Pros and cons of one-year vs. two-year separation period for contested divorce litigation -- a divorce lawyer reflects

At the end of 2017, couples began to be affected by Pennsylvania's the new divorce law, which cut the living-apart period before filing contested no-fault divorce litigation, without mutual consent and without all the financial and child-related issues worked out, from two years to one year. Carolyn R. Mirabile, a partner and family law group head at Weber Gallagher Simpson Stapleton Fires & Newby in Norristown, Pa., looks back at what seemed to have worked better under the old law, and what improvements she hopes for from the new law. 

One Year Later On the One-Year Separation

By Carolyn R. Mirabile in The Intelligencer - Mar 15, 2018


2018 Va. family law legislation: Alimony, court reporter reform, abuse prevention, child support, inheritance, violence, legalized adultery?

UPDATED APRIL 10, 2018

MODIFICATION BY THE GOVERNOR 

  •  HB 1351 Joint legal or physical child custody; custody and visitation decisions, communication to parties. Governor added: In any case or proceeding involving the custody or visitation of a child, to enable the child to apply for a state or federal benefit and upon the request of any party, the court shall make any finding of fact required by state or federal law in order for the child to receive such benefit. The existing language, which the Governor did not change, is: "The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody."  The bill's original text, completely replaced as it went through both houses, was, "The consideration of "joint physical custody" means the court shall consider custody and visitation arrangements that are reasonably constructed to maximize a child's time with each parent to the greatest extent possible in the child's best interests." At least the statute still says, "The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children." 

ENACTED, SIGNED BY GOVERNOR

KILLED (incl. passed by, stricken, tabled, continued to next year ...)

  • HB 599 Child support; nonpayment, amount of arrearage paid, suspension of driver's license.
  • HB 1223 Erin's Law, having schools educate children to recognize, resist and report molestation
  • HB 661 Assault and battery against a family or household member; enhanced, penalty. [Passed house, passed senate with substitute,  each house insisted on its own version, time ran out for Conference Committee]
  • HB 411 Assisted conception; gender-neutral as to same-sex.
  • HB 998 Parental or legal custodial powers, temporary delegation of; child-placing agency. [Passed House, continued to 2019 in Senate committee]
  • HB 807 Custody and visitation agreements; best interests of the child, violent abuse of other family members
  • HB 412 Marriage-related criminal laws; gender-neutral terms, adultery repeal, penalty.
  • HB 413 Adoption; gender-neutral as to same-sex.
  • HB 414 Same-sex marriage; marriage laws, gender-neutral terms.
  • HB 478 Domestic violence-related misdemeanors; enhanced, penalty.
  • HB 1237 Assault and battery against a family or household member; first offense, enhanced penalty.
  • HB 149 Child support order payee; change in physical custody of child, orders involving DSS.
  • HB 1331 Child support; review of guidelines federal compliance.
  • SB 64 Custody and visitation decisions; communication to parties required in writing.
  • SB 70 Custody and visitation; rights of parents with a disability.
  • SB 178 Parental or legal custodial powers, temporary delegation of; child-placing agency.
  • SB 596 Victims of domestic violence, etc.; firearms safety or training course.
  • SB 603 Same-sex marriage; gender-neutral terms.
  • SB 612 Assisted conception; parentage presumption.
  • SB 727 FOIA; exemptions for courts of record, courts not of records and Office of the Executive Secretary
  • SB 938 Child support; withholding of income, contracts with an independent contractor.
  • HB 216 Guardians, licensed physician, etc.; annual reports to include medical examination.
  • HB 383 Missing-heir search firms; void contracts.
  • HB 406 Guardianship; protects communication between incapacitated persons & others, notification of relatives.
  • HB 406 Guardianship; communication between incapacitated persons & others, notification of relatives.
  • HB 1403 Electronic wills; requirements.
  • HB 1565 Presumption of death; missing person reports.

 Compiled by John Crouch, updated by John Crouch and Sarah Araman


Where Congress's attack on alimony tax exclusion came from: Both sides' explanations insufficient, not reality-based. Here's what we know:

The House-passed GOP tax bill shifts the tax burden on alimony from alimony payors to recipients. I.e., about 97% of the time, from divorced women to divorced men, who we all assume are in higher tax brackets than their exes. Currently, alimony is considered part of the recipient's taxable income, and not the payor's. The change would affect alimomy from post-2017 court orders or agreements, including modifications of earlier orders.(There's one feature of the bill that's completely good, and apparently not controversial: Including alimony payments pursuant to a written marital agreement, with no court order, in the definition of alimony.)

 It's important to sometimes pause from a search for subtle "incentives" and subliminal effects, and remind ourselves what the most basic and obvious effect of a policy change is: In this case, taxing men instead of women on tens of thousands, sometimes over $100,000, of annual income. Alimony is all or most of many divorced women's incomes, and can already take a very large fraction of some men's incomes. Virginia's guidelines call for at least 28% of a breadwinner's gross income as alimony to a non-working spouse, and that's before child support, and before any deductions from his paycheck for taxes, social security, etc. 

Lawyers, journalists and even the National Organization for Women have attacked the proposal, not for being anti-male, but for changing the law's current incentive for men to agree to pay alimony, and thus reducing the amount of alimony women would get. The change probably would have that effect, but that whole argument probably only occurred to them because this is a Republican proposal and it fits the narrative of a GOP "War on Women". Ordinarily, women's groups would be all for something that shifts divorce women's tax burdens wholesale onto their exes.

Blogger Stuart Levine, and many columnists quoting him, including Kevin Drum at the usually more thorough Mother Jones, have really only speculated about why anyone would want to do such a thing. Liberal writers and the supposably* conservative proponents of the change seem to share the mutually convenient illusion that this is an attack on divorce, on behalf of Christian morality. But that simply has nothing to do with how divorce, alimony or taxes actually work. The GOP Ways & Means Committee Summary says only this on behalf of the change:

  • The provision would eliminate what is effectively a “divorce subsidy” under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.
  • ... spousal support as a consequence of a divorce or separation should have the same tax treatment as the provision of spousal support within the context of a married couple, as well as the provision of child support.
  • ... the provision would increase revenues by $8.3 billion over 2018-27.

Frankly, living as close to Republican Washington as I do, it sounds like a young staffer who doesn't know anyone who pays alimony, who hasn't been invovled in a divorce, and just recently got off the parental  tax returns and started filing form 1040-EZ, was thrown mysterious, possibly garbled instructions for changing something about alimony taxation, and was given 15 minutes to come up with some Republican-sounding arguments for it. But actually, the proposal was part of an early-2014 "Tax Reform Act" introduced by former Ways & Means chair Rep. Dave Camp, now retired,  and the arguments above are repeated verbatim from the Committee Summary of that bill. 

The "subsidy" argument, to the extent that it's either launched or received as an attempt to discourage divorce, partakes of the long-standing and totally wrongheaded assumption that "a couple" decides to get divorced, and may be incentivized, rewarded or punished for doing so. This dates back to the early days of no-fault divorce reform, when reformers picked the most compelling poster-children, decent people who both wanted to divorce but who were caged in "Holy Deadlock" by laws that denied them a divorce even when they both wanted one. Some conservatives and moralists, being apparently unfamiliar with divorce, and gullible about letting their opponents pick the battlefield and define its terms, compliantly responded that these couples were hastily giving up on their marriage and should be incentivized, restricted, counseled, and/or made to wait to see if it's what "they" really wanted. And whenever any change to loosen or tighten divorce laws is proposed, the same old arguments are dusted off, even though divorce decisions have long been unilateral and the proposed changes hardly ever would affect the "poster children" whom the arguments describe. 

Individuals decide to divorce, pay taxes after divorce, and might or might not respond to incentives. Couples don't and can't.

The Committee's equality-based argument is even more surreal. Spousal support after separation or divorce is very different from what the Committee refers to as "spousal support within the context of a married couple", which it says should receive the same tax treatment. Uh, a married couple that isn't separated lives together as a family and an economic unit, and doesn't pay support checks to each other. And they can't get "the same tax treatment", because a married couple files taxes jointly or as the very disadvantageous "married filing separately", while divorced people file as single, or jointly with their new spouses. Again, this sounds like college debaters grasping for arguments about parts of adult life that they know nor care nothing about. 

 Here's what might have led to this: Veteran Congressman Lloyd Doggett D-TX last year was pushing a plan to require 1099s for alimony payments, citing a Treasury study showing about $2.3 billion a year in alimony excluded from payors' income but never reported by recipients. He wanted to use the revenue it gleaned to help states improve their foster care systems."He has been discussing the issue with Ways and Means Chairman Kevin Brady," Congressional Quarterly Roll Call reported. Perhaps the drafters set out to do what Doggett proposed, then realized that it would be simpler, cheaper, and revenue-positive to eliminate the tax code's recognition of alimony entirely, and seized on the 2014 proposal and arguments. It's probably the pet project of one Ways & Means member or staffer who's been there since Camp was Chair.

But where are the deeper, more extensive arguments that ordinarily would lead to something like this? To find out I traced backwards from the only article I found in favor of the change, "A Human Capital Theory of Alimony and Tax", by feminist law professor  Tessa Davis in the  George Mason Law Review. The only part of it I've thoroughly read is its abstract, every word of which is totally wrong, except for the stuff about "Family Law Theory", the entire posited existence of which is not only wrong, but should not be conceiveable in a rational world where people care about the real-life effects of anything. Even to utter its name, silently to oneself,  throws down a gauntlet and crosses a Rubicon into a world where mere Families and Laws will henceforth be trivial playthings in the tiny hands of academic Theories and their adepts and familiars.

And yet I cannot help but admire Davis for having the monumental audacity to claim to speak for "a scholarly consensus" in favor of some kind of fundamental change. She cites only two previous proposals for tax law to disregard alimony: Rep. Camp's 2014 bill, and Donald H. Berman, "The Alimony Deduction: Time to Slaughter the Sacred Cow," 4 Am. J. of Tax Pol’y 49 (1985). Berman called the exclusion "inequitable, complex and arbitrary", and above all, unnecessary now that marginal tax rates had declined from a healthy, vigorous 91% to a negligible 50%. More of the history of dissent from the current regime can be learned from another, very solid, article Davis cites, Deborah Geier, "Simplifying and Rationalizing the Federal Income Tax Law Applicable to Transfers in Divorce," 55 TAX LAWYER 363 (2001).  It recounts that in the mid-1980s, Senate Finance Committee staffers proposed totally eliminating the alimony exclusion. They tried to rally women's groups to their side. The ultimate results they got, and possibly what they were aiming for all along, were incremental restrictions that may have helped increase revenue and predictability.  (Id., pp. 404-406.)  The article advocates letting couples choose who'll pay the taxes on any forms of support or property transfers, with a default rule that the recipient has to pay them. It cites a very similar proposal, Laurie L. Malman, "Unfinished Reform: The Tax Consequences of Divorce," 61 N.Y.U. L. REV. 363, 367 (1986).

 Davis's own argument is that alimony in a divorce is mostly viewed as compensation for "human capital," or return on investment or compensation for loss, none of which are taxed, and that any distinction between it and property transfers is artificial. (See pp. 50-55 of her article, downloadable from the abstract web page.) (Malman made similar arguments for her free-choice proposal.)

But the problem is, normal alimony, the kind that qualifies for the tax exclusion, almost always comes directly from someone's income -- where, unlike property, it get taxed if the Code doesn't exclude it -- and goes to provide income for someone else. The IRS has established clear, easily-followed boundaries between regular alimony and non-qualifying lump-sums that are more like property division. And in real alimony negotiations and trials, alimony is almost totally based on income -- needs and ability to pay. Yes, decisions are sometimes influenced by arguments about spouses' contributions to the marriage, but when statutes,  judges and litigants look at women having sacrificed their own careers for the sake of a husband's career or to raise children, their point is that the women have a legitimate reason for needing supplemental income, and that it may take time for them to wholly or partly "rehabilitate" their earning potential.

Once again, this time on the left, the theorists are looking at the subtler reasons for alimony and missing what it obviously IS and what it's almost always FOR in real life.

 

----- 

* "Supposably" is a real word. It's from Seinfeld.


Bills would let unregulated gov't non-lawyers file serious court cases against parents, without a lawyer's signature

A bill now in Virginia's  Senate and House of Delegates would let Virginia welfare agencies file court cases against parents without a lawyer signing off on the case -- fundamentally changing the traditional role of law practice as a regulated, accountable profession bound by ethics rules. These are very serious cases that can take apart families, destroy parents' finances and livelihoods, and lead to their being jailed for contempt.

Currently, legal ethics rules, court rules, and the Sanctions statute require all lawsuits to be signed by a lawyer (except for people who represent themselves), and require the lawyer to believe, after due investigation, that the suit is well-founded in the facts and the law and not filed simply to harass, impoverish or delay the other party. They also require lawyers to be truthful to courts, opponents and others involved.  The bill, and the statutes it amends, do not do anything to make these new case-filers subject to those rules. And even if it did, that would not be the same as requiring a lawyer to put her credibility and hard-earned license on the line every time she signs a court filing. 

Welfare agencies do great work but like anyone, they do get things wrong, out of negligence or simply normal human imperfection, not malevolence or corruption. Requiring a lawyer to sign off on these case filings is an important protection for the public, reducing the chances of a completely groundless prosecution, ensuring due process of law, and providing accountability when things go wrong. An example, where a judge felt strongly that sanctions and lawyers' fees should be awarded to the victim of a groundless civil child-abuse suit, is FAIRFAX COUNTY DEPT. OF HUMAN DEV. V. DONALD, 251 Va. 227 (Va. 1996). 

The drafters seem to think that providing standard, foolproof check-box forms (which already exist) removes the need for lawyers. But having non-lawyers draft the forms is never a problem and is not the issue. The issue is protecting citizens and courts, by holding even the do-goodingest government agencies to the same basic rules that govern any other person, corporation or agency that takes someone else to court.

The bill adds to Code § 16.1-260 on Juvenile Court filings:

"designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause;"

[Note: "Motions to amend or review" includes modification of any existing child custody, visitation or placement order. "Rule to show cause" means contempt of court, including up to a year in jail and setting amounts of support arrears to be paid in order to get out of jail.]

It adds to § 54.1-3900, on who can practice law:

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from appearing before an intake officer to initiate a case in accordance with subsection A of § 16.1-260 on behalf of the local department of social services.

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from completing, signing, and filing with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause.

And it adds to Code § 63.2-332, "The local director shall designate nonattorney employees who are authorized to (i) initiate a case on behalf of the local department by appearing before an intake officer or (ii) complete, sign, and file with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause."

The proposal is in two bills which appear identical: House Bill 589 and SB 417SB 417 passed the State Senate 20 to 17, with three Senators not voting. I'm proud to say my William & Mary law classmates Jennifer Wexton and Ryan McDougle, Fairfax Senators Chap Petersen and Scott Surovell, my old Senator Tommy Norment, and Donald McEachin all voted Nay. It is now in the House Courts of Justice - Civil Law Subcommittee. It is on the Committee's agenda for this coming Monday, Feb. 22. The subcommittee's members are Delegates Habeeb (Chairman), Kilgore, Loupassi, Minchew, Leftwich, Campbell, Miyares, Toscano, McClellan,  and Krizek. The full Courts committee's members are Delegates Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Habeeb, Minchew, Morris, Leftwich, Adams,Campbell, Collins, Miyares, Watts, Toscano, Herring, McClellan, Hope, Mason, and Krizek.

HBl 589 passed the House almost unanimously and is now in the Senate Courts of Justice Committee, which also meets this coming Monday.

Almost as bad, I see that Code § 54.1-3900 already has existing language allowing this practice for child-support filings. Even though Social Services already has its own internal administrative tribunals that can make and review child support orders without lawyers. It reads:

Nothing herein shall prohibit designated nonattorney employees of the Department of Social Services from completing, signing and filing petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia in Department cases in the juvenile and domestic relations district courts. 

If I understand correctly, this was added a few years ago to protect the validity of existing support orders after it was discovered that some non-lawyer social services employees were already doing this. But they could have done that without allowing the practice to continue and be authorized by the state. The existing language is bad enough but the new version would cover many more kinds of cases. Ideally, an amendment-as substitute should delete that existing language and drop all the new language currently in SB417

If you want to see what protections this bill takes away from parents, Here is Code § 8.01-271.1:

§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.

Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.

The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.


#KansasSpermDonor media coverage spreads savage, medieval notions of children as trade goods

In a case that has gone on for years now, a couple found a sperm donor on craigslist instead of going to a sperm bank or fertility clinic. States have laws that say sperm donors won't be considered fathers, but they require several procedures, standards and safeguards, and a licensed clinic must be responsible for the procedure. 

Some media coverage has perpetuated the inhumane, patriarchal, but still widespread notions that children are property to be bought and sold  by contract, and that child support is a trade-off for visitation. Fox's WHTI TV 10 in Terre Haute, Indiana says in today's story on the case, "Kansas sperm donor fights back after state forces him to pay child support":

"'Angie and Jennifer are the parents,' Marotta said. The state of Kansas won’t accept that. Despite the fact that the lesbian couple and Marotta signed a contract giving up all parental rights to the child."

"According to Marotta his lawyer has only found one other case in the United States where this has happened, but in that case the sperm donor had changed his mind and requested visitation with the child. Something Marotta’s never wanted, or asked for."

The social services spokesperson quoted in the article has it exactly right: 

“If an individual wants to have the protections of a sperm donor, he needs to follow the law. ... Parental rights can not be signed away without following adoption laws.

And that's exactly what those involved should have done, at least after Kansas's Supreme Court upheld a trial court decision recognizing gay co-parenthood in February of 2013. The Court's opinion in that case shows how it differs from this one:

The coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother. 

 I am for freedom of contract and against government interference, far more than almost anyone else I know. But your freedom of contract ends where your children's fundamental rights and interests begin. Including the child's right to parents, recognized in the UN Convention on the Rights of the Child.* Because of that, courts and other government agencies are in charge of investigating and approving adoptions. That authority is exercised pretty minimally in cases that are based on mutual consent, particularly where one biological parent remains a parent, but it is still crucial for the government to have a role in any change so fundamental as changing who a person's parents are. This gives the state and judges a chance to oversee the process, to verify the parents' informed consent, to step in when it looks like the adoption is not in the child's interests, and to have uniform official records confirming legal parent-child relationships.

*Relevant Parts of the United Nations Convention on the Rights of the Child:

The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (CRC Preamble)

The child ... shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (CRC Art. 7)

 States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (CRC Art. 8(1))

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. (CRC Art. 9(1))

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. (CRC Art. 9(3))

States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (CRC Art. 14(2))

 


Alimony still relevant for many, not so for many others

Leading Minneapolis family lawyer Nancy Zalusky Berg shared this article, commenting that "the law in Minnesota is very clear - every parent is expected to work - there is no such thing as a stay-at-home mom anymore."

For many men and women, that's reality, that's modernity, that's how it should be. "Alimony" strikes them as a form of medieval serfdom. But for many other families I deal with in Northern Virginia, contemporary life is not really as modern as that idealized vision of economically autonomous individuals. And in fact, maybe that vision is not truly modern at all. Minneapolis family lawyer Michael Boulette says that for many, marriage is still more than a passing association of economic producers and consumers. People still sacrifice individual career goals for the family's overall well-being. I agree.

SHOULD WE REALLY CELEBRATE THE END OF ALIMONY?

By MICHAEL BOULETTE

Replying to "An End to Alimony Would be Good for Women" by Emma Johnson on Forbes.com


"Phased Retirement" will complicate divorce pension-division, alimony; regulations issued

Maryland family law specialist Hadrian Hatfield notes that the new "Phased Reitrement" offered to federal employees will change now we divide their pensions in divorce cases, and may also affect alimony; but fortunately the government has anticipated this and its new regulations on the subject address how it affects family law, including both new pension-divisions and pased-retirees who already have court orders prospectively dividing their pensions.


Women gain in economic power, but many fear they'll be bag ladies

"Six in 10 women describe themselves as the primary breadwinners in their households, and 54% manage the family finances, according to the poll by Allianz Life Insurance Company of North America. Even so, 49% fear becoming a bag lady ..." This includes 27% of women earning more than $200,000 a year"and 43% of married women.

More: "Almost half of American women fear becoming bag ladies, study says" - By Walter Hamilton, L.A. Times