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:

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.

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.

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.

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.