Introduction to Family Law
Practice
Chapter 1
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Family Law Theory
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Common Law & Statutory Law
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Reflecting societal values & attitudes
Support & maintenance of family members
Care & custody of minor children
Division & distribution of property
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Court Procedures
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Initiating family-related actions in court
Acquiring & presenting evidence
Pendente lite support, custody & visitation
Enforcing or modifying court orders
Using Alternative Dispute Resolution to:
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Eliminate Issues
Encourage settlement
Litigating unresolved, contested issues
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
The Family Practitioner’s Role
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Represent the client’s legal interests
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With the least amount of court intervention
With the least amount of additional pain &
damage
With the least amount of time & expense
Handle the most personal and intimate
details of client concerns with sensitivity,
respect, understanding, and care.
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
United States
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Separation of Church & State
Married Women’s Property Acts
Spouses become responsible for each other
Breach of marriage contract resulted in
grounds for divorce
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Family Law Today
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Increase of divorce rate until the 1980’s (why)
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Reasons for increase in the divorce rate may also include
the fact that child support is set by statute (less fear of
loss of support)
Federal & state child support enforcement help:
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Tax interception
Wage garnishment
Revocation of professional licenses
Interstate enforcement cooperation (long-arm, full faith & credit)
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Definition of Marriage
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Legal union of a couple as husband & wife
Federal Defense of Marriage Act (DOMA)
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States can deny recognition of another state’s
same-sex marriage, union, or partnership laws
Defines marriage (for Federal purposes) as “a
legal union of one man & one woman as husband
& wife.”
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Same-sex Marriages, Civil Unions, &
Domestic Partnerships
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NOT recognized by Federal law (DOMA)
Some states have official recognition of
same-sex relationships
Some states have passed constitutional
amendments prohibiting recognition of these
relationships within their boundaries.
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Benefits of Marriage
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The protection of a state-supervised divorce
Immigration/residency benefits
Probate: statutory share, intestate succession
Tax benefits (tax return, estate tax)
Spousal communications privilege
Family benefits
Guardianship/conservatorship rights
Possession of deceased’s remains
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
A Sampling of Marriage Requirements
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Not within the prohibited bounds of
consanguinity or affinity (incest)
Man & woman (according to birth certificates)
Of the age of consent (varies by state)
Blood tests (rare)
License
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Solemnization of Marriage
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States specify qualifications of those permitted to
perform the ceremony, but can include:
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Judges
Mayors
Clergy
Spiritual assemblies or congregations
License required
Ceremony must be recorded, resulting in the
issuance of a Marriage Certificate
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Sampling of Prohibitions
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Incest (marriage within the prohibited
degrees of consanguinity or affinity)
Polygamy (more than one marriage
attempted)
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Second marriage not valid
In some jurisdictions, the second marriage may
be “revived” if the first is terminated.
Same-gendered applicants
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Common Law Marriages
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Recognized in some states if properly perfected.
Parties must live together for a specified or
significant period of time
Public indicia of marriage relationship
Present intent to be married
Parties must meet statutory requirements for
ceremonial marriage eligibility
Once proven, requires a formal, legal divorce.
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Termination of Marriage Relationship
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Legal separation
Annulment
Divorce, or dissolution
Death
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Legal Separation
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Remarriage not permitted
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Requires grounds in some states
Property may distributed
Spousal support may be awarded
Children’s issues will be resolved
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Custody
Visitation
Support
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Annulment
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Religious divorce or ecclesiastical annulment is totally
independent of the legal action
Must still settle all parental rights, obligations
Based upon grounds that invalidate the marriage
– Bigamy
- incest
– Lack of mental capacity
- sham/joke
– Fraud, duress or coercion
- under the influence
– Not of the “age of consent” (nonage)
– Physical inability to consumate the marriage
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Divorce or Dissolution
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Legal termination of an existing marriage
Based upon fault or no-fault grounds
May be contested or based upon a mutually
acceptable Separation agreement.
Fault grounds:
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Create a stigma of misconduct
Are more expensive to prove
Tend to increase acrimony
May be harder on children
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Ethics in Family Law
Chapter 2
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Unauthorized Practice of Law (UPL)
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Not admitted to practice law in that
jurisdiction
Not a pro hac vice appearance
Not appearing in propria persona (pro se or
pro per)
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
UPL Violations
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Representing someone in court
Preparing legal documents without attorney
supervision
Negotiating on the client’s behalf
Giving legal advice
Accepting/rejecting clients for representation
Negotiating or setting fees
Failing to disclose paralegal status
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Rules of Ethics
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Attorneys are required to supervise and assume
responsibility for employees
Attorneys are bound by the set of ethics their state
has adopted
Attorneys assume the responsibility of maintaining
an ethical law practice
Violations of ethical standards by any employee can
result in actions against the attorney, as supervisor
Ethical sanctions, civil or criminal liability
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Protection Against Malpractice
or Grievances
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Promptly return client phone calls
Adhere to deadlines (“tickler” systems)
Identify paralegal status
Docket court dates carefully
Perform thorough conflicts checking
Disclose potential conflicts from previous
employment
Relay client information to the attorney promptly
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Confidentiality
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Client information obtained in the course of
representation is presumed confidential
Applies to files, correspondence
Applies to phone, FAX, internet
communications
Precautions must be taken with outside
personnel, repair people, printers, computer
technicians, etc..
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Attorney/Client Privilege
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Evidentiary rule, not ethical precept
Extends to law office personnel
Client holds the privilege, and can therefore
waive it.
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Conflict of Interest
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Multiple representation creates an intrinsic conflict
Some jurisdictions permit representation of both husband &
wife in uncontested matters
Court cases change, creating adversaries of former allies.
Possession of confidential information can bar a firm from
subsequent representation of either of the newly
adversarial parties.
Job changes can result in conflicts
Ethical walls can be established to “wall off” a potentially
conflicted employee
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Mixing Personal & Professional
Relationships (unethical)
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Sexual Relations with Clients
Loaning money to a client
Gifts from a client
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Communicating with the
Opposing Party
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Never communicate directly with the opposing party
unless instructed to do so by your supervising
attorney.
If the opposing party contacts your office, you must
not engage them in conversation. Have their
attorney contact the office, and inform your attorney.
All written communications received directly from the
opposing party should be handled by your attorney.
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
The Pro Se Litigant
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When the opposing party is self-represented:
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Request written confirmation that there is no legal
counsel
Do not proceed with communications until there is
an official notice of appearance filed with the court
Resist any phone communications: a paper trail
may be important
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Unbundled Legal Services
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Representation contract specifies which
services will be provided
Initial case preparation
Trial assistance
Alternative Dispute Resolution
Fees must be carefully explained
Carefully delineate the covered services from
non-covered
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Competence
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The duty to exercise a reasonable degree of care &
skill commonly used by their attorneys engaged in a
similar area of practice.
Specific legal disciplines, such as family law, require
that attorneys, and their paralegals, maintain their
education and training:
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Continuing Legal Education (CLE) may be required by the
state bar or professional credentials (e.g., PACE registration
by NFPA).
Clerking (law students), internships or practicums (paralegal
students)
On-going legal research on pertinent issues
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Fee Arrangements
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Flat (or fixed) fee (simple case, no kids/property
Contingent fee -Not ethical in divorce cases
Hourly Rates
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Most common billing scheme
Requires careful record-keeping of billable time spent,
usually tracked in tenth- or quarter-hours
Expenses will be billed to the client separately
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved
Solicitation
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Attorneys cannot approach persons in need of legal
services without a prior relationship
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It is permitted when free services are offered
Some areas permit “cold” letters in response to police
reports, if they are clearly labeled “advertisement”
Advertising is not solicitation, and may be permitted:
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Telephone directory
Internet
Radio/TV spots
Cards & letterhead
Pro bono credits in programs, etc.
Luppino and Miller: Family Law and Practice: The
Paralegal's Guide, 2nd ed.
© 2008 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved