Family Law Update for October 2016

In this Issue …

A Word from Gregg Herman
Upcoming programs

Wisconsin Courts Updates
Watts case

Decisions Across The Nation
Discovery sanctions, Hague convention and country of residence, Contingent fees as property?, Remedial contempt, UPAA, Grandparent’s rights, Surrogacy contract, Validity of premarital agreement, Arbitration and Premarital agreement, Husband’s right to be present in the delivery room and more.

Family Law Online
"Over 50? You’re More Likely to be Divorced Than Widowed." and "New Year, New Life: Why Divorce Rates Rise in January."

Tax Tip Corner
Recognition of Same-Sex Marriage Officially the Tax Law of the Land

Family Law Related Articles and Publications
American Journal of Family Law

A Word from Gregg Herman …

Gregg HermanA couple of upcoming programs:

For Ozaukee County Bar members, I will be speaking at their luncheon next Wednesday on "Game Theory and Its Application to Family Law – and Other Areas of Law."

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.

With Brad Pitt and Angelina Jolie headed to divorce court, I took a few minutes to offer tips for family law attorneys on how to handle various issues surrounding celebrity divorces in this month’s Thoughts on Family Law.

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Wisconsin Courts Update

Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis. Stat. 809.23(3).

On September 20, 2016, the Court of Appeals District III issued their opinion in Sands v. Menard, Nos. 2012AP2377 and 2015AP870 (September 20, 2016), which affirmed the circuit court Honorable Paul J. Lenz (Eau Claire County).

This case involves, in part, the extent to which an attorney can assert a claim under Watts v. Watts, arising out of legal services allegedly provided to a cohabiting partner and his businesses. Sands argued Watts affirmed her right to bring an unjust enrichment claim against Menard. However, unlike Sands, the plaintiff in Watts was not an attorney and was therefore not subject to the requirements of Rule 1.8(a). There is no exception to Rule 1.8(a) for attorneys who cohabitate with their clients, and the court declined Sands’ invitation to read Watts as establishing such an exception. Sands’ own pleadings alleged that she entered into an arrangement with Menard, her client, by which she provided legal services in exchange for a promise that Menard would give her a share of his businesses. This situation falls squarely within the parameters of Rule 1.8(a), and Sands was therefore required to comply with the rule’s requirements.

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.

Frost-Stuart v. Stuart
No. 15-P-100
Massachusetts Court of Appeals
September 27, 2016

A judge may not eliminate alimony solely on the basis of cohabitation. Thus, although the former wife’s cohabitation with her boyfriend for more than three months may have served to reduce her household expenses, the family court judge erred in terminating alimony on that basis only, warranting remand for determination of whether a modification of the former husband’s alimony obligation was warranted by considering such factors as the husband’s increased income resulting from a change in employment, the parties’ expenses, the parties’ marital lifestyle as compared to their current lifestyles, and the agreed-upon alimony obligation, as set forth in their merged provision of divorce judgment.

In re Marriage of Liszka
No. No. 3-15-0238, 2016 IL App (3d) 150238
Illinois Appellate Court, Third District
September 27, 2016

Trial court abused discretion in barring husband’s expert corporate valuation witness as sanction for husband’s failure to disclose expert’s opinions and report until just four days before marriage dissolution trial, in case in which husband sought to have expert testify as to value of company which husband and wife had started together, where husband disclosed expert more than 60 days before trial, and late disclosure of opinions and report was not caused by husband’s bad faith or abusive discovery practices but by wife’s failure to provide husband and expert with necessary financial information.

Didon v. Castillo
Nos. 15-3350 & 15-3579
United States Court of Appeals, Third Circuit
September 26, 2016

As a matter of first impression, a child may have only one habitual residence country at a time under the Hague Convention. Because children were habitual residents of Dutch Saint Maarten, which did not recognize Hague Convention, action would be dismissed.

Grasch v. Grasch
No. 2015-CA-000294-MR, No. 2015-CA-000336-MR
Kentucky Court of Appeals
September 23, 2016

Husband lawyer’s contingency fee cases were not marital property subject to division, as, because they ran the risk of having zero or negative value and gave him no property interest in the client’s funds, they were neither determinate things nor interests in the same. (Ed. Note: This is a minority rule. In most states, contingent fees, even if non-vested, are marital property. See 1 Brett R. Turner, Equitable Distribution of Property ¤ 5:22 (3d ed. 2005).)

In re Marriage of O’Malley ex rel. Godfrey
Nos. 1-15-1118, 1-15-2908
Illinois Appellate Court, First District
September 23, 2016

Trial court’s finding that former husband was in contempt of Marital Settlement Agreement (MSA), as incorporated into dissolution judgment, requiring former husband to put marital residence up for sale or buy out wife’s share by certain date, punished former husband for past conduct, and thus was criminal contempt, not civil contempt, though former husband had opportunity to purge contempt upon former wife’s receipt of allocated funds that had been escrowed following eventual sale of home; once sale was complete, former husband could not comply with MSA by buying out former wife’s share, and purge provision did not provide former husband with opportunity to comply, as that opportunity did not exist once home was sold.

Koscher v. Koscher
No. 4D15-2432
Florida District Court of Appeal, Fourth District
September 21, 2016

Husband was voluntarily unemployed, and thus trial court should have imputed income to him for purposes of alimony in dissolution of marriage action, even though his initial unemployment was involuntary, where husband had not worked for nearly three years as of the date of dissolution, had not received severance payments for about a year and a half, and had not made any diligent efforts to seek comparable employment, instead choosing to wait until the divorce was finalized before making an effort to earn income.

In re Marriage of Porter
Oregon Court of Appeals
September 21, 2016

Evidence was sufficient to support trial court’s finding that prenuptial agreement was unenforceable under the Uniform Premarital Agreement Act (UPAA) because wife did not enter into it voluntarily and the agreement was unconscionable; the parties did not discuss the agreement in advance, wife did not have a chance to negotiate the terms of the agreement, have time to fully read or understand the agreement, and despite recitals in the agreement, did not fully understand the nature of the rights that were being determined under the agreement, and the terms of the agreement were onerous, depriving wife of any spousal support or property.

D.P. v. G.J.P.
No. 25 WAP 2015
Pennsylvania Supreme Court
September 9, 2016

The statute granting grandparents standing to file an action for partial physical custody on the basis that the parents have been separated for at least six months does not satisfy strict scrutiny and thus violates parental rights under the due process clause, since the fact of a parental separation for six months or more does not render the state’s parens patriae interest sufficiently pressing to justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate.


Frank G. v. Renee P.-F.
2016 N.Y. Slip Op. 05946, 37 N.Y.S.3d 155
New York Supreme Court, Appellate Division, Second Department
September 6, 2016

Same-sex domestic partner established standing to seek custody or visitation of children conceived through sperm of other domestic partner as impregnated into sister of domestic partner, where he sufficiently demonstrated by clear and convincing evidence that he and other domestic partner entered into pre-conception agreement to conceive the children through surrogacy contract and to raise them together as their parents; although surrogacy contract was not enforceable as against surrogate to deprive her of standing on petition for custody, it was evidence of parties’ unequivocal intention that domestic partners become parents of children, and domestic partners equally shared rights and responsibilities of parenthood and were equally regarded by children as their parents.

Blanchard v. Blanchard
No. Cum-15-504
Maine Supreme Judicial Court
September 6, 2016

Although presumption of fraud arose because premarital agreement’s provisions for wife were clearly disproportionate to husband’s wealth, husband rebutted this presumption, and thus, agreement was valid; parties requested that attorney draft a premarital agreement, both parties fully disclosed their debts and assets to each other, copy of the agreement was available to the parties at least six weeks before the agreement was executed, and during this time, wife asked that specific changes to the agreement be made, and before signing the agreement, wife had met with independent counsel, wife was employed and was earning a sufficient income to support herself, and agreement was fair and adequate.

LaFrance v. Lodmell
322 Conn. 828
Connecticut Supreme Court
September 6, 2016

Arbitration agreement entered into as part of prenuptial agreement was subject to statutory provision governing agreements to arbitrate in an action for dissolution of marriage; nothing in the plain language of the statute indicated it applied only to agreements to arbitrate that were entered into after an action for dissolution had been filed, but rather, the broad language of the statute included "any agreement to arbitrate in an action for dissolution."

Pratt v. Ferguson
No. G052385, 16 Cal. Daily Op. Serv. 9905
California Court of Appeal, Fourth District
September 4, 2016

A shutdown clause in a trust, prohibiting the trustee from making "the payment of periodic installments of principal" if they would become subject to beneficiary’s creditors’ claims, could not be enforced to prevent use of trust principal to satisfy a final child support order against the trust beneficiary, even assuming the trust expressed an intent to not benefit the beneficiary’s children.

B.T. v. E.T.
No. 5* * * */2016, 2016 NY Slip Op 26280
New York Supreme Court, Richmond County
September 2, 2016

Wife brought divorce action. By order to show cause, wife applied for order enjoining husband from being present in delivery room when she gave birth to the parties’ expectant daughter. The court held, as a matter of first impression, that the husband had no right to challenge in the wife’s right to exclude him from delivery room when she gave birth to parties’ expectant child, the since wife, as the patient, had the legal right to determine the course of medical treatment and to utmost privacy in receipt of medical care, including sole decision to consent to non-medical spectators, and granting husband permission to be present could create unsafe and volatile situation.

Family Law Online

Over 50? You’re More Likely to be Divorced Than Widowed

Once upon a time, it was unthinkable for couples to divorce at mid-life and older. Today, for the first time ever, more people over 50 are divorced than widowed. This age group now accounts for one-quarter of all divorces. (The Huffington Post)

New Year, New Life: Why Divorce Rates Rise in January

The end of the year is always a mixed blessing. We are family law attorneys meaning we represent people going through divorce and related matters. At the end of each year, our business slows down (which is good), but then it always increases in January as divorce filings are regularly at their height after the start of the year. What’s interesting is the interest in the rise of divorce each January. (The Huffington Post)

Tax Tip Corner

Recognition of Same-Sex Marriage Officially the Tax Law of the Land

From JD Supra Business Advisor:

Effective September 2, 2016, new IRS final regulations will take effect which provide that for federal tax purposes, the terms “spouse,” “husband,” and “wife” mean an individual lawfully married to another individual. The terms “husband and wife” mean two individuals lawfully married to each other. Lawful marriage means the marriage is recognized by the state, possession, or territory of the United States in which the marriage is entered into, regardless of the domicile of the individuals. For foreign marriages, the foreign marriage is considered lawful for federal tax purposes if the foreign marriage would be recognized as marriage under the laws of at least one state, possession, or territory of the United States.

Family Law Articles & Publication

The Fall, 2016 (Vol. 30, Vol. 3) issue of American Journal of Family Law includes the following articles:

The Intact Marriage Rule in Custody Disputes
By Joel V. Klass

Dividing Trust Assets in a Divorce: A Massachusetts Case’s Major Impact
By Gabrielle Clemens and Stephen Wilchin

Distinguishing Personal Goodwill in Family-Owned Valuations
By Robert F. Reilly

The Support Costs of a Special Needs Parent
By Margaret "Pegi" S. Price and Damon Martin

Valuation: The Value of "Double Dipping"
By Gene A. Trevino

For subscription information, call 1-888-859-8081

Contributing Editors

Our contributing editors include:

  • CPA Scott Franklin. Kohler & Franklin, Milwaukee (Tax Tips)
  • Atty. Stephen Hayes (Adoption)
  • Gregory J. Ksicinski, CPA/ABV, MSTSVA Certified Public Accountants, S.C.
  • Atty. Laura Morgan, Family Law Consulting, Charlottesville, VA (Family Law Cases)
  • Atty. Elizabeth Neary (adoption)

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.