Family Law Prof Blog

Colombia Constitutional Court" same-sex marriage

For a discussion of this week's decision on same-sex relationships by the Colombia Constitutional Court, see my post on Constitutional Law Professors blog here.

RR

Legislation update -- New York considers bill to protect children from "failure to protect" charges

In response to U.S. District Judge Weinstein's findings in Nicholson v. Williams, 203 F.Supp.2d 153 (E.D.N.Y. 2002), the New York State legislature will consider Bill A01440, designed to "prevent further trauma to a child whose custodial parent is a victim of domestic violence [by] establish[ing] a presumption of fitness on the part of the battered custodial parent to prevent the unnecessary removal of the child from the battered parent."

According to the "memo" describing Bill A01440, "Many child psychologists agree that the removal of children from their abused mothers actually harms children, who according to the Nicholson decision, 'are particularly sensitive to being separated from the non-abusive parent.' Often these children blame themselves for their placement into foster care. By establishing a presumption in favor of the battered parent, this legislation seeks to prevent routine and unnecessary removals of children from their custodial parent."

Bill A01440 has been referred to the New York State Assembly Children and Families Committee.

(MIF 01-30-2009)

Conference - Drugs, Pregnancy and Parenting

Drugs, Pregnancy and Parenting:
What the Experts in Medicine, Social Work and the Law Have to Say
Wednesday, February 11, 2009, New York City


People working in the field of criminal law, family law, and child welfare often have cases that involve issues of drug use. These lawyers, social workers, counselors, advocates and investigators, however, are often trying to do their jobs without the benefit of evidence-based research or access to experts knowledgeable about drugs, drug treatment and the relationship between drug use, pregnancy and parenting. Drugs, Pregnancy and Parenting: What the Experts in Medicine, Social Work and the Law Have to Say will provide a unique opportunity to meet and learn from the experts. Register at: http://napwtraining.eventbrite.com/

This dynamic program features nationally and internationally renowned medical, social work, and legal experts as well as people with direct experience who will help distinguish myth from fact, evidence-based information from media hype and provide meaningful tools for improved advocacy, representation, care and treatment. Panelists will discuss current research on marijuana, cocaine, methamphetamine, as well as other areas of research regarding drug use, prenatal exposure to drugs, recovery, treatment and parenting. This research is critical for effective representation and care.

Discussion points will include:
• What does a positive drug test predict about future neglect and abuse?
• What tools can I use to distinguish between myth and fact regarding the effect of drugs and other claims made about drug use and drug users? Is there such a thing as a "crack baby"?
• Is there a difference between drug use and abuse? Can a person parent and be a drug user?
• How should social workers, lawyers, counselors, advocates and judges use and interpret drug tests?
• How do we determine what, if any, treatment should be required and how do we measure its success?
• What is the relationship between drug use, abstinence, relapse and recovery?
• What does evidence-based research tell us about the effectiveness of different kinds of drug treatment?
• How can we implement safety plans that keep families together?
• How can I best advocate for/ help my client when drug use is an issue?

No matter what kind of work you do or practice you have, this course will challenge your assumptions, identify valuable resources and generate hope about families where drug use is an issue.

When: Wednesday, February 11, 2009, 9am to 6pm.
Where: NYU School of Law, 40 Washington Square South, Manhattan
Registration: The fee is $20 in advance or $25 at the door.  Breakfast, lunch and beverages will be provided. Financial aid is available. Please register at: http://napwtraining.eventbrite.com/

This program was developed in consultation with representatives from all aspects of New York City 's child welfare system. It is co-sponsored by National Advocates for Pregnant Women, New York University School of Law, and the New York University Silver School of Social Work.

Continuing Legal Education, (7 NY-CLE Credits: 5 Areas of Professional Practice, 2 Skills), Social Work (8 Credits) and CASAC (NYS OASAS 7.5 clock hours approved for CASAC, CPP and/or CPS initial credentialing and/or renewal credits) for full or partial day program available for New York. This program is appropriate for practitioners at all levels. Students are welcome.

For more information, contact Allison Guttu, NAPW Equal Justice Works Staff Attorney, at 212-255-9252 or [email protected].

RR (thanks to Maria Arias)

Same-sex marriage, New York, and recognition of out of state marriages

Although New York's highest court, the New York Court of Appeals, found there was no state constitutional right to same-sex marriage, Hernandez v. Robles, a recent lower appellate court recognizes same-sex marriages entered into in states where such marriages are valid (such as neighboring Massachusetts).

As a local newspaper, Times Herald-Record, reports here,  a "lesbian couple has won a state Appellate Court ruling affirming a state directive recognizing out-of-state marriages for same-sex couples. The ruling confirms the legality of an executive directive issued last year by Gov. David Paterson, ordering state agencies to recognize out-of-state gay marriages and all the attendant health benefits that may involve."

The relatively brief opinion in Lewis v New York State Department of Civil Service, from the Third Department of the Appellate Division, is available on the court's website here or as a pdf here.

RR

Sexual Orientation & Adoption

Two commentaries today on the subject of so-called "gay adoption" which we've blogged previously here and here, are worth reading:

First, FamilyLawProf Julie Shapiro blogs on the subject here, with useful links.  She ponders about the possibility of a national trend toward anti-gay adoption statutes, concluding there is not such a trend.

Second, David Ambroz has an op-ed in the LA Times here, writing as a former foster child and now adult gay man who hopes to adopt.

These might make interesting additions to a Family Law discussion forum on the course website.

RR

Racial Disproportionality in Child Welfare -- New Report

The Center for the Study of Social Policy has issued a report describing pervasive racial disproportionality and disparity in Michigan's child welfare system.  Titled "Race Equity Review: Findings From A Qualitative Analysis of Racial Disproportionality and Disparity for African American Children and Families in Michigan's Child Welfare System," the report was the subject of a Detroit News story and analysis by the National Coalition for Child Protection Reform.

(MIF 01-27-2009)

Hastings Symposium on Liability for Reproductive Technology

Hastings Law Journal just completed its symposium on Creating Children with Disabilities:
Commentaries on Parental Tort Liability for Preimplantation Genetic Interventions.  The symposium was sparked by Professor Kirsten Smolensky's article, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions.  This article suggests that children should be able to successfully sue their parents who engage in certain direct genetic interventions. Tort law should protect a child's moral right to an open future where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths. In reaching this conclusion, the article addresses various barriers to tort liability, including "no duty" arguments, parental tort immunity, and a variety of constitutional concerns.

A response by Professor I Glenn Cohen of Harvard entitled "Intentional Diminishment, the Non-Identity Problem, and Legal Liability"  considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all. Professor Cohen responds to Professor Smolensky's suggestion that the Non-Identity Problem should cause us to extinguish tort liability in cases where disabled children are created by preembryo selection but not if it was done through (a still hypothetical technology enabling) the genetic manipulation of a pre-embryo to induce a disability. Professor Cohen suggests some problems with the argument for drawing a distinction (for Non-Identity Problem and hence legal liability purposes) between the two methods of creating disabled children. He also examines whether legal liability should be barred even for cases where the Non-Identity Problem applies.

Professor Alicia Ouellette of Albany Law School responded with her article: Insult to Injury: A Disability-Sensitive Response to Professor Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions in which she addresses the implications for people with disabilities of Smolensky's  argument. Specifically, it argues that limiting damages to cases in which a child is born with a disability unnecessarily and inaccurately devalues life with disability and leaves unprotected children whose DNA is shaped for traits other than disability at the request of their parents. It then suggests a disability-sensitive approach for delineating cognizable injury under which genetic modifications for disability are treated like other genetic modifications that shape a future child for cultural, aesthetic, or social reasons.

last visited January 26, 2009 bgf

Presidential Family Agenda

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

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

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

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

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

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

RR

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

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

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

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

opinion online (last visited January 21, 2009)

Case Law Development: Nonrefundable Retainer Fee in Divorce Approved

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

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

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

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

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

Test Tube Families - new book

Family Law Prof Naomi Cahn of George Washington has a new book from NYU Press: TEST TUBE FAMILIES.

Here's a bit from the publisher's materials:

Incorporating real-life stories to illustrate her arguments, Cahn provides specific suggestions for legal reforms. The book sets out a series of controversial proposals, including an end to donor anonymity and a plea for states to clarify parentage decisions. She also calls for the federal government to regulate ART processes to ensure that donors are adequately protected against exploitation, that recipients receive the gametes they have been promised, and that the market functions ethically as well as efficiently.

It certainly looks like a book worth reading.  And for Family Law Profs teaching courses with a writing component, it seems a great book for a student essay-review. 

RR

British conference on Family Law/Bioethics

CONFERENCE ANNOUNCEMENT

The Human Fertilisation and Embryology Act 2008: New Directions in Biolaw and Bioethics
A CentreLGS Workshop on Monday 30 March 2009 @ Keele University

Confirmed speakers include:

Emily Jackson, London School of Economics; and Human Fertilisation and Embryology Authority

Julie McCandless, Oxford Brookes University and Sally Sheldon, University of Kent

Derek Morgan, University of Sheffield

Jackie Scully, University of Newcastle

Aleardo Zanghellini, Marquarie University Sydney, Australia

Following a lengthy review and consultation process the UK’s Human Fertilisation and Embryology Act finally received Royal Assent on 14 November 2008.  The new legislation makes important changes to the law governing issues such as reproductive cloning, the creation of hybrid embryos for use in research, the circumstances in which ‘saviour siblings’ may be created, and how parenthood is defined.

This CentreLGS workshop aims to provide an informed analysis of some of the key and most controversial features of the new legislation, focusing particularly on provisions governing the use and manipulation of embryos for research and reproductive purposes and revisions to definitions and understandings of legal parenthood. Leading commentators will explore these topics in the light of concepts and tropes underpinning the legislation, including reproductive choice and autonomy, dignity, human rights, the natural/unnatural dichotomy. In addition to constructive critique of the new provisions, the workshop will also provide a platform from which to consider directions for future academic research on the governance of reproductive technologies.

Please keep an eye on our website for updates on speakers and a programme (soon available): http://www.kent.ac.uk/clgs/news-and-events/hfeaWorkshop.htm

For further information about this workshop, please contact Marie Fox ([email protected]).

For registration, payment or other administrative queries, or if you a legal or health care professional interested in claiming CPD points, please contact Helen Farrell.

Places are limited and should be booked by 10th March 2009 at the latest. Please return the completed form to:

Helen Farrell, RI Law, Politics and Justice, CM1.12 Moser Research Centre, Keele University, Keele, Staffordshire, ST5 5BG.

Tel:  01782 733641
Fax: 01782  734592
Email: [email protected]

RR

Kidney as marital asset?

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.

RR

Kinship Care vs. Foster Care

In the current issue of Families In Society: The Journal of Contemporary Social Services, see "Matched Comparison of Children in Kinship Care and Foster Care on Child Welfare Outcomes," by Winokur, Crawford, Longobardi, and Valentine:

"The documented growth of kinship care has boldly thrust this topic into the forefront of child welfare practice. This study compares the permanency, safety, and stability outcomes for a matched group of children placed in kinship care and foster care. After controlling for demographic and placement characteristics, children in kinship care had significantly fewer placements than did children in foster care, and they were less likely to still be in care, have a new allegation of institutional abuse or neglect, be involved with the juvenile justice system, and achieve reunification. These findings call for a greater commitment by child welfare professionals, policy makers, and researchers to make kinship care a viable out-of-home placement option for children and families."

(MIF 01-13-2009)

Mothering, Sarah Palin & CFP

Call for Papers

The Palin Factor:
Political Mothers and Public Motherhood in the 21st Century
Editors: Andrea O’Reilly and Deirdre M. Condit

The nomination of Alaska Governor Sarah Palin as the Republican party Vice Presidential nominee in the 2008 U.S. president election has initiated a public conversation about the meaning and depiction of  Sarah Palin  and her role as a publicly elected, working “hockey mom.” Despite Palin’s active embrace of her “hockey mom” image, her public motherhood remains enigmatic. Palin’s national candidacy offers an opportunity for public and academic discourse about what it means to be an elected, and thus public, representative of other women and wage earning mothers. This edited collection seeks to inaugurate a timely, interdisciplinary, theoretical and critical discussion of the Palin phenomenon as an iconic representation of public motherhood.

Topics include but are not limited to:

Media representations, interpretations or responses to Palin’s motherhood; Public discourse on Palin balancing her work as Governor or Vice Presidential candidate and  being a mother; Her role as a public mother of a child with disabilities; The impact of  her as a wage working mother on voters; Her status as a policy making mother on disability policy; Palin as an icon for conservative, Christian-identified non-wage working mothers; The evident conflict between Palin’s self-identification as a Christian Conservative, whose values include “traditional gender roles,” and the juxtaposition of her evident work and family life style;  The sexualization  of Palin among white, conservative, working men and its impact on their discourses about mothers and motherhood; Her transformational role as the “head of the family,” and her husband’s public transformation as the “little man” at home; Discussions of public or party rhetoric about “working mothers”; The conflicting responses among liberal women’s groups concerning Palin’s status as a working-mother feminist; The commodification of the “hockey” mom identity in politics; Palin’s public/private mothering conflicts; Public displays and deployment of the motherhood trope; Racialized responses to Palin’s mothering style and messages; Public life and the possibilities of “intensive mothering”; Palin and political motherhood and the politics of Motherhood; The transparency of public mothering; in the Palin case; Feminist discourse on Palin; Sexism, Mother Blame in Politics; Mothers in Politics/Mothers as Politicians; Public representation of and responses to Palin as the mother of a teen mom; Political tokenism and mothers; Sexuality, motherhood and politics; Gendered responses to Palin as mother and as politician; Progressive versus conservative positioning of mother politicians; The Republican deployment, use and misuses of Palin (Palin as a sacrificial lamb); Palin and Mothers’ Rights; (Mis) readings of Palin as Pro-Mother; Palin and the (new?) conservative/religious right feminism; Hillary Clinton and Sara Palin.
Please submit a 250 word abstract and 50 word  bio February 1, 2009 to [email protected].
(Accepted chapters (of 15-18 pages in length) due July 1 2009)

RR

Proposition 8 - Two Panels at AALS

The AALS Conference on Friday featured two panels discussing California's controversial Proposition 8 (limiting marriages to those between a man and a woman) passed last November and being challenged before the California Supreme Court.   I've posted a synopsis of the panels on Constitutional Law Professors Blog here.

RR

Call for Workshops -- Parent Representation Conference

The National Project to Improve Representation of Parents in the Child Welfare System and the American Bar Association Center on Children and the Law will offer the first National Parent Attorney Conference in Washington, D.C. on May 13 - 14th, 2009. Here is a link to the Project's website, including the call for workshops for the conference.

(MIF 01-05-2009)

 

AALS Section on Family & Juvenile Law Program

A reminder that at this week's Annual Meeting of the AALS in San Diego, the AALS Section on Family & Juvenile Law will present a program on Thursday, January 8, 2009 at 8:30 – 10:15 am. entitled "The Growing Disconnect Among Work, Family and Marriage."   According to Professor Robin Fretwell Wilson (Washington & Lee University School of Law), who will be moderating the program:

this panel will examine why it is hard for women and men across the socio-demographic spectrum to combine work, marriage, and family, and ... how the growing disconnect plays out differently for different people.  For example, women and men at the bottom of the income ladder often combine work and children, but do not marry or have long-term stable relationships on which they can draw. Many low income men are not marrying, although fathering children, and struggle to find work. At the other end of the income scale, highly educated men and women often face difficulties combining work, family and marriage; hence the "opt-out revolution," in which professional women are leaving the workplace in droves, sometimes temporarily and sometimes permanently, to focus on their families.  Significant numbers of professional men and women have never been married or are divorced or separated. Many also have no children living with them. Understanding the disconnect among marriage, family, and work for individuals across the socio-demographic spectrum is important to understanding the limits of what family law can and cannot do in this regard. This panel will examine these phenomena in detail, drawing on the insights of demographers and sociologists, as well as law faculty.

Panelists include

Ruth Milkman, Director of the Institute for Research on Labor and Employment at UCLA;
Sharon Sassler, Associate Professor at Cornell University’s College of Human Ecology;
June Carbone of the University of Missouri – Kansas City School of Law;
Nancy Dowd of the University of Florida Levin College of Law; and

The program will be co-sponsored by Women in Legal Education, Socio-Economics, Minority Groups, Law & Social Science, Poverty, and Children and the Law.

See you there.  BGF

Case Law Development: Husband who has no title to family home may not claim homestead exemption in bankruptcy

Teaching in a common law property state, I am struck by how often my students have difficulty separating out property title systems during the marriage from those used in divorce.  They want to apply "marital property" characterizations during the marriage, though I repeatedly emphasize that there is not such a scheme in common law title-based states. 

The United States Court of Appeals for the Seventh Circuit has provided a lovely case for emphasizing to the students the importance of the distinction between ownership systems during the marriage and those that govern upon divorce.  The case involved a husband and wife who had joint title to their home and then divorced.  The home was awarded to wife.  The couple then reconciled and remarried, but wife continued to hold the home in her name only.  During the second marriage, the couple filed for bankruptcy.  They each claimed a state homestead exemption in the family home.  Though title to the home was in wife only and husband was not liable on the mortgage, he had  contributed funds and labor and the home had appreciated in value.  Under Illinois law, he could have asserted this contribution as entitling him to a marital property interest in at least some of the value of the home upon divorce.  However the couple were not divorcing, so the divorce laws did not apply. 

Resolving conflicting lower court opinions and reversing the decision of the district court, the court of appeals held that, during the marriage, husband's inchoate marital property interest did not give him a present ownership interest in the home so that he could claim a homestead exemption.   

The case is Samson v. Belcher, 07-2174 (7th Cir.  December 31, 2008)
Opinion online
Students can also listen to the oral argument on the court of appeals website. (last visited 1/3/08 bgf)

As the oral arguments make clear, the interaction of state homestead laws and federal bankruptcy laws results in a dizzying array of decisions on the principle issue in this case, depending on one's jurisdiction.  For a good overview article of the intersection of family law and bankruptcy, see Shayna M. Steinfeld, The Impact of Changes under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 on Family Obligations, 20 J. Am. Acad. Matrimonial Law. 251 (2007).

2008 in Review/ Predictions for 2009

A trip around the web reveals a number of lists looking back to 2008 and forward to 2009 in family law:

Carrie Craft's Adoption Blog on About.com has a poll taking votes on the top 10 adoption stories of 2008 --among the contenders: the highly publicized adoption cases involving Anna Mae He and Baby Talon; the Texas Polygamist raid; the Nebraska safe haven law, and issues of gay adoption.

For a list of the top ten cases from an English family law attorney, see the Family Lore Blog's Top Ten Cases of 2008

Family Law Prof doesn't much cover celebrity divorces, but for those professors who like to include the pop culture references in their classes, we refer you to Popsquire's 2008 Top Ten Celebrity Divorces list .

Finally, for 2009, FindLaw.Com has posted its predictions for the top ten "hot issues" in law in 2009 and family law issues took two of the ten spots.  The two categories the web news service notes as increasingly important to consumers of legal services in the coming year are child custody, support & alimony (with special note to the increasing interest in grandparent visitation and second parent adoption).  The second area of increasing interest is in family formation issues - marriage, cohabitation and domestic partnership.

bgf