 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 VOL. 6 NO. 6 JULY 2005 |
In this Issue
A Word from Gregg Herman
Welcome to new contributing editorWisconsin Courts Updates
Supreme grants review of placement modification case, Family support and life insurance caseDecisions Across the Nation
Lump-sum alimony in prenuptial agreement, SSCRA and change in custody, Homosexuality and custody and much moreLegislative Watch
UCCJEA advancesAdoption
Legal Rights of Foster ParentsBusiness Valuations
Value of CPA practice and of funeral homeDivorce Financial Analysis
How Tenable is your Pension ValuationFamily Law Mediation
Dealing With Power Imbalance
With this issue, we welcome our newest contributing editor, Garrick G. Zielinski, Divorce Financial Analyst. Garrick has over 20 years of experience working with the financial aspects of divorce, and recently launched Divorce Financial Solutions, LLC. I asked Garrick to describe his business and his response follows:
I have assembled a team of professionals including certified divorce financial analysts (CDFA) and understudy actuaries. DFS professionals have developed the special aptitude required to provide financial expertise to you or your client incident to divorce. In addition to retirement plan valuations compliant with Rule No. 34, DFS services include, QDRO drafting, individual financial counseling, budget and debt reduction services, as well as bifurcation and tax issues regarding other financial assets. DFS can also produce powerful case exhibits in the form of spreadsheets and graphs based on data that illustrates the effect of any given settlement offer. Finally, for the client that needs special attention after the divorce, DFS will provide post divorce financial planning services which enable your client to get organized and financially on track after divorce. You can rely on us with confidence and trust. All professionals at DFS do not sell financial products nor represent any financial companies. All of our services are performed on an hourly or flat fee rate only.
The results of an inaccurate or misunderstood value determination, regardless of whether it is high or low, most often leads to an undesirable financial consequence. DFS performs a diligent analysis and we have a thorough understanding of financial assets. We are certified professionals able to demonstrate through education, training and experience our knowledge and competence with financial matters incident to divorce.
 |
On June 1, 2005, the Supreme Court of Wisconsin granted the petition for review of the unpublished Court of Appeals District IV (transferred from District I) opinion in Landwehr v. Landwehr, No. 2003AP2555 (Wis. Ct. App. Jan. 27, 2005) (per curiam) (unpublished).
This is the first family law case on the court's September 2005 Term docket.
The issue as identified by the Clerk of Supreme Court is:
"What is the proper standard of review when determining a motion to modify legal custody in light of Wis. Stat. § 767.24(4)(a)(2) that requires a court to set a placement schedule that maximizes the amount of time a child may spend with each parent, and Wis. Stat. 767.352(1)(b)2 (sic) [N.B.: 767.325(1)(b)2 is the proper statute] that presumes that the current allocation of legal custody is in the best interest of a child?"For our analysis of the case, as recently published in the Wisconsin Law Journal, visit our articles archive.
•••
As we reported in a FLU alert, this month, the District II Court of Appeals issued their opinion in Vlies v. Brookman, No. 2004AP315 (Wis. Ct. App. June 15, 2005) (recommended for publication) reversing the judgment of Judge Paul Malloy (Ozaukee County Cir. Ct.) regarding family support and attorney fees and affirming his decision regarding life insurance.
A full summary of the case is in our alert archives.
A more complete, two-part analysis, of the case will be published in upcoming issues of the Wisconsin Law Journal.
•••
And speaking of our analysis of cases, as we reported last month, the second part of our analysis of the supreme court decision in Chen v. Warner, 2005 WI 55 (May 6, 2005) has now been published in the Wisconsin Law Journal.
A full copy is posted in our article archives.
|
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.
Spahmer v. Gullette
No. 03SC751
Colorado Supreme Court
June 6, 2005In an initial custody determination, a trial court cannot order a parent to live in a specific location. Rather, the trial court must take as given the location in which each parent intends to live and then allocate parental responsibility according to the best interests of the child.
Full Opinion (PDF)
Langley v. Langley
No. S05F0565
Georgia Supreme Court
May 23, 2005A lump-sum alimony due a wife under a prenuptial agreement cannot be offset by temporary alimony and attorney's fees which the court awarded.
Grantham v. Grantham
No. 03-2100
Iowa Supreme Court
June 3, 2005After the father was called to active duty, the mother moved for a change in custody from the father to the mother, which was granted. The Court of Appeals reversed, relying on the Soldiers and Sailors Civil Relief Act. The Supreme Court reversed the Court of Appeals, holding that SSCRA did not preclude consideration of the change of custody.
Cohen v. Cohen
No. 1993
Maryland Court of Special Appeals
June 7, 2005The trial court did not exceed its authority by imposing as a condition of custody that the father abstain from alcohol. Moreover, the father, a self-employed parent, cannot deduct from gross income voluntary contributions to a retirement plan; it is not a necessary business expense.
State v. Froland
No. A-4741-02T1
New Jersey Superior Court, Appellate Division
June 3, 2005A parent with joint custody can be guilty of kidnapping his or her own child when he or she flees the jurisdiction with the intent to permanently deprive the other parent of custody.
Lewis et al. v. Harris et al.
No. A-2244-03T5
New Jersey Superior Court, Appellate Division
June 14, 2005The New Jersey Constitution does not compel the state to allow same-sex couples to marry.
Landis v. Landis
No. DR0203154; A123666
Oregon Court of Appeals
June 1, 2005Wife moved to reopen the divorce decree on the grounds that Husband did not disclose a lump-sum Veterans' Disability payment. The court reopened the decree, considered the Veterans' Disability payment, and redivided the property. Husband appealed, arguing that Mansell forbids consideration of the disability payment. The Court of Appeals affirmed, holding that the only disability benefits that the statute protects from division are disability benefits that substitute for waived retirement pay. Husband, according to his affidavit, did not serve in the military long enough to receive retirement pay. Like many veterans who receive disability benefits, his are neither directly nor indirectly "retirement pay." Thus, they fall outside of USFSPA's protective scope.
Berry v. Berry
No. E-2004-01832-COA-R3-CV
Tennessee Court of Appeals
May 31, 2005The mere possibility that a parent's homosexuality may have an affect on a child's well-being is not a sufficient change in circumstances to warrant a change in custody; rather, only concrete proof of an adverse effect on the child will suffice.
|
On June 15, 2005, the Wisconsin Senate passed SB 112, as amended, which replaces the Uniform Child Custody Jurisdiction Act (1968) (UCCJA), found at Wis. Stat. § Ch. 822, with the Uniform Child Custody Jurisdiction and Enforcement Act (1997) (UCCJEA). Forty-two states, the District of Columbia and the U.S. Virgin Islands have adopted the UCCJEA, with four other states (including Wisconsin) having pending legislation.
In general terms, the two largest advances of the UCCJEA over the UCCJA is: a) that the UCCJEA reconciles UCCJA principles with the federal Parental Kidnapping Prevention Act and b) the UCCJEA adds interstate civil enforcement for child custody orders.
A more detailed description of the differences between the two acts can be obtained from the National Conference of Commissioners on Uniform State Laws.Wisconsin's specific legislation can be downloaded in PDF format at:
|
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.
Legal Rights of Foster Parents
Foster parents are the heart and soul of our juvenile court placement system. They provide relief when birth parents’ misbehavior results in removal of children from their care. They serve as adoptive resources for children whose parental rights are terminated. Foster parents are given limited placement protection for the children whom they agree to provide care for.
It is important that foster parents know their legal rights. If a child has been in foster placement for more than six months with a foster couple, the supervising agency or department must give the foster parents written notice of intent to remove the child, with a description of reasons for the removal. It is not unusual for an agency or department to simply remove a child without giving the formal written notice. If that occurs or if a removal is attempted before 30 days has passed after receipt of the notice to remove, the foster parents have a right to request a hearing on the subject of the removal. Objecting to the removal on a timely basis should delay the removal of the child until such hearing is completed or until 30 days after the receipt of the notice of change in placement, whichever occurs later. There are exceptions if the safety of the child requires it or if the child is being placed for adoption.
It is important for foster parents to know that they have a certain level of placement protection, as does the child. It is important to understand that a removal hearing must focus on the best interests of the child, not merely whether a parent has met conditions for return or whether the safety of the child would not be endangered by return to a parent. See Sec. 48.64(1m) and (4), Stats.; Richard D. v. Rebecca G., 228 Wis. 2d 658, 599 N.W.2d 90 (Ct. App. 1999).
|
The following is provided by Contributing Editor Timothy P. Muehler, JD, CPA/ABV, CVA, Clifton Gunderson LLP, Certified Public Accountantsy. You can reach Tim via e-mail.
Gill v. Gill
2005 La. App. LEXIS 587
March 9, 2005In this marital dissolution, the issue was the value of the wife's interest in her CPA practice (CPA practice) and the value of the couple's funeral home (Gill LLC) that was operated by the husband.
|
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.
How Tenable is your Pension Valuation
Since 1982 short-term interest rates have fallen precipitously. The economy has gone from a high inflationary, high interest rate economy to a low interest rate economy and inflation is not existent. The Society of Actuaries recognized how the ever changing economy affected pension valuation issues in divorce and addressed those issues with Rule No. 34.
|
Dealing With Power Imbalance
How a mediator deals with power imbalance is affected primarily by the mediator's beliefs about power, i.e., are fair and workable agreements reached only when power is relatively balanced between the parties; is the mediator responsible to manage the balance of power; or, are the parties trusted to make the decision about how much power they have, want and are willing to use? While there are those who believe that a mediator should work with existing power relationships, the prevailing view within the mediation community seems to be that a mediator has the responsibility to act to correct power imbalances that interfere with a couple's ability to negotiate a fair agreement. Practical experience and social psychological experimentation indicate that power symmetry results in negotiations that are more cooperative, function more effectively and are less exploitative or manipulative. Techniques for addressing power imbalances include: supporting the weaker party by managing the mediation so that the parties have equal time to tell their stories and present proposals, adjusting the pace of mediation to assist the weaker party in expressing their ideas and needs, increasing the flow of information, supporting the legitimacy of a participant's views, interrupting coercive behavior, encouraging cooperative interactions and controlling the parties' expressions of power.
See "Understanding and Responding to Power in Mediation", Michael Lang, Divorce and Family Mediation, edited by Jay Folberg, Ann Milne and Peter Salem.
|
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)
|
Our Firm | Meet
Our Attorneys | Practice Areas
| Articles & Resources |
| FamLaw Update e-Mail | Contact
& Directions | Back to Main |
©
2010, Loeb & Herman, S.C.
Suite 1725 - Chase Tower
111 East Wisconsin Avenue
Milwaukee, WI 53202-4868
414.272.5632 | Fax 414.272.7918