Family Law Prof Blog

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

Sunday, March 24, 2019

Tracking Your Spouse Can Result in a Final Restraining Order

From JD Supra/Fox Rothschild LLP:

In the recent unpublished decision of L.G. v. T.G.. the Appellate Division addresses an issue that we are dealing with more and more – tracking one’s spouse through a hidden GPS on their car.  GPS in terms of domestic violence isn’t necessarily “new” – you can read about the beginnings in Eric Solotoff’s 2011 blog. 

But this case also demonstrates that having a third party contract the private investigator services does not protect a defendant/spouse from entry of a final restraining order (“FRO”) based upon stalking and that reviewing the information/using it against the victim can also lead to the FRO based upon harassment. 

Of note, although not explicitly stated, is that the tracking/private investigation was not intended to assist the defendant’s case, such as for cohabitation, but rather the opinion reads as though the only purpose of tracking the plaintiff was to learn about and question her whereabouts.  Other important factors that we often see, and which the court considered, include that the defendant was the sole wage earner and can therefore exert financial control against the plaintiff and the defendant used his larger physical stature to instill fear in the plaintiff. 

In this very thorough decision, before addressing the merits of the appeal, the Appellate Division specifically stated that it “defer[s] to the judge’s thoughtful findings on this subject because those findings were solidly grounded on the judge’s credibility findings – he found L.G. much more credible than T.G., who was evasive – as well as other reliable evidence”.

Read more here.

March 24, 2019 in Current Affairs, Divorce (grounds), Domestic Violence | Permalink | Comments (0)

Saturday, March 23, 2019

New Tax Provisions Significantly Impact Treatment of Trusts in Divorce

From JD Supra/Lathrop Gage:

Everyone knows about the income and estate tax changes included as part of the Tax Cuts and Jobs Act of 2017 (the “Act”), but there are several overlooked provisions that may significantly affect taxation in a divorce.  Some of these provisions may cause unintended consequences if not addressed as part of the dissolution proceeding or settlement discussions.

Beginning in 2019 alimony and maintenance are no longer deductible to the person making the payment or taxable to the person receiving the payment.  Unlike many other provisions in the Act, this provision does not sunset in 2026.  In addition, Prenuptial Agreements and Postnuptial Agreements are not grandfathered under the Act (there are some efforts to change this, but it is unclear whether that will happen.).  Therefore, if a Prenuptial or Postnuptial agreement signed before 2018 includes terms providing for how alimony or maintenance will be taxed, the new tax laws under the Act prohibiting the deduction or taxation of alimony and maintenance will still apply.

There is a section of the Internal Revenue Code (Section 682) that addresses “grantor trusts”, that was repealed as part of the Act.  “Grantor” trusts are trusts where the person establishing the trust (the grantor) is taxed on the income from the trust even if such person is not the beneficiary of the trust.  Prior to the Act, Section 682 provided that after a divorce, income paid to an ex-spouse from a grantor trust would be taxed directly to the ex-spouse, not the grantor of the trust.  Section 682 was repealed as part of the Act, which means that now, after a divorce, the grantor will still pay the income tax on the trust income, even though the divorced spouse will receive that income.  If this issue is not considered, this outcome may cause significant tax consequences to the grantor spouse after the divorce.

Read more here.

 

March 23, 2019 in Current Affairs, Divorce (grounds) | Permalink | Comments (0)

Thursday, March 21, 2019

Anthem Indiana Joins Indiana Legal Services to Provide Medicaid Consumers Access to Free Legal Services

From The Associated Press:

Anthem Blue Cross Blue Shield Indiana (Anthem) today announced the launch of a new medical-legal partnership pilot with Indiana Legal Services to improve the health and quality of life of Medicaid consumers in Central Indiana through free legal assistance. This first-of-its-kind partnership will offer legal counseling for issues with housing and utilities, income support, education and employment and family law, including guardianship, child support, child welfare and custody.

The program will be available to all Central Indiana Medicaid consumers, including those in the Healthy Indiana Plan (HIP), Hoosier Healthwise, Hoosier Care Connect and traditional Fee-For-Service.

“This program exemplifies Anthem’s commitment to not only providing healthcare services but also looking for innovative programs that help address other issues that impact health and quality of life,” said Dr. Kimberly Roop, Medicaid plan president at Anthem Indiana. “We know Medicaid consumers have a broad range of civil legal needs and providing access to attorney services will help remove a social barrier to their overall well-being.”

Read more here.

March 21, 2019 in Child Support (establishing), Child Support Enforcement, Current Affairs, Custody (parenting plans), Paternity, Property Division | Permalink | Comments (1)

Wednesday, March 20, 2019

Pregnancy and Divorce

From Lawyers.com (Gerard F. Miles):

Couples going through a divorce are amid one of life’s most stressful episodes. When there is a pregnancy involved, the emotions and tension are amplified. When a baby is on the way, an already difficult situation becomes even more complicated. During a typical divorce, emotions run high as each decision and agreement are legally formalized. It can be dizzying for anyone trying to prepare themselves for the next phase of their life; one without their spouse. When a pregnancy is involved, a child brings the concerns for an additional person into the mix.

Working Together to Be Apart
Divorcing couples may benefit from an intermediary who can help to fairly divide their marital assets. Beyond that, a counselor may be able to help both divorcing parents remain focused on the future needs of the baby, who will surely benefit most from a peaceful and well-considered parental breakup.

Parental Planning
Parents want the best for their children, and children fare much better in life when their parents work together to address their needs. Often, these needs are best assessed even before the baby arrives. Typically, parents planning for a baby discuss all aspects of preparations. This is crucial in instances where co-parents will be living separately. In these cases, it is worthwhile to come up with a parenting plan.

Read more here.

March 20, 2019 in Child Support (establishing), Child Support Enforcement, Current Affairs, Custody (parenting plans), Divorce (grounds), Paternity | Permalink | Comments (0)

Tuesday, March 19, 2019

No Due Process Right to Perform Abortions

From The ABA Journal:

An en banc federal appeals court has upheld an Ohio law that bans the state from providing health funds to abortion providers.

In an 11-6 decisionissued Tuesday, the 6th U.S. Circuit Court of Appeals at Cincinnati turned down a challenge by two Planned Parenthood affiliates. They had argued that the funding ban imposes an unconstitutional condition on public funding.

The Planned Parenthood affiliates “are correct that the Ohio law imposes a condition on the continued receipt of state funds,” Judge Jeffrey Sutton wrote for the majority. “But that condition does not violate the Constitution because the affiliates do not have a due process right to perform abortions.”

Four judges in the majority were appointed by President Donald Trump, Politico reports.

Read more here.

March 19, 2019 in Abortion, Current Affairs | Permalink | Comments (0)

Monday, March 18, 2019

Judge Blocks Kentucky Fetal Heartbeat Law

From The New York Times:

A federal judge on Friday temporarily blocked a Kentucky law that prohibits abortion after a fetal heartbeat is detected, which typically happens around six weeks into pregnancy, before many women know they are pregnant.

The measure, which was signed into law on Friday by the state’s Republican governor, Matt Bevin, and was set to take effect immediately, was poised to become one of the strictest anti-abortion laws in the country.

But late on Friday, the judge, David J. Hale of the Western District of Kentucky, ruled the law was potentially unconstitutional. He halted enforcement for at least 14 days to “prevent irreparable harm” until he could hold a hearing.

Read more here.

March 18, 2019 in Abortion, Current Affairs | Permalink | Comments (0)

Saturday, March 16, 2019

Lawmakers Call For Overhaul of China's Family Planning Policy

From Reuters:

Delegates to China’s parliament are urging the overhaul or even scrapping of controversial family planning rules and say radical steps are needed to “liberate fertility” and reverse a decline in births and a rapidly shrinking workforce.

With its population ageing as a result of longer lifespans and a dwindling number of children, the world’s most populous nation decided in 2016 to allow all couples to have a second child, relaxing a tough one-child policy in place since 1978.

But birth rates plummeted for the second consecutive year last year. Policymakers now fret about the impact a long-term decline in births will have on the economy and its strained health and social services.

Read more here.

March 16, 2019 in Current Affairs, International | Permalink | Comments (0)

Monday, March 11, 2019

Alabama Court Recognizes Aborted Fetus as Person With Rights

From Washington Post:

An Alabama judge has recognized the legal rights of an aborted fetus, allowing a man whose girlfriend ended her pregnancy at six weeks to sue the manufacturer of the pill she used and the clinic that gave it to her.

The decree, issued by Madison County Probate Judge Frank Barger, explicitly states “Baby Roe” is a person and allows plaintiff Ryan Magers to name the fetus as a co-plaintiff in the suit for “wrongful death.” Magers said in court filings that when his then-girlfriend discovered she was pregnant in early 2017, he “repeatedly pleaded” with her to carry the pregnancy to term and give birth, but she wanted to have an abortion.

Read more here.

March 11, 2019 in Abortion, Current Affairs | Permalink | Comments (0)

Sunday, March 3, 2019

Man Sues Judge Who Ruins Wedding Day

From The Pocono Record:

A man who says he was unlawfully detained on his wedding day by a Pennsylvania judge who wrongly suspected he was in the United States illegally filed a federal lawsuit Thursday, alleging violations of his constitutional rights.

Alexander Parker sued Camp Hill-based District Judge Elizabeth S. Beckley, two court entities and an unidentified court officer who, Parker says, told him he was not free to leave.

The federal lawsuit claims Guatemala-born Parker and his fiancee went to Beckley’s court office to get married in May 2017, but Beckley’s suspicions prompted her to call U.S. Immigration and Customs Enforcement.

Read more here.

March 3, 2019 in Adoption, Current Affairs, Marriage (impediments) | Permalink | Comments (0)

Saturday, March 2, 2019

Sierra Leone President Declares Rape a National Emergency

From CNN:

Sierra Leone President Julius Maada Bio has declared rape and sexual violence a "national emergency," following a series of cases involving minors in the country.

Bio said those found guilty of raping minors could face life imprisonment and directed all public hospitals to provide free medical services for victims of sexual assault.

"As a nation, we must address this scourge. Sexual penetration of minors is punishable by life imprisonment," Bio said on Thursday while speaking at the State House in the capital, Freetown.

The announcement comes amid calls by activists and Sierra Leone's First Lady Fatima Bio for stricter punishment for perpetrators of sexual violence.

Read more here.

March 2, 2019 in Current Affairs, International | Permalink | Comments (0)

Tuesday, February 26, 2019

R. Kelly Makes First Court Appearance for Alleged Sexual Abuse

From NBC News:

R&B singer R. Kelly made his first court appearance on Saturday and a judge set his bond at $1 million.

Kelly, who has been charged with multiple criminal counts of sexual abuse of several underage victims, turned himself in to police on Friday night.

The conditions of Kelly's bond includes that he has no contact with witnesses or alleged victims and that he turn in his passport.

He is also not allowed to have contact with anyone age 18 or younger.

Kelly, 52, faces 10 counts of aggravated criminal sexual abuse, according to the Cook County State's Attorney's Office in Chicago. A grand jury indictment listed four victims, at least three of whom were younger than 17 at the time of the alleged abuse between May 1998 and January 2010.

Read more here.

February 26, 2019 in Child Abuse, Current Affairs | Permalink | Comments (0)

Monday, February 25, 2019

Pope Francis' Sexual Abuse Conference

From Reuters:

A nun and a woman journalist delivered the toughest criticism of Church leaders heard so far at Pope Francis’ sexual abuse conference on Saturday, accusing them of hypocrisy and covering up horrendous crimes against children.

Some 200 senior Church officials, all but ten of them men, listened at times in stunned silence in a Vatican audience hall as the women read their frank and at times angry speeches on the penultimate day of the conference convened by the pope to confront a worldwide scandal.

Sister Veronica Openibo, a Nigerian who has worked in Africa, Europe and the United States, spoke with a soft voice but delivered a strong message, telling the prelates sitting before her: “This storm will not pass”.

Read more here.

February 25, 2019 in Child Abuse, Current Affairs | Permalink | Comments (0)

Saturday, February 23, 2019

Priest Dismissed From Priesthood Over Child Abuse Claims

From BBC News:

This is a significant moment in the Roman Catholic Church's effort to address the tide of sex abuse scandals - not least because of the high status this former Cardinal Archbishop once held.

Not only was he the first cleric in more than 100 years to resign from the College of Cardinals, but his removal from the priesthood also confirms Pope Francis' assertion that anyone found guilty of abuse will be treated with zero tolerance, regardless of their status within the church.

Read more here.

February 23, 2019 in Child Abuse, Current Affairs | Permalink | Comments (0)

Trump Admin Issues Rule to Strip Millions from Planned Parenthood

From Politico:

The Trump administration issued a final rule on Friday that could effectively cut off tens of millions of federal family planning dollars to Planned Parenthood and steer some of that funding towards anti-abortion, faith-based care providers.

While the revamp of the Title X program does not accomplish the full defunding of Planned Parenthood that Republicans have called for, it is a major step in that direction, and marks another major policy win for social conservatives looking to prohibit access to abortion.

Under the rule, clinics would still have to provide an array of contraceptive services but could partner or subcontract with groups that stress abstinence only or natural family planning. It would also bar Planned Parenthood and other health care providers that accept the funding from making any abortion referrals or performing abortions — regardless of the funding source — at the same facilities where they provide Title X services like birth control, mammograms and cancer screenings.

Read more here.

February 23, 2019 in Abortion, Current Affairs | Permalink | Comments (0)

Monday, February 18, 2019

UK Member of Parliament Stops Proposed Female Genital Mutilation Law

From The Guardian:

The Conservative MP Christopher Chope, who gained notoriety after he blocked a bill to make upskirting a criminal offence, has used the same parliamentary tactic to halt a planned law making it easier to protect girls from female genital mutilation (FGM).

The Tory backbencher shouted “object!” when the bill was presented to the Commons for its second reading.

Under Commons procedure, a series of such bills are read out at the end of business without debate, and pass to the next stage only if no MP present verbally objects. If they do, the bill has to be presented again for second reading, in this case on 15 March.

Read more here.

 

February 18, 2019 in Current Affairs, International | Permalink | Comments (0)

Friday, February 8, 2019

Mom Faces Jail and $14k Sanction for Contempt of Grandparent Visitation Order

From The Indiana Lawyer:

A DeKalb County mother who refused to comply with court-ordered visitation between her children and their paternal grandparents must now serve jail time and pay a $14,000 sanction after the Indiana Court of Appeals upheld visitation and contempt orders on Friday.

The grandparents in D.G. v. W.M., et al., 18A-MI-2115, were awarded visitation time with D.G.’s four children in March 2016 after previously raising the children in their home for several years. Despite that order, the visits between the grandparents and grandchildren generally did not occur, so the grandparents moved to show cause why D.G. should not have been held in contempt.

In response, the trial court ordered that the mother serve 12 days in jail and pay $1,000 in attorney fees. D.G., however, never resumed visits with the grandparents, nor did she go to jail or pay fees.

Read more here.

February 8, 2019 in Contempt, Current Affairs, Visitation | Permalink | Comments (0)

Thursday, February 7, 2019

States Move to Ease Restrictions on Child Sex-Abuse Lawsuits

From PIX 11 News:

In many states across the U.S., victims of long-ago child sex-abuse have been lobbying for years, often in vain, to change statute of limitation laws that thwart their quest for justice. This year seems sure to produce some breakthroughs, due in part to the midterm election results and recent disclosures about abuse by Roman Catholic priests.

New York state is Exhibit A. The Democrats' takeover of the formerly Republican-controlled Senate seems almost certain to produce a more victim-friendly policy in place of one of the nation's most restrictive laws.

Prospects are considered good for similar changes in Rhode Island and New Jersey, and the issue will be raised in Pennsylvania — which became the epicenter of the current abuse crisis in August when a grand jury accused some 300 Catholic priests of abusing more than 1,000 children over seven decades.

Read more here.

February 7, 2019 in Child Abuse, Current Affairs | Permalink | Comments (0)

Wednesday, February 6, 2019

Pennsylvania Guardianship Rules Change

From JD Supra:

Pennsylvania’s Powers of Attorney and guardianship rules will change in 2019, providing additional protection to the elderly at a time when they are at their most vulnerable.

A guardian is an individual or entity appointed by the Court to make decisions for an incapacitated person. The law in Pennsylvania defines an incapacitated person as, “An adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”

A Judge sitting in Orphan’s Court decides if an individual is incapacitated. The process begins with an interested party filing a Petition with the Court.  Then, a hearing is scheduled.  More persons, referred to as “potentially aggrieved parties” such as a fiancée, best friend or business partner, will need to be served with notice and have the right to legally participate in the hearing. Previously, medical testimony was taken from a doctor or psychologist who has treated or examined the alleged incapacitated person. The new guardianship rules require an “Expert Report” instead of deposition testimony.

Read more here.

February 6, 2019 in Attorneys, Current Affairs | Permalink | Comments (0)

Tuesday, February 5, 2019

The Weight of the Conscience Protection Rule on LGBTQ Rights

From Rewire News:

The Department of Health and Human Services (HHS) announced last week that it is close to finalizing a conscience protection rule that would allow people to discriminate in health-care settings under cover of law.

The final rule is at the Office of Management and Budget for review and not available to the public. But under the draft rule, which has been made public, health-care providers would be able to refuse to provide treatment, referrals, or assistance with procedures if these activities would violate their stated religious or moral convictions. The deliberately vague language could apply to everyone from receptionists refusing to book appointments to scrub nurses refusing to assist with emergency surgery.

Read more here.

February 5, 2019 in Current Affairs | Permalink | Comments (0)

Monday, February 4, 2019

Arizona Law Determines Fate of Frozen Embryos in Divorce

From ABA Journal:

For more than two decades, state courts have wrestled with how to settle disputes over frozen embryos when couples divorce or otherwise split. In such cases, one spouse typically wants to keep the embryos to eventually conceive children, while the other doesn’t.

Courts have tended to side with the party who doesn’t wish to be-come a parent on the grounds that no one can be forced to procreate. But at times, rulings have gone the other way—especially in instances where the frozen embryos represent a person’s only chance of having biological children—leaving a split in the courts and uncertainty for litigants.

But a first-of-its-kind law would end that uncertainty in Arizona. The state’s Parental Right to Embryo law, which took effect in July, requires courts in divorce proceedings to award in vitro embryos to the spouse who intends to allow them to “develop to birth.”

Read more here.

February 4, 2019 in Alternative Reproduction, Current Affairs, Divorce (grounds) | Permalink | Comments (0)