Family Law Prof Blog

$65 Million in Annual Alimony?

Back in May, we speculated that Italian Prime Minister Silvio Berlusconi's wandering eye might cost him millions but the news of just how much money his estranged wife, Veronica Lario, wants is still shocking. The former actress is seeking 43 million euros (around $65 million) each year in alimony.

Lario, who is 20 years his junior, put up with Berlusconi's indiscretion for many years but earlier this year Berlusconi's attendance at an 18-year-old girl's birthday party seems to have been the final straw.

Read more here and here.

AC

Mass Adoptions

In Pennsylvania recently, on National Adoption Day precisely, 49 children were adopted by dozens of families at the Allegheny County Family Court.  Read more here. 

MR

English Survey Reveals Deep Detriment of Divorce on Children

Family lawyers at the London law firm Mishcon de Reya had commissioned a study of over 4,000 parents and children to mark the 20th anniversary of the Children Act 1989, which aimed to improve the welfare of children dealing with their parents’ separation.  The Guardian summed up these results:

It found that one in three children whose parents had separated or divorced had permanently lost contact with their father. One in 10 of those said the acrimonious process had left them feeling suicidal, a third said they had later found solace in drink and drugs, while 10% admitted to involvement in crime. The survey repeated a widely held belief – that these poor outcomes were due to failures in the family court system, rather than failures in parenting.

The complete results are now available here.  For commentary on this issue, see here, here and here.

 

MR

Strasser: "You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce"

Mark Strasser (Capital University Law School) has published "You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce," 57 Buffalo L. Rev. 1159 (2009).  An excerpt:

More and more couples are delaying starting a family.  Because fertility declines with age, delaying childbirth increases the likelihood that couples will have to make use of assisted reproductive technologies such as in vitro fertilization (“IVF') to fulfill their hopes of having children biologically related to at least one of them. As might be expected in a country with a relatively high divorce rate, the increased use of IVF has led and will continue to lead to more and more couples having to decide what to do with remaining frozen embryos upon dissolution of their marriages.

While some divorcing couples have little or no difficulty in deciding who should control the disposition of their cryogenically preserved embryos, others must rely on the courts to determine who will have final say over how or whether those embryos will be used. State courts have suggested a variety of ways to resolve such conflicts, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring contemporaneous consent before implantation can take place. Regrettably, because the courts analyzing these issues tend not to give adequate weight to how related family law issues are resolved and because the courts have not adequately considered some of the practical implications of their positions, both the reasoning and the results in these cases are all too often anomalous.

Part I of this article discusses Davis v. Davis and Kass v. Kass, in which the highest courts of Tennessee and New York respectively stated that initial agreements regarding the disposition of frozen embryos are enforceable. These cases illustrate the possible heartbreak that can be caused either when couples fail to make agreements regarding the disposition of their frozen embryos or when they make agreements without carefully considering the possible difficulties that might have to be confronted in the future. Part II discusses some of the subsequent decisions in which state courts have made clear that frozen embryos cannot be used if one of the progenitors objects, initial agreement to the contrary notwithstanding. These decisions not only reflect a preference against implantation but also create the opportunity to game the system at one of the worst possible times. Part III discusses two recent intermediate appellate decisions in which the courts seem to revert to the earlier Davis-Kass model whereby initial agreements are enforceable. The Article concludes that while the judicial enforcement of initial IVF agreements has its own difficulties, these pale in comparison to the difficulties posed by some of the competing approaches.

The abstract may also be viewed from SSRN here.

AC

A Child Custody Breathalyzer?

The Wisconsin Law Journal reports on a movement to bring the Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet, used in many criminal cases, into family court to provide evidence pertaining to allegations of alcohol abuse.  

Read the full story here.

AC

Probert: "Cohabitation: Current Legal Solutions"

Rebecca Probert (University of Warwick - School of Law) has posted Cohabitation: Current Legal Solutions, 316 Current Legal Problems__(forthcoming), on SSRN.  Here is the abstract:

This paper considers the arguments that have been advanced to justify giving cohabitants the same rights as married couples, and suggests a number of reasons for caution: first, the fact that these are uncharted waters, given the relative novelty of cohabitation as a family form; secondly, the evidence that suggests that a ‘functional’ approach may actually justify rules privileging marriage; and, thirdly, the indications that the law may indeed play a role in individual decisions. It then goes on to review recent developments in the areas of contract, property and family law and to re-evaluate their potential to meet the needs of cohabiting couples, viewed in the light of the demographic background. It concludes by advocating incremental change combined with a more wide-ranging review of the legal treatment of marriage and cohabitation.

MR

         

MR                        

Delaying Divorce During Recession

The Washington Times reports on the growing phenomenon of decisions to delay divorce until the recession ends.

In the reality of this recession, even couples who both want a divorce can get stuck in a dead marriage.

Take Sheryl Schelin of Myrtle Beach, S.C. She and her estranged husband wanted to get a divorce two years ago but because of financially tough times that included job loss, they couldn't afford to maintain separate residences — a prerequisite to file for divorce in that state, she says.

So, Ms. Schelin now lives with the couple's 10-year-old daughter and her estranged husband lives with his new girlfriend and neither can completely move on emotionally.

"It's totally draining," she says, adding it feels like she's in limbo, neither going backward or forward. "I want my maiden name back, but that's not going to happen until the divorce goes through."

Which will be next summer at the earliest, she says.

So, in the end, can anything good come out of this temporary drop in divorce rates? A permanent reduction, perhaps?

Read the full story here.

AC

Braithwaite, Ivec, & Harris: "Seeking to Clarify Child Protection’s Regulatory Principles"

Valerie Braithwaite (Australian National University), Mary Ivec, and Nathan Harris (Australian National University) have posted Seeking to Clarify Child Protection’s Regulatory Principles, Communities, Children and Families Australia (2009), on SSRN.  Here is the abstract:

Child protection systems are expected to scrutinize the care offered to children and to coordinate the provision of improved quality of care. They are under stress in many developed countries with burgeoning caseloads and a mixture of positive and negative outcomes. Because child protection systems seek to change the course of parenting, they can be thought of as highly formalised regulatory systems that cut across one of our most entrenched informal systems, how parents raise children. This paper asks whether the stress experienced by child protection workers, support agencies and families alike is associated in part with failures to satisfactorily address three basic regulatory principles: identifying the purposes of the intervention; justifying the intervention in a way that is respectful of broader principles of democratic governance; and understanding how the informal regulatory system intersects with the formal child protection system. Child protection interventions are plagued by multiple purposes that are not necessarily compatible; non-transparent processes; and high risk of counter-productive outcomes.

MR

New York Court Rejects "Social Abandonment" as Ground for Divorce

A New York court of appeals has rejected a wife's claim for divorce on grounds of "constructive abandonment" on grounds that "the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her."  Such "social abandonment," the court held, does not rise to the level of constructive abandonment, which New York courts have held requires constant refusal to engage in sexual relations despite repeated requests. 

The opinion details the history of constructive abandonment, and is a very interesting read.  See it in full here.

AC

Love and Marriage Go Together Like a Horse and Carriage

Leah Ward Sears—retired chief justice of the Georgia Supreme Court, partner at the Atlanta office of Schiff Hardin, William Thomas Sears Distinguished Fellow in Family Law at the Institute for American Values, and visiting professor on family law issues at the University of Georgia School of Law—has published an interesting editorial supporting marriage in our culture and society, available here.  Some advice:

As a child grows up, the guideposts should be: finish school; become a productive citizen; marry a person you want to spend your life with; and, if you want, have children. In that order.

See another one of her editorials on marriage here.

                                                        

MR

Reality Adoption Show Premiering Tonight

ABC begins a run of a show called "Find My Family" tonight, which is a reality show centered around adoption.  Members of the adoptive community are nervous, and I suppose we'll see tonight whether such a show can be done in good taste.

AC

New York Times Offers an Interesting Series of Articles on Finances and Marriage and Divorce

For links to these articles, see 

http://www.nytimes.com/2009/11/21/your-money/21money.html?_r=1&nl=your-money&emc=your-moneyema1

T.O.

Child Advertised for Adoption on Craigslist

Is it a scam, or an anxious young woman seeking a home for her baby?

That's the question Federal Way police are trying to answer as they trace the person who posted an ad on Craigslist offering an unborn child for adoption.

"Maybe she's just ignorant of the law, and we can point her in the right direction," police spokesman Raymond Bunk said.

The poster described herself as 22 years old and 5 months pregnant. She said she was looking for a wealthy couple to adopt the baby and pay her medical expenses.

Independent adoptions are legal in the state, and so is the practice of adoptive parents paying the birth mother's expenses. But under state law, only licensed agencies or the Department of Social and Health Services can advertise a child for adoption.

Read the Seattle Times story here.

AC

No Transferred Negligence Between Spouses in Illinois

That was the determination of the Illinois Supreme Court, which denied that the spousal relationship was a special one, akin to that of mother and fetus, for the purpose of tort liability based on a theory of transferred negligence.

See Tedrick v. Community Resource Center, Inc., 2009 WL 3063361 (Ill.), or see the opinion here.

MR

Grandparent's Dead Hand Continues to Guide Trust Bequest

In Estate of Feinberg, a grandparent had left money in trust to be given to grandchildren of the decedent who married in the Jewish faith or whose spouses converted within a year of the marriage.  A grandchild who did not meet this requirement challenged this restriction as an invalid restriction on marriage.  The challenge was successful at trial and at the appellate level, but the restriction was upheld by the Illinois Supreme Court.

http://www.state.il.us/court/Opinions/SupremeCourt/2009/September/106982.pdf

T.O.

IV World Congress on Child and Adolescent Rights

The IV World Congress on Child and Adolescent Rights will take place in Puerto Rico* from the 15th to the 18th of November 2010. This renowned event draws nearly 1,000 participants and more than 20 countries are represented. Its main objective  is  to  provide  an  academic,  scientific  and  professional  forum  for  the  interdisciplinary  exchange  of  ideas,  knowledge  and  experiences  regarding  the  human  rights  of  children  and  adolescents.  At  the  same  time,  it  comprises  an  international  encounter  for  the  effective  participation  of  children and adolescents. The three previous World Congresses were held in Isla Margarita, Venezuela, in 2003; Lima, Peru, in 2005; and Barcelona, Spain, in 2007.

The  central  theme  of  the  IV  World  Congress  is  “The  best  interest  of  children and  adolescents:  Well-being  and  development  in  the  new  world  economic order.”  The  program  will  be  structured  around  six  general  thematic  areas: poverty,  education,  health,  participation,  identity  and  violence.  These  have been  drawn  from  the  considerations  and  conclusions  of  the Barcelona Declaration authored by the children and adolescents who participated in the III  World  Congress  on  Child  and  Adolescent  Rights  in  2007.  You  may  access www.iiicongresomundialdeinfancia.org  for  information  on  the  preceding World Congress held in Barcelona.

The  IV  World  Congress  on  Child  and  Adolescent  Rights  is  being  organized by  Defensores  PROCDN,  a  nonprofit  volunteer  based  organization  promoting the rights of children in Puerto Rico.  Please take note and feel free to forward this information.

www.childrightscongress.org

[email protected]

*No passport is required for U.S. citizens traveling between the United States and Puerto Rico.

MR

 

Are Soap Operas Cruel Treatment?

BBC News reports on a Indian case in which the court found that husband's refusal to allow wife to watch soap operas amounted to cruel treatment.  Read the story here.

AC

Franck: "'So Hedge Therefore, Who Join Forever’: Understanding the Interrelation of No-Fault Divorce and Premarital Contracts"

Jens-Uwe Franck has posted 'So Hedge Therefore, Who Join Forever’: Understanding the Interrelation of No-Fault Divorce and Premarital Contracts, 23 International Journal of Law, Policy and the Family 235 (2009), on SSRN.  Here is the abstract:

This article explores the interrelation between the availability of no-fault divorce and the enforceability of premarital contracts, exemplified by American and German law. The traditional common law doctrines in the USA and - at least with regard to spousal support - the German civil code of 1900 were similarly hostile towards premarital contracts. In both legal systems divorce was fault based. Conventional wisdom tells us that no-fault divorce and the enforceability of premarital contracts emerged together out of a spirit of liberalization. Yet, by reconstructing the history of both legal institutions, one may observe a more subtle interrelation. The vast majority of jurisdictions in the USA responded to the availability of no-fault divorce with the enforceability of premarital contracts, which reveals a causal relationship. In the case of Germany, it was already in 1938 when the lawmaker introduced through the Ehegesetz (Statute on Marriage) ‘irretrievable breakdown of marriage’ as grounds for divorce, and at the same time legalized premarital contracts on permanent maintenance. From today's perspective, a functional understanding of the interrelation of both legal institutions seems to be the most promising. Family law, criminal law, and tort law are in retreat as protective mechanisms against risks of opportunistic behaviour and hold-ups that may arise through the availability of no-fault divorce. Premarital contracts on the financial consequences of divorce may be apt as an instrument to protect the interests of spouses against such risks. This finding provides a sound justification for contractual freedom in this field and shows that the availability of premarital contracts should be understood as a logical corollary of the availability of no-fault divorce.

MR

Gardina: "The Tipping Point: Legal Epidemics, Constitutional Doctrine, and the Defense of Marriage Act"

Jackie Gardina (Vermont Law School) has posted "The Tipping Point:  Legal Epidemics, Constitutional Doctrine, and the Defense of Marriage Act," 34 Vermont L. Rev. (2009) on SSRN.  Here is the abstract:

Using Malcolm Gladwell's book "The Tipping Point" as a jumping off point, this brief article discuss whether the Supreme Court has reached a "tipping point" with regards to equal marriage and its benefits. The article suggests that to determine whether the Court has reached the tipping point — and more specifically, whether the constitutional question has reached the Court at the right time — requires that one look beyond the Court’s precedent and examine the “national conversation.” The article traces other significant shifts in constitutional doctrine and suggests that the Court’s other tipping points have paralleled shifts in societal norms. the article ultimately concludes that the time is not right for a Supreme Court review of the Defense of Marriage Act. The “national conversation” about marriage equality is in its infancy when compared to race and gender issues. Equal marriage remains a deeply divisive issue. A recent poll shows that a majority of Americans are still resistant to extending marriage rights to same-sex couples. A vast majority of states either have constitutional amendments or statutes that explicitly define marriage as between one man and one woman. If the Justices are looking for evidence of a societal tipping point through legislative changes, as they did in Lawrence v. Texas and Loving v. Virginia, they will not find it yet.

AC