Archive for the 'Family Law' CategoryPage 2 of 20

The Future of Same-Sex Marriage May Be up to the Supreme Court

The states have an enormous amount of leeway when it comes to marriage. On occasion, however, a state’s laws regarding marriage may be called into question, requiring a high authority to step in and offer a well-reasoned answer. For example, Virginia outlawed interracial marriages for many years, until someone challenged the law and eventually had it overturned in the landmark decision of Loving v. Virginia.

same-sex marriageAs coincidence would have it, Virginia has recently become the third state to ask the Supreme Court to weigh in on their gay marriage law. Joining Utah and Oklahoma, and undoubtedly more in the coming weeks, Virginia’s Attorney General is essentially asking the Supreme Court to answer one highly controversial question: do homosexual couples have a fundamental right to marriage?

The Supreme Court is under no obligation to hear any of the cases. Even if they do decide to weigh in, there is no real deadline facing the Court. Notwithstanding, the situation presents a daunting situation; nine unelected justices may ultimately be responsible for ending the most tumultuous debate in decades.

For proponents of gay rights, that may not be such a great thing.

Earlier this year, same-sex marriage made news when a California ballot initiative attempted to define marriage as between a man and a woman. Reviewed by the Supreme Court, the appeal was shot down on jurisdictional grounds. What that means is that the court never really, officially reached the merits of whether same-sex couples can marry, but rather simply said the people challenging it didn’t have a legal leg to stand on.

In another victory for supporters of same-sex marriage came about in 2013, when the same Court held the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman, is invalid, because the law offered no legitimate purpose that outweighed the discriminatory, damaging effect DOMA had on same-sex couples. The Court reasoned that “by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The initial inclination many may have is that the Court will make the same decision with respect to states. What makes this time different?

Unlike DOMA, which is a piece of congressional legislation, these laws are all unique to their respective state. As such, they are written differently, and may have provisions that could potentially satisfy the Court’s requirement for a legitimate purpose. Remember, DOMA was deemed to have no legitimate purpose, and, similar to bans on interracial marriage or same-sex marriage at a federal level, there also may not be any legitimate purpose of any of these states laws. However, and regardless of anyone’s personal beliefs, the devil is in the details with respect to statutory construction. With so many different state laws the Supreme Court will have to choose form, it’s possible they may make a ruling based on the best written – or most poorly written – law that appears before them.

Which leads to the next issue: variety. With the copious amount of appeals reaching the Supreme Court’s door, the justices will have the option of picking one (or potentially several) cases on which to base their ruling. While variety may be a good thing, as it ultimately gives the justices more freedom to pick the best case to support their legal reasoning, it’s also not such a great thing for that exact reason – if the Supreme Court wishes to limit the impact of the decision, they can. If they want the decision to have the broadest impact as possible, they can do that too.

So, for example, the Supreme Court may only decide on Virginia’s case based on the unique challenges Virginia is facing, and decline to hear the other cases. In doing so, they could indirectly have an impact on every same-sex couple, without actually ever having to reach a final decision on the merits.

Finally, justices are not keen on recognizing new rights. They may not necessarily have to with respect to gay marriage if they simply do not find a legitimate purpose in any of the state’s laws. What that does, however, is perpetuate and stretch out the same-sex marriage battle, making each challenge and each appeal it’s own little constitutional rule instead of one, overarching definitive rule. That will result in a patchwork of ideology, legal reasoning, and doctrinal law, and ultimately confuse the issue even further.

It is entirely possible none of this may happen. The court may decline to hear any case until there is more of split between circuits, and they may make another victory or offer a crushing defeat for same-sex marriages. As more states appeal, one thing becomes clear: they’ll have to do something, and whatever that something may be, it seems to have more potential to further promulgate and muddle same-sex rights than it does to clear things up.

3 Famous Cases of Pet Inheritance

Through pet trusts or other legal arraignments, pets these days often find themselves the benefactors to lavish fortunes. In extreme cases, pets end up owning millions under the careful supervision of special caretakers and trustees. Here are portraits of three famous animals who received much more than simple love and affection from their past owners.

Gunter IV1. Gunther the Fourth: Countess Protégé and the Richest Dog in High Society

Meet Gunther the Fourth, whose principal merit is one and only – he is an offspring of Gunther the Third, a pure blue blood German shepherd with proper European upbringing and a taste for aristocratic luxury: multiple chamber maids and chauffeurs. By virtue of his semi-royal pedigree, Gunther the Fourth inherited millions from his honorable father, Gunther the Third, who passed away soon after coming into the money himself.

Since then, the Junior’s estate has suspiciously tripled to the reported $373 million. But Junior’s tastes for lavish extravagance are only begging to unfold, and his purchase of a Miami villa from Madonna testifies to this Alsatian’s hedonistic chutzpah… In fact, Junior’s nouveau riche mannerisms should cause grave concerns in the Alsatian high society. Is Junior fully deserving of his “Gunther the Fourth” sobriquet, or is he a Prodigal Son without a return ticket? Is he a canine incarnation of Henry Fielding’s Tom Jones who’d make Earl of Chesterfield’s blush?

Mystery lurks behind Gunther’s family history. As is often the case with high society’s wheel of fortune, a woman’s hand figures surreptitiously into the drama. Junior’s patrilineal gambit – his father’s death followed by Junior’s swift ascension to canine Olympus – has its matrimonial roots. The invisible hand is of none other than German countess, Carlotta Leibenstein, who by passing millions to Senior Gunther, created the extravagant Junior of today – Gunther the Fourth, the richest and the luckiest dog in high society.

2. Tinker the Cat: From Bastardly Origins to Middle Class Virtue

More mystery and drama surrounds the story of trials and tribulations of one poor Tinker, also known as “Tinker the Cat,” “the Puss,” or “Stray Moggie.” Yes Tinker is a cat, and the luckiest living cat indeed. However, Tinker’s life was no catwalk. Of humble origins, Tinker was facing penury, homelessness, and an otherwise rather mice-less life. However, he found a widow and was saved for good by her kindness and subsequent death.

Tinker’s incredible faire la culbute caused much uproar in the press; hence “the Puss” and “Stray Moggie” epithets prompted by jealousy and lack of empathy for Tinker’s sudden change of fortune: his coming into possession of a three-bedroom house and a comfy trust for cat-like trifles. True, Tinker is no royal Gunther. But isn’t the poor chap finally getting a well-deserved and long-sought for bourgeois comfort? The bar sinister on Mr. Tinker’s shield as well as the shortcomings of his unfortunate past do not detract from Tinker’s honor – he is as much a British citizen as any other cat in the Albion.

But wait, Mr. Tinker’s estate comes with some conditions. Apparently the widow was cognizant of Mr. Tinker’s bad habits – traumas of his post-pubescent outdoor feline past – that may occasionally set Mr. Tinker’s moral compass awry. When wild feline instincts overtake Tinker, he could be found roaming neighbors’ roofs in search of risqué encounters, meowing bawdily, and purring incessantly.

What if Tinker stumbles upon the roadblock of a midlife crisis, abandons his respectable settled ways, and becomes a stray tomcat again? Well, the poor chap shall be undone: provisions in the widow’s testamentary documents will disinherit the ungrateful villain. So, puff and purr Mr. Tinker as long as you keep that inside wild feline under tight control! For now, Mr. Tinker carries as a true gentleman: he lives in a peaceful union with a single mom cat taking care of her and her young kitten…purr…

3. Who Flew Over the Cuckoo’s Nest: The King of Pop’s Chimpanzee Institutionalized

Yet, not every story has that cheesy Hollywood happy end, even if it’s the life story of the luckiest protégé of the rich and famous.  If you ever visit the Center for Great Apes, you may be able to spot good old Mr. Bubbles, who is quite the chimp of a fellow. Yet Mr. Bubbles’ bubble has been totally burst. The rightful owner of a share of Michael Jackson’s fortune, the chimp lives in unfortunately humble circumstances as a common inmate of a “sanctuary” facility.

Mr. Bubbles was once Michael Jackson’s favorite and was poised to inherit one million dollars from the King of Pop. What happened to Bubbles? Why did he fall into this dark monkey chasm without even being disinherited? Michael Jackson’s will explicitly provides for Bubbles’ “secure long-term future.”  Answers are nowhere to be found…. We can only hope that Bubbles will be restored in his rights and will come into his rightful inheritance.  After all, that was the King of Pop’s last will.

Incoming search terms for the article:

Proposed Child Spanking Law in Kansas Would Have Been a Disaster

Child Spanking Law Proposed by a Kansas State Representative

Anyone remember when parents and teachers spanked kids? Last week, Kansas State Representative Gail Finney proposed a bill which would have explicitly legalized spanking children. The bill has since died in committee, but given that 81% of Americans believe spanking is sometimes appropriate, the issue is bound to come up again.

Child Spanking LawsOf course, Kansas has allowed spanking children before. However, spanking was legal in common law, or law as understood by courts. Child spanking was not formally written down in statutes by lawmakers. Last week’s bill would have declared that “up to ten forceful applications in succession of a bare, open-hand palm against the clothed buttocks of a child and any such reasonable physical force on the child as may be necessary to hold, restrain or control the child in the course of maintaining authority over the child, acknowledging that redness or bruising may occur on the tender skin of a child as a result.” “Child” would have included “a person over the age of 18 who is enrolled in high school.” More importantly, the bill would have allowed parents to give permission to school authorities to spank their child.

As mentioned before, 81% of Americans claim they believe spanking is appropriate. Interestingly, 31 states ban or limit corporal punishment (child spanking). The scientific basis for this political support rests on shaky grounds. In 2010, Professor Gunnoe of Calvin College concluded that adults who recall being infrequently hit were better adjusted than adults who didn’t remember being hit. In 2012 though, the Monitor on Psychology reported that harsh punishment could lead to “increased aggression, antisocial behavior, physical injury and mental health problems.”

Imagine If Kansas Had Actually Passed the Child Spanking Law…

So what’s the big deal about writing a rule down? There are two problems when lawmakers try to write down court recognized rules.

First, a poorly written law can wreck all kinds of chaos. Under the proposed spanking bill, children could give school personnel the authority to spank children, even if the child is 18. When a child turns 18, however, the child is a legal adult. Parents cannot give school personnel the authority to spank their adult child because parents would no longer have the authority to grant that kind of power.

Politically, this provision of the bill would have been a disaster. The Constitution gives 18 year olds the right to vote. Any politician who allows government workers to spank their constituents would not be in office for very long. Allowing school officers to spank any high school student could have lead to very poor publicity. Imagine a 52-year-old male teacher spanking a 16-year-old woman.

Second, this bill was not the law child spanking advocates were waiting for. By codifying one method of child spanking, the law would have precluded other forms of discipline. Representative Finney’s bill would have legalized “bare, open-hand palm against the clothed buttocks of a child” only. Presumably, other types of punishment would not have been legal.

Representative Finney considered this an upside. The line between child abuse and child discipline would have been better defined. However, limiting child spanking to “bare, open-hand palm against the clothed buttocks of a child” ignores many possible circumstances. Some children are very tough and barehanded slapping would not be very intimidating to them. On the other end of the spectrum, this bill would have permitted bruising as a result of spanking. Some people consider bruising a sign of abuse.

Representative Finney might have had the best of intentions, but courts need flexibility to judge specific cases. Kansas is fortunate that this bill ended in the scrap heap.

Incoming search terms for the article:

Are Pet Trusts Valid?

Can I use a trust to leave money and property to my pets? 

Let’s face it, it’s true: a dog is a man’s best friend. Unlike humans, dogs will not ignore your calls or ask you for money. Some dogs are even completely satisfying substitutes for babies. So naturally, people often want to provide for their pets when they die. A pet trust is common used for this purpose.

Pet TrustAre pet trusts valid? In some cases, the courts have ruled that pet trusts to be a waste of resources. However, even if a court reaches this decision, it will often still honor the decedent’s wishes, but will simply reduce the trust amount. For example, in 2007, hotel heiress Leona Helmsley left her dog $12 million and the judge reduced it to $2 million.

On the other hand, Tennessee Courts have held that all pet trusts are valid so long as the decedent was of sound mind and disposing memory when he made the trust. For example, when Leon Sheppard Sr., a retired businessman, died in 2012, he left $250,000 and a 4,270-square-foot home to his two cats, Frisco and Jake. The court allowed the pet trust. But once the cats die, any remainder of the money will go to Sheppard’s relatives.

Although it may be odd to leave such large sums of money to pets instead of family, a pet trust ensures that the decedent’s pets will not be abandoned. And then after the pets pass, the remainder of the trust will go to family members.

Incoming search terms for the article:

Judge Strikes Part of Utah’s Polygamy Ban

Never underestimate the cultural influence of reality TV. The popular show “Sister Wives,” for example, recently led to a significant change in the polygamy laws of Utah.

Sister Wives is about a man, Kody Brown, his four wives, and his 17 children. The Brown family are fundamentalist Mormons who claim polygamy is part of their religion, although the Church of Latter Day Saints formally disavows polygamy today.

Sister Wives Polygamy LawThe marital status between the four women and Brown is a little more complicated than it appears at first. Brown only has a marital license with his first wife, Meri. Brown has a common law marriage with Christine and Robyn, both of whom he has been “married” to for 16 years. Brown and his latest wife, Janelle, recently held a marriage ceremony together, but Brown does not hold a marital license with Janelle. Janelle has two children from a prior marriage.

Brown challenged Utah’s polygamy ban in 2011, shortly after “Sister Wives” began broadcasting on the airwaves. Utah, like most states, prohibits individuals from holding more than one marriage license or holding a marital license with more than one person. However, due to the state’s history, Utah goes further than most states by criminalizing “cohabitation” with a person or persons which resembles a marital relationship.

Judge Waddoups, the trial judge presiding over the case and a George Bush appointee, ruled that the cohabitation clause was unconstitutional. Specifically, the judge held that the cohabitation law violated free exercise of religion and invaded the privacy and liberty rights of the Brown family. However, Judge Waddoups left the other half of Utah’s polygamy law untouched. Although it is now legal to live in Utah with a mistress as a spouse, the state won’t recognize more than one spouse.

Should polygamy be recognized by the state if all parties consent to the relationship(s)? Although proponents of same-sex marriage will deny this case has anything to do with their movement, Judge Waddoup’s 91-page decision is a product of the homosexual rights movement. Indeed, Browns’ attorney relied on the Supreme Court case which struck down homosexual sodomy laws when arguing that the cohabitation law should be overturned. Judge Waddoups compared polygamy to “an unmarried man who chooses to have intimate relationships with three women.” Although the state would not sanction the unmarried man’s relationships, the state would not punish the man, or the women, for engaging in such relations.

This is an argument for decriminalizing polygamous lifestyles, but it still is not an argument for recognizing polygamy. State recognition of polygamy will not happen, although social conservatives are still wrong to argue that ‘traditional’ marriage or protection of children is the reason. Unlike same-sex marriage, marriage with multiple partners would require complete renovation of our legal system, especially if polygamous marriages could be recognized as common law marriages. It is easy to replace the word “husband” or “wife” with “spouse.”

For polygamous relations to be recognized by the state, federal tax law, estate law, and spousal communication privileges would all have to change to make room for multiple person marriages. Completely re-engineering our legal system to accommodate polygamy would be challenging, to say the least.

Incoming search terms for the article: