Tuesday, October 20, 2009
When spouses in a community property regime hold certain federal assets, the doctrine of preemption often results in the inability of state community property law to step in to regulate their classification. The United States Supreme Court's decision in Boggs v. Boggs is a classic example in the pension context, though there are countless other such assets (intellectual property, IRAs, social security benefits, just to name a few).
Louisiana has an interesting 2001 statute clearly designed to work around preemption (La. Rev. Stat. 9:2801.1). It provides:
When federal law or the provisions of a statutory pension or retirement plan, state or federal, preempt or preclude community classification of property that would have been classified as community property under the principles of the Civil Code, the spouse of the person entitled to such property shall be allocated or assigned the ownership of community property equal in value to such property prior to the division of the rest of the community property...
A Louisiana appellate court, in the first decision directly applying the statute, recently approved use of the statute to allocate more community property to wife because preemption required that her husband's social security benefits, earned through effort expended during the marriage, be classified as husband's separate property. The opinion includes no discussion of the constitutional implications of so blatantly undermining the result of the preemption doctrine.
Are there other examples of state law which so clearly undermine federal preemption?
Wednesday, October 14, 2009
Some people may think they win the lottery solely by
marrying their soul mates. Others may
think, in the age of high divorce rates, that to achieve life-long marriage is to
hit the jackpot. A recent newspaper article
in Bermuda, however, suggests that divorce laws favoring near equal property
division between spouses, particularly in the United Kingdom
Luckily, it's still a more pleasant lottery to play than Shirley Jackson's.
Wednesday, January 14, 2009
In a case from NY that sounds like an examination question, the legal issue might be expressed as whether a kidney is a marital asset.
According to the BBC,
He said he had not only given his heart to his wife, Dawnell, but donated his kidney to save her life.
But divorce lawyers say a donated organ is not a marital asset to be divided.
Dr Batista married Dawnell in 1990 and donated the kidney to her in 2001. She filed for divorce in 2005 and a settlement has still not been reached.
CBS has some videos here, as well as an analysis of how valuable the kidney might be (she had other relatives who might have donated a kidney). More coverage (local) by Newsday here, which will be the site to watch for updates.
Friday, August 24, 2007
The Fifth Circuit Court of Appeals holds that a QDRO is the only route to waiver of pension rights upon divorce. This case involved Decedent-Husband, who was a DuPont employee and participant in its savings and investment plan (SIP). Decedent had signed a beneficiary-designation form in 1974, identifying Wife as the SIP’s sole beneficiary. Decedent and Wife were divorced in 1994. In the divorce decree, Wife agreed to be divested of “all right, title, interest, and claim in and to … the proceeds therefrom, and any other rights related to any … retirement plan, pension plan, or like benefit program existing by reason of [decedent’s] employment.” However, no QDRO was ever submitted to DuPont. Decedent never changed or removed the Wife as the SIP beneficiary.
Decedent’s estate demanded DuPont distribute SIP funds to the estate, claiming that Wife’s beneficiary designation was invalid under the Texas Family Code, which provides that spousal beneficiary designations are rendered invalid by a divorce. While the district court held that federal law preempted state law, it found that a federal common law approach applied, allowing waiver of the benefits.
The court of appeals reversed, finding that the anti-alienation provision of ERISA applied to this plan because it was a pension plan, distinguishing the district court’s common-law waiver approach as having been applied only to life insurance plans, to which the anti-alienation provision does not apply.Moreover, the court rejected the estate’s argument that a “waiver” is not an “alienation” and thus does not run afoul of the anti-alienation provision. Rather the court concluded that:
In the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision, they exempt a state domestic-relations order determined to be a QDRO, under the standards set forth in ERISA… When, as here, ERISA provides a specific mechanism – the QDRO – for addressing the elimination of a souse’s interest in plan benefits, but that mechanism is not invoked, there is no basis to formulate a federal-common-law rule. Requiring DuPont to recognize the waiver in this situation would conflict with ERISA by purporting to determine rights to pension-plan benefits in a manner not authorized by the QDRO provisions, 29 U.S.C. § 1056(d)(3), and therefore, not permitted by the anti-alienation provision, 29 U.S.C. § 1056(d)(1).
Kennedy v. Plan Administrator for DuPont Saving and Investment Plan, U.S Court of Appeals for the Fifth Circuit, August 15, 2007
Opinion online (last visited August 24, 2007 bgf)
Saturday, August 18, 2007
Case Law Development: Contempt Appropriate Remedy for Failure to Abide by Divorce Decree's Hold Harmless Provision
In a divorce decree, Husband was ordered to make certain credit card and mortgage payments and to hold Wife harmless with regard to the debts. Husband failed to do so and Wife requested that he be held in contempt. The trial court ruled that it could not use contempt as a remedy for failure to abide by hold-harmless agreements. The Indiana Court of Appeals reversed, holdindg that while contempt could not be used to remedy noncompliance with a money judgment, Ind. Code § 31-15-7-10(1) made contempt an available remedy for other noncompliance with a dissolution decree. Because the noncompliance in this case did not involve a money judgment, the trial court could properly use its contempt powers to enforce the order.
Mitchell v. Mitchell, 2007 Ind. App. LEXIS 1805 (August 8, 2007)
Opinion online (last visited August 18, 2007 bgf)
Friday, August 3, 2007
The Missouri Court of Appeals reviewed the division of the increased value of several pieces of real property that were Husband's separate property in an opinion that nicely demonstrates the operation of the "proportionate share" approach to dividing increased value.
The case involved a couple who were divorcing after thirteen years. They had entered into a antenuptial agreement before the marriage that declared that each party would keep their separate property as separate; however, Husband failed to plead the antenuptial as an affirmative defense so that the court of appeals held that the trial court had erred in allowing the agreement to be introduced into evidence.
The properties at issue included some unimproved land Husband had owned before the marriage and an additional parcel of land he inherited during the marriage. Under Missouri law, property owned before marriage or acquired by gift, bequest or devise is separate property. However, Missouri also applies the rule that income from separate property is marital and the the increase in the value of separate property may be considered marital to the extent it is the product of marital contributions. The trial court had held that the entire equity of both parcels was marital property because of improvements that were financed by rental from the properties and loans paid by marital funds. However the court of appeals reversed the trial court's calculation, noting that the increased value that is marital should be determined by a percentage reflecting the ratio of marital contribution to total contributions.
The case provides detailed financial accounting for each item of property and would make an excellent exercise for students in considering the various approaches used to divide increase in value.
Holman v. Holman, 2007 Mo. App. LEXIS 1073 (July 26, 2007)
Opinion online (Last visited August 2, 2007 bgf)
Thursday, August 2, 2007
The Iowa Supreme Court addressed equitable division of a wrongful death award. The case involved a couple who were divorcing after a 22-year marriage. Fifteen years earlier, the couple's oldest son was killed in an auto accident. His mother witnessed the accident. Both parents filed wrongful death actions and settled their separate claims, with mother receiving a settlement of over $400,000 more than father. Both parents received payments on the settlements, which were treated as marital income by the couple. Upon divorce, the court divided the future payments made to either party to be divided equally. Mother argues that she should have been awarded a larger share of the payments because the difference between her and her husband's awards represented the compensation for the emotional distress she suffered from witnessing the accident. However, the court was unable to determine the portion of the award that was attributable to her emotional distress and concluded that an equal division of the award was not inequitable.
In re Marriage of Arends, 2007 Iowa App. LEXIS 846 (July 25, 2007)
Opinion online (last visited August 1, 2007 bgf)
Tuesday, July 31, 2007
In a case that would provide a fine basis for a class discussion problem, the Supreme Court of Iowa considers equitable distribution of asset appreciation in a 15-year marriage. The court held that the trial court had erred in not dividing the increase in the value of both spouses’ premarital assets. The trial court had awarded each spouse the passive increase in the value of their premarital assets but had divided the increase it attributed to marital efforts.
The Supreme Court reversed, finding that marital contributions were of little help in determining what was equitable in a 15-year marriage:
We do not find the parties’ respective contributions to the marriage justify treating the parties differently. Michele’s biggest criticism of Ted is his “failure without good cause to contribute financially to the marriage consistent with his earning capacity.” However, we have never held or even insinuated that spouses should maximize their earning potential or risk being punished in the distribution of the parties’ property.
Iowa is a no-fault state. … It is important to remember marriage does not come with a ledger. … Spouses agree to accept one another “for better or worse.” Each person’s total contributions to the marriage cannot be reduced to a dollar amount. Many contributions are incapable of calculation, such as love, support, and companionship. “Financial matters . . . must not be emphasized over the other contributions made to a marriage in determining an equitable distribution.” … Nor do we find it appropriate when dividing property to emphasize how each asset appreciated—fortuitously versus laboriously—when the parties have been married for nearly fifteen years.
The court did, however, allocate to husband $22,000 of debt that he had incurred after wife’s petition for divorce. Because husband was unable to explain why he had incurred this debt or how it had been spent, the court found it equitable to allocate this debt exclusively to husband. The opinion provides a fine summary of Iowa law on dissipation of marital assets and division of debt.
In Re Marriage of Fennelly, (July 20, 2007)
Opinion online (last visited July 30, 2007 bgf)
Tuesday, June 5, 2007
"An energy magnate's estranged wife was awarded $184 million Monday in what appears to be one of the biggest divorce verdicts in U.S. history.
Citing irreconcilable differences, Maya Polsky, a 55-year-old art gallery owner, filed for divorce from her husband, Michael Polsky, in 2003.
Judge William Boyd ruled in October that Maya Polsky was entitled to half of the Chicago couple's cash and assets, with her share valued at $176 million. On Monday, the judge amended his decision to include previously omitted assets that increased the value of her award to $184 million.
Maya Polsky's attorney, Howard Rosenfeld, said more than $170 million of the award is nontaxable cash. He said that in researching the case he could find nothing in which a homemaker wife received such a significant award.
"She's very much satisfied with the court's decision. She thinks she was fairly treated by the court," Rosenfeld said." AP, CNN.com Link to Article (last visited 6-5-07 NVS)
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)
Thursday, February 15, 2007
The Iowa Supreme Court reviewed a property division in an unusual case involving a couple who, during their 10-year marriage, built up a business together with assets of over ten million dollars, but who kept all the business assets in wife's name to protect them from creditors. The trial court had ordered that wife be granted the business assets but that she make payments to her ex husband over a period of years, with each payment to become a judgment when due. The court granted husband an equitable lien on the company to secure these payments.
However, the Iowa Supreme Court found the trial court's approach to leave husband with too little protection. First, the court found that the trial court should have issued a judgement for the entire amount, with an allowance of periodic payments, so that a judgment lien would attach to the business's real property. Second, it found the trial court's refusal to assess interest on the judgment to be in error. Finally, it reversed the grant of the equitable lien, finding a combination of a judgment lien and a UCC lien to be the best combination of protections for the ex husband.
In re Keener, 2007 Iowa Sup. LEXIS 13 (February 9, 2007)
Opinion on web (last visited February 11, 2007 bgf)
Sunday, January 21, 2007
The BBC News reports that a bickering New York couple have had a dividing wall constructed inside their home as part of an acrimonious divorce. Chana and Simon Taub, both 57, have endured two years of divorce negotiations, but neither is prepared to give up their Brooklyn home. Now a white partition wall has been built through the heart of the house to keep the pair apart. Mr Taub asked a judge to allow him to erect the partition when the couple's divorce stalled over financial details.
Read the story and see the picture (last visited January 22, 2006 bgf)
Wednesday, December 13, 2006
In a case in which the value of wife's solo medical practice was the subject of considerable dispute, the Kentucky Court of Appeals refuses the invitation to join the majority of state that distinguish between enterprise goodwill and personal goodwill in valuing a business upon dissolution. The court reviewed a number of cases from other jurisdicitons on either side of the issue and concluded that "After considering the issue and the facts of this case, we are not inclined to deviate from long-standing precedent by creating a wholesale change of law holding that "personal" and "enterprise" goodwill should be distinguished for purposes of property valuation in a divorce proceeding - even given that [Wife's] practice is a sole proprietorship. Issues of stare decisis aside, we believe that "[i]t would be inequitable to hold that the form of the business enterprise can defeat the community's interest in the professional goodwill. Such a result ignores the contribution made by the non-professional spouse to the success of the professional ...." The court noted that the husband made a number of contributions directly to the wife's medical practice, including "training a number of administrative personnel and handling a number of financial aspects of the practice."
A dissenting judge found the arguments in favor of distinguishing between the two forms of goodwill, but agreed with the majority that that matter was for the Kentucky Supreme Court.
Gaskill v. Robbins, 2006 Ky. App. LEXIS 364 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)
Wednesday, October 25, 2006
Just in time for Halloween, the Michigan Court of Appeals decides a case in which the husband's arguments for assigning fault in the characterization of debt as marital sound like something an Edgar Allen Poe character would construct.
The case involved a division of debt owed to the insurance company due to husband's actions in burning down the marital home on the evening after Wife had left the home and announced her intention to get a divorce. The trial court allocated to Husband all of the $300,000 is restitution owed to the insurance company. Husband argued that Wife should split that debt with him because he had acted in response to her adulterous affair.
The court of appeals affirmed, in its unpublished opinion, concluding:
We agree with the trial court that it is difficult to take seriously defendant’s
contention that his wife’s affair so outraged him as to make his act of arson her fault when
indeed he had conducted numerous affairs himself during the course of the marriage. We find illogical, and distasteful, defendant’s attempts to characterize his conduct as different from his wife’s conduct for the reason that he never intended his affairs to end the marriage, while she did. We find puzzling defendant’s suggestion that the trial court should have, and this Court should now, consider the alternative scenario where defendant’s conduct resulted from being physically poisoned by his wife. In short, we find no error in the trial court’s assessment of fault in the breakdown of this marriage.
The court noted that "the courts of this state have not spoken specifically to the issue of whether an innocent spouse may be liable for criminal restitution debt incurred by the partner spouse during the course of the marriage, probably because such an illogical and unreasonable argument has not before been made."
Thanks to Jeanne Hannah, of the Updates in Michigan Family Law Blog, for highlighting this case!
League v League, 2006 Mich. App. LEXIS 3063 (October 19, 2006)
Opinion on the web (last visited October 24, 2006 bgf)
Friday, October 20, 2006
Case Law Development: No Duty to Disclose Pending Sales Discussions of Property in Divorce Settlement
The New York Court of Appeals dismissed an action to set aside a divorce settlement in a high-dollar divorce between Actress Lora Kojovic and her husband Neal Goldman, who owned a minority share of an Internet information service Capital IQ. Wife signed a divorce settlement agreement in August 2004 that gave her nearly $1.5 million. However, about one month later, Standard & Poor's purchased her husband's company for $225 million, with his share being $18 million. Wife then brought an action to set aside the settlement agreement on the basis of fraud and unconscionability.
Wife argued that husband affirmatively misrepresented the liquidity of the company and the talks that were underway for purchase of the company. However, the court disagreed, finding that husband had disclosed the assets and that it was up to wife to inquire further. However, wife, who had been represented by counsel in negotiating the agreement, had acknowledged that she had the right to inquire further into the financial aspects but waived this right.
The court noted its "disdain for post-divorce claims of concealment" and found that "[T]he wife concedes, as she must, that the husband consistently and accurately disclosed the full extent of his minority interest in Capital IQ, an asset of speculative value at the time the settlement agreement was executed... That the wife now believes her husband privately harbored a more optimistic assessment of the potential value of his minority interest in that company, or even had additional information that he kept to himself, is irrelevant... wife has only herself to blame for her failure to inquire further. Such failure is not, however, a basis upon which to vacate the settlement."
"... given her professional background and the advice furnished by her counsel and accountant, [wife] should have been aware of the distinct possibility that Capital IQ would be sold," the panel held. "That she opted for an immediate and certain payout instead of the uncertainty of an eventual sale does not afford a basis for setting aside the agreement."
Kojovic v. Goldman, (NY App. Div. October 19, 2006)
Opinion on the web (last visited October 20, 2006 bgf)
Friday, September 29, 2006
Students often have trouble conceptualizing how a court might treat the interests of third parties in marital property. This case from the Alabama court of appeals provides a somewhat tidy example:
During the marriage, Husband purchased about 15% of the shares in a closely held corporation, using marital funds. All the shareholders in the corporation had a buy-sell agreement, giving them the right to purchase stock in the event of an involuntary transfer being ordered. In a subsequent divorce, the trial court ordered Husband to transfer to Wife 300 shares of the stock or to pay to her the agreed price from the buy-sell agreement. The court of appeals of Alabama reversed, finding no error in the trial court's order to Husband to transfer the stock, but holding that the court failing to order that the company and the other shareholders have the right to purchase the shares awarded to the wife. The court reversed and remanded the entire property division and maintenance award on the basis of this error (one judge dissented on the basis that the order's allowance to Husband that he could pay the buy-sell agreement price in lieu of transferring the stock was sufficient protection of the shareholders).
In a second appeal arising out of the case, the shareholders had sought to intervene in the divorce action, but the court found no right to intervene because the husband, who was both a shareholder in the food company and a party to the buy-sell agreement, opposed the trial court's making an in-kind award of stock to the wife, and thus adequately represented the interests of both the company and the other shareholders.
Kelley v. Kelley, 2006 Ala. Civ. App. LEXIS 579 (September 22, 2006 bgf)
Wednesday, September 6, 2006
The Oregon Court of Appeals has held that parties cannot by their agreement convert a court-annexed arbitration of property division in divorce into a binding arbitration under the Oregon Arbitration Act, thereby divesting the trial court of its authority to conduct a trial de novo. However, the court did conclude that parties could waive their right to seek such a review, rejecting an argument that allowing waivers of trials de novo would violate public policy.
In the case before it, however, the court concluded that the parties' agreement that their arbitration would be binding, subject only to appeal to the court of appeals, was based on a mutual mistake in that appellate review was not available from arbitration awards. Thus the court found this mistake made any waiver of a trial de novo it might have implied to be invalid.
Woods v. Woods, 2006 Ore. App. LEXIS 1242 (August 30, 2006)
Wednesday, August 30, 2006
The Ohio Court of Appeals clarified the jurisdiction of a court to enforce agreed-to amendments to property division judgments in a case in which the divorce judgment had provided that husband would receive 50 percent of the marital portion of wife's pension. When the first QDRO prepared pursuant to this judgment was rejected by the plan administrator becuase of uncertainty as to the portion of the pension that was marital, the parties signed an amended QDRO which gave husband a full 50 percent of the wife's total pension. Wife sought to amend that QDRO, claiming that she never intended to relinquish her premarital interest in the plan and that she had misread the amended QDRO. The trial court sua sponte vacated the amended QDRO, finding that without the wife's intended consent to the amended QDRO, it lacked jurisdiction to have entered it.
The court of appeals reversed. While the court did agree that the trial court's jurisdiction to enforce a post-decree modification depended on the agreement of the parties, the court concluded that there was no evidence to support wife's claim that she did not agree to the amended QDRO, as she conceded that she had given her attorney authority to sign the QDRO. The court pointed out that "The attorney-client relationship is considered to be a limited agency. The attorney has no implied power to do more than relates to the proper conduct of a suit, and cannot, without specific authority, bind the client. However, it is beyond question that a duly authorized attorney may enter into an agreed judgment entry the terms of which will be binding on his or her client. " Thus, wife was bound by her attorney's actions and the trial court had jurisdiction to enter the order. To the extent relief was available for her mistaken agreement, it would be under Ohio's relief from judgment rule to have the original order set aside.
McGee v. McGee, 2006 Ohio 4417; 2006 Ohio App. LEXIS 4343 (August 28, 2006)
Opinion on the web (last visited August 29, 2006 bgf)
Monday, August 28, 2006
The Alaska Supreme Court takes a flexible approach to the questions of whether it is proper to consider prospective inheritance in a property division. The court noted that the issue is one that has split American jurisdictions, with a majority of American jurisdictions regarding expected inheritance as too uncertain to be used as a factor in property division. However, the court decided to take the approach of a substantial minority of states, and concluded that "it is not inherently improper for a court to consider the possibility of inheritance in some cases. Because property divisions cannot be reopened, however, courts must be cautious in using this factor." The court outlined factors the court should consider:
An absolute prohibition on considering prospective inheritance is unwarranted, but we think any such consideration (1) must be limited to immediate family members, (2) must be limited to inheritances that are not just possible but virtually certain, and (3) must treat the prospect as simply one factor and not give it inordinate weight. The likelihood of inheritance should not lead to a greatly disproportionate division of assets; but if inheritance is virtually certain, the court may give it some weight in considering how to divide the property.
Krize v. Krize, 2006 Alas. LEXIS 123 (Alaska Supreme Court August 25, 2006)
Opinion on web (last visited August 27, 2006 bgf)
Friday, August 25, 2006
American Indians who enjoy sizable monthly payments from their tribe's casino profits may have to split the cash in a divorce — even when the former spouse isn't a tribal member, the Minnesota Court of Appeals has ruled. In a decision that may be a first in the nation, the court decided the $84,000 a Prior Lake woman received each month as a Shakopee Mdewakanton Sioux Community member is income, not a gift or an inheritance. Since the money is income, "any such payments received during the tribal member's marriage are marital property subject to division upon dissolution," the court concluded.