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How do we distinguish between community and non-community property?
Who can adopt a child?
Does custody always go to just one parent?
What is a "no fault" divorce?
Marriage & Managing Property Dos & Don'ts
Common Law Marriage States
Divorce Statistics
Who Gets Custody of Embryos?
Reasons a Premarital/Prenuptial Agreement May be Invalid
Marriage vs. Cohabitation
Divorce Dos & Don'ts
Chronology: Establishing Paternity

How do we distinguish between community and non - community property?

Very generally, here are the rules for determining what's community property and what isn't:

Community property includes all earnings during marriage and everything acquired with those earnings. All debts incurred during marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are community property debts.
Separate property of one spouse includes gifts and inheritances given just to that spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested (that is, the pensioner became legally entitled to receive it) before marriage. Property purchased with the separate funds of a spouse remain that spouse's separate property. A business owned by one spouse before the marriage remains his or her separate property during the marriage, although a portion of it may be considered community property if the business increased in value during the marriage or both spouses worked at it. If separate property is commingled with community property during the marriage, it may become community property, either in part or entirely, depending on the circumstances.
Property purchased with a combination of separate and community funds is part community and part separate property, so long as a spouse is able to show that some separate funds were used. Separate property mixed together with community property generally becomes community property.

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Who gets to stay in the house?

If children are involved, the parent who spends the most time with the kids, or who provides their primary care, usually remains in the marital home with them. If you don't have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave.

If, however, you don't have children and you own the house together, this question gets tricky. Neither of you has a legal right to kick the other out. You can request that the other person leave, but he or she doesn't have to. If you and your spouse don't come to a decision, the court will decide for you during divorce proceedings, or earlier if you ask for a temporary order on the issue.

If your spouse changes the locks, or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door and let you back in. When you both own the home, the only time you can get your spouse to leave is if your spouse has committed domestic violence and a judge grants a restraining order.

Whatever you do, do not claim domestic violence has occurred, just to get your spouse removed from the home. (Some people have resorted to this extreme tactic.) Once a judge realizes this has occurred, the party claiming violence may be asked to vacate the home, and the judge may be biased against him or her during future negotiations. If you believe you are a victim of domestic violence, but are not sure, go to the Yellow Pages and call your local domestic violence hotline.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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Who can adopt a child?

As a general rule, any adult who is determined to be a "fit parent" may adopt a child. Married or unmarried couples may adopt jointly, and unmarried people may adopt a child through a procedure known as a single-parent adoption.

Some states have special requirements for adoptive parents. A few of these require an adoptive parent to be a certain number of years older than the child. For example, California requires adoptive parents to be at least ten years older than the adoptee, while Idaho requires a difference of 15 years. And some states require the adoptive parent to live in the state for a certain length of time before they are allowed to adopt. For instance, an adoptive parent in Georgia must have been a state resident for at least six months, and Minnesota has a one-year residency requirement. You will need to check the laws of your state to see whether any special requirements apply to you. And keep in mind that if you're adopting through an agency, you may have to meet strict agency requirements in addition to any requirements under state law.

Even if you find no state or agency barriers to adopting a child, remember that some people or couples are likely to have a harder time adopting than others. For example, a single man or a lesbian couple may not legally be prohibited from adopting, but may have a harder time finding a placement than would a married couple. This is because all states look to the "best interests of the child" as their bottom line, and will judge the various characteristics of the parent or couple -- often factoring in biases about who makes a good parent -- when making a placement determination.

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I'm single, but I'd like to adopt a child. What special concerns will I face?

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

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

Agencies serving children with special needs may be a good option for singles, as such agencies often cast a wider net when considering adoptive parents. While you shouldn't take a child you're not comfortable with, being flexible about your options will make the resistance to single-parent adoptions easier to overcome.

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My long-term partner and I prefer not to get married, but we'd like to adopt a child together. Will we run into trouble?

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

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Does custody always go to just one parent?

No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes one of three forms:

joint physical custody (children spend a substantial amount of time with each parent)
joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
both joint legal and joint physical custody.

In New Mexico and New Hampshire, courts are required to award joint custody, except where the children's best interests -- or a parent's health or safety -- would be compromised. Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement.

Are courts more likely to award custody to mothers than to fathers?

In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests, without regard to the parent's gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children's daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what's best for the children. So if you think that you should have primary custody and that you can persuade the judge that it's in the kids' best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

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Who determines how much visitation is reasonable and fair?

When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, the parent with physical custody is generally in the driver's seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.

Unfortunately, it all too often translates into little visitation time with the noncustodial parent, and bitter disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement) that sets the visitation schedule and outlines who has responsibility for decisions affecting the children. Or, for more about parenting agreements, see Child Custody: Building Parenting Agreements that Work, by Mimi Lyster (Nolo).

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What is a "no fault" divorce?

"No fault" divorce describes any divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong. All states allow no fault divorces.

To get a no fault divorce, one spouse must simply state a reason for the divorce that is recognized by the state. In most states, it's enough to declare that the couple cannot get along (this reason goes by such names as "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").

In some states, however, the couple must live apart for a period of months or years before they can obtain a no fault divorce.

What is a "fault" divorce?

A fault divorce may be granted when the required grounds are present and at least one spouse asks that the divorce be granted on the grounds of fault. Only some states allow fault divorces.

The traditional fault grounds are:

cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce
adultery
desertion for a specified length of time
confinement in prison for a set number of years, and
physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

Why choose a fault divorce? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And, in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

What if both spouses are at fault? When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

Can a spouse successfully prevent a court from granting a divorce?

One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.

A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived -- that is, set up -- his actions.
Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.
Collusion. If a couple lives in a state where no fault divorce requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is called collusion, because they are cooperating in order to mislead the judge. If one spouse decides he no longer wants a divorce (before the divorce is granted), he could raise the collusion as a defense.

But these defenses are rarely used -- for a couple of practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don't wish to be.

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Marriage & Managing Property Dos & Don'ts

The Dos

Do consider entering into a prenuptial or premarital agreement prior to marriage to make it clear which property is not subject to division upon your death or divorce.

Do maintain accurate and complete books and records to establish the separate nature of property you wish to keep separate from the marital estate, such as that held by you prior to marriage or received by you alone as a gift or inheritance during the marriage.

Do continue to keep all separate property separate throughout the marriage if you are concerned about keeping it in your family or as your personal asset upon your death or divorce. That means, very generally, that you should not "commingle" property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult--if not impossible--to legally determine which is which.

Do be aware that the increase in value of nonmarital property may be considered marital, such that each spouse is entitled to a share upon divorce or the death of the property owner, especially if the appreciation in value is considered "active" rather than "passive." Passive appreciation is, for instance, the increase in value of a bank account as a result of interest earned, or the increase in value of property merely as a result of inflation. Active appreciation, on the other hand, occurs as a result of some form of actual effort, such as by repainting the rental property, actively managing the stock portfolio, or working behind the counter at your spouse's ice cream store.

Do use only your nonmarital property to purchase (or in exchange for other) property if you want that other property to be nonmarital. In other words, a boat that you pay for with money you had before marriage and kept in a separate account after marriage will be considered nonmarital property, but if your spouse pays for part of it, or even helps maintain it, it could lose that characterization.

Do keep personal injury proceeds you acquire during marriage separate if you want them to retain their nonmarital character. The money you get from a personal injury lawsuit is yours alone, except for any portion that compensates you for your lost income or your spouse for the loss of your services.

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The Don'ts

Don't use nonmarital money to pay off a marital debt, or it could lose its nonmarital quality.

Don't make deposits of income earned during the marriage (which is usually considered marital property) into nonmarital accounts or the money in those accounts could lose its nonmarital quality.

Don't open a joint bank account with nonmarital funds, even if you intend to keep track of which portion is nonmarital, or which portion is your nonmarital and which is your spouse's nonmarital money. It is much more prudent to maintain separate accounts if you wish to keep the assets separate.

Don't assume that just because you owned property prior to marriage no portion of it will be deemed marital property. If, for instance, the home you owned before marriage increases in value during the marriage as a result of you and your spouse's efforts to maintain and improve it, your spouse may be entitled to an equitable portion of that increase in value.

Don't assume that your business remains entirely a nonmarital asset after marriage. If your business or professional practice increases in value throughout the marriage due in part to your spouse's contributions, whether they are in the form of doing the bookkeeping, entertaining clients, or taking care of the home and children so that you can put in those long hours, your spouse may be entitled to a share of the increase in value upon divorce or your death.

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Common Law Marriage States

Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony, or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of one spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage and the requirements of each are listed below. In addition, various other states will recognize a common law marriage if it was valid in one of these states and meets these requirements, even though those states do not themselves have statutes providing for common law marriages.

Alabama. In this state, the parties must agree to be husband and wife, they must have the mental capacity to enter into and understand such an agreement, and they must consummate the marital relationship.

Colorado. In order for a common law marriage to exist in Colorado, the relationship must be proven by the cohabitation of the common law spouses and their reputation for being married.

District of Columbia. In the District, a common law marriage is established by the parties' explicit intent to be married and by their cohabitation.

Georgia. Georgia does not recognize common-law marriages entered into after January 1, 1997. Prior to 1997, nonmarital living arrangements, which were afforded few specific rights or duties under Georgia law, could evolve into common-law marriages to which rights and duties attached given the requisite elements. Valid common-law marriages entered into prior to January 1, 1997, continue to be recognized.

Idaho. In Idaho, a common law marriage arises when the parties consent to the marriage and assume marital rights, duties, and obligations. Consent must be followed by a solemnization, or by a mutual assumption of marital rights, duties or obligations.

Iowa. A common law marriage is established in Iowa by the parties' intent and agreement to be married, their continuous cohabitation, and their public declarations that they are husband and wife.

Kansas. In Kansas, the man and woman must have the mental capacity to marry, they must agree to be married at the present time, and they must represent to the public that they are married in order for a common law marriage to exist.

Montana. In Montana, the parties must have the capacity to consent to marriage, they must agree to be married, they must cohabitate, and they must have a reputation of being married.

New Hampshire. Common law marriages are recognized in New Hampshire for inheritance purposes only. This state recognizes common law marriages only upon the death of one of the spouses.

Oklahoma. The parties must be competent, agree to enter into a marriage relationship, and cohabitate in order to be considered as having a common law marriage.

Pennsylvania. A common law marriage is established in Pennsylvania by the exchanging of words between a man and a woman indicating an intent to be married at the present time.

Rhode Island. In Rhode Island, a common law marriage exists if a man and woman have a serious intent to be married and engage in conduct that leads to a reasonable belief by others in the community that they are married.

South Carolina. In this state, if a man and woman intend for others to believe they are married, a common law marriage may be established.

Texas. If a man and woman in Texas sign a form provided by the county clerk, agree to be married, cohabitate, and represent to others that they are married, a common law marriage exists.

Utah. In Utah, a common law marriage is established if the man and woman are capable of giving consent and getting married, if they cohabitate, and if they have a reputation of being husband and wife.

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Divorce Statistics

According to recent U.S. Census Bureau statistics, about 2.5 million people get divorced each year
First marriages that end in divorce last an average of eleven years, according to the National Center for Health Statistics (NCHS). Subsequent marriages that end in divorce last an average of only seven years.
The NCHS records also indicate that the average age of women divorcing for the first time is thirty-three; for men, it is thirty-five.
The average age of women divorcing for the second time is thirty-nine, and for men it is forty-two, the NCHS report states.
The NCHS reports that numbers of married couples divorcing are highest among men ages thirty to thirty-four and women ages twenty-five to twenty-nine, but divorce rates (or the percentage of total married couples divorcing) are highest for men ages twenty to twenty-four and women ages fifteen to nineteen.
The NCHS reports that divorce rates range from 2.7 per 1,000 people in Massachusetts to 10.8 per 1,000 in Nevada.
Nearly 75 percent of all custody awards are made to the mother. About 10 percent of awards are made to fathers, and the rest involve joint custody arrangements, says the NCHS.
According to the Census Bureau, parents who owe child support are more likely to pay the ordered support if they either share custody of or have visitation rights with their children.
Recent Census Bureau statistics also indicate that nearly 40 percent of all non-custodial fathers have no access to or visitation rights with their children.

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Who Gets Custody of Embryos?

The recent innovations in reproductive technology have helped many couples and individuals achieve pregnancies that may have been impossible just a few years ago. As with many innovations, however, rapid scientific advances have brought with them new ethical and legal dilemmas. Twenty years ago, judges and attorneys who were accustomed to dealing with the often challenging issues of child custody may not have guessed that they would soon be faced with potentially even tougher issues involving custody of frozen embryos.

Take the case of a Tacoma, Washington couple who had two embryos formed with donor eggs and the husband's sperm "left over" after a successful birth using a surrogate. The couple had the eggs frozen with the intention that they, too, would someday be implanted in the uterus of a surrogate mother. The couple later divorced, and the judge awarded custody of the frozen embryos to the husband. The husband wanted to place any children born from the embryos for adoption in a two-parent family outside the state of Washington. The wife appealed from the court's ruling, arguing that she wanted to raise any potential children. The egg donor also wanted a say, and sided with the wife.

A Michigan couple faced a similar dilemma. The divorced couple fought over five frozen embryos for years. The former wife wanted to have more children, using the embryos, but the former husband objected to that plan and the case went to court. The judge ruled in favor of the husband, stating that the husband had a right to choose not to have more children. In that case, too, the wife appealed.

An Illinois court struggled with a similar problem in another case involving frozen embryos, ordering in late 1999 that they remain frozen until the court could sort out the weighty constitutional questions involved. In that Cook County case, the husband and wife were in the midst of divorce when the husband asked the court to order the wife not to attempt to become pregnant through implanting the embryos they had frozen earlier in their marriage. The court issued the requested order, ruling that custody of the embryos would be decided as a part of the divorce trial.

These cases demonstrate that thorny legal issues may arise when assisted reproductive technology is implemented, further complicating an already stressful situation like divorce. Couples considering assisted reproductive technology are generally only thinking of the potential positive outcomes and fulfilling their dreams of starting a family. Such couples would be well advised, however, to discuss the legal implications of their decisions with their lawyers before the fact, so that if for some reason they do not live happily ever after, they will have prepared themselves as well as possible to deal with the legal and ethical challenges presented by their situation.

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Reasons a Premarital/Prenuptial Agreement May be Invalid

No Written Agreement. Premarital agreements must be in writing to be enforceable.
Not Properly Executed. Both parties, before the wedding, must sign premarital agreements.
You Were Pressured. An agreement may not be valid if one of the spouses was pressured by the other or (by his or her lawyer or family) to sign the agreement.
No Time For Consideration. A prospective spouse entering into a premarital agreement must be given time to review it and think it over before signing it. If the groom hands the contract and a pen to the bride just before she says, "I do," the agreement is probably invalid.
Invalid Provisions. Although a premarital agreement can cover just about any financial aspect of the parties' relationship, it cannot in any way modify the child support obligations that either spouse would have if the marriage should end in divorce. Any other provisions of the agreement that violate the law would also be invalid. It is possible, however, that the court would enforce the remainder of the agreement, striking the illegal clauses.
False Information. A premarital agreement is valid only if entered into after full disclosure by both parties of their income, assets, and liabilities. If one prospective spouse provides the other with information that is not true, the agreement is invalid.
Incomplete Information. Failing to provide pertinent information is as bad as providing false information, and it renders the agreement unenforceable.
No Independent Counsel. Because their separate interests are at stake, both parties to a premarital contract should, and in some states must, be represented by their own attorneys or the agreement will not be enforced.
Unconscionability. It's true that you can agree to give up your right to inherit from your spouse, which you would otherwise be entitled to do upon your spouse's death, even if he or she left you out of a will. You can sign away your right to spousal support if you should end up in divorce court, even if your spouse makes ten times as much money as you do. You can even agree that your spouse gets all of the property and you get all of the bills, if that is what you want to do. But if the agreement is so grossly unfair that one party would face severe financial hardship while the other prospered, the court is unlikely to enforce it. "Unconscionable" contracts are generally found invalid, and premarital agreements are no exception.

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Marriage vs. Cohabitation

Marriage may not be right for everyone. Some couples, either by choice or because they have no other option, live together without the benefit of a legal union. There are legal differences between marriage and cohabitation relationships, some of which are summarized below.

Marriage		Living Together
Requirements, which vary from state to state, include that spouses be of opposite genders, a license, a waiting period, blood tests, minimum ages, a ceremony officiated by a clergyperson or an officer of the court, and witnesses.		Can be entered into any time by anybody of any age and any gender, without any formal requirements.
Must be ended by a formal, legal divorce or annulment process that can be costly, time consuming, complicated, and emotionally draining.		Usually can be ended simply and informally upon the agreement of the parties. Often, however, the emotional costs are the same as or similar to those experienced at the end of a marriage.
Divorcing spouses have the obligation to divide their property by legally prescribed methods.		At the end of a relationship, the parties can divide the property however they want. The absence of legal guidelines may, however, create even more conflict as to who gets what.
A wage-earning or higher-wage-earning spouse may have the obligation to provide support for the other spouse upon separation or divorce.		Couples who live together and then split up usually do not incur the obligation to support each other after the break-up, unless they have entered into a contract providing otherwise. While this may seem a boon to the supporting partner, a partner who has become accustomed to being supported may face unexpected financial hardship after the split.
If one spouse becomes ill or incompetent, the other spouse generally has the right to make decisions on the ill spouse's behalf.		No matter how close the bond or how long the relationship has existed, a cohabitant may lose out to immediate family members when it comes to making decisions for an incapacitated unmarried partner, unless a general power of attorney and health care power of attorney give that authority to the cohabitating partner.
When one spouse dies, the other spouse has the legal right to inherit a portion of the deceased spouse's estate.		When one cohabitant dies, his or her property will pass to whomever is named in the will or, if there is no will, to family members according to the laws of intestate succession. The surviving partner has no claim to the estate unless he or she was named in the deceased partner's will.
Children born during the marriage are presumed to be the offspring of the husband and wife.		The father of a child born to unmarried cohabitants is not entitled to a legal presumption of paternity and may have to establish his paternity through blood tests and a legal action.
Children born to married couples must be financially supported during the marriage.		The male in a cohabitating partnership does not incur an immediate legal obligation to support children born during the cohabitation, but may do so voluntarily and must do so if paternity is established.
After separation or divorce, the non-custodial parent generally is legally obligated to help financially support the children of the marriage.		After a cohabitating relationship ends, the non-custodial parent has the same legal obligation to support his or her children as legally separated or divorced parents, if parentage has been established.

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Divorce Dos & Don'ts

Divorce is tough. Tempers run high, and every decision seems to be more stressful than the last. It's only human to find yourself reacting emotionally, but it's important to keep your head straight - your actions now can affect your outcome from the divorce.

The Dos

Do be reasonable and cooperate as much as possible with your soon-to-be-ex. Reasonable compromise yields quicker and easier results in divorce cases.

Do support your children through this process. It's even tougher on them than on you - don't make them pick sides.

Do let your spouse know when and where you will spend time with your kids while you work out permanent custody arrangements. Your spouse might think you've made a run for the border - and if your soon-to-be-ex has to ask the police to track you down, that won't look good during custody or visitation hearings.

Do fully disclose all your assets and property. A court can throw out a divorce decree based on financial deception, putting you back in court years after you thought everything was final.

Do ask your attorney about things you don't understand. Your attorney works for you, and should help you understand every part of the divorce process.

The Don'ts

Don't make big plans to take a job in another state or move out of the country until your divorce is final. Your new life could interfere with getting your divorce finalized.

Don't violate any temporary custody or visitation arrangements. It could make it tougher for you to get the custody or visitation rights you prefer.

Don't "give away" property to friends or relatives and arrange to get it back later. Hiding property can mean your spouse can take you back to court to settle those assets.

Don't go it alone. Divorce is complicated, and an attorney can make sure that your interests are protected.

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Chronology: Establishing Paternity

When a child is born to a married couple, a legal presumption arises that the husband is the child's father. The same is not true with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and a parent seeks custody or child support, for inheritance purposes, and in a variety of other circumstances.

If the parents get married after the mother becomes pregnant but before the birth, the husband's paternity is presumed in the same manner as if the parents were married at the time of conception. If the parents marry after the child is born, they can sign a legitimation form, which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father's identity. In such cases, they may sign a legal form called a voluntary acknowledgement of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgement can be done right in the hospital following the child's birth, or any time thereafter. The father's name is then included on the child's birth certificate.

Even if a voluntary acknowledgement is not signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father's identity and resolves custody and support issues.

If neither of these voluntary procedures is an option, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child's father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order to recover its costs from the father. The putative, or probable, father's presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy. If paternity is established in this manner, the court will enter an order regarding the father's paternity. The father then becomes legally obligated to pay child support according to the state's guidelines, which are generally based on both parents' incomes and the needs of the children. A father may also initiate legal action to establish his own paternity.

At any time in this process prior to entry of the court's order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, a father is legally required to provide financial support to his children, so he does not have a lot of negotiating room.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from his or her father, is eligible for health insurance coverage under the father's group policy, is entitled to social security benefits if the father dies or becomes disabled, may be entitled to wrongful death benefits if the father dies as a result of someone else's negligence, and can obtain medical history information, to say nothing of the emotional benefits - to both the father and the child-that may be reaped as a result of establishing paternity.

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You should consult an attorney for individual advice regarding your own situation.