Archive for the 'Divorce Law' Category

December 9th, 2014

Missouri Supreme Court to Decide on Same-Sex Divorce

The Missouri Supreme Court will decide if a same-sex couple married in Iowa can get divorced in the state of Missouri.

Attorney Drey Cooley, who represents a man identified as M.S., argued in front of state Supreme Court judges Wednesday that Missouri should dissolve the union, even though the state does not allow same-sex marriage.

The couple separated in August 2013. They requested for a divorce in January but a St. Louis County Circuit Court judge denied the petition, naming Missouri’s constitutional ban on same-sex marriage.

The case does not seek to address the legality of gay marriage in the state of Missouri. Cooley argues that Missouri can dissolve this same-sex marriage without also acknowledging the marriage.

Cooley’s client “just wants the same rights that anyone else would want to be in that situation—to get dissolved and move on.”

The state’s current ban has come into question recently: an October decision in Jackson County declared that Missouri must acknowledge same-sex marriages performed in other states.

Missouri’s Republican leaders have vowed to appeal the Jackson County decision, which Democratic Attorney General Chris Koster said he will not fight.

On November 4, St. Louis city Circuit Judge Rex Burlison found Missouri’s ban on same-sex marriage unconstitutional, motivating many same-sex couples to get married at city hall that day. Two days later, U.S. Circuit Judge Ortie Smith in Kansas City also ruled the ban unconstitutional.

Koster, who is for gay marriage, appealed both rulings, stating he is forced to uphold Missouri’s laws in court.

Cooley contends the state Supreme Court could avoid deciding the legality of same-sex marriage by ordering the union be observed like other out-of-state marriages for the intent of divorces. As an example, common-law marriages are not recognized in Missouri but can still be dissolved by a judge.

The U.S. Supreme Court may also hear arguments on same-sex divorce in 2015.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

November 26th, 2014

Mississippi To Hear First Same-Sex Divorce Case

The Mississippi Supreme Court is scheduled to hear arguments on its first same-sex divorce case.

Lauren Czekala-Chatham and Dana Ann Melacon were married in 2008 in California. Last year, DeSoto County Chancery Judge Mitchell Lundy Jr. ruled that they cannot be granted a divorce as Mississippi.

“All same sex Mississippi couples lack a right to have their marriage recognized by the state regardless of whether newly arrived here, having lived here all their life or anywhere in between,” Assistant Attorney General Harold E. Pizzetta III stated.

However Czekala-Chatham’s attorney does not agree.

“Lauren does not seek to be married — she seeks a divorce. Lauren does not complain of Mississippi’s refusal to recognize her marriage…her complaint is that Mississippi law relegates her to a declaration of voidness, when a party to an opposite-sex marriage in otherwise similar circumstances would be entitled to a divorce,” her attorney was quoted by the Associated Press.

Since Czekala-Chatham’s appeal, U.S. District Judges overturned same-sex marriage bans in both Mississippi and Arkansas, stating the ban was unconstitutional.

Both U.S. District Judges put the enforcement of their decisions on hold in expectancy of appeals, meaning legal recognition of same-sex marriage in both states is still forthcoming.

That leaves Czekala-Chatham’s divorce case in limbo.

“It’s a very unfortunate predicament to be in, because you realize you cannot get divorced in your state of residence,” says Kody Silva, a Washington D. C. divorce attorney. “And the state you were married in will not allow you to get divorced unless you go back and essentially become a resident of that state.”

Silva states that, essentially, Czekala-Chatham would have to move back to California and become a resident in order to make her divorce legal. So instead, she appealed her case to the Mississippi Supreme Court.

“People get divorced. It’s a part of life. We don’t want it to happen, but it happens,” Czekala-Chatham says. “If we can get the state to recognize an out-of-state marriage, maybe down the road we can get them to recognize same-sex marriage and allow it in the state.”

Mississippi Governor Phil Bryan expects the state to appeal the State Supreme Court’s Tuesday decision.

Czekala-Chatham’s appeal is set for January 21, 2015.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

November 19th, 2014

New Oklahoma Divorce Classes Law Begins

A new law took effect in Oklahoma on November 1 that requires divorcing couples to attend a class if underage children are involved.

Couples with children, age 18 or under, seeking divorce on grounds of incompatibility will have to take a class on the effects of divorce in children. Additionally, they will have to pay to attend the class.

This measure was enacted in an effort to lower Oklahoma’s divorce rate, as well as to help children cope with their parents’ separation.

“I think that it is a good idea, I think parents will think about the divorce and impact that it has on the children and it will help them see the consequences,” said Teresa Deck, Director of Counseling at Oklahoma City’s Sunbeam Family Services.

The courses will include topics such as the effects of divorce on children, family violence consequences, reconciliation options, conflict-resolution and co-parenting strategies, as well as family service resources.

However, some experts have some serious concerns about the new law.

Oklahoma City attorney Gail Stricklin says the law presents a danger to victims of domestic violence who are attempting to leave an abusive relationship.

“We all want to encourage someone to get away from an abusive relationship, but if you are in the same parenting class, which in many counties is the only option, you are going to have some incidents,” Stricklin added.

At this time, the law gives no particular exemption for victims of violence. There is a general “good cause” exception, meaning a judge will decide which couples are exempt from attending the program.

Both partners must present a certificate of completion to move forward with divorce proceedings.

Classes will range between $15 and $60.

Judges will decide how many hours are necessary on a case by case basis. The program must be finished within 45 days of the initial divorce filing.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

September 5th, 2014

32 States Ask Supreme Court to Rule on Same-Sex Marriage

Following decisions made by several states this week, 32 states have asked the U.S. Supreme Court to rule upon the legality of same-sex marriage.

Massachusetts filed a brief Thursday, along with fourteen states that allow gay marriage, asking the justices to overturn bans in Utah and Oklahoma. Colorado, along with sixteen states, requested justices to resolve several lawsuits in Virginia, Oklahoma and Utah. They did not push the court to rule upon the ban.

The filing followed a ruling by the 7th U.S. Circuit Court of Appeals that Wisconsin’s and Indiana’s same-sex marriage bans were unconstitutional. The decision was made by a unanimously opinioned three-judge panel, stating that the bans were “discriminatory” and “totally implausible.”

Wisconsin and Indiana had argued that allowing same-sex marriage would damage the safety of children in heterosexual marriage. In a 40-page decision, the court stated the claim is “so full of holes that it cannot be taken seriously.”

Wisconsin and Indiana will be appealing the decision.

The brief also follows Wednesday’s decision in Louisiana upholding the state’s same-sex marriage ban.

Judge Martin L.C. Feldman’s ruling is the first to support a state’s decision to bar same-sex marriage since the Supreme Court’s denial of part of the Defense of Marriage Act in 2013. He also upheld Louisiana’s refusal to recognize same-sex marriages formed in other states.

In his judgment, Feldman maintains that the laws of marriage should be determined by the individual state. He asserts the ban does not violate any fundamental rights and that Louisiana had a “legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents,” as reported by the New York Times.

Next week, the Ninth Circuit Court of Appeals in San Francisco will hear arguments in same-sex marriage cases from Hawaii, Nevada and Idaho. Additionally, the Fifth Circuit Court awaits an appellate case regarding Texas’ same-sex marriage ban.

Nineteen states and the District of Columbia currently allow same-sex marriage, resulting from court decisions, judicial action or election.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

August 20th, 2014

Divorce Granted For Transgender Marriage Cases

Last week, courts in both Arizona and California ruled that marriages of two transgender men were valid and that they can, in fact, divorce.

Thomas Beatie, 40, was born female and in 1997 he underwent assessment to determine his psychological gender. In 2002 he began a series of gender-reassignment surgeries and in 2005 legally changed his gender to male on his birth certificate.

When determined his wife was infertile, Beatie became pregnant through artificial insemination. Beatie appeared on numerous talk shows as “The Pregnant Man” and gave birth to his first child in 2008.

By 2011, the couple had two more children.

On August 13th, an Arizona Court of Appeals ruled that the marriage between Thomas Beatie and Nancy J. Beatie was lawful and that their union may be dissolved by divorce.

The couple was married in Hawaii and was originally refused the power to divorce by a lower Arizona Court, recognizing the couple as same-sex and therefore an invalid marriage.

“The question before this Court is not whether the State of Arizona allows same-sex marriage or divorce, but whether the laws of the State of Arizona allow a marriage, lawfully entered into in another state, between two persons the foreign state formally recognized at the time of the marriage as male and female, to be dissolved,” the appellate decision said, as quoted in AZ Central News.

Arizona’s ruling followed a similar decision by the Superior Court of California. The previous week, the marriage of adult firm star Jake Miller, known as Buck Angel, and his wife Elayne, was ruled as valid. Miller was born female and modified his birth certificate years after the couple’s Louisiana marriage.

According to an article on Transgender Law Center, Elayne Angel argued that the union was invalid due to Miller’s female birth certificate status at the time of marriage. The Superior court ruled that Miller was legally male and that Louisiana law will identify the union as one between male and female.

Both couples are allowed to continue with their respective divorce proceedings.

According to USA Today, Beatie said in a statement released by his attorney, “I feel I have finally been recognized in Arizona as not just a man, but a human being.”

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

December 13th, 2013

Utah Divorce Class Proposal


For parents going through a divorce, Utah currently has a state mandated, in-person, divorce orientation course.

The belief of many is that when someone files for divorce, divorce is inevitable. The belief of some is that there is hope to salvage some marriages.

Alan Hawkins, a Brigham Young University professor, teaches the state mandated class in Utah and believes that 10-20% of marriages which result in divorce petitions have a “reasonable possibility of repairing the relationship and being able to preserve family stability.”

The Utah Legislature is currently looking at a proposal that would move up the required divorce orientation course in the divorce process, placing it before the actual filing of the petition.

This proposal is getting a lot of negative feedback and many issues are coming to light that need to be considered.

The biggest issue is the issue of open courts in which the Constitution says out right that everyone is entitled to the courts.

An exception to this process is being proposed for victims of domestic violence. A court or police order, or other evidence of domestic violence, will waive the required course.

This is the third time Rep. Jim Nielson is trying to advance this legislation.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

November 8th, 2013

Texas Supreme Court Starts to Hear Cases Involving Same Sex Divorce


The Texas Supreme Court has started to hear cases that could determine the fate of same-sex couples looking to get a divorce in the Lone Star State, according to a report from the Dallas Morning News.

Sources say the complication arises from the state’s ban on gay marriage, which remains in effect in Texas and states that marriage can only be between one man and one woman.

Several gay couples, however, have married in other states, and then moved to Texas. So the issue is whether these couples will be able to obtain a divorce in their adopted state.

And the issue was confused in recent years after two appellate courts reached contradictory conclusions, sending the complicated issue to the state’s highest court for resolution this week.

According to reports, in 2010, the Third Court of Appeals in Austin ruled that the state’s attorney general had no jurisdiction in its case, and allowed a lesbian couple to divorce. The Fifth Court of Appeals in Dallas, however, stated that a gay couple in Dallas could not legally file for divorce under Texas law.

According to James Scheske, the divorce attorney representing the same-sex couples in the Texas Supreme Court, the cases are about “divorce and equality. He also says the contrary Dallas ruling “forecloses my client’s constitutional right to petition for divorce in his state of residency and thereby violates his rights under the 14th Amendment.”

Also, Sheske noted in a recent court hearing that if the state’s attorney general, who is arguing against the same-sex couples, prevails, the lesbian couple in Austin will be forced to remarry four years after their divorce.

But the same-sex couples have received strong opposition from the state. Sources say Deputy Attorney General James Blacklock argued in court that all same-sex marriages are void and unenforceable in Texas, regardless of the state of their origin.

“Texas law does not recognize those marriages,” said Blackock in court this week. “It is void for all purposes in Texas.”

The issue of same-sex divorce is rapidly becoming a topic of national conversation, especially after the U.S. Supreme Court’s recent decision to overturn the federal Defense of Marriage Act, which prevented same-sex couples who married in other states from receiving federal benefits.

Each state still has the right to define marriage as it sees fit, but states that do legalize gay marriage effectively have the support of the federal government after the recent Supreme Court decision.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

July 3rd, 2013

California Supreme Court Issues Key Decision on Divorce and Pensions


The California Supreme Court ruled this week that a man who served in the military before marriage doesn’t have to share certain funds earned during the marriage during a divorce, according to a report from the San Francisco Chronicle.

According to reports, the court ruled that a man who serves in the military before marriage, and then later uses funds jointly owned with his spouse to purchase military-service credits that increase his future pension payments, doesn’t have to share those payments with his spouse after a divorce.

Sources say the landmark case, which involved Timothy and Julie Green, could change the way pensions are distributed during a divorce, particularly for state workers in California.

The Greens, who were married in 1992, filed for divorce in 2008. Before the two married, Timothy Green served for four years with the Air Force, and then started working as a firefighter in California for the Alameda County Fire Department.

Reports indicate that the California Public Employees’ Retirement System (CalPERS), which operates Timothy Green’s retirement fund, allows users to purchase credits for previous public service that adds to their pensions.

Green took advantage of this program in 2002, and started making payments on a 15-year installment plan. Sources say he paid roughly $11,000 into the fund before filing for divorce.

The problem, however, is that the funds used to purchase the pension credits were jointly owned by Julie Green, who argued in court that she should receive a portion of the future pension increase owed to her husband.

An appellate court agreed with Julie Green, ruling that she could share the pension increase, but the state’s highest court overruled that decision this week.

In a unanimous decision, the court ruled that Timothy Green “rendered his military service before the marriage, making the military service credit his separate property,” according to reports.

The former wife, though, is still entitled to be paid half the amount her husband paid into the system, which amounts to a little more than $6,000, sources say.

One justice noted that the case may have had a different result if Timothy and Julie Green had married after the husband accepted a job as a firefighter, but under the laws of this community property state, all seven justices agreed with the majority decision.

And while the case seems like a relatively mundane dispute between a single couple, sources expect the decision to have widespread consequences for couples looking to divorce in California.

In particular, the decision may have an impact on every divorce involving an employee whose pension is controlled by the California Public Employees’ Retirement System or the State Teachers’ Retirement System, sources say.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

May 31st, 2013

Florida Governor Rejects Divorce Law Eliminating Permanent Alimony


Rick Scott, the governor of Florida, rejected a bill this week that would have eliminated the possibility of permanent alimony for spouses getting a divorce in the Sunshine State, according to a Fox News report.

If Scott had failed to take action on the bill, it would have automatically become law, so the bill’s supporters can fairly pin the blame for the bill’s failure on the governor.

Despite disappointment from the bill’s proponents, only four other states have eliminated permanent alimony, so the passage of the measure was unlikely from the start.

As modern divorce laws continue to evolve, a handful of state legislatures have decided that lifetime alimony awards are unfair, and have thus eliminated the practice.

Of course, these states still allow for hefty maintenance payments, whether they’re given in a lump sum or over the course of several years, but they’ve decided that automatic lifetime payments were no longer fair.

According to sources, the proposed Florida law mirrored elements of divorce rules that were recently passed in other states.

The bill would have set strict limits on both the amount of individual alimony awards and the length of their dispersal. In addition, it would have prevented alimony timetables from lasting longer than 50 percent of the length of the marriage.

Moreover, the bill would have made recovering alimony more difficult in short-term marriages, and, somewhat controversially, it would have required parents to have equal custody of their children under most normal circumstances.

Before vetoing the bill, Scott praised some of the “forward looking elements” of the bill, but he also expressed his belief that alimony “represents an important remedy for our judiciary to use in providing support to families as they adjust to changes in life circumstances.”

Scott also claimed he could not sign the bill “because it applies retroactively and thus tampers with the settled economic expectations of many Floridians who have experienced divorce.”

Finally, Scott further noted that divorce laws in Florida already allow alimony to be adjusted “under the proper circumstances.”

Interestingly, Scott’s veto undid the work of Florida’s House of Representatives and Senate, both of which passed the measure by strong majorities, as members of both major parties threw their support behind the measure.

And one local divorce attorney predicted that the bill would eventually appear again. “My assumption,” said Jason Marks, a local attorney, “is you haven’t heard the last of it.”

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.

April 24th, 2013

Proposed North Carolina Divorce Law Seeks Longer Wait for Divorce


A bill circulating in the North Carolina Senate would force married couples to wait for two years before filing for divorce, according to a report this week from the Hickory Daily Record.

The proposed law, cleverly titled the “Healthy Marriage Act,” would extend the state’s mandatory waiting period before a divorce from one to two years, but it also adds several other layers designed to make divorce more difficult.

According to sources, the new divorce law would also force couples to attend counseling sessions and allow them to live together without suffering a penalty in order to work out their marital troubles.

To no one’s surprise, the bill has generated a fair amount of controversy in North Carolina, but its supporters swear by its potential efficacy.

Sen. Austin Allran, the bill’s sponsor, notes that his state has a “higher-than-average divorce rate,” but claims he doesn’t think that “residents of North Carolina are harder to get along with than people in other states.”

In other words, Allran believes the state’s relatively high divorce rate is a product of poor laws, not cultural trends, and he hopes the bill would change these statistics.

Sources say North Carolina has 3.8 divorces per 1,000 residents, a rate that is slightly above the national average of 3.4 divorces per 1,000 people.

In addition to the potential to reduce the state’s divorce rate, supporters of the bill also claim that it would help children, and it would also reduce the costs to the state that are often incurred as a result of divorce.

But opponents of the bill claim the proposal would set divorce laws back several decades, and note that such measures would be counterproductive at best.

According to Lisa Angel, a local divorce attorney, in 20 years of helping North Carolina clients, “I’ve never had a client ask for the waiting period to be longer.”

Angel also noted that “most clients have thought about this and agonized over this for years before they actually separate, so to extend that only causes more emotional and financial hardship for the family and children.”

Indeed, residents of North Carolina are already required to wait a year between their separation and a final divorce, in addition to meeting other regulatory hurdles that are common to family law disputes.

Opponents of the bill question whether the addition of an extra year to the waiting period would provide anything but headaches for families and courts alike.

Copyright © 2010 TotalDivorce, LLC. (as licensee). All rights reserved.