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Marriage rights

Marriage rights refer to legal rights enjoyed by married couples, such as visitation rights in a hospital or prison, spousal health insurance, and many others.

Maya Shulman | Feb 23, 2018

Marital Privileges and Confidential Marital Communications

The Importance of Marital Communications Privilege The marital communications privilege, as the name suggests, is only enjoyed by legally married individuals in the court. It helps safeguard the privacy of all communication between a couple. With this privilege, they can reject testifying about a written or verbal communication which they exchanged in private, as a married couple. Generally speaking, a couple needs to provide all pertinent evidence at the time of the trial and marital privilege may be the only exception to this rule. Such privileges for communication are also applicable in the case of patient-doctor, penitent-priest and client-attorney. The reason for marital privilege excluding evidence from court trial is related to advancing a social goal, that of free and open communication between the partners. It is believed that this type of communication helps in strengthening a marital relationship and is hence given more weight or is prioritized over the necessity of evidence in resolving the legal conflict. Types of Marital Communications Privileges Within the marital communications privilege, you will find two distinct privileges: o The Spousal Confidential Communications privilege o The Husband-and-Wife privilege The Spousal Confidential Communications privilege is applicable to all the communications that happened in the duration of the marriage, with the belief that they would remain confidential. Below are the details on how this privilege is exercised: o Is only applicable for communicated words or actions that were supposed to remain confidential o The couple may not be married when the trial is taking place. However, it is mandatory for them to be marriage when the communications happened (the privilege is not terminated with divorce) o Is not applicable when allege crime has been committed against the partner, their kids or between spouses The husband-and-wife privilege is helpful in safeguarding the marital relationship in case of a legal marriage. It is primarily used for granting spousal immunity in a criminal case i.e. the spouse is excused from testifying at the court in such cases. Here are the details on how the husband-and-wife privilege can be exercised: o Is only applicable if a couple is in an existing marriage o May include speech, non-verbal actions, events and observations o Couple may not have been married when the event took place o Is not applicable if the crime has been committed against the partner, their kids or between spouses Things to Remember about Marital Communications Privilege Most jurisdictions offer the privilege of marital communications. These jurisdictions allow a single witness partner to decide if they want to testify. In some cases, evidence is automatically disqualified from one of the spouses. This is not an absolute privilege. Since the effect of this privilege is to refuse trial evidence, courts may decide on a narrow interpretation. Legal marriage is the single most vital condition for the privilege to be applicable. A court will not allow partners who just live together to use this privilege. It also cannot be used by those have a false marriage. Further, the communication should date back to the time when the marriage actually existed, not post a divorce. It is usually the state law which determines the legality of a marriage in these cases. Several jurisdictions make a distinction regarding which partner "holds". Hence, the partner holding the privilege might surrender it and end up testifying against their spouse.

Rebecca Anne Myers | Jan 21, 2016


Title Doesn't Matter Pennsylvania is what we call "title blind"--it doesn't matter if it's in your name, your spouse's name or both of your names. To the extent that it was purchased during the marriage, it's going to be a marital asset subject to equitable distribution. This means your spouse has an interest in the car titled in your name, a share of the pension that you receive through your employment, and any other asset that might be acquired, including investments, retirement assets, homes, other vehicles, etc. Pensions in particular seem to surprise people. In essence, it's part of your compensation from the job you went to day after day for however long you're married. Regardless of the fact that it was only your individual efforts at work which resulted in the generation of the asset, it's marital. Your spouse was at the same time making their own contributions to the marriage, be they through employment, as a homemaker, or both, and they have as much interest as you do in that pension, regardless of how fair you might think that to be. Not Equal, Equitable Here is an important point to note, and maybe some of you caught it reading through; maybe you did not. Assets acquired during the marriage are divided equitably. That doesn't mean equally and doesn't mean that every single asset is divided the same. It's the goal of the Divorce Code to "effectuate economic justice between the parties." Economic justice does not simply mean that all of the assets are lined up, wacked in half and 50% of each given to either party. Maybe "economic justice" dictates that one party to receive 55% of the marital estate, or even 60%. Maybe "economic justice" means that the majority of the assets should be divided 50/50, but there's an asset out there that shouldn't be because it wouldn't be fair to do that. A good example of the above would be if somebody had $50,000 coming into the marriage and they put it into a savings account in joints name. A couple of years later, the parties separate and there's $60,000 in that account. You don't get back every dollar that you bring to the marriage, but the court would probably consider the fact that most of the savings account was originally one party's pre-marital asset and in all likelihood would think it fair that they get some of that transmutated asset back, especially if the parties have a short marriage. Trans - mu - What??? Transmutation is what we call it when you take your separate property and change it into marriage property by jointly titling it. We will talk more about this in the future. The example above also touches on what we call a diminishing credit argument, wherein you get some credit for what you transmutate, but you don't get it back dollar-for-dollar and you get back less dollars as more time passes. Rules were made to be broken There are some exceptions to marital property. Not every single thing that you acquire during your marriage is going to be subject to equitable distribution. Things like inheritances or gifts-- if you keep them just in your name --- will remain just your property. However, the growth on these assets is a marital asset subject to distribution. The same is true with property that you hold coming into the marriage. Even if you keep that investment account or savings account in your name, any growth in in its value is going to be subject to equitable distribution. Some folks don't think that this is particularly fair and these rules can vary from state to state, but here in Pennsylvania, even a passive increase in value, (the increase from something just sitting there while you do nothing) is marital and your spouse will receive their equitable portion of that asset at the time of equitable distribution. While there are these and other exceptions and nuances as to what is or is not marital property, at the end of the day, more of your assets are in than out, regardless of how you feel about that, or whose name things are held in. New Rules! - Make your Own Rules However, these rules are subject to modification. It's for this reason that a lot of people look into pre-marital agreements. That passive growth on your non-marital asset can stay non-marital if the two of you agree to that. Pretty much, a pre-marital agreement can manipulate all of the rules set forth in the Divorce Code, so as long as you are not doing so in an illegal manner. This has a lot of appeal to people, especially when they come into the marriage on relatively equal footing and intend to stay on relatively equal footing. In the absence of such an agreement, there may be claims for support, complicated litigation, and extensive discovery where you are compelled to exchange documents with one another to define what's marital, what's not, and what its value is. A pre-marital agreement can set the rules in advance, hopefully easing the burden of any potential divorce litigation down the road. I hope this helps to give folks a little bit of an idea about how marital property works in Pennsylvania. Obviously, feel free to post any questions or comments. I would be happy to respond to same.

Molly S. Rosenblum | Jan 3, 2016


If you divorced with children review your custody arrangement, visitation schedule and child support It is helpful at the beginning of each year to review any holiday schedules, visitation schedules and exchanges to make sure that you plan accordingly for the new year. Look for any confusing or conflicting times in the decree and consider having these conflicts resolved before they become an issue. You should consider things like whether your children will be changing schools at the end of the school year, will they be in a 9 month school or a year around school, will they begin driving, etc. These types of changes can wreak havoc on a custody arrangement and should be addressed sooner rather than later. Likewise, if you are to receive or pay child support make sure you know how much is being paid in child support, when payments are due and how they will be paid. If you have had a substantial change in income, you should consider modifying your child support. Divide your assets and debts if you divorced If you divorced in 2015 and haven't done so already now is the time to transfer joint or sole assets as agreed in your decree of divorce. You will need to give consideration to real estate, automobiles, bank accounts and investment accounts. Likewise, you should confirm that any qualified domestic relation orders (QDROs) that are required to transfer a retirement account have been approved by the court and forwarded to the Plan Administrator for processing. Review your contracts and leases. If you own a business, rent a home or have an employment contract, there is no time like the present to review your contracts and leases. Many leases require notices for renewing the lease and should be reviewed and possibly negotiated with the help of an attorney. Likewise, a business contract or employment contract may contain time-triggered bonuses or may need to be renegotiated. Reviewing your contracts and leases with an attorney will let you know your rights and responsibilities in advance and can help you avoid unwanted outcomes like eviction or loss of employment. Update or create an estate plan Most people don't like to think about dying but it happens to everyone and there is no time like the present to consider creating an estate plan. What will happen to your assets or business if tragedy strikes and you don't make it? More importantly, if you have minor or adult dependent children, who will take care of them when you're gone? The simple answer is that if you don't have an estate plan the state will decide who gets your stuff and who will raise your children. Even if you have a will, without a trust in place, your heirs will likely need to file at least one action in probate court if you own any real estate at all. A little planning now can save your family the time, headache and worry of the probate process - not to mention thousands in legal fees. Review your business structure If you started a business in 2015, or you have been operating a business for years without paying attention to the business structure, now is the time to review your business's structure. Choosing the right business entity for the right situation can help protect your personal assets and may end up saving you thousands of dollars in taxes. Likewise, if you haven't maintained your business entity properly over the years, this is as perfect time of year to get that new entity up to date and/or update your current business structure.

Sean Anthony Musgrove | Oct 25, 2015


HOW YOU CAN HELP SAVE MONEY ON YOUR LEGAL FEES We know that having to deal with a family law issue is difficult and it is our goal to get you through this process as quickly and efficiently as possible. You are the primary source of our information and the driver of your case. However, the saying, "time is money and money is time" has no better application than to legal fees. The following tips are ways that you can help us better spend your legal dollars because when we save time, you save money. Communication First of all, we always want you to communicate with us about your case. You are the expert in your case and we absolutely need your input. However, how you communicate with us can be done in a way that keeps your bills down. LIMIT YOUR EMAILS Remember, for each email that we receive, the time is billed against your retainer. Five emails in five days can create one hour's worth of billing because we have to read and respond to each email as they come in! Since we bill in 12 minute increments, five emails equals $325 for some "quick emails." CALL INSTEAD OF EMAILING Instead of sending multiple emails, especially if they are about the same problem, call and set up a quick telephonic or face to face appointment. In less time than it takes to respond to multiple emails, you can tell us what the problem is and we can then tell you what we need. This is what we are going to do in response to the emails anyways. This can help lower and manage your legal fees. In the end, we feel better about what we do if we do it in a cost effective manner that actually helps you. You feel better because you are getting more bang for your buck. Respond to our inquiries Remember, you are the expert in your case. You are the best resource and sometimes our only resource to your case. When we ask you for documents or information, it is because we need those pieces for your case so we can be successful. If you fail to respond to our initial request for information or documents, we will have to ask again. This adds to your bill, and can be avoided. If what we ask for something and you are unsure or overwhelmed about what we are asking for, call us and speak to us. We are here to help. We can give you direction and we can even have you come in to give you further advise. Although an appointment may take time that you will be billed for, it helps us get closer to what we need from you and won't be wasted. We are here to help!

Elisa M Reiter | Aug 7, 2015

The Right to Marry in Texas

Issuance of a Marriage License A ceremonial marriage in Texas requires the filing of a license and a ceremony conducted by a person authorized to conduct such a ceremony. A marriage license is valid for 30 days. However, because of the 72-hour waiting period required by Section 2.204 of the Texas Family Code, there is only a 27-day ''window'' for the marriage ceremony to take place prior to the expiration of the license. The window to seek an annulment of a marriage performed during the 72 hour waiting period is almost as narrow: within 30 days after the ceremony (see Texas Family Code Section 6.110). Missing the Window of Opportunity In the event a ceremony is conducted after the license expires, section 2.207 allows for a penalty to be assessed against the person who conducted the ceremony. No information is available evidencing the implementation of such a fine. Rationale for the Three Day Wait The 72 hour waiting period after obtaining a license ostensibly was enacted to prevent couples from marrying in haste without thinking about the impact of making such a commitment. Real history here: suburban justices of the peace lobbied for the change due to the fact that the J.P.'s were besieged by requests to perform marriage ceremonies during their very busy dockets. By mandating that applicants wait patiently for 72 hours before marrying, the bulk of applicants began to look elsewhere for an authority to "marry" them, rather than looking to a J.P. at the Courthouse. Loophole The statute permits a ''waiver'' of the three day waiting period. Presumably a ''waiver'' is less difficult to obtain than securing an ''order'' to the same effect. As a theoretical incentive to encourage couples to obtain premarital counseling, the 72 hour waiting period is waived for those who complete a course meeting the requirements of section 2.013. In addition, most District Court Judges have a form that facilitates the granting of a waiver of the three day wait, based on proper request. Equal Protection Discrimination in conducting the ceremony based on race, religion, or national origin is prohibited by Texas Family Code Section 2.2005. However, notably missing from the anti-discrimination list is discrimination based on sex. In 2003, the Texas Legislature confirmed that the omission was intentional by enacting Section 6.204. Sadly, this provision provided in Subsection (b) that "A marriage between persons of the same sex or a civil union is contrary to the public policy of this State and is void in this State." This provision will be one of many revisited and revised by the Texas Family Code drafting committee, and then effectuated by our Legislature. Recognition of ALL Marriages In Obergefell v. Hodges, the United States Supreme Court has finally spoken by clearly holding that the Fourteenth Amendment and Due Process Clause of the U.S. Constitution require states to issue licenses and recognize marriages between two people of the same sex. 576 U.S. (2015), 2015 WL 2473451 (U.S. June 26, 2015).