Family Law Prof Blog

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.

 

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.

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.

The Dangers of Divorce Law

From NBC News:

New York divorce lawyer extraordinaire Raoul Felder, who handled the celebrity splits of everybody from Rudy Giuliani to Christie Brinkley, kept a pistol in the desk drawer of his Manhattan office for many years.

His reasoning was simple: “Everybody hates divorce lawyers, sometimes even their own clients,” he said.

That animosity was on display earlier this week when police said an Arizona man — upset over his divorce nearly a decade earlier — went on a killing spree that left seven people dead, including himself.

Read more here.

Want A Divorce In China? Not If You Do Well On This Quiz

From The Sydney Morning Herald:

Hong Kong: It's like the American television show the Newlywed Game, but for divorce.

In some parts of China, married couples seeking to split up have been asked to take a quiz issued by the local authorities. The more they know about each other — including a spouse's birthday or favourite food — the less likely they are to have the divorce immediately approved.

The quizzes, issued in at least two provinces since last year, follow the format of a typical three-part school exam: fill-in-the-blank, short-answer questions and an essay. Questions include the mundane —"When is your anniversary?"— and the philosophical: "Have you fulfilled your responsibility to your family?"

Read more here.

Former Playmate Kills Self, Son, in Custody Battle

From The New York Post:

A former Playboy Playmate killed herself and her 7-year-old son in a murder-suicide leap from a Midtown hotel penthouse Friday amid a bitter custody battle with her estranged husband, sources told The Post.

The bodies of Stephanie Adams and her son, Vincent, were found on a second-floor balcony area by a guest at the Gotham Hotel, police said.

Adams, 47, had been battling with her husband, Manhattan chiropractor Charles Nicolai, in court, and the dispute had heated up Tuesday when he filed a motion for sole custody of the boy, said his lawyer, William Beslow.

Read more here.

Bitcoin and Divorce

From Schiller, DuCanto, & Fleck, LLP:

In Illinois, incident to resolving a divorce case, all assets and liabilities are required to be identified, valued, and allocated between the parties equitably. Although often resulting in a 50/50 division of marital assets, “equitable” does not necessarily mean “equal.” Prior to either reaching an agreed upon division of assets, or proceeding to trial on the issues of property division, all assets must first be identified and then where possible, valued. With the rise of the digital age, issues of valuation have expanded to the world of cryptocurrencies such as Bitcoin. Valuation, however, is not the only issue involving bitcoin and divorce. Today, divorcing parties and their attorneys must be diligent in approaching bitcoin (and all other cryptocurrencies for that matter) during divorce.

While identification of the existence of bitcoin or other cryptocurrency is the starting place, one must first understand what bitcoin is. Bitcoin is an electronic currency that allows users to transfer funds directly to one another through a peer-to-peer system without the need for a middle man, like a bank or Western Union. As set forth in the Wall Street Journal, “Bitcoin, despite its name, isn’t money. It does not have governmental backing. According to the Journal, its extreme price volatility significantly diminishes its usefulness as a reliable unit of account or effective means of payments. Bitcoin might, however, serve as a sustainable store of value, like gold.”

Read more here.

 

Who Gets Embryos In Divorce?

From AZ Today (part of the USA Today Network):

State law may soon dictate who has the right to their own frozen embryos, regardless of what the potential parents think.

In cases of divorce, Senate Bill 1393 would require courts to give frozen embryos to the spouse who "intends to allow the embryos to develop to birth."

If both adults want to use the embryos to have a baby, the court would have to give them to the one who "provides the best chance" of successfully doing so.

The bill, which has passed the Senate and now just needs a final vote in the House before going to the governor, would override any agreements or contracts that the couple previously had on the matter, and would ignore either person's current objections or concerns. 

Read more here.

Divorce Substitute in Philippines

From CNN Philippines:

The House of Representatives committee on population and family relations on Wednesday approved a measure that would allow divorce in the Philippines.

The bill, entitled "An act instituting absolute divorce in the Philippines," was approved with no contention.

Under the bill, married couples may end their marriage for several reasons, including abuse, infidelity, and irreconcilable differences.

Read more here.

Single Mother Urges IN Lawmakers to Consider Alimony

From WTHR:

After 25 years of marriage, Lori Vanatsky was left alone with her three children, one under 18, when her husband packed his bags and moved to North Carolina, taking a lifetime of support with him.

Vanatsky, 46, of Zionsville, told a Senate committee Wednesday that she had been a stay-at-home mom and had limited resources when her spouse left because Indiana law does not provide for spousal support under most circumstances.

She approached Sen. Mike Delph, R-Carmel, with her situation and convinced him that something needs to be done for spouses who end up in situations like hers. That is why Delph has proposed Senate Resolution 32, which calls for a study committee to explore topics of spousal support and updates to Indiana’s divorce laws.

Read more here.

Why New Tax Law May Spur More Divorces

From Politico:

Republicans may pride themselves on upholding family values, but their new tax law could soon lead to a surge in married couples calling it quits.

Lawyers are counseling couples considering divorce to do it this year — before a 76-year-old deduction for alimony payments is wiped out in 2019 under the Tax Cuts and Jobs Act.

“Now’s not the time to wait,” said Mary Vidas, a lawyer in Philadelphia and former chair of the American Bar Association’s section on family law. “If you’re going to get a divorce, get it now.”

Read more here.

Social Media and Divorce

From the HuffPost:

Every morning, as I drink my morning cup of coffee, I scroll through my Facebook news feed, and it does not take me long before I come across a “friend’s” post that causes me to shake my head, and think “Why would they post that?” In today’s social media savvy world, people are often quick to send out a tweet, update their Facebook status, or post an item without thinking first. Maybe I think this way because I am a divorce attorney, but I cringe when I read some of these posts. If you are going through a contentious divorce, about to go through a divorce or just finalized your divorce, or you and your spouse are engaged in a heated custody battle, please heed this simple advice:

a) THINK BEFORE YOU POST: Before you hit the post or tweet button, think to yourself: if this post is printed out and introduced as evidence in my divorce or custody matter, how does it reflect upon me? Does it show poor parental judgment? Does it show immaturity? Will it be used against me in Court? Would my spouse show it to my children? For example, posting about your late night out drinking wine might not be smart to discuss with a custody matter pending and children are involved. Hey, Mommies, everyone likes a good glass of wine once in a while, but during your divorce is not the time to post about it.

Read more here.

Divorce Finance

From Forbes:

Divorce is never easy. It represents the end of a way of life you have known for years. Not only could a divorce wear you out emotionally, it could wear you out financially. Even the wealthiest may not have sufficient access to capital during a divorce. Assets could be frozen during the pendency of a divorce. Some turn to friends or family for capital but, for some, this is not an option and certainly it is not an easy ask.

Read more here.

Divorce and the Hong Kong Housing Market

From Bloomberg:

The usual suspects for Hong Kong’s sky-high property prices are low interest rates, a housing shortage and demand from mainland China. But there’s another unforeseen factor: divorce.

Demand for separations and remarriages have accelerated sharply over the past two decades as the former British colony has deepened its integration with the mainland. That’s according to Richard Wong, an academic at the University of Hong Kong and a veteran analyst of the local housing sector.

The numbers tell the story: Between 1976 and 1995, cumulative total marriages reached 803,072, with 84,788 divorces and 65,794 remarriages, according to Wong. In the subsequent years, through 2015, marriages rose to 878,552 while divorces shot up to 323,298 and remarriages came in at 256,066.

Looser travel restrictions between Hong Kong and the mainland after Britain handed the colony back in 1997 have played a role in encouraging Hong Kong residents to find new partners across the border. The divorce phenomenon is distinct from the mainland, where couples have sometimes separated simply to get around curbs on housing purchases.

Read more here.

Do-It-Yourself Divorce in Ohio

From News 5 Cleveland:

CLEVELAND - After just four weeks in existence, the Cuyahoga County Domestic Relations Court Help Center has been flooded with more than 700 applicants hoping to represent themselves in their divorce cases.

The number of people choosing to represent themselves for financial or personal reasons has grown significantly in recent years.

In 2016, more than 60 percent of the cases filed in Domestic Relations Court were by applicants who did not have attorneys, an increase of over 10 percent from 2015.

But with the rise in pro se representation, has also come a rise in errors.

“Along the way, they make a lot of mistakes,” explained Judge Rosemary Grdina Gold of the Domestic Relations Division of the Cuyahoga County Common Pleas Court,  “And then they come to court to get a hearing and think they’re going to get divorced.”

But Judge Gold explained that these applicants often miss vital steps, delaying their divorces.

“I’ve had people break down at the bench crying,” Judge Gold said. “I need to get divorced today. I thought I was getting divorced.”

Read more here.

 

Divorce & Shared Parenting

From Stat News:

As a young psychology intern in the late 1970s, my first patients were boys from divorced homes, suffering from what was then called “father hunger.” In those days, when parents split up, dads fell by the wayside. Fathers saw their children at the mothers’ discretion. This customary fallout from divorce reflected the belief that mothers are supremely important while fathers are expendable. We’ve come a long way since then.

Observing the problems that were being attributed to divorce, my colleagues and I began conducting studies in the late 1970s to learn how to help children cope better when their parents parted ways. The results of our research in Texas, supported by the National Institute for Mental Health, converged with studies in California, Virginia, and Arizona. The message from this work was clear: children and their fathers usually (though not always) wanted and needed more time together than they were getting. All signs pointed to the benefits for most families of having two parents involved in children’s lives who jointly maintained responsibility for their care. This is what is now called shared parenting.

Read more here.

Rights in Same Sex Divorce

From USA Today:

KNOXVILLE, Tenn. — In the first ruling of its kind in Tennessee, a judge has granted a woman the legal rights of a husband.

The ruling, issued last week and made public Monday, came as the state Legislature was pushing through a bill designed to stop Judge Greg McMillan of Fourth Circuit Court — and any other judge in Tennessee — from making that very decision, court records show.

In a reversal from his decision last year, McMillan penned approval of a divorce for same-sex couple Sabrina Witt and Erica Witt that includes designation of Erica Witt as the father of the couple's daughter, conceived through artificial insemination.

Read more here.

Louisiana Proposes Bill to Chop Divorce 'Cooling-Off' Period

From The Advocate:

Louisiana has sought for decades to stem the tide of the so-called divorce epidemic, from enacting the nation's first "covenant marriage" laws to requiring couples to undergo a lengthy "cooling-off" period before officially calling it quits.   

Even the most conservative lawmakers acknowledge that some marriages cannot — and perhaps should not — be saved. But they insist the state has a vested interest in limiting the prevalence of divorce, particularly when children are involved, given the host of societal ills associated with broken homes.

"Many people think it's not the government's business whether you're married or not," said Michelle Ghetti, a professor at the Southern University Law Center. "I would argue that, given the interest the government has in the economy, incarceration and education, it is most certainly the government's business, especially if we're paying taxes for it."

Read more here.

Boycott Those Who Misuse Triple Talaq, Says All India Muslim Personal Law Board

From The Huffington Post:

Those using triple talaq recklessly and without justification should be made to face social boycott, the All India Muslim Personal Law Board (AIMPLB) said on Sunday at the conclusion of its executive meet here.

The body, which represents major sects, also came out with a code of conduct for divorce, in case the separation becomes inevitable. It notably does not recommend instant divorce or triple talaq as a way of separation.

"It has been decided in the executive meet that men who arbitrarily use triple talaq should face social boycott," AIMPLB member Kamal Farooqui told IANS.

Read more here. 

What Ben Affleck and Jennifer Garner’s Unusual Divorce Filing Says About Their Split

From People:

Jennifer Garner and Ben Affleck continue to be a united front — even through their divorce.

The former couple officially filed divorce papers on Thursday — coordinating the filing of near-identical documents at the same time. In a somewhat unusual legal move, they both cited in pro persona, a legal term which means that, at least on the record, they are representing themselves and don’t cite a lawyer representing them.

That’s a way of keeping their case extra-private as well as signifying it’s amicable, says Peter M. Walzer, an L.A. certified family law specialist who’s not involved with their divorce.

“In most cases, because celebrities don’t want the public to see [the agreement], they agree privately and they file in pro per — which means they are representing themselves,” Walzer said. “All they’ll submit is a judgment of dissolution of marriage.” The couple can keep their more detailed divorce agreement — and any disputes — private.

Read more here.