Thursday, June 14, 2007
The tax court, in a recent summary opinion, provides a good example for our students of the importance of careful drafting in light of the interrelationship between the tax code and state law when determining the tax consequences of divorce. In this case, the divorce decree provided that Husband would pay Wife $1200 a month in “rehabilitative alimony” and an additional $72,000 in “lump-sum alimony”, payable in installments of $600 a month. The decree did not indicate whether this lump sum
award would terminate upon Wife’s death.
Under section 71(b) of the tax code, alimony is not deductible if it does not terminate upon the payee spouse’s death. Because the Florida courts have held that an award of lump-sum alimony survives the death of both the obligor and the obligee, the alimony was not properly deductible.
Hinson v. Commissioner, US Tax Court Summary Opinion 2007-92 (June 7, 2007)
Read opinion (last visited June 14, 2007 bgf)
Wednesday, March 21, 2007
Case Law Development: Allegations of Wife's Attempted Murder of Husband Do Not State a Claim for Terminating His Maintenance Obligation
The Missouri Supreme Court affirms the dismissal of an ex-husband's petition to terminate maintenance based on his allegations that wife had sought to have him murdered. The couple had agreed to a non-modifiable maintenance term in their divorce decree. The Supreme Court noted that Missouri statutes provide that such an agreement, when found conscionable and incorporated into a divorce decree, binds the court:
A non-modification provision can cut both ways. No one can know which party will need more or deserve less as time passes. As with all contract terms, a non-modification provision is an agreed allocation of future risk, bargained for and for which consideration is exchanged. The Missouri legislature has seen fit to allow such a clause to be elevated from contractual to judicial status by incorporation into the dissolution decree. We are bound to respect the statute and to enforce these documents as agreed to and ordered.
The court rejected husband's argument that a court may reconsider the conscionability of the agreement based on later events. It likewise found that waiver was inapplicable as the attempt to murder husband would not establish a "clear and unequivocal attempt to relinquish her contractual right to maintenance so long as [husband] is living." Finally, the court rejected the application of the public policy doctrine which prohibits an individual from receiving death benefits when they have murdered their spouse. Reasoning that wife would not benefit from the successful murder of husband, the court found these cases inapplicable.
Richardson v. Richardson, 2007 Mo. LEXIS 39 (March 20, 2007)
Opinion on web (last visited March 20, 2007 bgf)
Monday, February 26, 2007
The Missouri Court of Appeals decided a case involving a divorce from a 27-year marriage in which maintenance, division of property and attorneys fees were disputed. The court affirmed the trial court's decision to award maintenance to wife, who had been a homemaker for most of the marriage and who had health problems and few job skills, and to award her a portion of the husband's retirement account, as well as the decision to award attorneys fees.
That the trial court's decisions were upheld is not particularly surprising given the high degree of deference given to trial courts on these issues and the fact that Missouri allows marital fault to impact these decisions.
What is striking about the case from a teaching perspective are the numbers:
Wife stayed at home for most of the marriage and never had earned more than $2000 a year.
At the time of trial, Husband had a monthly income of $3900, working as a machinest.
The couple had arrived at a settlement agreement and divided most of their marital property and debts. After the trial court divided the retirement account, the total property Wife received under the judgment was $9908. The total value of the property awarded to Husband, less the marital debt, came to $14,341. The trial court ordered Husband to pay modifiable maintenance to Wife in the amount of $550 per month.
Each party incurred about $3000 in attorneys fees for the dissolution action. For the appeal, Wife was awarded $6000 attorneys fees for her representation on appeal; Husband paid $18,000 for his representation on appeal.
Russum v. Russum, February 20, 2007
Opinion on the web (last visited February 26, 2007 bgf)
Wednesday, December 13, 2006
The Supreme Court of Connecticut has affirmed the court of appeals ruling in a case in which a couple were married for 11 years, lived together for a number of years and then remarried for six years. (See Family Law Prof Blog post of February 10, 2006) The cour of appeals had found that the trial court, in fixing the term of the maintenance award, improperly took into consideration both the prior marriage and cohabitation and the fact that there were adult children with grandchildren residing in the house.
The court concludes that " 'length of the marriage' criterion prescribed in [statutes governing maintenance awards], as a matter of law, does not include prior marriages or cohabitation preceding the marriage."
As to the issue of the maintenance order being a disguished child support order for the adult children and grandchild in the home, the court reviewed cases from a number of other jurisdictions on the issue. The court noted that the need to care for minor children can property affect alimony because of the lesser income a custodial parent is able to earn while caring for a minor child, but even then, "an alimony award should address the needs of that parent, not the minor child, whose needs properly are addressed under a support order." However, the court found no justification for considering the impact of an adult child or grandchild in the home in crafting alimony.
Loughlin v. Loughlin, 2006 Conn. LEXIS 463 (December 12, 2006)
Opinion on the web (last visited December 13, 2006 bgf)
Wednesday, August 30, 2006
Case Law Development: Incorporation of Alimony Agreement into Divorce Decree Does not Transform Contractual Alimony into Decretal Alimony
Texas is an interesting state for studying approaches to spousal maintenance. Texas courts long held that the statutes and public policy of the state precluded courts from awarding post-divorce alimony or spousal maintenance. However, the Texas Supreme Court held that parties could agree to such awards contractually and that these alimony agreements, as with other marital property agreements, even when incorporated into divorce decrees, were enforceable as contracts and governed by contract law.
In 1995, Texas adopted legislation authorizing alimony in only two circumstances: in instances of recent violence by one spouse against the other or in a long-term marriage in which one spouse is unable to support him or herself. Moreover, the legislation places strict limits on the length and total amount of alimony and provides a range of circumstances which terminate alimony, including cohabitation.
In this case, Husband had agreed to alimony in excess of the term and amount allowed by statute and that agreement was incorporated into the divorce decree. He now sought to have the alimony terminated on the statutory grounds of wife's cohabitation, even though there was no contractual agreement that alimony would be terminable on this ground. He argued that because the district court in the original divorce decree had incorporated the agreement into the decree and had ordered the parties to do all things necessary to effectuate the agreement, this "decretal" language transformed the contractual alimony payments into court-ordered maintenance payments. The trial court disagreed and the appellate court affirmed, holding that the agreement was governed by contract law rather than the family code. "The fact that a court expressly approves such an agreement and incorporates it into the final divorce decree does not transform contractual alimony payments into court-ordered maintenance payments subject to the termination and modification provisions of chapter 8 of the family code."
McCollough v. McCollough, 2006 Tex. App. LEXIS 7579 (August 25, 2006)
Opinion on web (last visited August 29, 2006 bgf)
Saturday, July 22, 2006
Case Law Development: Supreme Court of Canada Allows Effect of Spousal Misconduct to be Considered in Awarding Alimony
Canada's Divorce Act eliminates consideration of misconduct in awarding spousal support. The Supreme Court of Canada has now ruled that, although misconduct like adultery is not relevant in a divorce case, the consequences of that misconduct may be. In justifying this nuanced distinction, the court noted:
The 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support. Section 15.2(5) provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”. In addition, s. 17(6) instructs the court not to consider in a variation application any conduct that could not be considered in the making of the initial order. These provisions make it clear that misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider under s. 15.2(4) in making or varying a spousal support order. There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. Those consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. On the contrary, they can be highly relevant to factors, such as a claimant spouse’s capacity to be self‑sufficient, which must be considered when making a spousal support order. Failure to achieve self‑sufficiency is not a breach of “a duty”. It is simply one factor amongst others to be taken into account when considering a spousal support order.
Wednesday, June 28, 2006
Regular readers of this Blog may be interested in the commentary on no fault divorce and making an award of spousal support that appears in the Toronto Star and is authored by University of Toronto law professor Martha Shaffer. Professor Shaffer analyzes last week’s decision by the Canadian Supreme Court in Leskum v. Leskum, a no fault divorce action in which Ms. Leskum remained unable to work some eight years after the marriage because of depression caused by her ex-husband's adultery. The Supreme Court indicated that a trial judge could consider the consequences of the husband's conduct (the depression) on the wife when awarding spousal support. Professor Shaffer suggests that the decision is not all that ground breaking, rather, “the court could have carefully analyzed Leskun's situation to show how she was entitled to ongoing spousal support irrespective of Mr. Leskun's affair. Unfortunately, it did not. The result is a judgment that may be prone to misinterpretation.” Source. Martha Shaffer, Toronto Star, thestar.com. To read Professor Shaffer's commentary, please click here (last visited June 28, 2006).
Saturday, June 24, 2006
Canada’s Supreme Court Rules that Courts May Consider the Consequences of Spousal Misconduct When Deciding Support Award
Although Canada's 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support, the Supreme Court ruled that courts may distinguish between the emotional consequences of misconduct and the misconduct itself. It said in Leskum v. Leskum, filed June 21, that the consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. “On the contrary,” wrote the court, “they can be highly relevant to factors, such as a claimant spouse’s capacity to be self-sufficient, which must be considered when making a spousal support order. Failure to achieve self-sufficiency is . . . one factor amongst others to be taken into account when considering a spousal support order.” In this case, the husband’s affair had a devastating effect on the wife and she was unable to attain self-sufficiency. Therefore, the consequences of the misconduct were correctly considered by the lower court. The opinion of the Supreme Court of Canada may be found by clicking on this link (last visited June 24, 2006, reo).
Thursday, May 25, 2006
"By the time the House of Lords had finished delivering its double ruling in the Miller and McFarlance cases today, divorce lawyers around the country were already scrambling to interpret its significance. There was disagreement as to whether it clarified or complicated divorce laws. Many believed it would lead to higher maintenance payments for ex-wives and an increase in pre-nuptial agreements. All agreed on one thing: it was a blow to wealthier spouses.
"Overall it hasn't got better for the husbands," Magnus Mills, a partner at Manches, said. "It's probably slightly better for the wives. White v White [the landmark 2000 case] was the watershed that made things better for wives everywhere and that swing hasn't halted." Justin Moss, a family law solicitor at Wilsons, a firm in Salisbury, said: "Rich men shouldn't get married, frankly. It's that simple. It's not sensible for anyone, man or woman, to marry anybody financially weaker than they are."" By Alex Spence, Times Online Link to Article (last visited 5-24-06 NVS)
"ONE of Scotland's most senior legal figures has launched a scathing attack on Scots law by claiming that women are being discriminated against in divorce settlements north of the Border. Lord Hope of Craighead yesterday took the unusual step of criticising Scottish law as he delivered a ruling on two multi-million pound divorce cases in England. The former lord president was among a panel of judges at the House of Lords that ruled Melissa Miller was entitled to £5 million of her former husband's assets after just two years and nine months of marriage. Meanwhile, Julia McFarlane, who was awarded £250,000 a year from her former husband's earnings, was told that she can keep her maintenance payments for life if necessary.
In his opinion on the cases, Lord Hope called for a review of the limited awards Scottish courts can grant to spouses to cushion the blow of divorce. He called on judges north of the Border to be given power to provide long-term compensation to the partner of a marriage who has given up well-paid, promising careers after marriage. The cases have been hailed as a significant victory for women. But as the judges were ruling on English cases, their judgments are not binding on Scotland." By Michael Howie,scotsman.com Link to Article (last visited 5-24-06 NVS)
Wednesday, May 10, 2006
A Colorado woman is seeking $2.5 million from a businessman who she claims was involved in a polygamous marriage with her. She alleges that when she left a business that she and the other wives were working in that the man had agreed to pay her $2.5 million to settle her interest in the business. Attorneys for the man contend that the woman is attempting to extort money by threatening to have him prosecuted for polygamy. Source. AP, cbs4denver.com. Please click here to read the complete story (last visited May 10, 2006, reo).
Tuesday, May 9, 2006
Case Law Development: Effect of Bankruptcy Discharge on State Court Judgements to Enforce Non-Discharged Debts
The United States Court of Appeals for the Fifth Circuit was called upon to revisit what it characterized as the “ceaseless litigation” involved following a couple’s divorce in 1993. The case addresses the issue of discharge of debt in bankruptcy but also provides yet another example of how difficult and contentious efforts to enforce obligations under divorce judgments can be.
After their 1993 divorce action, Husband filed bankruptcy and had discharged certain property settlement obligations but was unsuccessful in discharging his alimony debt. Wife then brought several state court contempt actions to enforce the obligations under the divorce proceeding. In one of these actions, she obtained a state court judgment for contempt ordering that Husband pay the discharged property settlement (the court being unaware of the bankruptcy discharge at that point), the alimony arrearages of over $96,000, damages for failure to pay alimony (primarily Wife’s lost equity in property that was foreclosed when she was unable to pay her mortgage), and attorneys fees in enforcing the obligations.
Husband then brought an action in bankruptcy court to reopen the bankruptcy and requested the court to void the state court judgments. The bankruptcy court ruled that Husband's prior bankruptcy discharge caused all of Wife's claims, except for the claim for non-discharged alimony, to be barred by res judicata. The decision was affirmed by the district court.
The court of appeals, rejected the bankruptcy court’s use of res judicata to resolve the dispute and focused instead solely on the questions of focus instead on the requirements of section 524(a)(1) of the Bankruptcy Act regarding whether the state court judgments were for debts that had been discharged by the bankruptcy action. Thus, the court pointed out that the state court’s original judgment for non-payment of the property settlement was clearly an attempt to enforce a discharged debt and was void.
As to the judgment for attorney’s fees, the court of appeals noted that reasonable attorneys' fees incurred in collecting support obligations should be treated as support obligations while attorney’s fees related to discharged debts should be considered discharged debt. Wife’s award of attorneys’ fees related to efforts to enforce both discharged and non-discharged debt. The district court had held that, because of this, the entire judgment of attorneys' fees was void under the equitable doctrine of unclean hands. The court of appeals disapproved this use of the unclean hands doctrine, noting that this equitable doctrine may not be used by a federal court to void a state court judgment. Rather, the court held that the state court judgment for fees was void to the extent that those attorneys' fees were incurred in enforcing discharged debt and remanded for a determination of what portion of the attorneys’ fees related to that debt.
As to the damages for foreclosure of Wife’s property, the court noted that because the foreclosure occurred before Husband had filed for bankruptcy, they were “claims” in the bankruptcy and were discharged along with Husband’s other debts. As to losses of other property, the court remanded for a factual determination of how much of that award was for pre-petition and post-petition claims.
In re Egleston, 2006 U.S. App. LEXIS 11296 (May 5, 2006)
Opinion on the web (last visited May 8, 2006 bgf)
Tuesday, May 2, 2006
Case Law Development: New Hampshire Supreme Court Addresses Rehabilitative Maintenance Preference, Extended Payments of Property Settlements and Division of Moral Obligations that are not Legal Debts
The New Hampshire Supreme Court reviewed a divorce action with a spectrum of economic issues worth noting. The couple in the case had been married 13 years and had four children. Husband owns a dental practice with his father. Wife earned a law degree early in the marriage but, by agreement between the couple, she remained at home as homemaker and primary caretaker of the children.
One issue related to the choice of rehabilitative rather than permanent maintenance. The trial court awarded wife $3000 a month alimony for three years, based on the amount of time required for her to prepare herself (in terms of mental health and education and job placement) to return to the job market. Wife argued that she should have been awarded permanent alimony, given the couple's agreement that she stay home with the children, the fact that the children would still be school aged in three years, and her current depression and anxiety. The Supreme Court affirmed the alimony order, noting that rehabilitative alimony is the preferred approach and should only be rejected where "a supported spouse suffers from ill health and is not capable of establishing an individual source of income, or where the supported spouse in a long-term marriage lacks the requi-site job skills to independently ap-proximate the standard of living established during the marriage." Neither situation existed in these facts. Moreover, the court noted, Wife could petition for extension of the alimony if at the end of three years she was still not in a position to meet her reasonable needs.
A second issue concerned the division of property. The court divided the marital estate of $ 2.9 million and awarded 55 percent to Wife. The trial court then ordered that Husband be permitted to pay her the outstanding share of the property settlement over a period of 23 years. The Supreme Court found such an extended payment schedule to be an abuse of discretion. The court did observe that case law from other jurisdictions supported extended payment schedules where there were substantial nonliquid marital assets and a lump-sum cash payment would create a serious financial hardship for the obligor. The court further commented that "We acknowledge the frustration and inconvenience that may occur when one former spouse must sell part of his or her assets to make the payments required by a divorce judgment. It is an inevitable result of virtually every property division, however, that a former spouse who is required to turn over assets to the other at the termination of the marriage has fewer assets after the division than before.... Accordingly, we hold that the trial court unsustainably exercised its discretion by allowing the respondent to pay a substantial portion of the petitioner's share of the marital estate over a twenty-three year period."
Finally the court held that the trial court had abused its discretion in ordering reimbursement to Husband's parents of contributions they made to certain marital property. The court cited the general rule that courts may not divide mere "moral" obligations but only legal debts. The court concluded that if Husband reimbursed his parents for their contributions, "he would be doing so gratuitously and not as a result of an enforceable legal obligation. Accordingly, the trial court unsustainably exercised its discretion in ordering such a reimbursement and reducing the marital estate by $ 275,000."
Harvey v. Harvey, 2006 N.H. LEXIS 49 (April 26, 2006)
Opinion on the web (last visited May 1, 2006 bgf)
Friday, April 28, 2006
The Georgia Supreme Court considered the retroactive application of family law rulings in a case in which the question was whether alimony obligations survive the death of the obligor parent. The court affirmed the trial court's decision that husband's estate could not be held in contempt for failing to continue to pay the alimony obligation. The trial court had concluded that the normal rule that death of the obligor terminates the agreement should apply because the settlement agreement's provision that Wife was entitled to alimony until she remarried or died did not evidence a manifest intention to reverse that rule.
The issue for the Supreme Court was whether that rule, drawn from a 1981 Georgia Supreme Court decision, should be applied retroactively to the couples' incorporated settlement agreement entered in 1975. The court concluded that it would apply the general rule that "a judicial decision announcing a new rule is retroactive unless the decision itself expressly makes it a matter of pure or selective prospectivity or, after examining whether retroactive application would adversely affect operation of the new rule and weighing the inequity imposed by retroactive application, we subsequently conclude application of the new rule would cause unjust results to those who justifiably relied on the former state of the law." Applying that rule to this case, the court noted that there had been conflicting authority on the issue of whether alimony terminates upon death of the obligor. The authority wife argued supported her position was a narrowly drawn case and a plurality opinion which set itself out as an exception to the general rule that a recipient spouse's claim for alimony terminated upon the death of the obligor spouse. A subsequent decision that overruled that authority did not indicate that it should be applied prospectivity only. Accordingly the court concluded that retroactive application would not result in "substantial inequitable results that amounts to the injustice or hardship that would authorize a holding of nonretroactivity."
Findley v. Findley, 2006 Ga. LEXIS 254 (April 25, 2006)
Opinion on the web (last visited April 28, 2006 bgf)
Tuesday, April 25, 2006
Case Law Development: Conviction of Domestic Violence Basis for Termination of Alimony Even Though Agreement Makes Support Nonmodifiable
The California Court of Appeals has held that the rebuttable presumption its Family Code that an award of spousal support not be made to a spouse who has been convicted of intraspousal domestic violence applies where Wife was convicted of domesic battery, stalking, and violation of a protective order in Florida, even though the parties' settlement agreement provided that spousal support was not subject to modification or termination. "We conclude that the public policy against enforcement of the nonmodifiable spousal support provision clearly outweighs any interest in its enforcement. Though there is a strong public policy in favor of enforcing the spousal support provisions of the parties' settlement agreement and appellant would forfeit a substantial amount of spousal support if there were no enforcement, the parties could not have reasonably expected that respondent would finance his own abuse by appellant. Balanced against these factors, we note that there is a significant public policy against domestic violence. ... Refusal to enforce the spousal support provision will further this policy against domestic violence, because appellant will have fewer financial resources to continue her harassment of respondent. We must also emphasize that appellant's misconduct is extremely serious and has continued despite incarceration and court orders in California and Florida. Moreover, there is a direct connection between appellant's misconduct and the nonmodifiable spousal support provision."
In re Marriage of Cauley, 2006 Cal. App. LEXIS 566 (April 24, 2006)
Opinion on the web (last visited April 25, 2006 bgf)
Saturday, March 25, 2006
Our readers may find the survey article by Joan Biskupic written earlier this week in USAToday interesting and an excellent overview of the present status of the same-sex marriage battle throughout the United States. Source: Ms. Joan Biskupic, USAToday.com. Please click here to go to Ms. Biskupic’s article (last visited March 25, 2006, reo).
Tuesday, March 14, 2006
The Georgia Supreme Court found no error in a trial court's ruling that a portion of Husband's undivided interest in the estates of his late parents may be awarded as alimony. However, the court did reverse the trial court's joinder of Husband's two brothers (the co-executors of the estate) in the divorce action, finding that "the absence of the Co-executors from this litigation would not render the relief afforded the wife partial or hollow because she would obtain an interest as full and complete as that presently held by Husband."
Searcy v. Searcy, 2006 Ga. LEXIS 170 (March 13, 2006)
Opinion on the web (last visited march 14, 2006 bgf)
Sunday, March 5, 2006
Two Pennsylvania legislators, Senators Linda Short and Brad Hutto, were reportedly unsuccessful last week in their effort to amend Pennsylvania law to remove adultery from consideration as a factor in awarding alimony. Under their proposal, family court judges could excuse marital misconduct “as grounds to deny alimony once a temporary hearing has been held on a divorce proceeding — a much earlier point in the process.” The proposal was voted down in the state senate by a vote of 26-16. Supporters of the proposal argued that spouses involved in a divorce action may “string out” court proceedings in order to “catch” their partner in adultery. “Then, the partner — usually the man — can then use the misconduct to deny alimony.” Source: Roddie Burris, centredaily.com. Please click here to read the complete story (last visited March 5, 2006, reo).
Tuesday, February 21, 2006
The Florida Court of Appeals has held that, although contempt is not available in Florida to enforce equitable distribution, it is available in case of nonpayment of alimony. The court upheld its use in this case where husband failed to pay lump sum alimony which had been ordered after husband failed to comply with the court's order that he pay wife a share of the proceeds of sale of equitably distributed property.
Bongiorno v. Yule, 2006 Fla. App. LEXIS 1970 (February 17, 2006)
Opinion on the web (last visited February 21, 2006 bgf)
Friday, February 10, 2006
Case Law Development: Alimony and Property Division May not Be Based on Entirety of Relationship but only the Marriage being Dissolved
In this case, the couple were married for 11 years, had three children, divorced, reconciled and cohabited for a number of years, and then remarried for another six years. At the time of their second divorce, their children were between the ages of 16 and 22 and the 20-year-old had a child. (I always wonder how common this situation is. I haven't found much research on the subject. Professor Howard Wineberg has reported that "Approximately 10 percent of all currently married couples in the United States have separated and reconciled" Wineberg and McCarthy, "Separtion and reconciliation in American marriages," 29 Journal of Divorce & Remarriage 131-46 (1993) and my students' anecdotal reports of these situations tend to run at a rate of about 1 out of 150 students.)
The trial court granted Wife the marital home, half of Husband's pension, and 12 years of non-modifiable maintenance. Husband appealed, arguing that the trial court had improperly relied on the total length of the parties' relationship rather than on the length of their second marriage only in making these awards. The Connecticut Court of Appeals agreed with Husband and reversed. The court reviewed Connecticut law on the status of cohabitants and concluded that the trial court clearly could not take the period of cohabitation into account as this would undermine Connecticut publicc policy, which makes "a clear distinction between marriage and mere cohabitation, even when that cohabitation was preceded by, or ultimately led to, a marital relationship.... parties who have made the formal commitment of marriage are afforded greater rights and protections than those who choose to reside together informally." As to the consideration of the first marriage, the court noted this issue was closer but ultimately concluded that the plain language of the statute, the principal of res judicata, and the guidance of the decisions of other states in "serial marriage cases" all supported the court's conclusion that the trial court erred in considering, as equitable factors, the prior marriage.
Loughlin v. Loughlin, 2006 Conn. App. LEXIS 58 (February 7, 2006)
Opinion on the web (last visited February 10, 2006 bgf)