Divorce Law Journal

U.S. Supreme Court Decides Pension Beneficiary Following Divorce And Death

The U.S. Supreme Court issued a unanimous decision in Kennedy v. DuPont. The Court held the plan administrator of an ERISA benefits plan should pay plan benefits to wife #1, who was the designated plan beneficiary on a designation executed during the marriage and not to wife #2, who was married to the deceased participant spouse at the time of his death. The divorce decree in question awarded 100% of the deceased participant's benefits to participant, not wife #1. However, participant failed to change his beneficiary designation after the divorce.

SCOTUS BLOG points out, The Court, however, did leave open for the future a related question: if an ex-spouse is handed the benefits by a plan manager, might they still have to be surrendered, once the payout was completed? A footnote indicated that the Court on Monday was only resolving how federal benefit law applied to the initial distribution of plan payments, not their subsequent fate.

Here is the syllabus.

New Briefs Ordered In U.S. Supreme Court ERISA Case

We posted here about the QDRO case in the United States Supreme Court (Kennedy v. Plan Adm. for DuPont Savings) and linked to the oral arguments and indirectly linked to the briefs. Now SCOTUSBLOG advises that the court has ordered an additional issue to be briefed. Just letting you know so that if the opinion is rendered upon some basis nowhere to be found in the existing briefs and arguments, that may be the reason.

QDRO Needed If Alternate Payee Gets Nothing?

I couldn’t figure out why in the world a plan administrator recently wanted a QDRO when the alternate payee was getting nothing under the Marital Settlement Agreement. Now I do. The 5th circuit ruled a QDRO was the only permissible way to release pension rights and in the absence of a QDRO the divorced spouse got it all upon the participant’s death where the employee never changed the beneficiary designation, even though she waived rights in the settlement agreement. The United States Supreme Court accepted cert and oral arguments are set next month. Here's the post from the Cornell University Law School and here is the critique from the Workplace Prof Blog.

California To Permit Same-Sex Marriage (at least for now)

Click In Re Marriage and you'll see the 172 page opinion from the Supreme Court of California today. Marcia Oddi at Indiana Law Blog posts:

Here is a report by Bob Egelko of the San Francisco Chronicle on this morning's ruling. The story begins:

10:31 PDT SAN FRANCISCO -- Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

More:
The celebration could turn out to be short-lived, however. The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid.

If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.

Family Law Prof Blog highlighted this quote from the opinon, "In the present case, it is readily apparent that extending the designation of
marriage to same-sex couples clearly is more consistent with the probable
legislative intent than withholding that designation from both opposite-sex couples
and same-sex couples in favor of some other, uniform designation. In view of the
lengthy history of the use of the term “marriage” to describe the family
relationship here at issue, and the importance that both the supporters of the 1977
amendment to the marriage statutes and the electors who voted in favor of
Proposition 22 unquestionably attached to the designation of marriage, there can
be no doubt that extending the designation of marriage to same-sex couples, rather
than denying it to all couples, is the equal protection remedy that is most
consistent with our state’s general legislative policy and preference."

Relocation In Michigan And Edmund Fitzgerald Update (updated)

Just as the Kentucky Supreme Court has three relocation related cases pending, Michigan has been struggling with the issue. Here is Jeanne Hannah's post Mom's relocation of 91 miles causes change in custody in Updates In Michicgan Family Law.
Nearly a year ago I wrote about a missed opportunity to meet Jeanne at this post. Marcia Oddi dubbed it the adventure of the Edmund Fitzgerald and I promptly forwarded the haunting score to my hosts, who were not very amused. But, ha! They invited me back and we're planning to cruise up Jeanne's way again this summer. The one lesson I learned, though, is that you really can't plan when traveling by water. So, Jeanne, if I'm nearby I'll give you a call, but no advance dinner plans. :)
UPDATE: Marcia Oddi writes, Actually it is "The Wreck of the Edmund Fitzgerald."
See this excellent video, accompanied by the Gordon Lightfoot vocal.
http://www.youtube.com/watch?v=ZEwEfti7gRk. Thanks!

Simcox v. Simcox (6th Circuit) Hague Abduction, Grave Risk Of Harm

Digest from the 6th Circuit Blog: Simcox v. Simcox, Northern District of Ohio at Cleveland
BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
Jeffery Morley at International Family Law calls this case a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition.

New KY Family Law Cases

No new published family law cases today from the Kentucky Court of Appeals. Last week there was one, London v. Collins, 2007 –CA-000529-ME, regarding application of KRS Chapter 403 in modification of custody established in a dependency case. Digest to follow soon.

Constitutional Challenge to Paternity Laws Dismissed By 6th Circuit For Failure to State Claim

Dubay v. Wells, decided by the 6th Circuit yesterday, denied a constitutional challenge to paternity laws, dismissing for failure to state a claim. Quotes from the Family Law Prof Blog:

The suit was brought by Father who claimed that he should not be responsible for child support when Mother had represented that she didn't want to have a child and assured him repeatedly she couldn't get pregnant. Father argued that Michigan's paternity laws violated the U.S. Constitution's Equal Protection Clause because a man does not have a similar choice as does a pregnant woman regarding abortion, adoption or raising a child.
The court found that Michigan Paternity Act does not affect any of Father’s fundamental rights because "it is not a fundamental right of any parent, male or female, to sever his or her financial responsibilities to the child after the child is born." The court further noted that it did not need to apply intermediate scrutiny because the Michigan Paternity Act and other statutes that impose the obligation of support are gender neutral. Finally, the court found that the Michigan Paternity Act withstood rational basis review because "the means that the statute uses to achieve this end–requiring support from the legal parents, and determining legal fatherhood based on the biological fatherhood–is substantially, let alone rationally, related to this legitimate, and probably important, government purpose."

Kansas High Court Rules Against Sperm Donor

David Klepper, Topeka correspondent to the Kansas City Star reports on the decision last Friday denying a sperm donor any rights to the child, as there was no written agreement.

In a 4-2 decision, the court held that the state law is justified and clear: if Hendrix wanted a relationship with the children, he should have put it in writing. “Generally speaking, mere ignorance of the law is no excuse for failing to abide by it,” reads the decision, written by Justice Carol Beier.

“He (the donor) can unilaterally refuse to participate unless a written agreement on his terms exists,” Beier wrote. “After donation, the male cannot force the fatherhood issue.”

The story continues

Most states, including Missouri, have laws prohibiting donors from having parental rights over children conceived through artificial insemination. The challenge to the Kansas law was watched by family law attorneys across the country.

Twenty-two family law experts submitted friend of the court briefs. All but one sided with the woman and the state law, saying it was necessary to protect the rights of children and their mothers, as well as the donor, from custody and child support lawsuits.

Linda Henry Elrod, a family law professor at Washburn University who submitted a brief in Hendrix’s favor, said a better state law would require donors to sign a contract waiving their rights as parents.

State Can Be Granted Custody Of Out Of Control Child When Parents Are Fit

Court holds that parents do not have to be found unfit for state to be granted custody of out of control mentally ill child, an interesting post from LawReader re a Washington decision.