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February 2012
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April 2012

Top UK judge: Divorcing parents - especially smart & educated ones - weaponize & harm kids

From a speech by Sir Nicholas Wall, President of the Family Division of the High Court, to the charity group Families Need Fathers:

Separating parents can do their children enormous harm by using them as a "battlefield" and "ammunition", a senior family court judge has warned.

Sir Nicholas Wall, president of the Family Division of the High Court, said well-educated parents were particularly adept at using their children.

"People think that post-separation parenting is easy - in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute.

Parents simply do not realise the damage they do to their children by the battles they wage over them. Separating parents rarely behave reasonably, although they always believe that they are doing so, and that the other party is behaving unreasonably."

… Sir Nicholas said parents often found it difficult to understand that children loved and had a loyalty to both parents. "If a child's mother makes it clear to the child that his or her father is worthless - and vice versa - the child's sense of self-worth can be irredeemably damaged."

"I remain of the view that the separated parent's role in the lives of his or her children retains the same degree of importance as when the parents were living together, even if the opportunities to manifest the qualities which an absent parent can bring to his children may be limited."

- Described/quoted in "Divorcing parents can 'damage' children, says judge" By Katherine Sellgren, BBC News


Virginia family law legislation passed in 2012

Over on our Virginia Family Law Appeals blog we have a complete report on all family-law-related legislation passed this year. It is divided into five topics:

Or to see all of the above at once, go to the Legislation category page of the blog.


Utah ups divorce wait period to 90 days

"Gov. Gary Herbert ...  signed legislation this week that would require couples filing for divorce to wait nearly three months to end a marriage ...  the sponsor of HB316, which extends the divorce waiting period to 90 days, said the change would serve as a cooling-off period for couples before they dissolve their marriage. "What we’re doing is creating good public policy and allowing people a small period of time when they’re making a huge decision that has a lot of impact on their life to make a good decision," Peterson said during debate on the bill. Opponents said forcing estranged couples to wait 90 days to end their marriage is intrusive and burdensome. Courts would have the authority to waive the waiting period in certain cases."

This whole controversy sounds a little unreal to me as a lawyer in Virginia, where the waiting period is one year (six months with a complete agreement and no minor children), and no one finds it remarkable. I've studied U.S. and European waiting periods somewhat and I think the ones with the most effect are the two-year ones in a few states (plus the 18-month one that New Jersey had until recently), which also cut the waiting period by one year or even by 18 months if the spouses reach mutual consent. 


"Couples Therapy for One" Can Save - or Wreck - a Marriage

When a client tells me that couples therapy has turned into individual therapy, that usually is part of a dangerous and depressing pattern in which therapy kills off a relationship, a process best described in Bill Doherty's landmark article, "How Therapists Threaten Marriages." And yet, many people continue to do it, and indeed for many individuals who want to save their marriages, it is the only available way to do therapy. And as Elizabeth Bernstein of The Wall Street Journal writes, if done right, it can be a great opportunity to learn how to not just be happier with your marriage, but to learn skills that make your spouse happier and improve your marriage. 

"Couples Therapy for One: To Fix a Marriage, Some Go Alone" - WSJ 3-6-12

I would just add, if you try this, be very clear with the therapist about what you are trying to do and whether the therapist is willing and able to provide that kind of help.

(If interested in this topic, you should also check out divorcebusting.com and smartmarriages.com. And if your spouse won't go to counseling, see if he'll at least go to a marriage education class with you.)


Open Adoption is Now the Norm

New report: Boom in ‘open’ adoptions as most birthmoms stay in contact with child’s new family - AP 3-20-12

Excerpts: ... only about 5 percent of infant adoptions in the U.S. now take place without some ongoing relationship between birth parent and adoptive family, according to a comprehensive new report ... based on a survey of 100 adoption agencies.

Of the roughly 14,000 to 18,000 infant adoptions each year, about 55 percent are fully open, with the parties agreeing to ongoing contact that includes the child, the report said. About 40 percent are “mediated” adoptions in which the adoption agency facilitates periodic exchanges of pictures and letters. ...

The Donaldson institute, citing its own research and numerous other studies, said most participants find open adoptions a positive experience. In general, the report said, adoptive families are more satisfied with the adoption process, birthmothers experience less regret and worry, and the adopted children benefit by having access to their birth relatives, as well as to their family and medical histories.

 

 

 


Virginia legislature addresses beneficiary-designation mess

Virginia's General Assembly recently finished its work for the year, and tried to remedy the conflict between state and federal laws on what happens to an insurance beneficiary designation for a spouse when there is a divorce. The problem came to a head with a recent  Virginia Supreme Court decision saying that Virginia Code § 20-111.1, which automatically revokes beneficiary designations upon divorce unless the divorce decree or agreement said otherwise, could not be applied to federal employees. (Which implies that it couldn't apply to veterans or servicemembers, either.) But there have been problems in individual cases for years.

The legislature's solution, for now, is HB 282 Divorce or annulment; revocation of death benefits; notice.  It amends the statute on beneficary designations being revoked by divorce, NOT by removing or changing the language that tries to overrule federal preemption of the state statute, but by adding: 

E. Every decree of annulment or divorce from the bond of matrimony entered on or after July 1, 2012, shall contain the following notice in conspicuous, bold print:

Beneficiary designations for any death benefit, as defined in subsection B of § 20-111.1 of the Code of Virginia, made payable to a former spouse may or may not be automatically revoked by operation of law upon the entry of a final decree of annulment or divorce. If a party intends to revoke any beneficiary designation made payable to a former spouse following the annulment or divorce, the party is responsible for following any and all instructions to change such beneficiary designation given by the provider of the death benefit. Otherwise, existing beneficiary designations may remain in full force and effect after the entry of a final decree of annulment or divorce.

 

To avoid thereby misleading people who have life insurance other than FEGLI or SGLI, it would be prudent and useful for that notice to add, “And then again, they may not. It depends on what kind of benefits they are, and on state and federal law.” The new legislation also does nothing about federal employees, retirees, servicemembers and veterans who are already divorced, who are also affected by the recent court decision. At least it provides another occasion to get the word out to them that they need to check their beneficiary designations.


Yes, Good Lawyers DO Use Standardized Forms

There was a question on avvo.com from someone who was surprised and concerned that he and his girlfriend had wills that were identical, even though they were drafted by lawyers from opposite ends of the state. Other lawyers who answered the question seemed to be saying that the lawyers who used such cookie-cutter forms were not very professional. I strongly disagree. Here is what I wrote:

There is absolutely nothing wrong with that. Standard forms are usually the product of a lot of field testing and revision over the years, and lawyers are very conservative about sticking with language that works, that holds up in court and effectively carries out what clients want. If you were both doing similar things with your wills at the time, it makes sense that they used uniform tools and parts. 

Besides software, there are other sources of forms that are widely used within any particular state. Here in Virginia, there are popular Continuing Legal Education seminars and manuals that provide forms for lawyers to use. We also had a leading bank in our state that made will and trust forms available for lawyers. 

By using the standard language and not messing with it, the lawyer can ensure that the will will put the client's wishes into effect without running afoul of all kinds of obscure rules and traps that have come up in the approximately 750-year history of Anglo-American inheritance law. 

And by keeping things in the same order, with the same numbering system, the lawyer can get to know the form intimately, and when a client asks about the meaning or origins of a particular provision, the lawyer can tell them, without finding their individual file. 

Of course, not every will is exactly the same. It is not one-size-fits-all. We work with SETS of forms, and any one form will include optional language that we select from. But they are designed so that you can make these changes with as little customization as possible. The more things you have to change or custom-draft, the more things can get screwed up. 

Personally, I think my wills don't look exactly like anyone else's -- I have adapted the common Virginia form set that I use, translating it into plainer English, but that is an extremely delicate operation -- it's far better not to attempt it, than to try it and screw it up in some way that might not be discovered for decades.


New Virginia law allows uncontested divorce without court hearing statewide, but some of us already do that

Virginia Governor Bob McDonnell has signed House Bill 126, which lets uncontested no-fault divorces -- ones where all issues are settled or one spouse does not participate -- be granted based on an affidavit or written deposition by the plaintiff and a third-party witness, instead of having them testify in person, which most Virginia counties now require. 

Here at Crouch & Crouch we have already been doing that kind of divorce for a few years now, using a streamlined, standardized written deposition process allowed in Fairfax County but not in any other areas where we practice. It has been especially useful since many of our clients are overseas or out of state. But it is also the most comfortable, convenient and economical option for most of our local clients. We already offer it in all our uncontested cases, because Virginia law lets spouses agree to do their divorce in counties or cities where they don't live, so long as one spouse is a six-month Virginia resident.

The bill does not change the legal standards to qualify for a divorce, but it regularizes what the plaintiff and witness have to testify about, and how. Currently, requirements for the content, as well as the form, of this testimony varies between cities and counties. One judge I practice with only wants most supporting witnesses to answer four questions -- "Do you know the plaintiff, is his testimony true, have you read the Complaint, is everything in it true?" -- and once granted a divorce before letting the supporting witness talk. In the very next county, one judge demands a very high level of corroboration from the supporting witness, and many lawyers' scripts contain about 30 questions for each witness. Some counties require the testimony to be in court in front of a judge, others allow oral depositions transcribed by a court reporter, and some have oral hearings in front of a court reporter and lawyer appointed as a Commissioner, who then makes a report to the court.


DC non-resident gay divorce bill passes

The bill described earlier on this blog has now been enacted by the City Council and sent to the mayor to be signed, The Washington Post reports.

Does it cover any situations outside of what the Council is contemplating -- people who have moved to states that will not divorce them because they do not recognize gay marriages? Well, it expressly covers only same-sex marriages, but it might allow same-sex divorce when the parties' states or countries lack divorce jurisdiction for some reason other than disapproving of same-sex marriage. The key wording is --

"An action for divorce by persons of the same gender, even if one of or neither party to the marriage is a bona fide resident of the District of Columbia at the time the action is commenced, shall be maintainable if the following apply:

“(A) The marriage was performed in the District of Columbia; and

“(B) Neither party to the marriage resides in a jurisdiction that will maintain an action for divorce; provided that it shall be a rebuttable presumption that a jurisdiction will not maintain an action for divorce if the jurisdiction does not recognize the marriage.

Full bill text here.