Family Law Prof Blog

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

Tuesday, February 21, 2017

Woman had to leave Mississippi to divorce husband

From 10 News: 

In 2001, Elizabeth Freels knew her marriage of seven years was over, and she wanted a divorce.

But her husband, David, felt otherwise. He didn't want one. Elizabeth said he told her, "I will not give you a divorce until the day you die. If I can't have you, no one else will."

And in Mississippi, one of only two states without a true "no-fault divorce" law, if one spouse doesn't want a divorce, he or she can often stave one off for a long time. In the Freels' case, it was more than a decade, according to a story in the Clarion-Ledger.

There's an effort in the Legislature to make some small reforms to Mississippi divorce law. But such efforts have failed in the past, and a measure to create a "no-fault" divorce based on length of separation has already been watered down early in the legislative process this session.

Read more here.

February 21, 2017 in Divorce (grounds) | Permalink | Comments (0)

Wednesday, February 15, 2017

Texas fathers fight for equal custody law at legislature

From ABC 12 News:

A renewed effort is underway by fathers in this state to get a law passed allowing equal custody for both parents during a divorce.

"When you go through a divorce you split everything down the middle, why is it when you have a child you can split custody and time with that child,” asked Noel Geren, 37.

He and his infant daughter are inseparable but Geren said he does not get to see his 10-year-old son from his first marriage as often as he'd like.

"I've been seeking more time with my son for the last four years and I've spent upwards of $80,000," he explained.

Geren is now among the vocal supporters of Texas House Bill 453, authored by State Rep. James White, R-Woodville, which would give mothers and fathers equal custody during a divorce.

"If this bill passes you're going in there at an equal advantage with the other person," added Geren. "It doesn't touch on any child support. It doesn't touch on anything that would be detrimental to the child. It's still left in the courts hands on what they want to do."

If parents reach a custody agreement before arriving in a family court, judges simply approve it. But more often, mothers win custody which leaves fathers only with visitation. House Bill 453 could change the starting point in family courts giving both parents equal custody from the beginning.

At least five states already have similar laws. But since custody cases are often messy and each one is unique, a former family law judge says the legislature should not mandate what to do with children.

Read more here.

February 15, 2017 in Child Support Enforcement, Divorce (grounds), Property Division, Resources - Child Custody | Permalink | Comments (0)

Tuesday, February 14, 2017

Texas bills proposed to make divorce more difficult

From ABC 13 News:

A Texas lawmaker is hoping to get two bills passed that will make it more difficult for couples to divorce.

State Representative Matt Krause (R) filed SB 93 and HB 65. SB 93 aims to strike out no foul or insupportability divorce filings.

"You've got to allege some type of fault, grounds such as abandonment, adultery, mental cruelty and the like," said family law attorney and president elect of the Texas Family Law Foundation Warren Cole.

Cole said repealing the no fault filing will also force couples to air out their dirty laundry. Most divorce filings cite "insupportability" as the reason, in part to maintain a level of privacy.

"To expose their children to that, especially fosters one parent who continues to hold a grudge against the other parent. It defeats effective coparenting, if you will," said Cole.

Krause said he decided to file the bill because the "insupportability" filing makes it just too easy for couples to give up and to divorce.

"I think this just reinforces the sanctity of marriage," said Krause. "I think when we went to no-fault divorce in the 1970s, it in some ways cheapened the institution of marriage."

Krause also filed HB 65, which pushes out the 60 day waiting period for a divorce to 180 days if a couple has children under the age of 18.

Read more here.

February 14, 2017 in Divorce (grounds) | Permalink | Comments (0)

Friday, February 10, 2017

Oklahoma bill to do away with incompatibility as reason for divorce

From Enterprise-Examiner:

According to the National Center for Health Statistics, Oklahoma has the third highest divorce rate in the United States. Only Arkansas and Nevada have higher rates of couples ending their marriage.

Dunlap filed House Bill 1277 to address that, he said. The bill, titled the "Fairness in Fault Act," would eliminate the ability for couples in Oklahoma to file for divorce based on incompatibility if there are living minor children of the marriage; the parties have been married 10 years or longer; or if either party files a written objection to the granting of a divorce.

The proposed legislation also eliminates required educational programs for couples who file for incompatibility-based divorce to discuss the impact of divorce on children, since Dunlap's bill would not allow incompatibility divorce if there are minor children.

 

Read more here.

February 10, 2017 in Divorce (grounds) | Permalink | Comments (0)

Tuesday, January 31, 2017

Court Approved: Family Law Mediators Can Draft Settlement Documents

From The State Bar of Wisconsin:

The Wisconsin Supreme Court has approved a petition that will allow lawyer-mediators to draft and file settlement documents in family law cases. Currently, parties must obtain different legal counsel to perform those legal tasks after mediation.

More frequently, parties attempt to navigate the legal system with no legal help at all. Another layer to limited scope representation rules that took effect two years ago, the new rule will give parties a more affordable solution to resolve family law disputes.

The Director of State Courts filed petition 16-04 on the recommendation of the Wisconsin Supreme Court’s Planning and Policy Advisory Committee (PPAC).

After a public hearing on the petition last week, a 6-1 majority approved the petition as presented. Justice Shirley Abrahamson did not oppose the petition but did not join the majority. She had moved, unsuccessfully, for amendments to clarify minor points that will likely be addressed in a separate writing on the final order.

The new rule will particularly impact cases involving divorces. The expected effective date of the new rule is July 1, 2017, but the court has not yet issued a final order.

Read more here.

January 31, 2017 in Divorce (grounds) | Permalink | Comments (0)

Saturday, January 28, 2017

Pets Will Be Treated Similarly to Children in Alaska Divorce Courts

From The Washington Post:

Divorces can be messy. Leaving aside the very raw emotions involved, there is the matter of splitting property.

Who gets the house? Who gets the couch? Who gets the dog?

If one of those items seems different to you, that’s probably because you, like many Americans, consider pets to be more like family members than furniture. But courts do not. In the eyes of the law, animals are property. So although pet custody battles are often passionate and sometimes truly wacky, courts think of them more prosaically: as part of the “property distribution” in a divorce.

That’s why an amendment to Alaska’s divorce statutes, which took effect last week, is making waves in the world of animal law. It makes Alaska the first state in the country to require courts to take “into consideration the well-being of the animal” and to explicitly empower judges to assign joint custody of pets. In a blog post, the Animal Legal Defense Fund called the well-being provision “groundbreaking and unique.”

“It is significant,” said David Favre, a Michigan State University law professor who specializes in animal law. “For the first time, a state has specifically said that a companion animal has visibility in a divorce proceeding beyond that of property — that the court may award custody on the basis of what is best for the dog, not the human owners.”

Read more here.

 

January 28, 2017 in Custody (parenting plans), Divorce (grounds) | Permalink | Comments (0)

Saturday, November 12, 2016

Divorce: How to remain financially secure

From CNBCAfrica.com:

Unfortunately divorce is an all too common reality in our current times. Statistics reflect that as the year winds down to a close, partners contemplate the reality of dissolving a union that is no longer working.

Most people going through a divorce will agree that the initial stages can be overwhelming – in fact the changes happen so quickly that the alternative - to stick their head in the sand and hide, may well seem a more attractive option.

As with most daunting undertakings, a plan and a checklist will assist. There are a few essential steps that need to be taken in contemplation of divorce proceedings to ensure that the financial settlement will be fair and you will be financially independent and secure once the divorce is finalised.

This is according to Lisa Griffiths, Associate Director of BDO Wealth Advisers, who highlights the following list of “to-do’s” to prepare for divorce:

1.  Establish a team of professional advisers

“Firstly, it is essential that you find your own lawyer and that it should not be a person who has or will act for your spouse.”

“Also ensure that you have your own financial planner – their role will be critical in analysing the financial data. Once again, your planner should not be a person who will also act for your spouse – there is a clear conflict of interest!”

2.  Gather all of your financial information and documentation

“You need to be fully aware of the complete and complex financial situation facing you. Understand all of your debts — not only what the two of you have jointly, but also individually. To avoid any unforeseen surprises, you need to comprehend the full picture on credit card accounts, home loans, car finance and even other items such as personal loans, business debts and retail accounts. You must be prepared to disclose your full financial status.”

“Be prepared. It is so much easier to navigate divorce negotiations if you have the full financial information available early on in the proceedings,” says Griffiths, who goes on to advise that one should also keep a second set of documentation in a safe place.

Read more here.

November 12, 2016 in Divorce (grounds) | Permalink | Comments (1)

Saturday, November 5, 2016

Opening doors for women and children when domestic violence hits home

From The Guardian:

Homeless women need somewhere to live. Landlords need someone to manage their properties. Put the two together and the result is a solution to a significant social issue.

Melbourne’s Property Initiatives Real Estate manages apartments for investors and developers, and directs all profitstowards developing long-term housing for women and children in need.

Jeanette Large is the chief executive of the agency, which operates as a fixed trust under Women’s Property Initiatives (WIP), a not-for-profit company which develops and owns the properties. Large says most of the women housed have escaped family violence.

Indeed, the Australian Institute of Health and Welfare says one-third of the 520,000 people who sought help from Australian homelessness services between 2011 and 2014 did so because of domestic violence.

Launched in April 2015, Large says the real estate agency was created to overcome the funding limitations of philanthropy. WIP has always depended on donations and government grants and needed to find a way to become more self-sustaining while continuing to grow.

Read more here.

November 5, 2016 in Divorce (grounds), Domestic Violence | Permalink | Comments (0)

Sunday, October 23, 2016

Woman who says ex-partner misrepresented wealth wins appeal

From The Guardian:

A woman who says she did not get enough money when an 18-year same-sex relationship ended because a wealthy ex-partner “misrepresented” the size of her fortune has won the latest round of a legal battle.

Helen Roocroft, who is in her 40s and comes from Bolton, Greater Manchester, accepted a settlement of about £200,000 after separating from Carol Ainscow, a property developer, in 2009.

But she said Ainscow, who died aged 55 three years ago, “misrepresented her wealth”. She took legal action against a representative of Ainscow’s estate in the hope of getting more.

Roocroft lost the first round of her fight in a family court two years ago. But three appeal court judges have ruled in her favour. Lord Justice Elias, Lord Justice Kitchin and Lady Justice King said on Friday that the case should be reanalysed by a high court judge.

Read more here.

October 23, 2016 in Divorce (grounds), International | Permalink | Comments (0)

Friday, October 14, 2016

California Child Support: The 10 Most Frequently Asked Questions Answered

From The Huffington Post:

  1. How is it determined? Child support in California is based on a statewide guideline. The formula by which it is determined is rather complex. As a result, it is usually calculated by attorneys using one of a few computer programs licensed by companies that provide legal research software. The calculation is based upon the number of children, the income of each of the parents, the timeshare that each parent has custody, their tax filing status, and their tax-deductible expenses;

  2. Is there a dollar limit on the amount of support that one can be ordered to pay? Unlike some states, California does not provide for a cap in the amount of support to be ordered. The guideline calculation is the presumptively legal calculation in most cases. There are some very limited instances when the court can deviate from this, discussed below.

  3. What happens if the calculation generates an amount that is clearly higher than what is necessary to raise a child? The guideline calculation may or may not generate such a result. What is necessary to raise a child varies on a case-by-case basis. The law provides that a child is entitled to have a lifestyle commensurate with that of his or her parents. For this reason, a child support calculation that improves the lifestyle of the lower income parent is often upheld by the court. In those instances when the child support amount is so excessive that it bears no reasonable relationship to either the lifestyle of the parents or the amount of support required to raise a child commensurate with that lifestyle, the court may deviate from the guideline.

Read the answers and more here.

 
 

October 14, 2016 in Child Support (establishing), Child Support Enforcement, Divorce (grounds) | Permalink | Comments (0)

Wednesday, October 12, 2016

New York Expands the Definition of Parent for Unmarried Couples

From Nolo.com:

On August 30, 2016, the New York Court of Appeals issued a landmark decision in In the Matter of Brooke S.B. v. Elizabeth A.C.C. As a result, New York now recognizes that children may have a second parent not related to them by blood, adoption, or marriage.  

The Brooke S.B. case involved Brooke and Elizabeth—unmarried partners in a lesbian couple—who were engaged to be married in 2007. In 2008, Elizabeth became pregnant through artificial insemination and gave birth to a baby boy. Brooke had no legal or biological ties to the child, but she maintained a close, parental relationship with him for years, which included giving him her last name and raising him jointly with Elizabeth.

The couple separated in 2010, and in 2013, Elizabeth began restricting Brooke’s contact with the child, so Brooke filed for custody.

Read more here.

October 12, 2016 in Adoption, Alternative Reproduction, Cohabitation (live-ins), Custody (parenting plans), Divorce (grounds) | Permalink | Comments (0)

Tuesday, October 11, 2016

In Lebanon, a Tangle of Religious Laws Govern Life and Love

From The Atlantic:

BEIRUT, Lebanon -- When May Omari, now 45, tied the knot at age 23, she married a secular man in a secular marriage in New York City. As a formality, and to appease their Lebanese families, they later held a brief religious ceremony in Beirut. A Sunni Muslim mufti, or religious leader, came to her house, the couple signed a few papers, and she put them in a drawer.

After 18 years of married life and a move back to Lebanon, they decided to divorce. At that point, her religious marriage came back to haunt her. Although her husband had never shown a hint of piety in the past, she says, the prevailing interpretation of sharia family law in Lebanon granted him custody of the couple's two sons. And when he took them -- along with all the furniture -- there was nothing she could do.

 
Read more here.

October 11, 2016 in Custody (parenting plans), Divorce (grounds), International | Permalink | Comments (0)

Sunday, October 9, 2016

Exonerated inmate's $20M settlement is marital property in divorce, appeals court says

From the ABA Journal:

An exonerated inmate who married his wife while he was in prison can’t exclude his $20 million wrongful conviction settlement from marital property, an Illinois appeals court has ruled.

The Illinois Court of Appeals ruled in the case of Juan Rivera and Melissa Sanders-Rivera, the Chicago Tribune reports. Rivera had been imprisoned since his arrest in the 1992 murder of 11-year-old Holly Staker; he was cleared by DNA evidence and released from prison in January 2012.

Rivera was married on Halloween in 2000; he filed for divorce in May 2014. His settlement payout, after taxes and attorney fees, was about $11.4 million, according to court records cited by the Tribune.

Rivera had argued that the settlement was not marital property because it stemmed from conduct that occurred in 1992. Sanders-Rivera said the settlement is marital property because it stemmed from a lawsuit filed as a result of Rivera’s overturned conviction in 2011.

The appeals court sided with Sanders-Rivera in a Sept. 30 decision.

Read more here.

October 9, 2016 in Divorce (grounds), Property Division | Permalink | Comments (0)

Wednesday, September 14, 2016

Can I Serve Divorce Papers Myself?

From FindLaw: Law and Daily Life:

When you file divorce papers, the court clerk stamps all the copies, keeps a few, and gives one back to you with a stamped summons, and maybe a stack of other informational documents. Then what? Then, you actually need to have the papers served on your soon-to-be ex. This process is called Service of Process. But, can you serve the papers yourself?

Generally, when you serve initial court papers, you are not the person actually delivering the papers. Almost every state has professional process servers, who, for a fee, will deliver your documents and sign a proof of service form. While some states offer alternative methods of service apart from personal delivery, personal delivery is the best method to ensure receipt cannot be disputed.

Read more here.

When you file divorce papers, the court clerk stamps all the copies, keeps a few, and gives one back to you with a stamped summons, and maybe a stack of other informational documents. Then what? Then, you actually need to have the papers served on your soon-to-be ex. This process is called Service of Process. But can you serve the papers yourself?

Generally, when you serve initial court papers, you are not the person actually delivering the papers. Almost every state has professional process servers, who, for a fee, will deliver your documents and sign a proof of service form. While some states offer alternative methods of service apart from personal delivery, personal delivery is the best method to ensure receipt cannot be disputed.

- See more at: http://blogs.findlaw.com/law_and_life/2016/09/can-i-serve-divorce-papers-myself.html#sthash.AOESZnaR.dpuf

When you file divorce papers, the court clerk stamps all the copies, keeps a few, and gives one back to you with a stamped summons, and maybe a stack of other informational documents. Then what? Then, you actually need to have the papers served on your soon-to-be ex. This process is called Service of Process. But can you serve the papers yourself?

Generally, when you serve initial court papers, you are not the person actually delivering the papers. Almost every state has professional process servers, who, for a fee, will deliver your documents and sign a proof of service form. While some states offer alternative methods of service apart from personal delivery, personal delivery is the best method to ensure receipt cannot be disputed.

- See more at: http://blogs.findlaw.com/law_and_life/2016/09/can-i-serve-divorce-papers-myself.html#sthash.AOESZnaR.dpuf

When you file divorce papers, the court clerk stamps all the copies, keeps a few, and gives one back to you with a stamped summons, and maybe a stack of other informational documents. Then what? Then, you actually need to have the papers served on your soon-to-be ex. This process is called Service of Process. But can you serve the papers yourself?

Generally, when you serve initial court papers, you are not the person actually delivering the papers. Almost every state has professional process servers, who, for a fee, will deliver your documents and sign a proof of service form. While some states offer alternative methods of service apart from personal delivery, personal delivery is the best method to ensure receipt cannot be disputed.

- See more at: http://blogs.findlaw.com/law_and_life/2016/09/can-i-serve-divorce-papers-myself.html#sthash.AOESZnaR.dpuf

September 14, 2016 in Divorce (grounds), Resources - Divorce | Permalink | Comments (0)

Friday, July 22, 2016

Carolyn Hax: A separated couple is struggling to find a way to reconcile

From the Washington Post:

Dear Carolyn: I’ve been separated from my wife of 19 years and three kids for a few months. The separation stemmed from my infidelity — a mistake I made to run from my marital problems instead of to communicate, try to work through them and take a stand for my happiness. It was cowardly, and I regret it deeply.

We are in couples counseling and both want to find a way to reconcile, but we are struggling to get there. She can’t forgive me, and I am unable to convince her I am sorry enough without completely submitting and denying my authenticity.

I miss my kids terribly and this is hard on them. The truth is, though, that I want to reconcile only to unify the family. For all our sakes, personally and financially. Spending time alone with my wife is something I dread, as she is angry, judgmental and constantly telling me all the things I’m doing wrong. This describes our marriage previous to the infidelity.

When is it time to give up and move on? I’m living half a life.

Separated

Read more here.

July 22, 2016 in Custody (parenting plans), Divorce (grounds) | Permalink | Comments (0)

Wednesday, July 20, 2016

Programme aims to help people affected by 'parental alienation'

From The Guardian:

Parental alienation – a phenomenon where one parent poisons their child against the other parent – has become such a feature of the most difficult family breakdowns that Cafcass, the Children and Family Court Advisory and Support Service, is to offer targeted support for those affected following a government-funded intensive therapeutic pilot programme.

Distinct from the all-too-common acrimony between divorcing parents, the syndrome is an internationally recognised phenomenon. In America and Canada, “parenting coordinators” are ordered and supervised by the courts to help restore relationships between parents and children identified as “alienated”. In Mexico and Brazil, alienating a child from a parent is a criminal act.

Psychiatrist Richard Gardner developed the concept 20 years ago, defining it as “a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.”

Read more here.

July 20, 2016 in Custody (parenting plans), Divorce (grounds), Resources - Child Custody, Resources - Child Support, Resources - Children & the Law, Resources - Divorce, Visitation | Permalink | Comments (0)

Friday, June 24, 2016

Quick Revenue for Desperate Times

From Divorce Discourse:

People don’t remember you. I’m sorry. They don’t.

It’s not that you’re unremarkable. I’m sure you’re about as interesting as they come. Personally, I find you irresistible, and I’m not likely to forget you—ever.

But other people suck. They have their own lives and their own problems, and they’re focused on themselves. They’ll forget you nine minutes after you finish paying for their lunch.

Seriously, they’ve got big problems. They have an unexplained rash, the cat keeps peeing on the sofa, and their spouse is screwing the barista. Not surprisingly, you are not at the top of the list of things to think about.

So you’re getting hungry during a slow month, and you need some new clients. You’d like those absent-minded referral sources to think about you. Actually, you’d like them to do more than think. You’d like some business sent your way. Ideally, the phone would start ringing, right now.

How do you remind them that you exist?

Read more here.

June 24, 2016 in Divorce (grounds) | Permalink | Comments (0)

Tuesday, June 21, 2016

Ohio lawyer who participated in sexting exchange with matrimonial client is suspended

From the ABA Journal:

An Ohio lawyer has been suspended from practice for a year by the state’s top court, with six months stayed, for participating in a sexually charged exchange of text messages with a matrimonial client.

The texts, which were “mutual, reciprocal and very explicit and graphic,” according to records in the case, violated an attorney ethics rule that bans a lawyer from soliciting or engaging in sexual activity with a client, except when a consensual sexual relationship predates the lawyer-client relationship, according to Civitas Media and the Toledo Blade.

Read more here.

June 21, 2016 in Divorce (grounds) | Permalink | Comments (0)

Wednesday, May 25, 2016

Judge OKs malpractice suit over law firm's successful fight to uphold client's postnuptial agreement

Malpractice Suit on Firms Negotiated Post-nuptial Agreement Gains Traction

From the ABA Journal:

A New York trial court has OK’d a malpractice suit against Phillips Nizer, over the law firm’s handling of a divorce case that generated $1.4 million in legal fees for work done by 23 attorneys and 16 other professionals.

At issue is a 2000 postnuptial agreement that the firm helped negotiate and draft for client Elizabeth Berardi. It granted her a 49 percent interest in companies controlled by her husband, who operates bus companies. However, the pact did not specify whether she could liquidate her interest and, if so, how she could do so, reports the New York Law Journal (sub. req.).

A divorce ensued within five years, and Berardi again retained Phillips Nizer. Her husband, Eugene Berardi, challenged the postnup and she fought against its invalidation, winning the legal battle. However, unbeknownst to her, agreements made before 2000 with former shareholders and business partners in her husband’s companies limited the liquidity of her own interest, Elizabeth Berardi alleges in her complaint against the firm.

Read more here.

May 25, 2016 in Attorneys, Divorce (grounds), Resources - Divorce | Permalink | Comments (0)

Monday, May 23, 2016

What Does “No Fault” Divorce Mean?

"No Fault," what?

From HuffPost Divorce:

In 1970, the State of California originated the concept of “no-fault” divorce. The rationale behind the law was that there was no point in forcing people to stay in a marriage when they were not happy in it, and that requiring someone to prove legal grounds to dissolve the marriage was not serving any useful purpose. Historically, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery. This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was. In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.” In that situation, one spouse would testify that he or she was being subjected to mental stress as a result of the actions of the other spouse. Given that, and given that people simply did not want to be married, there seemed little reason to force them to stay in marriages when grounds could not be established. Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010.  

Read more here.

May 23, 2016 in Divorce (grounds) | Permalink | Comments (0)