Saturday, June 27, 2015

SCOTUS rules on Marriage Equality: the tl;dr version

The U.S. Supreme Court legalized same-sex marriage in all 50 states today in Obergefell v. Hodges, a 103 page decision which we read so you don't have to.  You should, but seriously, most of you probably won't.  Many people will just read that headline and know that there has been an important change in the status of legal relationships in the U.S.  Both the majority and dissents agree on one thing, this is a significant and far-reaching decision.

For a good overview of the decision itself and the legal impact, visit our friend's blog over at Finn & Eaton: Obergefell v. Hodges: Supreme Court Rules on Same-Sex Marriage, Part 2.

For now we're posting the tl;dr version of the majority and dissenting opinions:

Majority Opinion written by Justice Kennedy and joined by Ginsburg, Breyer, Sotomayor and Kagan

tl;dr: Marriage is a fundamental right under 14th amendment due process and extends to same-sex couples because there is no rationale to deny benefits based on the societal reasons for promoting marriage.  This was not based on a typical equal protection analysis, but rather focused on the nature of marriage and why it's important in today's society and therefore represents an inalienable liberty.

Justice Roberts' dissent joined by Scalia and Thomas

tl;dr: Extending due process rights to marriage = judicial law-making because the history of marriage is clear and the legislative process was doing just fine.  Criticizes the majority for ignoring typical equal protection analysis.

Justice Scalia's dissent joined by Thomas

tl;dr: Scalia really wants you to know that he agrees with Roberts but wants to drop the pretense that he "respectfully dissents".  Also, Californians aren't real westerners and hippies have more fun (seriously, he said that).

Justice Thomas' dissent joined by Scalia

tl;dr: You think you know what "liberty" is? Well, do I have an irrelevant history lesson for you.  It basically involves proving that liberty and dignity can't be given to you by the government so people shouldn't care if the government endorses slavery or traditional marriage.  Change comes from within, man, so don't look to them for help. 

Justice Alito's dissent joined by Scalia and Thomas

tl;dr: Same sex marriage might have dire consequences... none of which he's willing to describe in detail other than to imply that religious freedom and democracy itself will be damaged by this decision.  


Friday, May 29, 2015

3 Prenup Drafting Tips from the Appeals Court: Pisano v. Pisano

The Appeals Court ruled, in Pisano v. Pisano, on numerous issues involving a bifurcated trial, a prenuptial agreement, temporary alimony and family loans.  The primary issues in the case all could have been prevented by inclusion of clear provisions in the Prenuptial Agreement.  This is not a criticism of the drafters, because in many instances the soon to be married couple don't want to deal with these types of specifics.  However, this case demonstrates the importance of clear and thoughtful decision-making and drafting when creating a Prenuptial Agreement.

1. Trial Judge's determination that the Prenuptial Agreement excludes income derived from separate assets from consideration of alimony - UPHELD.

While the prenup did not explicitly say "income from separate assets is excluded from the calculation of alimony" as clearly as it could have, the appeals court upheld this decision finding that the language of the prenup clearly intended to exclude income from separate assets from being divided.  More clear prenup drafting on the issue of "income from separate assets" could have avoided the need for an appeal on this issue.

Also of note here, the Appeals Court points out that the "modification of rights under G. L. c. 208, § 34, does not, in the circumstances, act as an 'unknowing waiver' of the husband's alimony rights."  In other words, the Alimony Reform Act does not automatically invalidate prenup limitations on alimony just because the law changed.

2. Order for Husband to reimburse temporary alimony paid from separate assets. - OVERTURNED

The Husband had requested as a temporary order of $12,000 per month in alimony to be paid from the Wife to him, and the Wife submitted a more modest proposed order of $1,500 per month.  The Judge's order was $2,000 per month and $32,000 total was paid before the alimony was suspended.  The Appeals Court did not agree that the payment of temporary alimony unjustly enriched the Husband, especially since the Wife had made a similar proposal rather than arguing that alimony was excluded completely due to the prenuptial agreement.

While the Wife, in hindsight, probably wishes she had forced the issue at temporary orders more, I'm not sure that would have really made a difference.  The SJC has already ruled that temporary alimony has a different purpose and nature than a final order of alimony.  This decision is consistent with that earlier ruling, regardless of how the court got there.

Also of note here, the Appeals Court points out that the prenup doesn't mention "temporary alimony."  Since the Court's are treating this as essentially a different category of alimony, prenuptial agreements should address temporary alimony specifically or take the risk that it's considered separately.

3. Order for Wife to be solely responsible for a $100,000 liability created during the marriage. - UPHELD

The Wife borrowed funds during the marriage to pay what she termed "legitimate familial obligations."  The Husband indicated the possibility of her obtaining those funds from other sources, and claimed to not know she was borrowing the funds.  Based partially on how the funds were spent (to support adult children of the wife's previous husband), the lower court agreed with the Husband.  The Appeals court found no abuse of discretion in this determination.

Also of note, here, the Appeals Court points out that the prenup "contains no specific provision concerning the payment of marital liabilities..."  This is another area where a clear prenup provision on the issue of the marital debt could have avoided significant legal fees to fight the issue.

For mediation or representation of Prenuptial Agreements contact Attorney Kelsey for a consultation.


Tuesday, May 26, 2015

SJC Case Summary: Sperm Donor is not a Legal Parent entitled to Notice of Adoption

Guest Post by Beth Aarons, a Mediator and Collaboratively trained attorney who is of counsel to Skylark Law & Mediation, PC and who also has her own practice in Newtonville.  Beth is available for consultation on adoptions, like the one discussed below:

In a recent slip opinion Adoption of a Minor, SJC-11797, the Massachusetts Supreme Judicial Court (SJC) determined that a known sperm donor of a child born to a married same-sex couple is not a legal parent of the child who would be entitled to notice of the child’s adoption.

J.S. and V.K., two women legally married to each other, conceived a child through artificial insemination with a known sperm donor.  The child’s birth certificate names J.S. and V.K. as the legal parents and to protect their rights they sought to jointly adopt their son to ensure equal recognition of their parentage outside of Massachusetts.  The Probate and Family Court declined to allow the adoption to proceed absent legal notice to the sperm donor, whose identity was known to the petitioners.

The SJC notes in its discussion that the notice requirements for an adoption are statutory, and the plain language of the statute, G.L. c. 210, §2, 4 provides that notice must be given only to those whose consent  must be obtained, which includes that of “the child to be adopted, if above the age of twelve; of the child’s spouse, if any; of the lawful parents, who may be previous adoptive parents, or surviving parent; or of the mother only if the child was born out of wedlock and not previously adopted.”  In this particular case, the only statutory category the sperm donor could possibly fall into is that of a “lawful parent,” and the lower Court had already found that J.S. and V.K. were the child’s lawful parents.

Other parts of the SJC’s analysis included confirmation that the mere fact of donation of genetic material towards another individual’s conception of a child does not in and of itself create parental rights and responsibilities in the donor.  The donor would need to take additional proactive measures to have himself or herself adjudicated the legal parent of the resulting child to establish legal parentage, as well as show a substantial parent-child relationship and intent to become established as a legal parent of the resulting child.

In the absence of the known sperm donor legally establishing any parental rights to the child prior to the time of the adoption petition, the mere fact that he could potentially claim parental rights in the future does not entitle him to notice as a legal parent.  He had clearly donated sperm with the intent of J.S. and V.K. becoming the legal parents of any resulting child.

As long as other states continue refusing to recognize the parent-child relationship of same-sex couples and their children, same-sex couples will continue to have to adopt their own children to ensure their parental rights are recognized in other jurisdictions.  This case helps clarify the notice requirements and alleviates some of the administrative burden for the adoption proceedings by not requiring same-sex married couples in Massachusetts to notify the known sperm donor.

This case demonstrates just one way in which defining legal parentage can be complicated.  Look for our upcoming blog series expanding on the many ways that legal parentage can be defined, including a guest post from Joyce Kauffman and Patience Crozier exploring Co-parent Adoption and the impact of the Adoption of a Minor case discussed above.



Thursday, May 21, 2015

The KISS Principle and Vine: Explaining our Work in 6 Seconds

In yesterday's post we talked about the KISS principle and the value of simple explanations.  In keeping with this theme, below are four Vine videos that explain how we encourage people to resolve conflict outside of court.  Vine is a video app that has a 6 second limit, so we have to keep it simple:

Family Conflict Resolution explained in 6 seconds:


Court Resolution explained in 6 seconds:


Mediation explained in 6 seconds:


Collaborative Law explained in 6 seconds:


If you want to keep up with other videos we post on vine in the future follow us here.


Wednesday, May 20, 2015

Settling Conflict with the KISS Principle in 5 Simple Steps

There is a design principle in engineering that was made popular by the U.S. Navy in the sixties called "Keep It Simple, Stupid" or KISS for short.  The KISS principle is about valuing simplicity in design in order to make things less likely to break and easier to fix when they do break.  As a fan of this principle, I was very impressed with Rackham Karlsson's recent blog post: Collaborative Divorce in the Simplest Terms Possible in which he does just that, explains Collaborative Divorce as simply as possible.

Rackham's post has inspired me to try and explain the work I do in the simplest terms possible using the KISS principle and the Up-Goer Five Text Editor, a site that forces you to explain an idea using only the 1000 most used words in the English language.

Here is a typical explanation of what I do:
In my work I encourage clients to settle disputes outside of court, whether through collaborative law, mediation, or other other out-of-court processes, by using interest-based negotiation techniques to resolve conflict. 
See the problem?  What the heck is interest-based negotiation?  I have over-lawyered the description of my own job without even realizing it!

So here is my new description trying to keep it simple:
There are many situations where people find themselves in a fight.  That fight could be about their work or their home life, but either way it makes their life worse.  Many people need help to end the fight.  In my work, I help people explain what they are fighting about, by learning what they want and why they want it.  When they can understand the other person's "why" we can usually end the fight with both people getting "what" they need. 
I do this using five important steps:
Step 1: Decide on how to talk (and with how many people helping).
Step 2: Share what each side knows.
Step 3: Share what each side wants and why.
Step 4: Come up with many ideas
Step 5: Decide on the best idea for both people.
If even one step is missed, the fight usually continues, but when people think through all of these steps they are usually happy with the end of the fight.
Can you explain what you do using only the 1,000 most common words?  I dare you to try it here, and post your answer in the comments section!



Tuesday, May 12, 2015

Alimony: You get what you Need!

In Reed v. Reed, a recent unpublished (Rule 1:28) decision, the Appeals Court provided a summary of the current definition of need in Massachusetts.  Alimony is defined in the Alimony Reform Act as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order."  This means that need is one of the three main components of alimony and when it comes to calculating alimony:
Need "is not based on the minimum life necessities of the spouse, but rather is measured by 'the amount necessary to support a spouse in a manner consistent with the marital life-style.'" Reed quoting Zaleski v. Zaleski
For general term alimony, the most typically awarded type of alimony, the statute also limits the amount of alimony to "generally not exceed the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes established at the time of the order being issued."(emphasis added)  In Reed, the Appeals Court points out the importance of that "or".

The trial Judge, in Reed, used the differential formula (though apparently did the math wrong), and the husband argued that the wife's "need" was actually lower.  The Appeals Court did not agree, and also indicated that "the statute plainly allows a judge to base the alimony award on need OR the income differential formula." (four types of emphasis added)


In this graph that would mean the trial Judge has discretion to award anything in the purple area up through the dark blue line, so long as the payor has an ability to pay.  But what if "need" exceeds the differential formula?  Can the Judge award a figure in the blue section of the graph above?  If "need" exceeds the differential formula is the cap higher?  

According to the Appeals Court in Reed, and despite the fact that this answer was not necessary for the decision in this case, the Court answered YES:  "A judge has discretion to exceed the thirty-five percent benchmark on the basis of the parties' marital spending patterns."

While Rule 1:28 decisions are not binding precedent, the Appeals Court has sent a clear message regarding their interpretation of the SJC's prior decisions on alimony.  Alimony recipients might not get what they want, but they will likely get what they need.



Friday, April 17, 2015

How are Mediators similar to Robin Hood?

Robin shoots with sir Guy
by Louis Rhead 1912
Mediation, as a service option, has grown significantly over the last 30 years.  This is one of the topics of an upcoming article in the ABA's Dispute Resolution Magazine for which I was interviewed.  We discussed how it is easier for practitioners to be trained and for clients to find mediators today than it used to be.  However, there is still one place where mediation continues to lag behind resolution of disputes through court litigation: the price.

Lower cost is often a motivating factor for people seeking to resolve disputes through mediation.  Because less time (and therefore money) is spent on court dates, discovery and positional negotiation, the financial cost of mediation is often less than litigation.  For practitioners this means that we make less on a mediation case than a litigation case, and in order to succeed, mediators often have to be better at the practice of business and marketing than litigators.  To make the same amount of money we need to have more cases.  While many mediators say that they would like to be full time peacemakers, many keep a litigation practice to "pay the bills."

Robin Hood, of English folklore, was an outlaw who took from the rich to give to the poor, and this model of legal practice is essentially the same.  While I'm not equating what we do to stealing from the rich, mediators settle matters outside the legal system and many rely on their higher net fees from litigation clients to fund their mediation practice.

Like Robin Hood's gifts to the poor, this model benefits the mediation clients.  There are more mediators in practice than if we were limited to only mediation and potential clients benefit from more choice and competition in the mediation marketplace.  However, we don't have to model ourselves on Robin Hood.  While some enjoy balancing different types of practice, others find it difficult to wear two (or more) hats.  There are ways to make a peacemaking practice a full-time practice if that is what you want to do.

If you're interested in learning more about that possibility I suggest attending an upcoming workshop on June 19-20, 2015 from Woody Mosten and David Hoffman: Building a Profitable and Satisfying Peacemaking Practice: A nuts and bolts, “how to” workshop.


Related Posts Plugin for WordPress, Blogger...