Family Law Prof Blog

Presidential Family Agenda

The new Presidential website - - - www.whitehouse.gov - - - complete with its own blog, is a wealth of information regarding the new Administration's family law agenda.  It has some specific proposals and ideas, which might inform classroom discussions, class problems, or even (for those FamilyLaw Profs already thinking ahead at the beginning of this semester) exam questions.

Here's a sampling from the "family" portion of the website, many of which pertain to economic matters:

• Expand the Family and Medical Leave Act (FMLA): The FMLA covers only certain people who work for employers with 50 or more employees. Barack Obama and Joe Biden will expand the FMLA to cover businesses with 25 or more employees, and to cover more purposes including allowing: leave for workers who provide elder care; 24 hours of leave each year for parents to participate in their children's academic activities at school; leave for workers who care for individuals who reside in their home for 6 months or more; and leave for employees to address domestic violence and sexual assault.
• Encourage States to Adopt Paid Leave: President Barack Obama will initiate a 50 state strategy to encourage all of the states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
• Expand High-Quality Afterschool Opportunities: Barack Obama and Joe Biden will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve one million more children. They will include measures to maximize performance and effectiveness across grantees nationwide.
• Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Barack Obama and Joe Biden will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Barack Obama and Joe Biden will commit the government to enforcing recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Barack Obama and Joe Biden will address this concern by creating a program to inform businesses about the benefits of flexible work schedules for productivity and establishing positive workplaces; helping businesses create flexible work opportunities; and increasing federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to petition to request flexible arrangements.

• Strengthen Fatherhood and Families: Barack Obama has re-introduced the Responsible Fatherhood and Healthy Families Act to remove some of the government penalties on married families, crack down on men avoiding child support payments, ensure that support payments go to families instead of state bureaucracies, fund support services for fathers and their families, and support domestic violence prevention efforts. President Obama will sign this bill into law and continue to implement innovative measures to strengthen families.
• Support Parents with Young Children: Barack Obama and Joe Biden will expand programs like the successful Nurse-Family Partnership to all low-income, first-time mothers. The Nurse-Family Partnership provides home visits by trained registered nurses to low-income expectant mothers and their families. Researchers at the Federal Reserve Bank of Minneapolis concluded that these programs produced an average of five dollars in savings for every dollar invested and produced more than $28,000 in net savings for every high-risk family enrolled in the program. The Obama-Biden plan will assist approximately 570,000 first-time mothers each year.

Some family law matters relating to sexual minorities are contained on the "civil rights" page and include:

• Support Full Civil Unions and Federal Rights for LGBT Couples: President Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
• Oppose a Constitutional Ban on Same-Sex Marriage: President Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples.
• Expand Adoption Rights: President Obama believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation. He thinks that a child will benefit from a healthy and loving home, whether the parents are gay or not.

RR

Case Law Development: False Statements in Divorce regarding Paternity Do not Equal Extrinsic Fraud on the Court

The Missouri Court of Appeals affirmed a trial court's dismissal of an action claiming extrinsic paternity  fraud regarding children alleged in a 2005 divorce judgment to be born of the marriage.  However, the court found that the dismissal could not properly be based on the doctrines of res judicata and collateral estoppel.

The court reasoned that extrinsic fraud may be a basis for reopening a judgment, but went on to note that the ex-husband's claim here — Wife's false averments in a divorce petition and her sworn testimony in court regarding his paternity of their two children — was intrinsic fraud only.

Walker v. Walker, Mo. Ct. App., WD69198, (January 13, 2009)

opinion online (last visited January 21, 2009)

Case Law Development: Nonrefundable Retainer Fee in Divorce Approved

The Rules of Professional Conduct in most states prohibit family law attorneys from charging contingent fees for fear that this would provide an incentive for attorneys to discourage reconciliation.  The American Academy of Matrimonial Lawyer's Bounds of Advocacy, while arguing for more flexible fee arrangements in matrimonial matters, agrees with this same rationale that fee agreements should not discourage reconciliation (See AAML Rule 4.5).

Yet a recent decision by the Michigan Supreme Court likely has at least one client considering the high cost of her decision to drop her divorce because of a different fee device: the nonrefundable retainer.  The Michigan Supreme Court dropped disciplinary charges against an attorney who had charged a non refundable $4000 "minimum fee” for a divorce. The opinion has generated a good deal of controversy, as many other states have found nonrefundable retainers unreasonable. The attorney's fee agreement in this case provided that the $4000 minimum fee was nonrefundable "under any circumstances" and provided for a $195 an hour fee once the $4000 was earned.  The client soon thereafter reported to the attorney that she and her husband had reconciled and asked for a refund of the retainer.  The attorney provided the client an invoice for 6.4 hours of work and refunded $1,385.75, noting that he didn't have to do so, but “from the goodness of my heart, I'll give you half of the unearned fees.”  The client complained to the disciplinary authority.  The disciplinary board concluded that “there really is no such thing as a nonrefundable retainer” and ordered the attorney to pay the balance of the unearned fees but imposed no other discipline.

The Supreme Court reversed: “As written the agreement clearly and unambiguously provided that the respondent was retained to represent the client and that the minimum fee was incurred upon execution of the agreement, regardless of whether the representation was terminated by the client before the billings at the stated hourly rate exceeded the minimum.”

Grievance Administrator v. Cooper, Mich., No. 135053, (December 12, 2008)
The opinion, briefs, and amicus briefs by the Majority of the Michigan Bar Association, the American Academy of Matrimonial Lawyers, and by the law firm of Varnum, Riddering, Schmidt & Howlett LLP are available online. (last visited January 20, 2009 bgf)

In his post, Mike Frisch of the Legal Profession Blog (a sister Law Prof blog) contrasts the disciplinary board's careful analysis with the cursory discussion by the court. Likewise, the Detroit News carried this editorial criticizing the opinion by Law Prof Lawrence Dubin of the University of Detroit Mercy School of Law and a former chairman of the Michigan Attorney Grievance Commission.