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 VOL. 6 NO. 8 AUGUST 2005 |
In this Issue
A Word from Gregg Herman
Advanced Divorce Issues SeminarWisconsin Courts Updates
Waiver of privilege caseDecisions Across the Nation
Federal Employees Group Life Insurance Act, COBRA and legal separation, Attorneys fees for litigation validity of prenup, Voluntary retirement and much more.Legislative Watch
Virtual visitation billFamily Law and Mental Health
"Divorce Wars: Interventions With Families in Conflict"Adoption
Involuntary Termination of Parental RightsFamily Law Mediation
Speaking to Be UnderstoodDivorce Financial Analysis
Military Retired Pay and Concurrent ReceiptFamily Law Related Articles and Publications
Family Advocate Client Manual, Family Law Quarterly issue on domestic violence
On September 20 (Madison) and 21 (Brookfield), I will be speaking and moderating a program for Professional Education Systems (PESI) on “Advanced Divorce Financial Issues”. This year, we will examine two typical and difficult issues: How to handle the case where the value of the business is significantly larger than the other assets and the effect of Rohde-Giovanni on post-judgment maintenance awards.
For more information or to register visit the PESI Web site.
In February, 2004, a Wisconsin Court of Appeals decision raised a great deal of concern about the possibility of a parent waiving therapist-patient privilege on behalf of a minor child. My analysis of the case as published in the Wisconsin Journal of Family Law can be found in our article archive.
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On July 8, 2005, the Wisconsin supreme court affirmed the court of appeals decision, but on very narrow grounds. The court held that there was no privilege due to the mandatory reporting obligations under Wis. Stat. §48.891. The court handled the issue of waiver for other communication in a footnote:
“We limit the breadth of the exception's application because Kirstin [the child] went to counseling for many reasons. The exception applies to the extent that any communications made for mental health treatment regarding the sexual abuse are not privileged. Kirstin's other communications that related to other reasons for attending counseling remain privileged, unless they relate to the opinion that Kirstin was abused or neglected.” At fn. 20.
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Last month, we reported the case of Vlies v. Brookman, No. 2004AP315 (Wis. Ct. App. June 15, 2005) (recommended for publication). Our full analysis of the case was published in the Wisconsin Law Journal in two parts. Both parts can be accessed on our Web site.
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 Web site or drop her an e-mail.
Metropolitan Life Ins. Co. v. Zaldivar
No. 04-2469
United States Court of Appeals, First Circuit
June 27, 2005Children's claim against insured's second wife, alleging breach of decree and unjust enrichment and seeking imposition of constructive trust against policy proceeds, was preempted by Federal Employees Group Life Insurance Act (FEGLIA) which took precedence over state-court divorce decree which ordered insured to maintain life insurance policy for benefit of his children from his first marriage, since amendment to FEGLIA allowing divorce decree to govern beneficiary designation of FEGLIA policy only where copy of decree was received by employing agency before death had not occurred.
Simpson v. T.D. Williamson, Inc.
No. 04-5084
United States Court of Appeals, 10th Circuit
July 12, 2005Under COBRA, 29 U.S.C. §§ 1161-1168, a “legal separation” occurs only upon entry of a final court decree adjudicating the parties legal rights and obligations but preserving the marriage bond.
In re Marriage of Klug
No. CO45571
California Court of Appeals, Third District
July 7, 2005The proceeds from a malpractice action were the wife's separate property because the cause of action for malpractice accrued after the separation of the parties.
Full Opinion (PDF)
Lashkajani v. Lashkajani
No. SC 03-1275, 30 Fla. L.Wkly. S496
Florida Supreme Court
June 30, 2005Provision in prenuptial agreement that attorney fees would be awarded to prevailing party in any action to enforce agreement was enforceable.
Farish v. Farish
No. S05F1180
Georgia Supreme Court
June 30, 2005Where the father earned $10,374 per month, a high-income case, an award of child support to the mother in the amount of $3,000 per month for three children was not excessive appropriate.
Strong v. Omaha Construction Industry Pension Plan
No. S-03-1403
Nebraska Supreme Court
June 24, 2005A spouse can waive his or her rights to ERISA benefits through a divorce decree, and need not specifically waive beneficiary designation in the plan documents.
Randazzo v. Randazzo
No. A-15-04
New Jersey Supreme Court
June 28, 2005A divorce court may order the sale and distribution of proceeds from the sale of marital property prior to the final judgment of divorce under a statute that provides the court may make such order as to alimony or maintenance of the parties as circumstances render fit, just, and reasonable.
Clark v. Foust-Graham
No. COA 04-1266
North Carolina Court of Appeals
July 19, 2005As matter of first impression, a marriage may be annulled on the grounds of undue influence.
Ebach v. Ebach
No. 20040306
North Dakota Supreme Court
July 13, 2005Totality-of-the-circumstances analysis applies in determining whether supporting spouse's voluntary retirement constitutes a material change in circumstances that would support modification of spousal support obligation; factors include supporting spouse's age, health, and motivation for retirement, age at which others engaged in same line of work normally retire, needs of receiving spouse, and ability to pay support after retirement.
Soltero v. Wimer
No. 22942-4-III
Washington Court of Appeals, Division 3
July 12, 2005The trial court did not abuse its discretion by awarding a female cohabitant $135,000 as an equitable property distribution at end of relationship, even though the male cohabitant's property and business assets were acquired before the relationship or purchased with separate funds, where the female cohabitant contributed resources to the success of the male cohabitant's businesses as more than just an employee, the male cohabitant exclusively devoted his community-like endeavor to the improvement of his separate interests, and the male cohabitant's net estate grew from $1.5 million to in excess of $4.5 million during relationship.
Legislative Watch Is SB 244 Needed?
SB 244 has been introduced to allow Wisconsin courts to make virtual visitation orders. Is this legislation needed? Would it be helpful? Our analysis, as published in the Wisconsin Law Journal is posted on our office Web site.
The following is provided courtesy of Contributing Editor Christine Harness, Phd. Dr. Harness is in private practice, specializing in individuals and couples therapy and is an approved parenting course provider for Milwaukee County. She can be reached at (414) 961-3208
"Divorce Wars: Interventions With Families in Conflict"
Author Elizabeth M. Ellis, Ph.D. discusses how to protect children through the divorce process in her book entitled, "Divorce Wars: Interventions With Families in Conflict" (May, 2000). Dr. Ellis provides mental health and legal professionals with helpful information to help guide a family through divorce. Ordering information and a brief synopsis can be viewed online.
The following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of The Schroeder Group, Waukesha Wisconsin. Attorneys Hayes and Neary are members of the American Academy of Adoption Attorneys and handle adoption, foster care and surrogacy cases throughout the State of Wisconsin. They can be reached at (262) 798-8220 and via their Web Site.
Involuntary Termination of Parental Rights
In order for an adoption to take place, a child must be "eligible" for adoption. In other words, either his or her parents must be deceased or their parental rights lawfully terminated. When both parents consent to termination, adoption can take place six months after adoptive placement. However, if a parent objects to the termination of their parental rights, that parent is entitled to a jury trial to determine if there are legal grounds to involuntarily terminate rights. Wis. Stats. §48.415 lists available grounds for involuntary termination of parental rights.
At the fact-finding phase of an involuntary TPR, the jury hears evidence on grounds. And even though the "best interest" or disposition phase occurs only if the jury determines that grounds for termination exist, the child's guardian ad litem has the opportunity to participate in the initial phase. The determination of whether grounds exist is the only issue within the purview of the jury. They have no say in what ultimately becomes of the child.If the jury determines that grounds exist, the court is directed by Wis. Stats. §48.424 to find the parent unfit. That is not the end of the process, however. It is then up to the court to determine whether it is in the best interest of the child to terminate parental rights. One does not necessarily follow the other. Expert testimony can be elicited on behalf of the unfit parent regarding progress that parent has made towards being a responsible adult and the potential damage that might be caused to the child should the parent-child relationship be severed. And if the court determines that termination is contrary to the best interest of the child, that does not necessarily mean that the child will be reunited with that parent. Alternative arrangements for care and custody, such as guardianship, may be appropriate. But adoption by a third party will not be allowed to take place.
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.
Speaking to Be Understood
Most divorce mediators come from the legal or mental health professions. Understandably, they often use the jargon of their professions in their mediation conversations. Lawyers may use phrases such as "I would like each of you to state your position" or " Please state the facts as you believe them to be." A more legalistic format for the mediation is conveyed by words such as position, argument and facts, all of which set a more adversarial tone. Therapists convey a more therapeutic approach by using the words, share, feelings and anxieties. The mediators job is to speak conversationally in a manner that is appropriate to the age, background and culture of the parties. It is critical for mediators to appreciate that word choice sends its own message. Using a therapeutic mode of communication may receive a smirk from two highly competitive lawyers, while legalistic language may create anxiety and fear for unrepresented parties who are suspicious of lawyers. It is the skilled mediator who mirrors the speech patterns of clients, thereby creating rapport with clients and increased understanding.
See "Managing the Communication Process in Mediation" by Nina R. Meierding, Divorce and Family Mediation, Edited by Jay Folberg, Ann L. Milne and Peter Salem.
The following is provided courtesy of Contributing Editor Garrick G. Zielinski, CFP, CDFA, CDS. Mr. Zielinski is President of Divorce Financial Solutions, LLC specializing in retirement plan valuations, QDRO's and divorce financial counseling. You can reach Mr. Zielinski at 414-294-4755 or via e-mail.
Military Retired Pay and Concurrent Receipt
Effective January 1, 2005, those retirees rated at 100% disabled by the VA will receive their full concurrent receipt retroactive to the beginning of the year, eliminating the remaining 9-year phase-in for full benefits. This change in law will potentially affect payments to some former spouses under the Uniformed Services Former Spouses' Protection Act (USFSPA). For more information on this subject, go to:
The Summer, 2005 edition (Volume 28, No. 1) of the Family Advocate, published by the ABA Family Law Section, is a “Client Manual, Illuminating 200+ FAQs: Frequently Asked Questions About Divorce”.
Articles include:
- “Good Counsel: How to Get What you Need From Your Lawyer?”
- “Soon-To-Be-Ex Etiquette”
- “The Road to Settlement”
- “Domestic Violence Changes Everything”
- “The Move-Away Case”
- “Divorce and the Military Spouse”
- “Postdivorce: Moving On With Your Life”
Loeb and Herman, S.C. is proud that Attorney Kirsten Keegan is one of the authors of this handbook
For ordering or subscription information (the current issue may not be available yet), visit the Family Advocate Web site.
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The Spring, 2005 edition of the Family Law Quarterly includes the following articles:
- “Lawyer Malpractice and Domestic Violence: Are We Revictimizing Our Clients” By Margaret Drew
- “Domestic Violence and Mediation: Responding to the Challenges of Crafting Effective Screens”, by Jane C. Murphy and Robert Rubinson
- “Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What Does Psychological Research Tell Us?”, by Nancy S. Erickson
- “The Civil Rights Remedy of the 1994 Violence Against Women Act: Struck Down but Not Ruled Out”, by Julie Goldscheid
For ordering or subscription information (the current issue may not be available yet), visit the Family Law Quarterly Web site.
Our Contributing Editors
Atty. Kathy Baird (Mediation)
Garrick G. Zielinski CFP, CDFA, CDS, CDP, Divorce Financial Solutions, LLC
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)
Atty. Stephen Hayes (Adoption)
Atty. Elizabeth Neary (Adoption)
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