Thursday, January 31, 2013
Feuer: "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder"
Albert Feuer has posted his paper entitled "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder" 45 J. Marshall L. Rev. 635 (2012) on SSRN. Here is the abstract:
This Article discusses the interaction between ERISA
and family law (i.e., domestic relations law and estates law). The Supreme
Court and the US Department of Labor (“DOL”) may improve the practice of both
ERISA and family law by dispelling myths that they have reinforced.
First, the Court incorrectly asserted that the Retirement Equity Act of 1984 (“REACT”) “enhanced protection to the spouse and dependent children in the event of divorce or separation, and in the event of death the surviving spouse.” This assertion has encouraged plan administrators and other courts to find that domestic relations orders (“DROs”) govern an excessively broad class of ERISA pension and life insurance benefits. However, REACT, like ERISA, was a reaction to the inadequacies of state law and prior federal law pertaining to domestic relations and estate law. Thus, it similarly circumscribed the role of state law and increased substantive protections for ERISA participants and beneficiaries.
Second, the Court added a gloss to ERISA in non-family law contexts that emphasizes the importance of limiting the cost burdens imposed on employers by ERISA, which, if excessive, would discourage employers from establishing and maintaining employee benefit plans. This gloss has encouraged other courts to lose sight of the leitmotif of ERISA, protecting plan benefits of participants and beneficiaries. Thus, courts have wrongfully permitted individuals to use superseded (state family law or federal common law) ownership claims to obtain benefit entitlements from the recipients of those entitlements rather than the plans. Such holdings violate Supreme Court decisions extending over more than a hundred years, which consistently protected ERISA entitlements and other federal entitlements, before and after their distribution.
The DOL has created issues by both its actions and inactions. First, the DOL incorrectly asserted that the ERISA benefit claim provisions should not govern plan reviews of DRO for compliance with the pertinent ERISA requirements, the qualified domestic relations order (“QDRO”) requirements, but has failed to present an alternative set of review provisions for plans to follow. This has created unnecessary issues concerning the roles of plan administrators, participants, their families, and courts in such reviews Second, the DOL has provided only nonbinding, informal guidance to the general public rather than extensive DOL regulations with respect the QDRO requirements. This has created unnecessary issues for persons seeking to prepare a DRO that complies with the pertinent ERISA requirements, and for plan administrators responding to such requests.
Wednesday, January 30, 2013
Oldham: "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?"
J. Thomas Oldham posted his article "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?" on SSRN. Here is the abstract:
This article summarizes the provisions of the Uniform Premarital and Marital Agreement Act, which was promulgated by the Uniform Law Commission in the summer of 2012. It compares these provisions to the Uniform Premarital Agreement Act, the rules currently applicable in states that did not adopt the UPAA, and the approach applied in other countries to premarital agreements contemplating divorce. The article summarizes the new requirement in the UPMAA that, to be enforceable, each party must have had “access to independent counsel,” and discusses how courts might construe such a provision.
Tuesday, January 29, 2013
A new paper, written by Margaret A. Knight and DeLawnia Comer-HaGans, aims to summarize literature review findings about barriers employers face with providing Domestic Partner Benefits and discuss some advantages of providing some benefits. Exploring the DPB issue provides insights into “sexual orientation, marital status, legal definitions and requirements, and benefit equity” issues. Download Domestic Partner Benefits.
Monday, January 28, 2013
From the Bangkok Post:
China has passed a new law stipulating that family members should pay regular visits to their elderly relatives, according to the government's official website.
The ruling, approved by China's National People's Congress on Friday, is part of a package of amendments to the Protection of the Rights and Interests of the Elderly legislation and will come into force on July 1, 2013.
"Family members who live separately from the elderly should visit them often," the law says, adding that "employers should guarantee the right to home leave in accordance with relevant regulations".
The law mentions no specific penalties for those who fail to visit frequently, nor elaborates on what "often" means.
Read more here.
Saturday, January 26, 2013
From Daily Mail:
All good things must come to an end...and so it is in the case of romance in Hollywood.
A collection of black and white photographs show the sad endings to some of the most celebrated marriages.
Read more and see the photos here.
Friday, January 25, 2013
Thursday, January 24, 2013
A report from the National Council on Disability finds that parents with physical or mental disabilities have a greater risk of losing custody of their children. The study says that the U.S. legal system needs to provide more support for these parents.
Read more and listen to the story here.
Wednesday, January 23, 2013
From Family Law Week:
The Court of Appeal in Davies v Davies  EWCA Civ 1641 has upheld an order awarding the wife of a hotel owner a lump sum of £2.2m.
The husband is the owner and operator of a successful hotel in Paddington. The husband's principal case was that the wife was no more than a receptionist who had been employed intermittently in his business during the years of co-habitation and marriage. The marriage itself was short and her entitlement was therefore modest. Alternatively he argued that the assets available to satisfy the wife's needs hardly extended to the hotel business which came to him from earlier generations and was not the product of any shared endeavour.
Read more here.
Tuesday, January 22, 2013
As a sign of modern times, locations all across the globe are starting to discuss alimony reform. This particular release discusses the discussion of Florida alimony statutes during the upcoming 2013 legislative session. The Family Law Section of The Florida Bar has helped create “some of the most progressive alimony laws in the nation” that is both “fair and equitable to all parties.” One of their goals is to educate public policy makers and the general public about Florida’s alimony statutes, as there are many misconceptions.
Read more here.
Monday, January 21, 2013
From the New York Times:
Most business owners know not to bring personal issues to work, but that has been especially difficult for Agostinho Ribeiro. That is because he runs his company, a law firm based in Danbury, Conn., with his former wife, Valerie Calistro.
The two met in the late ’80s, in law school, and the relationship blossomed in the early ’90s at the firm — Ventura, Ribeiro & Smith — where Mr. Ribeiro was essentially the chief executive. They were married in 1998, and soon after, Ms. Calistro took a more active role in running the company’s operations. Together, they built the business into what is now a 50-person operation with an emphasis on civil litigation.
Read more here.
Saturday, January 19, 2013
This story, featured recently on an airing of NPR’s Morning Edition, spotlights the growing trend of online adoption. More and more birth mothers are taking to the internet to find prospective parents for their unborn children. As a result, traditional adoption agencies have had to deal with increasingly long client waitlists; some agencies are even advising their clients to create an online presence to help bolster their chances of finding a child faster. Supporters of this avenue say it is less expensive, faster, and a better way for parents to get involved in the adoption process. Skeptics are worried about the lack of screening and the ease of birth parents being scammed and conned.
Read more here.
Friday, January 18, 2013
Thursday, January 17, 2013
Former NBA star Dennis Rodman was recently ordered to pay $500,000 he owes in child support to his ex-wife. He was also found to be in contempt of court. Orange County (CA) Superior Court Commissioner Barry Michaelson warned him he could face "serious jail time" if he refuses to pay up. His ex-wife claims he actually owes $850,000.
Read more here.
Wednesday, January 16, 2013
Tuesday, January 15, 2013
Monday, January 14, 2013
From the National Law Journal:
Bank of America has agreed to pay $7,500 and update its employee training to settle a claim that it discriminated against a lesbian couple seeking a mortgage—the first such enforcement action by the Department of Housing and Urban Development.
Read more here (subscription requried).
Saturday, January 12, 2013
From Huffington Post:
A dentist acted legally when he fired an assistant that he found attractive simply because he and his wife viewed the woman as a threat to their marriage, the all-male Iowa Supreme Court ruled Friday.
The court ruled 7-0 that bosses can fire employees they see as an "irresistible attraction," even if the employees have not engaged in flirtatious behavior or otherwise done anything wrong. Such firings may be unfair, but they are not unlawful discrimination under the Iowa Civil Rights Act because they are motivated by feelings and emotions, not gender, Justice Edward Mansfield wrote.
Read more here.
Thursday, January 10, 2013
From Margaret Ryznar, writing for the Huff Post Blog:
The media is abuzz with news that a man is being pursued for child support by the state of Kansas for a child resulting from his semen delivery to a lesbian couple's porch in response to an advertisement. The parties had signed an agreement that he would not to be held financially responsible for the child. Once the lesbian couple separated, the child's mother applied for state benefits.
What exactly is going on here, you might ask?
Read more here.
National Association of Women Lawyers®
Selma Moidel Smith Law Student Writing Competition
The National Association of Women Lawyers (NAWL) is a national voluntary legal professional organization whose mission is the advancement of women in the legal profession and women’s rights. Since 1899, NAWL has served as an educational forum and active voice for the concerns of women lawyers in this country and abroad. NAWL continues to support and advance the interests of women in and under the law, and in so doing, supports and advances the social, political, and professional empowerment of women. Through its programs and networks, NAWL provides the tools for women in the profession to advance, prosper and enrich the profession. NAWL has established the annual Selma Moidel Smith Law Student Writing Competition to encourage and reward original law student writing on issues concerning women and the law. The rules for the competition are as follows:
Entrants should submit a paper on an issue concerning women’s rights or the status of women in the law. The most recent winning paper was “All Things Being Equal, Women Lose. Investigating the Lack of Diversity Among the Recent Appointments to the Iowa Supreme Court” written by Abigail Rury, Michigan State University School of Law.
Essays will be accepted from students enrolled at any law school during the 2012-13 school year. The essays must be the law student author’s own work and must not have been submitted for publication elsewhere. Papers written by students for coursework or independent study during the Summer, Fall or Spring semesters are eligible for submission. Notwithstanding the foregoing, students may incorporate professorial feedback as part of a course requirement or supervised writing project.
FORMAT: Essays must be double-spaced in 12-point font, Times New Roman font type. All margins must be at least one inch. Entries must not exceed fifteen (15) pages of text, excluding notes, with footnotes placed as endnotes. Citation style should conform to The Bluebook – A Uniform System of Citation. Essays longer than 15 pages of text, excluding notes, or which are not in the required format may not be read.
JUDGING: NAWL Women Lawyers Journal® designees will judge the competition. Essays will be judged based upon content, exhaustiveness of research, originality, writing style, and timeliness.
QUESTIONS: Questions regarding this competition should be addressed to the chair of the Writing Competition, Professor Jennifer Martin at firstname.lastname@example.org.
SUBMISSION AND DEADLINE: Entries must be received by May 1, 2013. Entries received after the deadline will be considered only at the discretion of NAWL. Entries must provide a cover letter providing the title of your essay, school affiliation, email address, phone number and mailing address. Entries must be submitted in the following format: email an electronic version (in Microsoft Word or PDF format) to email@example.com.
AWARD: The author of the winning essay will receive a cash prize of $500. NAWL will also publish the winning essay in NAWL’s Women Lawyers Journal in the summer of 2013.
Wednesday, January 9, 2013
Professor Nancy E. Dowd has recently published “Fatherhood and Equality? Reconfiguring Masculinities,” which was a Donohue Lecture at Suffolk University Law School, and is in 45 Suffolk University Law Review 1047 (2012). In this article, Professor Dowd sets out the asymmetric pattern of men’s caretaking as compared to women’s caretaking, and raises the issue of why greater equality has not been achieved in care as women’s participation in the workforce has increased. Professor Dowd argues that not only is this linked to the lack of institutional and structural supports for parenthood, which leads to gendered outcomes in who does care, but in addition, and perhaps most importantly, the barrier to care is cultural, linked to masculinities norms. Professor Dowd sets out the barriers to care linked to masculinities, and suggests a further analysis linked to vulnerability and its connection to caregiving. Changes in masculinities, therefore, are critical to changing the pattern of men’s caretaking, and Professor Dowd sets out ways that this might be accomplished.