Spouses, Income, Alimony

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Category: Family Law, Public
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alimonyThere are few things in family law more controversial than alimony (also referred to as spousal maintenance), which is defined as a series of support payments made by one former spouse to another. Traditionally, alimony may be awarded when one spouse has need of financial support to maintain the marital standard of living, the other spouse has the ability to pay it, and the award meets certain criteria of fairness (e.g. it should not plunge the paying spouse into poverty or excuse the payee spouse from engaging in paid employment). Historically, alimony was paid by ex-husbands to their ex-wives, but today’s laws make it plain that either a man or a woman may be the payor. Spouses who have stayed home or reduced paid employment to raise children may claim that their activities at home made success at work more possible for the other spouse to succeed in the workplace, and that this should result in a greater share of the property division or an alimony award to either compensate the stay-at-home spouse for the sacrificed opportunities (restitution) or enable him or her to re-tool for a job with good pay (rehabilitation). Indeed, statutes like Wisconsin’s §767.56 direct judges to consider all of these factors (and others) in determining whether to award alimony to a divorcing spouse.

Nonetheless, alimony has never been common and has become less so: the few empirical studies that have been done show that only a small minority of divorcing spouses are awarded alimony of any amount and for any duration. The reasons for the always-low and still-declining numbers of alimony recipients are many and varied, and a full discussion of all of the theories requires more than a blog post.

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Brutality Touches Down at Home

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Category: Criminal Law & Process, Family Law, Public, Sports & Law
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imagesVR6YYD65Anyone living in the United States who has watched TV in the last two weeks is undoubtedly aware that the NFL is in the midst of a storm of bad publicity. First, we saw the chilling videotape of Baltimore Ravens running back Ray Rice delivering a punch to the head that knocked out his then-fiancée (now wife) Janay Palmer, and then roughly dragging her off the elevator and dropping her like a sack of potatoes on the floor. Only days later, the Minnesota Vikings found themselves in the midst of a similar scandal when their star running back Adrian Peterson was charged with felony child abuse in Texas, where it is alleged he beat his 4-year-old son with a “switch.” Perhaps learning from the debacle that ensued when NFL Commissioner Roger Goodell originally imposed a meagre two-game suspension on Rice for his misdeeds, the Minnesota Vikings have suspended Peterson from games and team activities indefinitely, although since he continues to draw his $11 million dollar salary, he is hardly a sympathetic character at the moment. Meanwhile, the incidents involving NFL player violence against their partners and children keep surfacing.

A lot has already been said and written about these cases, and much of the discussion is thoughtful and educational. Numerous commenters, including New York Times columnist Michael Powell, have pointed out that we should not be so shocked that players who are rewarded for brutality on the football field revert to violent behavior at home. He makes an excellent point. After all, the NFL is not the only place where people who use force, sometimes brutal force, in their jobs have a hard time turning it off at home: the military and various police forces have faced similar issues. Moreover, we live in a society with a high tolerance for violence, at least violence of a recreational sort—as evidenced by numerous TV shows, video games and movies. Read more »

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Wisconsin Assembly Responds to “Child Exchange”

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Category: Family Law, Public, Wisconsin Law & Legal System
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Adoption is intended to create lifelong parent-child relationships, and irrevocable parental obligations, no matter the challenges the newly-formed family might face in integrating an adopted son or daughter. However, in a tragic number of cases, parents decide not to keep the adopted child. Perhaps the highest-profile failed adoption in recent years was that of Artyem Savaliev/Justin Hansen, a seven year old Russian adoptee who in 2010 was put on a flight to Moscow by his Tennessee adoptive mother with a note explaining why she no longer wanted him. The case sparked concern and outrage in both Russia and the US.

Post-adoption family breakdowns are occurring in other less visible ways, including in Wisconsin. Last fall, Reuters published a five-part expose on “private re-homing,” a euphemistic term for advertising one’s unwanted adopted children on the Internet in order to find them a new home. This allows the parents of international and domestic adoptees to effectively, and beyond the supervision of child safety networks, pass off their parental obligations to strangers. Read more »

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The Gender Binary

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Category: Constitutional Law, Family Law, Human Rights, Public
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Gender_signsWestern society has traditionally assumed a gender binary, classifying sex and gender as “male” or “female.” This binary is reflected in many aspects of our legal system. However in recent decades, the gender binary, and related assumptions about the fixed nature and unambiguous meaning of sex and gender, has been challenged by transsexual, transgendered and intersex people seeking legal recognition of their sex and/or gender identity and protection from discrimination based thereon.

In the US, the majority of states now permit alteration of sex on birth certificates for transsexual persons (whether sex-reassignment surgery is required varies from state to state), although a handful of states still take a “fixed from birth” approach to legal sex. The legal landscape in relation to marriage for transsexual people is similarly inconsistent and in flux.

Challenging the fixed nature of sex/gender is an important development, but in most jurisdictions, the gender binary has been kept legally intact. More recently, some jurisdictions are grappling with the question of “other-gendered” and “other-sexed” persons (the terms are not synonymous – the Norrie case, below, was framed as an issue of biological sex, not gender identity.) The issue has come to a head in Australia, where special leave to appeal to the High Court has been granted in a case involving a person who wishes to be recognized as legally genderless. Read more »

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Desperately Seeking Re-Homing

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Child adoptions in the United States may be legally arranged through state or private agencies, or through individual contacts between would-be adoptive parents and birth mothers. In any of these situations, state laws require court hearings and extensive psychological screening of the child and the prospective adoptive parents to determine (among other things) whether the child is in fact available for adoption and whether the prospective parents are safe, competent, and suitable for that child. Once an adoption order is entered, the child is the child of the adoptive parents for all purposes, just as if she had been born to them.

What would happen if such safeguards were not in place? Unfortunately, we now have a glimpse of what might happen to children in an unregulated adoption market, and it is chilling. A Reuters investigation, published in part by the Milwaukee Journal-Sentinel (to read part one,  click here ), reveals that for at least the past 5 years, there has been a thriving Internet market in private re-homing of previously adopted children. Adopted children with severe physical or emotional problems that overwhelmed their adoptive parents were sometimes placed with strangers who, via Internet chat groups, promised to give the kids a new home. However, without those time-consuming home visits, interviews and psychological evaluations, the parents placing the children had no real clue what would happen to their kids once the new “parents” took over. Nor did some of them seem to care, so desperate were they to unload those troubled adoptees.

Let me say here that many of these kids were indeed very troubled by any standard. Most (but not all) were adopted from foreign countries such as Russia or China, where they may have suffered from mistreatment by their birth parents or neglect in overcrowded orphanages. Some of them had violent tendencies and attacked their new parents, new siblings, or new pets. Some engaged in property destruction, including disturbing behaviors like smearing feces on walls, sexual acting out, or substance abuse. Some may have reactive attachment disorder, which is the inability to form normal emotional attachments to other people, thought to be caused by trauma and extreme emotional deprivation early in life. The adoption agencies washed their hands of the children upon completion of the legal adoption and provided no remedial services. Most of the parents earn too much to qualify for poverty-based programs, and there aren’t enough of those anyway. Private counseling and treatment costs a king’s ransom. It is not hard to see why the parents became desperate, and turned (as many people do) to the Internet for factual information and emotional support. Read more »

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The Catch-22 of Child Care

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Category: Family Law, Public
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ChildcareA recent article in the New York Times details the high cost of child care in the United States. Writer Alissa Quart cites research by sociologist Joya Misra, who argues that women with children are not approaching pay equity with men largely because working may not make economic sense given the high cost of child care. Yet if women drop out of the job market when their children are young, re-entering the job market may entail reduced pay and job responsibilities. A classic Catch-22. There has been much discussion in the past about how difficult it is for poor and working class women to obtain reliable, affordable child care, but this new article focuses on the fact that middle and even upper middle class women are also being priced out of the market for safe, high-quality child care. The author interviews several women in good jobs who struggle to pay for decent child care while still retaining enough income to pay for rent and other necessities. While it may be difficult to feel sorry for the plight of working mothers who are earning $40,000 per year or more, the take-away question from the article is this: if such educated and relatively privileged women cannot easily afford decent child care, what are people of average means supposed to do? The author concludes that the United States needs the same kind of high quality, government-subsidized day care that many other developed countries offer.

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Enforcing Surrogacy Agreements in Wisconsin

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Category: Family Law, Public, Wisconsin Supreme Court
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scan2Let’s say you are part of a married couple in Wisconsin. Due to a leukemia diagnosis and treatment for that disease, your eggs are no longer viable. Doctors agree that you are currently in good health and the disease is “a nonissue,” but your husband and you want children and you cannot bear them. A friend has offered to help you out. This woman has been your friend since grade school; you’ve each participated in the other’s wedding.  You and your husband are godparents to her youngest daughter. Your friend and her husband have five children of their own and have said they are done expanding their family. Her husband even had a vasectomy. Twice in four years she has offered to carry and bear a child for you.  Finally, you agree.

You and your husband visit a lawyer, and your friend and her husband visit a different lawyer.  The gist of the arrangement is that your friend will be artificially inseminated with your husband’s sperm. She will carry and bear the child, but she agrees that you and your husband alone would raise the child and she agrees to terminate her parental rights to allow you to adopt the child.  She would still be able to see the child; after all, you have long been friends and you plan to continue to see each other through social visits. You’re a bit concerned, though, that your friend may have difficulty giving up a child to whom she has biological ties, but she assures you she can do it. Your lawyers create numerous drafts of your agreement and each revises these drafts until finally all of you agree that what is written accurately reflects your understanding of the arrangement.  You all sign this agreement in November.  By this time, your friend is already almost five months’ pregnant.  She is due the following March.

After all of you sign the agreement, your relationship with your friend crumbles, and before the child is born your friend informs you that she will no longer terminate her parental rights to the child, as she had agreed.  Furthermore, she wants to have custody of the child.  In March, she gives birth to the baby.

Now what? Read more »

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Adopting Veronica

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Category: Family Law, Federal Indian Law, Public
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Recently I wrote about the U.S. Supreme Court decision in which the Court declared that a Native American father was not covered by the Indian Child Welfare Act’s procedures for TPR because he had abandoned the child before her birth, and the Court stated that ICWA only protects existing families and their relationships. SCOTUS remanded the case to the South Carolina courts to decide the future custody of the child. Last week, the South Carolina Supreme Court found that the couple seeking to adopt Baby Girl – named Veronica – was the only party properly seeking her adoption, and ordered the Family Court to finalize the adoption.

So what happens now? It appears that Veronica will be transferred almost immediately, which is somewhat unusual. Normally, a court would hold a hearing to determine the best interests of the child, and might gradually re-introduce the child to her adoptive parents since, after two years in Oklahoma with her birth father, little Veronica might not feel comfortable moving back into the Capobianco home in South Carolina. In addition, under so-called “grandparent visitation” statutes, the birth father might be awarded some visitation rights. But here, where the adoptive parents and the biological father have fought bitterly for almost Veronica’s whole life (and where they live half a continent away from each other), shared custody might not be a viable option. Read more »

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Measuring Child Abuse Incidence

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Boy with Black Eye Hugging Teddy Bear --- Image by © Guntmar Fritz/zefa/CorbisProbably you are familiar with some version of the old philosophical riddle “If a tree falls in the forest and there is no one there to hear it, is there still a sound?”  Today’s question is similar: “If a child is maltreated but the maltreatment is not reported to authorities, does it still count as child maltreatment?”

I do not mean to be flip.

One of the perennial controversies in child protection circles is how high the rate of child maltreatment actually is, and the answer is never straightforward.  It depends on how we define abuse and neglect (physical, emotional and sexual), how we measure it (Third party reports? Self-reports by victims or perpetrators? Arrests? Convictions?), and whom we think it affects (Poor people? Addicts? Members of certain minority groups? Everyone?)  A lot rides on the answers to these questions, from public funding to public attention to the issue, and the answers often vary from time to time and place to place.

There are, however, some areas of agreement.  Read more »

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Adoption and the Indian Child Welfare Act

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Category: Family Law, Public
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Although major cases involving gay marriage have grabbed most of the headlines in recent weeks, the Supreme Court of the United States handed down yet another important family law case at the end of this year’s term. In Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013), the Court held in a 5-4 decision that Sections 1912(d) and 1912(f) of the Indian Child Welfare Act do not apply in situations where a parent has never had custody of his child. This reversed a South Carolina Supreme Court decision and remanded an already protracted adoption and custody dispute for still more proceedings in state court.

The facts of the case are mostly undisputed. Baby Girl’s parents, who lived about four hours away from each other, became engaged in December 2008. About a month later, Birth Mother (who is “predominantly Hispanic”) informed Birth Father (a member of the Cherokee Nation) that she was pregnant. The relationship went downhill thereafter, apparently at least partly because the couple differed over what to do next: Birth Father wanted to move up the wedding and refused to provide financial support until after the marriage while Birth Mother did not agree to this and broke off the engagement in May,2009. In June of that year, Birth Mother sent a text message to Birth Father, asking if he preferred relinquishing his parental rights or paying child support, and he texted back that he would rather give up his rights. It is undisputed that Birth Father provided no financial or other support to the mother or baby during the pregnancy or during the four months after Baby Girl was born. Read more »

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(Marriage) Equality and the Popularity Paradox

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Family Law, Federalism, Public
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=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition. Read more »

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SCOTUS Strikes Down DOMA

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Category: Constitutional Interpretation, Constitutional Law, Family Law, Federalism, Public
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Just this morning, the United States Supreme Court released its opinion in United States v. Windsor, the case that challenged the constitutionality of the federal Defense of Marriage Act (DOMA).  The Court declared DOMA unconstitutional in a 5-4 vote.  More to follow.

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