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 VOL. 5 NO. 9 SEPTEMBER 2004 |
In this Issue
A Word from Gregg Herman
ABA fall meeting in MilwaukeeWisconsin Courts Updates
Two new court of appeals decisionsDecisions Across the Nation
Effect of social security disability on child support, marriage to a transsexual, military disability versus retirement pay, home-schooling children, stock options, same-sex marriage and much moreFamily Law Online
KidsnCommon.comFamily Law and Mental Health
"Dollars, Dependency, and Divorce: Four Perspectives on the Role of Wives' Income"New Publications
ABA Publishes 2nd Editions of Business Tax Returns and QDRO HandbookBusiness Valuations
Valuation of publishing companyFamily Law Mediation
Generating OptionsFamily Law Related Articles
Family Law Quarterly issue on spousal support and JAAML issue on unique property issues
As noted previously in this column, the ABA Family Law Section fall meeting will be right here in Milwaukee. This is a major event for our city and an opportunity to meet family law attorneys from around the country.
Milwaukee lawyers have been leaders in the ABA FLS for many years, beginning with Ralph Podell and continuing to Leonard Loeb, Richard Podell, Jim Podell and the current section chair, Peggy Podell. It is mindful of that proud tradition that at the annual meeting in Atlanta, I was pleased to be elected as Secretary of the FLS for the 2004-05 year. Thank you to everyone who helped me in my campaign. I pledge to do my best to honor the tradition of those before me.
For more information on the fall meeting, including registration, visit the FLS Web site.
As we reported in a special bulletin, the court of appeals decided two family law cases this month which are recommended for publication. They are: Lawrence v. Lawrence, No. 03-1699, Wis. Ct. App. Aug. 19, 2004
(Recommended for Publication), which held that an agreement of the parties to use a third party as an impasse-breaker for choice of schools is enforceable and not against public policy.
Full Opinion (PDF)
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Also, the court of appeals decided Steiner v. Steiner, No. 03-0931,Wis. Ct. App. Aug. 19, 2004
(Recommended for Publication), which held that the trial court could consider the husband’s indivisible and non-transferable sick leave account as a basis for an unequal division of the martial estate.
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.
Tarbox v. Tarbox
No. 23723
Connecticut Court of Appeals
August 10, 2004Drawing a distinction between a custodial parent receiving Social Security benefits on behalf of a child and a child directly receiving those same benefits, the court held that an 18 year old’s direct receipt of Social Security disability benefits on account of his father’s disability cannot be credited against the father’s child support obligation.
Kantaras v. Kantaras
No. 2D03-1377
Florida Court of Appeals Second District
July 23, 2004Joining the majority of jurisdiction that have considered the issue, the Florida Court of Appeals held that biology at birth determines a person’s sex. Thus, a marriage between a female and post-operative female to male transsexual was invalid.
Ed Note: See "Boys Will Be Boys" for cases from Kansas, New York, Ohio, Texas, and New Jersey on the issue.
Ruble v. Ruble
No. 2D03-3251 Florida District Court of Appeals
Second District
July 21, 2004A Florida court’s award of custody was void for lack of subject matter jurisdiction where the father failed to comply with the UCCJA’s affidavit requirement.
In re Gahagen
No. 4-272/03-1731
Iowa Court of Appeals
August 11, 2004The trial court did not err in ordering the husband to make up to the wife the amount she lost when the husband elected to receive military disability benefits instead of retirement pay.
Mellott v. Mellott
No. 90,575
Kansas Court of Appeals
July 23, 2004Tuition reimbursements from an employer are not income for purposes of child support, as the reimbursements do not represent funds available to the support obligor.
Donna G.R. v. James B.R.
No. 39005
Louisiana Court of Appeals
July 2, 2004A mother cannot continue to home-school her children when the children are failing to maintain even minimal standards. Further, because the children should be sent to public school, the mother must then obtain a job.
Griffith v. Pell
No. 2002-CT-00532-SCT
Mississippi Supreme Court
July 29, 2004A wife was estopped to deny her husband’s paternity of a child they held out as their own, thereby allowing the court to grant custody and visitation rights to the husband although he was not the child’s biological father.
Heller-Loren v. Apuzzio
No. A-0494-2T3
New Jersey Superior Court
Appellate Division
August 3, 2004Stock options acquired and exercised after divorce do NOT constitute income for purposes of child support, because the parties’s PSA defined income for purposes of support and such definition did not include stock options.
Ed Note: This decision does not make sense, since the definition of income included "income" from business; the grant of stock options constitutes ordinary income under the IRS code.
Ferguson v. McKiernan
No. J. A15043-04
Pennsylvania Superior Court
July 22, 2004An oral agreement between a man and woman that the man would donate his sperm in exchange for being released from any obligation for child support is not enforceable.
Dupre v. Dupre
No. 2002-300
Rhode Island Supreme Court
July 30, 2004A mother’s relocation request should be determined under the best interests of the child standard, not whether the mother could show "compelling reasons" for the move.
Anderson v. King County
No. 04-2-04964-4 SEA
Washington Superior Court
August 4, 2004The statutory prohibition against same-sex marriages is a violation of the due process and privileges and immunities clauses under the state constitution.
Ed. Note: Joining Ontario, British Columbia, and Quebec, the Yukon Supreme Court reached the same conclusion under the Yukon Constitution.
Family Law Online We came across the following website recently which claims to be "a website for divorced parents who want to more effectively organize their lives so they can focus on their children."
According the site, it is has "Web-based tools" to help divorced communicate with their ex-spouses and better manage schedules, finances and planning.
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:
Dollars, Dependency, and Divorce
A study published in the Journal of Marriage and Family (Volume 66, February 2004) entitled "Dollars, Dependency, and Divorce: Four Perspectives on the Role of Wives' Income" examines the evidence on the relationship between wives' economic resources and marital stability. The findings suggest that when wives' resources were measured in dollars, wives' incomes showed a positive, linear correlation with the odds of divorce. These results provide support for an equal dependence perspective, which states that economic dependence and obligation have an influence on marital stability.
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.
The Business Tax Return Handbook
By Jack Zuckerman and William F. WolfThe Complete QDRO Handbook
By David Clayton CarradThe ABA Family Law Section has published section editions of the following books. To order online, visit the ABA Web site.
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 Josephine T. Thompson v. Commissioner of Internal Revenue
United States Tax Court
July 26, 2004The case dealt with the determination of the fair market value of 20% of the voting common stock in the Thomas Publishing Co., Inc., (TPC) owned by the decedent on her death and whether the estate was liable for an accuracy-related penalty in the amount of $7,164,163. In essence the court threw out both experts reports and provided it's own calculation of value. It also determined that since this valuation was so complicated and both sides made errors when calculating their values that they would not assess the accuracy-related penalty.
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.
Generating Options
The stage of mediation in which options are generated is the most creative and active stage for the mediator and asks the basic question, "How can you do what you want to do in the most effective way." Both participants must also be actively involved in finding the answers to this question. The mediator's role is to help the participants articulate the options they know or want and to create new options that may be more satisfactory. Brainstorming either during the mediation session or as homework can be a useful tool for generating options. Mediators must take care to offer options in a manner that the parties can comfortably accept or reject. The mediator should not pressure the parties to consider any particular option that they do not see as beneficial. Some obstacles to generating options include lack of clarity about the problem to be solved, judging ideas prematurely, searching for the single answer, assuming a fixed pool of options, being concerned only with one's own immediate needs and goals, fear of the unknown, fear of change, fear of retaliation and fear of judgment. It is important that generating options is kept separate from the act of selecting options. The key to developing options lies in gathering as much information as possible, thinking outside the box, creating a safe environment for discussions, searching for mutual gain and stimulating the imagination
See: Divorce Mediation, Theory and Practice, edited by Jay Folberg and Ann Milne, The Guilford Press.
Family Law Related Articles & Publications
The Spring, 2004 issue of the Family Law Quarterly is devoted to spousal support. Articles include:
"Introduction to Alimony Law", by Twila Larkin
"An Overview of the Federal Income Tax Provisions Related to Alimony Payments", by Stephen P. Comeau
"A Brief Overview of Bankruptcy and Alimony/Support Issues", by Shayna M. Steinfeld and Bruce R. Steinfeld
"Premarital Waiver of Alimony", by Susan Wolfson
"Estate Planning with Trusts for Divorcing Spouses", by Wendy S. Goffe
For ordering or subscription information (the current issue may not be available yet), visit the Family Law Quarterly Web site or call 800-285-2221.
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The most recent issue of the Journal of the American Academy of Matrimonial Lawyers is Vol. 18, No.2 for 2003. It is devoted to unique property issues and articles include:
"When Title Matters: Transmutation and the Joint Title Gift Presumption", by Laura W. Morgan and Edward S. Snyder
"The Equitable Distribution of Farms", John S. Slowiaczek and David A. Domina
"Division of Third-Party Property in Divorce Cases", by Brett R. Turner
"Dividing Lottery Winnings During Dissolution of Marriage", by Katie Foster
"The Legal Status of Frozen Pre-Embryos When a Dispute Arises During Divorce", by Nancy Levit and Robert R. M. Vercick
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)We thank them for their contributions!
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