Archive for the 'Family Law' CategoryPage 2 of 29

Judges Don’t Really Want to Decide Your Divorce Case for You

Deciding to go down the path of divorce isn’t something couples plan for and, once it happens, it isn’t an easy process. One common misconception is that your divorce case will automatically be decided for you.  Unfortunately, most couples find, instead, it can be a long grueling process of negotiation between sides.

Many courts require mediation because judges don’t really want to decide your case for you—they’d much rather a couple come to their own terms. If you can’t come to a mutual agreement on your own or with the help of attorneys, a judge will of course make the decisions for you. However, it may be less than what you were hoping for.

What Can Judges Decide?

A court can make a ruling about most anything asked of it in a divorce case. Although not strictly limited to, below are the most typical issues a court will see in a divorce case.

  • Dividing Property. This can be marital property or individually owned property and the outcome ultimately depends on state law.
    • Dividing Debts. This can be anything from loans, credit cards, and any outstanding bills—marital or individual.
    • Assigning Assets. This goes hand in hand with dividing debts and, again, depends on state law. This can be money contained in bank accounts, houses, vehicles, retirement accounts, personal property, or any other item that has value.
  • Child Custody Issues. Easily one of the most heated and controversial issues surrounding divorce cases. Joint, shared, or sole custody decisions will be made according to law if a couple can’t come to a decision on their own regarding a parenting plan.
    • Child Support Issues. Which parent will be the primary custodian?
  • Granting Alimony. Not every state allows room for a judge to grant alimony. For those that do, some have strict guidelines while others give judges great leeway.
  • Granting Protective Orders. This isn’t an extremely common issue, but it does come up when one spouse feels threatened by the other.

How Will Decisions Be Made?

Of course, decisions may not always seem fair and there’s no single outcome set in stone. Judges will make these difficult decisions based on the specific facts of each case based on the laws and precedent of the state.

Since the issues involved are extremely personal, especially when it comes to parenting decisions, most courts prefer to stay out of it and let the couple negotiate on their own. A good strategy?  Negotiate outside of court.  Go to mediation.  Ask for what you want and expect to meet somewhere in the middle.  Leaving it up to a court could leave you with a bare-boned outcome based on legal minimums that may not always seem fair.

Why Don’t Women Report Sexual Assault?

Sexual assault is the most under-reported crime out there.  It’s believed that roughly only 15-35% of all sexual assaults are reported to the police.  That means that there’s at least 65% more sexual assaults happening that aren’t getting reported.  That’s a staggering number.

According to RAINN, on average, there are 288,820 victims of rape and sexual assault each year in the United States.  How many of those are women?  In 1998, it’s estimated that 17.7 million American women had been victims of attempted or completed rape.  Today, 1 out of every 6 women will be a victim of sexual assault.

It’s impossible to know all the reasons why women don’t report sexual assault because it’s an extremely personal decision. There could be a million different reasons coming from just one person and a million other reasons coming from another.  There are, however, some common themes we see that pop up time and time again.

Women Not Being Treated as an Actual Victim Is One of the Biggest Reasons of Underreporting

It’s no secret that women are often not treated as a victim when it comes to sexual assault and abuse cases.  There’s a lot of attention surrounding the idea that there’s a rape culture prevalent in our society that normalizes sexual violence and blames the victim, which is unfortunately a common theme we see today.

Brenda Tracy, an Oregon woman who often speaks out about her sexual assault case that was mishandled in 1998, summed up her feelings regarding the issue pretty succinctly in a Twitter post:

Everyone wants to know “if you were raped why didn’t you report it?” The real question is “Why WOULD you report it?”

Tracy’s statements came after the release of a Department of Justice report on Baltimore’s police department and their handling of sexual assault cases. At the time of the report, only 17% of the reported sexual assault cases to the Baltimore Police Department resulted in an arrest.  That’s pretty low, so why aren’t more arrests happening?

Within the report, it was found that officers routinely questioned sex crime victims in a way that put the blame on the victims themselves, rather than the assailants.  For example, officers would ask, “Why are you messing up that guy’s life?” and often suggest the victims were lying.  One prosecutor was even caught calling a victim a “conniving little whore” within an email to a Baltimore police officer.  If other police departments are following in the same suit, this suggests arrests aren’t happening because sexual assault victims aren’t believed to be actual victims.

Personal Relationships Are Also a Big Factor

A victim’s relationship with the offender can often have a strong effect on the likelihood of reporting. According to a report done by the Maryland Coalition Against Sexual Assault, of the sexual assaults that are committed by an intimate partner or former partner, only 25% of those cases are reported.

When the offender is a friend or acquaintance, between 18-40% get reported, while when the offender is a stranger, the number increases between 43-66%. Let’s not forget that these numbers are only percentages of the already low percentage of victims that actually do report.

Fear is Another Big One

There’s a number of reasons a victim could be fearful to report a sexual assault. It could range from fear of retaliation (which makes up about 20% of the non-reporters), fear of being shamed by family and friends, fear of the justice system, fear that there’s a lack of evidence, fear of reliving the crime, or fearing that the police won’t do anything to help, just to name a few.

Fifteen percent of non-reporters cited they either didn’t believe the police would do anything or believed the police couldn’t do anything to help them. Often times, sexual assault cases can drag on and on, requiring the victim to continue to relive the crime over and over again.  Even after going through the process of prosecuting an assailant and reliving the experience, lenient sentences are often handed out which only further demeans the severity of these crimes for the victims.

These lenient punishments seem especially prevalent of late. Austin Wilkerson, a University of Colorado-Boulder student, was convicted of sexually assaulting a helpless victim as she drifted in and out of consciousness.  He was only sentenced to 2 years of work release and 20 years of probation—no jail time.  This case received a lot less media attention than the Brock Turner case, another student who received a surprisingly lenient sentence for raping a fellow student.

RAINN reports that out of every 1,000 rapes, 994 assailants walk free. That’s 6 out of every 1,000 sexual predators receiving actual punishments.  To top that off, sexual predators are less likely to see any jail or prison time than any other criminal.  Those stats are extremely disturbing.  It’s no wonder victims who don’t report fear it wouldn’t do anything to help.

Employment Rights in a Religious Work Place: The Ministerial Exception

Kate Drumgoole, New Jersey native, loved her job. She worked for Paramus Catholic High School as a guidance counselor and women’s basketball coach.  She also loves her wife, a fact the school was unaware of until recently.  Upon learning of Ms. Drumgoole’s marriage, the school fired her.  Ms. Drumgoole has since filed an employment discrimination lawsuit against Paramus.

Employers are forbidden from taking adverse employment action, such as firing an employee, based on a protected class like gender, race, or national origin. Sexual orientation, while not considered a protected class in every state, is a recognized protected class in New Jersey and has been considered a protected class by the Equal Employment Opportunity Commission for several years now. However, Paramus argues that they are protected by their First Amendment freedom of religion in firing Ms. Drumgoole for not living according to the tenets of their faith.  In her lawsuit, Ms. Drumgoole contests this allegation, pointing out that Paramus employs faculty members who are divorced or violate other Catholic tenets.

Ms. Drumgoole is not alone; more than 50 people have been fired or had employment offers rescinded by religious institutions for similar reasons since 2010. An Indiana Catholic School recently fired a teacher of purely secular topics after it came to her attention she used in vitro fertilization to become pregnant—calling her a “grave immoral sinner.”  An Ohio woman was fired by a religious institution earlier this year over being artificially inseminated. In Florida, a woman was fired for becoming pregnant outside of marriage.

Discrimination based on pregnancy is well established as gender discrimination, a federally protected class throughout the U.S. So how can religious institutions make employment decisions based on such clearly discriminatory reasons without fear of lawsuits such as Mrs. Drumgoole’s?  The answer lies in the interplay between employment rights and freedom of religion—the ministerial exception.

The Ministerial Exception and the Hosanna Case

To preserve the separation of church and state, as well as the free exercise of religion, employment law has a carve out for religious institutions, allowing them to favor those who share their beliefs. The Ministerial exception is so named because the employees who typically embody this carve out are church minsters. The exception is an affirmative defense—it must be proved by a religious employer seeking its refuge—which has historically been interpreted to allow discrimination on the basis of religion, but not as a loophole to any neutrally applied valid law. It specifically wasn’t generally considered an exception to non-religious discrimination.  This changed with the 2012 Supreme Court case which first recognized the ministerial exception—Hossana-Tabor Evangelical Lutheran Church v. EEOC.

The case was brought by Cheryl Perich, an ordained teacher at a Hossana who went on disability leave after she was diagnosed with narcolepsy. After six months leave, Hosanna asked Ms. Perich to resign.  Ms. Perich refused and threatened a lawsuit for violation of the American’s With Disabilities Act which requires employers to make reasonable accommodations for employee’s with disabilities and forbids discrimination based on an employee’s disability.  Hosanna fired Perich, explicitly over her disability.  Perich sued.

Unfortunately for her, the Supreme Court unanimously came out in favor of a particularly strong version of the ministerial exception. They ruled that employees who have a role in conveying the Church’s message and carrying out its mission” are barred by the First Amendment from suing over employment discrimination. This broad protection meant that religious institutions are totally insulated from discrimination lawsuits so long as the person suing them counts as a “minister.” This left the question, who qualifies as a minister.

Perich was ordained, but spent only a small portion of her time teaching anything that had to do with religion. However, the Court certainly felt she qualified as a minister. Unfortunately, the Court was also intentionally sparse on exactly why. They wanted to avoid a clearly delineated test for fear of excluding religions with different traditions. They did make it clear that the portion of time spent with religious duties is a factor, but not a deciding one on its own. However, as an ordained minister in both Hosanna and her own eyes, the Court felt there was little doubt Perich was a minister.

The Legal Landscape After Hosanna

After Hosanna, many have questioned the breadth of the ministerial exception.  The exception has seen some abuse. Catholic schools adding “minister” to every employee’s job description from teachers to receptionists to janitors.  Religious institutions often supplement this argument by making all employees sign a contract agreeing to uphold the tenets of their faith.

The flip side to this potential is the sanctity of church and state. Should a religious institution be legally forced to employ somebody who conflicts with their beliefs? As an extreme example, a synagogue shouldn’t have to employ a Holocaust denier.

The happy medium likely extends the exception more narrowly, to people whose positions implicate primarily religious duties. As it stands, the ministerial exception is extremely broad. The current state of the law bars ministers from bringing any employment discrimination or retaliation against a religious employer, regardless of whether the discrimination is related to religious tenets. As mentioned above, this clarification is a tricky prospect to say the least due to the differences between religions.

The truth is, since Hosanna the courts have done more to expand the exception than limit it.  There are some courts, such as this year’s Fratello v. Roman Catholic Archdiocese of New York, which have applied Hosanna as a balancing factor test looking at whether 1) the school held the employee out to the world as a minister, (2) the employee’s title connoted a religious “calling,” (3) the employee held themselves out as a minister and (4) the employee had religious responsibilities.  However, prior to this case the vast majority of courts have given much more deference to the religious organization’s categorization of an employee.

The cases discussed in the beginning of this article all deal with employees with completely or primarily non-secular duties. Cases like Ms. Drumgoole’s, pitting protected groups and employment discrimination against the ministerial exception, will help winnow down the exception and assist courts in understanding when a religious institution is properly due the protections of the First Amendment. Generally, the Constitution provides rights to protect yourself—not assert those rights as a license to discriminate or diminish the rights of others.

Massachusetts Awards Parental Rights and Paves the Way for Unmarried Same-Sex Partners

One more giant step towards equal rights for same-sex couples as Massachusetts Supreme Judicial Court just ruled that unmarried same-sex couples are entitled to the same parental rights as heterosexual couples.  Regardless of gender, if you’re raising a child together, why shouldn’t you have the same parental rights as every other parent?

The case stems from a same-sex couple, Karen Partanen and Julie Gallagher, who were in a committed relationship and raising two children.  The couple used in vitro fertilization in order for Gallagher to give birth. The couple publicly held themselves out as the parents of the two children, as well as jointly raised the children up until the couple’s separation.  After the separation, since she isn’t the biological mother of the children, Partanen sought to establish parentage in order to obtain legal rights—like visitation and shared custody.

The Age-Old Tradition of 1 Man and 1 Woman as Parents

Massachusetts’ statute only allows a man to be presumed the father of a child born out of wedlock if the man takes the child (jointly with the mother) into their home and openly holds that child out as his own.  Since the statute obviously presumes parentage from the biological mother, Partanen was left with no parental claim simply because she’s of the same sex as the biological mother.   Paid Family Leave

As a result, a probate judge dismissed Partanen’s complaint.  This meant, even though Partanen had been raising these children since each of their births as her own, she couldn’t claim parentage and gain any parental or custody rights.  Partanen, understandably, appealed the decision and the Massachusetts Supreme Court took notice.

Can a person establish themselves as a presumptive parent in the absence of a biological relationship with a child?  This was the question before the court.  Most of the facts of the case were undisputed, that both partners played an important role in raising the children, which no doubt effected the Court’s decision.

If You’re 100% Involved, You’re a Parent

The couple was in a committed relationship, moved out of state together, bought a home together, and ultimately decided to start a family together. It was undisputed that the couple intended to both be the parents of any children that resulted out of the relationship.  Even though unsuccessful, Partanen was  the first partner to undergo in vitro fertilization.  It was only after that point that Gallagher went through the same treatment and ultimately ended up giving birth on two separate occasions.

Although Partanen never adopted the children, she was fully committed and 100% present in their upbringing.  The couple did all the normal day-to-day activities of raising children equally, including making important decisions about the children’s’ upbringing.

The Court found that although the statute spoke in specific gender terms, the same concept could be interpreted in a gender-neutral manner.  This meant that because Partanen brought the children into her home and held them out as her own. It doesn’t matter that she is not a man as the plain language of the statute reads.

To push the point home further, the state had already established that a man could establish paternity for a variety of reasons other than biology.  More specifically, the Court argued that the purpose of the statute, which was clearly defined, was to provide all “children born to parents who are not married to each other…the same rights and protections of the laws as all other children.”

Seems pretty simple, right?

Many Will Easily Follow in Massachusetts’ Footsteps, While Others Will Fight Against It

With all the positive decisions that have been made in favor of same-sex couples lately, there’s been battles to halt the progress in its tracks.  Just this month, an Alabama Supreme Court Justice was removed from the bench for issuing an order preventing magistrate judges of that state from issuing marriage licenses to same-sex couples, despite the federal decision in Obergefell.  In North Carolina, two different magistrate judges filed claims that their rights had been violated by administrative memos received that said they could be fired if they refused to perform same-sex marriages in accordance with the law.

There will undoubtedly be criticism of the decision to give same-sex partners parental rights, but the general consensus seems to be in favor of same-sex couples and it only seems like the next logical step after Obergefell to give same-sex couples the same parental rights as heterosexual couples.

What People Ought to Know About Louisiana’s New Marriage Law

Many foreign-born people have been denied marriage licenses in Louisiana after the state passed restrictions on marriage based on immigration. Proponents of this bill claim it deters marriage fraud by preventing illegal immigrants, including terrorists, from getting married. But, this bill has also prevented many legal immigrants from obtaining marriage licenses, and has mostly impacted Louisiana’s Laotian and Vietnamese refugee communities.

House Bill No. 836

The bill introduces new requirements for a Louisiana marriage license, including requiring a birth certificate. Birth certificate requirements differ for U.S.-born persons and foreign-born persons. A U.S.-born person may obtain a judge’s waiver if unable to provide a birth certificate. But, this waiver exception does not apply to people born outside the U.S., even if he or she can produce an unexpired visa or proof of citizenship.  In short, if a foreign-born person cannot produce a birth certificate, then he or she cannot get married in Louisiana.

The Story of Marilyn Cheng and Out Xanamane

Marilyn Cheung and Out Xanamane’s marriage license struggles highlight the absurdity of this bill. This Louisianan couple, like many in Louisiana’s Laotian community, had a traditional Buddhist ceremony in 1997, but never obtained a formal marriage license mistakenly believing they had a common law marriage. The couple learned they were not legally married when Mr. Xanamane discovered he had liver cancer and was not covered by Ms. Cheung’s insurance. Although the couple have lived as husband and wife for nearly 20 years and have four children together, Louisiana does not recognize common law marriages. Marriage

Subsequently, the couple went to a Louisiana courthouse to obtain a formal marriage license. Even though Mr. Xanamane brought his green card, refugee documents and driver’s license, they were turned away because Mr. Xanamane did not have a birth certificate. Mr. Xanamane has legally resided in the U.S. since 1986, but he was born in Laotian village in 1975 when the country fell to communism. His family fled the country and he never received a birth certificate. Thus, despite Mr. Xanamane’s liver condition, the couple drove fourteen hours round -trip to Alabama where the court accepted Mr. Xanamane’s immigration documents and issued them a marriage license.

Ms. Cheung and Mr. Xanamane are not the only couple enduring hardships under this new law. Since the law was enacted, about six to eight couples every month have been denied marriage licenses in Orleans Parish alone.

Is the Bill Xenophobic or a Necessary Protection of American Sovereignty?

Proponents claim this legislation prevents illegal immigrants, and possibly terrorists, from obtaining citizenship through marriage. But, the birth certificate requirement place unnecessary burdens on legal immigrants, particularly on Louisiana’s Laotian and Vietnamese refugee communities.

Many foreign-born people legally reside in the U.S. without birth certificates. Simply requiring valid immigration paperwork, like Alabama, would be equally effective in preventing illegal immigrants from obtaining marriage licenses. Moreover, requiring birth certificates unlikely deters terrorists legally in the U.S. from marriage, since many terrorists come from countries, including the U.S., that do issue birth certificates.

While the bill remains ineffective in deterring terrorists from marriage, it does have a disproportionate impact on Louisiana’s Vietnamese and Laotian refugee communities. In the 1970s and 1980s, many refugees from Vietnam and Laos went to Louisiana to seek asylum from war and communism. Many of these former refugees have since obtained green cards or U.S. citizenship, but do not have birth certificates. Refugees and other immigrants fleeing violent-life threatening situations, were either never issued birth certificates or were unable to bring one. Moreover, refugees tend to come from countries with failed governments, and thus, it would be impossible to obtain a birth certificate, even if one was originally issued.

Since the birth certificate requirement is unnecessary to achieve its purpose in preventing illegal immigrants from marriage, we can only conclude it was enacted to place hardships on the Vietnamese and Laotian refugee communities in Louisiana. But, if we give Louisiana’s legislature the benefit of the doubt, the bill is at best a poorly thought-out law that needlessly inconveniences foreign-born people living in United States legally.