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Family Lawyer Vol. 11, No. 1 {Spring 2005}
A semiannual newsletter designed to provide legal information that family counselors and therapists can use to help their patients.
LESBIAN PARTNER AS MOTHER A lesbian couple in Bloomfield won a landmark case this week, allowing the non-childbearing partner to be listed as the second mother on the birth certificate of the partner’s child. The Court reasoned that if a non-biological father who consents to his spouse’s artificial insemination is the father, so should the law apply equally to a same-sex couple who show a sufficient level of commitment. The Court found that any State interest in limiting the statute to children of heterosexual couples only, was not sufficient to overcome the best interests of the child. The parties registered as domestic partners in New York and then married under Canadian law which certainly helped shape the case in their favor. WATCH OUT GRANDMA! Wife brought an action against her husband for support and added the husband’s parents as defendants. The husband was diagnosed with liver disease and was repeatedly hospitalized. The grandparents began paying $20,000 per month to help meet the family’s overhead expenses. Wife argued that now that a divorce was happening, the grand- parents should continue to support the family as they set the standard of living for the family and there would be hardship if they did not continue to pay. The trial court ruled that there is absolutely no precedent for the third-party liability theory. The case is being appealed and could result in new law. So...if you are a third-party and helping your family make sure you think ahead to the ramifications the support may have in the future. I will update you as the case unfolds before the Appeals Court. Second case:
Grandparents seeking visitation under the Statute must prove that
the child would suffer particular identifiable harm to prevail over
a parent’s decision to forego such visitation. The harm must
be to the child, not the grandparents. In most cases, after divorce if the payor spouse makes significantly more money then before the divorce, the supported spouse does not get to share in the good fortune of her ex-spouse. However, a Family Judge recently
increased the supported spouse’s permanent alimony award from
$85,000 per year to $225,000 per year. This is a Crews case application.If
there was reduced income at the time of divorce which does not allow
the supported spouse to continue with the marital lifestyle after
divorce, but post-divorce the spouse increases his income back to
the marital amount, the supported spouse can seek to re-establish
the marital lifestyle. You can’t ask to “improve”
your lifestyle only to re-establish the lifestyle you had during
the marriage. Usually, a spouse’s extra-marital affair is irrelevant to determine alimony. Alimony should not be considered a punishment to the payor nor a reward for the payee. In addition, marital fault can not be considered by the court in awarding counsel fees. This is very upsetting to most clients who have been left for someone else. Most believe they should be vindicated for their emotional hardship. Well, unfortunately it will not happen. Fault will only be considered where it affected the parties’ economic life, in which case it may be factored in; and secondly,where the fault so violated societal norms that continuing the economic bonds between the parties would confound notions of simple justice, it may be part of the initial determination of whether alimony should be allowed at all. There are those who question whether fault being considered in alimony would deter infidelity. There are states where fault is considered and they do not have lower divorce rates. As a family lawyer I do not see how the Court’s exceptions will be determined as they are subjective at best. Who determines whether “Playboy” magazine violates society’s norms, the judge or the client? Isn’t infidelity a violation of society’s norms to some degree. SOCIAL SECURITY: Social security benefits, paid for the benefit of the child of a payor, are to be offset against child support. SSI benefits received by a disabled parent may not be used as income when calculating a child support obligation.
The Family Lawyer is published quarterly by Pamela M. Cerruti, Esq., for mental health and social service professionals. This publication is intended to provide information to its readers. It is not intended to offer legal or professional advice. For more information, please contact: Pamela M. Cerruti, Esq. 45 Park St., Montclair, NJ 07042 Tel: 973-746-5590 Fax: 973-509-0308 Website: http://www.Cerruti-FamilyLaw.com |
