Data Mining
September 27, 2006
Few technological advancements or social movements have impacted matrimonial law as profoundly as the computer/electronic age. Today, litigants have a virtual Pandora's box of incredibly vast yet retrievable information at their fingertips, which all too often remains underutilized or undiscovered. Currently, stored data can be retrieved from joint marital assets such as computers, cell phones or even facsimile devices with memory capabilities. The information stems from usage, whether explicitly 'saved' by the computer operator or not. It can later be deciphered or interpreted by a trained professional and can yield countless bits of information to assist in discovery.
NY Appellate Court Nullifies Attorney-Fee Provision
September 27, 2006
For the first time in New York appellate history, an appeals court in Brooklyn declared unenforceable provisions of a prenuptial agreement that barred a spouse from seeking attorney fees. The decision is the first in which an appeals court had nullified part of a prenuptial agreement concerning attorney fees, rather than the whole agreement.
Protecting Trust Assets from a Divorcing Spouse
September 27, 2006
When spouses divorce, they may be surprised to discover that certain trust assets may not be protected from each others' reach. It is often difficult to find a bullet-proof trust, holding assets firmly and securely away from the divorcing spouse.
Litigation
September 27, 2006
Recent rulings of interest to you and your practice.
Insanity, Drugs and the Family Code
September 27, 2006
Go to your favorite Internet search engine and run a search for 'stupid laws.' You will come up with thousands of hits for sites that report it is illegal to spit on the ground within 5 feet of another person and the like. Most of these 'laws' are probably just urban myths. However, the California Family Code (and in all probability the codes of most other states) does contain laws that should be looked at more carefully. Some of our statutes are in need of modernization. Others are poorly worded, and others just make no sense. We can and should expect more of our legislature.
Litigation
August 31, 2006
Recent rulings of interest to you and your practice.
Divorce Law and the Same-Sex Marriage Debate
August 31, 2006
Part One of this article discussed the plight of same-sex couples arising from the debate over the legal status of same-sex relationships. New York has now decided that the state constitution does not compel recognition of marriages between members of the same sex. The state's highest court has left the resolution of the injustices suffered by same-sex couples to the state legislature. Hernandez v. Robles (See article infra). The first part of the article addressed, inter alia, the 400-page report by the NYSBA Special Committee to Study Issues Affecting Same-Sex Couples, the inequitable application of the equitable distribution law and parents' and children's rights upon relationship dissolution. The conclusion herein discusses de facto parents.
The Progressive Lawyer
August 31, 2006
Part One of this article defined the newly evolving role of the parenting coordinator and discussed various statutory authorities for the PC role; the role's purpose and scope; how PCs are appointed; what decision-making authority PCs have or do not have; the timing of PC appointments; and the court's jurisdiction to make such appointments. Part Two dealt with additional PC topics, including continuing jurisdiction and judicial review of PC decisions or recommendations. Part Three addresses PC proceedings; ex parte communications; confidentiality; referral for third-party services; access to non-parties, children and privileged information; submission and exception to PC recommendations or reports; and PC immunity.
NY High Court Ends Same-Sex Marriage Fight
August 31, 2006
In July, New York's highest court, the Court of Appeals, ruled that same-sex couples have no right to marry under the New York state constitution. The 4-2 decision, which upheld four Appellate Division decisions that had declined to extend the right to marry to same-sex couples, marks the end of the judicial battle in New York over same-sex marriage. Because the appellants raised no federal issues, they cannot appeal to the U.S. Supreme Court.
Custody Evaluations and the Illusion of Helpfulness
August 31, 2006
The opinions of forensic evaluators in child custody cases carry the potential power to change lives by force of law. Too often those opinions are received in evidence without serious examination of whether they are based upon demonstrable knowledge as opposed to subjective beliefs and idiosyncratic value judgments. Intellectually empty proclamations, such as 'the opinion is helpful' or 'I'll take it for what it's worth' usher these potent utterance into evidence in all too many courtrooms. The notion that an opinion that is not demonstrably valid can be helpful and ought to be admitted 'for what it is worth' is as illusory as it is foreign to evidence doctrine.
