Litigation
April 22, 2004
Recent rulings of importance to you and your practice.
Divorce Attorney Fees
April 22, 2004
More frequently than not, the divorce attorney will receive a call from the client who has paid his or her bill, inquiring as to what portion of attorney's fees paid can be deductible for income tax purposes. The client's accountant advised that he/she needed an opinion from his/her attorney and a letter allocating the deductible portion of what was paid for income tax purposes. The client may have paid a princely sum and will want to deduct as much as possible.
Malpractice Award Can Affect Alimony
April 22, 2004
A New Jersey Superior Court Judge has found that money received by a wife in a legal malpractice settlement stemming from the divorce trial can be used to reduce or eliminate alimony. Moreover, a supported spouse could not pay an excessive amount for a new home and then complain she does not have enough money for savings.
Lesbian Adoption Allowed in New York
April 22, 2004
In a case of first impression, a split New York State appellate court reversed a family court's order dismissing the adoption petition filed by a lesbian couple, and approved the adoption of a 5-year-old Cambodian girl. <i>Matter of Adoption of Carolyn B.</i>, CAF 03-01032, Appellate Division, 4th Department, March 24, 2004.
Life Insurance and Divorce
April 22, 2004
Life Insurance is an important matter in most divorces. There are a host of issues that are not addressed in the typical negotiation. Consider the following sample insurance clause from a Property Settlement Agreement (PSA): <i>The husband shall maintain life insurance for the wife having an aggregate death benefit of $250,000. Said obligation shall be terminated if the husband's obligation to pay alimony is modified/terminated. The husband shall maintain life insurance having an aggregate death benefit of $250,000 for the benefit of the unemancipated children. Said benefit shall be reduced by $75,000 upon the emancipation of the first child and again upon the emancipation of the second child. The obligation to maintain any life insurance for the children shall terminate upon the emancipation of all Three (3) children.</i>
Summary Disposition in Matrimonial Practice
March 18, 2004
As matrimonial practitioners, we have all met with countless clients and immediately assessed the situation with regard to their cause of action, support, equitable distribution and custody. The initial consultation, retention and then commencement of the action are often followed by what may be called the typical divorce pretrial disposition. This includes the support application, fixing of a parenting schedule and perhaps an advancement of fees or pendente lite distribution of marital assets.
Using Trusts in a Divorce
March 18, 2004
In a divorce case where a trust exists, it is possible to terminate the trust, with the agreement of all the parties, to utilize the proceeds to meet the needs of the parties in effectuating equitable distribution. Bear in mind that the termination of a trust can only be achieved by agreement and therefore such a goal cannot be achieved in a litigated matter. As part of a divorce settlement, certain types of trusts can be created for funding education expenses or covering medical expenses. These trusts would provide a mechanism for meeting support obligations.
Litigation
March 18, 2004
Recent rulings of importance to your practice.
Same-Sex Marriage: Massachusetts Sets the Precedent
March 18, 2004
One month after the highest court in Massachusetts, the Supreme Judicial Court (SJC), issued its decision on the unconstitutionality of the denial of same-sex marriage in <i>Goodridge v. Department of Public Health</i>, the Massachusetts Senate prepared draft legislation authorizing civil unions (Senate No. 2175). The legislation intended to grant same-sex couples "all the benefits, protections, rights and responsibilities afforded by the marriage laws" while still "preserving the traditional, historic nature and meaning of the institution of civil marriage." The civil union legislation created a separate, yet arguably equal, set of benefits and privileges for same-sex couples. The legislation, however, also denied same-sex couples the right to civil marriage and thereby lacked the intangible benefits of marriage that the <i>Goodridge</i> decision noted are "important components of marriage as a 'civil right.'" The Massachusetts Senate asked the SJC to review the civil union legislation and offer an advisory opinion on its constitutionality.
