Archive for October, 2010

How the Judge Rules

Monday, October 25th, 2010

If the parties cannot reach an agreement about the equitable division and distribution of the marital estate and alimony, a judge does it for them, and he considers what are termed mandatory factors, and in some jurisdictions, discretionary factors.

In the 41 jurisdictions that use equitable distribution, the wording and interpretation of mandatory factors vary, but in general these considerations include:

1. the length of the marriage,

2. the age, health, and occupation of the parties,

3. lifestyle of the parties,

4. contribution of the parties,

5. liabilities and needs,

6. behavior of the parties during the marriage, and

7. employability.

Discretionary factors vary from state to state. In some courts, a spouse’s economic conduct may be a discretionary factor. For example, a spouse who dissipates marital property in the casinos or on high living with a girl friend may find the judge considering his behavior when it comes to dividing the marital pie.

Equitable division, it should be remembered, does not mean each spouse gets half. It means a judge tries to be fair, and one Pennsylvania judge said fair often means that both spouses are unhappy.

Sharply Reduced Since Troxel v. Granville

Wednesday, October 20th, 2010

The concept of grandparents’ rights – usually meaning grandparents getting court ordered visitation rights with their grandchildren – became more and more in fashion during the 1970s and 1980s. As divorce shattered families, grandparents claimed that they had become victims of their adult children’s marital problems, and some sought to maintain contact with children even against the wishes of their own children.

In 2000, the Supreme Court drew a line in the sand about grandparents’ rights in Troxel v. Granville. The court, citing a number of cases under the Fourteenth Amendment, ruled that parents have a “fundamental liberty interest” in the care, custody and control of the children. This means the parents have a right to control limit a child’s visitors. Washington had a very liberal law that permitted any person to ask for visitation rights at any time by demonstrating that the visitation was in the child’s best interest.

Since Troxel, courts have been much more circumspect about grandparents’ visitation with grandchildren. And most family law practitioners advise care when grandparents consider litigation with their adult children about the issue because the outcome is likely to worsen the overall domestic situation.

Making a difficult situation easier or harder

Monday, October 4th, 2010

In most areas of law, an adversarial action becomes a zero-sum game, one where the winner takes all, one where the defendant’s loss is the plaintiff’s gain. Marriage and family law, however, recognize that actions must be what is called “fair and reasonable,” which, for example, is the standard for approving a marital separation agreement.

Fairness, in turn, depends upon the parties acting in good faith, “an honest belief, the absence of malice and then absence of design to defraud or seek an unconscionable advantage, and an individual’s good faith is concept of his own mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone.”

Good faith means doing the right thing without being done: “[a]n honest intention to abstain from taking unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious.”

By comparison, bad faith is self-evident. In family law disputes, judges and attorneys have no difficulty determining when a party acts in good faith and when a party acts in bad faith. Taking unfair advantage of a position of strength – a husband who exploits the trust his wife placed in him and signs what he tells her to sign – is acting in bad faith.