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 VOL. 6 NO. 6 JUNE 2005 |
In this Issue
A Word from Gregg Herman
Advanced Financial Issues SeminarWisconsin Courts Updates
Chen v. Warner analysisDecisions Across the Nation
Survivor annuity for federal pension, Stepparent visitation, Standard of care during sexual relations (yes, you read that right!), Contingency fees for law practice, Discovery order for computer forensic experts and much more.Family Law Online
Support Web site for mothers without custodyFamily Law & Mental Health
"How Divorce Affects Offspring: A Research Approach"Tax Tip Corner
Whipsaw Positions, Section 2036 partnership activity requirementsFamily Law Related Articles and Publications
American Journal of Family Law; Family Law Quarterly Law in 50 States Issue
Please save Tuesday morning, September 20 (Madison) and Wednesday morning, September 21 (Milwaukee area) for our second seminar on "Advanced Divorce Financial Issues", sponsored by Professional Education Systems, Inc. (PESI) This year, the program will include dividing businesses (both through buy-outs and in-kind division) and financial planning for long-term and limited term maintenance orders.
We will have more details in this space next month, or check PESI’s Web site.
As we reported in a special alert, the Wisconsin Supreme Court decided a highly important family law case involving shirking, Chen v. Warner. You can access the special alert on our office Web site.
Because we believe this case will have major impact on family law cases in Wisconsin, we will post my 2-part analysis of this case on our Web site, as it appears in my column in the Wisconsin Law Journal. The first part can now be accessed on our office 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.
Warren v. OPM
No. 04-3397
United States Court of Appeals, Federal Circuit
May 16,2005The specific language in a domestic relations order that granted an ex-wife one-half of her husband's federal pension benefits was insufficient to guarantee her receipt of a survivor annuity that the husband had previously elected for her.
Full Opinion (PDF)
Citizens for Equal Protection, Inc. v. Bruning
No. 4:03CV3155
United States District Court, District of Nebraska
May 12,2005A constitutional amendment to the Nebraska state constitution, which defined marriage as a union between a man and a woman, imposes significant burdens on both the expressive and intimate associational rights of gays and creates a significant barrier to the gays' rights to petition or to participate in the political process. Moreover, the broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals.
Robinson v. Ford-Robinson
No. 04-12335
Arkansas Supreme Court
May 5, 2005A stepmother in loco parentis to a child may be awarded visitation over the objections of the child's natural father. Neither Troxel nor Linder, the Arkansas Supreme Court's decision concerning grandparent rights, precludes the visitation awarded by the circuit court in this case for two reasons: First, the visitation rights in this case arose out of a custody determination in a divorce proceeding rather than from a lawsuit brought by nonparents pursuant to a statute. Visitation was incident to and part of the circuit court's determination of custody. Second, the party awarded visitation in this case was found by the circuit court to stand in loco parentis to the child. In other words, the court granted visitation to a person it considered to be, in all practical respects, a non-custodial parent.
Hillier v. Iglesias
No. 4D03-4204
Florida District Court of Appeals, Fourth District
May 4, 2005A wife was not entitled to an increase in alimony based the argument that inflation had eroded the earning power of her award and she needed an increase to maintain her at the marital standard of living.
Foster v. Hurley
No. SJC 09375
Massachusetts Supreme Judicial Court
April 28, 2005A separation agreement requiring a wife to maintain life insurance policies naming her ex-husband as the beneficiary is enforceable, but the agreement doesn't apply to a different policy obtained after the divorce.
Doe v. Moe
No. 02-P-381
Massachusetts Court of Appeals
May 16, 2005In a case where a woman caused a penile fracture of her partner by changing sexual positions abruptly, the court held that sexual partners would not be held to a reasonable standard of care. “While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.”
Foreman v. Foreman
No. 250412
Michigan Court of Appeals
May 3, 2005A wife was entitled to $1,417,000 in damages in a civil action against her ex-husband for his fraud when he deliberately undervalued his car dealership during their divorce proceedings. In affirming the jury verdict, the court reiterated the right of a spouse to pursue an independent action for fraud based on representation made during a divorce.
Stageberg v. Stageberg
No. A04-1230
Minnesota Court of Appeals
May 3, 2005Contingency fees earned by husband's law practice and attributable to work during marriage is marital property. The “historical income” approach used the by trial court was error.
Steneken v. Steneken
No. A-100-2003
New Jersey Supreme Court
May 18, 2005It is not “double counting” to consider a spouse's salary as a method for valuing an asset (e.g., capitalization of excess earnings), or to normalize income in order to increase the value of the company when the salary was excessive, and to then consider the income received for purposes of alimony.
Etzion v. Etzion
No. 2005 N.Y. Slip Op. 25115
New York Supreme Court, Nassau County
February 17, 2005Claiming her husband had a history of "past fraudulent conduct", the wife wanted her computer forensic experts to "impound, clone and inspect" her husband's "computer servers, hard drives, individual workstation PC, laptop and other items containing digital data". She asked that he pay her attorney fees and computer forensic expert costs. He defended by claiming the request was overbroad, intrusive and burdensome. He also questioned his wife's counsel's ability to safeguard his data based on an alleged history of reckless and careless data handling. The court ordered: 1. Both parties' forensic experts will meet at the data collection center, along with a court-appointed referee; 2. Wife's expert will copy the hard drives and immediately turn them over to the referee; 3. After all drives are copied, the experts and referee will examine them; 4. Both parties will receive hard copies of relevant business records; 5. The referee will retain custody of the drive images until termination of litigation; 6. Wife will pay for all production costs; and 7. Each party will advance their own counsel fees and expert costs, subject to reallocation at trial.
State ex rel. Oklahoma Bar Association v. Downes
No. SCBD-4885
Oklahoma Supreme Court
May 10, 2005A lawyer was properly suspended for one year for having an affair with a divorce client, even though the client consented to the liaison.
••• News •••
Protection from Religion: A divorce judgment ordered father Thomas Jones and his ex-wife Tammy Bristol to protect their nine-year-old son from their ""non-mainstream religious beliefs and rituals." Neither parent asked for the order, and both were stunned.
Family Law Online Thanks to Attorney Rob V. Robertson of Austin, Texas, we highlight the Web site of The National Association of Non Custodial Moms, Inc. The Web site provides support, inspiration and resources for woman who find themselves in that situation.
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.
A 1996 book entitled "How Divorce Affects Offspring: A Research Approach" by Kathryn Black and Michael Stevenson (Westview Press, Boulder, CO) provides a comprehensive resource for those interested in the effects of divorce on children. Based on empirical literature, this book outlines methodology used by experts to reach their conclusions, family relationships, cognitive development, possible interventions, and numerous other issues that would be of interest to those involved in the practice of family law or mental health interventions for children from divorced families. It can be viewed online.
The following is provided courtesy of Contributing Editor Scott B. Franklin, Certified Public Accountant and Attorney. You can reach Scott via e-mail.
One of the easiest ways to attract attention from the I.R.S. and Wisconsin. Dept. of Revenue is to have a mismatch of amounts reported by one spouse as alimony paid versus what the other spouse reports as alimony income. When the payor reports less deduction than the recipient reports as income, the tax departments are happy. However, when the recipient under reports what the payor claims to have paid, often times the agencies issue bills to both parties, totally disallowing the deduction and reporting all payments as income to the other. These assessments in the alternative (i.e. Whipsaw Positions) allow the tax people to claim both sides of a dispute; if they would prevail against both taxpayers, double the tax money has been received.
Taxpayers involved in such situations have often felt it unfair for the tax agencies to argue both sides of the coin. Well, the Walker case was recently decided by the Federal Claims Court (in April 2005) and the court confirmed that the I.R.S. was permitted to make such alternative assessments in order to protect its interests. Only pursuing one party to a transaction may jeopardize the ability to properly tax a transaction and so it is permissible to take inconsistent positions to ensure that at least one of the participants pays the proper taxes due.
•••
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.
Estate of Virginia A. Bigelow, Deceased, Franklin T. Bigelow, Jr., Executor, Petitioner, v. Commissioner of Internal Revenue, Respondent
T.C. Memo. 2005-65
Filed March 30, 2005This case emphasizes the importance of Section 2036 partnership activity requirements, and the IRS's translation of these requirements. In this case, rental real estate was transferred into a family limited partnership; the IRS determined that the transfer was to facilitate gift giving and to reduce Federal estate tax. A deficiency was issued against the Estate of Virginia A. Bigelow in the amount of $217,480, the estate tax on the excluded rental real estate.
The Spring, 2005 issue of American Journal of Family Law (Volume 19, No. 1) includes the following articles:
- "The Divorce is Over - What About the Kids?", by Mitchell K. Karpf and Irene M. Shatz, PhD
- "Representing ‘High Profile’ Clients in Family Law Cases, by Randall M. Kessler and Sarah McCormack
- "False Allegations of Parental Alienation", by Ira Daniel Turkat, PhD
- "Paternity Fraud, the Poor Person’s Adoption and Interests of the Child", by Thomas L. Leeds
- "Confidentiality Broadly Defined", by David L. Walther
•••
The Winter, 2005 edition of the Family Law Quarterly includes the annual Family Law in the Fifty States case digests and charts summarizing various aspects of family law across the country. This volume is a must for the shelves of a family law attorney.
In addition to case digest and the annual survey of periodical literature, the issue includes the following article:
- "Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child", by Janet R. Johnston
For ordering or subscription information (the current issue may not be available yet), visit the Family Law Quarterly Web site. You can also call 1-888-859-8081.
•••
Volume 19, Number 1 (2004) of the Journal of the American Academy of Matrimonial Lawyers (JAAML) is devoted to Torts and Crimes. Articles include:
- "Duress Diverts Dual Tax Liability for Joint Returns", by Melvyn B. Frumkes
- "Post Traumatic Stress Disorder and the Practice of Family Law", by Lynne Gold-Bikin and Jonathan W. Gould
- "Domestic Violence Ten Years Later", by Edward S. Snyder and Laura W. Morgan
- "Attorneys Duty to Report Child Abuse", by Lisa Hansen
- "Behind the Glass Wall: Barriers that Incarcerated Parents Face Regarding the Care, Custody and Control of their Children", by Pamela Lewis
Subscriptions to the JAAML are available for $25 per year or individual issues can be purchased for $15 per copy by writing to: Journal of the American Academy of Matrimonial Lawyers, 150 North Michigan Avenue, Suite 2040, Chicago, IL 60601
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)
Atty. Stephen Hayes (Adoption)
Atty. Elizabeth Neary (Adoption)We thank them for their contributions!
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