Friday, June 19, 2009

Recession and Divorce

While previous reports have noted that the recession may make divorce too expensive an option for some couples, the National Law Journal recently reports that high-end divorce attorneys are seeing an increase in their work despite the recession.  The article reports a recent survey of the American Academy of Matrimonial Lawyers, in which 39 percent of the academy attorneys cited an increase in requests for smaller child support payment and 42 percent of the members reported a rise in the number of changes made to alimony payments. bgf

June 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Incarceration for HIV-Positive Pregnant Immigrant

An immigrant woman from Cameroon was arrested for allegedly having false immigration documents. Shortly after her arrest, she learned she was both pregnant and HIV positive. On May 14, 2009, a US District Court Judge extended Ms. Tuleh's sentence to 238 days in prison to ensure that she remain incarcerated for the duration of her pregnancy.   This week,the  U.S. District judge on Monday ordered that she be released on personal recognizance bail while her appeal to the 1st U.S. Circuit Court of Appeals is pending in Boston. 

The emergency amicus brief filed by the National Advocates for Pregnant Women, the Center for HIV Law and Policy and attorneys Elizabeth Frankel and Valerie Wright of the Maine firm Verrill Dana, LLP on behalf of  Ms. Tuleh is available online.

Read the news report in the Bangor Daily News. (last visited June 18, 2009 bgf) 

June 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 18, 2009

Sham Divorces

Students sometimes come to the study of family law thinking that "no fault" divorce is the same as "on demand" divorce.  These students need to be reminded of the necessity to prove "irreconcilable differences" or "irretrievable breakdown" in order to obtain a divorce even in "no fault" states.  

There is precedent for collusive divorces being vacated for fraud (see Family Law Prof Blog post of July 26, 2006); however, recent news stories regarding sham divorces emphasize the role of third parties in preventing sham divorces or reversing their financial outcomes. 

The Connecticut Post reports that federal prosecutors have requested to intervene in the divorce proceedings filed by the wife of Walter Forbes, former chairman of Cendant Corporation, who is serving prison time for one of the biggest accounting scandals in U.S. history.  The feds allege that the  divorce is an attempt to evade a $3.275 billion restitution order.  The couple have been married for 27 years.  Walter was convicted and sentenced in January 2007.  

In another recent news story reported by ABC news in Houston, Continental Airlines is suing nine pilots who allegedly obtained a sham divorce in order to trigger a cash pension payout to their ex-spouse, who they subsequently remarried. In a lawsuit filed in Federal Court, the company alleges the pilots obtained uncontested divorces in which the pilot would assign 90-100% of their pension benefit to the other spouse, who was then able to obtain a Domestic Relations Order (DRO) in state court that resulted in the Continental pension play paying out a cash lump sum to them. After receiving the pension payout, almost all of the pilots and their ex-spouses remarried.

bgf

June 18, 2009 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 16, 2009

Case Law Development: Preference for "Traditional Family" Insufficient Justification for Removing Child from Foster Care Placement

The West Virginia Supreme Court, writing for the first time on the issue of the propriety of same-sex parenting, granted a writ of prohibition against a trial court's order to remove a foster child from the home of a lesbian couple.  The trial judge had premised the removal on his theory that state adoption statutes prefer "traditional families" (i.e., headed by a heterosexual married couple).   However, the supreme court noted that no adoption petition had been filed and the issue of adoption was not presently before the court -- only the placement decision.

The child had been placed a few days after birth with the couple, who also fostered other children.  The GAL filed a motion to remove the child and an order prohibiting DHHR from ever placing children with gay foster parents.  The Department of Health and Human Resources opposed the motion and the trial court denied it. After mother's rights were terminated in fall 2008, at the permanency hearing, the GAL renewed the motion to remove the child, now arguing that since the department had placed an additional foster child with the couple, they now had exceeded the statutory maximum for foster children. 

The judge granted the removal order now supported by the department as a means of curing their error in placing too many children in the foster home.  However, the supreme court granted the writ of prohibition on the basis that, in the meantime other children had left the home so the statutory maximum was not violated.  Even if it were, however, the court noted that the court did not approach the solution to the excessive placement with the proper focus on the child.

The situation before us involves a removal decision where the foster home environment or care provided in a foster home is not in question, and removal of a child is necessary to correct problems created by bureaucratic error. When presented with such situations, courts need to safeguard the best interests of the children by examining evidence of the emotional, physical and mental needs of the individual children under the particular circumstances of a case, and then balancing the relative interests of the children in order to decide which child or children would be less traumatized or detrimentally affected by being removed from the home. No such examination or balancing occurred in the present case.

Moreover the supreme court noted that the removal was more obviously based on a dissaproval of the same sex foster parents and a blurring of the adoption code and the abuse and neglect code. Because adoption was not at issue in the permanency placement hearing, the court found that the trial court's ruling as a matter of law on the propriety of adoption by same sex couple was unnecessary and inappropriate:

    Central to our deliberation in this case is the reason or motivation underlying Respondent's decision to remove a child from her foster care home. The motion to remove the child was not supported by any allegation that [the child] was receiving improper or unwise care and management in her foster home, or that she was being subjected to any other legally recognized undesirable condition or influence. ... As a matter of fact, the court was never presented with any actual evaluation of the home or evidence of the quality of the relationship [the child] had with Petitioners. ... Without any information that the foster care placement with Petitioners was not proceeding well, there was no legal reason for the court to remove [the child] from the only home she has known. 
    It is more than apparent that the only reason why Petitioners were being replaced as foster care providers was to promote the adoption of [the child] by what Respondent called in his November 12, 2008, order a “traditionally defined family, that is, a family consisting of both a mother and a father.” It was only by addressing issues he anticipated would develop and believed would be problems at a later point in this case that Respondent was even able to reach the subject of this conclusion. The conclusion itself thus represents a blurring of legal principles applicable to abuse and neglect and adoption. Moreover, even if our current statutes, rules and regulations could somehow be read to support the adoption preference proposed by Respondent, such a newfound principle would need to be harmonized with established law. Under our current law which encourages adoption by qualified foster parents, one of the Petitioners seeking to adopt B.G.C. individually would at the very least need to be considered if not favored in the selection of the prospective adoptive home.

State ex rel Kutil & Hess v. Blake, (West Virginia Supreme court of Appeals, June 5, 2009)
opinion online (last visited June 15, 2009 bgf)

June 16, 2009 | Permalink | Comments (1) | TrackBack (0)

Monday, June 15, 2009

Facebook & Divorce

Taking the time to address the use of electronic data in divorce in our classes and clinics is becoming increasingly important.  A recent survey of American Academy of Matrimonial Lawyers members indicated that 88% had noted an increase in the use of this evidence.  Last week's Time's article on Facebook and Divorce comments that  "...as the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators."  The article includes a slideshow of five facebook "no-nos for divorcing couples." 

Students may not appreciate the extent to which the use of this type of evidence may raise difficult ethical and legal issues.  A brief analysis of the issues is available online from The Legal Intelligencer.  Recent scholarship on the issues includes:

Laura W. Morgan, "Marital Cybertorts: The Limits Of Privacy In The Family Computer," 20 Journal of the American Academy of Matrimonial Lawyers 231 (2007).

For an older, but comprehensive review of the law in this area, see  Richard Turkington,Legal Protection for Conversational and Communication Privacy in Family, Marriage and Domestic Disputes: An Examination Federal and State Wiretap and Stored Communications Acts and the Common Law Privacy Intrusion Tort, 82 Neb. L. Rev. 693, 702 (2004).

For a discussion of the marital communications privilege when spouses talk by email, see Mikah Thompson, Twenty-First Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail, 58 Santa Clara Law Review 275 (2006).

Finally, for a lesson on how not to ask students about this topic: see this law student's blog posting responding to a family law prof's quiz question regarding awareness of the implications of social networking on family law litigation. 

bgf

June 15, 2009 | Permalink | Comments (1) | TrackBack (0)