Family Law Prof Blog

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"The CALI Fellowships Project is a multi-year applied research effort to create computer-based learning materials in legal education. Both the process and the product will benefit faculty and CALI member institutions. The resulting materials receive internal review from the fellowship team and peer review from the CALI Editorial Board, and are published to law schools as part of the CALI Library of Materials. The goal of the project is to create a high-quality pool of electronic teaching materials for faculty to supplement their courses or locally customize for specific instructional goals, while providing an opportunity to explore computer-mediated/distance learning in legal education.

For January of 2006, we are assembling a team of five faculty to become CALI Family Law Fellows. These faculty will receive focused training, extensive support and encouragement, and be provided software to create computer-based instructional materials that can be delivered via the Internet from the CALI website, from law school faculty web course pages or run from student PCs." By CALI Fellowships Project  Link to CALI (last visited 10-2-05, NVS).

Case Law Developments: Interpreting Contractual Division of Pensions Leaves No Room for Correcting Unjust Divisions

The division of pensions is often one of the most difficult areas of property division for students, and students rarely fully appreciate the difference between property division that is the result of agreement rather than that determined by the court. This case from the Ohio Court of Appeals may be helpful simply because it so clearly shows both the effect of differing valuation methods and the limited role of the court in changing decrees incorporating agreements.

The division method the couple arrived at gave wife one-half the pension benefit accrued as of the date of the divorce.  Wife would have received nearly four times more each month if, rather than placing a value on the pension as of the date of the divorce, the couple had used the Ohio court’s suggested formula – that is, the value of the pension benefit to be divided is determined at retirement by calculating the relative percentage of the pension earned during the marriage.  Nonetheless, because her motion only asked the court to interpret the decree, the court could not change the agreement the parties had made where it was clear.

Jackson v. Hendrickson, 2005 Ohio 5231; 2005 Ohio App. LEXIS 4734 (September 30, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/2/2005/2005-ohio-5231.pdf (last visited October 2, 2005 bgf)

What makes this opinion especially useful is the dramatic difference four years make in the value of a pension, as well as the court's obvious distress at being unable to do more to correct the injustice of the outcome...

he couple were divorced in 1992. The decree stated, “Wife hereby is awarded one-half of any monthly benefit accrued to Husband in said Retirement Plan through [date of divorce].” Husband retired in 2002 and began receiving pension payments.  He paid Wife ½ the amount of the pension he would have been entitled to had he retired in 1992 ($276.50).  Wife filed a motion asking the court to interpret its decree, arguing that she was entitled to one-half the pension value at the time of Husband's retirement, with allowance being made for the years the pension accrued after the divorce.  Under this scenario, Wife would be paid about $ 1,168 per month.

The appellate court affirmed the trial court’s finding that there was no ambiguity in the couple’s agreement, incorporated into the decree.  The Supreme court of Ohio had previously suggested that in dividing vested pensions that were not yet mature, “The value of this asset would be determined by computing the ratio of the number of years of employment of the employed spouse during the marriage to the total years of his or her employment."  However, the court noted that this formula does not apply if the parties agree on a different calculation and include it in the divorce decree. Wife tried to distinguish these cases by noting that the agreement she made was “a "spur-of-the-moment" hallway settlement that is read into the record and later incorporated into a divorce decree.”  The Court of Appeals rejected her argument, concluding that “the methods of reaching or transcribing agreements are generally irrelevant.”

Judge Grade, concurring, commented that “This is a difficult case, because an injustice has clearly been done.”  He nonetheless noted that there was little recourse for Wife when she had simply asked the court to construe the terms of the 1992 divorce decree which she alleged are ambiguous.  Nonetheless, he suggests to Wife that the order was an “unjust division” and that wife was “shortchanged” such that a motion to “vacate that portion of the divorce decree is therefore in order.”

Case Law Developments: Exemption for Teachers Pensions

In a case of first impression, the Kentucky Court of Appels was called upon to reconcile two different statutes relating to division of teacher's pension plans in divorce.   The court concluded that a statutory provision allowing division of exempt pension benefits to the extent they exceed the other spouse's pension did not apply in the division of a teacher's pension, even though the teacher pension exceeded the other spouse's retirement fund by nearly $80,000. 

Shown v. Shown, 2005 Ky. App. LEXIS 216 (September 30, 2005)
Opinion on the web at http://162.114.92.72/COA/2004-CA-000988.pdf (last visited October 2, 2005 bgf)

It will be interesting to see if the court's statutory construction is upheld should there be a further appeal of the case...

Kentucky legislation, like that in many states, exempts teacher pensions from division as marital property upon divorce.  That statute also provides that if one spouse has a retirement benefit exempted under this statute, the other spouse's retirement benefits, regardless of their source, shall also be exempt. 

In 1996, the legislature amended a different statutory section relating to pension division.  That amendment provided that, where one spouse's pension benefits are exempt from division, "the level of exception provided to the spouse with the greater retirement benefit shall not exceed the level of exception provided to the other spouse." 

In its brief explanation of how it reconciles these two statutes, the Kentucky court deems the statute providing that teacher's pensions may not be divided to be more specific that the pension division statute limiting the amount of exempt pension benefits.  Thus, the court held that no portion of the Husband's teacher benefit pension was divisible, despite the fact that it exceeded Wife's IRA by by nearly $80,000.  To make matters worse for Wife, the court held that Wife's IRA did not constitute a "retirement benefit" that she could claim as exempt because of the exemption of Husband's pension. 

The court suggests that the Kentucky legislature is the place for any inequities that might be perceived in this case to be corrected. Unfortunately, as the court pointed out in its opinion, the very statutory amendment the court interpreted here was enacted in reaction to a very similar court case in 1995 in which one spouse's exempt pension greatly exceeded the other spouse's pension.  Under the court's analysis, in order to have any portion of teacher retirement beneifts made divisible, the legislature will need to amend the section of the statute that directly applies to these benefits.

Case Law Development: No Retroactive Modification of Temporary Child Support Orders

The Kentucky Supreme Court held that a child support order rendered by a district court as part of a domestic violence proceeding may not be retroactively modified by the rendering court or by a circuit court in a dissolution proceeding. While Kentucky statutes do allow temporary orders granted in an order of protection to be revoked or modified before a final decree, the court found that the more specific direction of other Kentucky statutes that child support orders may be modified only prospectively controlled. As each installment of a child support order becomes due, that installment becomes “a fixed, liquidated debt, not subject to retroactive modification.”

The court noted the important policy considerations supporting this interpretation: “If a subsequent court order retroactively cancels a child support debt, parties would be encouraged to refrain from payment in the hope of obtaining relief subsequently” The court also noted that the difficulties arising in this case were the result of orders in two different courts and concluded that the case “well illustrates the desirability of having all matters relating to a family's domestic conflicts handled by the same court.” One judge dissented, on the basis that the oblige parent had agreed to the circuit court’s jurisdiction to modify the decree.

Thompson v. Thompson, 2005 Ky. LEXIS 301 (Supreme Court of Kentucky September 22, 2005)
Opinion on the web at 162.114.92.72/Opinions/2003-SC-000477-DG.pdf (last visited October 1, 2005 bgf)

Texas AG opens child support hotline for Hurricane victims

The Texas Attorney General's Office has opened a child support hotline for Hurricane Rita victims. Parents from Beaumont, Port Arthur, Orange and surrounding cities can call 1-866-291-6604 for questions on their child support payments, according to the Texas AG's Office. Operators will take current addresses for mailing payments to parents from storm-damaged areas.For the complete story, click here (last visited October 2, 2005, REO).

Bond required to ensure visitation

Following a 28 day custody trial in New York State Supreme Court, the trial judge ruled that the child’s mother could move to Canada with her.  However, to ensure monthly visitation in New York with the child’s father, the mother was required to post a $60,000 bond and pay for the son’s travel and hotel expenses.  In his decision, the trial judge wrote that “Visitation with a parent is not the privilege of the parent but the right of the child. Both [the father and the boy] must have this right preserved by maximizing defendant's opportunity to maintain a positive and nurturing father-son relationship." By: Robin Topping, Newsday.com.For the complete story, click here (last visited October 2, 2005, REO).

Dutch civil union -- 1 man, 2 women

Although marriage between three persons is not possible in the Netherlands , a civil union is.  Victor de Bruijn, “married” both his present wife, Bianca, and Mirjam Geven , in a civil ceremony on Friday, according to the Brussels Journal. The Netherlands was the first country in the world to recognize same-sex partnerships and in 1998 it recognized partnerships, or civil unions. Marriage and adoption was opened to same-sex couples in 2001 By:  WorldNetDaily, wnd.com.For the complete story, click here (last visited October 2, 2005, REO).

Virtual sex ground for divorce, say Belgium judges

BRUSSELS – Virtual sex or erotic chats on the internet are grounds for divorce, Belgium 's top judges have ruled. They also concluded that laws protecting an individual's privacy and correspondence couldn’t be used by cheating men and women to prevent chats or emails going before a court. By: Expatica.com.For the complete story, click here (last visited October 2, 2005, REO).

Desperate Sudan housewives seeking divorce end up in jail

RUMBEK, Sudan -- Most of the two dozen women in Rumbek's dusty prison are desperate housewives. They were driven to commit adultery and other marital offenses, not for passion or love, but to shame their husbands into granting them a divorce. By: Raymond ThiboFor the complete story, click here (last visited October 2, 2005, REO).deaux, Globe Correspondent, boston.com.