Family Law Prof Blog

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

Sunday, April 14, 2019

Resolving Custody and Visitation Concerns

From Brian E. McKinley (Lawyers.com):

Divorces can be emotional and stressful, and when children are involved, child custody arrangements can make things even more challenging and may cause additional concerns. What if your ex-spouse doesn’t abide by the arrangement and doesn’t meet you with your children on time? What if they talk about moving out of state? Luckily, there are laws in place and legal professionals available to help enforce the terms of these types of agreements.

If your divorce has been finalized and you are wondering how the custody and visitation part of the agreement will work out between you and your ex-spouse, it is not unusual to feel uneasy about it. Below are the common custody and visitation concerns that divorced parents experience, and what you can do:

Failure to Comply with Requirements of an Agreement – You may wonder what happens if one or both parties fails to abide by the terms of the custody or visitation agreement. For example, a parent might intentionally extend their visit with the child to either spend more time with him or her or to intentionally deprive the other parent time with the child. If a parent fails to observe the terms of a custody agreement, you can contact your lawyer or a legal professional so they can help you enforce the terms of the agreement or to seek modification of the agreement. Keep in mind that there may be situations where the withholding of custody may be permissible, such as if an ex-spouse is keeping the child safe from danger or if they are late to an exchange due to traffic during the commute.

Read more here.

April 14, 2019 in Custody (parenting plans), Divorce (grounds), Visitation | Permalink | Comments (0)

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In the recent unpublished decision of L.G. v. T.G..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)

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, February 5, 2019

Co-Parenting After Divorce

From JD Supra:

In Lehigh County, and in other jurisdictions, parents who have entered the divorce process are ordered to attend a co-parent education class. “Co-parenting” is a term coined by the family law section to encourage cooperative parenting between parties who are no longer married or in a relationship, for the benefit of the child. The Court finds this concept to be so important that it will not allow two divorcing parties to proceed to trial without attending a co-parenting class. If one or both parties refuse or fail to show, the Court will go as far as to hold them in contempt.

Co-parenting does not come naturally. Divorced parents are frequently so focused on splitting up, that coming together to parent shared children can be difficult. As family lawyers, we suggest our clients use a co-parenting counselor, usually a certified therapist, to learn how to co-parent successfully. It can be an uncomfortable process. Recently, a blended family in Texas went viral with their social media post of getting past the uncomfortable phase and successfully co-parenting as a team. While not all families are able to reach that level, we do find that those that utilize a co-parenting counselor are able to work out their issues in session, rather than in court. At the very least, this reduces court filings and can make the process less costly for both parties.

Read more here.

February 5, 2019 in Custody (parenting plans), Divorce (grounds) | Permalink | Comments (1)

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)

Sunday, January 20, 2019

What 'Surviving R. Kelly' Tells Us About Race and Sexual Abuse

From The Washington Post:

For many who watched the six-part documentary “Surviving R. Kelly,” hearing directly from several women who described sexual abuse at the hands of the R&B star prompted a troubling question: Has Kelly remained popular and largely not faced criminal consequences because his accusers are black?

Rebecca Epstein, a researcher at Georgetown University, thinks so. She co-authored a 2017 study that found black girls are viewed by adults as more sexually mature than white girls in the same peer group. As a result, when black girls are victims of sexual assault, they are less likely to be believed by those who see them as older than they actually are.

“What our research indicates is that black girls face even greater skepticism by the figures that wield such authority over their lives than other victims of sexual violence,” said Epstein, executive director at the law school’s Center on Poverty and Inequality.

Read more here.

January 20, 2019 in Annulment, Child Abuse, Divorce (grounds), Music | Permalink | Comments (0)

Sunday, November 18, 2018

Vaccine Disputes in Divorced Florida Families

From Lawyers.com:

Floridians sometimes have differences of opinion about whether vaccinations are safe for children. When a divorcing, divorced or unmarried parent’s belief about whether vaccinations are in the best interests of his or her children conflict with that of the other parent, it is a good idea to talk to an attorney about legal issues and potential legal remedies, depending on the circumstances.

First, there may be government or school regulations or policies requiring certain vaccinations as well as opt-out procedures in some cases. An attorney can advise you about this in your particular jurisdiction.

Parents may be able to negotiate a settlement agreement that determines who has legal responsibility and rights to make medical decisions for the child like whether to vaccinate. An agreement concerning custody matters such as parental responsibility for major life decisions like those concerning health care is called a parenting plan.

Read more here.

November 18, 2018 in Divorce (grounds) | Permalink | Comments (0)

Saturday, November 17, 2018

Birdnesting Gives Kids One Home After Divorce. Does It work?

From NBC news:

No matter how you spin it, getting divorced is tough — especially if you have kids. Even if the decision to part ways is clearly the best (or only) one, the resulting separation can be traumatizing for children. Research shows that the best way to avoid risking the well-being of kids going through this difficult process, is to keep it as low-conflict and amicable as possible.

How do you do that? For some divorcing or divorced parents, the answer is ‘nesting’ (also called 'birdnesting'). This means to keep the family residence intact as a home where both parents rotate living with their children, while otherwise dwelling in separate residences.

Sherri Sharma, partner at Aronson, Mayefsky & Sloan, LLP, a matrimonial law firm in NYC typically sees divorcing parents who take a nesting approach by keeping the main house and then sharing a separate apartment, which they individually occupy when not “at home” with the children.

Read more here.

November 17, 2018 in Divorce (grounds) | Permalink | Comments (0)

Thursday, October 25, 2018

Protecting Kids in Divorce Mediation

From Lawyers.com:

Going through a divorce can be an emotional time for all parties. When children are involved in the divorce, there can be special challenges. Many divorcing couples share the primary goal of protecting their children from additional stress during this time. For this reason, divorcing parents often choose the mediation process over a traditionally litigated divorce.

Mediation can be less stressful on children for several reasons. Most mediations are held at neutral locations, not in courthouses, which can reduce the level of anxiety, should a child need to appear. The divorce mediator will be specially trained to help both sides with fair negotiations and required compromises.

Mediation often reduces the combative nature of divorce, by allowing the parties to focus on the children’s interests over their own. When engaging in the mediation process, parents can follow a few simple rules to help their children during this difficult period. Many courts in Maryland require mediation as part of the divorce process. Many people choose to hire a mediator outside of the court system, prior to a court filing. Both can be very helpful.

Read more here.

October 25, 2018 in Divorce (grounds), Mediation | Permalink | Comments (0)

Friday, October 5, 2018

California Pets with Divorcing Owners Score Legal Win

From The San Diego Union-Tribune:

Who gets the family pet in a divorce?

It depends on many factors, including what state the owners live in, but California just began a new era for how dogs, cats and other pets with a new law that will take affect in 2019. Passed on Thursday, it makes sure pets are seen as more than just property when it come time to split up assets in a divorce.

Assembly Bill 2274, written by Assemblyman Bill Quirk, D-Hayward, will ensure care of a pet is taken into consideration both while divorce proceedings are underway and after they’re made official.

With the new law, a person can petition the court for sole or joint ownership based on care of the pet, which is defined to include “prevention of acts of harm or cruelty” and “the provision of food, water, veterinary care and safe and protected shelter.”

Read more here.

 

October 5, 2018 in Current Affairs, Divorce (grounds) | Permalink | Comments (0)

Monday, September 10, 2018

Couples Will No Longer Have To Prove Blame (UK)

From The Telegraph:

Couples will be allowed no-fault divorces in the first major change to UK marriage laws for 50 years.

David Gauke, the Justice Secretary, wants to abolish the current system of fault-based divorce and will announce a consultation on the matter as the first stage in the process of passing legislation.

Under a simplified system, spouses would lose the ability to block a divorce as there would be no need for their husband or wife to prove adultery, unreasonable behaviour or desertion in a contested divorce.

It comes weeks after the Supreme Court ordered a wife to stay in her “loveless” marriage after her husband of 40 years denied that he had behaved unreasonably.

Read more here.

 
 

September 10, 2018 in Divorce (grounds), International | Permalink | Comments (0)

Tuesday, September 4, 2018

Divorce Crisis

From The Guardian:

A woman who wants to divorce her husband of 40 years because she says their marriage is unhappy has lost her case. Supreme court judges “reluctantly” told her she must remain his wife, because a joyless marriage is not adequate grounds for a divorce if one spouse refuses to agree.

Five judges at the UK’s highest court unanimously upheld rulings by a family court and the court of appeal that Tini Owens, 68, must stay married to Hugh Owens, 80, despite her complaint that the marriage was loveless and had broken down.

Read more here

 

September 4, 2018 in Divorce (grounds) | Permalink | Comments (0)

Thursday, August 9, 2018

Same-Sex Divorce Has Some Complications

From CNBC:

Two years after the U.S. Supreme Court leagalized same-sex marriages, some couples who decide to call it quits are discovering that getting married was the easy part.

From divvying up assets to asserting parental rights, the details of divorce that can be more clear-cut with heterosexual marriages are creating complications for same-sex couples.

"The reality for many same-sex couples who are divorcing is that they had relationships in place prior to the marriage — some for many, many years," said Joyce Kauffman, principal of Kauffman Law & Mediation in Roslindale, Massachusetts. "The courts have broad discretion in these matters, and that discretion can go in your favor or not."

Read more here.

August 9, 2018 in Divorce (grounds) | Permalink | Comments (0)

Wednesday, August 1, 2018

UK Supreme Court: Woman Can't Divorce Husband of 40 Years

From WISH TV 8:

The U.K. Supreme Court ruled Wednesday that a woman must remain married to her husband of 40 years after he opposed her request for a divorce, saying its hands were tied by the country’s divorce laws.

The justices upheld a lower court ruling that Tini Owens, 68, failed to prove “unreasonable behavior” by her husband, 80-year-old Hugh Owens, who she claimed was moody, argumentative and disparaging. English law requires a spouse to prove unreasonable behavior, adultery, desertion or a separation of five years unless both parties agree to divorce.

In issuing their ruling, the justices made their unease plain, noting that society’s expectations for reasonable behavior have changed since divorce laws were last updated in 1969 and marriage is now seen as a partnership of equals. The court then opened the door for lawmakers to rewrite the rules.

Read more here.

August 1, 2018 in Divorce (grounds), International | Permalink | Comments (0)

Friday, July 27, 2018

Planning for Special Needs Children in Divorce

From The New Jersey Law Journal:

Unfortunately, the rate of divorce is exceptionally high—80-90 percent—among families of children with special needs. It is critical that family law practitioners understand the unique issues that arise in these cases. While all divorces are emotional and fraught with concerns about both short and long-term issues, divorce proceedings for parents of a child with special needs must be viewed through the lens of the long-term realities of disability. This is particularly true for children with complex or severe disabilities, who will require lifetime supports and services. Unlike “typical” kids, these children will never outgrow their need for assistance with basic decision-making, activities of daily living, self-care, etc. However, even children with mild disabilities may require specialized planning during a divorce due to their unique needs.

When a child is a minor, and custody or parenting time is at issue in a divorce, any special needs the child has must be considered when making final decisions. Children with autism or sensory processing issues, for example, may have a more difficult time transitioning between homes regularly. One home—or parent—may be better equipped to safely manage a child’s disability-related needs due to knowledge, work scheduling issues, other individuals in the home, etc. As with all custody discussions, the “best interests of the child” should prevail. Similarly, in terms of child support, additional expenses may need to be built in beyond the mandated guidelines to account for necessary therapies, private tutoring or education, specialized medications, items not covered by insurance, etc.

Read more here.

July 27, 2018 in Child Support (establishing), Divorce (grounds) | Permalink | Comments (0)

Sunday, July 22, 2018

Desperate Couple Considering Divorce to Afford Health Care

From People Magazine:

An Army veteran and his wife of nine years say they’re considering divorce in order to qualify for health care assistance for their disabled daughter.

Jake and Maria Grey of Sanger, Texas, opened up in a Today report about the cost of caring for their daughter Brighton, who has a rare chromosomal disorder called Wolf-Hirschhorn syndrome.

At age 6, Brighton has the developmental abilities of a newborn and requires round-the-clock care. Ailments include vision and hearing impairment, heart and kidney problems, seizures, and more, according to WFAA News.

Read more here.

July 22, 2018 in Current Affairs, Divorce (grounds) | Permalink | Comments (0)

Tuesday, July 17, 2018

Supreme Court Upholds Changes to Beneficiaries Upon Divorce

From JD Supra:

Married persons often name the other spouse as beneficiaries of their estate, life insurance, pensions, IRA’s, annuities and other contractual arrangements upon the death of the first spouse. Upon divorce, they often do not get around to changing these beneficiary designations, either intentionally or unintentionally.

Many state legislatures have reached the conclusion that the spouse that died would likely have wanted to change the beneficiary from the former spouse, but just never got around to it (whether intentionally via procrastination or unintentionally). They have enacted revocation-on-divorce statutes that treat a divorce as voiding one or more of testamentary bequests and beneficiary designations. In 2002, Minnesota adopted such a statute that applied to will and various will substitutes, including life insurance and annuity contracts.

The Contracts Clause of the U.S. Constitution restricts the power of States to disrupt contractual arrangements. It provides that “[n]o state shall . . . pass any . . . Law impairing the Obligation of Contracts.”  U. S. Const., Art. I, §10, cl. 1. In a recent case, the U.S. Supreme Court addressed the issue whether Minnesota’s revocation-on-divorce statute was unconstitutional as violative of the Contract Clause. The dispute arose between the claims of a divorced spouse, and alternative beneficiaries, as to entitlement to life insurance proceeds when a former spouse died and did not remove the surviving spouse as beneficiary of the insurance policy.

Read more here.

 

July 17, 2018 in Divorce (grounds) | Permalink | Comments (0)

Saturday, June 30, 2018

For Women In Papua New Guinea, Income From Selling Betel Nut Can Come At Heavy Price

From NPR:

The women are mostly in their early 20s. They have children at home. Selling betel nut — an addictive, natural chew — to passersby in mountain towns of Papua New Guinea is a good way to earn a living.

But the extra income sometimes comes at a heavy price: violent beatings by their spouses. Two out of three women in Papua New Guinea experience abuse at the hands of an intimate partner at least once in their lifetime, according to the World Health Organization and aid groups.

Betel nut sellers in Goroka, the main city in the Eastern Highlands, say physical violence is particularly common in their marriages.

Read more here.

June 30, 2018 in Divorce (grounds), Domestic Violence, International | Permalink | Comments (0)

Tuesday, June 19, 2018

Valuing a Closely Held Business in Divorce

From McNees Law:

Valuing a closely held business can be a complex endeavor, requiring a through analysis of assets, financial statements, financial claims, earning potential and inherent risks. A host of other factors can also influence the determination. Valuations are especially tricky in the context of contentious divorces involving businesses. In such cases, each spouse should not only have his or her own lawyer, but also a forensic business evaluator to ensure the thoroughness and accuracy required to make an informed decision regarding equitable distribution and to secure the best result.

This article discusses the valuation process and methods used, notes common pitfalls, and offers practical pointers on what to do when divorce is or may be on the horizon.

Whether considering a divorce or facing one where either or both spouses have a closely held business, each spouse should consult a lawyer with extensive experience in handling divorces involving business valuations and in working with forensic business evaluators. That experience is key when determining whether the business has value or is simply providing a job to the owner, when selecting forensic evaluators, reviewing documentation, or challenging the opposing experts’ valuation and in ensuring the best possible outcome for the client. An experienced attorney can streamline the process and avoid the unnecessary expenditure of funds.

Read more here.

June 19, 2018 in Divorce (grounds), Resources - Divorce | Permalink | Comments (0)