Family Law Update for August 2016

In this Issue …

A Word from Gregg Herman
Of counsel to Make-a-Wish Wisconsin

Wisconsin Courts Updates
No cases

Decisions Across The Nation
Validity of marriage in a different state, Retirement and spousal support, Social security benefits and equitable distribution, De facto parenting, Enhanced earnings and more.

Family Law Online
Kids, Divorce, and School Success

Adoption
Adoptions Declining

Family Law Related Articles and Publications
Family Advocate issue “My Parents are Splitting Up: A Graphic Novel”, Family Law Quartely issue: “Symposium on Gray Divorce and Silver Separations”

A Word from Gregg Herman …

On occasion, I provide minor services for which I am not going to bill. Sometimes, they are for attorney who ask me advice or information about case law. Sometimes, they are former clients who have already paid good fees for prior representation.

Rather than billing for just a few dollars, I will tell the lawyer or former client that if they appreciated my advice, they could exhibit same by making a contribution in my honor to their favorite charity – or mine, if they don’t have one.

Invariably, they ask for the name of my favorite charity, which is the Wisconsin Chapter of Make-a-Wish. There are two reasons: First, the wishes which are granted not only benefit the child, but the entire family and we call ourselves, after all, “family” law attorneys. Second, the Executive Director, Patty Gorski, is a good friend whom I’ve known for 35 years and I can guarantee there is not a penny donated to the Wisconsin Chapter which goes wasted. I’m honored to be able to provide pro bono services to Make-a-Wish when there is a family court issue, typically involving a parent not signing the necessary consent for the wish to be granted. In those cases, I’ve been extremely impressed with the dedication and professionalism of Patty’ staff.

The result is the person getting advice feels better by paying something for it, I don’t feel my time was wasted and a family will benefit.

Try this out for size next time you don’t feel it’s appropriate to bill someone for brief advice. If you would like to use Make-a-Wish as your favorite charity as well, visit the organization’s Web site, and tell Patty that I sent you!

The 2016 ABA Section of Family Law Fall CLE Conference will be in Quebec City. As always, the meeting offers outstanding continuing legal education along with opportunities for networking and making friends.

For more information and to register online, visit the ABA Web site.

The future of family law will necessitate lawyers being familiar with adoption and Assisted Reproductive Technology. In this month’s Thoughts on Family Law video, I suggests some ways family law attorneys can learn more about those areas.

Play Latest Vlog

Wisconsin Courts Update

— No New Wisconsin Cases —

Decisions Across the Nation

The following cases are provided courtesy of Contributing Editor Laura Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her Web site or via e-mail.

The following cases are provided courtesy of Contributing Editor Laura Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her Web site or via e-mail.

Please Note: Most decisions are posted in Adobe Acrobat (PDF) format.

Gershuny v. Gershuny
322 Conn. 166
Connecticut Supreme Court
July 26, 2016

Because the marriage was recognized as valid in New York, where it took place, the marriage was valid in Connecticut. Thus, the trial court erred in dismissing the petition for divorce on the grounds that there was no valid marriage.

Peterson v. Peterson
2016 ND 157
North Dakota Supreme Court
July 26, 2016

Former husband’s retirement was not material change in circumstances warranting modification of his spousal support obligation of $1,500 per month to his former wife; even after retirement, husband’s net income was sufficient to pay support obligation, as his tax return showed income in excess of $75,000 per year, which was nearly same as income when support was ordered originally, husband had potential for additional income through his business and retirement accounts, which included $350,000 to $400,000, and husband had spent over $700,000 building home.

Ward v. LaRue
2016 VT 81
Vermont Supreme Court
July 22, 2016

Trial court’s determination, that Vermont retained continuing, exclusive jurisdiction pursuant to Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) over father’s enforcement and sanction motions in child custody proceeding, was well within its discretion, where pending motions were part of ongoing course of post-judgment litigation that began before mother relocated from Vermont, central issues in litigation involved father’s access to information about the child, and father remained in Vermont.

Morris v. Morris
2016-Ohio-5002
Ohio Supreme Court
July 19, 2016

In dissolution of marriage proceeding, the court has no jurisdiction to grant a dissolution unless the parties have entered into a separation agreement either providing for alimony or providing that none shall be paid, which shall be incorporated into the dissolution agreement if approved by the trial court. Thus, the trial court lacked jurisdiction, on motion for relief from judgment, to vacate or modify the husband’s spousal support obligation in the separation agreement incorporated in the decree of dissolution that did not contain a reservation of jurisdiction to modify the award of spousal support.

Jackson v. Sollie
No. 62, Sept. Term, 2015
Maryland Court of Appeals
July 19, 2016

As a matter of first impression, the trial judge was federally preempted from offsetting value of husband’s hypothetical Social Security benefits against marital share of his CSRS pension when dividing marital assets, but the trial judge was required to consider anticipated Social Security benefits of parties as relevant statutory factor when determining equitable distribution of marital property.

Santo v. Santo
No. 89, Sept. Term, 2015
Maryland Court of Appeals
July 11, 2016

The trial court was not precluded, as a matter of law, from awarding joint custody of children to parents who failed to communicate effectively with one another. Thus, the trial court did not abuse its discretion in awarding parents joint custody of children, despite its determination that parents were unable to communicate and make shared decisions regarding children. Such an order was permissible, even though it included tie-breaking provisions if parents disagreed about matters affecting children.

Conover v. Conover
No. 79, Sept. Term, 2015
Maryland Court of Appeals
July 7, 2016

De facto parenthood was a viable means for same sex partner to establish standing to contest custody or visitation, overruling Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73. The Janice M. precedent was contrary to established principles as Troxel did not bar recognition of de facto parent status, the standard for determining de facto parenthood was consistent the fundamental right of parents to make decisions concerning the care, custody, and control of their children, and significant changes in the law, such as the recognition of same sex marriages, the majority of states recognizing de facto parent status or a similar concept, and family law scholarship and academic literature’s endorsement of the notion that a functional relationship, as well as biology or legal status, could be used to define parenthood, had occurred.

Elsayed v. Edrees
2016 N.Y. Slip Op. 05356
New York Supreme Court, Appellate Division, Second Department
July 6, 2016

Although the enhanced earnings from academic degrees and professional licenses attained during the marriage are subject to equitable distribution upon divorce in New York, it is incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate a substantial contribution to the titled party’s acquisition of that marital asset and to prove the asset’s value so as to afford the court a sufficient basis upon which to make a distributive award.

Family Law Online

Kids, Divorce, and School Success

“Going through a divorce can be a painful process for everyone involved. Children often feel caught in the middle, and the stress can affect their performance in school. But it doesn’t have to be all doom and gloom.” (Responsibility.org)

Adoption

Following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Adoptions Declining

The numbers of domestic and international adoptions have been declining over the past several years. For domestic adoptions, combinations of expanded use of birth control, abortion and single parents choosing to raise children have contributed to the fewer numbers of children available for domestic adoption.

On the international front, the Hague treaty has impacted the number of children available for adoption. Several countries have over the past 15 years concluded international adoption programs or had diminished numbers of children available for international adoptions. Those countries include Russian, Romania and Guatemala – countries who were major senders of the children 20 years ago. Other countries have periodic suspension of adoption programs.

As a consequence, the number of children available for adoption has been reduced. Domestic adoption agencies and international adoption agencies have experienced a decline in available children. Several adoption agencies in Wisconsin and outside Wisconsin have now closed their doors. The result has been a switch of emphasis to sperm and egg donation, embryo donation and in vitro fertilization. These family building measures have been replacing adoptions. Wisconsin has permitted the use of surrogacy and the Wisconsin Supreme Court has declared surrogacy contracts enforceable. However, there have yet to be passed laws providing specific regulation of surrogacy procedures. It would be helpful to establish meaningful surrogacy rules and regulations.

Next month more about alternative family building methods.

Family Law Related Articles & Publications

Family Advocate

The Summer, 2016 edition (Vol. 39, No. 1) of ABA FLS publication, Family Advocate is a unique edition, entitled “My Parents are Splitting Up: A Graphic Novel.” Rather than articles, the issue is designed as a resource for children whose parents are divorcing or separating. The issue can be purchased in bulk to give to clients for their children.

For ordering or subscription information (the current issue may not be available yet), visit the Family Advocate Web site.

Family Law Quarterly

The Spring, 2016 (Vol. 50, No. 1) of the ABA FLS publication, Family Law Quarterly, is a “Symposium on Gray Divorces and Silver Separations.” Articles include:

The Changing Phenomenon of Gray Divorces

By Paula G. Kirby & Laura S. Leopardi

Representing the Elderly Client or the Client with Diminished Capacity
By Robert B. Fleming

The Battle for the Biggets Assets: Dissolution of the Military Marriage and Postdivorce Consideration for Aging Clients
By Brently Tanner

Residence Roulette in the Jurisdiction Jungle: Where to Divide the Military Pension
By Mark E. Sullivan

Premarital Agreements for Seniors
By Peter Walzer and Jennifer M. Riemer

Financial Abuse of the Dependent Elder: A Lawyer’s Ethical Obligations
By Jeanne M. Hannah

For ordering or subscription information (the current issue may not be available yet), visit the Family Law Quarterly Web site.

Contributing Editors

Our contributing editors include:

We Thank Them for Their Contributions!

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.