Virginia Family Law Appeals

No 401(k) benefits or other relief for "widow" of bigamy, but proving earlier spouses weren't divorced is daunting burden

The widow of a long marriage that she didn't know was bigamous cannot get the deceased's 401(k), Alexandria federal judge T.S. Ellis ruled in Bonner v. SYG Associates Inc., 498 F.Supp.3d 859 (E.D.Va. 2020). That result may not be surprising, but the federal court cites many interesting points of what it says is Virginia law, especially the burdens and standards for proving or disproving bigamy.

The man Ms. Bonner thought she was married to for 18 years had previously been married to another woman, lived with her about a year, and neither of them had ever gotten a divorce. So "Plaintiff was a bigamous spouse and therefore not a "spouse" within the meaning of ERISA and Decedent's 401(k) Plan." And the benefits must go to his "spouse," if any, because he had never designated a beneficiary. 

Nor was the innocent putative spouse entitled to equitable reformation of the Plan or a constructive trust under ERISA. For those, she would have to prove "(1) an act or practice that violates an ERISA or plan provision; and (2) entitlement to a specific form of "equitable relief" that has been deemed "appropriate." But none of the steps in the process of bigamy -- the real wife's alleged desertion, the husband's failure to tell the new wife he wasn't sure he was divorced, or his children's unsportsmanlike decision to tell the real wife about his death -- was any sort of violation of ERISA. And none of the parties breached a fiduciary duty either because nobody was a legal fiduciary at the time, or the putative wife was not a beneficiary whom fiduciaries had any duty to. And when the children did become fiduciaries, they in fact had a fiduciary duty to find and inform the actual widow.

Also,  reformation of the plan is an equitable remedy that is only available to one of the original contracting parties to the plan, not a third-party beneficiary. And

A constructive trust may not be imposed unless the party seeking creation of a constructive trust puts forth clear and convincing evidence of an "interest" in the "action, fund, or other property which is to be made the subject of the trust." Powell, 292 Va. at 15, 785 S.E.2d 788. In this regard, bigamous marriages "confer[] no legal rights" on the parties to the marriage. Chitwood, 206 Va. at 318, 143 S.E.2d 915; Martian v. Berryhill, No. 1:18-cv-12, 2018 WL 4572715, *9 (E.D. Va. Aug. 30, 2018) 

But could the term "spouse" under ERISA perhaps include an innocent bigamous spouse? The parties agreed that Virginia law controlled who the spouse was, and that Virginia law does not recognize a bigamous spouse as a spouse. But proving bigamy in this situation is proving a negative -- that neither spouse in the earlier marriage had ever gotten a divorce in any place that ever had jurisdiction to divorce either of them. So who, then, had the burden of proving or disproving that there was any divorce? And how can that burden be met?

The burden is on those who allege bigamy, Judge Ellis says:

Defendants have the burden of proving that Decedent's marriage to de la Vega did not end in divorce. This is so because re-marriage is common and therefore there is a strong evidentiary presumption in Virginia that a previously married person obtained a divorce from their former spouse before marrying again, thereby making the later-in-time marriage valid. See DeRyder v. Metro. Life Ins. Co., 206 Va. 602, 604-05, 145 S.E.2d 177 (1965); see also Hewitt, 490 F. Supp. at 1362. The evidentiary presumption that the earlier-in-time marriage ended in divorce is a "rebuttable presumption" and therefore may be rebutted by contrary evidence. Parker v. Am. Lumber Corp., 190 Va. 181, 186, 56 S.E.2d 214 (1949); DeRyder, 206 Va. at 604-05, 145 S.E.2d 177. Specifically, the party seeking to invalidate a later-in-time marriage as bigamous may rebut the presumption that the earlier-in-time marriage ended in divorce by adducing clear and convincing evidence that there is no record of a divorce decree for the earlier-in-time marriage (1) "in jurisdictions where the parties resided" or (2) "where on any reasonable basis a decree might have been obtained." Hewitt, 490 F. Supp. at 1365; Woolery, 406 F. Supp. at 644; Rahnema v. Rahnema, 47 Va. App. 645, 664-65, 626 S.E.2d 448 (2006) (requiring clear and convincing evidence to rebut the presumption that the earlier-in-time marriage ended in divorce). But importantly, to rebut the presumption of divorce, it is not necessary to document the absence of a divorce decree in every jurisdiction where a divorce "could possibly have been obtained," for if that were the case then the rebuttable presumption "would not be rebuttable, but effectively irrebuttable." Hewitt, 490 F. Supp. at 1365; see also Parker 190 Va. at 186-87, 56 S.E.2d 214; Woolery, 406 F. Supp. at 644.

So what rebuts? Apparently it does not always require a search in every county of a state, probably depending on the state's record-keeping:

• The Commonwealth of Virginia Department of Health, Division of Vital Records has no record of any divorce between Decedent and de la Vega from the date of their marriage through Decedent's date of death.

• No Superior Court in Arizona has a record of a divorce between Decedent and de la Vega at any time from the date of their marriage through Decedent's date of death.

• Neither party contends that the state of Hawaii has a record of a divorce between Decedent and de la Vega.

• De la Vega has not filed for divorce from Decedent in any state, nor has she learned, from any source, that Decedent ever filed for divorce from her in any state.

Defendants have successfully rebutted the presumption that Decedent's earlier-in-time marriage to de la Vega ended in divorce. This is so because the undisputed facts establish (1) that no divorce was ever entered in any jurisdiction where de la Vega or Decedent resided and (2) that there are no other jurisdictions where on any reasonable basis a decree might have been obtained. Neither Virginia, Decedent's lifelong state of residence, nor Arizona, de la Vega's state of residence after she left Virginia, has any record of a divorce between them from the date of their marriage through January 31, 2020. Additionally, there are no other jurisdictions where on any reasonable basis a divorce decree might have been obtained. In this regard, no record of divorce was found in Hawaii and further, Plaintiff's half-hearted suggestion in a footnote that Decedent might have obtained a divorce while vacationing in another state or country ignores well-established residency requirements that forecloses this remote possibility.

Post-divorce property division not derailed by ex-husband's death - Brown v. Brown

After all, that's one of the main reasons for "bifurcated" divorce and equitable distribution, isn't it?

Death abates a divorce suit by making it moot, but "bifurcating" a divorce case makes the division of property "in essence, a distinct case." Code § 20-107.3 says a court shall divide property "upon decreeing a divorce." The divorce happened while the man was alive, so the divorce still existed after he died and the trial court should have divided the property "upon" it. The Court of Appeals reversed the trial court that had dismissed the case for lack of jurisdiction due to death.

Brown v. Brown, 69 Va. App. 462 (2018)

 

"However, when a court bifurcates a divorce proceeding, the equitable distribution of marital property is no longer ancillary to the final divorce decree, but rather becomes, in essence, a distinct case. Friedman, 68 Va. App. at 539-40, 810 S.E.2d at 917. Although the status of the marriage has been resolved, the determination of the former spouses’ rights and interests in the marital property remains before the court. Virginia courts have long recognized that adjudication of property rights and interests does not abate with the death of a party. See  Squire v. Va. Hous. Dev. Auth., 287 Va. 507, 511, 758 S.E.2d 55, 57 (2014) (considering the merits of quiet title action after administrator of plaintiff’s estate was substituted for plaintiff); Smith’s Ex’x v. Profitt’s Adm’r, 82 Va. 832, 851, 1 S.E. 67, 80 (1887) (considering the merits of a claim of beneficial interest giving rise to "an implied or constructive trust ... to the extent of his interest" after administrators were substituted for two deceased parties); Hinton v. Bland’s Adm’r, 81 Va. 588, 594 (1886) (noting an administrator of deceased was an indispensable party in a partition action where the court was required to "adjust all the equitable rights of the parties interested in the estate")."

Court will not tighten requirements for making wills forgery-proof, but allows extrinsic evidence of intent

Just because a will could have been tampered with, by adding, subtracting or replacing pages, does not change any presumptions about its validity, the Virginia Supreme Court rules in Canody v. Hamblin, 7/19/2018. The deceased's will was properly witnessed, but its pages were not numbered, pages before the signature page were not initialed or signed, and no paragraphs ran from one page to the next. While these might be best-practices, the Supreme Court is loath to add them as requirements, quoting what it said in 1905 and 1831 on the same issue:

Just because computers make forgery easier does not mean we should revisit settled case law. Fraud and forgery are relatively rare. Imposing heightened requirements for submitting a will to probate, based on the outlier possibility of forgery, would thwart the salutary simplicity found in our statutory scheme. This simplicity facilitates the ability of property owners to devise their estate by means of a will. As we observed in Savage v. Bowen, 103 Va. 540, 546, 49 S.E. 668, 669-70 (1905)  ... "These statutory requirements should not be supplemented by the courts with others that might tend to increase the difficulty of the transaction to such an extent as to practically destroy the right of the uninformed layman to dispose of his property by will." 

...

We adhere to our existing case law, which requires the proponent of a will to prove compliance with statutory requirements for the execution of a will, and, once that has been done, places on the challenger of a will the burden of proving fraud.

...

Fraud “must be proved; and, in the absence of proof, the court will not imagine that fraud may possibly have been practised, and act upon that imagination. Such a course would convert the law which was meant as a shield, into a sword, and destroy twenty good and fair wills for one that was fraudulent.” Boyd v. Cook, 30 Va. (3 Leigh) 32, 50 (1831).

Nothing in this case was a "suspicious circumstance" which, under Barnes v. Bess, 171 Va. 1, 8, 197 S.E. 403, 405 (1938), would put the burden of proving authenticity on the proponent of the will.

The witnesses in this case had not read the will, but the Court avoids anything that might tend to imply that witnesses should do that.

The Court also explains that when a will's authenticity is questioned, in certain circumstances it is proper to hear evidence of what the deceased said about his or her intentions, whether consistent with the will or not. Although extrinsic evidence of testamentary intent would appear to be absolutely inadmissible under Payne v. Rice, 210 Va. 514, 517, 171 S.E.2d 826, 828 (1970); and Poindexter v. Jones, 200 Va. 372, 379, 106 S.E.2d 144, 148 (1958), the Court finds it admissible in certain situations under Samuel v. Hunter, 122 Va. 636, 95 S.E. 399 (1918):

Such declarations, standing alone, are not admissible as direct evidence to prove or disprove the genuineness of the will; but that in all cases where its genuineness has been assailed by other proper evidence, the declarations are admissible as circumstances, either to strengthen or to weaken the assault, according to their inconsistency or their harmony with the existence or terms of the will.” Id. at 638, 95 S.E. at 399. Therefore, although the proffered statements were “not admissible to prove the substantive fact of forgery,” they were “admissible as showing the state of mind of the testator and his plan and intent as being consistent or inconsistent with a will, the genuineness of which is called in question by other proper evidence.” Id. at 641, 95 S.E. at 400.

This evidentiary holding is troubling, though harmless in this particular case. The Court is saying that in this case, the alleged flaws in the execution of the will are not suspicious at all, and that there is no evidence of any forgery or fraud, merely speculation. And yet it invokes the Samuel exception, even though that exception is subject to a threshhold requirement that there already be "proper evidence" calling genuineness into question. This suggests that the Samuel exception could be applied in any case where a will is disputed.

Court has wide discretion to bifurcate near-death divorce from economic claims when "necessary to achieve equity"

Friedman v. Smith and Goldstein, 3/20/18, is the latest word from the Court of Appeals on bifurcating a divorce case when a party may be close to death.

“Bifurcated” divorce can mean a situation where divorce and property division have to be performed in two different states, but what it means in this case is bifurcation in time: “Divorce first, E.D. afterward.” It is authorized, and limited, by an amendment to Code §20-107.3:

 The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.

The Court of Appeals has emphasized that:

• There must be an underlying prayer for ED — this is not for cases where people just forgot about it. Smith v. Smith, 38 Va. App. 113, 562 SE2d 329 (2002)
• There must be a finding of necessity, not mere preference. Spriggs v. Spriggs, 43 Va. App. 510, 600 SE2d 136 (2004); Christensen v. Christensen, 26 Va. App. 651, 655, 496 S.E.2d 132, 134 (1998).
• The reservation of jurisdiction must be explicit and specific. Nourdeen v. Nourdeen, unpublished 2003.
• But after that, trial courts have broad discretion to decide what is necessary. Christensen, supra.
• One party’s benefit, such as the ability to file tax returns as unmarried, does not give that party a right to bifurcation. Clark v. Clark, unpublished 9/15/98.

When it is necessary to bifurcate? Friedman says:

We emphasize that bifurcating a divorce proceeding in this manner is not a matter of right nor should it be a common practice, but rather an exercise of a trial court’s discretion in an irregular situation. It is proper to do so only upon motion of a party and when “clearly necessary” to achieve equity. See Christensen v. Christensen, 26 Va. App. 651, 654-55, 496 S.E.2d 132, 133-34 (1998) (explaining the evolution of Code § 20-107.3(A)). Otherwise, “Code § 20-107.3 compels [a] trial court to decide the divorce and property issues contemporaneously.” Patel v. Patel, 33 Va. App. 776, 782, 537 S.E.2d 11, 14 (2000).

…

[W]e do not decide whether alone or in combination, advanced age, hospitalization, the fear of imminent death, or competency issues by a spouse provides justification as a matter of law for bifurcation under Code § 20-107.3(A). Rather, we emphasize that the statute’s “clearly necessary” requirement, in effect, provides our standard of review of the exercise of the circuit court’s discretion in these cases.

The facts of the Friedman case leave one wondering what “necessary” means — necessary for whom? At what cost to the other party? What is the difference between wanting and needing something in this situation? The opinion provides a single but important three-word phrase to partially answer that: necessary "to achieve equity.” So this is a decision to be guided by the maxims of equity and the equities of the case.

Why is it equitable in this case to leave the wife a divorcee instead of a widow? The Court does not spell it out nor describe all the circumstances you would have to look at to even decide what the effects of that decision are, let alone whether they are equitable. But it is clear from the opinion that the Court thinks the wife is the party with more unclean hands in this case. She was the first spouse to file for divorce, and then stretched the case out with various procedural disputes, perhaps hoping that the husband would die before it was over, as the Court sees it. The husband sought bifurcation and the wife opposed it, so maybe the trial and appellate judges simply concluded that it was equitable to give the husband the remedy that he and the wife apparently believed to be better for him and his heirs, and worse for her.

What would be an abuse of discretion, on this issue? The Friedman opinion says:

A circuit court abuses its discretion when the record discloses that the court acted arbitrarily rather than with due regard to conscientious judgment. See Slayton v. Commonwealth, 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946). Stated another way, “[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Wright v. Wright, 61 Va. App. 432, 463-64, 737 S.E.2d 519, 534 (2013) (quoting Robbins v. Robbins, 48 Va. App. 466, 482, 632 S.E.2d 615, 623 (2006)).

A divorce case abates on a party's death. Simpson v. Simpson, 162 Va. 621, 633, 175 S.E. 320, 325 (1934). But after bifurcation, does the E.D. case still live on after a party dies? This opinion is not completely clear on that, but checking the trial court's docket shows that yes, the E.D. case is alive and well. The opinion notes that the equitable distribution case, and especially claims for attorney’s fees, may survive and be carried on by the estate’s personal representatives, citing 1932 and 1898 cases:

 “[W]here the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself; but for the ascertainment of whether the property has been rightfully diverted from its appropriate channel of devolution.” Craddock’s Adm’r v. Craddock’s Adm’r, 158 Va. 58, 65, 163 S.E. 387, 389 (1932) (emphasis added) (quoting Nickerson v. Nickerson, 48 P. 423, 423 (Or. 1898)).

The rule nationwide is that after bifurcation and death, the E.D. case continues:

If the drawn-out nature of modern divorce proceedings means that the court still faces ancillary issues, such as property division or support, the uniform modern rule is that those issues should be resolved by the divorce court, with the decedent's estate substituted as a party. In other words, the courts have declined to extend the common-law rule so that death abates an action for property division or support. As long as the divorce action itself survives, death will not cause abatement of ancillary issues. In re Hilke, 4 Cal. 4th 215, 841 P.2d 891, 14 Cal. Rptr. 2d 317 (1992); Angelli v. Sherway, 560 A.2d 1028 (Del. 1989); Estate of Pinkerton v. Pinkerton, 435 Pa. Super. 455, 646 A.2d 1184 (1994).

-- from "ABATEMENT OF DIVORCE AND ANCILLARY PROCEEDINGS UPON THE DEATH OF A PARTY" by the National Legal Research Group, Inc.

Another small exception to abatement at death, one which proves the rule: Sprouse v. Griffin, 250 Va. 46 (1995)) allowed a trial court to distribute funds it held in escrow when a divorce terminated at death, but that was because it did so not as equitable distribution, nor as probate, but to carry out the automatic property-law effects of the death of one of the tenants-by-the-entirety who had owned the property whose sale the funds came from.

Another great quotation from this opinion:

“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction.” Belew v. Commonwealth, 62 Va. App. 55, 62, 741 S.E.2d 800, 803 (2013) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)).

No imputing income from property held in trust: Montgomery v. Montgomery

Potential income from assets held in a trust should not be imputed to a co-beneficiary/co-trustee, Virginia's Court of Appeals found in an alimony case, Montgomery v. Montgomery (ca. Dec. 2017, unpublished). The property in this case was residential and the trial court had imputed rental income from it. The Court of Appeals reasons that the Circuit Court lacked authority to reach into the trust to force the wife and her co-trustee, not a party to the case, to dispose of the trust property; that the wife as co-trustee had not yet distributed the trust assets and so she had not yet inherited the property -- she only had "a future beneficial interest." The trial court could not impute income "based upon undistributed trust assets."

Also, Virginia law "does not require wife to sell her interest in the two residential properties to relieve husband from his spousal support obligation."

But the trial court's imputation of another $5,000 [monthly?], because the wife was voluntarily unemployed, is not reversed. The case is remanded to recalculate income without the rental income.

No fees are awarded, as both sides' arguments "are fairly debatable and indeed, each has partially prevailed."

Circumstances mean that initialed note about wish to disinherit didn't count as change to will

The deceased's will identified his child and included him in the inheritance, but (a) the property settlement agreement in his divorce said the child was not his, and (b) on a tab divider in a binder of estate planning documents, which held a copy of the will but not the original, he wrote diagonally across the page, in cursive,

"11/17/03. I wish to remove Patrick named as my son entirely from this will no benefits. D.I." [The deceased's initials.]

The cardboard divider where he wrote this was next to a sheet of "Reminders" that said not to make changes on the face of his will without contacting his attorney.

There was abundant evidence that D.I. always used his full signature to approve any official document. Also, he left a note that told his executor where to find his will, but did not mention the binder, which included only a copy of the will. 

Overall, the trial court concluded that D.I. did not intend his initialed note to be an actual, official "codicil" amending his will. His brother did not establish by clear and convincing evidence that D.I. intended the document or writing to constitute an addition to, or alteration of, the will, as required by Va. Code Sec. 64.1-404(A).

Irving v. DeVito, Va. S.Ct. 12/14/17

Evidence of stated intention beats presumption that will revoked when original missing - Va. S.Ct.

A widow was properly allowed to probate a photocopy of a will whose original could not be found, even though there is a presumption that a will was revoked when the original disappeared while in its author's possession, the Virginia Supreme Court says in Edmonds v. Edmonds, 6/4/2015. To overcome that presumption, the proponent -- the person who seeks probate -- of a missing will must prove, by clear and convincing evidence, that the testator did not destroy the will with the intention of revoking it. The deceased's will left everything to his current wife and daughter, and nothing to his son from an earlier marriage. He had repeatedly, unequivocally, consistently that that both those things were his intention. There was no evidence of his changing his mind, nor of anything that might have changed his mind.

“We must discern the meaning of ‘present’.” -- Va.Sup.Ct. on @#$% drafting nightmare in shoreline case

“We must discern the meaning of ‘present’,” the Virginia Supreme Court says, construing a 1936 road easement that ran “along present mean high water” level. Did the easement in White Marsh Beach, Hampton, move as the shoreline moved, or did it stay where it was, and sink beneath the waves?

 The damnable slipperiness of the terms “current” and “present” epitomize the difficulty of legal drafting, of trying to use words to reach across time and impose a coherent will on a changing world. Do these words mean at the time the words are written, signed, ratified or legislated?  Or at the time when they are read, interpreted, applied? I and other lawyers struggle with that in family law, and so did the property lawyers, judge and justices in Marble Technologies, Inc. v. Mallon (6/4/15). 

A deed, with a map attached, reserved a road easement “Along Present Mean High Water.” It also gave precise compass points for one end of the road and a slight bend in it, and referred to a stake marking one end.

The Court resorted to Webster’s Dictionary, which defined “present” as “now existing or in progress: begun but not ended: now being in view, being dealt with, or being in consideration at this time: not past or future: contemporary.”

And especially since there were fixed “metes and bounds” and a fixed point involved, there was no ambiguity, and no indication that the easement was moveable, Justice Goodwyn wrote.

So the Court reverses the Circuit Court’s decision that the easement moved. And it finds that the easement is extinguished because it cannot be used for its original purpose, as a road, as it is now under the Chesapeake Bay.

Pension-beneficiary order can be made after divorcee dies - Va. Ct. App. in Griffin case

In Griffin v. Griffin c/o Cowser-Griffin, 62 Va. App. 736, 753 S.E.2d 574 (Va. App. 2014), upheld without comment by the Virginia Supreme Court in Cowser-Griffin v. Griffin, 2015 WL 798707  (Va. S. Ct. unpublished 2015),

the parties' separation agreement said that the children would be named beneficiaries of the husband's defined-contribution retirement plans. Not what we usually think of as requiring a QDRO. The couple was divorced and the husband remarried. The plan’s policy, stated in the plan documents provided to the husband, was to pay the plan out to the widow unless (1) she consented to another beneficiary or (2) there was a QDRO directing otherwise. The trial court said that the divorce decree which incorporated the agreement was not a QDRO, and the retirement plan had no notice of its provisions and no duties to the intended beneficiaries.

But the Virginia Court of Appeals and the Virginia Supreme Court ruled that a Qualified Domestic Relations Order may be made, even though the husband is dead. Virginia law lets Qualified Domestic Relations Orders be made, or amended, long after a divorce is final, for the limited purpose of effectually carrying out what was decided in a separation agreement or divorce decree. This is "merely an administrative mechanism" to enforce rights that have already vested under state law pursuant to, and at the time of, the agreement and divorce decree. Likewise, federal regulations under ERISA, at 29 C.F.R. § 2530.206, expressly allow posthumous QDROs.

However, if the benefits had been considered a survivor benefit and had been from a defined-benefit plan, the result would have been otherwise, under Hopkins v. AT&T Global Information Solutions Co., 105 F.3d 153 (4th Cir. 1997), which held that a survivor benefit vests in the current spouse at the time of retirement. Hopkins was based on regulations that apply to defined-benefit plans, specifically joint-and-survivor annuities, which base the amount of the monthly benefits on both spouses’ life expectancies at the time of retirement.

Until this case, the only remedy in such cases was against the second wife, not the retirement plan. The intended beneficiaries would have to sue her and ask a court to impose a "constructive trust" on the benefits she received from the plan.

The Virginia Supreme Court merely adopted the reasoning of the Court of Appeals without repeating or improving upon it, so to see the reasoning you have to look at the Court of Appeals opinion,Griffin v. Griffin c/o Cowser-Griffin, 62 Va. App. 736, 753 S.E.2d 574 (Va. App. 2014).

U.S. Supreme Court "Summer of Family Law" Began By Preempting Virginia Life Insurance Law

 FEDERAL LIFE INSURANCE (FEGLI) BENEFITS – BENEFICIARY DESIGNATION CONTROLS. It probably comes as no surprise to many lawyers that the U.S. Supreme Court upheld the Virginia Supreme Court’s ruling in Maretta v. Hillman. This was on June 3, and now it’s Hillman v. Maretta of course. You may remember that Mr. Hillman, the federal employee, who had been divorced in 1998, had not changed his employee designation of beneficiary when he died in 2008. Federal statutory law says the designation designates and determines it, and the federal statutory law controls. Virginia law is preempted, as the Constitution’s Supremacy Clause is pretty clear. So is the practice pointer here, and you have probably been told already numerous times that you should tell your federal employee client who wants or is facing a divorce to get that designation changed right away – which, considering the formal requirements for designation change and the role of an existing spouse or former spouse, is easier said than done (but perhaps a lawyer can consider his or her job done once the basic admonition is uttered – and recorded).

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