New Kansas Family Law Blog
Check out Grant D. Griffiths' new divorce law blog on everything to do with Kansas law. It is at http://gdgrifflaw.typepad.com.
New Social Security Site for Women
Many life circumstances - marriage, divorce, widowhood, the birth of a child - have their own sets of Social Security rules. These rules can be confusing and daunting, especially for women who are applying for Social Security benefits for the first time. The Social Security Administration has recently launched Social Security Online for Women, a web site specifically designed for women
Information included on the site includes a Social Security benefits planner, getting a Social Security number on your divorced husband's record, changing your name with the Social Security system and getting a new Social Security number if, for example, this might help to alleviate any harassment or domestic violence.
There are also answers to some frequently asked questions such as: Are you entitled to divorced spouse's benefits?, When do divorced spouse's benefits end?, and What happens if you remarry?
Haven't Gotten Around to Changing Those Beneficiary Designations? A Word of Caution
Could life insurance or pension benefits meant for you go to a spouse from a previous marriage instead? A recent U. S. Supreme Court ruling (Egelhoff v. Egelhoff) makes this a potential cause for concern.
Continue Reading...Employee Who Kept Spouse Enrolled in Health Plan Five Years After Divorce Found Liable for Fraud
Under the Consolidated Omnibus Budget Reform Act of 1986 (COBRA), health insurance coverage provided by an employer can be continued for up to 36 months by an ex-spouse. Technically, this law applies only to employers with 20 or more employees. However, most states have laws that apply COBRA-type benefits to employees of smaller companies.
Continue Reading...Pending Bankruptcy Legislation Could Impact Support Payments
Pending bankruptcy legislation could affect future child or spousal support payments. These payments currently receive priority status, meaning they must be paid before credit card companies can forcibly collect their debts. The new legislation makes it harder for individuals to wipe out these debts by making it harder to qualify for bankruptcy under Chapter 7. Under the new law, most debtors will have to file under Chapter 13, which requires payment of at least part of these debts. The problem is that each dollar of debt that survives bankruptcy competes directly with support obligations.
Continue Reading...BlackBerry Thumb: Real Illness or Just Another Dumb Injury?
A new injury may be on the horizon for all you BlackBerry users.
Whatever your thumb-typing speed, lots of messages mean lots of repetitive thumb motions. And that could mean trouble, says Alan Hedge, PhD, director of the human factors and ergonomics research group at Cornell University in Ithaca, N.Y. Click here for the full article.
A New Era of Family Law - "50/50 Custody"
The following article discusses the movement to pass legislation in all 50 states mandating a presumption of 50/50 custody.
Food for thought?
By Lynne Gold-Bikin
A movement by fathers' groups and their current wives to have every state legislature mandate a presumption of 50/50 custody for all children as a starting point in every contested custody case has created a new area of family law. If you inquire about the rationale behind this movement, the groups will respond that they have a constitutional right to raise their children and, further, that this presumption will alleviate all custody problems. Further, they say, the "best interest of the child" standard is bogus and is just used to deprive fit parents of their rights. Other arguments made by these dads include: the criteria used to award custody are unconstitutionally vague; there are no scientific data to support the continued use of the "best interests" standard, and the standards are arbitrarily utilized. If the legislatures would only mandate a presumption of 50/50 custody at the outset, these groups claim, there would be no interparental conflict, no wasting of family resources, and no shattered lives.
Continue Reading...Visitation Jurisdiction
In a federal diversity action where the father fails to establish any credible evidence to remove jurisdiction, jurisdiction will be returned to the child's home state. See, Melnick v. Melnick, 04 Civ. 5993, United States District Court for the Southern District of New York, November 15, 2004.
In Melnick, the parties were divorced in Connecticut in 1997. There was one minor child of the marriage and the parties had continuing disagreements regarding the father's visitation rights with respect to the minor child. A supplemental visitation agreement was drafted in 2003 under the supervision of the Connecticut Family Court. Thereafter, the father relocated to New York, and filed an action in the New York courts, claiming the mother continued to violate the parties' visitation agreements. The mother removed the matter as a diversity case to the federal courts. The federal court dismissed the case and remanded it to the Connecticut courts. It held that the father's complaint was insufficient to find that any of the father's causes of action were rooted in New York. It considered that the parties were divorced in Connecticut, and the subject minor child's home state continued to be Connecticut. The father's complaint only alleged, in conclusory terms, without much empirical evidence, that there was any connection to New York. The mother did not dispute that the father was entitled to remove the child to New York for the purpose of temporary visitation.
Preparation of Pendente Lite Applications
The following article is a must read for anyone preparing to ask the court in a divorce action to issue temporary orders pending a final resolution of all issues at trial.
By Curtis J. Romanowski
Part One of a Two-Part Series.
The pendente lite phase of a case and the results of a pendente lite application are critical for setting the tone for the balance of the case, and often affect whatever final decisions or agreements are reached. An inequitable result could seriously compromise one party's case. Typically, pendente lite motions provide judges with an introduction to the parties, including the details of the marriage, separation, children and other relevant factors surrounding the case. As a rule, first impressions are usually important, and the pendente lite application is no exception.
Depending on the results, pendente lite applications have the potential to create leverage for the balance of the case, spur client management and relational problems, and escalate litigation costs attributable to the entrenchment of the "winner" and the commitment of the "loser" to retake lost ground.
It is, therefore, essential to provide judges with sound, hard evidence at the pendente lite phase, that will enable them to deal fairly with both sides pending the submission of final proofs. An unfairly skewed pendente lite award can thwart fair outcomes and is simply one of the worst things that can happen to both parties. What about voluntary arrangements? Money being paid or received voluntarily might quickly become the status quo. Consequently, if the arrangement is unacceptable to either party, a pendente lite support application should be filed to establish a more appropriate support amount.
Continue Reading...Papers Allege Lohan's Dad's Death Threats
This will keep you updated on the latest in the Linsday Lohan Family Divorce Saga.
The father of teen-movie star, Linsday Lohan, alleged to have threatened to kill his wife and children, according papers filed in the pending divorce. Click here for the article.
West Virginia Lawmakers Want Free Child Support Debit Cards
By Lawrence Messina
The Associated Press
CHARLESTON, W.Va. -- Lawmakers urged state officials Wednesday to do away with banking fees charged families who receive child support payments through a debit card system that debuted this month.
BB&T Corp., as issuer of the Visa-affiliated cards, charges an array of fees including $1.25 for any third or subsequent ATM cash withdrawal per month, and $2 for the use of the card at a non-BB&T ATM. The fees are in addition to an estimated $12,000 per month the state gives BB&T for handling the child support payments.
The debit cards and direct-deposit payments aim to replace the checks mailed out, sometimes weekly, to more than 130,000 West Virginia families. The program is expected to save the agency about $500,000 a year.
Delegate Carrie Webster, D-Kanawha, said she has an account with BB&T but does not see the sort of fees the bank charges child support recipients. Click here for article.
Alimony, Child Support Payments Up In US
United Press International
WASHINGTON -- Annual support payments such as alimony or child support went up 18 percent from 1997 to 2002 after adjusting for inflation, the U.S. Census Bureau says.
Continue Reading...Diamondbacks Pitcher Has Child Support Issues
Diamondbacks' pitcher Jose Jimenez's is absent from training camp.
His absence stems from child-support issues in his native Dominican Republic. Jimenez, a non-roster invitee, must make a series of payments up front to be granted travel, and thus far he hasn't been able to clear up the situation.
If it drags out several more days, the Diamondbacks likely would release Jimenez, although they feel he can contend for a spot in the bullpen and provide valuable experience.
Dr. Joyce Brothers Advice Re: Children and Divorce
Don't air the dirty laundry of divorce in front of kids
By DR. JOYCE BROTHERS
DEAR DR. BROTHERS: My friend is going through a horrible divorce, and although I can't imagine acting so awfully to my husband and having him act that way to me, I have to admit that I wouldn't know what to do to make things seem fine or even OK for the kids. They are fighting over their two children, who are only 5 and 7 years old and don't fully grasp things. I have tried to gently tell my friend that she shouldn't go around the house screaming and crying about her ex, because I see that it makes her kids want to comfort her, or else it makes them cry, too -- but she seems to be in a daze. What can I do to help her and her kids? -- M.I.
DEAR M.I.: I am afraid there is very little you can do, except perhaps offer to take the children to the zoo or on some other outing to give them a break where the parent won't be trying to poison the very air that they breathe. I have very little sympathy for a parent who airs the dirty laundry in front of vulnerable young children or falls apart to the extent that it requires the kids to act like grown-ups, comforting Mom instead of the other way around. This is simply wrong and will come back to haunt her, I guarantee.
This is a time when the kids need extra nurturing, attention and a smooth transition to a new household or visitation situation. If your friend is trying to turn the kids against the husband and he is not a bad father, shame on her. You can help make sure that the kids know they are loved and that their mother and father are both good people. Explain that they are "not themselves" at the moment but that everything will turn out all right. Just watch out that you don't get caught in the crossfire; things sound pretty out of control around there.
Forbes Article -- Top Financial Divorce Mistakes
Leah Hoffmann's article in Forbes magazine is a good read for anyone considering going through the divorce process, or even better, for anyone currently involved in the process.
In essence, she tells everyone that "getting a divorce is a messy business, both personally and financially". Her advice -- "don't be in such a hurry to reach a settlement that you make these costly financial mistakes". Click here for the full article.
Movie Star Christian Slater Files For Divorce
Associated Press
LOS ANGELES - Christian Slater has filed a petition to end his five-year marriage to television producer Ryan Haddon.
The divorce petition filed Friday in Superior Court cites irreconcilable differences.
Slater's films include "Windtalkers," "Hard Rain" and "Broken Arrow."
Arizona Bill Would Add Rights for Gays with Partners
House Bill 2710 gives same-sex couples the right to name a partner as a life insurance beneficiary, make decisions in life-threatening hospital situations and arrange for the funeral and burial of a partner. It allows them to leave personal belongings to a partner and makes it easier to buy a house jointly as married couples do.
House Bill 2710 is sponsored by Rep. Kyrsten Sinema of Phoenix and 22 other lawmakers, most of them Democrats. It is being offered in the midst of an all-out battle to confirm Arizona's ban on gay marriage through a proposed state constitutional amendment.
Conservative activists and lawmakers, poised to begin collecting the necessary signatures to put the constitutional change on the 2006 ballot, vow to derail Sinema's bill.
The legislation, which will be debated and possibly voted on this week in the House Human Services Committee, gives same-sex couples the right to adopt and splits in half the cost and responsibilities of raising a child.
Critics of same-sex unions said the bill is nothing more than another attempt to legalize gay marriage. To read the full article which appeared in The Arizona Republic, click here.
EU Rules Endanger Divorce Law in Ireland
Irish divorce law is being undermined by EU regulations that come into force next month, according to some.
Under Irish law, couples have to live apart for four out of five years before they can apply for a divorce. But under EU law a spouse can get a divorce in another country with different rules and the divorce must be recognized here. For the full story, click here.
UCCJEA Opinion From Texas
A Texas court erred in designating Illinois as the home state of a divorcing couple's child, who had not spent six consecutive months in the latter state at the time of the divorce, the Texas Court of Appeals, 13th District, held Feb. 10th in Nagubadi v. Nagubadi, Tex. Ct. App., No. 13-02-621-CV, 2/10/05.
The Court found that the parents and child were all living in Texas when the mother filed for divorce but that by the time the final decree was entered the mother was completing a two-year medical residency program in Dayton, Ohio, and the father was living in Chicago.
Growth of Assets During Marriage Does Not Void Prenuptial Agreement
The fact that a divorcing husband's separate assets grew significantly over the many years of his marriage was not an unforeseeable change in circumstances justifying voiding the parties' premarital agreement, in which both spouses waived any interest in property obtained by the other during the marriage, the Michigan Court of Appeals held Feb. 8th in Reed v. Reed, Mich. Ct. App., No. 248895, 2/8/05).
The court also ruled that the benefit accruing to one party from the disparate growth of his or her assets is not a changed circumstance rendering such an agreement unenforceable. To read the full opinion, click here.
Mother May Have Child Baptized Without Father's Consent
This week, in Hicks v. Hicks, a Pennsylvania appellate court held that the trial court erred in denying a mother the right to baptize her 9-year-old daughter over the objection of the child's father. In doing so, the Court reversed the trial court order barring either parent from unilaterally baptizing the child and authorizing her to make her own choice at age 13.
To read the full opinion, click here.
What does "reasonable visitation" mean?
When a court determines the visitation rights of a noncustodial parent, it usually orders "reasonable" visitation , leaving it to the parents to work out a more precise schedule of time and place. Reasonable visitation allows the parents to exercise flexibility by taking into consideration both the parents' and the children's schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times and duration of visits. He or she isn't legally obligated to agree to any particular schedule, but judges do take note of who is and who is not flexible. If you are inflexible, merely to vex your ex, it can backfire when you need to ask the court for something in the future.
Continue Reading...Don't Drink and Divorce
By Dan Morrison
Nazma Bibi's husband mistakenly divorced her in a drunken rage. Now his Muslim community in India won't let them get back together.
POLICE GUARDS WATCH OVER NAZMA BIBI'S HOME, a two-room thatch and mud hut, set on a tiny plot of land amid 150 other similar dwellings in Kantabania, a village in the eastern Indian state of Orissa. She gets this treatment not because she is a VIP or a star witness in a celebrity trial, but because she is the nation's most famous reluctant divorc?©e.
Continue Reading...Keeping Families Together - New Federal Legislation
The Bazelon Center for Mental Health Law reports on the re-introduction of its proposed legislation entitled, "Keeping Families Together" in Congress.
This legislation would aid states in encouraging agencies that serve children with mental health issues to work together to provide education, child welfare and juvenile justice. Most importantly, the bill would increase the availability of home and community-based services for these children to prevent them from having to be separated from their families in order to receive the care they require.
The legislation is in response to a 2003 Government Accountability Office report that found "at least 12,700 cases in fiscal year 2001 of children placed in child welfare and juvenile justice systems so they could access needed mental health services.
Thanks to S. Elizabeth Malloy and Thomas W. Mayo for leading us to this information. Their blog, which is very informative, is HealthLawProf Blog.
Georgia House Bill 221 Balances Child Support
One writer believes that by continuing to use the guidelines that the federal government recommended against in 1987 (states should not use only one parent's income when calculating child support), Georgia continues to engage in bad public policy with adverse consequences for children and families. For the complete article, click here.
Online Parenting Course -- Children in the Middle
Check out the "Children in the Middle" online parenting course. It is a useful resource for parents involved in a contested divorce or family court matter. This course is available on the Putting Kids First website.
Lawyer Accused of Forging Couple's Divorce Papers
Associated Press
ST. LOUIS - A lawyer has been charged with forgery after a client learned the divorce papers she had received - complete with a judge's signature - were fakes and she was still married.
Robert and Sara Jane Rybarczyk assumed their divorce was final when Sara Jane got a certified copy of the marriage dissolution in August signed by a St. Louis County judge. The lawyer she had hired, Phillip Adams, told her the divorce was official in May.
When Robert Rybarczyk hired his own lawyer in December to look into making changes to the divorce terms, the lawyer was unable to find any records relating to it and learned the divorce had never been filed. Click here, for the full article.
Florida Divorce Raises Issues of Authority, Costs
Itir Yakar
Daily Business Review
02-22-2005
A Broward County, Fla., judge did not improperly delegate his decision-making authority on attorney fees in a hotly contested divorce case, because he gave oral instructions before the parties drafted their proposals and because his decision incorporated elements from both sides, Florida's 4th District Court of Appeal has ruled.
In its unanimous ruling last month, the 4th DCA distinguished the case of Rosenbloom v. Rosenbloom from that of Perlow v. Berg-Perlow. In Perlow, the Florida Supreme Court last year chastised a Palm Beach Circuit senior judge for letting the lawyer for one of the parties in a divorce case write the judge's order.
Continue Reading...Nebraska Attempts To Collect Child Support From Dead Man
OMAHA, Neb. -- The state of Nebraska is trying to collect child support from a dead man. This is not child support he owed when he was still alive, but instead, the debt accumulated after he died. To read the full story, click here.
When Child Support Is Due, Even the Poor Find Little Mercy
By LESLIE KAUFMAN
Published in the New York Times on February 19, 2005
Everybody loves to hate the so-called deadbeat dads. But because the laws made little effort to differentiate between the wealthy and the out-of-work and incarcerated, the laws have produced consequences for poor men that are vexing local and national policy makers.
Around the country, child support arrears have been piling up at a staggering rate since the enactment of these laws. A decade ago the federal government said fathers owed $31 billion in back child support; as of 2003, the last year for which data was available, the total had more than triple that to reach $96 billion. Changes in reporting may account for a portion of the increase. To read the full article, click here.
Lesbian Who Split With Partner Ordered To Pay Child Support
Associated Press
February 18, 2005
A lesbian who split with her partner after adopting the woman's biological children must pay child support, the Indiana Court of Appeals has ruled.
"Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties," Judge John G. Baker wrote in the 22-page ruling.
"That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children's other parent." To read the complete article, click here.
Revisions to Arizona Child Support Guidelines
Here, we continue with our comments on the Revised Arizona Child Support Guidelines, effective January 1, 2005.
Section 24 -- Modification
Section 24 discusses modifications to child support orders. The reference to "prima facie evidence" was changed to "evidence". Many self-represented litigants use the guidelines to calculate child support; such legal terminology was thought to be confusing.
Section 18 -- Travel Expenses Associated With Visitation (Parenting Time)
Section 18 addresses allocation of children's travel expenses for parenting time purposes. The new guidelines clarify that for this purpose "long distance" generally means more than 100 miles in distance. The change was made to be consistent with A.R.S. Section 25-408(C)(2)'s requirement regarding notification when a parent intends to relocate a child more than 100 miles or more. Defining the distance requirement provides clear direction for the court when allocating travel costs.
Section 12 -- Equal Custody
The two paragraphs at the end of the prior section 10 discuss the method to use in equal physical custody calculations. This function is separate and distinct from the parenting time adjustment described in another section but is frequently confused with that adjustment. The new Section 12 was separated out to emphasize the separate methodology to use for equal physical custody cases.
More Changes To Arizona Child Support Guidelines
Here is another change:
Section 4 -- Duration of Child Support
This section has been added to provide for a presumptive termination date and constitutes the most significant change of the entire revision. The hope is that this change will alleviate some problems with overpayments at the termination of the order for child support when the payor is current. It also is anticipated that the change will assist the Division of Child Support Enforcement to better automate the termination of the child support order in the ATLAS system.
Continue Reading...Changes To Arizona Child Support Guidelines
As you may now, effective January 1, 2005, there have been numerous changes to the Arizona Child Support Guidelines. Over the next couple of days, we will make note of some of the more significant changes.
Section 2 -- Premises
A custodial parent may be ordered to pay child support.
A premise is added to clarify that the custodial parent could be ordered to pay child support. This can occur in the unusual circumstance where a custodial parent earns an extremely high income and the non-custodial parent earns a low income and exercises in excess of 100 days of parenting time per year.
This was not seen as a substantive change to the Guidelines. It was apparently intended only to make explicit what was previously implicit.
Follow-Up on Ray Charles Child Support Case
As you may recall from our earlier blog, the Mother of Ray Charles' 17 year-old son requested an increase in child support from $3,000 to $15,000-a-month. The California court said no. She will continue to receive monthly payments of $3,000 from Charles' estate following the court's ruling Wednesday in Pasadena, CA.
Continue Reading...Privacy On Assets In Divorce Case Challenged In Court
In Arizona, all records regarding a divorce action are public record. This is not necessarily the case in other states. For example, in New York only the parties and their attorneys of record are allowed access to the file.
For obvious reasons, Arizona's policy raises concerns for litigants going through the process of divorce. The following article addresses California's approach.
Continue Reading...Rush Limbaugh Divorce Finalized
Rush Limbaugh's divorce has been "signed and sealed" in a Florida courthouse, the Palm Beach Daily News reports.
The popular radio host returns to bachelor status after ending his marriage with his third wife, Marta.
Continue Reading...Alimony Payments Have Tax Implications
By IRS Newswire
Feb 15, 2005
From the IRS, here is Tax Tip 2005-32.
When the end of matrimony leads to the start of alimony, how does it affect your taxes? Alimony payments you receive are taxable to you in the year received, according to the Internal Revenue Service.
The amount is reported on line 11 of Form 1040. You cannot use Form 1040A or Form 1040EZ. The person making the payment may claim a deduction in the year paid on Form 1040. You must give the person who paid the alimony your Social Security number or you may have to pay a $50 penalty.
If your decree or agreement calls for both alimony and child support and specifies amounts for each, only the alimony is taxable. Because no taxes are withheld from alimony payments, you may need to make estimated tax payments or increase the amount withheld from your paycheck.
For more information, see Publication 504, Divorced or Separated Individuals, Tax Topics 406, Alimony Received, and 452, Alimony Paid. Publications and forms may be downloaded or ordered by calling toll free 1-800-TAX-FORM (1-800-829-3676).
Helpful Links:
Publication 504, Divorced or Separated Individuals (PDF 171K)
Tax Topic 406, Alimony Received
Tax Topic 452, Alimony Paid
NJ BIll Links Jackpots & Child Support Collections
By John Curran, Associated Press
ATLANTIC CITY - Deadbeat parents who have hit it big in New Jersey casinos may not be so lucky the next time they win.
A bill passed by the Legislature would give the state permission to garnishee some slot jackpots won by gamblers who owe child support.
The measure, awaiting acting Gov. Richard J. Codey's signature, would require the operators of slot-machine systems to give the names, addresses, and Social Security numbers of winners to the state, which would check them against child-support enforcement rolls.
If the winner owes court-ordered child support, it would be deducted from the jackpot.
Continue Reading...Avery Corman's "A Perfect Divorce" To Be Made Into A Movie
Avery Corman's latest novel, "A Perfect Divorce" has had its film rights picked up by Columbia Pictures! Irwin Winkler is set to produce according to Variety.
The book explores the hidden, corrosive effects of a seemingly amicable divorce on the son of well-meaning parents. Winkler is not expected to direct this feature. Further information is available in our forum.
Well, add it to the list of other Hollywood divorce films, i.e., War of the Roses, Intolerable Cruelty, Kramer v. Kramer, etc.
Spyware Evidence Not Permitted In Divorce Case
A Florida appeals court has refused to allow a woman to use evidence obtained by illegally planting spyware on her husband's computer to support her case in their bitter divorce proceedings.
Beverley Ann O'Brian installed a surveillance program called Spector on the computer used by her husband James. She obtained transcripts of private on-line chats between James and another woman with whom he was playing Yahoo Dominoes, according to court papers.
The Circuit Court for Orange County, Florida, found that evidence obtained in this way could not be used in court because it had been intercepted - an offence under federal wiretapping regulations and the Florida Security of Communications Act 2003. It banned Mrs O'Brian from using spyware in the future and from disclosing any information obtained from the surveillance.
Mrs. O'Brian appealed, arguing that the evidence should have been admissible, as it had been obtained by copying information stored on the computer, and not through the interception of electronic communications.
Continue Reading...Arizona Lawyer Suspended for Wiretapping During His Divorce
Mentioned in the Lawyer Regulation section of the March 2005 edition of the Arizona Attorney was a tidbit about a lawyer who recorded telephone conversations between his child, mother-in-law and now ex-wife without their knowledge or consent. Not only was the lawyer found to have committed a criminal act in violation of A.R.S. Section 13-3005, he was suspended from the practice of law for such conduct and his his failure to pay child support and spousal maintenance.
Tips from the SMILE (Start Making It Livable For Everyone) Program
This excerpt is from Jennifer Chambers' article that includes tips from the SMILE Program (Start Making It Livable for Everyone), an initiative that assists families throught the emotional portion of a divorce proceeding.
Parents should tell children about the divorce together if possible.
Children need to know, sometimes over and over, how they will be affected by the divorce, where they will go to school, where they will live, when they will see the other parent, friends and relatives, and who will take care of them should something happen to the parent with whom they live most of the time.
Children need reassurance that they are not to blame for the divorce.
Parents should answer children's questions honestly while avoiding unnecessary details.
Parents should discuss divorce-related issues in terms the children can understand. It is helpful to avoid terms such as "custody" and "visitation."
Parents should encourage children to talk about the divorce and their feelings and discuss problems openly.
Parents need to accept children's mood swings and emotional outbursts and not take them personally. Counseling or support groups may help. children resolve their feelings.
Children should be helped to accept the reality of the divorce and not be given false hope of reunion.
Parents should express their love and commitment to the children to help them feel secure.
Law Voiding Marriage Between Cousins Does Not Affect Prior Out-of-State Marriage
A marriage between two first cousins that was legally entered into in Virginia, and recognized as valid when the couple later moved to Arizona, was not invalidated by a subsequent amendment to the Arizona marriage law declaring such marriages to be void, the Arizona Court of Appeals decided in Cook v. Cook, Ariz. Ct. App., No. 03-0727, 1/13/05).
The court ruled that the parties' marriage was a substantively vested right, and that if the amended statute were construed to take away that right, it would run afoul of the prohibition against retroactive legislation (The parties married in Virginia in 1984 and moved to Arizona in 1989. Marriage between first cousins is valid in Virginia, but Arizona law has always provided that a marriage between first cousins in Arizona is void. However, when the parties moved to Arizona, that state's law also provided that "[m]arriages valid by the laws of the place where contracted are valid in this state." Ariz. Rev. Stat. § 25-112(A).
In 1996, Arizona lawmakers amended § 25-112(A) to add the phrase "except marriages that are void and prohibited by § 25-101." Section 25-101 is the provision that makes marriages between certain persons--including first cousins--void. Thus, under the amended language of § 25-112(A), the parties' marriage was valid in Arizona in 1989 but subsequently declared void by the 1996 amendment.
The husband filed for divorce in 1997, but then moved for a dismissal, alleging that the parties' marriage was void. The trial court denied the motion, holding that because the law prior to 1996 permitted recognition of the marriage, the amendment to § 25-112(A) could not be retroactively applied to void a marriage that was valid when the parties moved to Arizona. After a trial, the court entered various property and support orders. The husband appealed.
Significant Exception
Addressing only the validity of the parties' marriage, Judge Daniel A. Barker first confronted the question whether that validity should be determined under Virginia or Arizona law. He noted that "[w]ith a significant exception applicable here, Arizona follows the general rule that it is the law of the place where the marriage is celebrated, not the law of the place where the divorce takes place, that determines the validity of the marriage." (Citing Horton v. Horton, 198 P. 1105, 1107 (Ariz. 1921).)
That exception, Barker said, is that the power to define a valid marriage in Arizona is vested in the state's legislature and not in the legislature or judiciary of another state (or in the judiciary of Arizona). "Thus we have long recognized that the legislature of this state, notwithstanding the general rule, may declare what marriages are valid (or void) in Arizona even if the marriage pertains to persons 'who were in good faith domiciled in the state where the ceremony was performed' and the marriage is valid in that state," he explained.
Choice of Law
Barker went on to say that in examining the choice-of-law issues surrounding out-of-state marriages, it is important to consider Arizona's treatment of the principles set forth in the Restatement (2d) of Conflicts of Laws (1971) pertaining to marriage. Noting that Restatement § 283(2) invokes the element of which state had "the most significant relationship" to the parties at the time of the marriage in determining which state's law to apply, he emphasized that, as "Horton expressly holds, the Arizona legislature is free to ignore (subject to constitutional constraints) the policy considerations of another state in determining whether marriages are valid or void in Arizona regardless of whether that other state had the more significant relationship."
Commenting "that our cases instruct us to look to Arizona's statutes on the validity of marriage--even if another state has a more significant relationship--is particularly apt given the importance of marriage and the present divergent views on that subject," Barker asserted that "[u]nless constitutionally required, Arizona should not be held hostage to the policies of another state on a subject so vital as who may or may not marry." He thus concluded that it was not necessary to apply Virginia law to this case, even though Virginia had the more significant relationship to the parties at the time of the marriage.
Arizona Law
Therefore turning to the Arizona statute, Barker recognized that legislation may not disturb vested substantive rights by retroactively changing the law. Asserting that marriage is a substantive right that "goes to the bedrock of our society," he said the inquiry thus became whether the wife here had a vested right in her marriage.
Barker acknowledged that determining whether such a right (the recognition of one's marriage) has vested does not fit neatly into the jurisprudence concerning vested rights, which deals primarily with property rights. Noting, however, that the standard for determining "vested" rights has been defined as an immediate fixed right to present or future enjoyment, he said that the status of being married met that definition. "Under this standard, and by virtue of residing in Arizona for seven years when Arizona's legislature expressly authorized the marriage into which she had entered, [the wife]'s right to have her marriage recognized 'vested'," Barker declared, noting that his conclusion was also supported by the law pertaining to community property.
Prospective Application
Stressing that when the parties moved to Arizona in 1989 their marriage was valid under Arizona law, Barker held that in the context of a claim of a "void" marriage under § 25-112(A), "one's right to have an out-of-state marriage deemed valid in the state of Arizona vests upon the following conditions: (1) the marriage was valid in the state where contracted; (2) the parties to the marriage were residents of Arizona prior to the enactment of the amendment to § 25-112(A) on July 20, 1996; and (3) that during this period of residency in Arizona their marriage was validly recognized under the statutory scheme then in place in Arizona."
"Accordingly, we can give legitimate meaning to the term 'void' in the 1996 amendments by applying it to marriages from other jurisdictions in which the parties had no vested right to have their marriage recognized in Arizona," Barker said. Because the marriage here did not fall within that category, he affirmed the ruling below.
Child Never in State -- Divorce Action -- UCCJEA
In Weesner v. Johnson, Ark. Ct. App., No. 04-784, 1/19/05, it was held that the trial court erred as a matter of law in assuming jurisdiction over the custody aspect of a divorce case where the parties' child had never lived in Arkansas.
At trial, the resident father, who had requested custody in his divorce petition, acknowledged that the child had been born and resided in California, and said that the mother and child had also lived in Arizona and Nevada for brief periods. The mother, however, moved for a dismissal of the custody matter and submitted an affidavit maintaining that while she and the child had moved around the state, they had always resided in California. (The parties had separated prior to the child's birth in 2001.) The trial court held that it had custody jurisdiction over the parties and the subject matter.
Examining the the Uniform Child Custody Jurisdiction and Enforcement Act, the Court held that Arkansas clearly did not have home state jurisdiction because the child had never lived there. Likewise, the Court found that the father could not rely on significant connection jurisdiction, because the child had absolutely none with Arkansas. Further finding that this case did not present the situation in which another state declines jurisdiction, the Court also rejected the father's reliance on the UCCJEA provision under which Arkansas retains jurisdiction if no court of any other state would have jurisdiction.
Of note, the Father appeared without an attorney. Probably not the best idea when faced with a UCCJEA issue.
Qualified Immunity Protects Attorney
An attorney representing the parents of a pregnant minor, who purportedly misled her child's father about whether she intended to put the baby up for adoption, is not liable for intentional interference with the parental relationship absent any evidence that the lawyer acted maliciously, the Ohio Court of Appeals, 10th District, ruled Feb. 8 in Sprouse v. Eisenman, Ohio Court of Appeals 10th Dist., No. 04AP-416, 2/8/05).
The Court explained that even if the lawyer did falsely assure the father that adoption was not on the horizon, the attorney was protected by the doctrine of qualified immunity because the baby's father failed to show that the lawyer had "an ulterior motive separate and apart from the good faith representation of the client's interests."
Military Benefits--VA Disability--Bank Account Can Be Garnished For Child & Spousal Support
A divorced man's bank account containing only funds received as Veterans' Administration disability benefits was not exempt from collection to pay a judgment for child support, maintenance, attorneys' fees, and court costs arising from a domestic relations case, the Illinois Appellate Court, Fourth District, ruled Feb. 7 in In re Pope-Clifton (Pope-Grubb), Ill. App. Ct., No. 4-04-0307, 2/7/05).
The Court was not persuaded by the man's argument that the funds are covered by a state law providing that a debtor's right to receive "a veteran's benefit" is exempt from judgment or attachment. The Court found that the law exempts only a debtor's "right to receive" certain funds and that lawmakers did not intend to exempt property traceable to such funds.
Likewise, the Court was not swayed by the man's claim that the funds are exempt under the anti-attachment provision found at 38 U.S.C. § 5301(a)(1) (2000).
Court Rejects Gay Spouses' Challenge
In Wilson v. Ake, M.D. Fla., No. 8:04-cv-1680-T-30TBM, 1/19/05, lesbian partners who were legally married in Massachusetts and now reside in Florida have failed to persuade the U.S. District Court for the Middle District of Florida that the federal Defense of Marriage Act is unconstitutional. The Court rejected full faith and credit, due process, and equal protection challenges to DOMA, which provides that no state is required to recognize a same-sex marriage that is legal in another state. (Florida does not recognize such marriages.)
The ruling is the first federal district court decision on the statute's constitutionality; a bankruptcy court rejected similar challenges to DOMA in In re Kandu, 315 B.R. 123, 30 FLR 1471 (W.D. Wash. 2004).
Continue Reading...Arizona Spousal Rape Case Sparks Old Debate
Tuesday, February 15, 2005
By Wendy McElroy
He attacked around midnight, choking her, dragging her by her hair, brutally raping her over and over again.
But as the husband of his victim, this violent rapist may receive only 1 1/2 years imprisonment and, perhaps, none at all. A stranger committing the same crime could receive 14 years.
Prosecutors in Coconino County, Ariz., think the discrepancy is unconstitutional. Accordingly, they have ignored the state's marital rape exemption (search) and charged the husband in question under standard rape law.
In doing so, the prosecutors have entered a centuries-old debate on the issue of whether a rape, by definition, can occur between husband and wife.
Continue Reading...Ex-Arizona Wildcat, Sorenstam Files for Divorce
The Associated Press
ORLANDO, Fla. - Ex-Arizona Wildcat Annika Sorenstam, the No. 1 player in women's golf and one of the most famous female athletes in the world, has filed for divorce from David Esch, her husband of eight years.
Golfweek magazine reported the divorce was filed Feb. 4 in Circuit Court of Orange County, not far from where Sorenstam and Esch live in the gated community of Lake Nona. The suit has been sealed, and no other details were available. To read the full article, click here.
Changes to Federal Tax Law And Its Effect Upon Child-Related Tax Benefits
Recent changes to federal tax law create a "Uniform Definition of Child" that is effective beginning in tax year 2005. The new law creates a uniform definition of qualifying child for the tax benefits that relate to children. Under the new law, a qualifying child must meet only three tests, relationship, residence, and age:
1. Relationship: The child must be the taxpayer's son, daughter, stepchild, sibling, stepsibling, or a descendant of such individuals. Foster children placed with the taxpayer by authorized placement agencies would satisfy the relationship test. If the child is the taxpayer's sibling or stepsibling or a descendant of any such individual, the taxpayer must care for the child as if the child were his or her own child.
2. Residence: The child must live with the taxpayer in the same principal place of abode in the United States for over half the year. Military personnel on extended active duty outside the United States would be considered to be residing in the United States. As under current law, the taxpayer and child are considered to live together even if one or both are temporarily absent due to special circumstances such as illness, education, business, vacation, or military service.
3. Age: The child must be under the age of 19, a full-time student if over age 18 and under age 24, or totally and permanently disabled. However, as under current law, qualifying children (who are not disabled) must be under age 13 for purposes of the child and dependent care tax credit and under 17 (whether or not disabled) to qualify for the child tax credit.
A tie-breaker rule similar to the current EITC tie-breaker applies if more than one qualifying taxpayer claims a benefit for the same child.
This new rule affects the following tax benefits.
* The dependency exemption.
* The child tax credit.
* The earned income credit.
* The dependent care credit.
* Head of household filing status.
Employers May Now Charge for QDRO Approval
In a little noticed change, the US Department of Labor issued a "field assistance bulletin" in May, 2003, that permits employers and administrators of ERISA-regulated defined contribution retirement plans (such as 401(k) plans) to charge QDRO processing expenses. The Wall Street Journal recently reported that one large plan administrator (Fidelity Investments) now charges for QDROs for 40 of its 200 plans for which Fidelity processes QDRO documents. The decision to charge is made by each individual employer.
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