Archive for the 'Family Law' Category

Can You Get the Benefits of Divorce Without Being Married?

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If you’re a normal American adult, it’s highly likely that you know at least one couple who are unmarried and live together, routinely intermingle their finances, and maybe even have children. And chances are you don’t think that this is anything unusual.

For most purposes, these couples can enjoy the legal benefits of marriage, even if they have to jump through a few hoops that a married couple would not have to (setting up power of attorney to make medical decisions for one another, for example).

However, one thing that unmarried couples in the United States generally cannot do is get divorced – where their relationship is legally dissolved, and the assets acquired during the marriage are distributed between the former spouses in the most fair and equitable way possible.

This is also generally true in most other Western countries, such as Canada, for example. But things might be changing in our neighbor to the North, and perhaps in the United States, as well. At first blush, ending a long-term, cohabitating, but unmarried, relationship seems like a relatively simple matter: the couple breaks up, and one of them moves out. There are no messy court proceedings, and the former lovebirds have to agree amongst themselves about how their stuff is divided up. If the couple had children, the only legal dispute that’s likely to come up is about child support.

However, the former girlfriend of a Canadian billionaire, with whom she was in a relationship for about 10 years, got an order from a court in Quebec requiring her former partner to pay her spousal support, on top of the child support he already pays. Her argument is essentially that their relationship was identical to marriage in all but name, and that treating it otherwise amounts to discrimination against unmarried couples.

Now the government of Quebec is appealing that decision to the Supreme Court of Canada, arguing that it interferes with the rights of individuals to enter into the marital/domestic arrangements of their choice.

So, what does this have to do with the United States? Well, whatever a court in Canada rules, it will obviously have no direct bearing on couples in any other country.

However, in some U.S. states, there are already legal arrangements which are strikingly similar to the one that the plaintiff in this case seeks to establish. Most notable are so-called “common law marriage” and “palimony.”

Common law marriage is only recognized in a minority of U.S. states, because it can create problems that will be discussed shortly. In the states that do recognize it, a common law marriage is essentially a marriage created by operation of law, based on the couple’s circumstances, rather than the couple actively entering into a marriage. While the exact requirements vary between states, in order for a common law marriage to be established, the couple needs to have lived together for a certain period of time (usually several years), and behaved in all ways as a married couple during that period, by commingling their finances, holding themselves out as husband and wife, and having and raising children together.

When the relationship ends, or one of the partners passes away, the legal consequences can be the same as if the partners were married. For example, if a common-law marriage ends, one partner may seek spousal support (alimony) from the other partner. Of course, a prerequisite for this is that they were married in the first place, which requires them to go to court and show that their relationship had all of the required characteristics of a common-law marriage.

Likewise, if one of the partners dies, and did not leave a will, their assets will usually first go to their spouse, if they have one. This can lead to disputes between the decedent’s living partner, and the decedent’s other relatives, over who should inherit his or her property. In that case, a court would also have to determine whether or not a common-law marriage existed between them.

Basically, this question rarely comes up during the relationship, so courts are forced to resolve the issue after the fact, which can be very expensive and time-consuming for everybody involved.

For that reason, many states have done away with common law marriage, meaning that they will only recognize a marriage that follows all the ordinary formalities (obtaining a marriage certificate, having an officiated ceremony with witnesses, etc.) in order for their relationship to ever be classified as a legal marriage.

With that in mind, it actually makes a lot of sense that the government of Quebec would want to prevent a similar situation from arising: common-law marriage seems like it’s a lot more trouble than it’s worth, which is why the trend is to abolish it in the United States.

On top of that, they’re probably also right that it could interfere with one’s right to enter into their preferred type of marital relationship. The knowledge that they might end up on the hook financially for all the obligations of marriage, even if they never thought they were married, could deter people from entering into long-term relationships.

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Mother Spends Night in Jail for Unilateral Decision to Baptize Son

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Family law issues are often highly emotional and heated, but they don’t usually result in jail time. Stephanie or Stacy Miller, however, spent a night in prison after a Tennessee judge found her in contempt of court for allowing her 12 year old son, Caleb Miller, to be baptized without his father’s permission.

This seeming excess of judicial authority began two years ago, when Stacy and Stephen Miller finalized their divorce. Their divorce agreement included a promise not to make decisions about their son’s religious upbringing without the consent of the other.

In 2011, Caleb agreed to be baptized at his mother’s church. Although his father attended the ceremony, Stephen Miller insists that the baptism occurred without his authorization. Judge Swann, the judge in charge of the case, noted that Stacy Miller, the son’s mother, had failed to respond to mediation attempts prior to the ceremony and handed her a ten day jail sentence, reduced to one day after the criminal contempt of court charges were dropped, though the civil contempt charge remained. Caleb Miller watched as his mother was lead to the local jailhouse in handcuffs due to the claim made by his father.

On its face, the story seems like judicial over-extension. Although family law typically tries to respect both parties in a divorce, the best interests of the children govern any case involving a child. It is difficult to agree that a child watching his mother go to jail through his father’s actions be in the child’s best interest. Stephen Miller has made remarks which display a certain amount of disdain for his ex-wife’s church. The court has no right to enforce that opinion, especially if that opinion might not be in the child’s best interest. It would be a violation of the Federal Constitution’s establishment clause, a clause forbidding the government from favoring one religion over another. Furthermore, Caleb, like all children, is a person with desires and wishes independent of his parents. If Caleb consented to the baptism, then his independent wishes should override any contractual agreement which treats him like a commodity. The child should know what is best for himself, not his parents and certainly not a judge.

There are, however, other factors to consider. Each parent belongs to a different church and wishes to see Caleb make the best possible decision between the two institutions.  Although it is true that enforcement of the father’s view based on its religious roots would be a violation of the Constitution, it would also be a violation of the same document and the same clause if the court enforced the mother’s choice.  The court enforcing Caleb’s baptism looks like an establishment of religion just as much as opposing the baptism would be. The judiciary, however, can enforce a violation of contract agreement, which is exactly what Judge Swann did. The outcome might be the same as an endorsement of the father’s views, but for completely different reasons. Ruling on the contractual aspect of the conflict is the only legal ruling. Moreover, it is the only fair ruling as the law cannot make a distinction between different churches.

As to Caleb Miller’s independent interests, it is true that he is a person separate from his parents and that the law should treat him as such. However, Caleb Miller is still a minor. Although some minors are incredibly mature for their age, society recognizes that some activities should not be undertaken until a certain age for mental maturity to develop in order for proper consent to be established.

I don’t share the Miller’s sense of religious devotion, but I will trust that a commitment to God is an important commitment and a heavy responsibility. Given this context, baptism might be comparable to marriage, a ritual which, in Tennessee, cannot be undertaken by a minor until the age of sixteen. Even at sixteen, however, parental consent is required until the age of twenty-one.

Comparing baptism to marriage might seem like a stretch, but the emphasis the Millers place on baptism makes the comparison significant if not valid. If Tennessee doesn’t permit Caleb Miller at his age to commit his life to another person, then it is doubtful that Tennessee should allow Caleb Miller to commit to a god on his own. Caleb Miller, as a minor, cannot make such important decisions on his own. His parents, his father as well as his mother, represent his best interests. Although the divorce agreement fractured the marriage of his parents, it still governs the parent’s conduct towards their child. Judge Swann may not gain any popularity for his decision regarding Caleb Miller and his parents, but it was a necessary one for an impartial representative of the law to make.

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First World Problems: Pet Custody Disputes on The Rise

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I’m sure you’ve heard about child custody disputes before. After all, when a couple has children, and then gets divorced, they have to decide where the children will live, and the terms under which the non-custodial parent will be able to visit them. A family law court will craft a child custody arrangement that it believes is in the best interests of the child.

And courts generally assume, in the absence of compelling evidence to the contrary, that it’s in a child’s best interest to have both parents involved in his or her life. For that reason, even if one parent is given sole custody, the other parent will be usually be given visitation rights.

But according to an interesting story in the ABA Journal, another type of custody dispute is becoming increasingly common in the United States: pet custody.

I have a feeling that opinions on this story are going to be polarized: you either think that this is an example of our society’s completely warped priorities, proving once again that we’re in decline. Or, you might view this as a positive development: the fact that we value the companionship of animals almost as much as people indicates that we’re becoming more compassionate as a society.

Whatever your view on this issue, there’s no doubt that in Western society, particularly the U.S., we’ve become increasingly attached to our pets in recent decades, and that we treat them increasingly like children. When a couple moves in together or gets married, the decision to get a pet is often treated with the same seriousness as the decision to have a child, and getting a pet together is seen as a huge commitment to the relationship, as well as to the animal itself.

So, it makes sense that if a couple splits up, the emotional connection that the individual partners developed for their pets will not simply go away.

However, the law does not treat pets like children. Legally, animals, including pets, are property. So, as far as the law is concerned, a dispute over custody of a pet makes about as much sense as a dispute over “custody” of a television or a chair. When property is divided up between a couple going through a divorce, there may be disputes over who gets what, but chances are you won’t see anyone trying to get the right to weekend visits with their refrigerator.

But in an increasing number of cases, family judges have begun awarding joint custody of pets to couples who have split up.

While this may seem silly to some, I don’t see any reason why courts, when called upon by the parties to do so, shouldn’t be able to resolve pet custody disputes. And there’s no reason the law needs to be significantly changed to allow this. I would suspect that the goals of the party could be accomplished within the framework of existing property law. So, if you’re concerned about the law being changed to treat animals more like people, and the slippery slope that might lead us down, fear not.

After all, an arrangement of “joint custody” for pets could be legally treated as joint ownership of a piece of property. And the parties should be able to agree amongst themselves about the details of visitation.

Of course, if we take the “pets as children” concept further, one can imagine, in the not-too-distant future, a person being awarded sole custody of a pet, and then demanding that a court require the non-custodial “parent” to make support payments, similar to how we require non-custodial parents to pay child support.

This, I think, would be taking it too far. Don’t get me wrong, I love animals. But requiring a divorcee to pay his or her former spouse “pet support” would effectively abandon the animals-as-property model that our legal system operates under. Now, if you’re a very strong believer in animal rights, you may be happy with the law treating animals as something other than property. However, I think that the current system we have works fairly well.

We have laws against animal cruelty, and our society generally doesn’t tolerate such cruelty. Furthermore, there’s no getting around the fact that humans use animals to their own ends, whether it’s for food, medical testing, or any number of other uses.

So, while I completely understand the sentiments of couples who make an issue over pet custody, and I have no problem with courts resolving those issues, I think they should be handled in the framework of existing property rights.

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Facebook Rant Held to Violate Protective Order

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A reminder: you shouldn’t say anything online that you wouldn’t say in person.

A court has held that a man who wrote a rant about his ex-wife on his Facebook wall violated a protective order requiring him to stay away from her. The court told him that he had to write an apology on Facebook, or go to jail for contempt of court.

Apparently, the man was so incensed about how his divorce case went and the child visitation arrangement that it crafted, that he felt the need to vent his feelings on Facebook. As mentioned earlier, the court had issued an order requiring him not to have any contact with his ex-wife. Apparently, the order prohibited him from doing anything that would cause his ex-wife to suffer “mental abuse, harassment, annoyance, or bodily injury.”

However, the article I linked to mentions that he had blocked his wife from viewing his Facebook page, and that she apparently had to have someone else log in for her to see it. This suggests that she had to actively seek out the offending wall post.

Now, regardless of what this man said about his ex-wife, it’s pretty clear (by the fact that he had blocked her from viewing his Facebook page) that he didn’t intend her to read it. And even if he did, the court’s order – requiring that he remove the post and write an apology, or go to jail, raises serious free speech issues.

It’s important to note that, in most cases, the government compelling a person to say something is just as constitutionally suspect as preventing them from saying something.

But in this case, the court did both: ordering the man to stop saying one thing (by taking down his post), and compelling him to say something against his will (by ordering him to write an apology).

I’m completely in favor of giving courts authority to issue protective orders designed to protect individuals from actual violence or harassment. However, this seems to be going too far. Regardless of whether or not this guy was a good husband, or even a good person, or what horrible things he said on Facebook, our right to freedom of speech is sacred, and the government cannot (and should not be able to) interfere with that right without an extremely compelling reason.

In this case, the ex-husband wrote something on his Facebook wall, which would only be visible to people who choose to associate with him on some level (they chose to be his Facebook friend, or take other action that allowed them to view what he writes), and the fact that the only person who might conceivably be harmed by his words (his wife) was actually blocked from viewing it, it’s pretty hard to argue that the court had a compelling reason to take the action that it did.

After all, there’s no indication that he threatened to harm his ex-wife, or intended to cause her emotional distress – or even intended for her to read the post.

I’m pretty sure that if this order is appealed, it would not hold up to scrutiny under a First Amendment analysis, and I don’t think it should. The test of our commitment to free speech is the extent to which we protect speech that is completely distasteful to the vast majority of the population. After all, when it comes to speech that doesn’t offend anyone, or with which nobody disagrees, constitutional protection isn’t needed. The whole point of the right to free speech is to protect speech that some people would want to censor.

Despite the fact that this guy’s conduct is probably protected by the First Amendment, I will concede that he probably shouldn’t have done it. And this case illustrates the fact that you shouldn’t say anything online that you wouldn’t be comfortable saying to everyone you know. This is especially true in situations where emotions can run high, such as during a contentious divorce.

Family lawyers have begun using electronic communications in text messages and on social networks as evidence in divorce and child custody cases.

While this speech may be protected by the First Amendment, and therefore not subject to criminal or civil penalties, it can often be used as evidence that can hurt a party’s case. For example, text messages have been used to prove that a husband was committing adultery, thereby voiding a prenuptial agreement. In a child custody dispute, a father whose drinking habit had raised concerns about his fitness as a parent testified that he had been sober for months. His testimony was very convincing, and he even got his AA sponsor to vouch for him. Then, he posted photos of himself on Facebook, which showed him drinking. As you might expect, he lost the case.

Just remember: the Constitution protects your right to say just about whatever you like, in whatever forum you like. It doesn’t protect you from the practical consequences of your speech, however.

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Washington State Likely to Legalize Same-Sex Marriage

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The Washington State Senate has just passed a bill that would legalize same-sex marriage in that state. The state’s governor has already stated that she plans to sign it.

If this bill becomes law, Washington will be the seventh jurisdiction in the U.S. to recognize same-sex marriage. The others are currently Massachusetts, Vermont, Connecticut, New Hampshire, Iowa, New York, and Washington, D.C. In addition, the state legislatures of New Jersey and Maryland are currently considering bills that would legalize same-sex marriage, both of which are thought to have a pretty good chance of passing.

Anyway, after passing the State Senate, the bill must go to the State House of Representatives, which is expected to easily pass the bill. But once this happens, and the governor signs it, it still has a long road ahead before actually becoming law.

As in every state that has a voter initiative process, and has also legalized same-sex marriage, opponents of the law are pledging to gather signatures to put the issue on the ballot, and present it to voters for a final decision. Opponents of same-sex marriage have until June to gather enough signatures to get a referendum onto the November ballot. Apparently, the law will go into effect, at the very earliest, in June, if and when the supporters fail to get enough signatures for the referendum.

If they do get enough signatures, the law will be on hold until the November election, and the issue is decided by Washington voters once and for all. Many opponents of same-sex marriage are optimistic that the law will be rejected by Washington voters. They accurately point out that every state that has voted on same-sex marriage has rejected it. Early polls, however, suggest that Washington is well-situated to be the state that breaks that streak. According to the latest poll, 55% of Washington voters would vote in favor of same-sex marriage.

I’ve said time and again that I strongly support marriage equality, and I’m heartened to see that, over the last year or so, momentum has strongly shifted in favor of nationwide legalization of same-sex marriage. Of course, it will be at least years (and more likely decades) before same-sex marriage is legal nationwide. However, with the repeal of Don’t Ask, Don’t Tell taking full effect (and completely without incident), and at least one nationwide poll suggesting that a slim majority of Americans support same-sex marriage, I’m confident that full marriage equality will come to the United States in my lifetime.

In the meantime, however, marriage equality will progress on a state-by-state basis. However, if Washington voters approve marriage equality (being the first voters in the U.S. to do so), it will probably be remembered as a watershed moment, and embolden supporters of marriage equality in other states to attempt to bypass courts and state legislatures, putting the question of same-sex marriage directly to the people, and perhaps finding a more receptive audience than ever before.

However, whenever you’re discussing same-sex marriage in the United States, there’s constantly an elephant in the room: the federal Defense of Marriage Act (DOMA).

DOMA is a federal law that was passed in 1996, and remains in effect today. It prohibits the federal government from giving any legal recognition to same-sex marriages, even if they were performed by states that recognize such unions. While this law is currently being challenged in court, the process is going to take a while, and the outcome is uncertain. Furthermore, given the political climate in D.C., it’s highly unlikely to be repealed any time soon.

As long as DOMA is in effect, same-sex couples, even if they’re legally married in a state, cannot receive any of the benefits that the federal government offers to individuals simply by virtue of being legally married.

These include several financial benefits, including the right to jointly file federal income tax returns, spousal benefits for federal employees (including healthcare, life insurance, etc.), and survivors’ benefits for the spouses of military service members killed in action. All of these federal benefits are, by law, completely unavailable to same-sex married couples.

DOMA is currently being challenged in court. Most federal court challenges to this law stop short of arguing that there is a constitutional right to same-sex marriage. Instead, they argue that the federal government has traditionally deferred to the individual states on matters of family law, including the recognition of marriage. So, the federal government should have to defer to the states on same-sex marriage, as well. If successful, the federal government would have to recognize same-sex marriages legally performed in a state. But such a ruling would not compel every state in the country to perform same-sex marriage. This path probably has a better chance in the Supreme Court that an argument that there’s a nationwide constitutional right to same-sex marriage.

In any case, it looks as if Washington is going to be yet another stepping stone on the road to full marriage equality. However, the legal situation remains extremely complicated, and raises some interesting constitutional questions dealing with federalism and equal protection. You can count on continuing coverage of these issues right here as new developments come.

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