on your tax return is easy. Simply complete line 6C of Form 1040 or Form 1040A, making sure to provide a Social Security number or Adoption Taxpayer Identification Number for your child in column 2. (See Social Security Numbers and Why Your Baby Needs One.) Also be certain to complete line 41 of your Form 1040 or line 26 of your Form 1040A.

The Child Tax Credit

The dependent exemption is not the only tax break that parents can claim. Provided that your income is below a certain limit ($130,000 for married couples filing jointly in 2004), you can also claim the child tax credit. The child tax credit trims your tax bill by $1,000 per child. Because it is a credit, and not a deduction, the child tax credit gives you $1,000 back in your pocket for every child that you have.

To determine the amount of the child tax credit you can claim, complete the child tax credit worksheet contained in IRS Publication 972, Child Tax Credit. (You can download this publication for free from the IRS website at www.irs.gov.) Then enter the amount of your child tax credit on your tax return (line 51 of Form 1040 or line 33 of Form 1040A). Also complete line 6C of Form 1040 or Form 1040A and provide a Social Security number or Adoption Taxpayer Identification Number for each child. Finally, check the box in column 4 of line 6c for each child for whom you are claiming the child tax credit.

Copyright © 2005 Nolo

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QUESTION:

I am nursing my four-month-old daughter, and I am concerned about breastfeeding in public places such as shopping malls, parks, or restaurants. Does the law require me to cover up when I breastfeed in public?

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Learn stragegies for balancing work and family.

If you are having trouble balancing work with a new baby, you are not alone. Most new parents find their schedules and their energy overburdened by the competing needs of their jobs and their families.

One of the best strategies for balancing work and family is to adjust your schedule. If you want to stay home with your baby while keeping a foot in your career, perhaps you can work part time or job share until your child starts school. If you are a nursing mother, maybe you can work from home so that you can continue to breastfeed. Or if you want to work but don’t want anyone other than a parent to care for your child, perhaps you and your partner can both switch to part-time or flextime schedules so that one of you is always home.

Some Typical Work Arrangements

Your imagination and your employer’s flexibility are the only real limits on what you can do, but to get you started, the following are some common arrangements:

•Telecommuting: Just a fancy word for working at home. You'll still be considered a full-time employee, and you'll still keep your full salary and benefits. The only difference? You can go to work in your pajamas, while your child watches Sesame Street in the next room.

•Flextime: A schedule that you mold to your needs, so long as you work the required number of hours. For example, if you normally work from 9 a.m. until 6 p.m., flextime would allow you to begin work at 7 a.m. and leave work at 4 p.m. -- leaving you enough time to pick your baby up from day care and get dinner started before the sun sets.

•Compressed workweek: A schedule that squeezes five days of work into four (or even fewer) days. For example, suppose you currently work eight hours a day, five days a week. With a compressed workweek, you might work ten hours a day, four days a week -- getting a day off each week without taking a pay cut.

•Job sharing: Splitting one job between two people. There's no set formula for job-sharing arrangements. In some cases, job-share partners divide the work week, with each person working two and a half days a week. In other cases, job-share partners divide the work that needs to be done, instead of the time that needs to be worked.

•Part time: Working fewer hours and receiving less pay than a full-time commitment. For example, you might choose to work three days a week instead of five and receive 60% of your usual salary.

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The hards facts just don't lie. Divorce and bankruptcy sometimes go together. In an effort to help you understand what the changes in the new law will mean to those facing bankruptcy after October 17th, I have provided an article from Nolo.

Here are some of the major changes you should know about.

Now that the new bankruptcy law is in effect, the landscape has changed for those who are considering bankruptcy. All debtors will have to get credit counseling before they can file a bankruptcy case -- and additional counseling on budgeting and debt management before their debts can be wiped out. Some filers with higher incomes won't be allowed to use Chapter 7, but will instead have to repay at least some of their debt under Chapter 13. And, because the law imposes new requirements on lawyers, it will be tougher to find an attorney to represent you in a bankruptcy case.

Here are some of the most important changes.

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The advantages and disadvantages of skipping the agency when you adopt a child.

Independent adoptions are attractive to birth parents and prospective adoptive parents because they allow the people involved to keep control over the adoption process. However, there are risks and costs involved in independent adoptions that don't come with agency adoptions, as well as more work for the adoptive parents.

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Types of Adoption

There are quite a few different ways to bring a child into your life, or confirm your legal relationship with one, through adoption. Here’s the lowdown on the different ways that adoption can work.

Agency Adoptions

Agency adoptions involve the placement of a child with adoptive parents by a public agency, or by a private agency licensed or regulated by the state.

Public agencies generally place children who have become wards of the state for reasons such as orphanage, abandonment, or abuse. Private agencies are sometimes run by charities or social service organizations. Children placed through private agencies are usually brought to the agency by a parent or parents who have or are expecting a child they want to give up for adoption. For more on adoption agencies, see Agency Adoptions.

Independent Adoptions

In a private, or independent, adoption, no agency is involved in the adoption. Some independent adoptions involve a direct arrangement between the birth parents and the adoptive parents, while others use an intermediary such as an attorney, doctor, or clergyperson. But for most independent adoptions, whether or not an intermediary is used, an attorney will be needed to take care of the court paperwork.

Most states allow independent adoptions, though many regulate them quite carefully. Independent adoptions are not allowed in Connecticut, Delaware, or Massachusetts. For more information, see Independent Adoptions.

An "open adoption" is an independent adoption in which the adoptive parents and birth parents have contact during the gestation period and the new parents agree to maintain some contact with the birth parents after the adoption, through letters, photos, or in-person visits.

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I took my husband's name when I married, but now we're getting divorced and I'd like to return to my former name. How do I do that?

In most states, you can request that the judge handling your divorce make a formal order restoring your former or birth name. If your divorce decree contains such an order, that's all the paperwork you'll need. You'll want to get certified copies of the order as proof of the name change -- check with the court clerk for details. Once you have this official documentation, you can use it to have your name changed on your identification and personal records.

If your divorce decree doesn't contain an order restoring your former name, check to see if it can be modified to include language restoring your name. In some states, this is possible even after the divorce is final.

Even if your divorce papers don't show your name change, you may still be able to resume your former name without much fuss, especially if you still have some proof of that name, such as a birth certificate or old passport. In most states, you can simply begin using your former name consistently, and request that it be changed on all your personal records.

If you're returning to a name you had before marriage, you're far less likely to be hassled about the change than if you adopt a completely new name, but you may still face some bureaucratic barriers in returning to a previous name. This is especially likely if you are a recent immigrant or do not have reliable documentation of your former name.

Copyright 2005 Nolo

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How to find property your spouse may be concealing when you divorce.

This list includes common ways in which a spouse may undervalue or disguise marital assets:

* Antiques, artwork, hobby equipment, gun collections, and tools that are overlooked or undervalued. Look for antique furnishings, original paintings, or collector-level carpets at the office.

* Income that is unreported on tax returns and financial statements.

* Cash kept in the form of travelers' checks. You may be able to find these by tracing bank account deposits and withdrawals.

* A custodial account set up in the name of a child, using the child's Social Security number.

* Investment in certificate "bearer" municipal bonds or Series EE Savings Bonds. These do not appear on account statements because they are not registered with the IRS. (The government is phasing out these bonds, realizing that it is losing a lot of money.)

* Collusion with an employer to delay bonuses, stock options, or raises until a time when the asset would be considered separate property.

* Debt repayment to a friend for a phony debt.

* Expenses paid for a girlfriend or boyfriend, such as gifts, travel, rent, or tuition for college or classes.

* Retirement accounts that your spouse never tells you about.

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If you have children, you should choose a personal guardian -- someone to raise them in the unlikely event you can't.

If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the extremely unlikely event you can't raise your kids, they will be well cared for.

All you need to do is use your will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if a court ever needs to step in and appoint a guardian, the judge will appoint the person you nominated in your will -- unless it is not in the best interests of your children for some reason.

If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.

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What you need to know about your taxes if you pay or receive child support.

For federal income tax purposes, child support is tax-free to the recipient, meaning neither the ex-spouse nor the child owes taxes on it. However, child support payments are not tax-deductible by the parent who makes the payments -- unlike spousal support payments. (Spousal support is tax-deductible for the person who makes the payments and taxable to the recipient.)

Be careful how support is characterized in your marital settlement agreement, as it may have significant tax consequences.

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When You Can Keep Lawyers Out of Divorce -- And When You Should Hire One

How to get divorced without using a lawyer -- and when you might really need one.

You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?

The answer can depend, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. The less you use the court, the less cost and heartache, and, in many cases, the better quality of the final result. But how do you avoid courts and lawyers?

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