Family Law Legal Research Blog

Windsor Update: The Supreme Court Speaks

Posted by Brett R. Turner on Fri, Jun 26, 2015 @ 15:06 PM

Brett R. Turner, Senior Attorney, Family Law, National Legal Research Group

      On June 26, 2015, the United States Supreme Court issued its long awaited decision in Obergefell v. Hodges. In a very sharply divided 5-4 decision, the Court held that the fundamental right to marry applies to persons of the same sex.

     The majority opinion strongly resembles Loving v. Virginia, 388 U.S. 1 (1967), the landmark decision that recognized that the right to marry includes the right to marry a person of a different race or color. The opinion identified one single, unitary, fundamental right to marry, which is identified as a fundamental component of American life and, indeed, of human existence.

     The opinion then defined the question as whether this fundamental right to marry extended to same-sex relationships. The Court held that it did. Given the central importance of marriage to human existence, to refuse to recognize same-sex marriage would deeply demean gay persons:

     There is no difference between same- and opposite-sex couples with respect to [the importance of marriage]. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.

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FAMILY LAW: How Not to Use Out-of-State Authority When Writing an Appellate Brief

Posted by Brett R. Turner on Thu, Jun 11, 2015 @ 15:06 PM

The Lawletter Vol 40 No 4

Brett Turner, Senior Attorney, National Legal Research Group

     A recent Utah Supreme Court decision sets forth a good example of how not to use out-of-state authority when writing an appellate brief on a question of first impression. Johnson v. Johnson, 2014 UT 21, 330 P.3d 704.

     In a divorce case, the court issued an order dividing the husband's military pension, but the wife never obtained the qualified order necessary to have the military pay a portion of the pension directly to her. Some years after the divorce, she petitioned for such an order. The husband argued that she had waited too long, and that her request was barred by laches. The trial court prospectively granted the wife's request, and the husband appealed.

     There was no Utah authority directly on point, so the husband cited two New York cases. The court was not unwilling to look outside Utah, but it criticized the manner in which the New York cases had been discussed, and ultimately dismissed the laches issue on grounds of insufficient briefing.

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Topics: family law, Brett R. Turner, The Lawletter Vol 40, No 4, using out-of-state cases in appellate brief, appellate procedure, relate out-of-state law to general principles

FAMILY LAW: Laws of State of Domicile Govern Divorce of Couple Married in Another State

Posted by Sandra L. Thomas on Mon, May 11, 2015 @ 16:05 PM

The Lawletter Vol 40 No 3

Sandra Thomas, Senior Attorney, National Legal Research Group

     In the first decision in the nation to address the issue, the Alabama Court of Civil Appeals has held that an Alabama trial court was under no obligation to enforce the covenant-marriage contract entered into between the parties at the time of their marriage in Louisiana where the parties subsequently moved to Alabama and sought a divorce in the Alabama court. Blackburn v. Blackburn, No. 2131043, 2015 WL 1608431 (Ala. Civ. App. Apr. 10, 2015) (not yet released for publication).

     In January 2013, Mr. Blackburn filed a complaint for divorce in an Alabama trial court, alleging as grounds incompatibility of temperament and an irretrievable breakdown of the marriage. Several days later, Mrs. Blackburn filed an answer and counterclaim also seeking a divorce and also alleging incompatibility of temperament, and further alleging that the husband had committed acts of domestic violence.

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Topics: family law, domiciliary state, subject-matter jurisdiction

FAMILY LAW: Spousal Support in No-Guideline States

Posted by Brett R. Turner on Thu, Mar 19, 2015 @ 08:03 AM

Brett Turner, Senior Attorney, National Legal Research Group

     No field of family law is as diverse or controversial as that of support payments made by one spouse for the support of the other after a marriage has ended in divorce. The law in this area is so divided that the states cannot even agree on the name of the payment. Some states use the traditional name, "alimony." Other states follow the lead of the Uniform Marriage and Divorce Act and call the payment "maintenance." Still other states call the payment "spousal support."

     Disagreement over the label is matched by disagreement over the purpose of the payments. Most states recognize several different types of spousal support. Traditional support is awarded after a long-term marriage so that the less wealthy spouse does not suffer a drop in living standard. Rehabilitative support is awarded when it will help the less wealthy spouse to develop a higher earning capacity. It differs subtly from time-limited support, which is awarded when the marriage was not long enough to justify a traditional support award. Reimbursement support is awarded when one spouse made contributions during the marriage to the other's earning capacity, such as by supporting a spouse through graduate or professional school. Some states even recognize transitional support to bridge the gaps between other forms of support.

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Topics: family law, spousal support, no-guidelines states

FAMILY LAW: Modification of Alimony Agreement

Posted by Gale Burns on Mon, Feb 2, 2015 @ 13:02 PM

The Lawletter Vol 39 No 11

Sandra Thomas, Senior Attorney, National Legal Research Group

     The Appeals Court of Massachusetts has affirmed a trial court's dismissal of a complaint filed by a former husband seeking to decrease or terminate his alimony obligation because he had reached "full retirement age," defined under Massachusetts statute as "the payor's normal retirement age to be eligible to receive full retirement benefits under the United States Old Age, Survivors, and Disability Insurance program," i.e., Social Security. Lalchandani v. Roddy, No. 13-P-1988, 2014 WL 7447305, at *4 n.6 (Mass. App. Ct. Jan. 5, 2015) (quoting Mass. Gen. Laws ["M.G.L."] ch. 208, § 48 (inserted by St.2011, c. 124, § 3)).

     The parties divorced in 1992 after more than 20 years of marriage. The separation agreement entered into between the parties was incorporated, but not merged, into the judgment of divorce and thus retained independent legal significance. Included in the agreement was a provision that the husband would pay $4,333.33 per month to the wife as alimony until the death of either party or the wife's remarriage. The agreement allowed the parties to modify its terms by written agreement. In 1996, the wife filed a complaint for contempt against the husband for, among other things, unpaid alimony.

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Topics: family law, modification of alimony agreement, retirement

Windsor Update: Not with a Whimper, but a Bang—U.S. Supreme Court Accepts Same-Sex Marriage Cases

Posted by Gale Burns on Mon, Jan 19, 2015 @ 10:01 AM

Brett R. Turner, Senior Attorney, National Legal Research Group

     Just a few months ago, the U.S. Supreme Court denied review over two same-sex marriage cases, creating a possibility that same-sex marriage might become the law of the land through a series of denials of certiorari, without any further opinions from the Court.

      But the Sixth Circuit then rejected the concept of a broad federal right to same-sex marriage. On January 16, 2015, the Supreme Court accepted petitions for certiorari in four separate same-sex marriage cases, thus agreeing to address directly the Circuit Court split and to decide whether federal law requires recognition of same-sex marriages. The cases will together constitute perhaps the highest-profile litigation in the Court's 2015 term.

     The four cases are Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. All were decided in the Sixth Circuit, which is presently the only Circuit holding that states may restrict the right of same-sex persons to marry.

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Topics: family law, Windsor update, same-sex marriage, certiorari granted

Windsor Update: The Sixth Circuit Creates A Real Circuit Court Split On Same-Sex Marriage

Posted by Gale Burns on Fri, Nov 7, 2014 @ 14:11 PM

Brett Turner, Senior Attorney, National Legal Research Group

           In a long-awaited decision, the Sixth Circuit has ruled on a series of cases involving attacks upon state laws and constitutional provisions preventing recognition of same-sex marriages. DeBoer v. Snyder, No.14-1431 (6th Cir. Nov. 6, 2014). Unlike the Fourth, Seventh, Ninth, and Tenth Circuits, the Sixth Circuit held by a 2-1 majority that such provisions are not unconstitutional.

           The Sixth Circuit ruling is grounded solidly in the fundamental principle of respect for the democratic process. The court began with the premise that all civilized nations refused to recognize same-sex marriage until the very recent past. It recognized that law on this subject was changing rapidly even before the federal courts became involved and that the trend was strongly in favor of increased recognition. Indeed, "[f]rom the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen." Slip op. at 7.

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Topics: Windsor update, split amoung courts, Sixth Circuit

Windsor Update: Not With A Bang, But A Whimper

Posted by Gale Burns on Wed, Oct 8, 2014 @ 10:10 AM

The Supreme Court Denies Review of the Fourth and Tenth Circuit Decisions

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Windsor Update: A Split Finally Develops on Whether States Can Constitutionally Ban Same-Sex Marriage

Posted by Gale Burns on Thu, Sep 11, 2014 @ 17:09 PM

Brett Turner, Senior Attorney, National Legal Research Group 

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Topics: legal research, family law, Brett turner, Windsor, constitutional ban of same-sex marriage, Robicheaux v. Caldwell, E.D. Louisiana, held restrictions are constitutional, sexual orientation not a suspect class, restriction directly related to linking children w, relied on democratic process, held constitutional restrictions not motivated by

Windsor Update: The Seventh Circuit Rules

Posted by Gale Burns on Thu, Sep 11, 2014 @ 13:09 PM

Brett Turner, Senior Attorney, National Legal Research Group

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Topics: legal research, family law, Brett turner, Windsor, Baskin v. Bogan, 7th Circuit, Wisconsin and Indiana constitutions implicated, court held restrictions lack rational basis, sexual orientation is suspect class, Wisconsin argued tradition and democratic process

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