Family Law Update for November 2016

In this Issue …

A Word from Gregg Herman
Revisions to child support guidelines; Contributions welcome

Wisconsin Courts Updates
No Wisconsin cases

Decisions Across The Nation
Choice of forum, Bi-furcation of dissolution proceedings, UCCJEA, Cohabitation and spousal support, choice of employment and more.

Family Law Online
“10 Ways to Prevent a Divorce From Ruining Your Finances.” and “What is Your Likelihood of Getting a Divorce?”

Health Insurance for Surrogates

Family Law Related Articles and Publications
Family Advocate edition on “Domestic Torts”

A Word from Gregg Herman …

Gregg HermanProposed revisions to the Wisconsin Child Support Guidelines are currently circulating.

For my take on the effect on high income payors, please see my monthly video below. For other areas, please read my November column in the State Bar of Wisconsin’s Inside Track.

I’ll also be co-presenting with Atty. Barry Book, Book Law offices, for DCI on “The Cooperative Divorce Trial” at their annual seminar on November 11, 2016 in Delafield, Wisconsin. For more information, to visit the DCI Web site.

Loyal FLU Subscriber? Why Not Contribute?

Do you enjoy this newsletter? Then become a contributing subscriber! If you hear of an interesting trial court case that deals with famiuly law issues, an interesting article or anything which might be of interest to our readers, please forward it to me by using this form. We welcome all contributions!

Wisconsin Courts Update

— No cases this month … Sigh. —

Decisions Across the Nation

The following cases are provided courtesy of Contributing Editor Laura Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her Web site or via e-mail.

Please Note: Most decisions are posted in Adobe Acrobat (PDF) format.

Tumaneng v. Tumaneng
No. SCWC-14-0000895
Hawaii Supreme Court
October 21, 2016

Family court erred, when ruling on mother’s to modify custody terms contained in an uncontested decree filed in her divorce from son’s father, by excluding pre-decree evidence to ascertain son’s best interests, in particular allegations by mother of pre-decree domestic violence.

Devney v. Devney
No. S-15-937
Nebraska Supreme Court
October 21, 2016

Nebraska statutes do not authorize postnuptial agreements to allocate the parties’ property rights upon separation or divorce unless such agreements are concurrent with a separation or divorce; postnuptial property agreements are against Nebraska public policy because of the deleterious effect such agreements have on marriages. Thus, an agreement between a husband and wife concerning the disposition of their property, not made in connection with the separation of the parties or the dissolution of their marriage, is not binding upon the courts during a later dissolution proceeding.

Matter of Geraghty
No. 2015-0430
New Hampshire Supreme Court
October 21, 2016

Even though the parties were married in New York, New Hampshire, the forum, rather than New York, law applied to husband’s petition for annulment of marriage based on fraud, based on five choice-influencing factors, including the public policy of the state concerning actions for annulment.

In re Marriage of Breashears
2016 IL App (1st) 152404
Illinois Appellate Court, First District
October 17, 2016

Order granting husband’s petition for bifurcated dissolution of marriage was not abuse of discretion; husband’s impending death was appropriate circumstance warranting bifurcated divorce, parties had stopped acting as husband and wife almost ten years before husband filed petition, and husband had been living with paramour, whom he desired to marry if petition was granted, for several years before he filed petition, and trial court heard testimony concerning parties’ investment properties and other issues that could arise if bifurcation was granted.

In re R.L.
No. D069729
California Court of Appeal, Fourth District, Division 1
October 14, 2016

Temporary hospital stay in California, as state incident to child’s birth, was insufficient to confer home state jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus California juvenile court did not have home state jurisdiction on such basis over dependency and termination of parental rights proceeding filed against mother and father for inadequate care of child, absent showing that child lived in California with a parent after she was born.

In re Marriage of Eastburg ex rel. Condreay
2016 IL App (3d) 150710
Illinois Appellate Court, Third District
October 13, 2016

In the absence of fraud, ex-wife was not entitled to any percentage of ex-husband’s federal income tax return for purposes of child support modification proceeding; ex-husband’s intentionally withholding income from his paycheck, paying every pay period more than he would eventually owe in taxes, was no different than placing the same amount of money in a savings account that earned no interest or burying it in his backyard, and as such, ex-husband’s receiving his federal income tax refund was identical to him withdrawing money from a zero interest savings account or digging it back out of a hole.

Amero v. Amero
No. Fra-15-609
Maine Supreme Court
October 13, 2016

Evidence supported trial court’s finding that former wife cohabited with adult partner, for purposes of divorce judgment’s provision stating that former wife’s spousal support would terminate upon cohabitation with adult partner, although former wife contended that she and partner no longer had romantic relationship and that they maintained separate living quarters and finances; former wife admitted that she and partner lived with one another in same condominium for period of several consecutive years and continued to live together in another condominium, former wife and partner had year-long sexual relationship, and former wife tended to partner’s healthcare needs and shopped for partner’s groceries.

Birtciel v. Jones
No. 113457
Oklahoma Supreme Court
October 11, 2016

Maternal grandmother seeking visitation following death of child’s mother did not have standing to appear at adoption hearing regarding father’s wife petition to adopt child and, thus, grandmother’s failure to appear at adoption hearing did not divest her of right to seek visitation; grandmother’s standing extended only to purposes of resolving her visitation rights, not to resolution of stepmother’s adoption, consent to adoption was necessary only from child’s father, without need for her consent, grandmother was not entitled to notice of adoption hearing, and decision of father and wife to send courtesy notice to grandmother had no effect on her standing and neither conferred additional standing to her at adoption nor diminished her standing at visitation proceeding.

McLaughlin v. Jones
No. 2 CA-SA 2016-0035
Arizona Court of Appeals, Division 2
October 11, 2016

Spouse filed a petition for dissolution of marriage from her same-sex spouse, who was the birth mother of their child conceived through artificial insemination during their marriage. Held: The word “paternity” in the statute governing the presumption of paternity signifies more than biologically established paternity; it encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology. Thus, the female spouse was presumptively the “legal parent,” for purposes of her petition for dissolution of marriage from her same-sex spouse, who was the birth mother of their child conceived through artificial insemination during their marriage. Birth mother of child conceived through artificial insemination during her marriage to same-sex spouse was equitably estopped from rebutting presumption that spouse was the legal parent of their child, for purposes of spouse’s petition for dissolution of marriage; parties agreed that artificial insemination was to be undertaken, after which child was born, spouse stayed home to care for child during the first two years of his life until birth mother left home with him, and parties entered into an express agreement contemplating child’s birth and agreed unequivocally that both of them would be child’s parents with equal rights in every respect.

Smith v. McCarthy
No. 2015-07866, 2016 NY Slip Op 06504
New York Supreme Court, Appellate Division, Second Department
October 5, 2016

Father demonstrated substantial change in circumstances warranting a downward modification of his child support obligation; father, who resided in Pennsylvania, had been laid off from his job in aviation electronics through no fault of his own, had accepted a job in his field in Delaware but had left it shortly afterward because it was several hours away from his home and his former wife had refused to relocate with their four children to that state, had made diligent effort to obtain employment in his field but there was no such work available locally, and had subsequently found employment as correctional officer earning substantially less than his salary had been in aviation electronics field.

Raap v. Lenton
No. 20160122 2016 ND 195
North Dakota Supreme Court
October 4, 2016

District court erred as a matter of law when it failed to calculate father’s self-employment income according to the child support guidelines, and by not averaging the most recent five years of father’s self-employment income, or making specific findings that his self-employment activity had not been operated on a substantially similar scale before using a shorter time period.

Family Law Online

10 Ways to Prevent a Divorce From Ruining Your Finances

Brad Pitt and Angelina Jolie aren’t the only people getting a divorce. Plenty of Americans go through the process each year of dissolving their marriages, splitting their assets and making custodial arrangements for their children. While every divorce situation is unique, separating spouses should do the following 10 things to up their odds of coming out of the proceedings on financially stable ground. (U.S. News & World Report)

What is Your Likelihood of Getting a Divorce?

If you’re a Native American woman in your 50s, you are almost two-and-a-half times more likely to get a divorce than an Asian woman. A man in the same age group who is not in the labor force is almost 10% more likely to get divorced than a man who’s esmployed. These statistics are according to recent data that was released by the data analysis company FlowingData – who based their results on a 2014 American Community Survey that collected divorce and remarriage rates among men and women of various age groups in the U.S. (


Following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Health Insurance For Surrogates

Carriers in surrogacy matters often have their own health insurance that provides coverage for surrogate births. However, before beginning a surrogacy matter, it is important to have someone check the health insurance of the carrier to see whether health care expenses related to surrogacy are excluded. Coverage for surrogate births is very expensive, but is available if the carrier does not have her own health insurance coverage.

Coverage may be obtained through the following:

(866) 547-2519

New Life Agency
(877) 952-5433

Brown & Brown Loan Star Insurance Services, Inc.
281-260-2000 / (800) 833-0188 | E-mail

Arc Light Insurance Services, Inc.
(310) 550-6862 (California)

Coverage should be confirmed before entering into a parentage agreement and certainly before medical procedures begin.

Family Law Articles & Publication

The Fall, 2016 edition of the Family Advocate (Vol. 39, No. 2) is devoted to “Domestic Torts”.

Articles include:

Civil Relief for Uncivil Behavior
By Leonard Karp and Jennifer Manzi

Key Threshold Issues: Domestic Tort Claims in the Context of Divorce
By Cary Mogerman and Mary Niemira

Of Crime, Custody and Also Torts: Recourse for Domestic Violence Victims
By Allen Bailey

In the Wake of Family Violence: Children, Trauma and the Potential for Tort Litigation
By Robert Simon

Remedies for Custodial Interference
By Edward Gross

Cyber Torts in Family Law
By John Nichols

Suing for STDs: when Domestic Relations Turn Tortious
By Cary Cheifetz

For ordering or subscription information (the current issue may not be available yet).

Contributing Editors

Our contributing editors include:

We Thank Them for Their Contributions!

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.