California Divorce Blawg

U.S. Supreme Court Issues Family Law Ruling Regarding Pensions

The U.S. Supreme Court has issued a unanimous decision in a pension case that pitted an ex-wife against the pensioner's daughter.

Mr. Kennedy (the pensioner) was an employee of DuPont and participated in their savings and investment plan (SIP) that was an ERISA benefit plan. In 1971, Mr. Kennedy married and three years later signed a beneficiary designation identifying his new wife, Liv Kennedy, as the sole beneficiary of the SIP plan. Twenty years later, the couple divorced. As part of the divorce, the ex-wife agreed to relinquish all rights to husband’s pension benefits with DuPont. The agreement to waive those benefit was contained in the divorce decree. However, a Qualified Domestic Relations Order was not submitted covering these benefits nor did the husband ever change the beneficiary designation for the account.

In 1998, Mr. Kennedy retired from DuPont and later died in 2001. His daughter was appointed administrator of his estate. She sent a letter to DuPont requesting the Estate be paid the funds in the SIP. DuPont refused, stating that the beneficiary designation identified the ex-wife as the beneficiary. She also asked the ex-wife (her Mom) to relinquish her rights to the account and she refused. In fact, ex-wife asked DuPont to pay up and they sent the ex-wife the $400,000.00. Daughter, on behalf of the Estate, brought a lawsuit.

The United States Supreme Court said that a QDRO was not needed to eliminate a person's right to a benefit plan. Rather, the key was the beneficiary designation form and the procedures set up under the plan. The plan set up a procedure for the husband to designate a new beneficiary and he did not. The plan also set up a procedure for the ex-wife to waive her right to benefits, and she did not. Therefore, the employer had to pay the benefits as stated in the original beneficiary designation form no matter what the divorce decree stated. Thus, ex-wife gets the benefits and daughter does not.

What is the lesson learned? If you divorce, you must ensure that your designated beneficiary forms under any pension and/or retirement plan covered by ERISA are changed. You must make the change yourself following the rules given by your employer. Do not rely on a waiver of benefits in a divorce decree or QDRO. Change the beneficiary form or it could result in unintended consequences at your death--your ex-spouse getting your benefits.

Please click here for the entirety of a great article by Robert M. Kisselburgh on his Mississippi Family Law Blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Obama's Presidential Family Law Agenda

The new Presidential website - - - www.whitehouse.gov - - - complete with its own blog, is a wealth of information regarding the new Administration's family law agenda.  It has some specific proposals and ideas, which might inform classroom discussions, class problems, or even (for those FamilyLaw Profs already thinking ahead at the beginning of this semester) exam questions.

Here's a sampling from the "family" portion of the website, many of which pertain to economic matters:

    * Expand the Family and Medical Leave Act (FMLA): The FMLA covers only certain people who work for employers with 50 or more employees. Barack Obama and Joe Biden will expand the FMLA to cover businesses with 25 or more employees, and to cover more purposes including allowing: leave for workers who provide elder care; 24 hours of leave each year for parents to participate in their children's academic activities at school; leave for workers who care for individuals who reside in their home for 6 months or more; and leave for employees to address domestic violence and sexual assault.
    * Encourage States to Adopt Paid Leave: President Barack Obama will initiate a 50 state strategy to encourage all of the states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.

* Expand High-Quality Afterschool Opportunities: Barack Obama and Joe Biden will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve one million more children. They will include measures to maximize performance and effectiveness across grantees nationwide.

* Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Barack Obama and Joe Biden will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.

 * Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Barack Obama and Joe Biden will commit the government to enforcing recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.

* Expand Flexible Work Arrangements: Barack Obama and Joe Biden will address this concern by creating a program to inform businesses about the benefits of flexible work schedules for productivity and establishing positive workplaces; helping businesses create flexible work opportunities; and increasing federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to petition to request flexible arrangements.

* Strengthen Fatherhood and Families: Barack Obama has re-introduced the Responsible Fatherhood and Healthy Families Act to remove some of the government penalties on married families, crack down on men avoiding child support payments, ensure that support payments go to families instead of state bureaucracies, fund support services for fathers and their families, and support domestic violence prevention efforts. President Obama will sign this bill into law and continue to implement innovative measures to strengthen families.

* Support Parents with Young Children: Barack Obama and Joe Biden will expand programs like the successful Nurse-Family Partnership to all low-income, first-time mothers. The Nurse-Family Partnership provides home visits by trained registered nurses to low-income expectant mothers and their families. Researchers at the Federal Reserve Bank of Minneapolis concluded that these programs produced an average of five dollars in savings for every dollar invested and produced more than $28,000 in net savings for every high-risk family enrolled in the program. The Obama-Biden plan will assist approximately 570,000 first-time mothers each year.

Please click here for the entire article from the Family Law Prof Blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Shacking Up After Divorce

Shacking up after divorce may seem like a good idea when you've found someone you love.  After all, it gives you a chance share your life with someone and get to know them better (and there's nothing wrong with that).  If you have children from your first marriage though, living with someone new can bring complications. Read more about the common stumbling blocks to cohabitation after divorce in the article below:

Most parents who divorce or end a relationship do find that at some point they are able to move on with their lives and find someone new. If you become serious about your new partner, you might reach the point where you would like to live together. Many couples live together without ever marrying, or before deciding to marry, so this is a common choice.

When you have a child from a previous relationship or marriage though, this decision is one that affects your child. In fact, the decision to live with a new partner can have a big impact on your custody situation, should your ex choose to make an issue of it.

Please click here for the rest of Brette Sember's article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Celebrity divorce and the 10-year itch

On MSN Money Liz Pulliam Weston gives us an insightful look at the 10 year rule in divorce, and why so many celebrities call it quits on marriage before their tenth anniversaries. Here's a taste of Liz's article:

In California Divorce 101, you'll learn why they want the kids and why the 10th anniversary is such a killer.

Britney and Kevin. Chris and Malaak. Renee and Kenny.

These star couples, and plenty of others, make it clear: If you're going to dish on celebrity divorce, you need to know a thing or four about California divorce law.

Because, as in so many other things, California does divorce differently than just about anywhere else. So here's your primer:
Fact No. 1: Why what's yours is mine
California is one of just nine "community property" states in the United States. (The others are Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In Alaska, couples can opt for community property status, or not.)

In most states, assets and earnings accumulated during marriage are split "equitably," which doesn't necessarily mean 50/50. The higher earner can often wind up with a bigger piece of the pie. In community property states, however, the presumption is that any earnings, assets or debts acquired during the marriage are shared equally. (There are a few exceptions; inheritances and gifts to one spouse are typically considered separate property, for example.)

You can see how this situation is perceived as a problem in California, home of a million trophy spouses who bring great looks but not necessarily great earning potential to their marriages.

The presumption that "what's yours is mine" is the reason that most celebrity marriages involve prenuptials, which are pre-marriage agreements, hammered out among staffs of lawyers, in which both parties essentially reject the notion of community property and instead work out their own division of property, earnings and debts in case of divorce.

Many prenups have annual escalation clauses, so that the longer the marriage, the more the less-affluent partner receives in cash (income) and prizes (property). Hence the rumor, reported by Gawker, that superstar Britney Spears filed for divorce two years and one month after her marriage to Kevin Federline in order to limit his take. (Many escalation clauses also have 30-day grace periods, so theoretically Fed-Ex's share would be cut off at the two-year mark.)
Fact No. 2: Why they call it 'fraud'
California allows only two reasons for divorce: irreconcilable differences (which you don't have to prove) and incurable insanity (which you do).

If your marriage was brief and didn't involve children, or if you want to forget it ever happened, you might opt for annulment instead of divorce. Annulments are generally faster and less expensive than divorces, besides being a general "do over." Instead of dissolving the marriage, an annulment treats the union as if it had never occurred.

In California, however, you have to choose among eight reasons for wanting the annulment, and none of them are easy outs. The reasons include:

    * Bigamy. At least one of you was already married.
    * Force. Threats or harmful acts made you get married.
    * Fraud. One of you deceived the other on a significant matter that led to marriage.
    * Incapacity. One of you is physically unable to, um, you know.
    * Incest. You're close blood relatives.
    * Prior existing marriage or partnership. One of you thought your prior spouse/partner was dead, but he or she just turned up. (Seriously. This doesn't just happen in soap operas, apparently.)
    * Underage. At least one of you was under 18 and didn't get Mommy and Daddy's permission.
    * Unsound mind. One of you couldn't form the "intent" to marry because of a mental condition.

This list may give you some insight into why actress Renee Zellweger chose "fraud" as the best of bad options when filing for her annulment from singer Kenny Chesney after a four-month marriage.

There is much more information in the balance of the article.  Please click here to read the entire piece.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Surgeon Sues Estranged Wife for Return of Kidney

This is about a New York divorce case.  However, it is crazy enough that I thought I would mention it here on the California Divorce Blawg.

A Long Island surgeon embroiled in a nearly four-year divorce proceeding wants his estranged wife to return the kidney he donated to her, although he says he'll settle for $1.5 million in compensation.

Dr. Richard Batista, a surgeon at Nassau University Medical Center, told reporters at his lawyer's Long Island office Wednesday that he decided to go public with his demand for kidney compensation because he has grown frustrated with the negotiations with his estranged wife.

He claimed he has been prevented from seeing their children -- ages 8, 11 and 14 -- for months at a time.

"This is my last resort; I did not want to do this publicly," Batista said.

He said he gave his kidney to Dawnell Batista, now 44, in June 2001. She filed for divorce in July 2005, although he claims she began having an extramarital affair 18 months to two years after receiving the kidney transplant, his attorney, Dominick Barbara, said.

Please click here to read the entire Law.com article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.