Governor Approves 59 Bills Changing Family Law, 46 More Affecting Family Life, But Modifies Gun Restrictions

Updated 4/23/20

By John Crouch and Sarah Panariello

This year's legislative session included many modest but salutary amendments to make family life and family law a little more efficient and fair. There were also immense amounts of mostly political legislation that will have various side effects on families and work their way into family law cases. 59 of the former and 46 of the latter passed. But another 109 of the family law/family life bills we were tracking are now dead, at least for this year.

The Governor has now acted on all such bills that both houses passed (except for joint resolutions, such as the ones passing the ERA, which do not involve him). He suggested amendments or substitute versions for a few, slightly relaxing new gun-control restrictions and penalties, and signed the rest.

This post has been updated throughout the legislative season to track all family-law bills, and many bills on other topics that will affect family life and family law cases. They are listed below based on what stage of the becomes-a-law process they are at, and then, within that, by subject. If anything is incomplete or not up to date, please inform us by commenting.

HIGHLIGHTS

A bill makes pendente lite spousal support guidelines apply in Circuit Court as well as Juvenile, and reduces them slightly to account for the recent federal tax law change to taxing payors instead of payees for alimony. Another clarifies that after "reserving jurisdiction" to award spousal support, such support can only be awarded based on a material change of circumstances, unless the agreement or divorce decree expressly says otherwise.  There is also a tweak to the new statute that made alimony awards in new separation agreements be presumed modifiable unless they expressly said otherwise. That would still be the rule, but the statement that prevents or limits modification will no longer have to be in the exact words prescribed by the Code.

A bill splits unpaid expenses of pregnancy and childbirth in proportion to the parents' incomes, if a support case is filed in the child's first six months. Another clarifies that courts can award child-related tax credits, not just dependency exemptions. The cap on what is considered reasonably-priced court-ordered health insurance is lowered significantly.

Targeted for demolition this year is the rule that in Juvenile Court, fee awards are only based on relative economic circumstances, and nothing else. 

Several bills tweak the factors and presumptions in child custody and visitation decisions, but probably with little effect anytime soon. Judges could consider the motives of both parties in grandparent visitation disputes; and should consider a party's history of violent or sexual abuse even if it involved their other partners and children, not the ones the case is about.

Also affecting custody cases is a bill saying both parents must have equal access to day care records and information. Speaking of day care, a huge change is being proposed that would create a comprehensive system of public and private day care for everyone, like unto the K-12 school system. Similar proposed comprehensive social programs include, at the other end of the cradle-to-grave spectrum, a state-run retirement account that private employers could opt into.

Many others are nice little changes, but frankly minor. One bill would have abolished the requirement for  third-party corroborating witnesses to prove divorce grounds. It passed the House, and the Senate's committees, but was defeated on the Senate floor by four votes. Others put legal notices into online publications and take them off of the courthouse door, and let you send notice of publication orders by email, sometimes.

One perennial minor annoyance is the requirement to file an original of the return or affidavit of process-service within 72 hours. When you're having people served in faraway states or on other continents, as I regularly do, that's often impossible.  The questionable 72-hour rule remains, but there is a bill that allows copies, faxes, scans etc. instead of the original.

As always, there are many bills cracking down on domestic violence and sexual abuse, but there is so little of this still left to do that they are either exceedingly marginal, or so imaginative that their net effect may be to give the bad guys more destructive ideas, such as filing lawsuits to retaliate against, or deter, victims' pursuing civil or criminal remedies. 

Adult guardianship and conservatorship are facing a major overhaul, aiming much more scrutiny at guardians and other fiduciaries.

Sexual freedom and discrimination: One bill abolishes the requirements for children to get a parent's or a judge's permission for abortions. Others all but outlaw "conversion therapy" for minors, and do several things to banish all forms of anti-gay or anti-trans discrimination. And among the first bills to pass both houses are two ratifying the federal Equal Rights Amendment. 

A few bills aim to decriminalize school and adolescence. A couple assure schools that they do not have to involve the police every time a child does something that might be a misdemeanor. Another says that schools and school buses are not "public places" when applying criminal laws against "disorderly conduct."  Sunscreen would no longer be contraband in school, but the kids would have to stay out of tanning salons. After all, how do we know that they aren't getting "conversion therapy" in those tanning beds? Other bills aim to put fewer children on the sex offender registry for the rest of their lives, and send most teenage "sexters" to counseling instead of child-pornographer prison.

Many bills incrementally restrict minors' access to guns. Almost all of them seem mostly harmless, requiring locking weapons away from minors, extending to age 18 the crime of  recklessly allowing minors under 14 access to firearms, making it a felony, and changing that "recklessly" standard to "negligently." Such rules should be fine if they actually are applied with factually informed standards for what is reasonable, what is reckless, and what is negligent in that particular community and household. But it's also understandable that people are vigilant about "for the children" legislation being twisted to take huge bites out of the freedom and self-sufficiency of adults and youth.

In the big picture, hunters, gun owners, religions, tanners, guardians, sunscreen police, divorce corroborators, wife-beaters and conversion therapists shouldn't feel singled out for cultural genocide. There's also legislation to begin licensing and regulating art therapists, music therapists, naturopaths, doulas and court reporters. If only because once they're state-licensed professionals, they won't be allowed to do conversion therapy.

DEAD BUT NOT FORGOTTEN (UNTIL NEXT YEAR, ANYHOW)

Who says there's no free lunch, or that the General Assembly has no family-law visionaries? One bill says child and spousal support can only be based on net income -- not on gross, and not on earning capacity or imputed income. Another says if support is going through the DCSE, the payee gets paid even when the payor doesn't pay. Sadly, despite much talk about transforming the Old Dominion, Virginia is not yet the Big Rock Candy Mountain, the place where, as Captain John Smith promised, "Evereey manne shall cavorte and bee fruetfulle and multiplye under his owne vyne and figge tree."  These two were among the very first bills to die.

A tiny and I hope redundant addition to child custody law would have urged judges to assure frequent, continuing contact with both parents -- of course only "where appropriate" (sigh). This slight whimper was then watered down to get through subcommittee, and again in committee, only to be killed anyway on the House floor, 52-41.

Next came reforms to contempt of court. One bill said that if you bring a contempt case and you lose, you can appeal the "not in contempt" finding to the Court of Appeals, fixing a disconcerting oddity in the law that has come to light in the last few years. As for judge-initiated "summary" contempt punishments, someone considered it helpful to extend the maximum jail time to 30 days. Dead, and dead.

While the great cavalcade of bills aimed at protecting the incapacitated from their own guardians almost all survived, two worthy efforts that failed said that the beneficiaries of guardianship should have a voice in their own guardianship cases, and generally should not be cut off from any other family members.

As if people didn't have enough to worry about, the House refused to let Protective Orders prohibit using electronic remote control of things in and around the victim's home. Well, we don't want protective order forms to become a long checklist suggesting new ways to abuse people.

On the sexual freedom front, much ground is being won, but many sweeping efforts are dead, for this year at least. One of them puts absolute reproductive freedom in the state constitution. Others require employers and insurers to pay for abortion, sterilization, and everything in between on the spectrum of contraception; repeal the "conscience clause" that lets religious institutions with traditional moral beliefs keep operating adoption agencies, and even redefine child abuse and neglect to include "inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation". 

BILLS AND THEIR STATUS

PASSED BOTH HOUSES: 

  • SJ 1 Ratifies Equal Rights Amendment
  • HJ 1 Ratifies Equal Rights Amendment

GOVERNOR REQUESTED CHANGES INSTEAD OF SIGNING: 

  • SB 479 as passed by both houses: No guns for people under any protective orders, not just those for family violence. 24 hour grace period to transfer guns. Anyone under a protective order has 48 hours to certify in writing that he or she now possesses no firearms; failing to do so is a misdemeanor. The governor's amendment changes that failure to certify from a criminal misdemeanor into civil contempt of court. It makes other changes that clarify the wording but do not change the substance. The legislature has approved the governor's amendment.
  • HB 1004: No guns for people under any permanent protective orders. 24 hour grace period to transfer guns. Anyone under a protective order has 48 hours to certify in writing that she now possesses no firearms; failing to do so is a misdemeanor. The governor's amendment changes that failure to certify from a criminal misdemeanor into civil contempt of court. It makes other changes that clarify the wording but do not change the substance. The legislature has approved the governor's amendment.
  • SB 71 Expands the prohibition of weapons on school property to include daycare and preschool property, including the entire building (such as a church) that the day care or preschool is in, but only during the hours when the day care, etc. is open. Does not apply to day care operated in the residence of the provider or of one of the children. But still bans weapons in churches during day care/preschool hours. Daycare may have armed security; that is added to many existing exceptions, such as knives being used for food service or other employment, school-sponsored programs, law enforcement, unloaded and properly stored weapons, and otherwise-legal weapons kept safely in vehicles. The governor's substitute adds that the provisions governing day cares and private or religious preschools "(i) shall apply only during the operating hours of such child day center or private or religious preschool and (ii) shall not apply to any person (a) whose residence is on the property of a child day center or a private or religious preschool and (b) who possesses a firearm or other weapon prohibited under this section while in his residence." Makes a couple other wording changes, which are not substantive. The legislature has approved the governor's amendment.

APPROVED BY GOVERNOR, BECOMING LAW AS OF JULY 1, 2020: 

Divorce

Marriage

  • SB 62 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics
  • SB 955 Civil celebration of marriage fee maximum increased to $75  

Custody/Parenting Time

  • HB 436 Uniform Child Custody Jurisdiction and Enforcement Act; disclosure of identifying information when one party claims it would be dangerous: Currently, once one party claims this, it cannot be disclosed unless the court decides to in a hearing within 15 days of the filing of a pleading. This bill adds "or affidavit" after "pleading." 
  • SB 430 Each parent to have access to child-care records, regardless of custody. 
  • HB 137 Guardians ad litem for children must give certification of compliance with standards.
  • HB 861 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse or child abuse," in addition to the current requirement to consider any "history of family abuse." no earlier than 10 years prior to filing of petition.
  • SB 105 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse," in addition to the current requirement to consider any "history of family abuse." no earlier than 10 years prior to filing of petition.
  • SB 214 GALs to review and report on Individualized Education Plans in young-adult guardianship cases

Child Support

  • SB 434 Court may award either parent the right to claim child-related income tax credits as well as dependency exemptions. 
  • HB 637 "Reasonable cost of health care coverage," in law on ordering coverage as part of child support, to mean no more than 5% of providing parent's income, instead of 5% of parents' combined incomes.
  • SB 428 Any unpaid medical expenses for pregnancy and birth to be split
  • HB 690 Temporary Assistance to Needy Families (TANF): Repeals the prohibition on increasing the amount of Temporary Assistance for Needy Families (TANF) that a family receives upon the birth of a child during the period of TANF eligibility or an adult recipient is ineligible because of child support compliance issues

Spousal Support

  • SB 432 Material change of circumstances required before court may use post-divorce "reserved" jurisdiction to order spousal support, unless a contract, stipulation or court order says otherwise.
  • HB 1500 Pendente lite spousal support guidelines shall apply in Circuit Court as well as Juvenile, and are reduced slightly to account for federal tax law change taxing payors instead of payees for alimony.
  • HB 1501 Spousal support in a stipulation or contract made after 7/1/18 is still modifiable if the contract does not expressly say that it is not modifiable, or limit modifiability; but that express statement will no longer have to be in specific wording required by statute.

Adoption

  • HB 94 Must give proper notice of adoption proceeding to legal custodian.
  • HB 721 Post-adoption contact and communication agreements; parents whose parental rights were involuntarily terminated may enter such agreements.

Child Abuse/Foster Care

  • HB 778  60 instead of 45 days for "family assessments" when children alleged to be at risk.
  • HB 287 Extends from one year to three years the period of time for which the Department of Social Services must retain records of unfounded investigations of child abuse or neglect before purging.
  • HB 933 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
  • SB 178 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
  • SB 472 Foster care; encourages termination of parental rights improves training and information about voluntary and involuntary termination, independent living needs assessments.
  • SB 156 Fostering Futures program to provide services and support to former foster care children now between 18 and 21
  • HB 904  Public sports programs' volunteers and employees shall be mandated reporters of suspected child abuse/neglect

Domestic Violence/Protective Orders

Elder Laws/Wills/Trusts/Probate

  • HB 1378 Codifies the Uniform Directed Trust Act, allowing and governing the role of a "trust director"
  • HB 305  Fee for lodging, etc., of wills increased from low to mid-single digits
  • HB 362 Physician assistants, not just doctors, can make determinations that patient has no capacity to make informed decisions
  • HB 641 Funeral homes must accept caskets provided by third parties, but need not store them
  • SB 261 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath; not to do so is a misdemeanor
  • SB 553 Uniform Partition of Heirs Property Act -- rules for selling, preserving, or partitioning inherited tenancy-in-common property.
  • HB 839 Probate tax exception/refund for Virginia Beach mass shooting victims
  • HB 775 Directs Virginia College Savings Plan to analyze private retirement plans; report
  • HB 1222 When notarizing for someone in nursing home or assisted living, a passport or driver's license that expired in the last 5 years may be used to prove identity.
  • SB 700 Wills must be indexed in the name of executor named in the will
  • SB 355 Assisted living facilities; audio-visual recording of residents to be studied, stakeholder-grouped, then regulated.
  • SB 1072  Prohibits the court from appointing, as guardian or conservator for an incapacitated person, any attorney who is engaged to represent the person who is asking the court to order the guardianship, whether representing them in that case or in anything else. Includes other attorneys or employees of such attorney's law firm.
  • HB 887 ABLE Savings Trusts may be passed to a survivor.

Procedure

  • HB 1378 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect. 
  • HB 834 Courts may permit notice of an order of publication to be given by electronic means in addition to or in lieu of publication in a newspaper
  • HB 60 District court substitute judges will retain power to sign final orders for 14 days after hearing a case.
  • HB 780 Courts to accept copies of proofs process-service in place of originals
  • HB 1346 Makes it easier to get attorney fees paid out of money that is under control of the court
  • SB 451 Juvenile and domestic relations district court; awards of attorney fees shall be determined based on all relevant factors, not just the relative financial ability of the parties.
  • SB 229 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect.
  • SB 771 Interlocutory appeals to Court of Appeals: Just listing it here to note that it does not apply to family law cases.
  • SB 693 Common-law defense of intra-family immunity abolished in wrongful death cases.
  • SB 408 Notices of civil case appeals shall not have a hearing until parties have been served or waived service

Sexual Abuse/Assault

  • SB 724 Misdemeanor sexual offenses; increases statute of limitations, when victim was a minor.
  • HB 475 Virginia sexual assault forensic examiner coordination program; established, report.
  • HB 870 Sexual abuse: 10-year statute of limitations. keeps 20-year when victim was a minor
  • SB 297 Creates Sexual and Domestic Violence Prevention Fund, administered by Department of Social Services, in coordination with Department of Health and the Virginia Sexual and Domestic Violence Action Alliance, to develop and support programs that prevent sexual and domestic violence;  promote healthy practices related to relationships, sexuality, and social-emotional development; and counteract the factors associated with the initial perpetration of sexual and domestic violence.
  • HB 298 Misdemeanor sexual offenses; increases statute of limitations, where the victim is a minor.
  • SB 579 Streamlines & reorganizes Sex Offender and Crimes Against Minors Registry process; lower-level offenders will no longer have to register annually.
  • SB 42 Sexual abuse via false representation or subterfuge that is part of a massage by a massage therapist, a medical procedure, or physical therapy, shall be aggravated sexual battery. Regardless of victim's age or competence. 1 to 20 years, fine of up to $100,000.00.

Child Safety

  • HB 1083 Minors; allowing access to firearms, Class 1 misdemeanor recklessly allowing access under age 14; Class 3 misdemeanor for recklessly leaving a loaded and unsecure firearm around a child under 14; no unsupervised use under age 12.
  • HB 402 Public school lock-down drills, frequency, exemptions for kindergarteners.
  • HB 578 Smoking; illegal in motor vehicle with a minor under 15 present (current law only covers minors under 8)
  • SB 173 Stun weapons; prohibits possession on school property, exempts holder of concealed handgun permit, but only if it remains in vehicle
  • SB 593 All firearms in a licensed in-home day care provider's home must be stored unloaded and locked up.
  • HB 600 In-home day cares must store guns and ammo separately, and locked up in a container, cabinet, etc.
  • HB 38 Tanning facilities prohibited for minors.
  • HB 799 Day cares must test all drinkable water sources for lead.
  • HB 1080 Firearms or other weapons; unauthorized to possess on school property.

        But the same bill also adds a sweeping statement with no such exceptions at the beginning of existing Code Section 18.2-308.2:2: "All firearm sales or transfers, in whole or in part in the Commonwealth, including a sale or transfer where either the purchaser or seller or transferee or transferor is in the Commonwealth, shall be subject to a criminal history record information check unless specifically exempted by state or federal law." 

        I for one am completely unsure which section is supposed to trump the other. The exceptions clause is framed only as an exception to that particular Code section, and includes the caveat, "unless otherwise prohibited by state or federal law". Such a "state law" would likely include the existing section with its new amendment requiring a lengthy background check process for all transfers, no exceptionsBut that section, in turn, says, "unless specifically exempted by state or federal law." Would that include an exemption whose text is only written to apply within its own Code section? Seems like a chicken-or-egg problem. Although I would hope that any future interpretation would conclude that the legislature could not have intended a ten-point list of exceptions to be completely inoperable.

Education

  • HB 410 Parents must be notified when student gets  literacy or "Response to Intervention" screening and services
  • HB 256 Criminal disorderly conduct does not include things students do in school, on bus, or at school-related activities
  • SB 3 Disorderly conduct; student not guilty of disorderly conduct in a public place if incident occurred on school property, on school bus, or at school sponsored event.
  • HB 257 Schools don't have to contact police about all conduct that might be a misdemeanor
  • SB 729 Schools don't have to contact police about all conduct that might be a misdemeanor
  • SB 186 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
  • SB 238 Increases required kindergarten hours 83%
  • HB 999 Schools must have epinephrine constantly accessible, along with staff trained to administer it 
  • SB 44 Lets students keep and bear sunscreen without a doctor's note, etc.
  • HB 1012 Early childhood care and education; establishes comprehensive public-private system basically like the school system, and operated and regulated by the Department of Education.

Health

  • HB 134 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
  • HB 687 Doulas to be state-regulated, registered and certified
  • SB 423 Health insurance; mandated coverage for hearing aids for minors.
  • SB 213 Study increasing the Personal Maintenance Allowance for people receiving Medicaid, etc.

Mental Health

  • S.B. 713 Establishes state licensing for art therapists; emergency regulations shall issue to implement this.
  • SB 633 Music therapy to be strictly licensed and regulated
  • S.B. 1046 Adds clinical social workers to the list of providers who can disclose or recommend the withholding of patient records.
  • HB 308 Students' excused absences for mental and behavioral health reasons, DOE to create guidelines
  • HB 42 Health care providers must be trained in screening patients for prenatal and postpartum depression

Military Families

  • HB 967 Military service members' spouses: expediting the issuance of professional credentials
  • HB 143 Unemployment compensation for leaving employment to follow military spouse

LGBT Issues

  • HB 145 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.
  • HB 386 Conversion therapy: state-licensed health care providers, and other state-licensed professionals who do counseling, must not do conversion therapy for minors. No state benefits, funds, contracts or grants to any entity that does it for minors.
  • SB 161 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.
  • HB 1490 Repeals laws against same-sex marriages and civil unions.
  • SB 17 Repeals laws against same-sex marriages and civil unions.
  • SB 657 New birth certificates to show change of sex: an affidavit of appropriate gender-transition treatment from a health care provider may be required, but no evidence of any medical procedure shall be required
  • SB 245 Conversion therapy: state-licensed health care providers, and other state-licensed professionals who do counseling, must not do conversion therapy for minors. No state benefits, funds, contracts or grants to any entity that does it for minors.
  • HB1041 New birth certificate for sex change may require proof of clinically appropriate treatment, but shall not require any medical procedure.
  • HB 623 Gender-neutral terms throughout the Virginia Code, including laws that punish incest, defaming a lady's "virtue and chastity", or leaving one's wife in a "bawdy place", whether that is for the purpose of prostitution or for "unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus"; removes prohibitions on same-sex marriage and civil unions. Seems a bit of a mixed bag for the cause of gay rights.

Abortion

  • HB 980 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.
  • SB 733 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.

Criminal

  • HB 1071 Legalizes profanity in public.
  • HB 245 Repeals the crime of fornication, i.e., voluntary sexual intercourse by an unmarried person.
  • SB 378 Computer trespass; expands the crime. No longer requires "malicious intent" if done "through intentionally deceptive means and without authority." Eliminates "without owner's authorization" element in prohibition on installing keylogging software "on the computer of another" -- the "without authority" element still applies, but that element is only an alternative to the "malicious intent" requirement.

DEAD (BY VARIOUS METHODS AND EUPHEMISMS):

Custody/Parenting Time

  • HB 485 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent" -- BUT WATERED DOWN EVEN FURTHER TO MERELY ADD "when appropriate, frequent and continuing contact with each parent" TO THE LIST OF FACTORS TO CONSIDER. And even that was apparently too much for a majority of the House, who, in a move I haven't noticed before, approved the committee substitute for the bill but then voted against "engrossing" the bill instead of voting against passing it. I assume that kills it.
  • HB 350 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent"
  • SB 571 Grandparent visitation when parent dead: factors court must consider, including parties' motivations
  • SB 431 Mental health professionals may not restrict parents' access to health records, or refuse to testify, as a condition of providing services.
  • SB 61 Using cannabidiol oil or THC-A oil on doctor's written advice shall not be the sole reason for denying or restricting custody, visitation, adoption or foster parenthood.
  • SB 872 Circuit or district court may appoint GAL in custody or visitation case, subject to standards, payment governed by Code § 16.1-267 which seems to provide for extremely low payment and to be designed for various other kinds of cases.

Support

  • SB 502 When child support is paid through Department of Social Services, the Department must pay the recipient even if the payor does not pay.
  • HB 82 Spousal support to be based net income, not gross; earning capacity may no longer be considered when determining spousal or child support; spousal support shall not exceed payor's net income.

Marriage

  • SB 19 Records of marriages shall not require identification of race.
  • HB 863 Person to perform marriage may be designated by marriage license applicant instead of by a judge's order; may perform it anywhere in the state; no bond required for such persons, nor for Quakers performing marriages; record of marriage may be filed by one of the newlyweds or the celebrant; no jail for performing unlicensed marriage or issuing unlawful marriage license.

Divorce

  • HB 291 Uniform Collaborative Law Act
  • SB 844 Computer trespass; expands the crime. No longer requires "malicious intent" if done "through intentionally deceptive means and without authority." Eliminates "without owner's authorization" element in prohibition on installing keylogging software "on the computer of another" -- the "without authority" element still applies, but that element is only an alternative to the "malicious intent" requirement. [Incorporated with SB 378]
  • HB 1530 No-fault divorce grounds corroboration requirement repealed

Adoption

Child Abuse/Foster Care

  • HB 580 Child abuse and neglect includes inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation.
  • HB 289 Requires that interviews of child victims of alleged sexual abuse be conducted as a forensic interview at the local child advocacy center
  • HB 252 Causing or encouraging acts rendering children sexually abused; penalty.
  • HB 288 Criminal sexual assault; definition of sexual abuse, complaining witness under age 13
  • SB 32 Corporal punishment of a child with an object; penalty.
  • HB 920 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
  • HB 809 Welfare department must investigate any report of child abuse and neglect by any "relative by blood, marriage, or adoption, caretaker, or other person with supervisory control over the child or responsible for his care or ... person who resides or is regularly present in the same household as the child."
  • HB 1051 Repeals "conscience clause" that allowed child-placing agencies to refuse to perform, assist with, counsel, recommend, consent to, refer, or participate in any child placements that violate the agency's written religious or moral convictions or policies.  Prohibits the Department of Social Services from contracting with or providing funds, directly or indirectly, to any child-placing agency that discriminates against the child or otherwise eligible prospective foster or adoptive parents on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, marital status, or status as a veteran.
  • HB 673 Cruelty to children; increases penalty to a Class 4 felony.
  • SB 878 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures
  • SB 501 Adoption and foster care home studies may be done by anyone who has completed the training program; regulations to be issued.

Sexual Abuse/Assault

  • SB 440 Electronic transmission of sexually explicit visual material by minor: misdemeanor, if the perpetrator is the only person in picture or if less than 10 pictures of another minor; alternative sentencing, rehabilitation programs, community service, avoiding permanent record or sex offender status.
  • HB 462 Certified sexual assault nurse examiners; Secretary of HHR to study shortage.
  • HB 251 Prostitution-related crimes; minors, including taking minors or spouse to "a bawdy place", expands sex offender registry, trafficking, pimping, racketeering

Domestic Violence/Protective Orders

  • HB 1001 Assault and battery against a family or household member; prior conviction, term of confinement.
  • HB 628 Lets courts sanction people for filing certain claims in retaliation for, or in order to discourage, actions taken by victims of violence to obtain an order of protection or to pursue criminal charges. This "includes any claim of defamation, intentional infliction of emotional distress, malicious prosecution, or abuse of process that is filed in retaliation for or in order to chill, discourage, or limit any legitimate action taken by a victim of (i) family abuse; (ii) an act of violence, force, or threat; (iii) stalking; or (iv) sexual assault to obtain any order of protection or criminal charges based on such family abuse, act of violence, force, or threat, stalking, or sexual assault. Any such pleadings found by a court of competent jurisdiction to lack either justification in existing law or a good faith argument for the extension, modification, or reversal of existing law shall be presumed to have been filed for an improper purpose."
  • SB 76 No guns for people under any protective orders, not just those for family violence. But keeps 24 hour grace period to transfer guns.
  • SB 145 Assault, assault and battery, or bodily wounding of a person protected by a protective order is a Class 6 felony. Currently, this is only if it results in serious bodily injury.
  • HB 159 Protective order may prohibit using any electronic device to remotely control anything in or around petitioner's home
  • HB 1077  Lets minors petition for a protective order on their own behalf
  • HB 498 Anyone with a permanent protective order will get a wallet-sized "Hope Card" with basic info about the order and the people it protects and restricts.
  • SB 82 Protective order; violation of order, armed with firearm or other deadly weapon.
  • SB 89 Protective orders; violation of order while armed with firearm or other deadly weapon, etc.
  • SB 372 Protective orders; possession of firearms, surrender or transfer of firearms, penalty.
  • SB 574 Protective orders; petitioning court on behalf of incapacitated persons.
  • SB 490 No guns after conviction of stalking, domestic violence or sex assault; criteria for restoring gun rights.
  • HB 867 Single-sex domestic violence shelters allowed.
  • HB 78 No guns after even one misdemeanor household-member assault & battery conviction; criteria for restoring gun rights.
  • HB 470 Protective orders; non-lawyer social services department employees can petition court for protective orders on behalf of incapacitated persons
  • HB 625 Redefines family abuse, as grounds for protective order, to include identity theft
  • HB 1288 No guns after two misdemeanor household-member assault and battery convictions; criteria for restoring gun rights.
  • HB 1182 Protective order may include temporary spousal support and restitution for property damage, medical bills and other financial loss caused by abuse.
  • SB 534 Anyone with a permanent protective order will get a wallet-sized "Hope Card" with basic info about the order and the people it protects and restricts.

Child Safety

  • HB 939 Public high schools must teach firearm safety education, and must do so without firearms.
  • S.B. 129 Public high schools must teach firearm safety education, and must do so without firearms.
  • HB 955 Children's online privacy protection; release of personal information prohibited.
  • SB 16 Assault firearms and certain firearm magazines; prohibiting sale, transport, etc., penalties.
  • SB 18 Firearms; restricting access under age 18, purchase under age 21
  • HB 72 Allowing access to firearms by children; recklessly leaving loaded, unsecured firearm. [incorporated into HB 1083]
  • SB 75 Minors; allowing access to firearms, penalty.
  • HB 463 Minors; allowing access to firearms [incorporated into HB 1083]
  • SB 117 Day care operated in homes needs license if caring for three or more children (current law is five)
  • SB 581 Minors; allowing access to firearms, Class 6 felony. Limits
  • HB 356 Child labor; employment of children on tobacco farms
  • HB 675 License restrictions for minors; use of handheld personal communications devices.
  • HB 853 Firearms; recklessly allowing access to certain persons (including minors, but with major exceptions, see Va. Code § 18.2-308.7)

Elder Law/Wills/Trusts/Probate

  • HB 736 State estate tax reinstated, unless most assets are in a working farm or closely held business
  • HB 96 Powers of attorney must be signed in presence of a witness or notary public
  • HB 76  In suits on written contracts subject to 5-year statute of limitations; if a potential party is a missing person judicially declared dead and the cause of action accrued after they went missing, executor of estate has one year from the declared-dead order to file suit.
  • HB 862 Guardianship; limits on how guardian may restrict communication with close relatives and friends; procedure and standards for courts to resolve disputes about such communication; guardian who restricts communication in bad faith or in his own interest may have to pay others' costs.
  • HB 304 Guardianship and conservatorship petitions must include identifying characteristics/description of the respondent, which shall be included in the information sent to the Criminal Records Exchange.
  • SB 352 Encourages avoiding guardianship and conservatorship when a "supported decision-making agreement" is feasible instead; GALs in adult guardianship cases must consider and report on that alternative.
  • HB 841 Guardianship suits: person it's about shall have right to counsel and to participate and be heard. If not represented, counsel must be appointed. 
  • HB 1321 Supported Decision-Making Act: allows an adult with an intellectual or developmental disability to enter into an agreement with another person, called a "supporter," who will assist the adult in making decisions to manage his affairs, giving them a less restrictive means of receiving assistance than being appointed a guardian or conservator by a court.
  • SB 308 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath under penalty of felony perjury
  • SB 697 Execution of wills; requires the witnesses to be disinterested, meaning having no personal or beneficial interest in the will. Being a fiduciary, guardian or counsel does not prevent someone from being disinterested.
  • SB 359 Deed of gift of real estate requires title search for recordation
  • HB 331 No one particular clinical diagnosis automatically means you're incapacitated.
  • SB 1042 Wills; codifies common-law presumption of undue influence. There is a rebuttable presumption of undue influence on a testator if the testator (1) was mentally feeble when his will was made, (2) named a beneficiary who stood in a relationship of confidence or dependence to the testator; and (3) previously had expressed an intention to make a contrary disposition of his property.

Procedure

  • S.B. 663 All health practitioners must assist and cooperate with their patients' litigation and attorneys
  • SB 1060 For good cause shown or upon agreement of all parties, the court may dismiss a case without prejudice.  Plaintiff may re-file within the original period of limitation.
  • SB 334 Court Reporters to be licensed and regulated
  • HB 712 Lets legal notices appear in online publications [Incorporated into HB 588
  • HB 588 Lets legal notices appear in online publications
  • HB 95 Decisions that a person is not in contempt of court can be appealed to the Court of Appeals.
  • HJ 22 Study deficient/outdated training of substitute and retired district court judges
  • HB 163 Contempt of court "summary punishment" -- increases max penalty to 30 days
  • HB 1206 Court may order state payment of GAL for good cause shown in any civil case.
  • HB 401 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures
  • SB 529 Slight change to hearsay exception for past statements by a person who is now dead or incompetent.

Education

  • HB 158 Tax deduction for K-12 school tuition or home instruction expenses
  • HB 332 Students must receive "rapid automatized naming" and "rapid alternating stimulus" (RAN/RAS") tests for dyslexia and other reading difficulties
  • HB 678 Parental Choice Education Savings Accounts
  • HB 1277 Public schools; reduces number of Standards of Learning assessments, report.
  • SB 390 Reduces Standards of Learning assessments to the federally-required minimum
  • HB 926 Income tax, state; credit for employer contributions to Virginia College Savings Plan accounts.
  • HB 223 Education, recommendations for improving civic education.
  • HB 197 Financial literacy objectives; study incorporating them into math SOL
  • HB 455 TANF (welfare) receiving families to get community college scholarships in pilot program

Health

  • HB 823 Health Insurance Premium Payment program coverage expanded
  • S.B. 858 to license and regulate naturopathic doctors
  • SB 104 Vaccinations and immunizations; certain minors given authority to consent.
  • HJ 18 Universal health care; study cost of implementing in the Commonwealth
  • HB 529 Universal health care; study options for financing.
  • SB 946 State medical-assistance funding for doulas' services.

Mental Health

  • HB 40 Public schools must have mental health break spaces
  • SB 315 Emergency rooms must screen for depression, provide info/referrals

LGBT Issues

  • HB 966 Limits regulation of Conversion Therapy to protect "the fundamental right of an individual to select for himself, based on an informed and voluntary choice, a form of counseling that involves nothing more than 'talk therapy,' regardless of the age of the individual, including in situations where the patient is seeking such counseling to assist him in reducing or eliminating unwanted attractions or behaviors or concerns about gender identity."

Military Families

  • HB 930 Military service members' and veterans' spouses: expediting the issuance of professional credentials [Was incorporated into HB 967]

Abortion

  •  SJ 2 Constitutional amendment; right to personal reproductive liberty
  • HB 1473 Surrogacy contract provisions requiring abortion or selective reduction unenforceable, void, against state public policy.
  • S.B. 635 Right to reproductive choice, fundamental right to choose or refuse contraception or abortion. Even for persons under state control or supervision. Any state or local official charged with violating this can be sued in state or federal court, for injunction or damages, by any person or entity.
  • SB 21 Abortion; repeal of parental/judicial consent requirement for minors, and other restrictions (incorporated into SB733)
  • HB 1445 All health insurance plans must cover abortion, contraception and many other "reproductive health" and women's health services. Extremely narrow exception for "religious employers".
  • HB 526 All health insurance plans must cover contraception and many other "reproductive health" and women's health services. Covering abortion is required when mother's life endangered or after rape or incest. Extremely narrow exception for "religious employers".
  • SB 917 All health insurance plans, including state ones, must cover abortion, voluntary sterilization, genetic mutation screening/counseling, domestic violence screening/counseling, STDs, all forms of contraception, and many other "reproductive health" and women's health services. A very few strictly-defined "religious employers" might get an exception from abortion-funding requirement.
  • SB 920 Surrogacy contract provisions requiring, or prohibiting, abortion or selective reduction are unenforceable, void, against state public policy.

Criminal


Using marital contracts to stabilize marriages: past, present, and possible

 Über ehestablisierende Rechtstechniken

On Marriage-Stabilizing Legal Techniques

 

by Prof. Dr. Hans Hattenhauer

81px-Prof._Dr._Hans_Hattenhauer_(Kiel_77.824)
 
Christian-Albrechts-Universitaet zu Kiel,
Christian-Albrechts-University, City of Kiel

Zeitschrift fuer das gesamte Familienrecht (FamZ) 1989, page 225 et. seq.

Summary and Explanation by Antje S. Heinemann, J.D., with assistance by John Crouch, J.D., and Susan Winston, J.D. candidate, University of Miami School of Law

 

In this article Prof. Hattenhauer deals with the need to stabilize marriages and the legal instruments and techniques to do so.

As marriage is a lifelong relationship it is always endangered by its duration. Because of the changes of various circumstances such as society, the spouses’ financial situation and economic development/expansion etc., marriage has lost a lot of its functions and is therefore today even more deemed to be only a short-term rather than a long-term “operation”.

But how have humans in history of mankind been able to make marriages work as a long-term relationship and make this long-term relationship an ideal of a marriage? Knowing that trust of only biological/emotional forces and the spouses’ good will are not enough to make a marriage a “long-term operation”, former cultures have stabilized it with various techniques.

As Hattenhauer states that there is up to now hardly no fundamental scientific research on this issue, he limits his point of view in his article to marriage-stabilizing legal techniques. This makes him first think of some very general questions such as: What is society’s moral understanding and what is universally valid? What is the general social consensus that courts must respect? At what point is the jurisdiction exceeding its authority when it determines what the ideal of marriage?

To find answers he works with various theses:

Thesis 1:

Marriage is the foundation of family. Family is based on marriage and – at best – includes children. In contrast to this, any other model of a “family” such as homosexual cohabitation, a commune or heterosexual cohabitation without being married is not legally binding and it can therefore not achieve the same privileges as a marriage.

Thesis 2:

Marriage is an “enterprise for maintenance”. As society has changed into an industrial society and the welfare state has been established, marriage has lost a lot of its maintenance character and functions. However, it has never totally ceased to be an “enterprise for maintenance”, which is shown by the unbroken importance of support payments. This support for spouses and children will never be completely replaced by government.

Thesis 3:

In addition to this financial “maintenance”, marriages also give enormous personal and emotional support. This support is not replaceable at all. Today, this support is even more appreciated than ever before.

Thesis 4:

Up to now the maintenance character of marriage (both financial and emotional) has been obvious. After the long-term period of upbringing the children the period of growing old usually began. The parents then needed support and care-taking themselves.

But increased life expectancy, both parents’ working, and the social security system have created a completely new period between these two periods. During this phase the spouses are usually not aware of their mutual maintenance obligations and therefore the duration of marriage is weakened. As also sexual morality has changed, marriage has furthermore lost a lot of its sexual maintenance character.

Thesis 5:

The ecclesiastical sacrament of marriage has been replaced by the civil marriage. Today, marriage is legally understood as a contract.

Thesis 6:

Although we see today all these changes to the maintenance character of a marriage, there is still a huge private interest for stability in marriages. It is important for governmental authorities to assure a process of stabilization, as stable marriages ensure the people’s life quality.

Thesis 7:

People entering a marriage often have to make sacrifices such as giving up parts of their personal freedom or privacy. As some kind of compensation the state is giving them married privileges and protection by law. Art. 6 GG, (i.e. Grundgesetz, the German constitution) for example, protects family and marriage. To give the same bonuses to other, less legally binding, types of relationships won’t be justified. These bonuses are such as, but are not limited to, support, inheritance, child custody, and in case of dissolution of marriage, a system to solve conflicts as the law determines alimony, support, division of pension rights etc.

Thesis 8:

As, because of the great public interest in long-term marriages, smart states have developed certain marriage-stabilizing policies, they have laid down marriage and family in the constitution.

Thesis 9:

The history of occidental marriage has been the history of the privatization of marriage. Marriage has become more and more a subject of the couple’s dispositions. Today spouses can determine nearly everything regarding their marital relationship. Since spouses can do so, such agreements, their compliance and their enforcement, need protection by the government.

Thesis 10:

The process of privatization is neither irreversible nor deplorable. Privatization is justified as an act of liberation from governmental constraints.

Thesis 11:

After the breakdown of the middle-class model of marriage (after 1968) as the “moral monopoly,” we find today a pluralism of ideals of marriage. The question today is: What kind of law do we need in times of pluralism, which does justice to all models and groups? What kind of law does not impose too much stabilization to the ones not interested, and does not refuse to give stability to the ones who ask for it? How can the government take care of marriages and create a law that meets all interests? How does a catalog of acknowledged ideals of marriages look like?

In the history of marriage, the non-formal (regarding the entering and dissolution of marriage) Roman marriage, the “matrimonium liberum”, has been surprisingly durable. Alfred Soellner has stated that the reason for this stability was the use of a certain legal technique: the dowry, the “dos”. The dowry was the father-in-law’s contribution to the husband in a considerable amount of money to give the marriage a binding character. The marriage and the financial contribution were strictly connected. Conversely, only an endowed marriage was acknowledged as a valid marriage. A marriage without dowry instead was regarded as void.

The dowry was highly important to wives. It was so important that the father-in-law sometimes had to impose it on the husband. The financial contribution was also a matter of the wife’s reputation. A woman who was not endowed was contemptuous. If the family was poor, the daughter sometimes had to go to the brothel.

The purpose of the dowry was to stabilize the marriage: The profits made out of the financial contribution were used to maintain the family, especially during the first years. The ongoing sanctions in case of conflicts guaranteed the existence of the marriage. Both spouses had to take care of the marriage to be entitled to the benefits of the financial contribution. In case of adultery or filing a divorce, e.g., the wife lost all her entitlements for the return of the contribution in total. If the husband wanted to commit adultery or wanted to get divorced he had to be afraid of losing the dowry, which helped to keep him from doing so. It was also possible for the wife to determine a contractual penalty for the husband, which he had to pay if he had a concubine. In general one could say: He who wanted to give his wife back had to give the contribution back.

According to Hattenhauer this was the reason why marriages without dowry had always been more endangered by divorce than others, and why the Romans preferred marriages within one’s station. A poor wife could be easily rejected but in case of a high dowry the rejection always meant a bad loss. On the other hand, a marriage with a high dowry was sometimes quite difficult to handle for a poor husband, because then he had to endure the moods of his rich wife. Thus, the Romans found the ideal marriage where there was a dowry and the financial background had been equal.

 Hattenhauer then describes the marriage in the rabbinical-talmudical law and states that it was quite similar to the Roman model: Without a trousseau a woman was not allowed to marry. If necessary the money was taken from the community’s funds for the poor. In addition to that, there was also the dowry (which could be in property or money). The dowry always continued to be the property of the wife but was administrated by her husband, who often had a right of usufruct of it. The couples necessarily had to settle upon a marital agreement. Beside certain other agreements the spouses agreed about the “Ketubah”, which was the sometimes considerably high amount of money the husband had to pay in case of the dissolution of marriage (divorce or death). The amount had to be in accordance with a minimum sum and depended on the amount of the dowry. A marriage without a “Ketubah” was not completely valid and considered as a concubinage.

 Hattenhauer states that both dowry and “Ketubah” stabilized marriages. As the capital stock usually was invested in the husband’s enterprises, his cravings for divorce were reasonably minimized. On the other hand a mean wife, whose “Ketubah” had been high enough, could sometimes leave the husband desperate. To explain this dilemma Hattenhauer cites the case of Rabbi Nachman: He couldn’t get divorced from his mean wife because the “Ketubah” was too high, but his disciples finally collected the money to pay him off and gave him freedom.

The purpose of the “Ketubah” to stabilize marriages was clear: The rabbis created the “Ketubah” to make it more difficult for the husband to leave his wife.

Hattenhauer then examines the German model and states that the German law did not adopt the Roman model schematic. In the 17th – 19th century it was held that the common marital agreements in Germany didn’t comply with the narrow frame of the Roman “pacta dotalia” because they were not limited only to financial transactions. Up to the effective date of the BGB, (Bürgerliches Gesetzbuch, i.e. Civil Code), January 1900, the Germans and Europeans practiced marriage-stabilizing by using various kinds of marital agreements. They had various names, varieties, and a high practical importance. They had such names as pactum dotale, pactum nuptiale, Ehepakt, Ehegedinge, Ehestiftung, Eheberedung, and Brautlaufbrief.

A marital agreement was defined as any legal transaction that determines rights and obligations of spouses. The essence of those agreements was that there were personal and financial agreements at the same time. However, the financial settlements – the agreement about the husband’s or wife’s financial contribution to the marriage – predominated. Being an important financial source for the maintenance of the family, the assets were important to stabilize marriages. The husband administrated the estate and was liable for its continued existence. In these marital agreements the spouses could also agree about the husband making a contribution to the wife in return, or a security payment for the dowry.

Those types of marital agreements were not only settled between rustic, but also aristocratic, spouses.

Beside the above mentioned possible settlements the German marital agreement in these times above all also contained agreements about inheritance (wills or any other kind of inheritance transactions). The spouses, e.g., agreed about the future of financial contributions, reciprocal assigning, and provision for children. The husband also often agreed that his heirs had to support his wife after his death. Thus, marital agreements and agreements about inheritance went hand in hand. The variety of such agreements was enormous, especially in the area of non-codified law, where spouses had creative scope.

The personal decisions in marital agreement included mainly decisions about parenting, religion or an agreement about the place of residence. The custody often was transferred completely to the wife. The spouses also settled agreements about support and education of the children in case of their divorce or agreed about contractual penalties if for example one of them refused the performance of matrimony.

 Hattenhauer states that there are good grounds to consider the German model as a Christian model. In comparison between the Roman and Jewish model on one side and the Christian model on the other side you will find that the most important difference is that the church never stabilized marriages by using financial transactions. As the Christian model of marriage, the holy sacrament, can never be dissolved, and assets were not necessary to enter one, this model didn’t need financial transactions. In addition to that, social classes were not important at all, and even poor people or slaves could enter a marriage.

According to the Roman model the limits of contractual freedom only were the compulsory law and morality. The various effective laws in former times gave the spouses different kinds of creative freedom. The “Preussische Allgemeine Landrecht” from 1794 hardly contained hardly any regulation about marital agreements, but regulated everything regarding the marriage itself. The “Saechsische Buergerliche Gesetzbuch” from 1863/1865 regulated everything in great detail.

All those regulations described as what is today known as the principle of morality, § 138 BGB (Buergerliches Gesetzbuch, the German Civil Code). According to the institutional character of a marriage as an ideal in the 19th century, a marriage rather was a moral than a legal phenomenon. Morality was then the most important limit on the freedom of contracts. In those times it was therefore determined in a very detailed manner what kind of agreements were void because of immorality: any agreement in which the spouses:

- assigned the wife to the husband’s power

- waived matrimony, sexual intercourse and joint residency

- waived the obligation of reciprocal care-taking

- excluded any litigation regarding marriages

- took away the husband’s benefits from the wife’s financial contribution such as the dowry

- adjourned the maturity to make the dowry to a date after the dissolution of this marriage

- conceded the other spouse the right of adultery or criminal behaviour

- limited the husband’s liability to administrate the wife’s dowry

An agreement was also void when it deprived the surviving wife of her property and gave it to the husband’s relatives after his death. In those times, people nonetheless believed that the above-listed limits gave the spouses enough contractual freedom.

According to Hattenhauer the end of this type of marital agreements came with the creation and effective date of the BGB (Buergerliches Gesetzbuch, i.e. the German Civil Code) in January 1900. From that time on, a marital agreement was defined as a contract which only determines the system of marital property. It did not determine any other kind of financial or personal matters. The 1901 book of annotations, Planckscher Kommentar, stated that a marital agreement is a contract used by spouses to determine their system of marital property. On the negative side you can not understand it as a contract which determines personal matters such as the wife’s obligation to follow her husband or the decisions about parenting, etc. Whether such agreements are valid and can be enforced depends on their accordance with the nature of marriage and morality. However, such agreement is not a marital agreement pursuant to § 1432 BGB.

From that time on, people didn’t acknowledge agreements about any personal matters anymore, even if they had done so in a tradition of hundreds of years. According to Hattenhauer the annotation shows the skeptical understanding of the validity of such contracts very clearly, because it points out the fact that such contracts had to be in accordance with the nature of a marriage. Because the BGB was understood as defining the nature of marriage in those times, consequently every agreement about personal matters was void, because it differed from the model described in the BGB.

The annotation to the first draft of the BGB had the same understanding:

“The draft acknowledges the principle of contractual freedom. However, it also points out the limits of contractual freedom. An agreement can only be valid as long as is not in contradiction to the nature of marriage. Agreements about the regulations regarding the marital status of spouses such as e.g. their legal relationship are void in general because those regulations are the necessary essence of marital relationships.”

By citing Art. 199 EGBGB (Einfuehrungsgesetz zum BGB, the Introduction Act to the BGB) Hattenhauer reaches the conclusion that the German law in those times didn’t favor such marital agreements anymore:

“The personal relations between spouses, especially their obligation to pay support, are determined by the regulations of the BGB, even if they concern a marriage before the effective date of BGB.”

Hattenhauer believes that the purpose of this was to eliminate agreements regarding personal matters in general. In his opinion, therefore, The Marital Agreement by Albert von Baldigands (1906) was a fundamental book which pointed out that such agreements are no longer marital agreements.

Regarding this new legal understanding of marital agreements Hattenhauer cites two cases:

In 1900 a court had to decide about an agreement in which the husband agreed to have his place of residence at the wife’s land property, and promised to cultivate the land. The wife sued the husband, and the court held that she had no right to demand performance of the agreement, because only the husband had the right to decide about the place of residency (pursuant to § 1354 BGB). It was also held that even if the agreement had been valid until the effective date of the BGB, it had become void.

In 1905 the courts had to decide again about a marital agreement made before the effective date of the BGB. In this case the husband had waived his right to administrate the wife’s estate, and had waived his right to use it. In consideration of this, the wife had waived her right to receive support from her husband. The court held that a contractual waiver regarding support is void and that it did not make a difference if the wife’s waiver was made freely or not.

From that time on it was case law, and the annotations stated, that all agreements about personal matters were void. They were not in accordance with the nature of marriage.

Hattenhauer says that one reason for this change in opinion about marital agreements and the mistrust against them might lie in the effort to create a uniform/homogeneous family and inheritance law. He argues that the authors of the BGB were proud that they had limited the former variety of 100 systems of marital property to only five. He therefore reaches the conclusion that it was only reasonable that nobody wanted to destroy this success and give the spouses their contractual freedom back.

The authors of the BGB were also convinced that they had created marriage as a “timeless and exhaustive institution,” and that they had created a truly moral model of marriage with equal rights for wife and husband by upholding the traditional roles. This middle class model of marriage was regarded as exclusive. As marriage and family were the cornerstones of the middle class, Hattenhauer believes that this was the reason why the middle class didn’t want to make any concessions for the benefit of the spouses’ individual liberty, and the demand for contractual freedom only led to mistrust.

However, in this new model of marriage the husband still had to be afraid of losing assets by leaving his wife. The new system was still able to stabilize a marriage because of the continued existence of a very traditional social order and the principle of marrying within one’s station.

Hattenhauer believes that this legislation would have been useless if the people’s understanding of marital obligations of spouses had not been generally shared. He also believes that the model was secured by society’s morality. He states that even socialists had the same opinion about sexuality, marriage, family etc. in those times. So he reaches the conclusion that the general moral understanding helped to make the courts find every agreement differing from the BGB void because of immorality.

According to Hattenhauer the acknowledgement of this model of marriage was also supported by society’s unbroken trust in their assets. It was e.g. not immoral if the fathers-in-law sat down and started calculating the amount of the assets while the spouses just enjoyed their love. But only after two decades, in the 1920s, the trust in the assets, and the assets themselves, were melted away by inflation, so marriage-stabilizing couldn’t be achieved by financial contributions anymore. Society was forced to look for new stabilizing techniques.

Hattenhauer states that from this time on a new “asset” for a wife to bring into the marriage was a solid vocational training, as a form of social security. People believed that this asset could not melt away even in times of inflation. The fact that both spouses were working turned out to be a stabilizing factor for marriage, especially regarding its psychological balance. Besides her dowry her vocational training now gave the wife stability even if she gave up her profession to become a housewife. However, even then, stability was still achieved by society’s constraints and traditional case law.

Hattenhauer then describes the current status quo:

- marriage has lost its protection by law

- middle-class morality has lost its general prestige

- the number of divorces and the number of children of divorce who are skeptical of marriage have increased

- the model of an “emancipatory marriage” has replaced the middle-class model of marriage

- the stabilizing legal techniques such as “Zugewinn- and Versorgungsausgleich” (equitable distribution including property and pensions) can be abolished by marital agreements

- the loss of faith and trust in marriage made the concubinage more attractive

- the loss of the husband’s responsibility for the wife’s social security (because of her ability to work) has increased the marriage-age of wives, reduced the number of children born into the marriage, and increased the number of disabled children.

According to Hattenhauer the traditional middle-class model of marriage has no binding character anymore and the “emancipatory model” of marriage is a fad without a function. He believes that this pluralism of models cannot be resolved by giving one of them priority, and that the role of the law is reduced to setting only the frameworks for what might be binding and what might not.

Today, there are various answers regarding the question of what is legally binding, or what is the nature of marriage and therefore is protected by the Code’s principle of morality (§ 138 BGB). Prof. Gernhuber, e.g., names various principles which he thinks are binding:

“[1] The principle to be free to enter a marriage, [2] that spouses make a contract by entering a marriage, [3] the principle of monogamy, [4] that marriage can only be between a woman and a man, [5] the spouses’ obligation to live in matrimony, [6]  that marriage can only be dissolved by death.”

Hattenhauer asks what kind of legal techniques we need in our changed society today, if we see those principles as binding? As the traditional pre-1900 marital agreement, varying the standard obligations of marriage, is back and practiced again, he believes that it can be used as a stabilizing legal technique. The determination of personal and financial matters in those agreements can help to give marriages a more binding character than the law itself does. Hattenhauer states that the creation of various types of such marital agreements has already begun and will continue. Those new marital agreements still find their limits of contractual freedom in illegality (§ 134 BGB) and morality (§ 138 BGB).

Looking at spouses’ considerations as they enter a marital agreement, you will find that hardly anybody has considered it as a stabilizing factor. You will also find that people haven’t paid much attention yet to agreeing on personal matters, nor to agreeing about certain personal sanctions, in a marital agreement, in contrast to financial matters and financial sanctions. According to Hattenhauer the demand for individualized agreements and regulations is especially high. He states that personal matters included in agreements can be: the decision to have children and their raising, the decision who works and who does the household work, the place of residence, the things you do in your leisure time, holidays, relationships with relatives and in-laws, religious decisions, decisions about the procedure to solve conflicts or problems, etc. As each of his listed personal matters can cause a conflict and might destroy a marriage if it cannot be solved, he argues, spouses should agree in a marital agreement about those personal matters and should therefore also agree about sanctions to avoid conflicts and the dissolution of the marriage.

As the regulations in the BGB regarding divorce, and high costs, do not deter spouses from the decision to get divorced, Hattenhauer thinks that it might aid the stabilization of marriages if spouses could agree to limit their right to get divorced. He states that any useful suggestions on this are still missing, and people miss the mark by only agreeing about financial sanctions. Prof. Langenfeld suggested having different systems regarding the financial consequences of ending a marriage, distinguishing between ending because of divorce and ending because of death.

Even the BGH (Supreme Court) had already to decide about the use of assets for the purpose of marriage-stabilizing. A marriage entered in 1976 in a mosque in Munich between Islamic spouses included an agreement about a payment in the amount of 100.000 DM in case of getting divorced. The BGH held that the agreement is valid under the freedom of contract. Thus, it was held that agreeing about financial sanctions in case of divorce is valid. It was also held that this was not a contract about the system of marital property, and therefore it did not have to be in one specific form (such as for example under § 1410 BGB).

But no courage to make such decisions on personal matters can be found yet.  Hattenhauer asks why we go about this complicated detour by using only financial sanctions to encourage the continued existence of marriage. Don’t we exclude from the opportunity of contractual stabilizing those spouses who don’t have considerable assets to lose? Why isn’t it possible to let all couples stabilize their marriages by using clear and formulated clauses? He hopes that the lawyers will improve upon this opportunity.

Then he comes back to his contested thesis about the possibility to waive the right to get divorced. First of all he states six theses:

  1. Agreements regarding personal matters are valid and find their limits in the general limits of privatization in civil law.
  2. A limitation or waiver of the right to get divorced is valid because it is not prohibited by law nor immoral or unconstitutional.
  3. Agreements about arbitration and any other models for solving conflicts are valid and legal
  4. Although entering or leaving a marriage has to comply with a certain form, agreements limiting the ability to get divorced do not.
  5. An agreed limit on the ability to get divorced can be revoked by agreement at any time.
  6. A court should determine the immorality of an objection regarding the waiver of the right to get divorced in a trial, in which the invalidity of the agreement has to be proved by the petitioner.

The train of thought is again, for example:

Wife and husband, both Catholics, want to get married and want their religion to become legally effective (in addition to the official governmental ceremony). Using Privatization in order to express their religious beliefs, the couple creates a marital agreement that they will not get divorced. In addition the agreement states that any litigation of marital issues will be decided by means of arbitration and the arbitrator shall be an ecclesiastical judge.

If the spouses then get into conflict there are two choices: Both agree to change the marital agreement, revoke their waiver and both can move the court for a conventional divorce. That means that nobody can jump out of the marriage hastily.  If the other spouse refuses to agree about the change of the marital agreement the spouse will then move the court to decide. But the Respondent can make the objection that the court has no jurisdiction because of the agreed clause regarding arbitration. If the respondent moves to the court of arbitration, he or she will be forced to find a mediated solution. If there is no arbitrated solution the arbitrator will dismiss the motion to get divorced because of the agreed waiver. The Petitioner can appeal by citing § 1041 Nr. 2 ZPO and proving the immorality of the Respondent’s objection regarding the waiver. Finally, the way out of a marriage should never be absolutely excluded as the last solution, but the way out should be restricted. This complies with the principle of tolerance and pluralism.

It is now necessary to show what sort of model of marriage will be more successful. In open concurrence to the already existing variety of dangerous and insecure models of concubinages, we will have a variety of secure marital agreements in which the demand for stability and the waiver of the right to get divorced will find their place. It will be personal self-fulfillment instead of being kept in leading strings by the government: In dubio pro libertate! [Meaning, in all cases that are in doubt, rule in favor of freedom. In English law, stated as “in statu dubio semper erit pro libertate iudicandum”. Bracton, f. 191 b]


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


My comments on proposed limited-scope representation rules; your comments due March 1

The Virginia Supreme Court and the Judicial Council are considering a new rule to deal with limited-scope representation, especially assistance to people who are already in litigation. My comments on it are below. The proposal, and where you can send comments by March 1, 2018, are at:

Advisory Committee on Rules of Court, Judicial Council of Virginia, "LIMITED-SCOPE REPRESENTATION ISSUES".

Overall comments — 
 
This is a very important reform. Full-scale representation in family law litigation is often unaffordable even by people who would be considered upper middle class. And it takes both divorcing spouses to prevent any particular divorce from becoming unaffordable, long-running litigation.
 
The proposed rule has many extra cautionary requirements for the attorney, or the attorney’s name and contact information, to be present in court, and on documents, even for issues where the lawyer is not involved. Please bear in mind that each of these requirements comes at a cost, not only of the attorney’s time, attention, and availability for other cases, but also by sowing predictable confusion among clients and especially their opposing parties, who aren’t involved in the limited-scope agreement. When lawyers’ names are on papers or a lawyer is present, lay people are going to assume that the lawyer is a prime mover in whatever is going on. Lay people, and even the lawyers themselves, will often feel that the lawyer has some responsibility to intervene or advise about whatever comes to the lawyer’s attention. Lawyers' instinct to be helpful will inevitably cause “mission creep” in many cases. So all such requirements should be kept to the minimum necessary.
 
As lawyers comply with these additional requirements, clients and other members of the public may feel that the lawyer is hanging around like a vulture waiting to insert herself into the proceedings and expand her involvement so that it is no longer limited. Or interfering, intruding and violating the client’s desire to limit the scope of the lawyer’s work, by writing to the client with repeated notifications of well-known facts about hearing dates, etc., whenever the lawyer is cced on something the other side sends out. Many clients already respond this way to communications that court rules and ethics rules require us to send.
 
Line comments
 
9-10 
 
 I agree that a lawyer should not be present but generally uninvolved, only popping up now and then with objections. That would be chaotic and unfair.
 
But I can also see the value in having an attorney handle only a particular motion in limine or motion to suppress. It seems fairly clear that the intent is to allow that, but it would help to make that explicit.
 
11-13
 
" A notice of limited scope representation is not required for  … (ii) services performed by an attorney before any litigation is pending”
 
Does that dispensation also apply to the requirements to “indicate” or “identify" in (1) (F), Alternative versions 2 through 5?
 
I believe it should apply. Either way, that question should be answered explicitly.
 
26 et seq. — Alternative versions of (F)
 
In all versions, the term “papers for submission to a court” is intended to be clear, but what about marital separation agreements? They are not court filings. They are binding contracts when the parties sign them, regardless of whether they are submitted to a court. But whenever one gets signed by both spouses, perhaps 95% of the time there is going to be divorce, and the agreement i8s going to be submitted to the court as part of the divorce process.
 
I think limited-scope assistance is crucial, so I oppose Alternative # 5, which essentially bans limited-scope, and Alternative # 4, which creates a presumption against it; imposes a needless requirement to essentially file a notice of appearance, and then to file a notice of disappearance.
 
86
 
“Papers” sounds vague. I think you mean litigation documents such as pleadings or discovery requests, but we need a more precise, comprehensive, understandable, and distinctive term for that.
If it’s intended to mean everything, including settlement correspondence, that’s reasonable, too, but that too would need to be clearer. Because the word “papers”, to a lot of people, vaguely indicates papers that are somehow official, binding, and/or threatening.
 
88
 
The requirement should be to notify the “sender”, not “the adversaries”. They might not be the same people.
 
 
notify the adversaries in writing of that fact
should be changed to  
notify the adversaries, in writing, of that fact
or
notify the adversaries of that in writing
 
But really, “that” or “that fact” might not make clear to everyone which of the facts mentioned earlier in the sentence it refers to, so it would be better to say, 
 
“the attorney must notify the sender that the documents received deal wholly or partly with matters outside the scope of the limited representation,"
 
107-108
 
"(D) Contacts by adversaries or co-parties on matters within the limited scope of 108 representation shall be with counsel …"
 
What about family law cases, where many couples legitimately continue some kinds of negotiation between themselves, even when they both have counsel who are negotiating at the same time? 
 
110-111
 
“copy served upon the attorney making a limited scope appearance” — 
 
Would serving the attorney require that attorney to respond and notify as required in (3)(C)? If that happens once, it makes sense or is at least harmless. But in litigation where filings go back and forth almost every week, it’s going to drag the limited-scope attorney into a lot of busy work, and confuse litigants — the client and/or the opposing party — about the attorney’s role.
 
115-116
 
(A) — attendance at all court proceedings, outside the scope,  should not be required if the rule is truly allowing limited representation. I would expect attorneys to charge for this time, and it would be a major burden on the clients and the attorneys.
 
John Crouch
VSB Council Member for 17th Circuit
Fellow, International Academy of Family Lawyers (Formerly IAML)
and International Academy of Collaborative Professionals
 

Law schools' focus on case-law makes the law & lawyers elitist, undemocratic, bad at their most important job

Larry Gaughan, an elder statesman of family law and mediation in Northern Virginia, recently reflected on the legal profession's excessive focus on case-law, and the attitude that law isn't real until it has been applied in a published appeals court case. Besides the way it poisons lawyers' ability to help their clients, which he so eloquently illustrates, I think there's even more:

  1. It makes young lawyers ridiculously elitist and contentious -- they model themselves on bow-tied Supreme Court Justices hurling pompous insults at each other and at the people involved in their cases, and not on real lawyers working in the trial courts, lawyers who work to resolve disputes before they become trials, and lawyers who try to draft contracts and statutes so well that people won't even have legal disputes about them, and won't have to go to lawyers to know what they mean.
  2. It's anti-democratic: As Larry points out, major new legislation in our field -- even something as basic as letting divorce courts divide property --  is often not understood, and not really recognized, until there is case law saying what it means. And Virginia's appeals courts sometimes take the attitude that revising the details of divorce-related law is only their business, and when the legislature tries to meddle in it or to undo the effects of an appeals court decision, they seem to do their best to frustrate the legislature's aims or use the new statutes to reach absurd and unintended results, as if to say, 'see what a mess you make when you meddle in the affairs of divorce courts!' In Constitutional law, the Third Amendment and, until recent decades, the Second Amendment, are often described as a dead letter because there were no court case opinions 'making them real.'

Larry writes:

"In 1890 American law schools began to switch to the study of appellate cases as the primary means of legal education.  ...  Given that so few law graduates now wind up as litigators, that approach makes less sense with every passing year.  Almost by its very nature, the case system teaches us to look backwards and to think of law as litigation. ...

"The case system made more sense when most law graduates wound up as lawyers whose practices included litigation.  Even [for them], law schools were not great in teaching statutory interpretation.  I remember vividly the problems many Virginia lawyers had in figuring out how to interpret the new equitable distribution statute as first enacted in 1982.  To many lawyers, the new statute really only started to have meaning after the appellate cases started to come into play. ...

"We must recognize that most legal disputes are not resolved by courts, that statutes have meaning even before courts interpret them, and that more law school graduates will pursue careers that require some knowledge of the legal framework, but also the ability to quickly learn and assimilate other kinds of expertise."

Like most lawyers, I have good and bad recollections of my own legal education.  I remember the popular law professor who taught commercial law courses, and the skepticism about another professor who taught criminal procedure.  The former taught us “the law” from uniform statues that were already in the process of major revisions.  The latter was a theorist whose courses accurately predicted every one of the major reforms of the Warren court.

-- Mediator and lawyer Larry Gaughan in "An Improper Focus for Legal Education", The Divorce Agreement Newsletter, No. 53 – July 6, 2016


The best way to divide Christmas between divorced / separated parents is ...

The author of "What’s the best Christmas contact arrangement for children?"is a wise man, that's for sure. His slogan is, “Mediation is the fence at the top of the cliff, not the ambulance at the bottom.” I share his recommendation for mediation, or using your parenting coordinator if you have one, or even picking one or more neutral-ish friends to consult together to help resolve such issues. I used to know a judge who got in trouble for flipping a coin to decide the issue the parents put before her -- who got which half of Christmas vacation which year -- but I think what she did was precisely appropriate to the nature of the dispute, and made the point that the question should never have been in court at all. Here's how to do better:

What’s the best Christmas contact arrangement for children?


#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))

 


This top divorce litigator highly recommends mediation, but for reasons most of us won't talk about:

It's really refreshing to hear Atlanta divorce lawyer Randy Kessler say why he thinks mediation is "wonderful" and needed in almost every family law case that is in contested litigation or heading for it. ("High-Conflict Cases: Q&A with Randall Kessler" on familylawyermagazine.com, 9/1/15)

For me, just like for Randy, actually working as a neutral Mediator is just the tip of the iceberg. I act as a mediator in family law cases, but almost as often, I represent one person as their lawyer in a mediation that involves lawyers as well as clients and the neutral mediator. Even more often, I counsel clients who are in mediation on their own. I help them review their written agreements and their personal and legal situations before they finally sign a contract settling all the issues between them and their ex. But far more often than that, I help people through divorce and other family disputes as a negotiator and drafter, as a litigator, or in Collaborative Law, which combines the conflict-resolving  techniques of mediation with the things that mediators cannot provide but lawyers must: complete, frank legal advice; loyalty and fidelity to the client's goals and interests; and advocacy which makes sure that clients' views are heard, that their interests and concerns are carefully and adequately considered in the process, and that before making any final decision, they have enough time, information, advice, and are in a mental and emotional state to understand and make such life-changing decisions safely. 

I'm not a touchy-feely "new age" or "granola" mediator or lawyer, so I have always really liked Randy's style. He mentions one virtue of mediation that I always thought was necessary and should be recognized and developed, but which went against the purist therapeutic, facilitative, non-directive ideal of mediation which I was trained in over 20 years ago. Many people in disputes want, and need, to make their case for justice, as they see it, to someone who represents their community (however they define it), and/or an authority figure,  or at least to someone who will understand their situation, and whom the other party will have to respect and listen to. I always thought of this aspect as "A Mediator is a Person in Your Neighborhood."

Here's the mediation part of Randy's interview: 

Let’s be clear that I'm a litigator who also mediates. I did get trained 20 years ago as a mediator and I do serve a few times a year as a mediator, but I'm an advocate and often hired because people think they need to litigate.

Sooner or later, people will understand that mediation is almost inevitable in any divorce case. It's a wonderful process and it's almost necessary in every case, except when there’s domestic violence or it's clear mediation won't work. It is worth trying for so many reasons and that's why I recently wrote a book on mediation and how I feel about it. If done properly, mediation gives you a chance to settle the case, save the aggravation of litigation, and prevents you from hearing the unkind words of your spouse on the witness stand that will ring in your mind forever. It’s invaluable if you can solve the case without litigation.

There are additional secondary and tertiary benefits to mediation. You may learn something about your opponent's case that makes you re-evaluate your case, or you may learn something about your own client and realize they can't stand up to the other side. For example, if your client falls apart when the other side is present, you cannot go to trial. You may learn that the other lawyer is brilliant or not so brilliant. Maybe the most important point is that mediation allows your client to have a brief catharsis and say the things that many people feel they need to go to court to be able to say. While it might not matter to the judge what your client’s ex-spouse did to them, it matters to the client and they may not be able or willing to settle the case until they've said it to somebody besides their attorney – somebody neutral like a mediator.

Mediation and litigation are not mutually exclusive. They’re part of the process. Most judges require or urge mediation if for no other reason than they know it will reduce their calendar. If half of the cases that go to mediation can settle, there are 50% fewer cases that the judge has to handle. More than 50% of cases that go to mediation in domestic cases do settle.

Mediation is a wonderful tool. When I first started, I remember lawyers saying that they didn’t need a mediator to help settle their cases; however, fewer clients felt like they'd had their chance to speak. I could talk about mediation for hours, which is why I wrote a book on it. ...

From: "High-Conflict Cases: Q&A with Randall Kessler" on http://familylawyermagazine.com, 9/1/15.

Randy's book is How to Mediate a Divorce.


NY's Unilateral No-Fault Law Increases Divorces 18%, Makes'em Nasty, Brutish & Long. Lawyers Mystified.

New York joined the rest of the U.S. and most of Europe a few years ago by allowing no-fault divorces that were unilateral -- not requiring a separation agreement on the economic and child-related details of the divorce -- and quick -- well, quick to start, anyway. Not so quick to finish. Now the divorce lawyers who pushed for the change are dumbfounded to discover that divorce in New York is starting to look exactly like divorce in the rest of the country, the New York Law Journal reports.

In the past, couples who lacked grounds for a divorce or didn't want to assert grounds had to work out an interim agreement and wait a year, said Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City. Rosenberg, a fellow with the American Academy of Matrimonial Lawyers and former chairman of the Nassau County Bar Association Matrimonial Law Committee, said that while he is writing far fewer separation agreements now, he is seeing more divorces—and an inexplicable elevation in hostility. "There is a proliferation of litigation," Rosenberg said. "The amount of recalcitrance and expectations which are illegitimate, the amount of infighting amongst the litigants, and to some degree amongst counsel, is from my perspective at an all-time high."

The number divorces jumped from 49,816 in 2009 to 56,382 in 2010 and 58,556 in 2012* .  "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer," Rosenberg said.

"Data from the New York State Department of Health showed that in 2012, only one of every 32 divorces followed a separation agreement, compared with one in seven in the pre-no-fault era."

"Just a few years ago, separation agreements consistently preceded about 7 percent of divorces, providing a cost-effective way for unhappy couples to start dissolving their marriage and a steady source of income for matrimonial attorneys drawing up the agreements." Richard W. Cole of the Albany Law firm of Tully Rinckey said: "Previously, separation agreements were like a two-step divorce because you didn't want to fight over fault grounds. So, the parties would reach a separation agreement and wait out the year without having to prove cruel and inhuman treatment or any of those other unpleasant things that come up in divorce complaints."

Rosenberg said court system is being strained due to an influx of unrepresented litigants and budgetary constraints. The Judiciary, which has been functioning for years with flat budgets, is seeking about a 2.5 percent increase from the Legislature for the fiscal year that begins April 1.

"It is extremely burdensome on the judiciary and court staff to try and manage these cases," Rosenberg said. "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer."

Condensed from "With No-Fault Divorces, Separation Agreements Plummet" By John Caher, New York Law Journal, March 7, 2014. 

Read more: http://www.newyorklawjournal.com/id=1202645838937/With-No-Fault-Divorces%2C-Separation-Agreements-Plummet#ixzz2vJ4d6MkO