The secret lives of Judges

Weird:

Sexually explicit photos of a Manitoba judge were posted on an Internet porn site by her husband, CBC News reported Tuesday.

The pictures of Lori Douglas, associate chief justice of the province’s Court of Queen’s Bench (family division), are part of a complaint filed last month with the Canadian Judicial Council by a former client of Douglas’s lawyer husband, Jack King.

Alexander Chapman alleges King repeatedly invited him to have sex with Douglas, who was then a lawyer at King’s firm, while King was handling Chapman’s divorce case in 2003.

According to the network, Chapman said King showed him about 30 sexually explicit photos of Douglas.

King’s lawyer, Bill Gange, told CBC that King didn’t tell Douglas he had shown the photos to anyone or that he had posted the pictures online.

[...]

Chapman filed a complaint with the firm after his divorce was settled in 2003, after which King left the law firm, the network said. He said he received a $25,000 cash payment from King in 2003 and promised not to take legal action against King and his partners.

Terms of the deal with King prohibited Chapman from talking about the matter and required him to destroy photographs, emails and other material he received from King. Chapman said he signed the agreement, but held on to the items.

Chapman told CBC he broke his silence this year because he feared the incident might influence court cases in which he’s involved in Manitoba’s family court, of which Douglas is associate chief justice.

More here and here, on the legal-ethics issues of the case.

Update: no way Above the Law could ignore this story. Justice Douglas "puts away the gavel - for now," reads their most recent post. I should hope so, since Canadian Judges don't use gavels.

Father of the Year (II)

Mitch Albom savages New York Jets cornerback Antonio Cromartie, who struggled to remember the names of all his children on HBO's Hard Knocks:

Cromartie, in listing his offspring on "Hard Knocks," mentions four who are around age 3. I'll never understand men who father kids as if opening Starbucks franchises. But four in one year?

That's unforgivable. Obviously, Cromartie enjoys his sex, but is it a sin to take precautions? Or does he think his seed is so special he needs to procreate on a quarterly basis?

And what about the women involved? Are they that naive? Or do some figure the fastest route to a sports star's wallet is through the delivery room?

Both parties ignore the well-documented consequences of absent fathers. Lack of guidance, discipline or demonstration of the love and respect needed in a marriage. Crime rates, dropout rates, violence rates -- all are higher for kids without fathers. It's not like this is a secret.

Yet the situation repeats, over and over. It is simply cruel. How will children ever learn their way out of the cycle? If we, in the 21st Century, have fostered a culture where "baby mama" is an acceptable term, we have little to be proud of.

"A house without a father is a challenge," Bill Cosby once wrote. "A neighborhood without fathers is a catastrophe."

[...]

Cromartie's video is now the butt of endless Internet jokes. And almost unbelievably, Cromartie has complained only that HBO didn't show another clip in which he recited his children's names faster.

Hey, Antonio. It isn't how fast you remembered the kids. It's how fast you created them. And there's nothing funny about your story. It's sad. Really sad.

More here. You'd think more young athletes would learn from the sad fate of Travis Henry.

Father of the Year (I)

You didn't think it was possible for Kate to be the less unlikable one, did you?

Jon Gosselin threatened to report his then-wife Kate to Child Protective Services unless she gave him a large sum of money, RadarOnline.com is reporting exclusively.

[...]

Hailey [Glassman, Jon's ex-girlfriend, who must be telling the truth] explained to RadarOnline.com that Jon hatched a plan to get money out of Kate by threatening to report her to Child Protective Services, claiming Kate hurt daughter Mady's arm.

Mady did hurt her arm, RadarOnline.com learned, and Jon saw it as an opportunity to cash in, according to Hailey.

"We were in bed and Jon called Kate on speaker phone," she told RadarOnline.com exclusively. "He wrote down what he wanted to say to her and then he read from his notes. "He told her, 'You either give me money, or I'm going to call CPS.'"

Hailey continued, "I was in the background asking 'what is CPS?' And Jon told me, 'Child Protective Services.'

'Til death do they part

An appeals court has ruled that a same-sex couple who married in Massachusetts cannot be divorced in Texas, which does not recognize same-sex marriage to begin with:

The 5th Texas Court of Appeals ruled that a Dallas district court judge didn't have the authority to hear a divorce case involving two Dallas men who married in Massachusetts in 2006. Republican state Attorney General Greg Abbott's office had appealed after Judge Tena Callahan, a Democrat, said she did have jurisdiction and dismissed the state's attempt to intervene.

"Today's court of appeals decision overruled the district court's improper ruling, confirmed the constitutionality of Texas' traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples," said Abbott spokesman Jerry Strickland.

Callahan also had ruled Texas couldn't limit marriage to a man and a woman, but the appeals court said the state's same-sex marriage ban was constitutional.

"A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage," Justice Kerry P. Fitzgerald wrote on behalf of three Republican appeals court justices. "Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law."

The appeals court ordered the case be sent back to Callahan, who must vacate her order.

Via Doug Mataconis at Outside the Beltway, who offers this analysis:

What this case does point out, though, is one of the problems with the current patchwork of gay marriage laws and bans littered across the country. A gay or lesbian couple from Iowa can get legally married under the laws of that state. However, if one of the partners learns from their employer that they have to move to a state that doesn’t recognize gay marriage, like Texas, then they are faced with the choice of either quitting their job or moving to a state where the legal relationship they have entered into will be null and void. In addition to whatever personal offense one might take at such a situation, it has significant legal consequences for property ownership and a whole host of other issues.

[...]

Thus, we have a situation like the one that unfolded in the Texas case, and while this particular case does not strike me as an appropriate one to make the argument, it seems fairly clear that allowing a situation where fundamental legal rights that exist in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C. don’t exist in the other 45 states of the Union to continue is untenable in the long term.

Wine Law

There's a blog for that.

You've raised the bar again, Florida

How much do you want to bet this ad runs during Maury?

(via Warming Glow)

How to help your lawyer

Family lawyers may want to print this article and give it to every new client.

Who gets the Hemi?

If your soon-to-be-ex-spouse offers to split up the classic car collection, here's why it's a good idea to get the cars appraised:

I was recently involved in a case in which an affluent couple was getting divorced and was in the process of dividing their marital assets. Included in these assets was a 1966 Plymouth convertible that the wife drove on occasion and a 1970 Plymouth convertible that the husband drove rarely. The husband had purchased both cars a few years earlier.

As the divorce proceeded the husband casually suggested that his wife keep the 1966 Plymouth convertible and he keep the 1970 Plymouth convertible. She didn’t see any problem with this and readily agreed. Her attorney however felt that it might be wise to have both cars appraised just to make sure that the value of both cars were similar, even if not exactly the same.

I first went to their home to appraise the wife’s car which turned out to be a beautifully restored 1966 Plymouth Valiant convertible which I valued at about $15,000.00.

The husbands’ 1970 Plymouth convertible also turned out to be beautifully restored but it appraised for slightly more. Slightly more than $1,000,00.00 that is. That’s correct, one million dollars. His Plymouth turned out to be a Hemi Cuda convertible.

The costliest divorces ever

Tiger Woods can look at Rupert Murdoch's divorce settlement and think, it could have been much, much worse:

1. Rupert and Anna Murdoch - $1.7 billion

Rupert married Anna in the 1960s, with the pair remaining together for 32 years, having three children. They split amicably in 1998. The divorce was finalized in June 1999 when he agreed to let her leave with $1.7 billion. 17 days later he married Wendi Deng.

The baby who wasn't

This is why, as a rule, you aren't ordered to pay child support until the child is actually born:

A Federal Way woman is facing theft and perjury charges on allegations that she bilked a man out of thousands of dollars after faking her own pregnancy.

Filing charges earlier this month, King County prosecutors claimed Carmen Lynn Johnsen told a man she was seeing in December 2009 that she was pregnant with his child. Two pregnancy tests a month later showed she was not, but, prosecutors contend, she kept that to herself.

"Johnsen knew that she was not pregnant, yet did not inform (him) of this," Federal Way Detective Scholl said in court documents. "Instead she told him that she had a history of high risk pregnancies and miscarriages and needed to be on bed rest with this pregnancy."

Believing her to be telling the truth, the man began paying her $700 a month to support her non-existent child. In total, he paid her $3,500 in child support before the fraud was discovered in July 2009.

[...]

Investigators contend Johnsen went so far as to name her fictitious child in a death announcement and obituary printed in the newsletter of an antique bottle collectors club of which she is president.

"In Loving memory of Rebekah Lynn Johnsen," the article read, according to police reports. "Becky was born asleep, 28 days premature, on July 23, 2009."

Johnsen also approached the pastor of a Federal Way church in May, asking that a funeral be held for her child, Scholl told the court. Johnsen allegedly claimed she had miscarried after a car crash and cremated the child's remains.

According to court documents, Johnsen gave the man a copy of the funeral announcement and photo of an urn purported to contain her child's ashes in an effort to get him to pay $9,602 in hospital bills.

I'd say this would make an awful direct-to-cable movie, if Lindsay Lohan hadn't already made it.

Glad that's cleared up

From a New York Times editorial, on the U.S. Justice Department's decision not to proceed with charges against Tom DeLay: "many of Mr. DeLay’s actions remain legal only because lawmakers have chosen not to criminalize them.”

(via @walterolson)

$400K per month

That's the retroactive child support award sought by the children of California billionaire Donald Bren:

The suit, which heads to trial this week, was filed by two grown children from a former girlfriend of Mr. Bren’s, Jennifer McKay Gold. According to an article in the L.A. Times, they are seeking retroactive child support of $400,000 a month, even though Mr. Bren already spent $9 million in child support for the two over the years.

Why are they asking so much? Well, the obvious answer is because the 78-year-old Mr. Bren is loaded, with a net worth estimated by Forbes at $12 billion. Mr. Bren’s relationship with the girlfriend ended in 1997, and the suit suit was filed in 2003.

“He’s paid millions of dollars, and now 15 years later [Ms. Gold is] coming out with an oral promise that she told no one about,” Mr. Bren’s attorney told the Times. “She’s just trying to get more money out of him.”

Yet the children say that even though Mr. Bren was paying $10,000 a month for each of the children in child support, he would have had to pay more under formal child-support rules, which are based on formulas that take into account the parent’s income and spending. And according to the children, Mr. Bren was spending $3 million to $5 million a month to support his own lifestyle.

In Canada, child support payments are based on the payor's income, unless he can establish that undue hardship would ensue. (At a minimum, he would be required to prove that his household standard of living is lower than that of the recipient.)

So, how much would a Nova Scotian have to earn to pay $400,000.00 a month for two children? According to our DIVORCEmate software, around $35,700,000.00 per year. Gulp.

Proposition 8, standing and the Supreme Court

Supporters of California's Proposition 8 may not even have standing to appeal a Federal Court ruling that the measure is unconstitutional:

Hardly anyone noticed when the U.S. Supreme Court said in 1997 that it had "grave doubts" that the sponsors of a ballot measure - in that case, an English-only initiative for government agencies in Arizona - had the right to defend the law in federal court.

Now that case could determine the future of same-sex marriage in California.

The Ninth U.S. Circuit Court of Appeals in San Francisco, which will hear arguments in December on a federal judge's ruling that overturned Proposition 8, has asked both sides to address the question of whether the campaign committee for the November 2008 initiative has legal standing - the right to represent the state's interests in upholding one of its laws.

[...]

The issue arises because Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to defend Prop. 8 in court. That was also the case in Arizona, where state officials refused to appeal a lower-court decision overturning a ballot initiative, and the measure's sponsors then sought to defend it themselves.

Writing for a unanimous court 13 years ago, Justice Ruth Bader Ginsburg said state officials are normally the only ones who can defend their laws. There's an exception, she said, when a state passes a law allowing its legislators to represent its interests. But Arizona has no such law, she said, and the sponsors of the English-only initiative "are not elected representatives."

The court, however, resolved the case on other grounds and did not decide whether backers of an initiative can ever defend it in court.

Although the Arizona ruling remains an obstacle for Prop. 8's sponsors, whether it dooms the measure is an open question, said Jane Schacter, a Stanford law professor.

The sponsors' strongest argument, she said, is that elected officials shouldn't be allowed to "undermine initiatives they don't support by choosing not to defend them. That would raise questions about direct democracy."

On the other hand, Schacter said, "elected officials, accountable to the voters, make litigation decisions for the state," determining which laws to defend and which rulings to appeal.

The Prop. 8 case reverses the usual alignment in controversies over legal standing. The issue typically arises in disputes over the right to sue to challenge a law, with liberals arguing for broad authority and conservatives favoring restrictions.

More at Law.com, SCOTUSblog and The Volokh Conspiracy. If this case proceeds no further, it would effectively make same-sex marriage legal in California - and nowhere else. A victory for gay rights, or a missed opportunity?

Doucette v. Hache, 2010 NSSC 299

The written decision in Doucette v. Hache, the Supreme Court of Nova Scotia (Family Division) case blogged about here, is now available online.

Mr. Hache and Ms. Doucette were not married, which meant she bore the burden of proving that the parties intended to share his lottery winnings.

One could reasonably assume that this could be established by the fact that the monies were deposited into a joint bank account, not to mention the fact that the parties had previously shared much smaller lottery prizes. The Atlantic Lottery Corporation even put both parties' names on the ceremonial cheque - though, crucially, the real cheque was made out only to Mr. Hache.

Madam Justice Lynch, however, found that Ms. Doucette was the less credible witness:

[9] There were definite and identifiable problems with the evidence of Marie Doucette. Her evidence revealed that she had memory problems as a result of a car accident. She testified that the period of her memory problems was from June to November of 2004. Under cross-examination she extended the period of memory problems to March of 2005. It is clear that her memory was not reliable during other periods of time.

[...]

[13] These are only three examples of the difficulties with Marie Doucette’s evidence. There were many, many times that Marie Doucette responded to questions by saying that she could not recall or remember. Yvon Hache provided the court with much clearer evidence. Where the evidence of the two parties is in conflict, I accept the evidence of Yvon Hache.

More importantly, it was determined that, even though the money had been deposited into a joint account, they remained entirely under the control of Mr. Hache:

[14] The evidence on the lottery ticket winnings was clear. Yvon Hache purchased the ticket. Marie Doucette scratched the ticket and discovered the win. Both parties went to Moncton when the winnings were collected. Yvon Hache signed all of the paperwork for the Atlantic Lottery Corporation. While the promotional cheque contained both parties’ names, the actual cheque was made payable only to Yvon Hache. After paying some income tax bills for both parties the remainder of the winnings were placed in a joint bank account. This account was set up with the intention that both parties would continue to contribute to it for the down payment on a house. Neither party contributed any more money to the account. The money in the account was moved to another joint account at a different bank and was then used to purchase the house property and the vacant lot.

[15] Marie Doucette did not contribute any money to the joint account nor did she remove any money from the joint account. Marie Doucette testified that she was not allowed to remove money from the account without Yvon Hache’s signature. She had been told this by Yvon Hache. Marie Doucette was not even aware of the location of the joint account. Yvon Hache treated the lottery winnings as if they were his own.

[...]

[23] In the present case, the winning ticket was purchased by Yvon Hache and there was not a general agreement to share any lottery winnings. There was not a specific agreement to share the winnings of $50,000. Yvon Hache made a gift to Marie Doucette by paying her income tax with the winnings. After paying his own taxes, Yvon Hache placed the remaining lottery winnings in a joint bank account to be used to purchase a house. With the exception of this joint bank account, the parties always kept their bank accounts and credit cards separate. Yvon Hache retained control over the bank account. Marie Doucette clearly knew that she was not to access the money in the joint account because she was told so by Yvon Hache and because she was not even aware of the location of the joint account. The lottery winnings were not a joint asset of the parties. The winnings were owned solely by Yvon Hache.

Had the parties been married, Ms. Doucette almost certainly would have been entitled to half of the money. In a common-law relationship, however, a party faces the strenuous task of proving that the parties meant to share the asset, or that the other party would be unjustly enriched if it wasn't divided.

This case illustrates just how difficult that can be. Even a bank account registered in both parties' names will not necessarily be shared, if one party did not contribute any money and had little to do with the account. (After considering the parties' respective contributions toward their home and other property, the court did award Ms. Doucette $11,000.00.)

The real threat to marriage

John W. Whitehead, of the conservative Rutherford Institute, says heterosexual people are doing more to undermine the institution of marriage than gays and lesbians could ever dream of:

Contrary to what critics might say, same-sex marriage, while it may be a symptom of a cultural shift away from traditional marriage and all it has historically entailed, is not responsible for the collapse of marriage as a long-revered institution in this country. That blame rests squarely on the shoulders of heterosexuals for whom marriage—and the family unit that arises from it—has become a temporary arrangement at best, with divorce now seen as an immediate cure-all and cohabitation a happy, less permanent, alternative.

Even among professed evangelical Christians who tout traditional marriage, divorce rates are comparable to those of non-Christians. And while the decline in divorce in recent years has been hailed as good news (it now stands at 40%, down from a high of nearly 60% in the 1980s), it is a false positive that is offset by falling marriage rates and surging cohabitations. As researcher George Barna observes, “There no longer seems to be much of a stigma attached to divorce; it is now seen as an unavoidable rite of passage. Interviews with young adults suggest that they want their initial marriage to last, but are not particularly optimistic about that possibility. There is also evidence that many young people are moving toward embracing the idea of serial marriage, in which a person gets married two or three times, seeking a different partner for each phase of their adult life.”

That said, divorce is not solely to blame for the collapse of the institution of marriage. Marriage generally seems to be falling out of favor everywhere except in the realm of reality TV. For the first time in American history, unmarried households now make up the majority of all U.S. households. Younger generations are also more inclined to live together.

Bridging Benefits

Such benefits - meant to compensate a person who retires early, until he becomes eligible for Canada Pension Plan benefits - constitute a matrimonial asset subject to division, according to the Nova Scotia Court of Appeal:

[7] Mr. Cashin says the bridging benefit is provided under the collective agreement by his employer as an incentive to retire early. He says it is meant to compensate him for income he would otherwise have earned had he not retired rather than to top up his pension. Thus, Mr. Cashin says, it is akin to a wrongful dismissal award, or a severance package paid in relation to involuntary termination of employment. Alternatively, he submits, it is simply an income stream not an “asset”. I would disagree. ...Here, the bridging benefit was not a contingent future entitlement that may or may not be paid, as Mr. Cashin’s argument would suggest. As I have said, he was receiving the monthly income from the benefit at the time of separation. His entitlement to it had been earned during the marriage... [8] Pursuant to s. 4(1) of the Matrimonial Property Act, R.S.N.S. 1989, c. 275 all real and personal property acquired by either or both spouses before or during their marriage is a matrimonial asset, subject to certain enumerated exceptions. The burden of proving that an asset is not matrimonial by reason of exception falls upon the spouse making that assertion. Pensions are, prima facie, matrimonial assets. The bridging benefit is clearly a part of that pension entitlement. In any event, it is a service-based benefit earned during the marriage as part of Mr. Cashin’s employment package. It was not an asset acquired after separation. It does not fall within the s. 4 exceptions.

Ouch

When you have as many children as Mormon fundamentalist (read: polygamist) Merril Jessop, this shouldn't be too surprising:

A polygamist leader in West Texas has agreed to pay child support dating to 2003, when his then-wife left the sect with their eight children.

Frederick Merril Jessop, the bishop of the Yearning for Zion Ranch, signed the order in court Thursday. He will pay his former wife $148,000 for seven years of back child support.

Natalie Malonis, Carolyn Jessop's attorney, said Friday that the bishop will pay $2,000 a month for the first six months and then $100 a month after that to cover the delinquent child support. Frederick Merril Jessop also will pay $2,450 a month to stay current.

Maybe he can pay it back by getting a reality show. (Carolyn Jessop, by the way, wrote a fine book about her defection from the FLDS.)

Women paying spousal support

It's still pretty rare, but not as rare as you might think - and it's an upward trend:

...The idea that men can receive spousal support from their wives may feel like a freakish concept, but as women have become higher earners, it's increasingly common.

And as men set their sights on women's earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they've seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men.

A lot of women are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. "There's this sense of, 'What's yours is ours, but what's mine is mine,'" Wilson says. "My first response to that is, 'All these years we have been looking for equality; well, this is what it looks like.' I think women get angrier about having to pay than men do."

Divorce insurance

It had to happen eventually:

Here’s a new option for those worried they’ll end up on the wrong side of the statistics that show so many marriages ending over time: divorce insurance.

SafeGuard Guaranty Corp., an insurance start-up based in North Carolina, recently released what it’s billing as the first world’s first divorce insurance product. Here’s how its WedLock product works.

The casualty insurance is designed to provide financial assistance
in the form of cash to cover the costs of a divorce, such as legal proceedings or setting up a new apartment or house. It is sold in “units of protection.” Each unit costs $15.99 per month and provides $1,250 in coverage. So, if you bought 10 units, your initial coverage would be $12,500 and you’d be paying $15.99 per month for each of those units. In addition, every year, the company adds $250 in coverage for each unit.

Then, if you get divorced and your policy has matured (see below for the maturation rules), you would send WedLock proof of your divorce. In return, you’d receive a lump sum of cash equivalent to the amount of coverage you had purchased.

[...]

Still, it seems that people would be better served by self-insuring, i.e. putting $15.99 per month into a savings account and earning interest, rather than paying for such coverage and then possibly never getting divorced. Plus, some divorces are relatively amicable and may not cost tens of thousands of dollars.

In response to this notion, Mr. Logan said that while people could end up with more money that way, there’s always the chance that money would be squandered by a soon-to-be ex spouse. He also argues that the $250 per-year appreciation per unit is much more than the miniscule returns available today on savings accounts.

Via Marginal Revolution.

L'il Hitler

A young boy named Adolf Hitler has been taken from his parents. This is not a repeat from 1893:

A New Jersey court decided that a couple should not regain custody of their three children -- not because the parents named their children after prominent Nazis, but because of alleged abuse and parental incompetence, court documents state.

Heath and Deborah Campbell's three small children were removed from their Holland Township home by the state in January 2009 after they asked a grocery store in Greenwich, N.J. to write “Adolf Hitler” on their son’s birthday cake and a media storm ensued.

While a local Wal-Mart honored the birthday cake request, Adolf Hitler Campbell and siblings JoyceLynn Aryan Nation Campbell and Honszlynn Hinler Jeannie Campbell have been in foster care ever since.

The appeals court ruled Thursday that sufficient evidence of abuse or neglect existed. Court records state that both parents were victims of childhood abuse and both are unemployed and suffering from unspecified physical and psychological disabilities.

Is such a name grounds for taking a child into protective custody? It's probably a moot point, because - as in this case - anyone who would name their son "Adolf Hitler" probably presents many, many more reasons why they're not fit to raise a child.

(Via The Volokh Conspiracy)

It's like rain on your same-sex wedding day...

Judge Vaughn Walker, who ruled that Proposition 8 was unconstitutional, was appointed by the first President Bush over stiff opposition from Democrats and gay-rights organizations.

Proposition 8 overturned. For now.

The 136-page decision can be found here, in PDF format.

Prop. 8 supporters have applied for a stay of this ruling, pending the inevitable appeal to the 9th Circuit Court of Appeals. And some observers think Judge Walker's decision is overbroad and ripe for overturning. This won't be over for a while.

The "un-divorced"

The New York Times reports on married couples who separate, but choose not to divorce:

Society is full of whispered scenarios in which spouses live apart, in different homes or in the same mega-apartment in order to silence gossip, avoid ugly divorce battles and maintain the status quo, however uneasy. In certain cases, the world assumes a couple is divorced and never learns otherwise until an obituary puts the record straight.

Separations are usually de facto, rarely pounded out in a contract, and family law is different state to state. But even long-estranged couples are irrefutably bound by contractual links on issues like taxes, pensions, Social Security and health care.

Divorce lawyers and marriage therapists say that for most couples, the motivation to remain married is financial. According to federal law, an ex qualifies for a share of a spouse’s Social Security payment if the marriage lasts a decade. In the case of more amicable divorces, financial advisers and lawyers may urge a couple who have been married eight years to wait until the dependent spouse qualifies.

For others, a separation agreement may be negotiated so that a spouse keeps the other’s insurance until he or she is old enough for Medicare. If one person has an existing condition, obtaining affordable health care coverage is often difficulty or impossible. The recession, with its real estate lows and health care expense highs, adds incentives to separate indefinitely.

[...]

Others believe separation is easier on the children than is divorce. A 48-year-old social worker from Brooklyn, separated eight years, traded places with her husband in the same home, so that their children would not have to shuttle from one home to the other. The couple had an apartment where each would live when not at the family home.

“In hindsight, it was probably more confusing for the kids,” she said. “But we did it with their best interests in mind.”

But long-term separation can create big problems. If a couple isn’t divorced, their lives are still legally and financially intertwined. If your estranged husband goes on a spending spree, you’re responsible for the ensuing credit card debt. If you win the lottery, that’s community property. [Maybe - see Souder v. Wereschuk, 2004 ABCA 339 - DJP] Finances can swing wildly, creating an alimony boon or a bombshell should one partner eventually want a divorce.

Get a receipt

It's very common for parents to use a neutral location for picking up and dropping off children for access. And, unfortunately, it's very common for one party to accuse the other of not showing up at the agreed upon place and time.

I often tell clients to bring a witness, to prove he or she lived up to the agreement. (Preferably not a new boyfriend, girlfriend or spouse, whose presence may inflame the situation.) But if you can't get anyone to go with you, this writer suggests an idea I wish I'd thought up: if the drop-off location is near a store, restaurant or ATM, go in and ask for a receipt showing the date and time.

The madness of Orly Taitz

How far gone is the Queen of the Birthers? This far gone:

Orly Taitz, the so-called “birther” attorney who’s led charges across the country against President Barack Obama’s legitimacy to hold office, continues to defy a federal court order to pay $20,000 in sanctions and to challenge the judicial system.

[...]

Taitz kept pushing the issue of Obama’s legitimacy with [U.S. District Court Judge Clay] Land, who ultimately gave her a warning and then a time limit to explain why he shouldn’t levy a hefty fine against her. In October 2009, when Taitz did reply, though not to the judge’s specific command of why he shouldn’t sanction her, Land then issued $20,000 in sanctions against her.

Taitz appealed to the 11th Circuit Court of Appeals in Atlanta, and the appeals court upheld Land’s sanctions in May.

She then forwarded U.S. Supreme Court Justice Clarence Thomas a brief for stay, in which she asked that the sanctions be reversed.

According to the Supreme Court’s website, that application was received July 8 and denied by Thomas on July 15.

On July 20, Taitz posted a motion requesting that she be allowed to verify that it is, in fact, Thomas’ signature on the denial of her application. ...

Emphasis added; via How Appealing.

Fail

In 1960, the accused in a robbery case represented himself, and posed this question to one of the witnesses:

"How do you know it was me, when I had a handkerchief over my face?"

Mr. Hache wins twice

The Supreme Court of Nova Scotia (Family Division) has ruled that the purchaser of a winning lottery ticket does not have to share the money with his former common-law partner:

A $50,000 lottery prize that was used in part for a down payment on a home and kept in a joint bank account is not a mutual asset of a Nova Scotia couple who separated after living together for more than eight years, a judge has ruled.

The decision, issued this week by a Nova Scotia Supreme Court judge, illustrates the limited division of property rights for common-law couples, even when there is an unexpected financial windfall.

The court ruled in favour of Yvon Hache, a Halifax contractor who purchased an instant scratch ticket in May 2004. His common-law partner, Marie Doucette, scratched the ticket and discovered it was worth $50,000.

The couple travelled together to the regional lottery offices to collect the prize. They paid off some tax bills and used a significant portion as a down payment on a house and an adjoining lot.

For more than three years they lived in the home until the couple separated in June 2008.

Justice Mona Lynch was asked to resolve a number of financial issues, including the legal status of the lottery winnings. “The winning ticket was purchased by Yvon Hache and there was not a general agreement to share any lottery winnings,” the judge noted. “The lottery winnings were not a joint asset of the parties.”

Because the couple was not married, “there is not a presumption that the lottery winnings or any other property is joint,” the judge observed.

[...]

For a court to find that any unexpected windfall such as a lottery jackpot should be shared, “there must be evidence of a prior agreement,” said Kim Johnson, the lawyer who represented Mr. Hache.

If there is no formal agreement, then there must be credible evidence that a couple purchased lottery tickets together and promised to split winnings. The evidence could simply be the testimony of friends who heard a couple talk of mutual plans if they won a jackpot, explained Ms. Johnson.

While the lottery funds were put in a joint bank account, no other money was deposited. Ms. Doucette “was not even aware of the location of the joint account. Yvon Hache treated the lottery winnings as if they were his own,” Judge Lynch said.

You may look like a fool...

...but saggy pants are not illegal, at least in The Bronx.

Obligatory:

Supporting the mother who abandoned you

Adrian McNair notes an infuriating case from British Columbia:

When Ken Anderson was just 15, his mother, Shirley, made it clear: She didn't want him anymore.

Ken's father, a long-haul trucker, had been transferred from Osoyoos, B.C., to the province's Kootenay region. Although their marriage was rocky, Shirley followed, taking second-youngest son Darryl with her.

Ken was left behind. He had plenty of time to think about it as he wiped bug splatter off car windshields and pumped gas at the local station to make a buck. He says he can't even remember how many couches he slept on, or how he kept himself going. He just knows he never got to go to a prom, finish high school or even think about college.

The way he sees it, he never really had a mother.

On Aug. 3 and 4, Ken, now 46, will face off in B.C. Supreme Court against the woman who gave birth to him.

Shirley Anderson, 71, is suing Ken and four of his five siblings for parental support. The case has been dragging on for years, but the August hearing should complete it.

Shirley has dusted off a little-used section in B.C.'s Family Relations Act that legally obliges adult children to support "dependent" parents.

The mother relies upon section 90 of the B.C. Family Relations Act:

90. (1)In this section:

"child" means an adult child of a parent;

"parent" means a father or mother dependent on a child because of age, illness, infirmity or economic circumstances.

(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.

Would this claim have a chance in Nova Scotia? The Maintenance and Custody Act includes provisions ordering an adult child to pay support for a "dependent parent" (defined as "a parent who by reason of age, disease or infirmity is unable to provide himself with reasonable needs"):

15. Upon the hearing of an application, a court may order a child who is of the age of majority to pay maintenance for his dependent parent. R.S., c. 160, s. 15.

16. When determining the amount of maintenance to be paid for a dependent parent the court shall consider

(a)the reasonable needs of the dependent parent;

(b)the ability of the dependent parent to contribute to his own maintenance; and

(c) the reasonable needs and ability to pay of the child obliged to pay maintenance. R.S., c. 160, s. 16.

17. An order may be made against a child of a dependent parent whether or not an order is in force in respect of any other child of the parent.

In either province, the mother would have to establish that she is "dependent" as defined by the section. Then, the question is whether "the reasonable needs of the child" allows the court to refrain from ordering an abandoned child to support the parent. Here's hoping.

Who gets the pets?

Historically, when matrimonial property is being split up, the family dog or cat has been treated as just another item (see para. 4). But cases like this are probably the wave of the future:

As they headed toward divorce, Gayle and Craig Myers had only one bone of contention: Who would have the right to keep Lucky, their 16-pound gray-black Lhasa apso.

Under Maryland law, family pets — unlike, say, children — are treated as jointly owned marital property and sold if the divorcing couple cannot agree on who gets to keep them. The parties then split the proceeds of the sale.

But the standard resolution did not seem right to retired Prince George's County Circuit Judge Graydon S. McKee III.

The judge, presiding over the limited-divorce proceeding by special assignment, decided on his own last month that Gayle and Craig, who have no children, would split custody of Lucky. The dog will alternate spending six months with each party; Gayle's turn began on July 1.

[...]

"It was very clear that both of them love this dog equally," McKee said. "The only fair thing to do was to give each one an equal chance to share in the love of the dog."

Had either side objected to his unusual resolution, McKee said, he would have applied the law and might have ordered the dog put in the care of a trustee, sold and the proceeds divided.

If you're in the San Fracisco Bay Area, and you want to avoid a problem like this, the pet custody mediator might be able to help.

Gibson's access

Slate asks why Mel Gibson is allowed access to his young daughter, despite allegations of spousal abuse:

It's an unintended consequence of gender-neutral family laws, enacted in many states in the second half of the 20th century. For generations, states defaulted to granting mothers custody of minor children. Then, as feminist mothers and participatory fathers began to reimagine parenting roles, states began to adopt laws that focused less on gender. Policymakers across the country agreed that it was in the best interest of children to have "frequent and continuing contact with both parents," who ideally "share the rights and responsibilities of child rearing" as California custody law states. The American Academy of Matrimonial Lawyers supports this now-standard idea, propounding in its model for a parenting plan that noncustodial fathers ought to have liberal overnight visitation with their children. Custody judges are charged with determining what's in the "best interest of the child" when deciding how to support—or whether to depart from—that general policy goal. Legally, Gibson doesn't have to show he should be allowed to see his daughter alone. It's Grigorieva's burden to show he shouldn't, and she hasn't proven that yet because the court is still investigating her allegations.

[...]

But maybe in light of the rest of Gibson's history, the judge's decision was too liberal. Would it have been such a stretch to propose reining in his visits with his daughter pending the investigation into his alleged abuse? Would it really hurt Lucia? Once the investigations into the domestic violence claim and into the authenticity of the recordings are concluded and the court makes a determination about Lucia's safety around Gibson, he'll be awarded whatever visitation the court deems appropriate; that's what will happen, and that's how it should be. The controversy here involves a temporary order in an ongoing proceeding, in the context of an allegation that may have merit and may not—so the challenge is how to proceed justly and in the best interests of the child, who, in this case, is an infant.

In my experience, parents have been denied all access to a child only in the most severe cases. Where there are allegations of child abuse, supervised access is usually ordered, as a balance between protecting the child's safety and her right to spend time with both parents. (See R.T.F. v. S.L.R., 2005 NSSC 102, for example.)

With Gibson accused of hitting the child, it is a bit surprising that his access doesn't have to be supervised, at least on an interim basis. On the other hand, Grigorieva may not be the most credible source, either. Poor child.

Big changes in B.C.

The provincial government plans "revolutionary" changes to the Family Relations Act:

Its proposals to update the 30-year-old Family Relations Act include revising the legal definition of a parent, changing property-division rules, making children’s interests the “only” consideration in parenting disputes, and even replacing the terms “custody” and “access” with “guardianship” and “parenting time.”

Another key aspect of the proposals is to change the adversarial aspect of separations, making it easier for couples to use out-of-court options to resolve issues such as child custody and division of assets.

[...]

The proposals would extend the rules of property division to couples who have been living together as common-law partners for more than two years, as well as to any common-law couples who have a child together.---- That change would be significant, as the property division aspect of the existing Family Relations Act generally does not apply to unmarried spouses.

The proposed new law also changes the way property is divided in the event of a separation, which the government says will create more certainty.

Under the new scheme, a couple would split property owned by one or both spouses at the time of separation, but with some exceptions. Those exceptions include items such as gifts and inheritances to one spouse; pre- and post-relationship property, and settlements or damage awards from tort claims involving just one spouse.

Under the existing law, property eligible for division is defined as that “ordinarily used for a family purpose,” a definition many have said is too vague.

The new proposals also seek to add legal clarity to situations where more than two people may be involved in the conception and birth of a child, such as artificial insemination or in vitro fertilization.

The new law would state that a birth mother would be the child’s legal mother and could only give up her parental status through either adoption or surrogacy.

In an assisted conception that is not a surrogacy, the law would presume the birth mother’s partner — either opposite sex or same sex — to be the child’s other parent.---- Third-party donors of eggs, sperm or embryo would not be considered a legal parent, though they would be allowed to apply for such a designation and the new law would allow for more than two legal parents to be named.

The proposed new law would also replace terms like “custody” and “access” with “guardianship” and “parenting time,” a move many say will lead to a less adversarial process.

The law would also make child access as much a responsibility as a right by allowing a court to intervene and take action if a parent “fails to exercise the parenting time or contact without notice to the applicable guardian.”

Quote of the Day Year

The Superficial: "I love how Robert Shapiro was able to rationalize that someone else might have murdered Nicole Brown-Simpson yet can’t bring himself to appeal Lindsay Lohan’s jail sentence."

Update: IDLYITW: "In June 1994, O.J. Simpson drove to his ex-wife's, Nicole Brown, Bundy Drive condominium and fatally stabbed her and her then boyfriend, Ron Goldman. Brown was stabbed multiple times in the throat (which left her nearly decapitated) and had her vertebrae severed. During the 1995 trial, the prosecution presented the following evidence: DNA showed that blood found at the scene of Brown's murder was O. J. Simpson's. The odds it could have come from anyone but Simpson were reported to be about one in 170 million. DNA analysis of blood found on a pair of Simpson's socks found in his bedroom identified it as Nicole Brown's. The blood had DNA characteristics matched by approximately only one in 9.7 billion, with odds rising to one out of 21 billion when compiling results of testing done at the two separate DNA laboratories. DNA analysis of the blood found in, on, and near Simpson's Bronco revealed traces of Simpson's, Brown's, and Goldman's blood. Hair consistent with Simpson's was found on Goldman's shirt. The left-hand glove found at Nicole Brown's home and the right-hand glove found at Simpson's home proved to be a match. The bloody footprints were identified by FBI shoe expert William Bodziak as having been made by a pair of extremely rare Bruno Magli shoes, of which it has been reported that only 299 pairs were sold in the US. The large size 12 prints matched Simpson's shoe size. Robert Shapiro, O.J.'s defense attorney, looked at that said, "F**k that. We got this." At 10:07 a.m. on October 3, 1995, after only four hours of deliberation the previous day, the jury returned a verdict of not guilty. This man just walked away from Lindsay's case."

Money never sleeps (and neither do family law cases)

This case will probably be discussed in law schools for years to come, as an example of how not to draft a separation agreement:

Ten years after parting ways, actor Michael Douglas and ex-wife Diandra Douglas are back in court to battle it out over his latest earnings.

The 65-year-old star was said to have paid his former spouse a hefty $45 million, per the terms of their 2000 settlement, but according to a report in the New York Post, his current good fortune could add even more money to the old divorce deal.

It all comes down to actor’s decision to bring Gordon “Greed is good” Gekko back to the big screen in the upcoming “Wall Street: Money Never Sleeps.” Diandra Douglas’ legal eagles claim the original settlement not only awarded their client a financial share from the films her ex-husband made while they were together, but also any future spin-offs.

Now the question is whether or not the new take on “Wall Street” really is a spin-off. It should come as no surprise to learn Michael Douglas doesn’t think so. Arguing before a judge last week, his attorney insisted the movie is sequel, not a spin-off.

"They're not the same thing," lawyer Marilyn Chinitz said in a quote published in the Post.

My own position is that a "spin-off" takes a supporting character from the original film and puts him in a completely different story - for example, The Scorpion King, featuring The Rock's character from The Mummy Returns.

(Question: would a movie featuring characters from another film in a small cameo appearance - Michael Keaton's Jackie Brown character in Out of Sight, for example, or the Duke Brothers from Trading Places in Coming to America - count as a "spin-off"? What about a reboot like Batman Begins, or a prequel? How about Superman Returns, which continued the story from Superman II - cutting out two notoriously inferior sequels starring Christopher Reeve - with an entirely new case? Discuss.)

On the other hand, one could argue for an expansive definition of "spin-off," which would encompass pretty much anything featuring the characters from the original Wall Street - including a sequel.

I'm not sure whose counsel made a mistake in not insisting that the term be defined in the contract. But if you want to know why pre- or post-nuptual agreements are so wordy, look to this case.

I'll huff and I'll puff and I'll blow your Eaton Centre down!

A "ritual nick"

Kenneth Anderson, at The Volokh Conspiracy, goes nuclear on the American Academy of Pediatrics.

Flashback: Dennis the Peasant, May 7.

In Wisconsin, one parent is better than two

The State of Wisconsin, presumably with the goal of strengthening the traditional family, does not allow same-sex couples to marry or jointly adopt children. The (presumably) unintended consequence? Promoting single parenthood:

A woman who raised two adopted children for years in a same-sex relationship is not considered their parent under Wisconsin law, an appeals court ruled Thursday.

The court also rejected her argument that she should be granted guardianship because the children would be harmed by "depriving them of one of the two persons who has raised them from infancy."

People sometimes ask how a self-professed conservative can support same-sex marriage. This kind of case explains all.

Kim's impeccable timing

After the national football team put in a strong performance against Brazil, the Dear Leader decided that his subjects could watch North Korea's match against Portugal live.

When bloggers wed

Congratulations to Megan McArdle and Reason's Peter Suderman, who tied the knot this weekend.

Busted on Facebook

A suggestion: if you're cheating on your spouse or have kidnapped your children, put the photos on Friendster. No one will ever see them.

Nice try...

...but quitting your job and joining a religious cult won't get you out of paying child support, at least in North Carolina:

A father who quit his job as a corrections officer and joined a religious commune cannot escape child-support payments, the North Carolina Court of Appeals ruled.

Shirley Ritchie Shippen sued husband John Lee Shippen for child custody, support and alimony. The trial court ordered John to pay Shirley $1,106 per month. When he failed to do so, the court found him in contempt.

John quit his job and joined a religious group called the Twelve Tribes of Israel, which provides communal living and bars its members from earning outside income.

John appealed the contempt order, arguing that he was following his beliefs and could not pay $6,290 to purge the contempt order.

But the state appeals court denied the appeal.

"Defendant did not quit his job and join a religious community until after entry of the support order," Judge Wanda Bryant wrote. "That defendant's religious beliefs are sincerely held, as the trial court found, is irrelevant."

Full decision here. If the guy had already been a member of the commune when he became a father, he may have had a case. But his timing was a bit too convenient.

Helen Thomas's final solution