Emancipation – the Pros and the Cons

Emancipation is frequently mistaken as a synonym for manumission, that is, the act of freeing a person from slavery or servitude. The mistake is more common in America, where the phrase “Emancipation Proclamation” has been indelibly linked with the efforts of 1860’s-era Northern politicians to free enslaved African-Americans. In reality, however, the word is a legal term with specific inference. It denotes a change in legal status, or more accurately, the conferring of the legal rights of an adult upon an individual not normally entitled to such rights. In such a light, therefore, it is relatively easy to see what the emancipation of a minor does: it confers the legal status of an adult upon a person who has not yet reached his or her eighteenth birthday.

But there are, as with anything, limits to what the legal paperwork can accomplish. This article is designed to explain what emancipation will (and will not) accomplish, the general rules for eligibility, and perhaps some guidelines on whether the cost (in more than just money) is worth the result.

Emancipation: What it is

Emancipation is the legal process of permitting a person who has not yet attained the age of majority (18 in most jurisdictions) to act as an adult in matters of law and business. Normally speaking, there are three rights which an adult obtains upon attaining his or her majority:
1. The adult may own personal property without limitation.
2. The adult may transact business without a guardian’s permission, including the acquisition or assumption of debt.
3. The adult may enter into legal and binding contract without a guardian’s authorization.

Although this may seem a short list, it is surprisingly encompassing. Minors are not permitted, in most cases, to hold property; estates of parents who die while the children are still minors must be held in trust for the minors until they come of age. Likewise, although minors may in limited cases own stock in a company, they are forbidden to transact business, even if the ownership of the stock would normally confer that right (for example, the stockholder cannot vote). A small savings account is likely to be the only property that the minor may lay claim to, and even so a guardian must sign on to the account to open and maintain it.

Hence, a minor is effectually handicapped until achieving majority. He or she is unable to act for themselves in any legal way, may not own property (and in the few cases where property ownership is allowable, may not exercise the business rights normally conferred by such ownership) and is dependent upon his or her guardian for all essential business transactions. The act of emancipation, however, changes those restrictions. Emancipation, put simply, allows a minor to transact personal business legally in his or her own name, allows the minor to enter into legally binding contracts and allows the minor to own property. From a legal sense, the change is temporary, and the rights so conferred lapse when the emancipated minor achieves majority (in which case, obviously, the documents are no longer needed).

Emancipation is, first and foremost, a personal document of a personal change. While legislation and executive or judicial order may indeed make entire classes of persons eligible for the emancipation benefits, the fact remains that the granting of such rights is done strictly on a personal basis. Additionally, the document is a civil legality, and does not confer the right to violate criminal law, nor shield an offender from prosecution and punishment.

Emancipation: What It Is Not

An emancipated minor has rights that lie somewhere between those of an adult and those of a child. The stage has been called “a legal uncertainty” by justices in the past, since some but by no means all of the rights of adulthood are conferred to the minor. A short list of what the emancipation of minor does and does not provide is listed below:
1. Emancipation allows the holder to transact business and hold property n his or her own name, but does not confer the ability to transact business or hold property on behalf of another legal entity. Hence, although an emancipated minor can legally hold stock he or she cannot vote the shares, nor can he or she make corporate policy. Additionally, the lack of this right in its fullest form implies that the minor cannot act in any position in an organization which is involved with the setting of policy, the enforcement of bylaw or the handling of the treasury.
2. Emancipation makes the signature of the child valid upon a contract, but is not retroactive. Likewise, any contract so signed by the emancipated minor may be enforced as if the minor had attained majority.
3. Emancipation does not necessarily confer ownership of any property held in trust for the child.
4. Emancipation does not confer status equal to “age of consent.” Any adult having sexual relations with an emancipated minor may still be prosecuted under law for statutory rape.

Emancipation, in bottom-line terms, does nothing except validate the minor’s signature on personal contracts. It cannot absolve the minor of his or her minority, and more importantly, it cannot abrogate any criminal law. It is, as has been pointed out before, a civil action and affects only civil law.

Emancipation: General Guidelines for Eligibility

Eligibility requirements vary widely from state to state, and no federal law has ever been passed to unify or even to provide guidance for unification. Those individuals interested in further pursuing the civil contract of emancipation are invited to turn to an attorney skilled in state civil law. The links at the end of this document will point you to the American Bar Association, the largest association of attorneys in America, who can help you locate a reputable attorney in your area.

In general, however, guidelines for eligibility include the following:

1. The minor must be at least 14 and no more than 18 years of age (the emancipation generally expires the day after the 18th birthday).
2. The minor must provide at least 51% of his or her support (i.e. cannot be dependent upon any adult for more than half of his or her sustainment).
3. The minor must be of “sound reason” and be adjudged competent to handle his or her own affairs. This requirement may include psychiatric evaluation.

The process is often long, difficult and occasionally tortuous, and has been compared in some circles to the process required for a difficult divorce (which, at least in some sense, it is). Although it is possible for the minor and his or her court-appointed advocate to do much of the paperwork, legal counsel will be needed along the path. Rarely, if ever, is such assistance done pro bono. A competent and trustworthy attorney will outline the level of assistance and fees he or she will expect, and will probably be close if he or she has done emancipation work in the past. Ask for an upfront cost, and take advantage of no-obligation first-time consultations.

Before you start the process, however, it is wise to look carefully at what you are giving up versus what you are acquiring. You will be taking away your parents’ rights to handle your affairs, and by a spectacularly messy method. This is almost certain to unearth skeletons from long-closed closets and air some very dirty laundry in public; it is also quite likely to raise significant levels of bad blood between you, your parents and upon occasion, your siblings, if any. You will also be transacting away a major tax break on your parents’ side, as a parent cannot, by law, claim an emancipated child as a tax deduction. When money gets involved with family, the results are rarely positive.

You will also be letting yourself in for a protracted legal battle (again, remember the analogy of divorce). However, if your situation at present is truly intolerable, and would be rectified by emancipation, then begin by acquiring a knowledge of local laws, a reputable attorney, and an advocate. You will need all three to succeed.