Family Law

Marriage

Marriage is a relationship between a man and a woman that has legal implications. In Maine, there are laws about how to marry, what your obligations are when you are married, and how to end a marriage.

If you are not a U.S. citizen, or permanent resident, or asylee, or refugee, it is always best to talk to a lawyer BEFORE you get married. (See Resources.)

Immigration issues. You do not need to have your green card or other legal status in the U.S. to marry. If you are a noncitizen without permanent legal status in the United States, and you marry a U.S. citizen or a permanent resident, you (and any children you may already have who are under 18 at the time of your marriage) may be able to get permanent residency through the marriage. However, this can be a very complicated process. If the person is a permanent resident, there is a waiting list to get residency. It will take years before you reach the top of the waiting list. Your marriage won't give you any new legal status while you wait.

If the person you marry is a U.S. citizen, in most cases your residency will be conditional, and will last for only two years. Before your conditional residency ends, you will have to apply for permanent residency. This process is usually simple if your marriage is going well. If there are difficulties in the marriage or if you and your spouse have separated or divorced, it is possible to apply to keep your residency, but you will need to have an immigration lawyer help you. (See Resources.)

If your husband or wife is abusive (hurting you either physically or mentally), you may be able to apply on your own to get legal immigration status, including permanent residency. This is very complicated and you will need to have an immigration lawyer help you. (See Chapter 13.)

Getting a License. In order to be legally married in Maine, you need a license. Licenses are available in all cities and towns. The following rules apply:

residents of the same town should apply at their town office.
residents of different towns in Maine should apply in either of those two towns.
if one person is from another state, they should apply in the town in Maine in which the Maine resident lives.
if neither person is a Maine resident, they can apply in any Maine town. It does not have to be the town where the marriage will be performed.

Both you and your intended spouse must visit the town office in person to apply for a marriage license. The license is valid for 90 days. You must bring the following with you:

a photo ID.
certified copies of both birth certificates.
a certified copy of the divorce decree or death certificate if this is not the first marriage.

Applicants must be 18 years old or more. If you are under 18, you need written parental consent. If you are under 16, you need written parental consent and the written consent of a judge.

Once you have the License. After getting the license from a town office, you will have 90 days to get married. Maine law requires that people be married by "officiants" (people who can legally solemnize the marriage). The following people can be officiants:

Ordained Ministers
Persons licensed to preach by an association of ministers, religious seminary, of ecclesiastical body
Judges or Justices (Maine residents only)
Lawyers admitted to the Maine Bar (Maine residents only)
Maine Notaries

The person performing the ceremony is responsible for filing the marriage certificate with the town that issued the license.

Divorce

When a married couple no longer wants to stay married, they must go through the court process to get a divorce. A court is the only place you can legally end your marriage. If you are not a U.S. citizen, be sure to check with an immigration lawyer to see if divorce will change your immigration status before starting a divorce action, or as soon as possible after a divorce action is filed with the court. (See Resources.) The District Court handles divorces.

Issues in a divorce. Divorces may address issues involving real estate (property), personal property, spousal support (alimony), retirement plans, and debts. Keep in mind that you may not have all of these issues in your specific case.

If you have children, your case will go through the family court. A Case Management Officer (CMO) will act as a judge. In addition to the things listed above, the CMO will also address the following issues: parental rights and responsibilities, primary residence, visitation rights, child support, and who will get the tax exemption.

Parental rights and Responsibilities. Parental rights and responsibilities involve how the parents are going to make the major decisions about their children's lives.

Most people share parental rights. This means you are your spouse will work together to make decisions about your child's education, health, religion, day care and travel.
Sometimes parental rights are allocated. This means you will have the right to make decisions on a certain topic (such as education). Your spouse will have rights to decide on other topics (such as religion).
Sometimes a parent has sole parental rights. This means that you are given the exclusive right to make decisions about what is best for the child.

Best interests of the child. A judge or CMO will consider the "best interest of the child" when deciding where your child will live and what type of contact the child will have with the parents. They look at a number of factors including:

your child's age
your child's relationship with you and your spouse
whether your child's current living situation is stable and adequate
what any proposed living situation is like
your child's connection to the community
the motivations of you and your spouse
you and your spouse's ability to allow contact between the child with the other parent
how you and your spouse work together to solve problems
whether there is domestic violence or child abuse present, and
your child's preference if they are old enough to express a meaningful one.

There is no set age where a child gets to decide where he or she wants to live.

Spousal support. A judge or CMO may order you to give money to your spouse in a divorce. The judge may consider many things in deciding whether to order spousal support including:

the length of the marriage
you and your spouse's age, income, earning potential, education, and health.

Additional factors include whether:

your spouse is a homemaker
you have retirement benefits
your spouse helped support you when you were in school.

The judge or CMO will consider whether you misused money during the marriage as well.

Court process. The first step in most divorces is a Case Management conference where you and your spouse will talk with the court about what the issues are and what, if anything, you agree on. If you disagree, the judge or CMO will order you to go to mediation. In mediation, a neutral person who is specially trained will try to help you and your spouse resolve your differences. If you are afraid of your spouse or your spouse is abusive, you can ask to be in separate rooms for the mediation or to not mediate at all. After mediation, you and your spouse will go back to update the Court on what happened in mediation. If you both agree on all the issues, you can have an uncontested divorce hearing. In this type of hearing, you and your spouse will tell the judge or CMO what the agreement is.

If there are any issues you and your spouse do not agree on, there will be a final contested hearing. In this type of hearing, the judge will decide what is fair and just. You and your spouse will testify. You will put on witnesses to show the judge what you want and why you think it is fair. You may submit documents to help the judge understand your position. The judge makes a decision based on all this information.

There is no set amount of time that it takes to get a divorce. The soonest you can be divorced is 60 days after the paperwork is served on your spouse. If there are lots of things you and your spouse agree on, the divorce case can go quickly. If there are lots of disagreements, the case may take much longer.

Pro se divorces. It is possible to represent yourself in a divorce proceeding. (However, it is not wise to represent yourself if there are significant disagreements between you and your spouse.) (See the resources about handling your own divorce.)

Child Protection

If there is a danger that your child is abused or neglected, the Maine Department of Human Services (DHS) may investigate your child's home life and may even remove your child from the home. Abuse generally means that a child is being hurt physically, sexually, or emotionally. Neglect means that a child's basic needs (food, shelter, clothing) are not being met or that the child is severely lacking in appropriate supervision or care.

DHS involvement. DHS can get involved in a number of ways. A parent or family member may call DHS to let it know they think your child is abused or neglected. Teachers, doctors, and counselors may also report abuse that they see or hear about. Sometimes a judge makes a call to DHS if she hears something in court that makes her think your child might be abused. There are a number of people who have to report suspected abuse under state law. The person making the report to DHS can ask that their report be confidential and that you not be told who complained.

Possible actions. When DHS gets a call about possible child abuse or neglect, it can decide to investigate the situation. It can also decide there is not enough information to believe there is any abuse going on. DHS may contact you at home to let you know that it received a report of child abuse. DHS may talk to you and your children and other witnesses about the situation to find out everything that is going on.

If DHS decides that your child does not need to be removed from the home, it will often refer your family to a local agency for help. You can get help with parenting programs, counseling services, in home services, and other supportive services. These referrals are designed to make your family situation more stable and increase the safety of your child.

If a child is removed. If DHS feels that your child is in immediate danger, it may ask the Court to order that your child be removed immediately from the home. Your child might be placed with other family members, a foster home, or a group home depending on your child's age and your family situation.

If your child is removed, you have the right to a court hearing within two weeks. Child protection matters are handled in District Court. If you cannot afford an attorney, you have the right to have the judge appoint an attorney to represent you. At that first hearing, you can force DHS to put on a case showing why the child was removed. Many parents waive this hearing.

A Guardian ad Litem (GAL) is also appointed. This person will look out for your child's best interests. The GAL will talk to you, your spouse, the children and anyone else they feel is appropriate. The GAL may suggest that certain types of services are necessary (like substance abuse or counseling). DHS may also suggest these types of services. The purpose of the services is to reduce the risk to your child and to get you the help you need to take better care of your child. You will usually be able to see your child even after he or she is removed from the home. This contact may be supervised.

The judge will monitor the situation with your family. The judge will want to know if you and your spouse are in agreement that DHS continue to be involved. If you and your spouse do not agree, you can ask for a hearing at which the state must prove that your child is in "jeopardy." If the judge finds your child is in jeopardy, it can order you to continue to receive services. It can also set up some other sort of plan for how best to meet your child's needs.

Termination of parental rights. The main goal of DHS intervention is to reunite the child with the family. All the court hearings and all the services are designed to see if your family can be reunited. However, if a judge determines that you and your spouse are not making progress during the time DHS is involved, or are making progress so slowly that it is detrimental to the child, the judge may hold a hearing to see if your parental rights should be terminated. If a court terminates your parental rights, it means you have no right to the child at all: no right to contact your child, no right to live with your child, no right to know anything about your child.

Adoption

Immigration Issues. A noncitizen child may be able to get legal status in the United States through adoption, but only if the child was adopted before the child turned 16 (or before the 18^th birthday, if siblings are adopted and the younger sibling is still under 16). The child must be free to be adopted, either because the birth parents are dead or because they have given up all legal rights in the child.

A child who is an orphan can immigrate if adopted by a U.S. citizen, even without ever having lived with the U.S. citizen before. The citizen will have to have a background check to make sure she has no criminal record, and will also have to have a "homestudy" done, where social workers will investigate whether the U.S. citizen will provide a good home for the child emotionally and financially. U.S. citizens who want to adopt an orphan from abroad may want to consult with a lawyer experienced in Maine adoption law and or immigration law before starting the process.

A permanent resident may help an adopted child immigrate only if she has already had both legal and physical custody of the child for two years before beginning to apply with Immigration on the child's behalf. A U.S. citizen can also file for an adopted child who is not an orphan, if these same requirements are met. Legal custody means that a court approved the adult to be the legal guardian or the adoptive parent of the child. Physical custody means that the child actually lived in the same household with the adult, and the adult was responsible for making decisions for the child. The U.S. government does not accept "customary" adoptions unless the official civil laws of the country where the customary adoption happened recognize customary adoptions as legal.

A noncitizen living in the United States who wants to adopt a child here may be able to do so even if the noncitizen has no legal status in the United States, as long as the court finds that it is in the child's "best interest" to be with that noncitizen. The court may ask about the immigration status of the adult who wants to adopt, though, in order to find out how stable the adult is. If the adult has no legal immigration status, a judge might think it is not in the child's best interest to be with that adult, since the adult might be subject to deportation if the adult comes to Immigration's attention. Generally, if the child is a member of the adult's family, for example, the adult's niece or nephew, the possibility that a judge will approve the adoption is greater.

Resources:

Immigration Legal Aid in Maine:

Immigrant Legal Advocacy Project
309 Cumberland Avenue, Suite 201
Portland, Maine 04101
207-780-1593 or 1-800-497-8505
info@ilapmaine.org

Services are free or low-fee depending on income

Walk-in consultations with an immigration lawyer are available every Friday. Call for hours.

Private Immigration Lawyers: See the "Immigration Law" listing under "Lawyers" in the Yellow Pages of the phone book

General Legal aid:

Pine Tree Legal Assistance

88 Federal St. 61 Maine St.
P.O. Box 547 Bangor, ME 04401
Portland, ME 044112 (207) 942-8241
(207) 774-8211 TTY (207) 942-1060
TTY (207) 828-2308

Augusta office: (207) 622-4731, TTY (207) 623-7770
Presque Isle office: (207) 765-4349, TTY (207) 764-2455
Machias office: (207) 255-8656, TTY (207) 255-6179
Lewiston office: (207) 784-1558

Find resources for handling your own divorce at www.ptla.org

Child Protection:

Maine Department of Human Services
Bureau of Child and Family Services
221 State Street
Augusta, Me 04333
Phone: (207) 287-5060
FAX: (207) 287-5031
TTY: (207) 287-5048

Maine Attorney General
Child Protection Division
6 State House Station
Augusta, Maine 04333
(207) 626-8800