The Future of Family Law?

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A good family-law attorney approaches a divorce case with rigorous attention to detail, a strong understanding of finance and property issues, and a readiness to deal with quick changes in circumstances. Who could disagree with that?

Perhaps no one, and these matters were thus common ground in a provocative session for students this week, with presentations by Dean Joseph D. Kearney (“10 Things I Learned During My 28 Days as a Divorce Lawyer”), Milwaukee lawyer Thomas St. John ’72 (“5 Things Any Lawyer Should Know Even Before Taking the Case”), and Milwaukee County Circuit Judge Michael J. Dwyer (“3 Things a Law Student Should Know About Family Law”). But, despite a great deal of common ground, the speakers’ views did not seem entirely in accord.

The basis for the discussion was a case that the Dean handled on a pro bono basis a few years ago in Illinois for a high school classmate. The focus of the Dean and Attorney St. John was primarily on litigation points, and there were many similarities in their lists.  Continue reading “The Future of Family Law?”

Marriage Economics

Posted on Categories Family Law5 Comments on Marriage Economics

weddingYesterday’s New York Times reports that there has been something of a reversal of marriage fortunes between men and women.  According to a recent analysis of census data by the Pew Research Center, “Men are increasingly likely to marry wives with more education and income than they have, and the reverse is true for women.”  Although other studies have shown that there continues to be a gender gap favoring men in wages (meaning that women earn, on average, somewhat less than similarly situated men engaged in the same work), it appears that the average wage imbalance in a given marriage is likely to be in the opposite direction.  Trends in the last year have exacerbated this imbalance, since men were far more likely than women to lose their jobs in the recession.  The report also notes that in married couples “wives contribute a growing share of the household income, and a rising share of those couples includes a wife who earns more than her husband.”

It is interesting to speculate on the impact these trends will have on marriage and divorce.  Continue reading “Marriage Economics”

Good Night, Sleep Tight, Don’t Let The Bedbugs Bite

Posted on Categories Family Law, Milwaukee3 Comments on Good Night, Sleep Tight, Don’t Let The Bedbugs Bite

sleeping babyToday’s Milwaukee Journal Sentinel has the latest in a grim series of articles reporting on infants dying while sleeping with adults.    A number of infant deaths in similar circumstances late last year led to City of Milwaukee health officials launching a “safe-sleep” information campaign.  Billboards have been placed throughout the city, and the Health Department website includes information on keeping infants in a safer sleep environment.    Parents are advised to place babies in their own safety-approved cribs or bassinets with no stuffed toys, blankets or bumper pads.  Babies, we are told, should always sleep on their backs to reduce the risk of Sudden Infant Death Syndrome (SIDS).

As a person who has been studying children’s issues for many years, I find a number of things about this campaign to be noteworthy. Continue reading “Good Night, Sleep Tight, Don’t Let The Bedbugs Bite”

Not Quite Children, Not Quite Adults

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Monday’s New York Times reports that individual states and the federal government are currently working on new laws to address the problem of teenage runaways.  A couple of different problems with runaways have received public attention lately, and a fair amount of attention has been focused on teenage prostitution.  According to the Times, there is evidence that increasing numbers of runaway teens are turning to prostitution as the recession makes it difficult for them to obtain other, safer forms of employment.  Kids who are caught engaging in sex trafficking are often arrested and charged, but there is no evidence that this is having any positive effects on the larger problems that left the kids homeless and engaging in prostitution in the first place. 

The new initiatives discussed in the Times article, especially some policy guidelines being drafted by the National Conference of State Legislatures, are a big step in a positive direction.  Continue reading “Not Quite Children, Not Quite Adults”

Barry Bonds’ Contribution to the Growth of American Law

Posted on Categories Family Law, Legal History2 Comments on Barry Bonds’ Contribution to the Growth of American Law

Baseball player Barry Bonds’ problems with perjury and illegal performance enhancing drugs have been well documented, but what is not nearly so well know is his contribution to the law regarding prenuptial agreements, particularly in California.

In 1988, Barry Bonds married Susann “Sun” Margreth Blanco, a native of Sweden, in Las Vegas.  The two had met the previous summer in Montreal while Bonds was playing for the Pittsburgh Pirates and Sun was working as a bartender.  The day before they were married, each signed a prenuptial agreement by which each waived any interest in the earnings of the other during marriage.  The agreement was prepared by Bonds’ lawyers, and Sun was not represented by counsel.  She was also unemployed at the time the agreement was signed.

bonds1In 1994, after six years of marriage and two children, Bonds petitioned for a legal separation, and his wife subsequently requested a dissolution of the marriage on grounds of physical abuse and infidelity (presumably involving Bonds infamous girlfriend, Kimberly Bell).  She also decided to contest the validity of the prenuptial agreement she had signed six years earlier.

During the trial concerning the validity of the agreement, Bonds testified that he told his wife-to-be that he would not marry her unless she agreed to waive any right to his income during their marriage.

He also insisted that his wife understood perfectly well what he was proposing. In contrast, Sun testified that in 1987 and 1988, her English was poor and that she often did not understand what Bonds was talking about.  She also claimed that she did not learn about the agreement until shortly before she was asked to sign it.

The trial judge found Bonds’ testimony more credible and ruled that the agreement was valid.  On appeal, the intermediate appellate court ruled by a split decision that Sun’s lack of legal assistance and the imminence of the wedding made her consent highly questionable, and remanded the case to the trial court with the direction that it needed to give much greater weight to such factors.  The majority made it clear that Bonds had to overcome a strong presumption of invalidity due to the circumstances of this case.  In re Marriage of Bonds, 71 Cal. App. 4th 290, reh. den., 72 Cal. App. 4th 94d (1999).

bonds2Bonds appealed this decision to the Supreme Court of California, which on July 21, 1999, agreed to hear the case.  The following year, in the case styled, In re Marriage of Bonds, 5 P.3d 815 (Cal. 2000), the state’s highest court ruled unanimously that the evidence at trial was sufficient to establish a voluntary waiver on the part of Blanco (or Sun Bonds, as she preferred to be called). Contrary to the holding of the appellate court, the Supreme Court found that the lack of independent counsel was not dispositive, given the lack of evidence of coercion and no real proof of a lack of understanding on the part of the plaintiff.  Consequently, it reinstated the judgment of the trial court.

The decision was handed down on August 21, 2000, a day on which Bonds’ Giants defeated the Florida Marlins 6-0 in San Francisco.  Bonds was in the line-up that day and went one-for-three with a walk and a run scored.  Sun petitioned for a rehearing, but on October 18, after the division champion Giants were eliminated in the National League playoffs by the New York Mets, the State Supreme Court denied this request.  By the date of the final decision, Bonds had arranged to have his marriage to Sun annulled by the Catholic Church and had remarried.  And, at least according to the book Game of Shadows, he had also just finished the second season in which he used anabolic steroids.

From a national perspective, the California Supreme Court’s Bonds decision was just one of several decisions handed down at the end of the twentieth century that appeared to represent a growing acceptance of the legitimacy of prenuptial agreements, which had historically been looked upon with disfavor.  However, not everyone viewed this as a positive development.

bonds-barry-ap-060520Bonds’ “pre-nup” case was followed with great interest in California, and public sentiment was clearly on the side of his ex-wife.  (Bonds’ growing reputation for moodiness and surliness in his dealing with the baseball public hardly helped here.)  In the next session of the California legislature, State Sen. Sheila Kuehl (D-Santa Monica and in another life, the actress who played the zany Zelda Gilroy on the 1960’s sitcom, The Many Loves of Dobie Gillis) introduced a bill that provided that for prenuptial agreements to be valid, both parties to the agreement had to be represented by their own lawyers.

Kuehl’s act also required that parties to such an agreement be given at least seven days to consider the proposal and that the agreement be explained to the partner in his or her native language (which in Sun’s case would have been Swedish).  Kuehl made no effort to deny that her bill was inspired by the outcome of the Bonds case, and in fact cited it repeatedly to garner support for the proposed act.  The bill easily passed both houses of the California legislature and was signed into law on September 12, 2001, by Gov. Gray Davis.  In its story reporting the passage of the bill the following day, the Los Angeles Times described it “as legislation sparked by the bitter 1994 divorce of baseball slugger Barry Bonds and the growing popularity of such accords.”  The statute is currently codified at Cal. Fam. Code §1615 (2009).

bonds 3Although the legislative change came too late to help Sun Bonds, the ex-wife did receive some vindication on October 9, 2001, when a California appellate court in San Francisco ruled that the pre-nuptial agreement notwithstanding, Sun was still entitled to half the value of the two homes and an undeveloped lot that Bonds had purchased during their marriage. According to the San Francisco Chronicle, her interest in the three parcels was at least $1.5 million. After this decision, Bonds reportedly settled with his ex-wife for an amount in excess of the Chronicle’s estimate in exchange for her promise to stop suing him.

The October 9, 2001 ruling came only two days after the PED-fueled slugger blasted his seventy-third home run of the 2001 season, which remains, albeit shrouded in scandal, the all-time record.  But thanks to Barry Bonds, in California it is now far more difficult than it used to be to coerce a vulnerable spouse-to-be into signing a prenuptial agreement.  Also, since 2001, a growing number of jurisdictions have adopted a similar statute, or, as it might be called, “the Barry Bonds rule.”

Some Different Thoughts on the Iowa Supreme Court Marriage Decision

Posted on Categories Constitutional Interpretation, Family Law1 Comment on Some Different Thoughts on the Iowa Supreme Court Marriage Decision

I wanted to respond to Mr. Samis’s thoughtful post on the Iowa marriage case and thought it’d be easier to do so by a separate post than by a comment. It is hard to engage such a complicated and emotionally charged question within the confines of a blog. Although I have generally found both my allies and opponents on the question to be gracious and respectful, I am also aware that this is an issue that can degenerate into dueling allegations of bad faith — of, from one side, accusations of “hate” and “prejudice” and, from the other, charges of “licentiousness” and “irreligion.” I also know that to raise the conservative position in the academy is like launching an offensive deep behind enemy lines. You may soon find yourself surrounded.

But I am finishing (with Daniel Suhr ’08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive. Continue reading “Some Different Thoughts on the Iowa Supreme Court Marriage Decision”

Favorite Wisconsin Cases to Teach: State v. Oakley

Posted on Categories Criminal Law & Process, Family Law, Wisconsin Criminal Law & Process, Wisconsin Supreme Court1 Comment on Favorite Wisconsin Cases to Teach: State v. Oakley

It’s unusual for a law review in one state to devote an issue to a decision from the supreme court of another state, but that’s exactly what happened when the Western New England Law Review published a 2004 symposium issue concerning State v. Oakley, 629 N.W.2d 200 (Wis. 2001).  I personally welcome the opportunity to teach and, in the process, critique the decision.

The case involved David Oakley, who fathered nine children with four women and was impossibly behind on his child support payments.  Manitowoc County Circuit Court Judge Fred Hazlewood placed Oakley on probation following his conviction for refusing to support his children.  However, the probation was conditioned on Oakley having no more children until he could support the ones he already had.  A four-judge majority of the Wisconsin Supreme Court confirmed Hazlewood’s order. 

Commentators predictably discussed the decision’s ramifications for the right to procreate and the larger right to privacy.  Continue reading “Favorite Wisconsin Cases to Teach: State v. Oakley”

Public Legal Services in Times of Distress

Posted on Categories Family Law, Marquette Law School, Milwaukee1 Comment on Public Legal Services in Times of Distress

While the nation is not (yet?) in an economic depression, our “worsening recession” has catastrophically affected thousands of area families across the social spectrum. For those who were desperately poor a year ago, not much has changed except perhaps for having even less reason to hope — dreams of government bailouts are duly noted. Joining the ranks of the forlorn are middle-class types who are facing foreclosures of their homes, job losses, and attendant legal problems. (Economic distress begets a host of family-related issues, to take just one example). For both the old and the newly poor, to use that term loosely, one of their many problems is how to confront complicated legal problems when they cannot afford legal counsel. In sum, this is a time of increasing demand for legal services by the very people who are least able to afford it. So what, if anything, is being done about it?

It is a point of pride for me to be involved in two institutions that are well aware of these gaps and are doing what they can with limited resources to assist: Marquette Law School and the Legal Aid Society of Milwaukee. Both the Law School and the Legal Aid Society confronted these issues long before the current downturn. Moreover, their focus has not been on criminal representation, important as it is, but on the unmet needs of indigents faced with a raft of traditionally civil legal problems. My purpose is to familiarize those who may not be aware of these efforts as well as to underscore the affinity between these institutions. Continue reading “Public Legal Services in Times of Distress”

Halloween Frights

Posted on Categories Criminal Law & Process, Family Law2 Comments on Halloween Frights

It’s Halloween, so children have dreams of scaring adults, and adults have nightmares about other adults harming children. Lawmakers in Missouri this year have been concerned about a particular kind of harm: sexual offenses against children. They passed a state law that prohibited convicted sexual offenders from having any “Halloween-related contact with children,” and required the offenders to remain at their homes on Halloween night between the trick-or-treat hours of 5 p.m. to 10:30 p.m. unless they have “just cause” for leaving. The law did not define either “just cause” or “Halloween-related contact.” The law also required sexual offenders to turn off any porch lights and to post signs stating “no candy or treats at this residence.”

On Monday a federal judge issued an order blocking most parts of the statute as unclear, leaving in place only the provisions requiring that porch lights be extinguished and that there be a sign announcing that no candy would be given out at the offenders’ residences. Opponents of the law had argued that it was unclear; for example, did it prohibit contact between the sexual offenders and their own children on Halloween even if such contact would not be prohibited on other days? Would a convicted sexual offender have to avoid the decoration section of stores if children were there picking out their pumpkins? Opponents also argued that the law was an unfair double punishment for a crime for which a sentence had already been served.

Did the court make the right decision? I would say yes.

Continue reading “Halloween Frights”

Love, Loss, and Palimony

Posted on Categories Family Law3 Comments on Love, Loss, and Palimony

Today, Law.com reports on a New Jersey appellate court’s decision in Bayne v. Johnson, which involved a palimony claim by a woman who had been a party in a bizarre triangular relationship for almost twenty years.  According to the article, Fiona Bayne, then a 25-year-old flight attendant with British Airways, began a romance with 41-year-old Earl Johnson in 1981. Earl Johnson was married at that time to Carolyn Johnson, a wealthy 61-year-old woman with a string of six failed marriages.  (Earl had three previous marriages when he married Carolyn.)  The marriage was reportedly one of convenience entered into by Carolyn in 1978 so that her three estranged children would not be able to take control of her financial affairs.  As the beneficiary of a trust valued at $11 million, Carolyn had plenty to lose financially if her children had her declared incompetent and took over control of her money as she feared.  Although the couple reportedly agreed to pursue separate lives, Carolyn supported Earl in a lavish lifestyle through the years.

Bayne, who was living in an apartment in the Bahamas provided by Earl (and paid for with his wife’s money), did not know about Earl’s marriage for the first few years of the relationship.  Once she found out, however, she remained in the relationship.  Bayne, Earl, and Carolyn moved to various locations to pursue Earl’s business ventures with Carolyn bankrolling both the business ventures and the lavish lifestyle enjoyed by the three.   Continue reading “Love, Loss, and Palimony”

Grieving Loved Ones at War Over a Pension

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It is sad when a family member dies, and even sadder when the aftermath of the death brings feuding and court actions between loved ones.  The parents and fiancée of Kevin Prior, a firefighter killed in the 9/11 attack on the World Trade Center, are embroiled in such a dispute over the $37,600 a year in benefits payable to survivors under Mr. Prior’s pension plan. A 2003 New York State law allowed “domestic partners,” as well as parents and spouses, to collect the pension benefits of firefighters and policemen killed on 9/11.  The definition of domestic partner is someone who showed either “unilateral dependence or mutual interdependence” with the deceased based upon a court’s analysis of any relevant factors such as living arrangements, budgeting, length and seriousness of the relationship, and intent to marry.  In the case of Mr. Prior’s survivors, the two sides offer completely different versions of the reality that constituted Mr. Prior’s personal relationships.

The fiancée, Doreen Noone, claims that the two lived together for eight months during the 1990s and that Mr. Prior paid most of her bills.  She also claims that she spent four or five nights a week with him in his parents’ basement, where he later moved, returning to her own parents’ house only when he was on duty at the firehouse.  Prior’s parent flatly deny her account, insisting that none of their boys were allowed to “have girls overnight” in the house.  Although they concede that their son had paid approximately $7,000 of Noone’s bills over a three-year period, the Priors contend that the couple did not share budgeting.  “All that happened was they had plans for a wedding, and those plans were interrupted,” they say.  Mr. Prior’s best friend, Sgt. Edward Wheeler (who is now married to Ms. Noone), supports Ms. Noone’s version of the relationship.

Continue reading “Grieving Loved Ones at War Over a Pension”

The Culpability of Passive Abuse

Posted on Categories Criminal Law & Process, Family Law, Wisconsin Criminal Law & Process5 Comments on The Culpability of Passive Abuse

Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system.  What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather.  Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison.  Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.

As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances.  Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent.  In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room.  Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing.  In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.

Why the difference in outcomes?  Continue reading “The Culpability of Passive Abuse”