Family Law Prof Blog

Australian Judge's Tirade Reveals Family Law "Crisis"

From Financial Review:

The incendiary farewell speech by Family Court judge Peter Murphy that took aim at "finger-puppet" appointments has convinced the Law Council "there is a judicial crisis in the Family Court and the Federal Circuit Court".

The council's president, Arthur Moses, SC, said there needed to be a circuit-breaker and that the nation's peak legal body was willing to mediate to ease the "deep division amongst the bench".

Read more here. 

Marital Rape Legal in Malaysia

From Reuters:

KUALA LUMPUR (Thomson Reuters Foundation) - When Neelambika’s husband slapped her, she decided to end their marriage, but this only made him angrier and he began to repeatedly rape her while she tried to sleep on the sofa - which is legal in Malaysia.

Neelambika, 60, a part-time teacher with one child, could not afford to move out as divorce proceedings dragged on for more than a year.

“My bed was on the couch in the living room and that’s where the marital rape happened,” Neelambika, who declined to give her full name to protect her identity, told the Thomson Reuters Foundation from the capital, Kuala Lumpur.

Read more here. 

Business Valuations in Divorce

From Texas Lawyer:

Depending on each spouse’s perspective, business valuation in a divorce can lead to sticker shock, disappointment, or both. The business operating spouse (who wants to keep the business after the divorce) usually wants the business to have a lower value, so they can be awarded both the business as well as other marital assets. The other spouse generally wants the business valued higher, so they can receive a larger portion of the other assets or, better yet, all of the other assets plus a buyout for the value of the business exceeding the value of all the other assets received.

A business is valued based on its fair market value.  Fair market value means the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.

Read more here. 

Mississippi Bans Abortions If Heartbeat Heard

From The New York Times: 

Phil Bryant, the Republican governor of Mississippi, on Thursday signed a bill largely banning abortions once doctors can detect a trace of a fetal heartbeat with an ultrasound, a milestone that can come as early as six weeks into pregnancy.

Mississippi is only the latest state to press for the strict abortion limit — the sort that has already been passed and then blocked in the courts in states including Kentucky, which approved it earlier this month, and Iowa, where a law passed last year was struck down by a state court in January. About 10 other states also are debating bills to ban abortions once fetal heartbeats are found, a point at which some women and girls are not yet aware that they are pregnant.

Read more here. 

Call for Papers

3^rd Annual Harry Krause Emerging Scholars Workshop

June 15

University of Illinois Discovery Partners Institute

200 South Wacker Drive | 19^th Floor

Chicago, IL 60606

Abstract Deadline: May 1, 2019

https://www.familylawprogram.com/hk-scholars-workshop

About $10 billion In Child Support Goes Uncollected

From CBS News:

R&B singer R. Kelly stopped making child support payments almost a year ago after his former wife came forward with allegations of abuse. He proceeded to rack up a $161,000 support bill that was paid only after spending a weekend in jail.

But Kelly isn't alone. A U.S. Census report estimates that just 43.5 percent of custodial parents get the full amount of support they're entitled to. And more than 30 percent don't receive anything at all.

Read more here. 

Call for Proposals

Family as the Crucible of Culture and Society: Inequality, Vulnerability, and Justice Within the Family

June 13-14

University of Illinois Discovery Partners Institute

200 South Wacker Drive | 19^th Floor

Chicago, IL 60606

Proposal Deadline: April 15, 2019

https://www.familylawprogram.com/isfl-conference

 

Taiwan's Amendment to Same Sex Marriage Law

From Jurist:

The clock is ticking on the deadline set by the Constitutional Court of Taiwan to amend the law to allow same-sex couples to marry. On May 24, 2017, the court declared Taiwan’s existing marriage law unconstitutional on grounds of discrimination and gave parliament two years to amend it to include same-sex couples. If the government fails to act, the existing marriage provision in the civil code will be extended to same-sex couples starting May 24, 2019.

This ruling was hailed at the time as a ground-breaking step in Asia, paving the way for Taiwan to become the first place in the region to achieve marriage equality. But for activists in Taiwan, the road toward marriage equality has been strewn with obstacles.  

Read more here. 

Call for Proposals

The AALS Section for Family and Juvenile Law seeks paper proposals for its panel on The Erosion of Civil Rights and its Impact on U.S. Families and Children. This program is co-sponsored by the AALS Section for Civil Rights and the AALS Minority Section. Please submit panel proposals that address the private battleground of family and juvenile law where civil rights are often at stake in decisions with reverberating effects in U.S. law and policy. From forced migration, coercive family separations to secretive teenage vaccinations, racially discriminatory education, the civil rights of family members and children are at risk of being unprotected and violated with impunity.  The nature of private matters such as family, reproduction, and childhood, playing out on the public stage per Lauren Berlant’s vision in The Queen of America goes to Washington City suggests that civil rights advocates are correct to focus their efforts in the realm of family and children’s law so that those most vulnerable to state intervention and mistreatment can have and exercise their constitutional rights. 

Proposals that seek to revitalize public law discourse and active participation in the political process are welcome.  Topics that touch on the intersection of civil rights and family, children, gender, sexuality, and race are just a few of the many proposal topics that this program seeks to feature.  Due to the very short turnaround time, proposals at this stage should be limited to about 300-500 words. 

To submit a proposal, please email Section Chair Cynthia Godsoe (cynthia.godsoe@brooklaw.edu) and me,  Section Chair-elect Kim Hai Pearson, (pearsonk@gonzaga.edu) with a short description of the proposed panel and a list of proposedspeakers.  We will issue a call for participation and determine the final speakers after topics are selected.  Proposals are due by May 1, 2019.  We look forward to receiving and reading your submissions!

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.

Woman Collects Child Support Arrearage for Now 52-Year-Old Daughter

From 10 News:

Along with getting what she's due, Anderson wants to the spread the word to other single parents in California: You can still collect. And to those who skipped out, her message is for them to watch out.

"I think he's a little bit panicked.," said Anderson of her husband's reaction to her pursuit. "And I'm very happy because I was panicked all these years. Now, it's his turn."

Toni Anderson's lawyer, Sara Yunus, Esq., an Associate Attorney for Antonyan Miranda, LLP, tells 10News a private hearing in Vista Court Wednesday resulted in a settlement of $150,000.

Read more here.

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.

 

Women Take to the Streets of Pakistan to Rewrite Their Place in History

From The Guardian:

During Jalwat Ali’s school days in Lahore, there were limited spaces to gather with other women, never mind flood the streets with punchy placards.

Public spaces often feel constricted in Pakistan, as though under critical male scrutiny. But over the past few days, Ali has been recruiting dozens of women, from garment workers to domestic helpers who barely get a day off. “To solve any problem, we need to make a collective effort,” she says.

On Friday, a series of International Women’s Day marches will be held in several Pakistani cities, calling for women’s place in society to be rewritten.

Organisers hope the aurat march (“women’s march”) and aurat azadi march(“women’s liberation march”) will bring a cross-section of society on to the streets to draw attention to the struggle for reproductive, economic, and social justice across Pakistan. The marchers will be protesting against sexual harassment in the workplace, child marriage, “honour killings”, wage inequalities and limited political representation.

Read more here.

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.

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.

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.

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.

Australian High Court to Determine Legal Parentage of a Child Born via Sperm Donation

From The Conversation:

The family courts have historically treated legal parentage as a question of who has “begotten or borne” a child. But increasingly complex family situations created as a result of donor conception, surrogacy, IVF and DNA testing are sorely testing this biblical-sounding definition.

In 2019, the Australian High Court will be hearing the appeal concerning the legal parentage of a child born via sperm donation. This is a crucial opportunity for the court to reconsider the “begotten or borne” definition, and the emphasis currently placed on biology and how someone was conceived.

Read more here.

 

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.

Call for Papers

The Section on Family & Juvenile Law is pleased to announce a Call for Papers for its Pedagogy session on Using  Formative and Summative Assessments in Family Law.  

 

The Section will use the Call for Papers to select additional presenters for the Section’s program to be held during the AALS  Annual Meeting in Washington DC in early January 2020. The goal of  the session is to address – and share -- the development of various types of assessments in family law.  The panel will show how family law professors are integrating formative assessment into their courses by, in the words of ABA  Standard 314, Interpretation 314-1, “provid[ing] meaningful feedback to improve student learning” and also discuss alternative means of summative assessments.   Presenters will be asked to prepare a short handout for the meeting that  explains their approach.

 

If you are interested in participating, please send a 400-600 word description of what you'd like to discuss.  Submissions should be sent to Professors Naomi Cahn, ncahn@law.gwu.edu, and Jessica Dixon Weaver,  jdweaver@mail.smu.edu.    The due date for submissions is July 1,  2019, and the author[s] of the selected paper(s) will be notified by August 1, 2019.  

 

The Call for Paper presenters will be responsible for paying their registration fee  and hotel  and travel expenses.  

 

Submission review:  Papers will be selected after review by  a Committee appointed by the Section Co-Chairs. Any inquiries about the Call for Papers should be submitted to Naomi Cahn & Jessica Dixon Weaver.