About: Lina Guillen

Recent Posts by Lina Guillen

Teen Sues Parents for Financial Support and Tuition

father daughter dispute conflictLast week we saw a flurry of news reports regarding Rachel Canning’s lawsuit against her parents for child support and school tuition. Much of the media focus has been on Rachel’s “bad girl behavior,” rather than the legal framework or claims in the case.

While details are scant, what we do know right now is that on March 4, 2014, Judge Peter Bogaard decided there was no exigent circumstance (emergency) that would require the immediate payment of financial support or high school tuition.

It looks like the court denied Rachel’s request for tuition because Rachel’s high school promised to cover the cost of her final semester. The judge also found no basis to order emergency financial support. This could be because Rachel’s basic needs are currently met – she’s living with her best friend’s parents (who are apparently funding her lawsuit), and she has a job and therefore, some independent income.

Judge Bogaard ordered Rachel and her parents to return on April 22, 2014 for a full hearing, which will likely include witness testimony and documentary evidence. At that hearing, the judge will decide the major issues in this case – whether Rachel’s parents must provide some financial support and/or pay her college tuition.

In most states, this type of lawsuit would not get very far because children are generally considered emancipated (independent from their parents) when they turn 18 and/or or finish high school. Once emancipated, a child is no longer legally entitled to his or her parents’ financial support. New Jersey is among a minority of states where age does not automatically confer an emancipated status.

Again, details of the legal claims in the case are few, but it seems safe to assume some portion of this legal battle will focus on whether or not Rachel is emancipated.

How Courts Decide if a Child Is Emancipated

New Jersey courts do consider a child’s age in determining emancipation, but age is certainly not the only factor that comes into play. Although there’s a presumption that a child becomes emancipated at the age of 18, this presumption can be rebutted (overcome) by showing that the child has not reached a truly independent status. (The query is different for deciding whether a child under 18 is emancipated).

Under a long line of New Jersey cases, courts in the Garden State will consider several factors when deciding whether an 18-year old is emancipated, including:

  • the child’s needs
  • the child’s interests
  • the child’s independent resources
  • the family’s reasonable expectations
  • the parents’ and the child’s financial abilities, and
  • any other factor the court believes is relevant to the decision.

(See Dolce v. Dolce, 383 N.J. 11, 18 (2007), citing Newburgh v. Arrigo, 88 N.J. 529 (1982).) 

Covering College Tuition

If Judge Bogaard decides Rachel is emancipated, her parents’ duty to provide support ends. If not, the next decisions will focus on an amount for support and college tuition.

In New Jersey, there’s a strong trend towards requiring parents, if they are financially capable, to pay for college expenses. When making this decision, a judge will take several factors into account, including:

  • the reasonableness of the expectation for higher education
  • the amount sought by the child for the cost of the higher education
  • the parent’s ability to pay that cost
  • the relationship of the requested contribution to the kind of school or course of study sought by the child
  • both parents’ financial resources
  • the child’s commitment to, and aptitude for, the requested education
  • the child’s financial resources, including assets held individually or in custodianship or trust
  • the child’s ability to earn income during the school year or on vacation
  • the availability of financial aid in the form of college grants
  • the child’s relationship to the paying parent, including mutual affection, shared goals, and  responsiveness to parental advice and guidance, and
  • the relationship of the education sought to any prior training and to the child’s long-term goals.

In this case, the media has focused primarily on Rachel’s relationship to her parents and her responsiveness (or unresponsiveness) to their parental advice. While this is certainly an important factor, it’s only one of many the court may consider on April 22.

It’s impossible to read the tea leaves, and the judge seems to take issue with both sides. He’s been quoted as having admonished Rachel for her unruly behavior and her parents for how they handled the situation. NPR reports that the judge told the Cannings they “should have tried to get help for their daughter instead of cutting her off.”

So, despite reports implying Rachel lost her case, the major issues have yet to be determined. The April 22 hearing will be the one to watch in terms of understanding more about both sides’ legal claims and any precedent-setting outcomes from the New Jersey court.

See DivorceNet.com’s section on Child Support for more information about child support laws in your state.

 

The DOJ Extends Federal Benefits to Same-Sex Spouses

ringsOn Saturday, February 8, 2014, United States Attorney General Eric Holder announced that in an effort to implement the Supreme Court’s historic decision in United States v. Windsor, the Department of Justice (which includes all of its agencies and programs) would follow a new policy of recognizing “valid same-sex marriages” – same-sex marriages that are entered into or celebrated in a jurisdiction (state, district or foreign country) which authorizes same-sex marriage.

A Little Background on the Department of Justice

The Office of the Attorney General heads the Department of Justice (“DOJ”) and is considered the chief law enforcement officer of the Federal Government (click here for a chart that will give you a better idea of how the DOJ is organized and what agencies and programs will be impacted by this new policy). Under the guidance of the Attorney General, the DOJ enforces federal criminal and civil laws on behalf of the United States.

On Monday, February 10, 2014, Attorney General Holder issued a formal memo outlining the DOJ’s new policy and some of the benefits now available to legally married same-sex couples.

Married is Married: the DOJ Will Follow the “Place of Celebration” Rule

The official memo makes clear that the DOJ will recognize valid same-sex marriages to the full extent possible under federal law, regardless of where a same-sex married couple currently resides.

As long as the marriage was celebrated in a state or foreign country that recognizes same-sex marriages (“place of celebration” rule), the DOJ will also recognize the marriage as valid, even if the couple (or one of the spouses) resides in a state that bans same-sex marriage. In short, it’s the place of celebration, not the place of residence, that matters to the DOJ.

Access to Department Benefits and Compensation Programs

DOJ agencies distributing benefits and compensation which depend on marital status will recognize valid same-sex marriages regardless of where the married spouses reside. Legally married same-sex spouses can now receive benefits and compensation (if otherwise eligible) through a number of programs, including the following:

  • the Public Safety Officer’s Benefits Program
  • the September 11th Victim Compensation Fund, and
  • the Radiation Exposure Compensation Program.

Bureau of Prison Policies Will Apply Equally to Same-Sex Spouses

All of the Bureau of Prisons’ policies that are affected by marital status will be interpreted to include valid same-sex marriages, again regardless of the laws of the state where an inmate is placed or where an inmate’s spouse lives. Same-sex spouses of inmates will now have the same rights as any other spouse, including the right to visitation at federal prisons and next-of-kin notification regarding inmate spouses.

Same-Sex Spouses May Invoke Marital Privileges in Federal Cases

The DOJ also revised how it will handle the invocation of marital privileges in both federal criminal and civil cases. This impacts both the confidential communications privilege (which protects the contents of confidential communications between spouses made during marriage) and the testimonial privilege (which, under certain circumstances, may protect a party or witness-spouse from being called to testify against his or her spouse). Under the new policy, legally married same-sex spouses can assert (or attempt to assert) these privileges in the same way that opposite-married couples do.

The memo provides the following:

  • the DOJ will consider a marriage valid for purposes of the marital privilege if an individual attempting to assert the privilege was or is validly married in a jurisdiction that recognizes same-sex marriages, and
  • if the DOJ is a party to a civil case where state law governs the use of marital privileges and a same-sex spouse asserts it, as a matter of policy, the DOJ (and its attorneys) won’t challenge the invocation based on the state’s laws regarding same-sex marriage. This policy will apply as long as the same-sex marriage is valid in the place it was entered into, even if the marriage is not considered valid in the state where the married spouses reside or formerly resided.

These benefits do not apply to same-sex couples that are registered in domestic partnerships or civil unions.

This is not a complete list of the benefits available to same-sex spouses under the DOJ’s new policy. You can contact the Chief of State, Civil Division for more information at 202-514-3301.

 

Same-Sex Marriage is on Hold in Utah

ringsOn Friday, December 20, 2013, U.S. District Judge Robert Shelby struck down Utah’s ban on same-sex marriage, saying it violates the equal protection rights of gay and lesbian couples. As news of the ruling broke, hundreds of same-sex couples from around the state began requesting marriage licenses.

According to The Huffington Post, county clerks in Utah issued more than 1225 marriage licenses between Friday December 20 and Thursday December 26; at least 74 percent or 905 of those licenses were issued to gay and lesbian couples. The Salt Lake County Clerk’s Office broke its record of 85 marriage licenses in one day by issuing 353 licenses on Monday, December 23.

The State of Utah requested a temporary stay of the ruling, which would prevent any further same-sex marriages from taking place until the U.S. Court of Appeals for the Tenth Circuit has had a chance to rule on Utah’s appeal. However, Judge Shelby denied that request. As a result, same-sex weddings will continue to take place in Utah pending the appeal, unless the U.S. Supreme Court intervenes.

Utah state officials have indicated that they will ask the United States Supreme Court (as early as today) to stay the District Court’s ruling. It’s unclear if the state will ask the Supreme Court for any additional relief at this point.

The request will go to Justice Sonia Sotomayor, who handles emergency requests from the region that includes Utah. Justice Sotomayor has the authority to decide this issue on her own or ask the other Justices to weigh in. We’ll be sure to update our site as soon as we learn more.

UPDATE: On January 6, 2014, the U.S. Supreme Court granted the State of Utah’s request for a stay of the District Court’s ruling. No further same-sex marriages will be performed in Utah pending the appeal. The federal appeals panel plans to expedite it’s review of the case, so many hope to see a resolution soon.

 

 

New Mexico Becomes the 17th Marriage Equality State

On Thursday, December 19, 2013, the New Mexico Supreme Court ruled to allow same-sex marriage in the state and ordered county clerks to begin issuing marriage licenses to same-sex couples.

In the decision, Justice Edward L. Chavez wrote, “[w]e hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.”

To read the full opinion, see NM Supreme Court Decision on Marriage Equality.

Unlike other states, New Mexico never banned or allowed same-sex marriage, which left the issue of marriage equality unsettled across the state. Eight of the state’s 33 counties started issuing marriage licenses to same-sex couples in August 2013. County officials asked the state supreme court to clarify the law.

New Mexico joins 16 states and the District of Columbia in legalizing same-sex marriage.

Check out Nolo’s LGBT Law section to learn more about same-sex marriage and other LGBT issues.

Adultery and Divorce: A Closer Look at the Impact

Onliine AffairThe media loves an ugly divorce. You rarely hear about the 95% of divorce cases that settle out of court or resolve through mediation or the collaborative divorce process. Instead, most people focus on the remaining 5% of cases that involve a full-blown court trial and possibly nasty allegations.

Based on what you’ve read or heard, you may assume adultery is the leading cause of divorce. But most divorcing spouses actually cite “irreconcilable differences,” which is just is a fancy way of saying that a couple can’t get along anymore, and there’s no reasonable chance of getting back together.

No-fault Versus Fault Divorce

“Irreconcilable differences” (also referred to as “irremediable breakdown”) is the only ground available for a “no-fault” divorce – that is, a blameless divorce, one where neither spouse claims that the other’s misconduct (such as adultery) caused the split. Not surprisingly, no-fault divorces tend to be cheaper, less contentious and less emotionally draining for the parties and their children, which probably accounts for much of their popularity.

Today, all states allow no-fault divorces or a divorce based on separation, and in several states, no-fault is the only option. Some no-fault states, such as California, go so far as to prohibit divorcing spouses from testifying or inquiring about adultery (unless a judge finds that it’s relevant to a limited issue in the case.)

See the Divorce Basics section on DivorceNet.com to learn more about the grounds for divorce in your state.

Some states still allow “fault” divorces, which are based on marital misconduct, such as adultery, addiction or abandonment. In most cases, fault doesn’t actually play much of a role in the divorce proceeding itself. But in some states, adultery may affect a judge’s decisions about alimony and/or property division, particularly where the cheating spouse wasted marital funds on an affair (for example, buying gifts or paying for vacations). In these cases, a judge can order the cheating spouse to pay more spousal support or reimburse the “innocent” one for wasted funds.

To learn more about what role adultery may play in a divorce in your state, see the Adultery and Divorce section on DivorceNet.com.

Adultery in the News

Although adultery doesn’t typically play a major role in the legal outcomes of most divorces in the U.S., it makes for flashy headlines. Consider all the media attention the website www.AshleyMadison.com has garnered lately. AshleyMadison (tagline: “Life is Short. Have an Affair.”) is a dating site for married people. The company describes itself as “the most famous name in infidelity and married dating” with over 23,010,000 members.

In The United States of Adultery, Huffington Post revealed the top cities for unfaithful spouses (based on AshleyMadison.com’s membership data). The top ten locations (with an added description of applicable grounds for divorce) are:

  1. Washington, D.C.  (No-fault only)
  2. Houston Texas (No-fault and fault grounds)
  3. Miami, Florida (No-fault only)
  4. Pittsburgh, Pennsylvania (No-fault and fault grounds)
  5. Los Angeles, California (No-fault only)
  6. Oklahoma City, Oklahoma (No-fault and fault grounds)
  7. Phoenix, Arizona (No-fault only – unless couple entered into a covenant marriage.)
  8. New York, New York (No-fault and fault grounds)
  9. Chicago, Illinois (No-fault and fault grounds)
  10. Boston, Massachusetts (No-fault and fault grounds)

Obviously, these rankings aren’t really reliable since the information is based strictly on AshleyMadison’s membership and doesn’t capture the percentage of cheaters who find partners the “old-fashioned” ways, but Huffpo thought it was newsworthy and had no issue relying on AshleyMadison as a source.

Aside from reports about a recent alienation of affection lawsuit filed against AshleyMadison, I wasn’t able to find much negative press about the company. It’s interesting to consider what the website’s popularity among members and the media means. Have we become more accustomed to (and accepting of) adultery? Huffpo reports (from sources Gallup and USA Today) that 54% of Americans say they know someone who has an unfaithful spouse, and 37% of currently married adults say they would not get divorced if their spouse had an affair.

Does the nationwide shift to no-fault divorce also reflect today’s attitudes about adultery? Much of the shift is due to states’ desires to avoid wasting limited court resources on largely irrelevant issues, like whether one spouse cheated. But it may also reflect the fact that fewer divorcing spouses want to publicly hash out the details of what went wrong in their marriage and pay hefty attorneys’ fees proving or negating something like an affair. Whatever the reason, overall, it seems the no-fault model for divorce is proving to be the best option for those involved.

Go to www.divorcenet.com for more information on family law and divorce.

Recent Comments by Lina Guillen

    No comments by Lina Guillen yet.