Governor approves 11 of 12 bills reforming family law, offers substitute for domestic violence bill

GOVERNOR PROPOSED SUBSTITUTE INSTEAD OF APPROVING:

SUBSTITUTE FOR:

  • HB 2042 Assault and battery against a family or household member; prior conviction; mandatory minimum term of confinement. Provides that upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of an offense that occurred within a period of 20 years of the instant offense against a family or household member of (i) assault and battery against a family or household member, (ii) malicious wounding or unlawful wounding, (iii) aggravated malicious wounding, (iv) malicious bodily injury by means of a substance, (v) strangulation, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses is guilty of a Class 1 misdemeanor and the sentence of such person shall include a mandatory minimum term of confinement of 60 days. Amended, PREVIOUSLY final version in Conference report.

 

APPROVED BY GOVERNOR:

  • HB 1945/SB 1541 No-fault divorce; waiver of service of process may be signed before suit filed. Clarifies that in the case of a no-fault divorce, waivers of service of process may occur within a reasonable time prior to or after the suit is filed, provided that a copy of the complaint is attached to such waiver, or otherwise provided to the defendant, and the final decree of divorce as proposed by the complainant is signed by the defendant. Where a defendant has waived service of process and, where applicable, notice, the bill further permits depositions to be taken, affidavits to be given, and all papers related to the divorce proceeding to be filed contemporaneously. Bill text as passed Senate and House.
  • SB 1144 Guardianship; annual report filed by guardian. Provides that, upon receiving notice from the local department of social services that a guardian has not filed the required annual report within the prescribed time limit, the court may issue a summons or rule to show cause why the guardian has failed to file such report.
  • SB 1307 Uniform Transfers to Minors Act; transfer of property; age 25. Permits a transferor to transfer property under the Uniform Transfers to Minors Act to an individual under the age of 21 to be paid, conveyed, or transferred to such individual upon his attaining 25 years of age, unless the minor attaining age 21 years of age delivers a written request therefor to the custodian. Under current law, such property must be paid, conveyed, or transferred upon the individual's attaining 18 years of age, or 21 years of age if specifically requested by the custodian.
  • SB 1186 Financial institution; payment or delivery of small asset by affidavit, check, etc. Provides that a financial institution accepting a small asset that is a check, draft, or other negotiable instrument presented by an affidavit is discharged from all claims for the amount accepted.
  • HB 1979 Assisted conception; amends statute to provide gender-neutral terminology, etc. Allows an unmarried individual to be an intended parent, paralleling the ability of an unmarried individual to adopt under the adoption statutes. Allows for the use of an embryo subject to the legal or contractual custody of an intended parent in a surrogacy arrangement. 
  • HB 1988 Military retirement benefits; marital share. Requires that the determination of military retirement benefits in a divorce be made in accordance with the federal Uniformed Services Former Spouses' Protection Act (10 U.S.C. 1408 et seq.).
  • HB 2059 Nonpayment of child support; amount of arrearage paid; time period to pay arrearage; repayment schedule; suspension of driver's license. Provides that an individual who is delinquent in child support payments or has failed to comply with a subpoena, summons, or warrant relating to paternity or child support proceedings is entitled to a judicial hearing if he makes a written request within 30 days from service of a notice of intent to suspend or renew his driver's license. Current law provides such an entitlement if such request is made within 10 days from such notice. The bill further allows the Department of Motor Vehicles to renew a driver's license or terminate a license suspension imposed on an individual if such individual has reached an agreement with the Department of Social Services to satisfy the child support payment delinquency within a 10-year period and has made at least one payment of at least five percent of the total delinquency or $600, whichever is less, as opposed to whichever is greater under current law, under such agreement. The bill further provides that, where such a repayment agreement has been entered into and such an individual has failed to comply with such agreement, the Department of Motor Vehicles shall suspend or refuse to renew such individual's driver's license until it has received certification from the Department of Social Services that such individual has entered into a subsequent agreement to pay within a period of seven years and has paid the lesser amount, as opposed to greater amount under current law, of at least one payment of $1,200 or seven percent, as opposed to five percent under current law, of the current delinquency. The bill provides that an individual who fails to comply with such a subsequent agreement may enter into a new agreement if such individual has made a payment in the lesser amount, as opposed to the greater amount under current law, of $1,800 or 10 percent, as opposed to five percent under current law, and agrees to a repayment schedule of not more than seven years, which is consistent with the timeframe provided by the current law. Amended text as passed House and Senate.
  • HB 2317 Custody and visitation orders; exchange of child; history of family abuse; law-enforcement officers. Provides that in custody and visitation cases, at the request of either party, the court may order that the exchange of a child take place at an appropriate meeting place. Amended  text as passed House and Senate.
  • HB 2542 Temporary delegation of parental or legal custodial powers; child-placing agency. Allows a parent or legal custodian of a minor to delegate to another person by a properly executed power of attorney any powers regarding care, custody, or property of the minor for a period not exceeding 180 days. The bill provides that a parent or legal custodian who is a service member, as defined in the bill, may delegate such powers for a period of longer than 180 days while on active duty service, but specifies that such a period is not to exceed such active duty service plus 30 days. The bill provides that any such power of attorney shall be signed by all persons with authority to make decisions concerning the child, the person to whom powers are delegated under the power of attorney, and a representative of a licensed child-placing agency that assists parents and legal guardians with the process of delegating parental and legal custodial powers of their children. The bill specifies that such licensed child-placing agency will be subject to background checks and must develop and implement written policies for certain services and provide staff and provider training. The bill further requires that any person to whom any such powers are delegated shall comply with background check requirements established by regulations of the Board of Social Services or otherwise provided by law.
  • HB 1944/SB 1542 Civil actions; determination of indigency.  In a no-fault divorce proceeding, a person who is a current recipient of a state or federally funded public assistance program for the indigent shall not be subject to fees and costs, and  shall certify to the receipt of such benefits under oath.  House substitute agreed to by Senate.
  • SB 1758 Specific findings of fact; Custody and visitation cases; jurisdiction of court. Allows a circuit or district court in which there is a proceeding related to the custody or visitation of a child, upon the request of any party, to make any finding of fact required by state or federal law to permit such minor to apply for a state or federal benefit. Passed with House subcommittee amendments and substitutesSenate amendments, Conference amendments.

Corporate lawyer's involvement in Harold Hamm divorce trial: not so unusual

A thorough and informative story on the Hamm divorce trial in Oklahoma raises questions about the degree of involvement of a lawyer for Continental Resources, of which Mr. Hamm is the founder, CEO and major shareholder. But I can't see any one thing in the story that is unique or wrong; it is just the size of the company and the personal fortune at stake that make it a story.

It is very common for employers and their in-house counsel to get concerned about their information coming out in a divorce trial, or other things that could affect the employer or fellow employees. Here in the Washington area, that is true of federal agencies as well as private employers. And it applies to many middle-class litigants, not just CEOs. In-house counsel generally try to do this by working with the parties and their lawyers, but I have seen them formally intervene and appear in the courtroom.

As for where the lawyer sat in the courtroom and his role in arguments and in informal conversation, that is a matter of local custom and usage and nothing in the story sounds particularly unusual. Just like the court-appointed lawyers or "guardians ad litem" for children, whom I deal with routinely in my cases, he had to find a place to sit in a courtroom designed for a two-sided case. Nearly everywhere you choose to sit or stand is freighted with meaning. Would it look better, or worse, to sit at one side's counsel table? The bailiff's chair? The judge's bench? The witness stand? Family law cases don't have juries except in a couple states, so the jury box often is used for overflow seating.

Judges rightly resent the implication that they are so weak-willed that they would be influenced or "intimidated" by anyone, especially a lawyer, no matter how accomplished or well-heeled.

The reporters got several commentators to speculate about the lawyer's involvement posing a conflict with other shareholders' interests, but all the comments are just that: speculation. Or, as we say in law school at exam time, "issue-spotting". Flagging problems that could come up in theory and in practice, but which might not be actual problems. To some extent, that is a lawyer's job. But because it is so highly prized in our law school exams, we often forget that it is not our main job, but only the first step in what clients and society need us to do.

Special Report: In oil baron's divorce, company lawyer plays star role

BY JOSHUA SCHNEYER AND BRIAN GROW on reuters.com

Postscript: On Nov. 10 the court issued its ruling. It awarded Mrs. Hamm $999.5 million out of a fortune of over $14 billion. It sounds like the disparity is mostly because his ownership of his company, which he held before marriage, appreciated "400-fold", but more from market conditions and the work of other executives and employees, and only partly from his own efforts during the marriage. 


Gambling problems and senior citizens: Family lawyers should be alert

I'm posting this because family law attorneys need to know about it, or more to the point, need to THINK about it even though we already know it. But it's something that everyone should be concerned about.

"Problem gambling among vulnerable older women is strongly linked to the proliferation of the modern slot-machine-dominated casino. 

"Simply put, the new slot machine is engineered to addict people. It produces a mesmerizing experience of sound, lights and repetitive motion that makes both time and money vanish. Players talk of “disappearing” into the machine and getting into a zone.

"Seniors, who may suffer from physical, mental and emotional health problems, are especially at risk of succumbing to computerized slots. Medication, cognitive impairment, depression and just plain sadness can interfere with judgment and decision-making. And the casino itself – dark, smoky, and filled with incessant noise, pulsating light and dizzying carpet patterns and layout — can contribute to mental confusion and disorientation. It is not uncommon for older people to suffer sudden heart attacks while playing the slots."

From:

Amy Ziettlow, Seniors in Casino Land: Tough Luck for Older Americans

and

"The Harmful, Even Deadly — Effects of Casino Gambling" By Amy Ziettlow, Tampa Tribune 2/23/14

 


Social Security keeps divorcées, widows in the dark about benefits via spouse's earnings - PBS

"The Social Security Administration won't let divorcées have access to their ex spouses' earnings records. Nor will it let widows and widowers have access to their late spouses' earnings records.", according to Larry Kotlikoff, quoted on PBS's "The Newshour". Despite the fact that ex's earnings can determine how much one can expect to receive in social security benefits, and are the key factor in choosing whether to receive benefits based on one's own earnings or those of a particular spouse or former spouse.

How Social Security keeps divorcées and widows in the dark about their benefits

 


CEO Divorce Can Hurt Stock Value, Careers

By  - International Business Times
Reporting on David F. Larcker, Allan L. McCall, and Brian Tayan, “Separation Anxiety: The Impact of CEO Divorce on Shareholders”, published in STANFORD CLOSER LOOK SERIES. Citing, among other sources, Jordan Neyland, “Wealth Shocks and Executive Compensation: Evidence from CEO Divorce,” (Sep. 3, 2012).

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

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

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

 


Divorced feds, vets must now change beneficiaries manually – Va. court

Divorced federal employees, retirees, servicemembers, and veterans need to check their beneficiary designations in the wake of a recently overturned Virginia law.

The Virginia Supreme Court has overturned as unconstitutional a long-standing Virginia law that automatically changed beneficiary designations for life insurance policies after divorce (Va. Code Sec. 20-111.1). The Court’s decision applies to life insurance benefits for federal employees, veterans and military personnel.

The reason the law is unconstitutional is the doctrine of federal preemption of state laws under the United States Constitution’s Supremacy Clause. Also, the federal government has “sovereign immunity”, so that a state court can only make an order affecting federal benefits if Congress has specifically made a law allowing the states to do something with that benefit in a certain prescribed way. For federal and military pension Survivor Benefits, Congress has authorized states to do this in divorces, but when it comes to insurance, it has not. In fact, the federal statute creating and governing Federal Employees’ Group Life Insurance (FEGLI), in its section on designated beneficiaries, has a provision expressly preempting state legislation that conflicts with it.

The Virginia statute’s drafters anticipated the possibility of federal preemption of it, and so the statute specifically provides that if it is inoperable as to a particular kind of insurance because of federal preemption of the state statute, then the same net result between dueling insurance beneficiaries shall be achieved by using a “constructive trust” on the insurance proceeds, so that the person named as beneficiary must turn around and pay them to the person who otherwise would be the beneficiary. If you think that doesn’t exactly pass the smell test, and the state seems to be deliberately nullifying and undoing the actions of the federal government, the Virginia Supreme Court agrees with you. It points out, however, that it is joining a small minority position on this question: most states’ courts that have addressed the issue think such statutes are just fine. [NEWS FLASH: The latest is Hardy v. Hardy from Indiana's Supreme Court, March 14, 2012.]

The Virginia statute also applies to any kind of “death benefit”, such as designated beneficiaries of accumulated retirement contributions for employees and servicemembers who die before retirement. The court decision does not say anything about those other kinds of benefits. But federal employees and servicemembers would be wise to check and correct those beneficiary designations, too.

Two dissenting justices argued that the provisions of the FEGLI Act were designed to protect the federal government from getting entangled in disputes between rival beneficiaries, and NOT for the purpose of actually giving more benefits to divorced spouses instead of new spouses; and that therefore Virginia’s “preemption workaround” provision was perfectly constitutional, because it makes the divorced widows pay the benefits to the new spouses while keeping the federal government uninvolved.

On a practical level, unfortunately, neither way of deciding this issue is workable, fair or convenient for everybody. The Virginia statute is one of those laws that is designed to do for people by default what most people would choose to do if they attended to their affairs – to remove a divorced spouse from being the beneficiary except in cases where the separation agreement or divorce decree specifically says that they will stay the beneficiary. Many of our clients have rightly been told over the years that the law does this automatically, and have probably relied on it. On the other hand, many servicemembers, veterans, and federal employees have been told by the federal government over the years that they must change their beneficiary designation upon divorce if they want their insurance beneficiary to change. We have had people come to us whose deceased exes deliberately chose to do nothing about the beneficiary designation because they logically inferred, from all those federal warnings, that the beneficiary designation would change only if they changed it, and they wanted the ex-spouse to stay covered. So this is a case where either result would predictably lead to some injustice for quite a few people. But this is certainly the right result constitutionally.

And what we need to do about it is very clear: all federal employees, retirees, servicemembers or veterans who ever got divorced in Virginia or now live in Virginia should make sure that their beneficiary designations reflect their wishes, or their obligations under divorce decrees or agreements.

For more of the legal details see Richard Crouch’s case note about this case. 


How much information should you give your divorce lawyer?

This article by St. Louis lawyer Joseph Cordell, brought to our attention by Bay Area lawyer Mark Ressa, describes in memorable, colorful detail exactly how much you should tell your divorce lawyer about facts that might make you look bad. We agree with every word of it. It's what we always try to tell clients, but frankly, this article tells it far better.

"Keeping Information From Your Divorce Lawyer"

 


Why it's fair to divide everything 50-50 in divorce

"It's Our Money, Honey!"Tamara Shayne Kagel, Esq. on Huffington Post.

"...My feeling about marriage is that once you enter into it, you are no longer doing anything alone. The sum is greater than the two parts and so it's not a husband who earns money and then shares it with his wife. Rather, the marriage is earning the money all along. Once married, the breadwinner is not earning that money by himself. He is enabled by the other spouse. ..."