Same Sex Unions Gain Ground in Midwest

In a highly controversial ruling from the Iowa Supreme Court, same sex couples received a green-light for marriage when a state law banning such marriages was determined unconstitutional. In a 63 page decision (the first 6-pages of which listed a series of opposing amicus groups that had legal representation in the briefing of the case), the Iowa Supreme Court held that the state law banning gay marriage violated the Equal Protection clause of the U.S. Constitution by treating same-sex couples differently than other couples without a sufficient government interest justifying the classification.

The full decision of the Iowa Supreme Court is attached in the link below:
http://graphics8.nytimes.com/packages/pdf/us/20090403iowa-text.pdf

The case moved the battle over same-sex marriage from the coastal metropolitan centers of the U.S. to its heartland. To date, only Massachusetts and Vermont allow same sex marriages; California did so for about six-months until that law was repealed by voter initiative in the last election in November.

The case also comes on the heels of an unusual ruling by the Michigan Court of Appeals which allowed a same-sex couple to present evidence to a family court judge relative to the partners/parents parenting time requests once their homosexual relationship terminated following their mutual adoption of three children. That case, itself the subject of an entry in this lawblog, is discussed in the attached article from the Chicago Tribune:
http://www.chicagotribune.com/news/chi-ap-mi-gayadoption,0,2545662.story

Court of Appeals Decides Another Relocation Case

One of the most significant (and often painful) events in divorce proceedings is when a parent seeks a change of domicile; a relocation of the children beyond the 100-miles allowed by the Legislature in the Child Custody Act. These motions often result in hearings that can be more traumatic to the parties and children than a full-blown divorce trial.

The losing parent often appeals the result thus, the Michigan Court of Appeals issues a steady diet of relocation decisions. The most recent is the case of Skeins -v- Mead and can be read in its entirety by clicking on the following link:

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20090317_C287426_49_287426.OPN.PDF

In that case, the parents shared joint physical custody of their child and exercised an alternating weekly parenting schedule. The evidence from the trial court in Crawford County was that each parent exercised their respective parenting time. The domicile issue arose, however, when the Mother re-married and her new husband located a better-paying job in Texas. The Mother claimed she too had employment prospects in Texas.

The Father in this case is employed by the Michigan National Guard. The evidence demonstrated he was a good father, engaged in the proper rearing and discipline of the child.

The Crawford Circuit Court nevertheless found that an "established custodial environment" existed with the Mother only, and granted her motion based on a finding that she satisfied the critical factors of the domicile statute by a "preponderance" of the evidence. The Father appealed the trial court's decision.

In reversing the lower court and remanding the case for an additional hearing, the Court of Appeals, recognizing the difficult economic times faced by all Michiganders, held that the lower court erred by failing to apply the "clear and convincing" evidentiary standard to not only the domicile statute factors, but to all the "best interest" factors set forth in the much broader Child Custody Act. The Court of Appeals also held that the lower court erred by concluding that an "established custodial environment" existed only with the Mother. An established custodial environment is a legal term defined by the court to mean:

if over an appreciable period of time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian
and the child as to the permanency of the relationship shall also be considered.

Since the case is "unpublished", it does not have binding effect on local family courts faced with similar fact-scenarios. This case does, however, offer a solid guide for a parent opposing a relocation motion.

International Marriages Disintegrate with Global Economy

International marriages that often thrive with money, may wither as the global recession takes hold and deepens. Divorce lawyers in metro-poles such as New York City and London are noting an upswing in their international clientele.

International marriages and their attendant transnational families complicate the divorce process, especially when marital assets are in a country other than the marital domicile, and one or both spouses come from a pair of "old countries". In many such families, one or both spouses are professionals. Their marital estate, even if modest, is spread out. Oakland, Macomb and Wayne Counties all have their share of international marriages due to a significant Arab population and the presence of multinational corporations in the automotive industry.

With layoffs in all sectors of the automotive industry, some of these marriages are predictably coming under stress. Others are failing. When this occurs, one of the first issues is where, which country, to file the divorce complaint. Some countries have legal systems that favor one gender over the other on a series of common issues such as property rights, custody and parenting time.

In a recent case from Oakland County, the Michigan Court of Appeals reversed a family court judge that recognized a divorce obtained in India via the Muslim "triple tiraq", where one party (in that case, the husband) simply states "I divorce thee" 3-times, even though the wife had no actual notice or input to the proceeding, and was not present for the Indian divorce.

In other examples, Michigan has followed California in requiring full and complete disclosure of all assets. Japan and Austria, on the other hand, require very little disclosure of a spouse's property interests. While Japan favors quick "no-fault" style property divisions, convenient for the often-male members of the international elite, the Japanese courts are resistant to fathers seeking joint custody and equal parenting time. Japanese family law reflects the more traditional Japanese culture in this regard.

One of the more significant issues likely to arise in an era of decline in the nuptial-international, is parental abduction and removal of the minor children to third countries. Both the United States and the U.K. have reported increases of international parental abduction. According to The Economist magazine, the kidnappers are the children's mothers in 68% of the cases. According to the Hague Abduction Convention (an arm of the World Court in the Netherlands), the U.S. currently has the largest number of incoming and outgoing abduction cases, followed by England. An overwhelming majority of these cases involve transnational families.

Parental kidnappers believe they are merely getting the drop on their spouse by "forum shopping" the available legal systems; often feeling entitled to assert preemptive custody along with their choice of law. Lawyers in Detroit, Chicago, New York, Miami and elsewhere, are specializing in advising clients on issues of choice of law and international comparative family law. Divorcing spouses are counseled on which legal systems provide the most benefit, given their particular circumstances.

Over the past 20-years, legal developments in the United States have reshaped the contours of the international marriage. Chief among these developments has been the passage of a series of uniform statutes addressing issues such as adoption (the Uniform Adoption Act in 1994), child support and custody (the Uniform Child Custody Jurisdiction Act in 1999, and the Revised Uniform Reciprocal Enforcement of Support Act in 2001), and abduction (the Uniform Child Abduction Prevention Act in 2007).

Intercountry adoption is also a fast-developing area of international family law regulated by a Hague Convention and with guidelines currently under development. One of the cutting-edge problems here is the adoption of children without parents from less developed countries and the human rights concerns such adoptions raise.

Developments in reproductive technology and medicine have also given rise to international disputes involving child custody and property rights. For example, infertility clinics in India or China are not bound by U.S. regulations and can thus attract large numbers of clients from the U.S. and Europe desperate to have children. If disputes arise among the genetic contributors (biological parents, surrogates, etc...) and the "rearing parents", international treaties are ill-equipped to resolve the dispute, or non-existent.

Depending on the country of origin and the respective nationality of the spouses and children, there are a wide variety of options in international family law. One of the first issues is the selection of the forum state pursuant to the legal principles of "choice of law". At every stage, the interests of the minor children must be considered. Parents and interested third parties should take care to keep the interests of the children at the forefront of their deliberations and refrain from resorting to drastic measures such as a preemptive custody move based on “choice of law” concerns. The world is a very big place for a child. All children deserve both parents to help them find their way.

Joint Custody Pioneer Dies in California

James Cook of California, hailed by many divorce professionals as the pioneer of modern "joint custody" arrangements, died of natural causes at his home in California.

Following his bitter divorce, Cook lobbied the legislature in Sacramento in the late 1970s to pass a then-novel law that provided wide discretion to family court judges in California to fashion a parenting plan that included both parents. Once the law passed, Cook did not stop lobbying; he traveled the country for decades preaching the value of joint custody.

Prior to the joint custody law, fathers across the nation were routinely excluded from meaningful parenting. Following passage of the joint custody statute in California, many states followed suit with similar laws of their own.

Cook is eulogized by some in the family law field as a champion of civil rights. There is no doubt that his sustained effort has had a positive effect on custody jurisprudence.

Study Finds Correlation Between ADHD, Divorce and Alcohol

A recent study referenced in the Washington Post suggests the divorce rate among parents with ADHD children is almost double from the norm. The study also correlates an increase in alcohol consupmtion for the same group.

This conclusion will come as no suprise to any parent or professional that has dealt with this disorder. Difficult children, such as those that are hyperactive, inattentive and oppositional, often drive a wedge between their parents; particularly when those children reach the mid-elementary school years.

The study, published late last year in the Journal of Consulting and Clinical Psychology, is covered in more detail in the attached article from the Post. Click on the link below:

http://www.washingtonpost.com/wp-dyn/content/article/2009/03/02/AR2009030201787.html?sub=new

The "60-Minute" Divorce for under $500

A new version of a "New York minute", or just another sign of the times? A law firm in New York City is offering clients divorce in under an hour, and for less than $500, not including filing fees, courier expenses, and other fine print.

For the low fee, clients meet with a lparalegal and lawyer at the NYC firm to provide their personal information. The clients are next provided a ten dollar gift certificate to either McDonald's or Starbucks to burn-up the last hour of their ill-fated marriage while the law office prepares the document package for a "one-size-fits-all" divorce.

You cannot have issues, however, or it will cost you more. The basic premise is that the divorce has to be absolutely 100% "pro confesso" (i.e. uncontested). Basic input is collected from the client and a set of pleadings are prepared within the alotted hour. A judgment is generated and executed for entry and filing with the court at the appropriate time, usually six months.

If you have marital property, need support, or have children, this too can be done in an hour; but will cost you almost double. A Prenuptial agreement will all but disqualify you from the program, although a "conventional" divorce would still be available.

Perhaps the firm is onto something; anyone facing the stress and uncertainty of divorce will appreciate speed of service combined with an affordable price package. To discuss similar options at our law firm, email us for an appointment.

Macomb Woman Attempts Divorce from her Grave

In a recent case originating from Macomb County, the Court of Appeals held that a woman scorned by her long-time, but absentee husband, could not effectively divorce him from her grave. In the case, the wife became ill and died of breast cancer after nearly three decades of marriage. Although the long-married couple was estranged at the time of wife’s death, they never filed for divorce or legal separation (known as separate maintenance in Michigan).

Because her husband had abandoned her during the 18-months she battled breast cancer, the wife executed a trust and will which left him nothing and appointed her sister as personal representative of her estate. When she died in 2002, the wife had spent years maintaining the “marital home” as well as a vacation property near West Branch. She paid all the property-related expenses without contribution from her husband.

Six-months after his wife’s death, the husband filed a petition in the Macomb Probate Court to set aside his deceased wife’s will and trust and to remove the cloud his wife placed on their properties. In the resulting court battle, the wife’s sister, relying almost extensively on out-of-state caselaw, asserted equitable contribution and abandonment theories, arguing that allowing husband to posthumously reap the benefits of his deceased spouse’s labors amounted to an unjust enrichment.

The Court of Appeals was not persuaded, deciding that a married person cannot execute an estate plan that effectively acts as a “posthumous divorce”. The appellate court’s ruling keeps the sanctity of marital property intact and declined to “invent a claim” from which a decedent spouse can reach her surviving husband from her grave.

We are interested in what you think about the Court of Appeals ruling. Please post your comments.