Entries Tagged as 'dissolution'

Virginia-Vermont Civil Union Custody Dispute Back on Appeal

I have prevously reported on a case of a Vermont civil union which was dissolved, but a custody battle over a child of that civil union had taken place in two states, Vermont and Virginia, where one of the partners had moved with the child. Virginia does not recognize same sex relationships.  Federal law does not either (in the defense of marriage act), but does uphold the custody decisions of an originating state, to prevent venue shopping by parents.

In this case, courts in both Vermont and Virginia (including their Supreme Court) have upheld the right of the Vermont courts to take precedence.  The U.S. Supreme Court has declined to hear an appeal, essentially agreeing with the existing court decisions.  Now the Virginia resident, Lisa Miller, is appealing the ability of Virginia courts to enforce the order of a court in Vermont.

In January, a Vermont judge denied Miller’s latest attempt in that state to deny visitation rights to Janet Jenkins.  The judge also said Miller risked losing custody of her daughter if she continues to violate court orders. The Vermont court also rejected Jenkins’ effort to get primary custody of Isabella, but did order she get five weeks of custody in the summer.

Click here for more details.

More on Same Sex Divorce and Dissolutions

The Los Angeles Times reports on a ruling in the U.S. 9th Circuit Court of Appeals that could lead to the invalidation of the Defense of Marriage Act.  The Act, which I’ve written about previously, essentially allows states not to recognize same sex marriages performed in other states and also defines marriage for federal purposes as being only between heterosexual couples.

Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals ruled earlier this week that Sears — who married Levenson, a deputy federal public defender, last July — is entitled to the same spousal benefits that heterosexual couples employed by the department receive.

…..

Reinhardt’s ruling branded the Defense of Marriage Act unconstitutional. The 9th Circuit’s chief judge, Alex Kozinski, also weighed in on the subject last month, granting benefits to the same-sex spouse of a staff attorney for the court. But he stopped short of basing that decision on constitutional grounds.

Despite the prominence of the two judges, the rulings are legally meaningless for all but the two couples because they came in the court’s administrative dispute process, rather than in lawsuit judgments.

The 9th Circuit judges ruled in their capacity as dispute-resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court.

…..

But legal analysts see the judges’ orders as an indication that the Defense of Marriage Act is unlikely to stand up to the constitutionality test if it reaches a federal court.

What this ends up meaning is unclear at this time.  For instance federal law’s Title VII does not include sexual orientation as a protected class in labor discrimination — whereas NJ’s Law Against Discrimination does — and the federal courts have not seen fit to add that protection.  But times change and so do court rulings (separate but equal was once the law of the land).  Stay tuned.

Same Sex Divorce in New Jersey

I’ve written previously about the issues in NJ about same sex divorce and dissolution.  NJ’s Attorney General’s office has taken the position that NJ courts should only grant civil union dissolutions even if the same sex couple in question was legally married in another jurisdiction.  On Friday, NJ Superior Court Judge Mary Jacobson granted a divorce in the case of Hammond vs. Hammond.

La Kia and Kinyati Hammond were married in British Columbia, Canada in 2004 (after years in a relationship) and then moved to Maryland.  In 2005, La Kia learned she had a terminal form of muscular dystrophy, was told she had two years to live, left Kinyati and moved with her daughter to NJ.  La Kia is now in a relationship with another woman and wants to be able to marry her in Canada before she dies.

Judge Jacobson found compelling the argument that authorities in Canada may not accept a dissolution of a civil union as equivalent to a divorce and thereby not allowing La Kia to be remarried.  Since La Kia is not a resident of Canada (but is a resident of NJ), she would not be able to receive a divorce in Canada.  Kinyati now lives in Delaware and did not respond to the filings.

The attorney general’s office has not decided if they will appeal the ruling.

Another Reason to Mediate Your Dispute or Divorce

This week, a committee of the New Jersey Supreme Court issued a report recommending that the court’s records be made accessible to the public through the internet. The report’s executive summary reads in part:

In drafting the proposed rule, the Committee accepted as a bedrock principle the need to preserve New Jersey’s strong tradition favoring public access. Accordingly, the rule begins with the presumption that all court and administrative records are available for inspection unless otherwise exempted. This approach is a significant departure from the current version of Rule 1:38, which narrowly defines court records as only those that are “required by statute or rule to be made, maintained, or kept on file” in the course of the court’s official business. The current version of Rule 1:38 does not specifically address the broad category of administrative records. The proposed rule is intended to replace the common law “balancing of interests” test with an absolute right of access to all non-exempt court and administrative records.

What does this mean for you? In practical terms, it means that almost anything that is filed with the court (motions, pleadings, hearing records, admissions at trial) will be made public via the internet with these details and exceptions:

  • Certain personal identification numbers (“personal identifiers”) should be treated as confidential by the Judiciary, and litigants should be required to omit them from any documents submitted to the court. Those confidential personal identifiers are Social Security, driver’s license, vehicle plate, insurance policy, financial account, and credit card numbers. The burden of keeping this information out of the court’s records falls on the filing party.
  • Documents and reports admitted into evidence or attached to a motion or pleading, including medical, psychiatric, and psychological reports, tax returns, and financial records and reports, are subject to public access.
  • Family Division records (i.e divorce cases) should be viewed differently from records in other court divisions because Family Division matters involve children whose confidentiality should be protected. Thus, reports, such as medical and psychological reports in dissolution and non-dissolution matters dealing with custody or visitation of children should not be disclosed to the public. Even evaluative reports of parents in these cases should be treated as confidential given the potential harm to the child. The Family Practice Committee should be asked to consider whether other documents in dissolution and non-dissolution matters that involve children should also be made confidential.
  • The committee recommended making the Family Part Case Information Statement filings and attachements confidential.
  • Civil judgments posted on the Internet should include full home address and date of birth for purposes of identification.
  • The definition of court record in the revised public access rule should state that surrogates’ judicial records are court records subject to public access. The surrogate handles administrative matters on such items for the court as probate and wills, guardianship, and adoptions.
  • The public access rule should allow parties and interested persons to request that documents improperly submitted to the court be removed from the court file.
  • The Judiciary should educate the public and the bar about the presumptively open nature of court records. Every person who comes into contact with the courts should be put on notice that information provided to the Judiciary may be disclosed upon request to others, or on the Internet.
  • Also specifically excluded:
    • Notes, memoranda, draft opinions, or other working papers maintained in any form by or for the use of a justice, judge, or Judiciary staff member in the course of his or her official duties.
    • Records of consultative, advisory, and deliberative discussions pertaining to the rendering of decisions or the management of cases.
    • Records pertaining to mediation sessions and complementary dispute resolution proceedings pursuant to Rule 1:40-4(d) and Rule 7:8-1, but not the fact that mediation has occurred.
    • Guardian ad litem records. (A guardian ad litem is appointed by the court to represent the interests of a person with respect to a single action in litigation.)
    • Family Division records pertaining to investigations and reports made for a court or pertaining to persons either on probation or ordered to pay child support.
    • Records relating to child victims of sexual abuse.
    • Child custody evaluations and reports.

Most of these records are currently available to the public, but to access them now, you have to go down to the courthouse and request them. If you want copies, there is a schedule of costs ranging from $0.75 per page to $0.25 per page depending on how much you’re copying. Access to these records will probably be free to the public on the web.

The report is quite detailed and covers a lot more than I have in this space. The court will be taking comments on the proposed rule through March 24, 2008.

Mediation is a confidential process protected both by court rule and state statue (the NJ Uniform Mediation Act). By mediating a divorce, family or commercial dispute or other conflicts you can keep your personal information out of public view. To find out more about mediation, please feel free to contact me.

Same Sex Divorce Issues

I’ve discussed some issues in civil union dissolutions in previous blog posts (here and here).  Today, the Washington Post has an article which talks about other elements of civil union dissolution (and same sex marriage divorce in Massachussets, the only state to formally call it marriage).  The article presents the case of two divorcing lesbians in MA who each gave birth to a child from the same sperm donor.

While the parties are litigating, a family court in Boston has come up with a Solomonic ruling, saying that each of the women can spend half the week alone in the family home with the children.

One same sex marriage divorcing male in MA noted:

“I wasn’t aware of how messy things were going to get.  The legal maneuvering we had to go through was enormous, and it was difficult to find attorneys who were willing to handle the issue because there just aren’t that many lawyers familiar enough with the law and how it affects a gay divorce.”

Since Federal law does not recognize marriage between two people of the same sex, distributing assets (normally a tax free event) is taxable.

Lawyers have found no shortage of creative solutions around the tax codes by swapping assets, setting up irrevocable trusts and parceling out years’ worth of payments in amounts that meet the tax threshold.

I’ve talked about how the length of a marriage or civil union is determined in a same sex context and the article talks about that too:

Massachusetts is an equitable-distribution state, and a major factor in determining the distribution of assets is the duration of the marriage. But gay couples are fighting that in court, contending they would have been married longer if it had been allowed. The argument is gaining ground with judges who have been willing in same-sex divorce cases to take account of the entire length of the relationship in deciding on division of assets.

“If a couple has been together for 25 years in Massachusetts, their assets would be divided 50-50,” said Elizabeth Zeldin, who has handled several same-sex divorces. “But a same-sex couple has only been married a maximum of three years, so do you treat it as a three-year marriage or a 25-year marriage? A lot of judges are now saying: Treat it as a long-term marriage.”

More on Civil Unions

The Civil Unions law will become the effective in NJ in February 2007.  As I mentioned in an earlier post,  there are a number of differences that make civil unions not quite equal to marriage.

One was the differences in federal tax law.  The Defense of Marriage Act (1996) defines marriage as between a man and woman for purposes of all federal benefits, which includes the tax code.  This means that all transfers pursuant to a dissolution of a civil union would be treated as a gift and thus taxable to the recipient (and not deductible to the giver).  I had talked about the tax aspects of alimony, but there are two other areas that could be problematic.  One is equitable distribution.  Again, splitting up the common assets accrued during the civil union would be considered a gift to the recipient and thus taxable.  Another area is that splitting a retirement account earned during a civil union under a Qualified Domestic Relations Order (QDRO) may not be possible, since that is a federal program.  Again, many of these areas are developing areas of law.

Another area was would another state recognize the civil union or the dissolution?  In Rhode Island, a state that does not recognize same sex marriage or any type of same sex union/partnership, a same sex couple who were married in Massachussets has filed for divorce in RI.  The family court asked the state supreme court for an opinion on the case, to see if RI had jurisdiction to do this.  The supreme court asked the lower court for clarification on some issues.  This could be an interesting case.

State of the Unions in NJ

The other buzz of activity in the legislature dealing with family law has come at the direction of the NJ Supreme Court in the Lewis v. Harris decision.  In that decision, the court in a 7-0 decision stated that NJ’s prohibition on same sex marriages violates the state constitution’s equal protection clause.  The Domestic Partnership Act which the state currently has on the books does not provide to same sex couples the same level of rights, protections, privileges and obligations that heterosexual couples have under the marriage statutes.

The court gave the legislature 180 days to rectify the laws of NJ to comply with the decision.  Four of the justices decided to allow the legislature to determine what to call the new structure (marriage itself or something else) while the three dissenting judges thought that calling same sex relationships anything other than “marriage” creates a separate but equal situation and was still not consistent with equal protection.

Given the controversial and divisive nature of this subject, this decision has created a bit of a stir.  Some legislators have proposed laws (A1398) and a constitutional amendment (ACR134/SCR79, ACR216 and SCR124) to ban recognition of same sex marriages.  Others have introduced legislation to allow marriage itself to apply to two same sex people (A3685).  The one that seems most likely to pass is a “civil union” statute (A3787 and S2407).  This has the support of the legislative leadership, the governor and the people of the state (in most of the recent surveys).  Of course, with some type of same sex union comes the issue of dissolving the ones that do not work out.

I attended one our semi-monthly meetings of the NJ Association of Professional Mediators (NJAPM) this week and the changes in the state of marriage laws was one of the topics.  Of course, we were looking at it from the standpoint of divorce and pre-nuptual agreements (which is just an advance divorce agreement).  Stephen J. Hyland, an attorney specializing in same sex couple issues talked about the current state of things in this subject area.  It’s a little more complicated than simply marriage or civil union between two people of the same sex.

One area of difference is the recognition of the civil union’s dissolution (or even ongoing) elements by other states who do not legally recognize same sex coupling.  What if the couple owns property in a non-recognizing state?  What if one of the partners move to a state that does not recognize civil unions or same sex marriage?  What if the couple has a child (maybe a lesbian in-vitro child) and another state won’t recognize the child’s same sex parentage (without a “legal” adoption)?  What about the custody of the child of a divorcing couple being recognized in another state that doesn’t allow same sex unions?  How does the federal Parental Kidnapping Prevention Act (1980), which requires other states to recognize a home state’s judicial custody orders, apply in these cases?

Another major area of issues comes from the federal Defense of Marriage Act, passed in 1996.  The law has two major impacts.  First, no state is obligated to recognize the same sex marriage recognized by another state.  Second, for purposes of all federal statutes and regulations, marriage (and the term spouse) is limited to one woman and one man.  This can complicate a divorce in the area of alimony, which has tax benefits that may not be available to same sex couples.  Also, state tax law uses your federal filing status.  If a civilly unioned couple cannot file a married to the IRS, how will the state handle it?

It appears that people who were registered under the Domestic Partnership Act and become civilly unioned will have their partnership automatically terminated.  But this leads to other issues.  If a couple has been together for 20 years and divorces 5 years after entering a civil union, what timeframe determines spousal support and equitable distribution?  Is it the 5 years or 25 years?  How would the partnership act impact this?  Incidentally, the Domestic Partnership Act (which provides some rights, but not the full breadth that a civil union statute would) looks like it will remain on the books (primarily for heterosexual couples over 62).

Certainly this is an area where things will change rapidly and where the courts will likely be sorting through the details.  Like the irreconciable differences bill, I will post updates as they happen.

Thanks again to Stephen Hyland for his insights.  His website is http://www.njdomesticpartnership.com.