TN court denies divorce under #Obergefell gay-marriage ruling, but also for good, routine reasons

"This is not actually unusual in family law." That's the most typical thing we say on this blog, and the main reason I started it. To give the public and journalists background whenever -- and ideally before -- the media blows up with some story that essentially says, "In a shocking and unprecedented development which must be caused by corruption, politics or ideology, a mother lost 'full custody'! / was barred from moving her baby across the country / an American citizen was forced to return her children to the foreign country where they were born and raised! / a soldier was forced to share his pension with his slutty ex! / a child was forced to spend time in the care of his father when she could instead be in quality day care! / white woman was jailed for disobeying a court order! / an orphaned child was sent to his non-custodial father instead of the heirs whom the mother left custody to in her will!"

What this blog usually says in such cases is no, that's actually routine and what happened in this case was for reasons that we in the family law field have come to accept as normal. So if you don't like it, you should realize that the problem is not with one judge who is corrupt, or anti-female or anti-male, rather, this is just one of thousands of similar cases of widespread suffering and irrepressible conflict that our current system, and perhaps any system of widespread family breakup, imposes on men AND women! And children.

We've also been able to say when a court decision truly is a wrongheaded outlier, such as the one forcing skier Bode Miller's ex-girlfriend to move across the country to give birth. 

The case that's breaking the internet today is a little bit of both kinds:

If You Thought The Kentucky Clerk Was Stupid, Check Out This Tennessee Judge

By  on abovethelaw.com, 9/2/15

The court opinion in the case includes two good and routine reasons to dismiss both parties' dueling divorce claims -- failure to prove the divorce grounds, and non-compliance with the court's procedural rules. Independently of the bad, creative, and publicity-attracting argument that the US Supreme Court has preempted any action on marriage by any other levels or branches of government. 

 If you read it to the end, it dismisses the divorce claims not only for for one bad reason, which is, as I had suspected when I first heard of this, a counterpart to the liberal judges who used to deny DV protective orders based on DOMA just to make DOMA look savage and harmful; a very good reason (failure to prove the divorce grounds), and a so-so but widely accepted reason (complete failure to comply with procedural requirements of local rules, such as filing financial statements).
 
It looks like the parties had normal relations the very night before the divorce complaint was filed and/or served. This cast doubt on the "irretrieveable breakdown" claim and also on the credibility of other claims in the complaint. And there were other problems with the parties' credibility. Quotes:
 "The Court is also compelled to comment upon its observations concerning the credibility and demeanor of thePlaintiff and Defendant. As noted when the Court announced its decision, this matter suffers from a bad case of excellent cross- examination. Perhaps the Court's observation as announced was less than delicate, but the fact that the parties were gutted like a fish during cross-examination is nonetheless accurate."

... "The only excuse for Plaintiff' s decision to be intimate with Defendant after she had executed her 'fear for her safety' verification page in support of the divorce and request for a TemporaryRestraining Order was 'I wanted to give him one more chance' to avoid the filing."
Tennessee often has cases denying divorces because "irrevocable breakdown" was not proven. Even in Virginia, where no-fault is a matter of six or twelve months of separation with intent to permanently separate, I've had that happen, rarely but always with very good reason. (In one such case, the couple later reconciled and the wife became a marriage therapist.) Divorce cases also get dismissed for procedural reasons, such as failure to prosecute with a speedy trial, since they don't want cases hanging around on the court's open-case docket forever, making the court's statistics look bad. (Even if there are good reasons for the delay, such as the parties working on reconciliation or dealing with other more pressing issues such as a child's medical or mental health crises.)
 
It's very disappointing that abovethelaw.com, which I believe is a blog specifically about the law, merely calls the judge "stupid" instead of looking at the actual law and reasoning involved in the case.

Ashley Madison breach offers land of milk & honey for divorce lawyers, & a lesson for adulterers: there's no contract

For divorce lawyers, the breach in the firewalls of Ashley Madison is like the breach in the walls of Jericho, when the trumpets did sound for seven go-rounds and the walls came tumbling down. Soon we'll be making money hand over fist.

It's also a reminder of how silly we are when we suppose that adultery is a contract that promises mutual silence and non-entanglement, even at a time when marriage itself is less of a real contract than ever. There are so many ways for the truth to get out.

For the rest of the story, as told by Northern Virginia family lawyer, bar leader, and tech-security guru Sharon Nelson, see:

You May Rue Your Cheating Heart: Ashley Madison Breached

 


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


If you work with families or have one, learn about Discernment Counseling March 18!

I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty. 

March 18th Webinar -  Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!

Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.

 

Objectives

  1. Identify the special challenges that mixed agenda couples face when they see helping professionals.
  2. Describe how couples therapist use discernment counseling to help these couples decide on the next step for their relationship.
  3. Describe how clergy use their own version of discernment counseling.
  4. Outline an ambivalence protocol for divorce lawyers and mediators who see mixed agenda couples.

Stopping marriage/divorce data collection isn't "quitting while we're ahead"; comments due today

Lawyer Beverly Willett of the Coalition for Divorce Reform offers a snapshot of the various current marriage and divorce trends that provide the context for the Census Bureau's upcoming decision on whether to keep asking about marriage, divorce and marital status in the "American Community Survey" (ACS), the current name of the "long form" sent to about 3.5 million households a year. ACS and similar data is used for most non-governemntal studies of marriage and divorce, and for very valuable analyses issued by the Census Bureau itself. As Willett reminds us, marriage is at an all-time low, divorce rates have recently been revealed to have been higher than anyone thought, and the current reduction in divorce rates is confined to a younger and well-educated demographic.

Today, Dec. 30, 2014, is the last day for public comment on the proposal.

Willett: "National marriage rates in nosedive"

Deseret News 12/25/14

[See also my Comments to Census Bureau on proposal to stop collecting marriage & divorce info]

[Update: It's nice to see our opinions confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]


Comments to Census Bureau on proposal to stop collecting marriage & divorce info

[Update: It's great to see my opinion confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]

Practicing what I preach, I have sent in my comments on the Census Bureau's proposal to stop collecting information on marriage and divorce. The deadline is tomorrow, Tuesday, Dec. 30. (In case you missed what this is about, see my original posting, "Census will stop studying marriage, divorce; Dec. 30 public comment deadline").

December 29, 2014

Jennifer Jessup, 
Departmental Paperwork Clearance Officer,
 Department of Commerce, 
1401 Constitution Ave., NW, Room 6616, 
Washington, D.C. 20230

 Re: Comment on Proposed Changes to American Community Survey

 Dear Ms. Jessup:

 Your notice in the Federal Register classified the ACS questions on marriage and divorce as low-cost, but “low value”. On the contrary, they are of very high value to our society, to the public, the press, students, researchers, legislators and parts of the executive branch.

 Social and public usefulness of these statistics

 I have been a family-law attorney for 19 years and for almost as long I have operated a divorce statistics web site. In its current form it is called the Divorce Statistics and Studies Blog, at http://familylaw.typepad.com/stats. From doing that work, I have been able to observe that the public, the media, students, academic researchers, and state and federal policymakers all have a widespread, lasting interest in marriage and divorce, and in current statistics on them of a kind which only the American Community Survey provides. Anyone writing an article, research paper, or presentation on marriage or divorce wants to use statistics in it. Any legislator proposing a bill related to either topic wants accurate, current statistics to frame his or her argument. Although I put a great many statistics and studies on the blog, I frequently get calls, e-mails and letters asking for more statistics.

The public rightly considers marriage and divorce to be extremely important subjects, and people overwhelmingly assume that the government keeps detailed, up-to-the-minute statistics on them, far more than is the case even now. People have been hearing about divorce statistics for many decades now, and most people I deal with simply could not comprehend that the government was no longer keeping them. If I told them that, they would keep looking, use outdated numbers, or just make something up that they thought was what they heard somewhere.

Governmental uses

The ACS-based statistics are also very useful to parts of the federal government. Two examples:

  • The Department of Defense and the various branches of the military keep very detailed statistics on divorce and marital status, but those would be much less useful without your corresponding numbers on the general population for comparison purposes. The military has realized in recent years that it needs to take much better care of families, and statistics are essential for measuring progress.
  • The Department of Health and Human Services provides many services to families that have experienced divorce or unwed childbearing, including many services related to child support, and specifically funds fatherhood, marriageability, marriage skills-building, and divorce-prevention programs as part of the Temporary Assistance to Needy Families (TANF) program.  The department and its grant recipients need statistics in order to understand the populations they work with and the need for particular programs.

 Why ACS statistics are crucial 

Most private and academic studies of marriage and divorce are based on information from the ACS and its predecessors. The Census Bureau has also produced very important studies of marriage and divorce based on the ACS and its predecessors, including generational-cohort studies and probability projections. These are where we get the kind of numbers that actually answer the questions people wonder about: What are our overall chances of divorcing, ever? How long do marriages last? What about second and third marriages? How many children grow up without one parent? What is the divorce rate for people of my age, educational level, etc.? And what can we do about it?

The other source of marriage and divorce statistics is the National Center for Health Statistics (NCHS), which collects annual totals of marriages and divorces reported from county courts to state vital statistics offices. But this information, by itself, is not very useful to governments or to the private sector. It yields such measures as “3.6 divorces per 1000 population per year”. I.e., 0.72% of the population gets divorced each year. That does not tell people anything that sounds relevant to their lives. Also, NCHS divorce numbers are much more useful when compared to a count of the married population, which comes from the Census. And they are incomplete: California and several other states are not included.

Conclusion

This proposed change was not widely publicized. A very broad cross-section of the general public, media, academia and policymakers are affected by it, and so the eventual disappointment from the elimination of these survey subjects will be much more widespread than the comments you receive will indicate.

 Sincerely,

 

 

John Crouch


Gov't to cut off data for most divorce stats, studies; Dec. 30 public comment deadline

"Census will stop studying marriage, divorce; Dec. 30 public comment deadline"

On the Divorce Statistics and Studies Blog, 12/19/14

[Update: It's nice to see my opinion confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]


A cultural public health approach worked for smoking and drowning. How about obesity, marriage and divorce?

"The Obesity Fix", by David L. Katz, MD, MPH, President of the American College of Lifestyle Medicine, is a very powerful, short, beautifully written article on its own terms. But as a longtime divorce lawyer, I find that everything in it speaks just as powerfully -- cries out just as desperately -- about marriage and divorce. We badly need a prevention-based public health approach, which is being pioneered by just a few small groups, such as Smart Marriages, The Doherty Relationship Institute, The Dibble Institute, the Coalition for Divorce Reform, and the new Marriage Opportunity Council. Katz writes:

If we simply committed to seeing, and treating, health more like wealth- it would go a long way toward fixing obesity, and the metabolic mayhem that follows in its wake. We respect wealth. We aspire to it. We hope to bequeath it to our children. We invest in it, and work for it. We care about it both for our own sake, and the sake of those we love. We recognize most get-rich-quick proposals as scams; we are sensible about money. We don’t spend everything we have today; we think about the future, and save for it. We get financial guidance from genuine experts, not just anybody who had a piggy bank once.

Obesity need not be a disease to be medically legitimate. Drowning is not a disease, and it suffers not at all for want of legitimacy. Drowning victims are reliably treated as the state-of-the-art allows when they show up in our emergency departments.

Nor does drowning invite fractious debate about personal responsibility. Rather, we tacitly acknowledge- by our actions- that personal and public responsibility are complementary, and both required. Parents need to watch their children at the pool’s edge or beach, and are well advised to teach them to swim. But there are lifeguards just the same. There are fences around pools.

And, of course, we don’t focus on the ex-post-facto treatment of drowning. We focus on prevention. Drowning is too common if it happens at all; but it is very much the exception. The rule is prevention, by application of the combined defenses born of personally and publicly responsible action.

If we treated drowning like obesity, we would have no lifeguards at the beach. We would not teach our children to swim. We would allow signage at a shore with notorious rip tides to read: “come on in, the water’s fine!”

If, instead, we treated obesity more like drowning, we would tell the truth about food. We would not market multicolored marshmallows to children as part of a complete breakfast. We would not willfully mislead about the perilous currents in the modern food supply. We would not look on passively as an entire population of non-swimmers started wading in over their heads.

Until or unless we choose to see things differently, McKinsey & Company is quite right: fixing obesity won’t be easy. That’s because the fix is in, and we are all OK with it. We apply the terms “junk” and “food” to the very same ingestibles, adopting a “nudge, nudge, wink, wink” coyness- even as formerly adult-onset diabetes engulfs our children. We line up for an endless succession of fad diets, while glibly asserting that our entire country runs, essentially, on donuts.

If we treated wealth like health, we would all be gullible, indigent, and likely homeless. If we treated drowning like obesity, our ERs couldn’t keep up with the demand for resuscitations.

But if, instead, we treated health like wealth, and obesity like drowning- we could fix what ails us. It might even be easy. For in our collective and righteous might, no force could oppose us. Collectively, we are culture.