Family Lawyer

Vol. 13, No. 1, Summer, 2008

A semiannual newsletter designed to provide legal information that family counselors and therapists can use to help their patients.

SUPPORT ISSUES...

PARENT CONVICTED OF CAUSING DEATH OF THEIR CHILD STILL ENTITLED TO ALIMONY

The parties were divorced after 15 years of marriage. The Wife abused alcohol and drugs over the years. She had visitation with her 14 year old son and they got into a physical altercation. The violence resulted in the son being hospitalized for neck wounds. The son had bleeding in the jugular vein and a tear in an artery in the neck. He bled to death.

The court agreed to allow this mother to reapply for alimony after her release from prison.

The Court found that the dreadful conduct of this woman did not fit the standard for non-economic “egregious circumstance” sufficient to deprive her of needed support

The prior law they based this on states that if a spouse arranges for the other’s killing or deliberately infects the other with a deadly disease, this conduct is considered “non-economic egregious conduct. That this kind of conduct, “by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties.”

The moral of the story is, you can’t kill your husband and expect support, but you can kill your child!

What is this world coming to ?

A Parent who did not support a child can share in her estate

The child was born severely handicapped at birth. The child was awarded a medical malpractice award of $2.6 million dollars. She died at 22 years old. The child’s father had no relationship with the child. Upon the child’s death, the father wanted to share in the child’s estate. The mother challenged this request by the father and she sought retroactive child support, even though she had never sought child support while the child was alive.

The law held that the Estate Probate Code does not “condition a parent’s right to take from a child’s estate on that parent having contributed to the child’s support”. Simply because he had a biological and legal relationship he was able to share in the estate. The father was awarded one-half of a trust valued at $1.1 million dollars.

MANY STATES ARE QUESTIONING TRADITIONAL ALIMONY

Do judges have too much discretion in deciding how much alimony should be paid and for how long?... I say,” yes”.

Massachusetts is recommending standards for determining reasonableness of amount and duration of alimony. New Jersey should do the same. New Jersey has “open” rules which allow a judge to one day rule that an 11 year marriage is a long-term marriage providing that spouse with the privileges of someone married 25 years and on another day to rule that an 11 year marriage does not warrant more than 3 to 4 years of alimony!

New York wants guidelines for judges to follow when deciding alimony since the award guidelings given now are ambiguous.
Most states are like New Jersey and have no specific formula for determining alimony resulting in a wide range of awards. Many times these awards are blatantly unfair. Honestly, should someone be entitled to receive support for 28 years if they were only married for 11 years?

Reimbursement of medical expenses

One of the biggest complaints I get are from parents who do not get reimbursed from the non-custodial parent for medical expenses for their children.

As a defense to not paying, the non-custodial spouse will claim they were never consulted regarding the medical care and therefore have no duty to pay for it. Many times the bills are never sent to the non-custodial spouse for reimbursement until years have past.

What should you do?

If the Judgment of Divorce indicates you need to consult with your spouse for medical issues with your child, do so. Put it in writing (e-mail) that the child has an issue and you want to see a doctor...give them the ability to respond. If you don’t, you just might get stuck with the bill.

Secondly, every quarter, send the spouse (regular mail and certified mail) the bills from the doctors, a copy of the insurance submission form and proof of what you paid.

DEVELOPMENTS IN FAMILY LAW

CHANGES IN PALIMONY LAW

Cohabitation was always a requirement for a successful claim for palimony. New Jersey has just ruled that cohabitation is no longer a prerequisite for palimony. You only need proof that a “marital type relationship” existed. Palimony used to require that you prove a long-term, live-in relationship. The Courts now allow for a “flexible approach that seeks to achieve substantial justice in light of the realities of relationships.” “It is the promise to support, expressed or implied , coupled with a marital-type relationship that are indispensable elements to support a valid claim for palimony.”

Let’s hope that every dating relationship does not start filing actions for palimony.

CASES IN THE NEWS

a. CIVIL UNIONS IN NEW JERSEY AND AROUND THE COUNTRY

California passes law allowing gay couples to “marry”...

In New Jersey, civil unions have not done well..gay couples are really not provided with the protections that were promised. Many are denied medical benefits for their partners; many are discriminated against at work.

New York has de facto legalization of gay marriage. New York will grant reciprocity to gay marriages from other jurisdictions. If you can get married in California and then move the New York...they will recognize your marriage.
(How does one get recognized as married?)

b. TAX IMPLICATIONS

The federal law creates problems for civil unions couples who are divorcing:

a) Limits the tax exemption on the sale of a house; b) you can’t deduct alimony on your federal tax return; c) property transfers have significant tax implications; d) you can’t transfer your retirement plan upon divorce as a tax free exchange; e) you are subject to higher tax rates at death because you are not married.

Website: http://www.Cerruti-FamilyLaw.com