Gregg's Blog
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Gregg's Blog


by Gregg Herman on 04/08/15

While I've posted about prenups before, a recent article by my friend, Linda Ravdin is an excellent primer on the subject.

Of course, the "standard" view is that everyone should have a prenup.  Where either party has minor children (or even adult children), they definitely should have a prenup to protect the children, especially in a Community Property state where certain rights accrue at the time of the marriage.

OTOH, my view is that if the parties need a prenup to protect themselves in the event of a potential divorce, maybe they should not be getting married at all (call me a romantic).  Part of this is due to the frequency I've seen of clients regretting that they ever signed the (damn) thing.  While I'm sure their lawyer adequately explained it to them, since divorce was the last thing they were expecting, I found parties sign prenups simply because it is the price of getting married.

There is a myth that prenups can make a divorce less expensive.  While that is true in certain cases, in others, it can make the settlement more expensive - and sometimes by far more than the attorney fees which would have been paid by not having a prenup.

So, for anyone considering getting married - or remarried - read Linda's article and make your decision.

Marital rape - or not?

by Gregg Herman on 04/07/15

A story in today Washington Post illustrates how difficult it is for the law to differentiate between legal and illegal conduct.  About 15 years ago, Iowa outlawed non-consensual sex between a husband and wife.  That makes a great deal of sense.

But, the issue of consensual vs. non-consensual sex is difficult enough when the parties are not married - cases of "he said/she said" are quite common and very difficult.

But this case adds the additional element of the wife having Alzheimer’s and - according to the prosecution, the inability to consent to sex.

If so, then the husband's conduct would be criminal.  But, where is the line between a spouse having a degenerative disease but still being able to consent - or not?

I certainly don't know the answer - I just post a link to the story to illustrate how difficult it is in certain cases to make define the line between something which would be private conduct and that which could cause someone to be convicted of a serious crime, labeled as a sex offender and perhaps being sentenced to jail.

Service by Facebook

by Gregg Herman on 04/06/15

My law firm has long served as editor of the System Book for Family Law, published by the State Bar of Wisconsin.  We are currently working on the annual supplement (which will, for the first time, modify the forms for same-sex marriage) and our attorney editor, Doug Baker, alerted us to an article in the NY Daily News where a judge is allowing a husband to be served with divorce papers on Facebook.

According to the article:

In a landmark ruling, Manhattan Supreme Court Justice Matthew Cooper is allowing a nurse named Ellanora Baidoo to serve her elusive husband with divorce papers via a Facebook message...[the wife]“is granted permission serve defendant with the divorce summons using a private message through Facebook”.

“This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged” by her hard-to-find hubby.

This actually makes sense.  If a person cannot be served personally - either because he or she is missing or is avoiding service - the law allows service by publication is an approved newspaper.  This is, of course, a fiction as I really doubt people avoiding service read approved newspapers.

Actually, it's far more likely that such a person would be reading Facebook (doesn't everyone?).  So, although FB is not - yet - an approved newspaper, maybe it is the way of service in the future.

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