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 VOL. 5 NO. 8 AUGUST 2004 |
In this Issue
A Word from Gregg Herman
New Book and Upcoming seminarsWisconsin Courts Updates
Analysis of Nicholas B.P. caseDecisions Across the Nation
Uniform Parentage Act; Waiver of spousal support in prenup; Psychological parentage; Support from Sub-S Corporation earnings; Effect of IVF agreement on parentage of surrogate mother and more.Family Law Online
Passport ConsentFamily Law and Mental Health
"Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families"New Publications
Relationship Rights (and Wrongs)Business Valuations
Gifts of Partnership InterestsFamily Law Mediation
Inclusion of Children in MediationFamily Law Related Articles
American Journal of Family Law; Family Advocate
Many attorneys keep a list of books to provide to clients and potential clients as a bibliography. I suggest you add to that list a new book, co-authored by my friend, Beth Bauer of Mequon. Please see the "New Publications" area below, which has a brief book review and a link for more information.
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As I reported last month, on September 21 (Milwaukee) and 22 (Madison), I will be co-moderating, with Madison Attorney Steph Beilke, a program on Advanced Divorce Financial Issues. The program will include business evaluators, accountants and vocational experts to examine important financial issues which are not typically discussed at most family law seminars. The program is being sponsored by the Professional Educations Systems, Inc. (PESI). Detailed information, including on-line registration, is available at the PESI website.
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As also reported previously, the ABA Family Law Section will be having its fall meeting in Milwaukee from October 20 to 24, 2004. This is wonderful opportunity to showcase our city and to meeting family law attorneys from around the country. Watch the ABA FLS website for details and registration information.
There were no family law cases decided by the supreme court or recommended for publication by the court of appeals this month. In lieu, we invite you to read our analysis of In re the Paternity of Nicholas B.P., Nos. 02-3390 and 03-1267 (recommended for publication) as published in the July 21, 2004 edition of the Wisconsin Law Journal.
The following cases are provided courtesy of Contributing Editor Laura W. Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. Please visit her website or drop her an e-mail.
Kristine Renee H. v. Lisa Ann R.
No. B167799
California Court of Appeals, Second District
June 30, 2004A woman may establish her parentage of the child born via artificial insemination to her lesbian partner by claiming second-parent status under the Uniform Parentage Act’s presumption of paternity section.
Full Opinion (PDF)
In re Rosendale
No. G031925
California Court of Appeals, Fourth District
June 28, 2004A valid waiver of spousal support in a prenuptial agreement will not be enforced if to do so at the time the provision is invoked would be unconscionable.
In re E.L.M.C.
NO. 03CA1121
Colorado Court of Appeals
July 1, 2004A trial court properly awarded equal parenting rights to a mother and her lesbian ex-partner where the partner showed she was the psychological parent of the child.
Zold v. Zold
No. 5D03-148
Florida Court of Appeals
June 25, 2004Even though a shareholding had a controlling interest in a Sub-S corporation, the Sub-S retained earnings should not have been attributed to the husband for purposes of support where a distribution may have breached his fiduciary duty to the other shareholders.
Cohan v. Feuer
No. SJC-09083
Massachusetts Supreme Judicial Court
July 7, 2004A stipulation that alimony would terminate upon the wife's death or remarriage did not entitle her to alimony payments from her deceased husband's estate.
Foster v. Hurley
No. 02-P-171
Massachusetts Court of Appeals
June 30, 2004An ex- husband may impose a constructive trust on life insurance proceeds that were distributed to a widower, where the ex-wife and ex-husband had stipulated that the ex-wife would maintain the ex-husband as beneficiary.
Gatfield v. Gatfield
No. A03-1618
Minnesota Court of Appeals
July 6, 2004Where the parties agree in a divorce settlement that the husband cannot waive his military retirement pay in order to receive military disability pay, the wife may sue to enforce the agreement.
Frankel v. Frankel
No. 100
New York Court of Appeals
June 29, 2004A divorce lawyer who is let go by a party may still seek fees from the opposing party after the discharge.
In re C.K.G.
No. M2003-01320-COA-R3-JV
Tennessee Court of Appeals
June 22, 2004A gestational mother who was impregnated with donor eggs fertilized by her husband’s sperm is the legal mother, despite the lack of genetic connection, because the IVF agreement between the facility and the gestational mother and the father evidenced all parties’ intent that the gestational mother be the legal mother.
Family Law Online Korey C. Lundin, a staff attorney with Legal Action of Wisconsin, Inc. in Green Bay, posted the following message on the Wisconsin Bar Association Family Law Section Listserv, which we felt was worth sharing for lawyers with clients who may be leaving the country with a minor child:
The State Dept. has a form that a non-applying parent can sign to consent to a passport being issued for a minor under 14 years of age.
Family Law and Mental Health The following is provided courtesy of Contributing Editor Christine Harness, Phd. Dr. Harness can be reached at (414) 961-3208:
Adolescent Well-Being in Cohabiting,
Married, and Single-Parent FamiliesAn article in the Journal of Marriage and Family, November 2003, Vol. 65 entitled "Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families" suggests that teens living with cohabitating stepparents often fare worse than teens living with two biological married parents or teens living in married stepfamilies. Further, adolescents living with single unmarried mothers are similar to teens living with cohabitating parents, with the exception that teens living with cohabitating stepparents experience greater delinquency and lower grade point averages. Socioeconomic circumstances contributed to the differences found among this sample, which was taken from the National Longitudinal Study of Adolescent Health.
This journal is published by the National Council on Family Relations, and can be accessed online, or by contacting the National Council on Family Relations at 1-888-781-9331.
Relationship Rights (and Wrongs)
By Beth Sampson with Melinda Wyant Jansen, M.S. (Checkpoint Publishing, 2004)A very user-friendly self-help guide by self-professed "non-experts," the book identifies "rights" which all individuals have within their relationships. The author divides the rights into three categories: Personal, Benefit, and Safety. Most helpful are the instruments and surveys which allow a reader to establish "where they are" and "where they would like to be" in terms of their relationships. An easy read, the book avoids the use of too many "industry terms" and seems especially helpful for those who are wondering what went wrong in past relationship(s) or what might be going wrong in their current relationship(s).
The following is provided by Contributing Editor Timothy P. Muehler, JD, CPA/ABV, CVA, Clifton Gunderson LLP, Certified Public Accountants. Tim can be reached via e-mail.
Mark and Michele Senda
T.C. Memo 2004-160
July 12, 2004This is another "bad facts" case. This case asks, when a general partner funds a limited partnership and in turn gifts percentages of partnership ownership, can discounts be taken on this gift or is this an indirect gift of the underlying stock to the other ownership interests? To resolve the issue, the tax court relied on the Limited Partnership Agreements, the timing of the contributions in relation to the gifting, and recent related tax court decisions.
Two Family Limited Partnership's were set up; the parents contributed stock to the partnerships and on the same day of the contribution, gifted their three children limited FLP ownership interests. Neither FLP followed their Limited Partnership Agreement's stipulation requiring that annual financial statements be prepared, and an annual meeting needed to be recorded. In addition, all legal fees and filing costs for the family limited partnership formation were not recorded as a liability or expense on the FLP's tax returns. The contribution and the gifting of limited partnership interests occurred on the same day, the petitioner claimed that the gifting of the partnership interests occurred prior to the partnership contribution. The tax court backed its decision by looking into prior case judgments. The Tax Court found that the gifts of the limited interests to the children were essentially indirect gifts of stock, and not limited partnership ownership interest gifts, therefore discounts would not be appropriate.
Family Law Mediation The following is provided courtesy of Contributing Editor Kathleen Baird, a family law attorney and mediator in Wauwatosa, Wisconsin. She can be reached via e-mail.
New Techniques for the Inclusion of Children in Mediation
IIf, when and how to include children in the mediation process has been the subject of much debate within the mediation community. Most of the available research indicates a need for effective techniques to afford parents the opportunity to take into consideration their children's perspectives, feelings, ideas and preferences. Two clinical social workers from the Los Angeles Superior Court Conciliation services have developed a new model for the inclusion of children in the mediation process. This model was created to protect and safeguard children by following a step-by-step process that a mediator utilizes to assess the impact on the children and control the interaction between parents and children This highly structured methodology includes specific screening criteria for utilization of the model, assessment criteria to determine suitability of the parents, characteristics of parents not suitable for the model, questions to determine suitability of the child and a detailed sequence of interviews with agendas. The mediator plays a pivotal role in protecting the child and assessing the appropriateness of the model for a particular family. While it is anticipated that few families meet the criteria for utilizing this methodology, when appropriate, the authors believe that it is a very effective tool for mediators. In addition, the model requires that the mediator possess an advanced degree or extensive practical experience in the behavioral sciences.
See: "Empowering Children in Mediation" by Ernest A. Sanchez and Sherrie Kibler-Sanchez, Family Court Review, Vol. 42, No. 3, July, 2004 at Sage Publications.com.
Another option for including children in mediation has emerged with the advent the collaborative family law process and the attendant training of mental health professionals to serve as neutral child specialists in that process. Mediation clients could retain a collaboratively trained neutral child specialist who would interview them and their children and provide feedback regarding the children's needs and perspectives. This option may potentially have a broader spectrum of families for whom it is appropriate as well as providing a resource for the mediator who is not a mental health professional.
The Summer, 2004 issue of American Journal of Family Law, Volume 18, No. 2, includes the following articles:
"Cryopreserved Embryos: Understanding and Making Choices", by Susan L. Crockin and Nanette Elster
"The Basics of Collaborative Family Law: A Divorce Paradigm Shift", by Sherri Goven Slovin
"How to Understand and Use Business Valuation Reports: An Attorney’s Quick Reference", by Grover Rutter
"Cross-Examination: The Rules of the Game", by Jacqueline M. Valdespino
"Family Law Urban Legends", by Gregg Herman
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The summer, 2004 issue of the Family Advocate, published by the ABA Family Law Section is a client manual, "Surviving Your Divorce and Beyond". Articles include:
"Understanding Your Divorce", by Mark E. Sullivan
"Hand in Hand With Your Lawyer", by Daniel L. Bray
"How to Turn Your Case into the Divorce from Hell", by Michelle Kane Cummings
"Know When to Settle", by Samuel J. Good man
"The High-Conflict Family: What ongoing fighting means for your children", by Miguel A. Firpi and Andrew Wenger
For ordering or subscription information (the current issue may not be available yet), visit the Family Advocate website or call 1-888-859-8081.
Our Contributing Editors
Atty. Kathy Baird (Mediation)
CPA Scott Franklin. Kohler & Franklin, Milwaukee (Tax Tips)
Prof. Charles Kindregan, Suffolk University Law School
Dr. Christine Harness, Ph.D., Milwaukee (Mental Health)
Atty. Laura Morgan, Family Law Consulting, Charlottesville, VA (Family Law Cases)
CPA Timothy P. Muehler, Clifton Gunderson LLP
Dr. Sanford Portnoy, Boston, MA (Mental Health)
CPA Everett Stone (Taxes and business valuations)
Scott J. Wildman, CPA/ABV, CVA of V/B Business Valuations, Inc.
Atty. William Brown (Employee Benefits)We thank them for their contributions!
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