Family Law Legal Research Blog

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

Windsor Update: Kitchen v. Herbert Headed to the Supreme Court

Posted by Gale Burns on Wed, Jul 30, 2014 @ 16:07 PM

Brett Turner, Senior Attorney, National Legal Research Group

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Topics: legal research, Brett turner, Windsor update, Kitchen v. Herbert, writ of certiorari

Windsor Update: Bostic v. Schaefer—The Fourth Circuit Rules

Posted by Gale Burns on Wed, Jul 30, 2014 @ 15:07 PM

Brett Turner, Senior Attorney, National Legal Research Group

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Topics: legal research, Fourth Circuit, family law, Brett turner, Windsor update, Bostic v. Schaefer, same-sex marriage a fundamental right, no compelling state interest, Niemeyer dissent

Windsor Update: Second-Day Reflections on Tenth Circuit's Opinion in Kitchen v. Herbert

Posted by Gale Burns on Thu, Jun 26, 2014 @ 14:06 PM

Brett Turner, Senior Attorney, National Legal Research Group

     After 24 hours of reflection, the Tenth Circuit's opinion in Kitchen v. Herbert is looking weaker.

     The foundational premise of the majority opinion is that the fundamental right to marriage extends to same-sex couples. This was the critical point of difference with the dissent, which argued that the fundamental right of marriage should not be so extended.

     Why, then, did the majority hold that the right to marriage was fundamental?  The court's reasoning was as follows:

     1.         In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court held that the fundamental right to marriage extends to interracial couples.

     2.         In Zablocki v. Redhail, 434 U.S. 374, 384 (1978), the Supreme Court held that the fundamental right to marriage extends to delinquent child support obligors.

     3.         In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that the fundamental rights to marriage extends to prison inmates.

     4.         Because "the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it," Kitchen slip. op. at 35-36, the fundamental right of marriage is unconditional and extends to everyone.

     Unfortunately, the above reasoning is clearly wrong.  If the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry his or her brother or sister. But no court has ever held, and few commentators have ever argued, that there is a fundamental right to commit incest.

     Likewise, if the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry someone who is already married to someone else. But no court has ever held, and almost no commentators have ever argued, that there is a fundamental right to commit bigamy.

     It is true that the Supreme Court has rarely found that the right to marriage is qualified. But it a fundamental fallacy to assume that the universe of cases coming before the appellate courts is the same as the total universe of cases. Appellate courts hear only a very small portion of the cases heard in the trial courts, and the trial courts themselves hear only a very small portion of the total cases filed. Only the closest cases are heard on appeal. 

     One therefore cannot assume that the fundamental right to marry is unqualified merely because the Supreme Court has rarely found a qualification. It is very possible, and this instance highly likely, that the qualifications are so obvious that no one has been willing to bear the expense of arguing against them at the Supreme Court level. Surely, if the issue were to come before the Supreme Court, the Court would recognize that there is no fundamental right to commit incest or bigamy.

     The primary reasoning process by which the Kitchen court found infringement of the fundamental right to marry is therefore deeply flawed. The fundamental right to marry is not "independent of the persons exercising it." Id. at 36. At a minimum, it does not apply in cases of incest or bigamy. If the fundamental right to marriage is limited in some ways, it can be limited in other ways.

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Topics: legal research, family law, Brett turner, Windsor update, Kitchen v. Herbert, majority opinion erroneous, fundamental right to marriage has qualifications, right to marriage is qualified

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