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

         Mother and Father married in 1996 and had two children. Mother filed for divorce in 2019, and the divorce was granted in July of 2021. Father was ordered to pay child support.

            In October 2021, three months after the divorce, Father filed to reduce child support, alleging that he had been terminated from his job. He then failed to make his October and November child support payments and was also not in compliance with the property division terms of the decree.

            Father was in the process of selling a piece of real estate, the Carpentersville property, awarded him in the decree. In mid-November, Mother moved the court to order the proceeds from that sale be placed in escrow, with the proceeds used to satisfy Father's child support and other obligations under the decree. The trial court granted the motion to the extent of holding the sale proceeds in escrow, and Father appealed.

Brett Turner—Senior Attorney, National Legal Research Group

            The ongoing COVID-19 crisis is affecting the lives of all Americans in many ways. One of those many ways is the exchange of children under custody and visitation orders.

            This is a very uncertain area of the law, with essentially no court decisions yet available, but several basic points can be noted. First, the mere existence of the crisis, if neither the children nor any parent has actually been exposed to COVID-19, is probably not alone a sufficient basis for noncompliance with any custody or visitation order. Indeed, emergency orders issued by the governor in at least three states—Illinois, Indiana, and Ohio—expressly list travel required by a custody or visitation order as essential for purposes of travel restrictions. These provisions would seem to suggest a policy that mere fear of COVID-19, without any specific evidence of a risk of exposure to the virus, is not alone a sufficient basis to modify an order or excuse noncompliance.

The Lawletter Vol 44 No 4

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

            One of the most common formalities required for family law agreements is that they must be in writing. At common law, premarital agreements were within the statute of frauds. The Uniform Premarital Agreements Act ("UPAA") requires that premarital agreement be both written and signed by both spouses. UPAA §§ 2, 5. Many states, by case law or statute, likewise require that divorce settlement agreements be written.  Amendments to family law agreements must also often be written.

            A generation ago, a writing requirement was easy to construe—the text of the agreement had to appear on paper. But in the 21st century, the world is increasingly paperless. It seems quite likely that the world of family law agreements will join the movement away from paper.

Anne Hemenway—Senior Attorney, National Legal Research Group

            When a spouse places a Global Positioning Systems ("GPS") device in the other spouse's vehicle without consent to monitor that spouse's movements and position around town, the admissibility of the GPS data in the divorce trial is likely to be challenged. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court held that a GPS tracing device is a "search" under the Fourth Amendment to the United States Constitution, and absent a warrant allowing for the device to be used, data from the GPS device will be considered inadmissible.  Further, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the United States Supreme Court held that the Fourth Amendment protections against search and seizure also requires the government to obtain a search warrant before acquiring cell phone data, which the Court analogized to GPS tracking data. The Court recognized that "individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records—which 'hold for many Americans “privacies of life,”’ . . . contravenes that expectation." Id. at 2209-10.

Brett Turner—Senior Attorney, National Legal Research Group

            A good example of a modern permanent alimony case is Sweeney v. Sweeney, 420 S.C. 69, 75, 800 S.E.2d 148, 151 (Ct. App. 2017). The marriage there lasted for 28 years from marriage to filing of the divorce action. The husband had gross income of $34,100 per month, or $409,200 per year.  The wife's gross income was very limited. Sweeney was clearly a permanent alimony case.

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).

The Lawletter Vol 42 No 2

Sandra Thomas, Senior Attorney, National Legal Research Group

      Another case has confirmed the primacy of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") over local jurisdictional rules that conflict with that statutory scheme. The Court of Civil Appeals of Alabama has reversed a trial court order that held the trial court had subject-matter jurisdiction over a child custody petition that was filed in Alabama by the child's father at the time the father filed a petition for divorce from the child's mother. Ex parte Holloway, No. 2150821, 2016 WL 4493653 (Ala. Civ. App. Aug. 26, 2016).

     The parents were married in Alabama in October 2014 and they separated in June 2015. The father filed a complaint for divorce October 23, 2015 that included a request for custody of the parties' minor son, who was born September 20, 2015. The father alleged that the mother had abandoned the marriage and had moved to Mississippi to live with her mother. Alabama law provides: "Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper." Ala. Code § 30-3-1.

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.

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.

    NLRG Senior Attorney Brett R. Turner has an article appearing in the Fall 2016 issue of the Family Advocate, published by the ABA Family Law Section.  Brett R. Turner, Economic Claims Between Former Spouses Outside the Divorce Case, 39 Family Advocate 26 (Fall 2016). 

     The article focuses upon tort action between former spouses outside of the divorce context.  It discusses actions to rescind fraudulent conveyance, actions for common-law fraud, actions for conspiracy and breach of fiduciary duty, and actions for conversion of property awarded to the other spouse.  Other articles in the same issue address other aspects of Domestic Torts.