Legal Encyclopedia contents
Legal FAQ contents
Content on this page is © 2009 Nolo and is reprinted on the Rice Law, PLLC site with permission of Nolo. Nolo's aim is to make America's legal system accessible to everyone.
Special education law
An overview of special education laws, IEP, and your child's special education rights.
Special education laws give children with disabilities and their parents important rights. Specifically, the federal Individuals with Disabilities Education Act (IDEA) gives families of special education children the right to:
Eligibility under IDEA
Every school district is legally required to identify, locate, and evaluate children with disabilities (20 U.S.C. §1412(a)(3)). After the evaluation, the district may provide the child with specific programs and services to address special needs.
IDEA defines "children with disabilities" as individuals between the ages of three and 22 with one or more of the following conditions:
(Refer to 20 U.S.C. §1401(3); 34 C.F.R. §300.8.)
For your child to qualify for special education under IDEA, it is not enough to have one of these disabilities. There must also be evidence that the disability adversely affects your child's educational performance.
Once a child is found eligible for special education, subsequent evaluations take place at least every three years. If you are not satisfied with the initial evaluation or you feel your child's disability or special education needs have changed, your child is entitled to more frequent assessments, and even outside or independent assessments (20 U.S.C. §1414; 34 C.F.R. §300.301-306).
Individualized Education Program (IEP)
Under IDEA, special education develops and implements an individualized education program, or IEP, that meets your child's unique needs. The acronym IEP refers to several related things:
Every written IEP document must include the same information, although forms will vary from one school district to another.
For more information on IEPs, read Nolo's article Preparing for the IEP Meeting.
Special education law: 2005 changes
In 2005, Congress made important modifications to IDEA. While most special education rights and procedures remain the same under this new law, there have also been numerous and significant changes. For instance, the new law affects:
In August 2006, the Department of Education issued regulations interpreting the revised IDEA. The new regulations went into effect on October 14, 2006.
These regulations add requirements and rules that go well beyond the scope of the actual law. If you have a child in special education, it is important that you understand how the regulations affect your child's rights. You can download and read the text of the regulations on the website of the Department's Office of Special Education and Rehabilitative Services (OSERS) at www.ed.gov/about/offices/list/osers. Or, contact your state department of education, your school district, or local support groups to find out how these changes will affect special education in your community.
Sources of information about special education and IDEA
For more information on the IDEA, including the 2005 revisions, get The Complete IEP Guide: How to Advocate for Your Special Ed Child, by attorney Lawrence Siegel (Nolo).
Or, if your child has a learning disability (as opposed to another type of disability), read Nolo's IEP Guide: Learning Disabilities, in which Lawrence Siegel tailors his discussion of special education and IEPs specifically for the parents of children with learning disabilities.
Getting married: An overview
What to expect before and after marriage.
Getting married is a big decision, and it isn’t just about making a lifelong commitment to your partner: Marriage is a legal contract. When you get married, you not only accept rights and benefits but also take on legal and financial obligations.
Definition of marriage
Marriage is the legal union of two people, who are joined together after they obtain a marriage license from their state and take part in a ceremony. In most states, only a man and a woman can get married, but in California and Massachusetts, same-sex couples can marry too. In some other states, same-sex partners can enter into marriage-like relationships with rights and obligations similar to those of marriage. )
In some states, heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a "common law" marriage. A common law marriage is created when two people live together for a significant period of time (not defined in any state), hold themselves out as a married couple, and intend to be married.
Before the wedding
When you get married, the rights and responsibilities of that relationship are defined by the laws of the state in which you live. However, you and your spouse may be able to modify the rules by creating a premarital (or prenuptial) agreement (for example, you can agree to keep your property separate). Before you say "I do," you might want to consider the following:
Whether you opt for a simple ceremony in City Hall or a black-tie gala with all the trimmings, you’ll need to meet some basic requirements and make certain legal and financial preparations for your impending marriage. You'll need to know the answer to these questions:
Marriage rights and benefits
Once you’re married, you receive numerous rights and benefits. These range from tax and inheritance benefits, to alimony and child support in the event of a divorce, to your right to take bereavement leave from your job if your spouse should die. Marriage rights and benefits fall into the following categories:
Financial responsibilities of marriage
You will take on certain responsibilities when you get married. The responsibilities vary from state to state, but commonly include the following:
After the wedding
After you've tied the knot, you are legally joined to your spouse. This means that, when the honeymoon's over, you may be in line for some paperwork. All of the following are optional, however, depending your relationship:
Want to Learn More?
Nolo's book, Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner, Attorney-Mediator and Shae Irving, J.D., provides detailed information on every state's laws about prenups and marital property. It also explains what you can and can't do with a prenup, helps you decide whether or not you need one, and walks you step by step through the process of drafting your own agreement.
FiancĂ© & newlywed finances: A checklist
Before getting married, or soon after, discuss marriage finances and make a budget.
In just about any long-term relationship, finances will come into play, and in a marriage, it's essential to manage finances well together. Whether you’re about to get married or have already tied the knot, it’s a good idea to sit down with your partner and discuss money.
With finances, as with many things in life, an ounce of prevention is worth a pound of cure. If you and your partner approach your finances in a direct, matter-of-fact way early in the marriage, you’ll provide a solid foundation for your relationship, and for your finances, as time goes on.
Financial talking points
When you sit down to talk with your fiancé or spouse, begin by sharing the current state of your finances. It’s important to be frank and nonjudgmental. Fudging the numbers or concealing certain items from your partner could result in serious problems later. What’s important is making sure your plan for going forward is one to which you are both committed. Here are some basics to go over:
Planning for the future
In your discussion of finances, it’s worth discussing future costs, even if you can’t know exactly what these will be. Do you plan on buying a house together? Having children? Taking a trip around the world? Moving? All of these things require significant financial investment. Be sure to discuss the following:
Making a budget
Sit down with your partner and make a budget.
Making your financial relationship work
Once you’ve made these lists, consider the following:
Whatever your financial situation, it’s always better to be open and honest than to be unpleasantly surprised in a moment of stress or crisis.
Marriage rights and benefits
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:
Estate planning benefits
Other legal benefits and protections
Note that if you are in a same-sex marriage in Massachusetts or a domestic partnership or civil union in any of the states that offer those relationship options, many of the benefits of marriage won't apply to you, because the federal government does not recognize these same-sex relationships. For example, you may not file joint federal income tax returns with your partner, even if your state allows you to file jointly. And other federal benefits, such as COBRA continuation insurance coverage, may not apply. Consult a lawyer with expertise in this area to learn more about the rights and benefits available to same-sex couples.
Returning an engagement ring
If the engagement is over, state law decides who keeps the engagement ring.
The engagement is over. In addition to the sorrow, the heartbroken must deal with the question of whether the engagement ring need to be returned—along with the deposits left with the caterer, the florist, and the dressmaker.
State courts around the nation that have considered the issue—whether a bride can keep the engagement ring or whether she must return it—have reached different 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.
However, 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.
However, 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:
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. 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 also do not agree on whether it should matter who did the breaking up or why.
Courts that do consider the reasons for the breakup
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.
For example, 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—and he won. Pavlicic v. Vogtsberger, 136 A.2d 127, 130 (Penn. 1957).
Some courts applying a 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).
Courts that don't consider the reasons for the breakup
Other judges 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 why, where, when, or at whose behest 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:
Living Together Contracts
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:
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.
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
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.
Separation or death
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.
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. For more information, see the Prenuptial Agreements section of Nolo's website.
Health Care Directives and Financial Powers of Attorney for your partner
To have the power to make medical and financial decisions for your partner, 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, unmarried partners, 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: a durable power of attorney for finances and health care directives.
Without these documents, your partner may face tremendous emotional and practical problems when trying 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. (To learn more about both medical and financial powers of attorney, see Nolo's Power of Attorney Resource Center.)
Health care declarations. 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.
Durable powers of attorney for health care. 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:
Advance health care directives. 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."
Who can make Health Care Directives?
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. (To learn more about financial powers of attorney, read Nolo's article Durable Financial Power of Attorney: How it Works.)
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:
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.
If you live in California, you can learn everything you need to know about powers of attorney in Living Wills & Powers of Attorney for California, by Shae Irving (Nolo).
Claiming an unmarried partner as a dependent on your tax return
To claim tax benefits for your dependent partner, there are five tests your partner must pass.
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 any expense 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 a legal spouse, the supporting partner in this relationship cannot claim the supported person 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.
To learn more about laws affecting unmarried couples, get Living Together: A Legal Guide for Unmarried Couples, by Ralph Warner, Toni Ihara, and Frederick Hertz (Nolo).
Conservatorships and guardianships
How to get help for an adult who can't manage alone.
If an adult becomes unable to handle day-to-day financial or medical affairs affairs, someone else must step in to take care of things. If the incapacitated person planned ahead and signed durable powers of attorney for finances and health care, the person named in those documents can take charge.
However, if no planning has been done—a common situation—then family members must ask a court to appoint a conservator or guardian. This person will have the court-ordered authority and responsibility to manage the incapacitated person's affairs.
Conservatorship vs. adult guardianship
In some states, conservatorships are called adult guardianships, but the terms mean roughly the same thing. For the rest of this article, we will use the term "conservatorship" to refer to adult guardianships and conservatorships.
If a court appoints someone to take care of financial matters, that person is usually called a "conservator of the estate," while a person in charge of medical and personal decisions is a "conservator of the person." An incapacitated person may need just one type of representative, or both. The same person can be appointed to take both jobs. Both types of conservators are supervised by and held accountable to a court.
Generally, conservatorships are established for people who are in comas, suffer from advanced Alzheimer's disease, or have other serious illnesses or injuries.
Pros and cons of a conservatorship
Conservatorships are time-consuming and expensive; they often require court hearings and the ongoing assistance of a lawyer. The paperwork can also be a hassle, because the conservator must keep detailed records and file court papers on a regular basis.
All court proceedings and documents are a matter of public record, which can be an unwelcome intrusion for someone who values independence and privacy.
Conservators are subject to court supervision, which provides a powerful safeguard for an incapacitated adult's property. To prevent conservators from mismanaging the property or otherwise taking advantage of the people they are helping, most courts require conservators to provide periodic reports detailing their actions. Many courts also require the conservator to seek permission before making major decisions, such as selling real estate (for a financial conservator) or terminating life-support (for a conservator in charge of health care decisions).
In addition, a financial conservator must often post a bond (a kind of insurance policy that protects the conservatee's estate from mishandling). The bond premiums are paid from the conservatee's assets—and are an unnecessary expense if the conservator is competent and trustworthy.
Occasionally, however, a conservator will mismanage a conservatee's assets or make poor choices about the conservatee's health care. Although each state has rules and procedures designed to prevent such abuses, few have the resources to keep an eye on conservators and follow through if they spot trouble. Many cases of incompetence or mistreatment go unnoticed.
Avoiding a Conservatorship
The best way to avoid a conservatorship is for an older person to prepare durable powers of attorney before a health crisis occurs. That way, someone handpicked will be able to step in to make financial and medical decisions if necessary.
The court process
Anyone—including the proposed conservatee, family members, and friends—may object to the conservatorship in general, or to the specific choice of conservator. Someone who wants to block a conservatorship must file papers with the court, inform all interested parties (the proposed conservatee, family members, and possibly close friends), and attend a legal hearing.
When someone begins a conservatorship proceeding, a judge must hear evidence on the person's mental capacity. If the judge concludes that a conservator is necessary, he or she will appoint one—commonly, the spouse or adult child.
It's rare, but sometimes several family members or friends may vie for the job. If that happens, the judge follows preferences established by state law. Most states give preference to the conservatee's spouse, registered domestic partner, adult children, adult siblings, or other blood relatives. But a judge who thinks someone else is best for the job may pick that person.
Without strong evidence of what the conservatee would have wanted, it is unlikely that a nonrelative would be appointed conservator if a relative is available to serve. Because of this, conservatorship proceedings may cause great heartache if an estranged relative is chosen as conservator over the conservatee's partner or close friend. If no one suitable is available to serve as conservator, the judge may appoint a public or other professional conservator.
How conservators are compensated
Conservators are reimbursed for expenses, and paid for their services, from the assets of the person they are taking care of. Payments must be "reasonable" in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court.
Financial support for someone under a conservatorship
A conservator isn't required to support the conservatee, just to manage the conservatee's own assets and make personal decisions for him or her. A financial conservator does have the responsibility to seek all financial benefits and coverage for which the conservatee may qualify. These benefits may include Social Security, medical insurance, Veterans Administration benefits, pension and retirement benefits, disability benefits, public assistance, and Supplemental Security Income. When needed, close family members (including the conservator) often use their own money to help support a conservatee.
Ending a conservatorship
A conservator must act until the court issues an order ending this responsibility. This ordinarily happens when:
Legal Encylcopedia FAQs
How guardianships work FAQ
Learn the basics about guardianships, including the difference between guardianship and adoption.
Typically, a guardian takes care of a child's personal needs, including shelter, education, and medical care. A guardian may also provide financial management for a child's assets, although sometimes a second person (often called a "guardian of the estate") is appointed for this purpose.
A guardianship establishes a legal relationship between a child and an adult who isn't the child's parent, but it does not end the legal relationship between the child and the child's biological parents. For example, the biological parents are still legally required to provide financial support for the child. And if a biological parent dies without a will, the child has certain automatic inheritance rights.
On the other hand, an adoption permanently changes the relationship between the child and the adults involved. The adopting adults legally become the child's parents. The biological parent (if living) gives up all parental rights and obligations to the child, including the responsibility to pay child support. If a biological parent dies without a will, the child usually has no right to inherit.
A guardianship ordinarily lasts until the earliest of these events:
Even if a guardianship remains in force, a guardian may step down with permission from the court. In that case, a judge will appoint a replacement guardian if necessary.
A guardian ad litem is a person appointed by the court to stand in the shoes of a minor in a court proceeding in which the minor has some interest. The court can also appoint a guardian ad litem for an adult who isn't able to make decisions alone. Often, the guardian ad litem is a parent, close relative, or attorney. Some states also authorize the appointment of a guardian ad litem to represent a child's interests in a divorce case that involves custody issues.
If a guardian ad litem is not an attorney, the minor or disabled adult is frequently represented by an attorney as well.
You won't need a guardianship if the child is only staying with you for a few weeks or months, but anyone who anticipates caring for a child for more than a few months will probably need a legal guardianship. Without this legal arrangement, you may have trouble registering the child in school, arranging for medical care, and obtaining benefits on the child's behalf. In addition, you'll have no right to continue providing care if the child's parents want him back—even if you think they're incapable of providing appropriate care.
If you want to avoid a formal guardianship
Some adults try to slide by and raise children (often grandchildren or other relatives) without any legal court authorization. If you go this route, you could run into problems with institutions that want authority from a parent or court-appointed legal guardian. Some communities and institutions, however, are very accommodating of people who are bringing up someone else's children. California, for example, has created a form that gives a nonparent permission to enroll a child in school and make medical decisions on the child's behalf without going to court. Research the laws in your state or talk to a knowledgeable family law attorney to find out whether there are ways you can care for a child that don't involve becoming a legal guardian.
It's strange but true: sometimes parents need to establish a particular type of guardianship called a "guardianship of the estate" to handle their own child's finances—even if the child lives with them. This situation usually arises when significant amounts of property (at least $5,000 in most states) are given directly to a child.
Understandably, institutions and lawyers are reluctant to turn assets over to parents when they were intended for a child. A guardianship of the estate relieves the institution from liability, and the parents are directly accountable to a court to show how funds are spent and invested.
While this system is effective in protecting children's assets from unscrupulous parents, setting up a formal guardianship of the estate involves time and money that well-meaning parents sometimes find burdensome. For this reason, all states have passed laws to make it easier to give money or property to children. These laws provide simple, inexpensive procedures by which gifts to minors (typically up to $10,000) can be managed by their parents without setting up formal guardianships of the estate. A gift-giver must simply name, in his or her will or in a trust document, someone to manage the gift until the child reaches adulthood. No court involvement is required.
Establishing and maintaining a guardianship FAQ
Questions about obtaining and maintaining the legal guardianship of a child.
To put a guardianship in place, you will start by filing guardianship papers in court. A court investigator will likely interview you, the child, and the child's parents if they are alive and available. The investigator will then make a recommendation to the judge. The judge will review the case and decide whether to appoint you, usually after a hearing. The court must find that the appointment is in the best interests of the child.
If you want to name a guardian for your own children in case you aren't around to take care of them, use a will to name the person you want to take care of them. (If this is what you want to do, read Nolo's article Guardianship for Your Children.)
As a general rule, guardianships are not granted unless:
There are some circumstances where you can get a guardianship over the parents' objections, but you'd usually have to prove that the parents were unfit. You would need a lawyer's help for this.
Other family members—siblings, grandparents, aunts, and uncles of the child—are also entitled to know that you are pursuing a guardianship, and have a right to object. You should probably consult a lawyer if anyone in the child's family tells the court that they object to you becoming the guardian.
Unless a court terminates the biological parents' rights (uncommon in most guardianship situations), the parents are responsible for supporting their child. In reality, however, financial support often becomes the guardian's responsibility. The guardian may choose to seek financial benefits on the child's behalf, such as public assistance and Social Security.
Any funds the guardian receives for the child must be used for the child's benefit. Depending on the amount of money involved, the guardian may be required to file periodic reports with a court showing how much money was received for the child and how it was spent.
An obvious but important question to ask yourself before you take any steps to establish a guardianship is whether you're truly prepared for the job. To find out, ask yourself these questions:
It's smart to consider your options carefully before initiating a guardianship proceeding. After honestly answering the questions above, you may need to rethink your plans.
Marriage requirements, licenses, and ceremonies FAQ
Information on marriage laws and procedures.
You must meet certain requirements in order to marry. These vary slightly from state to state, but generally include:
Yes. In May 2004, Massachusetts began issuing marriage licenses to same-sex couples who live in the state, and in June 2008 California began allowing same-sex marriages. These are the only two states that permit same-sex marriage. In fact, many states have passed laws specifically barring same-sex marriages, and the number of states with such laws is increasing. However, there are states that allow same-sex unions that are similar to marriage.
In California, domestic partnership still creates a marriage-like relationship in which same-sex partners have nearly all the rights and responsibilities of spouses (and domestic partnership remains an alternative or supplement to marriage in California). Connecticut, New Hampshire, and Vermont offer civil union registration for same-sex couples, who can register their partnership and receive all the benefits of state laws that apply to married couples. New Jersey and Oregon have domestic partnership that also is equivalent to marriage. Hawaii, Maine, Washington, D.C., and Washington State all have some form of registration for same-sex couples, with varying levels of benefits--but none are marriage equivalents.
A marriage license is a piece of paper that authorizes you to get married and a marriage certificate is a document that proves you are married.
Typically, couples obtain a marriage license, hold the wedding ceremony, and then have the person who performed the ceremony file a marriage certificate in the appropriate county office within a few days. (This may be the office of the county clerk, recorder or registrar, depending on where you live.) The married couple will be sent a certified copy of the marriage certificate within a few weeks after the marriage ceremony.
Most states require both spouses, along with the person who officiated and one or two witnesses, to sign the marriage certificate; often this is done just after the ceremony.
Usually, you may apply for a marriage license at any county clerk's office in the state where you want to be married. (In some circumstances, you must apply in the county or town where you intend to be married—this depends on state law.) You'll probably have to pay a small fee for your license, and you may also have to wait a few days before it is issued.
In some states, even after you get your license you'll have to wait a short period of time—one to three days—before you tie the knot. In special circumstances, this waiting period can be waived. If you wait too long, your license will expire. Licenses are good for 30 days to one year, depending on the state. If your license expires before you get married, you can apply for a new one.
A handful of states still require blood tests for couples planning to marry. Most do not.
Premarital blood tests check both partners for venereal disease or rubella (measles). The tests may also disclose the presence of genetic disorders such as sickle-cell anemia or Tay-Sachs disease. You will not be tested for HIV, but in some states, the person who tests you will provide you with information about HIV and AIDS. In most states, blood tests can be waived for people over 50 and for other reasons, including pregnancy or sterility.
If either partner tests positive for a venereal disease, what happens depends on the state where you are marrying. Some states may refuse to issue you a marriage license. Other states may allow you to marry as long as you both know that the disease is present.
Non-religious ceremonies—called civil ceremonies—must be performed by a judge, justice of the peace, or court clerk who has legal authority to perform marriages, or by a person given temporary authority by a judge or court clerk to conduct a marriage ceremony. Religious ceremonies must be conducted by a clergy member (priest, minister, or rabbi). Native American weddings may be performed by a tribal chief or by another official, as designated by the tribe.
It is customary to have witnesses to the marriage, although they are not required in all states.
Common law marriage FAQ
In a handful of states (listed below), heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. In order to have a valid common law marriage, the couple must do all of the following:
When a common law marriage exists, the spouses receive the same legal treatment given to formally married couples, including the requirement that they go through a legal divorce to end the marriage.
Common law marriage is recognized only in the following states:
Yes, anyone can do a name change. In theory, most states allow you to legally change your name by usage only—meaning that you simply start using your new name without any court action, and at no cost.
However, practically speaking, because you don't have a marriage certificate, you will need an official court order changing your name before you'll get government agencies and many private companies, such as banks and title companies, to accept your new name.
Property rights of unmarried couples FAQ
From property agreements to palimony—property right information for unmarried couples.
If you haven't been together long and don't own much, it's really not necessary to make a written agreement. But the longer you live together, the more important it is to prepare a written contract making it clear who owns what—especially if you begin to accumulate a lot of property. And, if you buy a house together, it's a good idea to create a property agreement.
If you don't create a property agreement, you might face a serious (and potentially expensive) battle if you split up and can't agree on how to divide what you've acquired. And, when things are good, taking the time to draft a well-thought-out contract helps you clarify your intentions.
You can tailor your property agreement to meet the needs of your relationship. The major areas of concern for most unmarried couples are:
Some couples choose to keep all property owned—a car, a house, furniture, and the like—completely separate, while others choose to share some or all of their property by transferring part ownership to each other. You can also specify how you will own property that you acquire during your relationship. (If you decide not to prepare a comprehensive property agreement that covers this issue for all of your property, you can use a "joint purchase agreement" for major items as you buy them.)
Similarly, you may use your agreement to share or divide income and expenses in any number of ways. You can keep separate bank and checking accounts, credit cards, and insurance, or you can agree to handle some or all of these things jointly.
In your agreement, you may also want to decide in advance who gets what should you separate, or agree to a process for resolving any property disputes that arise if you part ways.
It's particularly important to make a written property agreement if you buy a house together; the large financial and emotional commitments involved are good reasons to take extra care with your plans. Your contract should cover at least four major areas:
My partner makes a lot more money than I do. Should our property agreement cover who is entitled to her income and the items we purchase with it?
Absolutely. Although each person starts out owning all of his or her job-related income, many states allow this to be changed by an oral contract or even by a contract implied from the circumstances of how you live. These types of contracts often lead to misunderstandings during a breakup. For example, if there's no written agreement stating whether income will be shared or kept separate, one partner might falsely claim the other promised to split income 50-50. Although this can be tough to prove in court, the very fact that a lawsuit can be brought creates a huge problem. For obvious reasons, it's an especially good idea to make a written agreement if a person with a big income is living with and supporting someone with little or no income.
Example: Jon and Rose plan to buy a fixer-upper house and move in together. Jon is a carpenter; Rose is a university professor who makes nearly twice as much as Jon. Jon and Rose plan to own their home equally, so they agree in writing as follows: Rose will pay two-thirds of the mortgage, and Jon will pay one-third. Rose and Jon will equally pay for the materials to fix up the house, and Jon will contribute all the labor. Rose and Jon also agree to equally own all the property, furniture, and fixtures they buy once they move in together.
Palimony is a phrase coined by journalists—not a legal concept—to describe the division of property or alimony-like support paid to one partner in an unmarried couple by the other after a breakup. Members of unmarried couples are not legally entitled to such payments unless they've made an agreement about it.
In the famous case of Marvin v. Marvin, the California Supreme Court ruled that a person who lived with a partner and later sued for support could argue that an implied contract existed between the partners. To avoid a battle over palimony, it's wise to create a written agreement that speaks to whether or not one partner will make payments to the other in case of a break-up.
Not unless you have specifically undertaken responsibility to pay a particular debt—for example, you cosigned a promissory note or the debt is charged to a joint account. By contrast, married spouses are generally liable for all debts incurred during marriage, even those incurred by the other person. The one exception for unmarried couples applies if you have registered as domestic partners in a location where the domestic partner law states that you agree to pay for each other's basic living expenses—that is, food, shelter, and clothing.
Usually nothing, unless the deceased partner made a will or used another estate planning device, such as a living trust or joint tenancy agreement. In a few states, same-sex partners who are registered as domestic partners or have entered into a civil union relationship may automatically inherit a portion of a deceased partner's property, but these laws are by no means the safest or easiest way to plan for inheritance. The bottom line is simple: To protect the person you live with, you should specifically leave property using a will, living trust, or other legal document.
Parenting for unmarried couples FAQ
What steps must unmarried parents take to ensure that they are both considered the legal parents of their child?
To make sure that a child's biological parents are also the legal parents, both mother and father should be listed on the child's birth certificate. If you want to add a parent's name to a birth certificate, contact your state's Bureau of Vital Statistics. You can find this contact information by visiting the website of the National Center for Health Statistics.
In order to be listed on a child's birth certificate, most states require unmarried fathers to sign an affidavit or acknowledgment of paternity. In any case, it's a good idea for both parents to write, sign, and notarize a statement acknowledging the father's paternity. You can take this one step further by contacting your state's Vital Statistics office and asking whether they keep paternity statements on file. If they do, make sure yours is filed.
Every child is eligible for government benefits related to the child's biological or legal parents, including Social Security survivorship benefits, government pension benefits, and the like. The key is to ensure birth certificate and paternity issues are resolved as soon as, or shortly after, the child is born.
Once that's done, you can be assured that, if tragedy strikes you or your partner, your child will be covered. If you neglect to establish yourself as a legal parent—for example, by failing to put your name on the birth certificate—and your child seeks government benefits after your death, the agency may deny his or her request because there isn't any proof that you were the parent.
In the vast majority of states, when it comes to baby names, anything goes. This includes first, middle, and last names. You don't have to give the baby the last name of either parent—for example, Mary Jones and Jack Brown can name their child Sunrise Smith. You may opt to hyphenate both of your last names, give the child one of your last names as a middle name—or decide later and amend the birth certificate to reflect your new choice. (You can amend a birth certificate by contacting your state's Department of Vital Statistics, which you can locate through the website of the National Center for Health Statistics.)
In many states, they can. Unfortunately, even in states that permit joint adoptions, some social service and government agencies discriminate against unmarried couples. An unmarried couple can expect to do a bit more work to prove that their home is a stable and healthy environment for raising children. It's wise for any unmarried couple to consult a good family lawyer to get the lay of the legal land, as well as some practical guidance, before moving ahead with adoption plans.
If an unmarried couple jointly adopts a child, they will both be legal parents. This means that each partner has equal legal responsibilities to raise and support the child. And, if the partners ever separate, each has an equal legal right to petition a court for custody or visitation of the child, as well as an obligation to provide child support.
If a parent partners with someone who isn't the child's other parent, can the new partner adopt the child?
This is commonly called a "second-parent adoption" or, if the couple does marry, a stepparent adoption. Where the adopting couple is married, these adoptions are approved pretty readily, because the couple's relationship is legally valid and the child is already in the home and will stay there even if the adoption is denied.
A number of states, however, still frown upon second-parent adoptions by unmarried couples, so a partner who wishes to adopt without marrying should consult a local family law attorney to get an up-to-the-minute evaluation of the law.
This type of adoption can't take place unless one of the following is true:
If the noncustodial parent is the father, a social service agency will determine whether he has abandoned the child or whether his consent is needed before a second-parent adoption can take place. A father who signs a paternity statement, provides support (if he can), and maintains a relationship with his child is not in danger of the child's being adopted by someone else without the father's consent.
If the noncustodial parent is the mother, the social service agency will have to obtain her consent or recommend that her parental rights be terminated. Unmarried mothers without custody must pay support if they can and visit the child—or risk losing the child to a second-parent adoption.
Taxes affect unmarried people with children much in the same way they do divorced partners—only one person can claim the child as a dependent. This doesn't mean that only one parent is entitled to claim the child, just that only one person can legally take the exemption. How to decide who gets the tax break? That's easy. The parent whose income is in the higher tax bracket will get a bigger tax savings. Parents can agree in advance, and in writing if they prefer, on how to split the return.
Can a person who isn't a parent, but who plays a live-in parental role, take care of tasks like signing school permission slips or making medical decisions for a child?
That depends on several factors. First, is the other legal parent in the picture? If the other parent shares joint legal custody with your partner, chances are that person has priority for making medical decisions. Hower, the nonparent may be listed as an emergency contact on school and other important records, in case a legal parent isn't available to make decisions for the child.
Regarding school permission slips, nonparents face restrictions here. Schools are legally responsible for the children in their care. As such, they are permitted to accept signatures only from legal guardians. A legal guardian could be a foster parent or anyone who has legal custody of a child. An unmarried partner of a legal parent probably does not qualify.
Nonparents may be allowed to pick up a child from school (or day care) if a legal parent informs the school that this will be happening either regularly or on a particular occasion.
To maximize what a nonparent caretaker can do, the legal parent should contact school and other authorities to find out what rights are available and what procedures are required to establish them.
If both partners are legal parents of the child—either because they are both biological parents, because they have jointly adopted, or because a nonbiological parent has obtained a legally valid second-parent adoption—both parents usually have an equal right to custody of the child. This means that neither parent may deprive the other of physical custody or visitation unless a judge makes an order granting sole custody to one parent. If a court does grant one parent physical custody, the other parent is usually entitled to visitation and is next in line to exercise physical custody rights if the custodial parent becomes unable to care for the child.
Of course, the right to be considered a full legal parent of a child can be lost if a parent fails to exercise parental responsibilities. For example, all legal parents have a duty to support their children, whether or not they have physical custody of them. The key is that, if you are not the parent with custody, you must stay involved with your child—visiting and providing support—to the best of your ability.
If a partner is not a legal parent of the child, the partner may not have any legal rights to parent or even visit the child after a break-up. Ideally, if a partner wants to continue to be part of the child's life, both members of the couple will make and honor a workable agreement about how each will continue to parent, including how they will handle visitation and support.
If separating partners can't reach an agreement and one of them wants to petition a court for visitation, the outcome will depend on state law. Not long ago, almost all states would have denied a nonlegal parent any right to see the child of a former partner, no matter how close the parent had been to the child while they were living in the same house, but this rule is changing as some state courts recognize that the best interests of the child may make visitation with a nonlegal parent desirable. Because this area of the law is in constant flux, you'll want to research your state's law or visit a good family law attorney for guidance.