Court watchers believe two cases are likely to make it to the Supreme Court in this term or the next. We discussed the decision from the 9th U.S. Circuit Court of Appeals in our last post. The other case, a challenge to the federal Defense of Marriage Act, has yet to be decided; the 1st Circuit should hear arguments in April.
]]> The DOMA case centers on Section 3 of the law, the definition of marriage for federal purposes. Remember, family law is generally a state matter. DOMA's definition -- that is, marriage is a legal union between one man and one woman -- affects eligibility for federal benefits.The plaintiffs were married under their state's same-sex marriage law, but under DOMA they could not collect federal marriage-related benefits. They challenged Section 3 as an unconstitutional violation of the Fifth Amendment. The lower court agreed. As with the Proposition 8 case, the court said there was no rational basis for treating same-sex married couples differently from heterosexual married couples.
In an unusual turn of events, the U.S. Department of Justice declined to appeal the decision. The Republican contingent of the Legal Advisory Group of the U.S. House of Representatives took up the case.
The plaintiffs argue that the Supreme Court has said that the federal government must treat married couples the same way their state governments treat them. DOMA took that away -- a clear violation of equal protection guarantees under the Constitution.
The Legal Advisory Group is relying on arguments made in the Prop 8 case: child welfare concerns, responsible procreation, caution and tradition. They, too, point to Supreme Court precedent, this time a case the court refused to hear because there was no federal issue involved.
DOMA opponents see the Legal Advisory Group as a potent adversary. The group's agenda is tied to larger, national policy issues, not to the narrow facts of the plaintiffs' situation.
The next step is the 1st Circuit arguments, then the court's decision. We will continue to follow this case and the Prop 8 case.
Source: Law.com, "High court in marriage cross hairs," Marcia Coyle, Feb. 13, 2012
]]>The boy's family is comprised of a mix of nationalities. His father is from the United Kingdom, his mother is an American citizen and the two were wed in England. After their marriage, the boy was born in Hawaii, so he is a United States citizen. Eventually, the family moved to Chile, but their marriage soon fell apart. Chilean courts determined that the mother would get custody and the father would receive visitation rights when they legally separated.
]]> The boy's mother, frustrated by her inability to find work in Chile due to visa restrictions, took the boy to Texas without his father's knowledge. From there, the boy's father sought custody and threatened to take everything from his estranged wife. The case made it to the U.S. Supreme Court where it was ruled that a lower court's decision to grant only visitation rights to the father was voided under the guise of international law.Even though the ruling was handed down two years ago, contention existed between the boy's parents until he turned 16 years old, the age at which he was released from the terms of international law. At that point, he made the independent decision to live with his mother. The boy and his mother are relieved that the emotional saga has been resolved.
When parents get involved in litigious custody battles, it is often the children who suffer the most. The boy involved in this dispute is apparently very well-adjusted, despite the stress of the last two years. Sometimes it's easy to forget that determining child custody arrangements should be a way to make sure the child's welfare is protected, rather than an extension of a couple's feud. Divorcing parents should be mindful of the sensitive nature of any child support disagreements they have.
Source: CNN, "Child at center of high court fight over custody gets closure," Bill Mears, Feb. 14, 2012
]]>Legal analysts and policy wonks expect to see the issue at the U.S. Supreme Court soon. At least two federal appellate cases have garnered national attention. Because they approach the issue from two different perspectives -- one looking at state law, the other at federal law -- there's no reason both couldn't appear on the docket this term or next.
]]> The first case is a challenge to California's Proposition 8, the 2008 ballot initiative that added a constitutional amendment limiting marriage to one man and one woman. The recent decision by the 9th U.S. Circuit Court of Appeals may have spurred Illinois lawmakers to file the same-sex marriage bill a year ahead of plan. The appellate panel agreed with the lower court that Prop 8 is unconstitutional.The decision was narrowly tailored to that state's constitution. In 2008, before Prop 8, the state's Supreme Court had determined that the state constitution guaranteed gays and lesbians "both the incidents and status and dignity of marriage." Prop 8 would have eliminated the status of marriage without eliminating the incidents of marriage, the majority said, and proponents of the amendment did not convince them that there was a rational basis to do so.
Again, the decision was narrow in its scope. The panel did not say that same-sex couples have the absolute right to marry under the constitution.
To be continued.
Source: Law.com, "High court in marriage cross hairs," Marcia Coyle, Feb. 13, 2012
]]>When the decision to divorce is made, parents need to address the well-being of their children during and after the divorce. Every child needs the reassurance from their parents that they didn't create the problems in the marriage. Parents also need to communicate age-appropriate messages so that the children can develop the ability to have future successful relationships in their own lives. There are a few things parents should keep in mind through the divorce process.
]]> First, a common mistake made by divorcing couples is that they think their children don't understand what is going on with the relationship, when in fact, they do understand more than we think. Even if you and your former spouse do not fight in front of the children, your non-verbal messages are read by them very clearly. Both parents need to make a conscious effort of being positive about the other parent at all times.Secondly, children will blame themselves for the divorce. Depending on the ages of your children, you may need to tailor the message about divorce in a way that they understand. For example:
Finally, parents need to be careful in assuming that their children will be just fine through a divorce. While this may be true, it is only the case when the parents make an effort to reduce conflict before, during and after the divorce. Children are resilient, but they still need to be protected.
Source: The Huffington Post, "The Kids' Will Be Just Fine And Other Divorce Myths," Claire N. Barnes, MA, Feb. 3, 2012
]]>According to court documents, the adoption was under way when the couple married in 2009. The petitioner's ex-wife had assured him that he was the child's father and listed him as the father on the child's birth certificate. The marriage ended about a year later.
]]> He explained to the press that he didn't have time to file the adoption papers -- he thought the marriage would last forever, so he concentrated on caring for the children and looking for work in Illinois (he had relocated from Wisconsin). His ex-wife had one adopted child when they met, and the couple adopted a third child during their marriage.Part of his argument is that the son in question, now 3 years old, will be confused and emotionally harmed by seeing his father spend time with the youngest child while he hasn't seen his dad for over a year. The petitioner insists that he is the child's father and a legal "hyper-technicality" should not stand in the way of his relationship with his child.
His ex-wife's attorney says it is his own fault. His ex-wife told him more than once to file the adoption papers as soon as possible, the attorney continued. And, no matter what his wife told him about being the child's father, she doesn't make the decision. The law does.
During the parties' arguments, the appellate panel did not show much sympathy for the petitioner. They asked why they should change the law for one person. They also asked why he believed he had any parental rights at all.
The court could take days or months to decide the case. It may be a tough decision, considering the presiding judge's comment that the arguments were the most emotional he'd seen in a long time.
Source: Chicago Tribune, "3-year-old adoptee at center of unusual custody fight," Steve Schmadeke, Jan. 29, 2012
]]>In order to build or rebuild your credit after divorce, you first have to know your current credit score. To identify your status, check your credit reports from the three credit report agencies: TransUnion, Experian and Equifax. You are entitled to receive a free copy of your credit report from each agency once a year.
]]> After you receive your credit report, review the report and look for indications of late payments and collection efforts on individual accounts and accounts that were held jointly. Being aware of red flags like late payments and collection efforts will inform you on your ability to qualify for credit in the future.Next, you should make sure all the information on the credit report is correct. Review the credit history, employment history and other personal information that appears on the report. If you find any mistakes, correct them. All three of the credit reporting agencies have online forms that allow you to dispute an error.
If you still have any joint accounts or joint financial obligations with your former partner, try to end or separate those obligations as soon as possible. The failure of a former partner to pay a joint mortgage or joint credit card account will affect your credit. Remember, you are liable for any unpaid bills or debts on shared accounts.
Finally, the best way to build or rebuild credit is to pay account balances in a timely way. More than one-third of your credit score is based on your payment history.
Source: foxbusiness.com, "Square one: How to build credit after divorce," Lynnette Khalfani-Cox, Jan. 25, 2012
]]>Alimony law or spousal maintenance was put into place to mainly protect a woman that had been in a long-term marriage. In these instances, the woman may have been the homemaker and out of the workforce, or working, but at an income that was less than her spouse.
]]> The purpose of alimony is to equalize the financial future of the spouse and to make sure that the spouse can maintain a post-divorce lifestyle that is somewhat comparable to the lifestyle she had while married.A judge typically bases the alimony payment on the higher wage earners ability to pay and the need of the spouse receiving it. The length of the marriage could also play into this. Some couples feel that dividing assets 50-50 should be enough to avoid alimony, but the fact is that the spouse that stayed home to raise the children during the marriage could have a lack of earning power after the marriage, that can never be made up. Alimony helps equal this financial disparity.
The proposed alimony reforms could have serious consequences for the spouse receiving alimony. First, the proposed legislation would automatically terminate alimony payments when the payer reaches retirement age. That spouse doesn't need to stop working, just needs to reach that age.
Secondly, some of the alimony reforms do not allow already divorced people to be grandfathered into the system. This could allow for reductions in alimony that was determined years ago and harm the recipient. Some states are addressing this potential problem by stating that alimony modifications must be staggered over several years. For example, longer term marriages are not permitted to apply for alimony modifications until more than three-and-a-half years have passed after the law goes into effect.
While some reform may be needed, many states are already revising their laws and setting limits on the duration and amounts of alimony payments. This will only create more uncertainty for those receiving alimony. The best option is to speak with a family law attorney that can navigate through the proposed reforms in your state and help you make the best decisions for your financial future.
Source: Forbes, "Alimony Reforms Continue to Create More Uncertainty for Divorcing Women," Jeff Landers, Jan. 18, 2012
]]>Illinois was one of the first states to introduce a program to help fathers understand and embrace their responsibilities. Nowadays, the programs are more common. All around the country, nonprofit organizations and state agencies offer resources for dads who need work, treatment or other services.
]]> Fathering Court is one of those programs, but it's a program that targets a specific group of men: men who have just gotten out of prison. The program helps participants comply with child support orders and, while they're at it, improve their parenting skills.Since its inception in 2008, Fathering Court has helped 50 fathers get back on their feet. Participants must be recently released from prison, and they must have child support obligations. The program helps with job searches, offers counseling services and provides other programs about parenting.
Most participants come into the program with health and relationship problems. Fathering Court may not provide direct services in every area, but the staff is able to connect participants with other programs or services that do address their needs. One of the thirteen dads who recently graduated from the year-long program commented that he had grown as a person and as a parent.
In some cases, the dads end the program with renewed relationships with their children. For others, completing the program makes it possible to begin that reconnection. Either way, children end up with more responsible dads who are better equipped to support them for years to come.
Source: The Blog of Legal Times, "Fourteen Men Graduate from 2011 Fathering Court Program in D.C.," Zoe Tillman, Jan. 27, 2012
]]>Klum seems to have put up with her singer husband's temper until it started to affect their children. The couple has four children; the oldest is Klum's from a previous relationship. So far, no reports have addressed child support or child custody arrangements.
]]> The news came as a surprise to many. Klum and Seal weren't shy about their public displays of affection, and they renewed their marriage vows every year.It looks as if the deal breaker for Klum was Seal's anger. The "deal breaker" is more than the last straw. It's the one thing above all others that is simply not tolerated.
Family therapists agree it is a good thing to recognize what a romantic partner's deal breaking habit is. This helps the individual to understand what went wrong in the relationship, and what can be done to improve the situation. Therapists also encourage men and women to understand that it is time to walk away if the partner with the habit or issue is not working on it, not trying to be a better person for himself or his partner.
It's important to know, too, that experience can change a person's deal breaker. What we are looking for at 25 has changed by the time we hit 45. People change, and so do deal breakers.
Still, there are a few common deal breakers. Men watch out for women who are independent or inflexible and women who don't take care of themselves. Women won't tolerate a man who cheats or lies, who lacks a life plan, or who is too frugal.
Source: Huffington Post, "Heidi Klum And Seal Divorce Over This 'Deal Breaker,' What's Yours?" Jan. 23, 2012
]]>As Illinois law currently stands, the spouse that does not have custody of their children pays a set percentage of their income into child support. While simplicity is sometimes appreciated in the law, this is a case where many feel that this law does not appropriately calculate how much child support a spouse should pay.
]]> One member of the Illinois General Assembly has seized the opportunity to reform current child support laws intended to better reflect the nature of many child custody arrangements. Reform could come within the year, according to the lawmaker.The suggested reform includes a provision to calculate child support payments based on how much the paying spouse earns, rather than a flat rate. In other words, those "who earn more will contribute more." This is based on the "income shares model" of child support.
Additionally, child support payments would more accurately resemble the amount of time the children spend with each parent under proposed reforms. If kids spend time with their noncustodial parent, less will be paid in child support. These days, kids frequently spend considerable time with noncustodial parents.
Proposed changes are not without critics. Some believe that the income share model will lead to frequent money disputes between the two parties.
There is no arguing the fact that child support arrangements are sometimes a source of contention between divorced spouses. Reformers see that the reality of divorce is complicated and stressful, so that is why they hope to make the system more accurately reflect modern family dynamics. The ultimate goal of paying child support is to ensure the well-being of children after divorce, and hopefully lawmakers work toward a solution that makes that aim more attainable.
Source: The Chicago Tribune, "A better system for child support," Jan. 16, 2012
]]>In Illinois, civil unions are legal, but same-sex marriages are not. Even if the marriage is legal in the state where the couple exchanged vows, this state will not recognize it. If a man and a woman marry in Illinois, though, and follow the marriage laws of the state, they are more than likely able to divorce here as well.
]]> Not so for same-sex married couples in Canada when both parties are not citizens.Same-sex marriage has been legal in that country for several years. Couples from around the world have gone there to take advantage of the law. Now, the government has decided that same-sex marriages between foreign nationals are not valid, even if the ceremony took place years ago.
The government argues that the marriage in this case was not valid in Canada because it would not have been valid in their home countries, the U.S. (Florida) and the United Kingdom. In addition, the couple had not met the residency requirements for divorce in Canada.
If children were involved, the situation would be even more complicated. As one family law professional said, it makes sense that Canadian family courts would not have jurisdiction over families with no significant ties to the country. It makes even more sense, then, that the courts should not make decisions about children that live in a different country.
For the two women who sparked the debate, the problem is a little more straightforward: Can the government say that a marriage performed seven years ago wasn't valid, when the marriage conformed with the law at the time?
Source: Thomson Reuters News & Insight, "Canada says marriages of foreign gays invalid," David Ljunggren and Richard Woodbury, Jan. 12, 2012
]]>There are some notable exceptions to these rules of thumb. Same-sex marriages or civil unions, for example, are not recognized by all states. In Illinois, for example, same-sex marriage is not only prohibited, but it is not recognized here even if it is valid in the state where it was performed. That couple cannot file for divorce in this state, because this state doesn't consider them legally married.
]]> The Canadian government recently muddied the marital waters there with a decision that effectively declared existing same-sex marriages void. The couple at the core of the controversy was married there in 2005, though neither was or is a resident of that country. The two women now want to divorce, and they filed their petition in the country where they were married.Needless to say, the women are confused. While they wait for a Toronto court to hear arguments at the end of February, advocates and opponents of same-sex unions are squaring off, shifting the focus from marriages of foreign non-residents to gay marriage in general.
The first same-sex marriages in Canada took place in 2003, when just a few provinces changed their laws. The country became a favorite destination for same-sex couples from the U.S. shortly thereafter. Of the approximately 7,500 same-sex couples that have been married in Canada, an estimated 2,500 unions involved foreign non-residents.
The government's argument echoes Illinois law, but in this case officials are reaching back seven years. We'll discuss the particulars in our next post.
Source: Thomson Reuters News & Insight, "Canada says marriages of foreign gays invalid," David Ljunggren and Richard Woodbury, Jan. 12, 2012
]]>The two married in 1993, but togetherness may not have been a high priority. By 2000, they had only cohabited for three months. A few years into the marriage, though, the husband became a U.S. citizen. For reasons not addressed in court documents, the wife, a Canadian citizen, never received a green card. (A green card allows a foreign national to live and work in the U.S. permanently. It does not grant citizenship.)
]]> Court documents tell the story of a difficult relationship. The husband gave his wife money, but he forced her to sign IOUs. She claimed that he also torpedoed a job opportunity for her; he accused her prospective employer, a Ugandan ambassador, of sleeping with her.Finally, in 2003, the husband filed for divorce. He did not tell his wife. The court granted a default judgment, but that wasn't the end of the marriage. When the wife discovered the divorce, she successfully petitioned the court to overturn the judgment. In the eyes of the law, they remained married.
Seven years later, and a year after a 19-day trial, a Cook County court granted the divorce. The husband was ordered to pay spousal maintenance of $1,000 per month for three years. The court also ordered him to pay about a third of his marital assets to his ex-spouse. She will receive $126,000 over a three-year period.
The wife appealed the judgment, though. Her attorney explained to the appeals court that three years of spousal maintenance was not enough. The wife is over 50 and has been unemployed since 2000. The court denied her appeal.
For family law professionals, the case poses a number of challenges. The immigration issues, the erroneous default judgment and the sham marriage itself aren't things you come across every day.
Source: Chicago Tribune, "Appeals court: 'Shell marriage' will cost NU moral philosophy professor," Steve Schmadeke, Jan. 05, 2012
]]>In our last post, we discussed the grounds for annulment here in Illinois. Here, we will talk about the financial aspects of annulment.
]]> The parties retain the assets and the debts they brought to the marriage in an annulment. What they came in with they walk out with. Any debt acquired during the marriage, though, belongs to both of them.One of the most contentious parts of a divorce is the division of property, including the assets and the debts acquired during the marriage. The couple generally negotiates a settlement that the court ultimately approves, and the settlement usually takes into account the contribution and financial situation of each spouse.
This is not the case in an annulment. Debt acquired during the union is held jointly, and each party can be responsible for the entire amount. If one partner skips town, the other is left holding the bag. If the bill is delinquent, the card issuer can go after both parties or just one -- most likely the one with the bigger paycheck.
There are a few ways to handle the situation. Most family law professionals would put negotiation at the top of the list. The parties can figure out who is responsible for what and agree, preferably in writing, to pay their fair shares.
A less amicable route would include litigation. One partner would pay the entire debt then file suit against the other. The risk of splitting the bills is that one party won't pay -- the delinquency can affect both parties' credit ratings. Paying the full amount is essentially paying to preserve a good credit score.
Circumstances and personalities will determine the choices each couple takes to dissolve their marriage. Deciding between divorce, legal separation and annulment depends on more than the law.
Source: CreditCards.com, "Annulment vs. divorce: How it impacts finances," Tamara E. Holmes, Dec. 30, 2011
]]>Divorce ends a marriage. An annulment, though, wipes the slate clean; it's as if the marriage never took place. The marriage is null and void.
]]> There are significant differences between the two, of course. There is such a thing as a no-fault divorce -- in Illinois and the rest of the 50 states -- but there is no such thing as a no-fault annulment. An annulment will only be granted under certain circumstances.In Illinois, a court will invalidate a marriage (it isn't called an annulment here) if, for example, one partner is 16 or 17 years old and entered into the marriage without the consent of a parent, guardian or the court. A bigamous marriage can be annulled, just as a marriage between close relatives can be. These are just a few examples. A full discussion of all the grounds for annulment is a topic for another post.
Because the marriage is invalidated, the couple's finances are treated differently. Each partner is restored to his or her original financial state. Assets, debts and anything else in their ledgers before the marriage go back to them. The fact that most annulments happen very soon after the wedding makes this easier.
We'll continue this in our next post.
Source: CreditCards.com, "Annulment vs. divorce: How it impacts finances," Tamara E. Holmes, Dec. 30, 2011
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