Family Law Part Two the Following Is Essay
- Length: 6 pages
- Sources: 4
- Subject: Children
- Type: Essay
- Paper: #51798723
Excerpt from Essay :
Family Law, Part Two
The following is an overview of the various topics covered in Family Law, Part Two. The pertinent areas of discussion will be defined, explained, described, compared and contrasted in order to illustrate the information garnered from this segment of Family Law. Included is a description of the impact of the Child Support Enforcement and Establishment of Paternity Act of 1974 on state requirements in the area of child support. Also offered, in a section on spousal support, is a comparison and contrast of permanent alimony, lump-sum support, and rehabilitative support. Then, an explanation is presented regarding the significance of timing in the classification of property in the division of marital property. Additionally, a description of how the 1968 case of Levy vs. Louisiana significantly changed the legal status of children of unwed parents. Finally, the pros and cons of using a sperm bank for artificial insemination as opposed to using a known donor are described.
It is interesting to note that historically, the federal government has been loath to intercede in the area of family law. Money, however, moves mountains and federal government attitudes. To better understand the impact the Child Support Enforcement and Establishment of Paternity Act of 1974 on state requirements in the area of child support, it helps to understand the impetus behind the legislation. The Aid for Dependent Child (AFDC) program had been implemented under the Social Security Act of 1935, as a partnership between federal and state governments to provide aid to families in financial straights (CSEA, 2009). As time progressed, there was growing concern that the number of families requiring assistance from AFDC was increasing at an alarming rate, due in part, to the failure of parents to provide for their own children (CSEA, 2009). In order to curtail the growing expense related to absentee parents and AFDC, the federal government enacted the aforementioned child support legislation (Morgan, 2002). 'This piece of legislation imposed statutory mandates upon the states, changing the character of family law regarding most matters affecting the parent-child relationship' (Morgan, 2002). In order to comply (and receive federally funded AFDC), states now had to establish means of locating absent parents, establish paternity, and secure support from the absent parent (Morgan, 2002). Simply stated, the Federal government had to devise a means to keep the AFDC payments from becoming astronomical, and what better way than to have the person/persons responsible for children's birth, also maintain responsibility for their upbringing.
In Family Law, there is a heavy emphasis on laws pertaining to the dissolution of the family. Because of the need for courts to intercede in family dissolutions (divorces), a vast vocabulary surrounding divorce issues, specifically financial support issues, has arisen to define specific options. When one spouse is ordered by a court to make monetary payments to another spouse due to a divorce, it is called alimony. Alimony comes in different forms, and its form is generally determined by what is just and fair in the eyes of the court. The three types of spousal support addressed here are permanent alimony, rehabilitative alimony, and lump-sum support.
Permanent alimony is awarded after a divorce and it consists of regular payments (usually monthly) that must be paid to one spouse by the other (Wechsler, 2012). These payments are subject to change depending on financial circumstances, and are also subject to termination, especially upon death of one of the spouses or the remarriage of the spouse receiving the payments (Wechsler, 2012).
Unlike permanent alimony, rehabilitative alimony is not intended to be a permanent situation. It is "awarded for a specific and limited period of time to enable the needy spouse to obtain sufficient education or training to become financially independent" (Wechsler, 2012). In some circumstances, it is 'awarded for a specific reason and it ends when the original designated time frame has elapsed and it is not affected by remarriage' (Wechsler, 2102).
When circumstances warrant it and the paying spouse has the means, the alimony may be paid in a form called lump-sum support (aka "alimony in gross") (Wechsler, 2012). This is usually a one time payment intended to equitably divide assets and definitively settle the matter (Wechsler, 2012). Generally, the lump-sum support option is ordered when the couple divorcing is of advanced age, has the means to divide assets in a one time payment, and/or there is reason to believe that prolonged payments will cause additional litigation (Wechsler, 2012). It may also be awarded if the "receiving spouse has a need for a cash award to make required expenditures (house) or get out of debt" (Wechsler, 2012). Additionally, it may be used as a means of dividing a family business equitably (Wechsler, 2012). A 'lump-sum support payment may consist of real property, personal property, or cash and it is not affected by the death of either spouse' (Wechsler, 2012).
When discussing the dissolution of marriages and the fair and equitable distribution of assets, timing is literally everything. The courts will classify all property that the couple owns as separate property, marital property, or a hybrid of the two (Kitzman, no date). Generally, property is deemed to be marital property if it was acquired after marriage and before separation (Kitzman, no date). Thus, anything owned by either spouse prior to the marriage date is considered separate property and does not get included in the distribution and division of assets (Kitzman, 2012). Of course, like anything else, one of the spouses can contest the classification of property, but the burden of proving that it is marital and not separate property falls on that spouse if the timing of the acquisition was prior to the marriage (Kitzman, 2012). The theory here is that property and assets attained prior to marriage belong solely to that individual because they were obtained prior to the marriage union (Kitzman, 2012). Logically then, all assets acquired during the marriage union are considered to be the property of both spouses unless there was an agreement to the contrary (such as a prenuptial agreement) (Kitzmn, 2012). The ultimate aim in property classification is to ensure an equitable distribution of the assets attained by the couple while they were working in concert with one another (Kitzman, 2012).
Family Law is faced with addressing various issues pertaining to spouses, parents, and children. Among one of the most important issues within the field of family law is the welfare and well being of children. As such it is important to review how children have been viewed by the courts in the past. Historically children have been viewed as either legitimate or illegitimate, with illegitimate children being defined as offspring born to an unmarried couple (Laws.com, 2013). Because of the social stigma of having children out of wedlock, unfortunately, the children often were treated unfairly as well as the parents (Laws.com, 2013). In the past, a child was considered illegitimate even if acknowledged by the father if the parents were not married at the time of birth, and later if the parents never married (Laws.com, 2013). As illegitimate children, many rights were refused to them that were afforded legitimate children, such as the right to sue on behalf of a parent in a wrongful death case (4LawNotes.com, 2008). This was the situation that the Levy children found themselves in when pursuing a wrongful death suit on behalf of their mother (4LawNotes.com, 2008). The lower courts held that because they were illegitimate children of Levy, they had no standing to sue for her wrongful death (4LawNotes.com, 2008). Eventually, the case found its way to the Supreme Court, where it was held that prohibiting the illegitimate children from access to recovery funds was a violation of equal protection under the law (4LawNotes.com, 2008). This was the first and very important step toward changing the status of all children born to unwed parents (4LawNotes.com, 2008). Legitimacy is no longer considered to be a deciding factor when it comes to the rights of children (Laws.com, 2013). For the most part, the child is no longer punished for the failure of the parents to wed (Laws.com, 2013). 'Currently, as long as the father acknowledges paternity, the child is considered legitimate' (Laws.com, 2013).
Though paternity issues were sometimes complicated in the past, they have grown more so with modern technology. In the not too distant past, only the mother knew for sure that a child was indeed hers, yet now a father may also confirm that a child is his through the use of a DNA test. In addition to DNA tests, technology has wrought innovations in the insemination process that could not have been imagined as recently as forty years ago. Historically, the choice to have a child generally involved the union of a man and a woman. Now, however, the choice to have a child need not involve a present man. Technological advancements have now made artificial insemination a very viable option for those who choose to have a child but do not have a male…