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    Family Law Legal Research Blog

    Brett R. Turner

    Recent Posts

    Social Security Dependency Benefits and Alimony

    Posted by Brett R. Turner on Wed, Jul 18, 2018 @ 12:07 PM

    Brett Turner—Senior Attorney, National Legal Research Group

         Persons who suffer from serious disabilities can apply for and receive Social Security Disability ("SSD"). When a parent receives SSD, dependency benefits are also paid to the parent's dependents.

         In the context of child support, a majority of states consider the noncustodial parent's SSD dependency benefits to be a form of child support, paid to the child from amounts previously withheld from the income of the parent. They are treated as income for purposes of child support, but the noncustodial parent then gets a dollar-for-dollar offset against child support for the amount of dependency benefits received by the child. See, e.g., Sealander v. Sealander, 789 So. 2d 401 (Fla. Dist. Ct. App. 2001); Mooneyham v. Mooneyham, 420 So. 2d 1072 (Miss. 1982); Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994). See generally Laura W. Morgan, Child Support Guidelines: Interpretation and Application § 4.07[J][2] n.117 (2d ed. 2013).

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    Topics: family law, Social Security benefits, Disability, dependency benefits as child support, alimony

    FAMILY LAW: Imputing Investment Income for Purposes of Spousal Support

    Posted by Brett R. Turner on Tue, Feb 28, 2017 @ 16:02 PM

    Brett Turner, Senior Attorney, National Legal Research Group

          In Curtis v. Curtis, 887 N.W.2d 249 (Minn. 2016), the wife sought spousal support in a divorce case. But she received, as part of her share of the marital property, an Ameritrade account worth over $2 million.

         The trial court held that the income from this account constituted income for purposes of spousal support. The account was invested in growth-oriented securities and produced income of less than $3,000 per year. This income was not sufficient to meet the wife's support needs. But the husband proved that the account could be reinvested into income-oriented securities at a rate of 7% per year and earn $9,500 per month in income. On this basis, the trial court imputed $9,500 per month income to the wife, and found that she had no need for spousal support. Minnesota's intermediate appellate court affirmed, and the wife appealed to the Minnesota Supreme Court.

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    Topics: family law, spousal support, imputing investment income, real estate

    FAMILY LAW: Business Valuation Upon Divorce—Goodwill

    Posted by Brett R. Turner on Mon, Nov 7, 2016 @ 12:11 PM

    The Lawletter Vol 41 No 9

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

         The South Carolina Supreme Court recently considered a case that provides a wealth of guidance on business valuation questions. Moore v. Moore, 414 S.C. 490, 779 S.E.2d 533 (2015).

         The issue was one that arises often in divorce cases—is the goodwill of a business part of the business's value for purposes of a divorce case? Adopting the majority rule nationwide, the court held that the enterprise goodwill of the business is included, but that the individual goodwill of the owner is not included. Stated differently, the value includes goodwill that is transferable to another owner, but it does not include goodwill that is not transferable and resides in the owner individually.

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    Topics: family law, Brett R. Turner, business valuation, goodwill

    FAMILY LAW: Time Limits on Divorce Hearings

    Posted by Brett R. Turner on Wed, Apr 20, 2016 @ 16:04 PM

    The Lawletter Vol 41 No 4

    Brett Turner, Senior Attorney, National Legal Research Group

         A perennial problem in family law practice is arbitrary judges who dislike family law cases and impose strict time limits upon trials. Appellate courts are aware of this problem, and in extreme cases they have granted relief.

         In Kilnapp v. Kilnapp, 140 So. 3d 1051 (Fla. Dist. Ct. App. 2014), the trial judge set a three-hour limit on the hearing. After only an hour had passed, the trial court abruptly ended the hearing. The wife had presented only one witness, and the husband's counsel had not even finished with direct examination of the husband. The appellate court summarily reversed. "The trial court erred when it denied the husband his basic and fundamental right to due process, specifically the right to be heard." Id. at 1054.

         The husband did not have, of course, a right to be heard at unlimited length. For example, even if the husband honestly wanted an entire week of testimony, the trial court had discretion to impose a reasonable time limit.

         But the time limit imposed in Kilnapp was unreasonable, in two different ways. First, a reasonable time limit should apply equally to both parties. In Kilnapp, the wife was able to present all of her evidence, while the husband was able to present only some of his.

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    Topics: family law, Brett R. Turner, arbitrary cutoff, divorce hearing, time limit

    FAMILY LAW: Constitutionality of Grandparent Visitation Statutes

    Posted by Brett R. Turner on Tue, Jan 19, 2016 @ 13:01 PM

     The Lawletter Vol 40 No 12

    Brett Turner, Senior Attorney, National Legal Research Group

         One of the hardest issues in all of family law is grandparent visitation. In Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court struck down a Washington state statute allowing the court to award grandparent visitation based only upon the best interests of the child, finding that such a broad standard violates the liberty interest of the parents in having custody of their children.

         But Troxel did not decide what the proper standard for grandparent visitation is; it decided only what that standard is not. Case law since Troxel has disagreed substantially as to what grandparents must prove in order to be awarded visitation.

         No state has written more opinions in fewer cases on this issue than Alabama. In Ex parte E.R.G., 73 So. 3d 634 (Ala.2011), a nine-judge court wrote six separate opinions on the subject. The end result was that the court struck down Alabama Code section 30-3-4.1, which allowed the court to award grandparent visitation on a pure best-interests basis.

         The legislature then added the following language to the statute: "If the child is living with one or both biological or adoptive parents, there shall be a rebuttable presumption for purposes of this section that the parent or parents with whom the child is living know what is in the best interests of the child." Ala. Code § 30-3-4.1(d).

         The constitutionality of the modified statute arose recently in Weldon v. Ballow, No. 2140471, 2015 WL 6618983 (Ala. Civ. App. Oct. 30, 2015) (not yet released for publication), in a case in which the child lived with a biological parent, so that the statutory presumption applied. The issue was whether the presumption saved the statute. Answering this question required a five-judge court to write four opinions. But when the votes were tallied, the statute was held unconstitutional for a second time.

         The first opinion, signed by two judges, construed Troxel to provide that grandparent visitation cannot be awarded based on a best-interests-of-the-child standard alone, regardless of the burden of proof. "Under the 2011 amendments," while the burden of proof is reversed when the child is living with a parent, "a court can still award grandparent visitation over the objection of a custodial parent if the court decides that it is in the best interests of the child. The [Grandparent Visitation Act], as amended, continues to invade the fundamental rights of parents to make their own determinations as to the best interests of their children." Id. at *14.

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    Topics: family law, Brett R. Turner, grandparent visitation statutes, constitutionality, best-interests standard

    FAMILY LAW: Delegation of Power to Decide Custody and Visitation

    Posted by Brett R. Turner on Thu, Oct 1, 2015 @ 15:10 PM

    The Lawletter Vol 40 No 8

    Brett Turner, Senior Attorney, National Legal Research Group

         In In re Marriage of Iqbal & Khan, 2014 IL App (2d) 131306, 11 N.E.3d 1, the two parties, of the Islamic faith, signed a separation agreement ("PNA"). The PNA named a prominent member of the local Islamic community as Counselor. It then provided:

         Husband and Wife agree that an unreasonable divorce (without Counselor's express written approval) is a violation and contrary to the purposes and intents of this agreement, and an unreasonable divorce sought by either party will forfeit their rights to custody of the children and any rights conveyed in this agreement. If either party seeks an unreasonable divorce, they hereby agree to surrender full custody rights to the other, and agree to only reasonable visitation rights to the Children.

    Id. ¶ 28, 11 N.E.3d at 10 (quoting PNA).

         The trial court held that the PNA was completely unenforceable, and the appellate court affirmed. To begin with, by providing that a party who sought an "unreasonable divorce" lost custody, and by giving the Counselor exclusive power to define "unreasonable," the PNA delegated to the Counselor the power to determine custody. Such delegation violated public policy:

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    Topics: family law, Brett R. Turner, Islamic separation agreement, unenforceable agreement, public policy violation

    FAMILY LAW: Support Guidelines and Retirement Benefits

    Posted by Brett R. Turner on Mon, Jul 27, 2015 @ 08:07 AM

    The Lawletter Vol 40 No 6

    Brett Turner, Senior Attorney, National Legal Research Group

         All 50 states have now had child support guidelines for more than a decade. Increasing numbers of states are experimenting with spousal support guidelines, especially for temporary support while a divorce case is pending.

         When applying any set of guidelines for spousal or child support, the first step is always to compute the incomes of the parties. Such computation raises a set of tricky issues when retirement benefits are involved.

         In Milinovich v. Womack, 343 P.3d 924 (Ariz. Ct. App. 2015), the father was a retired professional baseball player. His income dropped materially when his playing years ended, and he filed a motion to reduce his child support. To compute the guideline amount of support, the court had to determine the father's income.

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    Topics: family law, Brett R. Turner, retirement benefits, support guidelines

    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: 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

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