Family Law Prof Blog

Editor: Margaret Ryznare
Indiana University
Robert H. McKinney School of Law

Saturday, October 3, 2015

Florida Supreme Court Strengthens Waiver Rule in Prenuptials

From Daily Business Review:

The Florida Supreme Court got a collective cheer from divorce lawyers who represent the wealthier spouses in fights over prenuptial agreements.

Resolving a dispute among the districts, the high court made it easier for divorcing spouses to claim individual assets through a prenup. The justices said if the document shows one spouse's intent to waive all interest in the other spouse's assets, when the marriage ends the disadvantaged spouse can't break the prenup and share them.

The unanimous Sept. 10 ruling in the case of a Palm Beach County couple means ex-wife Diane Hahamovitch walks away with the $1.9 million the prenup promised her. Ex-husband Harry Hahamovitch, a mortgage broker and financial planner, gets to keep everything he acquired during the couple's 22-year marriage.

The ex-wife argued their 1986 agreement didn't specifically refer to the enhanced value of the husband's property due to marital labor or funds. Also, it didn't state the husband's earnings would be considered his separate property.

But the justices agreed with the Fourth District Court of Appeal that the phrasing was so broad, a few missing magic words didn't matter.

Read more here.

October 3, 2015 in Antenuptial (postnuptial) Contracts | Permalink | Comments (0)

Friday, October 2, 2015

Preserving the Fertility of Young Chemo Patients

From WVXU:

Six year old Mylah Bryant has a blood disease (aplastic anemia) that required chemotherapy and a bone marrow transplant at Cincinnati Children’s Hospital Medical Center.

Not only did doctors discuss making her well they asked her parents if they wanted to preserve tissue so she could reproduce years later without the damaging effects of chemotherapy.

It was a lot to think about, according to Mylah's dad Matthew, but because his daughter jokingly said "she wanted 1,000 children," he knew being a mother was important to her. This decision was on top of other decisions he and his wife needed to make.

“A lot of paperwork signing. You do the consents and somebody says-hey what do you think about taking out your daughter’s ovary? Um, ok, and so we kind of left it at that. There’s a lot of information, a lot of it is a blur.”

It was Children’s Fertility Navigator Olivia Frias who introduced the idea to the Bryants and explained the specifics. She sees about seven to ten new patients a week. She says, " Of course there’s so many emotions, a malignancy or maybe they have found some type of blood disorder that’s going to warrant them a BMT. (bone marrow transplant) But at the end of the day parents are very enlightened when they hear about this information and they are thankful about hearing about this.”

 Read more here.

October 2, 2015 in Alternative Reproduction | Permalink | Comments (0)

Thursday, October 1, 2015

Scientists in France Claim Creation of In Vitro Human Sperm

From The Japan Times:

A French startup working with a top government lab said it has developed in vitro human sperm, claiming a breakthrough in infertility treatment sought for more than a decade.

Researchers with Kallistem had announced the discovery previously, but they and French government lab CNRS described how it works for the first time on Sept. 17 after taking out a patent on the process.

They have developed sperm from immature cells known as spermatogonial cells, which are present in all males, including pre-pubescent boys, and under normal conditions develop into sperm cells once puberty starts. The technology must now be clinically tested, a process that is particularly painstaking for any treatment involving reproduction.

Philippe Durand, the chief Kallistem researcher, said the genesis of the research was indications that male fertility was declining, which he said could be attributed to environmental factors.

Read more here.

October 1, 2015 in Alternative Reproduction | Permalink | Comments (0)

Wednesday, September 30, 2015

Planned Parenthood Fights to Regain Initiative

From The New York Times:

The undercover videos were made over more than two years, yet Planned Parenthood was taken by surprise when the first one was posted online in July. Now one of the biggest crises in the 99-year history of the organization, the nation’s largest provider of women’s reproductive health care, could reach a climax this week as conservatives want to shut down the government rather than help fund the group.

Dawn Laguens, Planned Parenthood's executive vice president, recalled that after an aide alerted her to the initial video by the little-known Center for Medical Progress, an anti-abortion group, she thought: “This is not new” — Planned Parenthood had faced such tactics before — “but it’s a new low. And it is going to have reach.”

Immediately the organization was caught in a storm of internal confusion and defensiveness. There was disquiet among Democratic allies as Republicans, who control Congress and many state capitols, charged that the nonprofit organization was criminally “profiteering in baby parts.” A new video surfaced almost every Tuesday.

But Planned Parenthood has fought back and managed to put some opponents on the defensive after gathering information from its affiliates; hiring lawyers, crisis managers and video experts to document deceptive edits; and working to solidify support among donors, Democrats and, according to polls, a majority of Americans.

Read more here.

September 30, 2015 in Abortion | Permalink | Comments (0)

Tuesday, September 29, 2015

When the Wealthy Divorce, They Regularly Engage Forensic Accountants

From Forbes:

Worldwide, the use of forensic accountants by the wealthy – especially the ultra-wealthy – is increasing. This is a trend that is likely to only accelerate. There are a number of different reasons the wealthy engage forensic accountants. Often, when the wealthy bring in a forensic accountant, it’s to address business concerns. The questionable practices of business partners might very well prompt the hiring of a forensic accountant.

Relatively speaking, a burgeoning need by the wealthy for forensic accountants is driven by them divorcing. According to James DiGabriele, professor of accounting at Montclair State University, one of the foremost forensic accounting programs in the country, “It’s impossible to appropriately divide marital assets if everyone doesn’t know just what those assets are and what they’re worth. High-net-worth couples generally have a number of types of assets such as investment portfolios, businesses, collectables, partnerships, and the list goes on. Divorce lawyers are not the professionals that are going to be able to determine the value of all the different assets. That’s the job of the forensic accountant.”

“When assets are held in trusts or partnerships, or located in different jurisdictions, getting a valuation can be complicated. Also, the valuation of retirement plans, deferred compensation arrangements, and life insurance programs all require the expertise of a qualified accountant,” explains Ellen Rabasca, partner at Geltrude & Company, directing their divorce practice. “What’s even more of an issue is when a spouse chooses to play dirty and tries to divorce plan by hiding marital assets. This can get very complicated when we’re dealing with privately owned businesses. For example, business owners have been known to use dummy or shell corporations to conceal assets from divorcing spouses.”

Read more here.

September 29, 2015 in Divorce (grounds) | Permalink | Comments (0)

Monday, September 28, 2015

New Website Promises to Handle Your Divorce and Filing Costs for $99

From TIME:

A new website aims to take much of the heartache and cost out of getting a divorce by conducting the whole process online.

Presented at TechCrunch Disrupt in San Francisco on Tuesday,, founded by Sandro Tuzzo and Larry Maloney, aims to distill legal jargon into plain language and reduce legal fees from tens of thousands of dollars to base price of around $1,500. Initial filing costs just $99.

“Today, connecting is easy. There’s tons of software applications out there for that,” Tuzzo said onstage at the event. “But what if you need to end a relationship, where are the tools for that?”

After working as a divorce attorney for the past 15 years, Tuzzo said he knows too well just how arduous the process can be. aims to simplify the procedure by letting users complete, file and serve divorce papers online.

Read more here.

September 28, 2015 in Divorce (grounds), International, Web/Tech | Permalink | Comments (0)

Sunday, September 27, 2015

Utah Supreme Court Sets High Bar for Grandparent Visitation Orders

From The Salt Lake Tribune:

In 2000, the U.S. Supreme Court ruled a "mere disagreement" over a child's best interests cannot override the presumption in favor of a fit parent's decision regarding grandparent visitation.

This week, the Utah Supreme Court ruled that grandparents seeking to override parents must present proof that a visitation order is narrowly tailored to advance a compelling governmental interest — such as protecting children against substantial harm.

In Ellie and Tracy Jones Sr.'s dispute with their former daughter-in-law over visitation with their granddaughter, the couple argued that they had acted in a parent-like role as caregivers. But the state Supreme Court said there was insufficient evidence of such a relationship and upheld a Utah Court of Appeals decision that invalidated a visitation order issued against the wishes of the mother.

"Grandparent visitation orders must be limited to the exceptional case where the failure to override the parent's wishes would cause substantial harm to the child," Associate Chief Justice Thomas Lee wrote for the court in Wednesday's unanimous decision.

The exceptional case identified by state statute is where the grandparent has filled a role similar to that of a parent, Lee said, adding, "No such proof was presented here." Anthony Kaye, an attorney who represents the mother, said Friday that the ruling will subject grandparent visitation orders to strict scrutiny and limit interference in parental decisions regarding visitation.

Read more here.

September 27, 2015 in Visitation | Permalink | Comments (0)

Saturday, September 26, 2015

Weiner: "A Parent-Partner Status for American Family Law"

Professor Merle H. Weiner (University of Oregon School of Law) has published A Parent-Partner Status for American Family Law (Cambridge University Press):

Despite the fact that becoming a parent is a pivotal event, the birth or adoption of a child has little significance for parents' legal relationship to each other. Instead, the law relies upon marriage, domestic partnerships, contracts, and some equitable remedies to set the parameters of the legal obligations between parents. With high rates of nonmarital childbirth and divorce, the current approach to regulating the legal relationship of parents is outdated. A new legal and social structure is needed to encourage parents to act as supportive partners and to deter uncommitted couples from having children. This book is the first of its kind to propose a new "parent-partner" status for American family law. Included are a detailed discussion of the benefits of the status as well as specific recommendations for legal obligations.

Download Weiner's book flyer here.

September 26, 2015 | Permalink | Comments (0)

Facebook Profile is Fair Game in Custody Battles

From New York Post:

A Westchester judge has allowed a dad to use his wife’s Facebook profile as a weapon in their custody battle, a groundbreaking ruling that could alter the way New York couples fight it out in court.

Anthony DiMartino, 54, claims a review of his estranged wife’s Facebook page will prove she was frequently out of state while he was raising their now-4-year-old son.

“The data will show that it is he, and not she, who has spent the majority of time with the child during the past four years,” DiMartino’s legal papers argue in the fight for physical custody of the boy.

The social worker “has been the primary caregiver,” his lawyer, Gordon Burrows, told The Post.

But mom Christina Antoine, a psychiatrist who works with multiple state agencies, tried to block the move, arguing that her profile is private and that she “unfriended” her hubby when they split.

Antoine, 47, assumed she would prevail, Burrows said, because there were no previous rulings granting access to Facebook pages in New York state custody cases.

Read more here.

September 26, 2015 in Custody (parenting plans) | Permalink | Comments (0)

Friday, September 25, 2015

Senate fails to advance Bill that would cut Planned Parenthood funding

From Los Angeles Times:

With a federal shutdown days away, Senate Republicans tried -- and failed -- on Thursday to advance legislation that would eliminate money for Planned Parenthood but keep government offices and services open.

Democrats blocked the bill with a filibuster, refusing to cut funds for the large family planning organization after secretly recorded videos disclosed officials discussing the practice of providing fetal tissue from abortions for research. The debate has become a national conversation on abortion.

The vote, coming hours after Pope Francis' historic address to Congress, was 47-52.

One Democrat joined Republicans to advance the bill, but more telling for the internal GOP divide was that eight Republican senators joined Democrats to filibuster.

Now, with the government set to run out of funds Wednesday, the end of the fiscal year, Republican leaders are struggling for a new plan.

Senate Majority Leader Mitch McConnell could try to have the Senate approve a straightforward spending bill, without the limits on Planned Parenthood. But that would require him -- and eventually Speaker John A. Boehner -- to leave their conservative flank behind and compromise with Democrats.

Read more here.

September 25, 2015 in Abortion | Permalink | Comments (0)

Gupta-Kagan: "Stanley v. Illinois' Untold Story"

Josh Gupta-Kagan (University of South Carolina School of Law) has posted Stanley v. Illinois' Untold Story, Josh Gupta-Kagan, Stanley v. Illinois' Untold Story, 24 Wm. & Mary Bill of Rts. J.___ (2016 Forthcoming) on SSRN.  Here is the abstract:

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause prohibits the state from removing children from unwed fathers simply because they are not married and requires the state to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt, and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision.

This Article tells Stanley’s untold story for the first time, using original research of state court and Supreme Court records. Those records show that the state was concerned about Stanley’s parental fitness, and did not remove his children simply because he was unmarried, as is frequently assumed. But the state refused to prove Stanley unfit and relied instead on his marital status to justify depriving him of custody. That choice, and Stanley’s avoidance of a due process argument, created a complicated Supreme Court decision-making environment.

This Article explores the Supreme Court’s decision-making in Stanley, and reveals new insights both about Stanley and the Court more broadly. Four justices changed their votes from conference to the final decision – an extreme amount of voting fluidity that shifted the case outcome. The justices’ varying and evolving views eventually led them to a strong due process holding, even though Stanley did not ask for one. This issue fluidity – when the Court issues a ruling based on arguments not raised by the parties – reflects a complex interaction between justices’ efforts to form a majority coalition and lawyers’ litigation choices. Finally, the justices’ papers reveal how Justice Harry Blackmun’s shift to the liberal wing of the Court – and to a staunch parents’ rights vote – began with his angst over Stanley, despite his vote for the state.

September 25, 2015 | Permalink | Comments (0)

Thursday, September 24, 2015

Kentucky Clerk Kim Davis May Have Invalidated Marriage License Forms

From CNN:

A deputy for Kim Davis, the Kentucky clerk of court who went to jail because she opposes same-sex marriage, is worried he's been issuing invalid marriage licenses, according to papers filed in federal court.

When Davis returned to work last Monday, she reiterated her opposition to gay marriage but said she wouldn't prevent her deputies from issuing licenses to such couples -- as long as those documents didn't carry her name or title.

Davis may have gone further than that, the lawyer for deputy Rowan County court clerk Brian Mason said in an update report Friday to a federal judge.

Davis replaced the old marriage license forms with forms that don't carry her name, the name of the county or any reference to a clerk or deputy clerk, said Mason's lawyer, Richard Hughes.

The new forms also require Mason to list his initials, instead of a signature, with a notarization beside the initials, Hughes said.

Read more here.

September 24, 2015 in Marriage (impediments) | Permalink | Comments (0)

Wednesday, September 23, 2015

Sperm Donation: Inside a Deeply Emotive World of Powerful Incentives, Polarized Views, and Heated Debates

From The Independent:

Since 2006, UK guidelines suggest that a maximum of 10 families should use sperm from the same donor. But there have already been six cases where donor sperm created more than 10 families, and the British Fertility Society is keen to “revaluate” the limit anyway. Moreover, sperm is regularly imported from abroad (notably America and Denmark, the so-called sperm capital of the world), meaning that many donor-conceived children are still growing up with an absurd numbers of siblings.

“Even under current UK guidelines, if one donor produces four children per family, that’s still a potential of 40 offspring per donor,” says Julia Feast, research and development consultant at the children’s charity Coram, BAAF, who has a special interest in people’s right to access to information about their genetic origins.

Welcome to the world of sperm donation, where this is just one of many issues that stir up deep emotions, trigger polarized views, cause heated debates and lead to everything from heartfelt campaigning to downright foolish decision making. Powerful incentives are at stake here – women desperate to have babies, the fertility industry seeking big profits and many donor-conceived offspring claiming their basic human rights are being violated.

Read more here.

September 23, 2015 in Alternative Reproduction | Permalink | Comments (0)

Tuesday, September 22, 2015

'Orphan Hosting' Boosts Adoption Odds by Bringing Kids to U.S. to Visit Families

From Milwaukee Journal Sentinel:

Last month, Jennifer and Ross Franke were headed home from a family vacation on a lake up north when Jennifer asked Ross to make an unscheduled stop in Cottage Grove. There was a social gathering there that she saw posted on Facebook, at the home of a couple she only knew through a mutual friend. The couple were hosting a boy from a Chinese orphanage through a special monthlong program, and Jennifer wanted to meet him.

Today, 12-year-old Jacob is safely back in China while the Frankes of Waukesha have started what will likely be a yearlong process to adopt him.

"I feel like he's already part of our heart and family," Jennifer Franke said.

The program that brought them together is known as "orphan hosting," and it's a lesser known path to finding adoptive parents at a time when international children awaiting adoption are increasingly older or have complex medical or behavioral needs.

Advocates say such programs that arrange meetings in advance of the adoption process help families to consider adopting children they might not have otherwise considered. The Frankes had talked about adoption as a way to have a fourth child, but had been discouraged by their earlier research into the difficulty of being matched, and the expense of international adoption.

Critics of hosting programs favor domestic adoption programs within a child's own country. They question the emotional effect on children who are hosted, but ultimately never adopted. And while some families have great experiences adopting through hosting, others can feel like hosting was a honeymoon compared to the reality of parenting full time when the adoption is finalized.

Hosting has become more common in the past five to seven years in part because interest among Americans seeking international adoptions remains strong. But the number of children adopted internationally into the United States has continually declined since about 2004. A recent State Department report showed Americans adopted just 6,441 children from abroad in 2014, down from a peak of 22,884 a decade prior.

Read more here.

September 22, 2015 in Adoption | Permalink | Comments (0)

Monday, September 21, 2015

Same-Sex Common Law Marriage in TX

From Huffington Post:

A Texas probate judge recognized a common law marriage between two women this week, granting that the women were in fact legal spouses and defying objections from the state attorney general in the process. The ruling is a historic first for the Lone Star State.

On Tuesday, Travis County Probate Judge Guy Herman approved an agreement between Sonemaly Phrasavath and the family of her late partner, Stella Powell, who died of colon cancer in 2014, to split Powell's assets. The ruling simultaneously recognized the couple's common law marriage, the Houston Chronicle first reported.

Read more here.

September 21, 2015 | Permalink | Comments (0)

Sunday, September 20, 2015

Kentucky Clerk Again Asks for Delay on Gay-Marriage Licenses

From ABC News:

A Kentucky county clerk who was recently jailed for denying same-sex couples marriage licenses filed an appeal Friday that asks for another delay in issuing the licenses.

Attorneys for Kim Davis, who objects to gay marriage on religious grounds, argued in their motion to the Sixth Circuit U.S. Court of Appeals that all the same-sex couples who sued Davis for a license received one from her deputies while she was in jail. Therefore, they said, her office should not be required to issue them to any more couples once she returns to work.

U.S. District Court Judge David Bunning wrote that his mandate to issue licenses applied to all couples, not only those who filed suit. But Davis' lawyers allege that order was issued improperly, and again have asked for a delay.

"I hate to use a religious metaphor, given the circumstances," said Sam Marcosson, a constitutional law professor at the University of Louisville, "but this strikes me as a Hail Mary pass."

The American Civil Liberties Union filed a suit against Davis on behalf of four couples, two straight and two gay, who were denied licenses after the Supreme Court in June effectively legalized gay marriage nationwide. When Davis refused Bunning's order to issue licenses, the judge declared the clerk in contempt of court and jailed her for five days.

In her absence, her deputy clerks issued licenses and both same-sex couples who sued her received one. But Bunning clarified his order to include all eligible couples who request a marriage license.

In the appeal filed Friday, Davis' lawyers, with the Christian law firm Liberty Counsel, argued that Bunning issued the clarification improperly and once again asked the appeals court to delay the mandate that she issue licenses.

 Read more here.

September 20, 2015 in Marriage (impediments) | Permalink | Comments (0)

Saturday, September 19, 2015

AL Case on Adoption

From Ruthann Robson, writing for the Constitutional Law Prof Blog:

In its opinion in Ex Parte E.L., the Alabama Supreme Court has refused to recognize an adoption of three children that occurred six years earlier in Georgia by "E.L.'s former same-sex partner."  Reversing lower courts, the Alabama Supreme Court's per curiam majority held that it need not recognize the Georgia adoptions under the Full Faith and Credit Clause, Article IV, §1. 

Georgia & Alabama circa 1823 via

The biological mother challenging the adoptions argued that the Full Faith and Credit Clause should not apply to the Georgia adoptions under two exceptions: lack of subject matter jurisdiction and violation of public policy.  The Alabama Supreme Court held that the Georgia courts did not have "subject matter jurisdiction" over the second-parent adoption because Georgia law did not recognize second-parent adoptions at that time.  Its conclusion regarding the lack of subject matter jurisdiction was supported by a dissenting opinion from a Georgia Supreme Court Justice.  As the Alabama Supreme Court's per curiam opinion explained:

The Supreme Court of Georgia as a whole has not specifically addressed this issue; however, in Wheeler v. Wheeler, 281 Ga. 838, 642 S.E.2d 103 (2007), a similar case involving a biological mother's attempt to void a second- parent adoption granted her same-sex ex-partner, that court, without issuing an opinion, denied a petition for the writ of certiorari filed by the biological mother challenging the Georgia Court of Appeals' decision not to consider her discretionary appeal of the trial court's order denying her petition to void the adoption. However, in a dissenting opinion Justice Carley addressed the argument E.L. now makes . . . .

Read more here.



September 19, 2015 | Permalink | Comments (0)

Importance of Cohabitation Agreements

From The National Law Review:

In today’s society, many couples choose to live together rather than get married. This growing trend has become more common in recent years than ever before. There are a variety of possible reasons why couples choose to live together rather than get married. One factor that is likely considered is the complex legal proceedings that will occur if the couple was to get divorced. Couples that cohabitate would rather make it simple and just be able to move out rather than go through a formal divorce.

However, while cohabitating couples may think they are simplifying their lives, legally, it is important to note that they are given none of the legal protections of married couples. This is especially true in New Jersey, as common law marriages are not recognized, so cohabitating couples are actually doing themselves a disservice by not seeking out the legal protection offered in marriage. Some of the rights that unmarried but cohabitating couples lose out on include the protections provided by divorce laws, the right to make medical decisions for their partner, inheritance laws, survivor’s benefits as well as many others.

Cohabitating couples who decide to part often encounter issues and conflicts regarding the title and division of property purchased together, joint bank accounts they may have established, loans taken out together, gifts given between the parties and child custody and child support payments for children that were born of the relationship.

There is a simple solution that cohabitating couples can pursue to create legal rights for themselves: a cohabitation agreement. Similar to prenuptial agreements made prior to the marriage and settlement agreements reached during a divorce, a cohabitation agreement is a written legal document reached between a couple who have chosen to live together but are not legally married.

Read more here.

September 19, 2015 in Cohabitation (live-ins) | Permalink | Comments (0)

Friday, September 18, 2015

Maternity Leave for Surrogate Birth

From the Daily Beast:

A New Jersey woman who used a surrogate to have twins is suing Verizon for allegedly denying her paid maternity leave—and she claims the company later fired her when she took time off to care for the babies, who were born prematurely and who both died shortly after birth.

Marybeth Walz, a Verizon executive for 17 years, postponed starting a family for her career and later was unable to have children because of complications from cervical cancer. But in 2013, she became a mom with the help of egg freezing and a gestational carrier, court papers show.

Walz says her human resources manager at Verizon initially congratulated her when she requested maternity leave. But after Walz indicated her children would be born through a surrogate, the woman’s “tone immediately changed,” court papers state, and the manager allegedly told Walz she was ineligible for paid leave.


Naomi Cahn, a law professor at George Washington University, said these cases are “testing the boundaries of sex discrimination law, the boundaries of disability law, and it’s showing the types of issues that are likely to arise as surrogacy becomes more common.”

Read more here.

September 18, 2015 | Permalink | Comments (0)

Thursday, September 17, 2015

Call for Papers: Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights

Law Students for Reproductive Justice, in collaboration with the Center for Reproductive Rights and the Center on Reproductive Rights and Justice at Berkeley Law School, is pleased to announce the Call for Submission for the eleventh annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights.


This year, the Sarah Weddington Writing Prize’s suggested theme is “Restoring Public Insurance Coverage for Abortion,” with a focus on the Hyde Amendment and Harris v. McRae (1980). However, submissions on other topics will also be accepted. For more information, please download the 2015 Call for Submissions:


The deadline for submission is Monday, January 18, 2016.


Winning authors will receive cash prizes: $750 (first place), $500 (second place), or $250 (third place).  Additionally, each winning author will receive a copy of the newly released casebook, Melissa Murray and Kristin Luker’s Cases on Reproductive Rights and Justice. The first place winner will also have a chance at publication with the NYU Review of Law and Social Change. 

September 17, 2015 | Permalink | Comments (0)