Divorce Law Journal

More On Pre-Nups and Lane v. Lane

When Lane v. Lane (on pre-nups) was initially rendered, I was taken aback by the division of the court. Our initial posting simply quoted from Justice Lambert’s opinion, Justice Grave’s concurring opinion and Justice McAnulty’s dissent. I thought the quotes quite clearly and tellingly illustrated insight into the high court’s view of marriage rights and responsibilities. The case had the potential to be campaign fodder, and I was prepared that this site would be a sounding board without me interjecting my views. Several women lawyers were vocal that this case illustrated why we needed a woman on the Kentucky Supreme Court. No comments were posted at that time, though.
The case is now final and was digested here. Since then I received these comments by email:
from Mike Stevens, Kentucky Law Blog:
“I must still be a romantic as I really have a problem with antenuptials addressing the property rights acquired in the future and the obligations of the parties in the event of a divorce. Why can't they simply make sure what is separate property now stays separate and no intent to commingle or make marital, and any maintenance issues be treated like any maintenance issues now based upon standard of living parties became accustomed too, length of marriage, etc.”
“I, for one, will miss the cut through to the chase, common sense, no nonsense analysis offered by Justice Graves in this opinion and his other opinions (Earle v. Cobb, for example). Whether or not you agree with his jurisprudential analysis of what transpired in this agreement or others of similar ilk, you must surely agree that he addressed the real problems presented by antenuptial agreements which must transcend simple contract analysis in the context of families and children.”
“I know you might disagree with me on this but just wanted to bug you a tad. The more marriage is considered a business and financial contractual relationship, the more likely the children end up being marital assets and the parents being marital asses.”
And (this case lit a spark!) in a follow up email giving me permission to post, he added:
“On an aside, the more the courts analyze the covenant of marriage as a civil contract, the harder it will be to dispute the encroachment of civil union contracts of same sex couples. Although, I disagree with the encroachment and object to same sex marriages for a host of reasons (not all Biblical), I can not ignore the logic and precedent being set up by this type of contractual and bargaining analysis premised on unconscionability. For that reason I usually use the term "anti-nuptial contracts"; unequal bargaining, giving up rights without knowing what the rights are and what you are getting in return, purely speculative and without consideration (monetary or personal), and worse yet - a preplanned exit strategy. Hmmmmm. Sounds more like rules of disengagement than an engagement.”
All interesting points.
And, as we posted here, drafting these contracts is not for the faint of heart.
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Some Pro Se Litigants Are Not As Divorced As They Thought They Were

From the LA Times: Do-it-yourself divorce doesn't always sever ties.
"When Yanic Chan and Vanessa Van split up in 1995, they couldn't afford a lawyer. So, like thousands of other people without money, they filled out the divorce paperwork themselves, with help from a friend.
In November 1997, Van went to the Riverside County Courthouse to enter a final judgment. 'The clerk put the stamp on it,' Van said. 'I asked, 'Everything finished?' She said 'Yes.'
Chan returned to his native Cambodia and married again. Then, in 2006, he tried to bring his new wife to this country. And that's when Van and Chan got a nasty surprise, one that court officials fear could be awaiting thousands of other former California couples: Their divorce had not been finalized.
Driven by rising legal fees, a shortage of legal aid lawyers and a do-it-yourself philosophy, about 80% of people in California handle their own divorces, according to court officials.
Many of them are not quite as divorced as they think they are. Some of them, like Chan, are even accidental bigamists, carrying not only hopes and dreams but also an earlier marriage to their new one...Many people think divorce is like a traffic ticket and if they fail to take care of it properly, the court will track them down and notify them."
It is not just a California problem, as local efforts at tackling the problem have been reported here and here and here.

Brockman v. Craig

Brockman v. Craig, 205 S.W.3d 244 (Ky. App. 2006)

Issues and Holdings:

1) Whether a parent, who spends more time with child than the other parent, can claim the status of primary residential parent for purposes of determining the standard to apply to a motion to relocate. The Court held no, the parent cannot claim such status.
2) What standard is to be applied to motions to relocate, if the motion is filed less than two years since the original custody agreement. The Court held that the parent wanting to relocate must show that the present environment endangered the child’s physical and emotional well-being.
The Circuit Court ordered that the motion for modification of custody did not meet the requirements for the court to hold a hearing under KRS 403.340, and denied the motion. Brockman appealed.
COMMENT: The Court of Appeals is almost begging the Kentucky legislature to address relocation. We have promoted consideration of the AAML's model relocation act here.

More On Sealing Divorce Records

Marcia Oddi at Indiana Law Blog posts today Judge halts public access to Shine divorce papers, linking to the story from the Fort Wayne Journal Gazette. "A special judge has sealed the divorce filings of Allen County Republican Party Chairman Steve Shine." She has reported a number of similar stories over the last few years and links to them at the end of this post. We have reported on sealing/unsealing of divorce files here, but the Florida outrage and secret dockets issue seem far different than the case-by-case closing of select divorce files in Indiana and in other states. Sometimes there are very good reasons where harm to the litigants or their children outweigh the public's right to know.
One thing leads to another, and in digging through Marcia's prior posts I discovered the Reporters Committee for Freedom of the Press, a site worth perusing.

Internet Research Digs Up Private Matters

Carole Levitt and Mark Rosch, authors of The Lawyer's Guide To The Internet, have a lenghty article published at Law.com last week, Internet Research Digs Up Private Matters, covering private facts that are public record and general investigative tips. As some may recall, this tech duo presented The Cybersleuth's Guide To The Internet in Louisville last June.

Is Father Responsible For Expenses Of Mother's Pregnancy In Kentucky?

Stan Billingsly at LawReader requested that we post the law on this fact situation: an unmarried pregnant woman wants to know if the father of her unborn child is responsible for the expenses of her pregnancy and how does she obtain reimbursement if he refuses to pay? KRS 406.011 obligates the father to pay the reasonable expenses of the mother’s pregnancy, whether or not the child is born alive, and for the education, necessary support, and funeral expenses of the child, to the same extent as the father of a child born in wedlock.
Paternity may be determined upon the complaint of the mother, putative father, child, or the person or agency substantially contributing to the support of the child as well as by the county attorney or the Cabinet for Health and Family Services. KRS 406.021.
The action may be commenced within 18 years after the birth, miscarriage or stillbirth of a child. Child support awards are not retroactive to birth if the complaint is taken four years or more from the date of birth. KRS 403.031.

Digging Deeply Into Matrimonial Data Mining

Part Two of Digging Deeply Into Matrimonial Data Mining, reprinted from the Matrimonial Strategist, is now available online at Law.com.

The Perils of Separate Caucuses In Mediation

Small Talk and Separate Caucuses highlights the importance of joint initial mediation sessions and the perils of shuttle mediation. Check it out. It takes a very skilled mediator to hold it together, but isn't that what we want, very skilled mediators?
UPDATE: I promise I drafted this post before I read Victoria's 2006 Gratitude list, naming "Divorce Law Journal -- Louisville family law attorney Diana Skaggs who does more to promote ADR than any attorney I know." Sweet.

New Year's Resolutions and More Than Five Things You Don't Know About Me

New Year’s goal setting has been a ritual for more than 30 years for me. First, I buy a lovely new hard bound journal. Then, I think. Then, I brainstorm with a very close friend or two. Next, I put pen to paper. The process consumes much of the month of January, but I look forward to it each year. Voila! My life is planned, to a point.
I thought business goals were usually the easiest for me to do, although I must say that this year they are shaping up as more of a “to-do-list” than the big picture direction that I want. Much more work and thought is needed, to be sure. Yet as I reflect upon 2006, nowhere was the word “blog” anywhere in the book. Life just happened.
So I took out a couple of my old journals for a look-see. My personal history is repeating itself in my business.
1997. One goal I wrote down was to live more in the moment. I remember it well. Every Sunday morning I went horseback riding with a friend. Those were joyous mornings, rain or shine. I would sing and canter along the river. My voice was no prize and neither was my riding. I remember saying “wouldn’t it be great to take singing lessons from someone who rode a horse and was a riding instructor?” January came, goal debating was in progress, and my friend gently suggested that fully living in the moment was something to think about. Of course, that was dead on, so I wrote it in my journal. Whoa, Nellie! Life just happened and has been happening ever since.
I have been amused and enchanted by the “five things you don’t know about me” that have been circulating among my lawyers friends on the net. On the river, drifting in a boat, we call it “twenty questions” and it is the surest way to really get to know people and on an intimate level. I’d really like to play “five things you don’t know about me”, but this is the world wide web, and I guess I just don’t want that many people to really, really know me. You can know that I can’t sing and that I can’t ride a horse well, and that In January 2006 I couldn’t foresee that I would have a blog up by the end of February, but at this venue, I’d rather stick to business! To the friends on the web I have made through my blog: stay in touch, continue to email me, we’ll get together at conferences and by design, and I promise in person you can ask me twenty questions. Or thirty. Maybe I'll tell you what else happened in 1997. Or in 1992. Or...? Just be prepared for reciprocity.

Farewell To Legal Advertising Trailblazer Richard D. Shapero

As we were pondering our past and setting goals for our future, Richard D. Shapero died yesterday at age 63. He will always be remembered for taking the Kentucky Bar Association to the United States Supreme Court, which resulted in a significant opinion striking down bar restrictions on lawyer advertising. Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988) . You'll also find a transcript of the oral arguments online.
A gutsy guy, lightyears ahead of his time, he enjoyed the business side of law much more than the actual practice of law. His forte was bringing in P.I. cases and then farming them out to other attorneys. His trademark, long before other lawfirms thought of tag lines or trademarks, was " I Know The Experts." His early TV ads made traditional lawyers cringe, but he spoke a language lay people understood and they hired him.
A memorial service will be held Wednesday at The Temple in Louisville. I bet the stories about Pin Ball Wizard will be doozies. We've lost one of a kind.

Happy New Year! Let's Keep Learning And Sharing

New Zealand has had a family court for 25 years. Here's a video interview from Geoff Sharp at the V-Blog Mediation Project. You will find interesting that family court judges there participate in mediation and occasionally include children.
Her Honour Judge Jill Moss, a leading judge of NZ’s specialist Family Court and advocate of mediation for family matters within the Court