Category Archives: Divorce court

New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)

FACTS:

In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   

QUESTION:

Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?

HOLDING:

Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.

REASONING:

The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.

ANALYSIS:

The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP

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Filed under Case law, child custody, divorce, Divorce court, Uncategorized

All Divorce Lawyers are not Created Equal

Many people seeking legal services incorrectly believe that all attorneys, by virtue of their law license, are equally capable.  The law and the profession, by their mystique, create this mistaken impression. But unfortunately, for an ill-informed public, this is not the case. Legal services  in family court are rarely commodities–uniform and routine. Especially now, in an economic climate where inexperienced lawyers are forced to handle divorce cases because of unavailable work in their area of expertise, the public needs to beware.  Sadly, and all too frequently, I have met with people who have lost custody because of bad  or unqualified lawyering.  And when they finally see me it is too late to do anything about it.  What are some of the warning signs?

  • lawyers who fail to return your phone calls. This is inexcusable and despite what they may tell you, inappropriate no matter how busy they are.
  • lawyers who don’t keep you informed about the progress of the case. You are entitled to know what is happening, if not contemporaneously, at least within a few days.  Lawyers have a duty to keep you reasonably informed and the failure to do so should be a warning.
  • lawyers who don’t clearly spell out their fees. You need to know up front what is expected. Lawyers who don’t clarify this are not acting appropriately. Along the same lines, lawyers that don’t send out regular bills are also acting inappropriately. You shouldn’t have to guess and if your lawyer does not clearly lay out your ongoing obligations, they should be fired.
  • lawyers that are chronically unprepared. We have all seen them; the lawyers who show up to court late and are rifling through their paperwork looking for crumpled pieces of paper to give to the judge. Do you think this will instill confidence in your lawyer by the judge?  Obviously not…nor should it by you.
  • lawyers that don’t care about you or are insensitive to your problems. If they don’t care about your dilema, do you really think you will get the result you deserve?
  • lawyers who never seem to get anywhere with the case. Some lawyers  always seem to be slogging through mud, getting nowhere and just getting you dirty in the process.  Consider those interminable statuses along with ever-increasing bills; and nothing ever seems to get done.  No progress is a sign of incompetent lawyering.
  • lawyers who continuously get pushed around by the other attorney.  If your lawyer doesn’t have the gumption or self-confidence to stand up and fight for you, you need to get another lawyer.
  • Irascible lawyers. Lawyers that are chronically crabby with you and everyone else for that matter, are not keepers. First you don’t deserve to be dressed down every time you speak. Handling cases is a collaboration, not a dictatorship. Next, you need to consider whether your case will end up being more contested, by virtue of your lawyers temperament. While you don’t want a pushover, a nasty provocateur does you no good either.
  • lawyers who don’t employ modern technology. What does the fact that they have no e-mail tell you about them?  While they don’t need to be IT specialists, they need to have some knowledge of  technology to  manage your case. Without it, things are not going to happen with any efficiency.
  • lawyers who make you uncomfortable. There may be no specific reason, it’s just that funny feeling you get. sometimes you just need to trust your intuition. It’s right more often than you think.

Switching lawyers can be expensive and cause delay. But not switching can be tragic. Which do you prefer?

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Florida Case Law: Does the Recession Warrant a Do-over?

Mistretta v. Mistretta, Fla. Dist. Ct. App., No. 1D09-2049 (per Benton) Decided February 18, 2010.
Facts:
In the final judgment dissolving the parties’ marriage, entered on August 25, 2008, the trial court used October 31, 2007 as the date for determining the value of assets for purposes of equitable distribution. The trial court distributed one of the parties’ principal assets, a family business, to Appellee and ordered him to make a cash equalization payment to Appellant in an amount based largely on the valuation of the business on October 31, 2007. Appellee filed an amended motion for rehearing, alleging that an economic recession began in December of 2007 that caused the business to sustain a substantial loss in 2008 and that this “newly discovered evidence” warranted a new trial and reevaluation of the business. The trial court granted the amended motion, stating that to do otherwise might prove inequitable.
Question:
Did the trial court err in deciding to revisit the distribution of property it had ordered in a dissolution case, on the stated ground that a recessionary economy was totally unforeseen?
Holding:
Yes. The fact that the future unfolds differently than business appraisers assume cannot be the basis for a new trial on the value of a business if trials on such issues are ever to yield reliably final adjudications. Reversed and remanded.
Reasoning:
Projections of future revenues and cash flows are pertinent in assessing the value of a business. But, projections of future revenues, expenses and income necessarily depend, not only on known or knowable facts already in existence, but also on assumptions about the future that will not always, if ever, be entirely accurate. The dissent distinguished this case from the general rule applied by the majority in two respects. First, the economic downturn in this case could only have been determined after the fact and second, the recession is of historic proportions. Both of these factors, combined with the fact that the valuation involved a small family business, persuaded the dissent of the inequity of the original final judgment of dissolution.
Analysis:
This case is very timely. I am seeing the impact of the recession on divorce cases daily;  homes that won’t sell, unemployed spouses and credit problems are rampant in the new economy. I think this was a practical ruling seeking to avoid opening the door for other aggrieved litigants, claiming the meltdown materially affected their asset values. While it seems unfair to the business owner, I know he wouldn’t have sought a do-over if the business was sold a year later for materially more than the valuation. SNP

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Filed under Divorce court, marital property, Uncategorized

10 Common Misconceptions about Divorce

1. You can beat the system.  Nice try. That brilliant idea–the one that will allow you to avoid your legitimate obligations– has been thought of before and the law has remedies. Like the guy who sold his business to his brother for $200, the court won’t tolerate this nonsense. Your brilliant idea will undoubtedly backfire.

2. It’s simple. Divorce is not simple. Issues involving the division of property, post-divorce parenting, and the litany of other issues are far from easy. Family law is one of the most complicated areas of law, incorporating tax law, financial planning, asset valuation, principles of child development and other complex legal and factual issues. The resolution of these issues will have affects on the rest of your life and possibly generations to come.

3. You can avoid support by quitting your job. Really??? Do you think it’s that easy? The law has mechanisms to counter this type of behavior. Go ahead and get a job at McDonalds. You will still be paying support as though your income was the amount before you quit your high paying job.

4. Revenge is sweet. Nonsense– revenge is destructive all the way around. If you have been hurt, lick your wounds and move on. Getting trapped in a vengeful proceeding is expensive– both emotionally and economically– and never brings the type of emotional closure one is looking for. And don’t worry—Karma is pretty potent!

5. Lawyers are hired guns. Not good lawyers at least. Lawyers should try to temper your intense emotions, not act as legal hit men. A lawyer’s job is to manage and minimize your conflict, looking at the big picture. Family conflict penetrates generations and lawyers who perpetuate it should be ashamed of themselves. Lawyers who mindlessly jump at your command are not doing you or the system any good.

6. Courts will punish a transgressor. Unfortunately not. Courts look at all issues through a no-fault lens. Your spouse could have been an incorrigible philanderer and the courts are prohibited from considering this. Don’t proceed as though you will be rewarded for your loyalty and discretion. Get the best settlement possible and move on.

7. Courts can solve all of your problems. Not so. Courts are there to resolve specific legal problems, not necessarily solve them. Bad parenting and poor judgment by your spouse are not curable by a court order. Courts can protect children from physical harm, but rarely from emotional harm unless it is extreme and provable. If possible, figure out solutions to counter this without court intervention. Counselors and mental health professionals are much more appropriate resources than courthouses.

8. A divorce ends your relationship with your spouse. Unless there are no children, you will have an ongoing relationship for years to come. While no longer partners, you will continue to be parents. It makes no sense to engage in a protracted conflict destroying any chance you both have to maintain a constructive working relationship for the sake of the children.
9. Your spouse is evil. Maybe…but probably not. After all, you married this person. At one point you loved them. While people change, it is not constructive to demonize them. It is much harder to settle a case with the devil. Try to look at your spouse, not as a villain, but as someone who lost their way. Things will go much better.

10. You can win. Nobody wins at divorce…except perhaps the lawyers. Work it out and get on with your life. Success is the best revenge.

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Deposing the family czars

The Idaho Supreme Court recently issued a decision  that explores the role of familycourt. While generally unremarkable, the ruling is insightful in its examination of the limits of the court’s power. In Allbright v. Allbright, http://tinyurl.com/phk9tj, filed August 21, 2009, the Court reversed a trial court that held that a custodial parent could not relocate a distance that would interfere with the non- custodial parent’s parenting time. In  its ruling, the Idaho  high court mused on the role of  family court in resolving family disputes. Specifically it held that, ” a court presiding over a child custody matter does not become a family czar with unlimited authority to order the parents to do anything the court believes is in the best interests of the child. The court’s authority comes from the Idaho code…”

Daily people bring their problems to the court, and the court responds with decisions on such matters as soccer camp vs. football camp, or whether junior should wear red pajamas versus blue ones. But family micromanagement is not what a court should do.  Family courts need to be more circumspect in the exercise of their powers, not becoming czars over  all domestic turmoil. Family courts, while unique in the subject matter they adjudicate, are nevertheless courts,  subject to definite statutory and jurisdictional limitations.  And frankly, if the courts refuse to adjudicate petty matters, maybe litigants will find a way of resolving these matters on their own, without the seductive need to “go to court…”

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