General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
Some parents worry how their legacy to their children and grandchildren will be impacted if their child should divorce.
While an inheritance is normally separate nonmarital property under Florida law if properly maintained, it can at times be all too easy to taint that status of separate.
One of the best ways for a parent to reduce that risk is to place the intended inheritance assets into a trust, specifically, a divorce protection trust.
Depending how it’s drafted, such a trust can allow the children the use and control of the assets, yet still preserve the protection from the spouse.
And unlike a prenuptial agreement, it doesn’t require the other spouse’s agreement.
Read more in this Honolulu Star-Bulletin article: How to protect inherited assets in the event of divorce.
Some spouses used to complain of an interfering inlaw. Things have changed. The interfering inlaw pales in comparison to the latest interference in some marriages.
Imagine trying to hold your own against your spouse’s employer or future business partners. Yet that is exactly what many spouses must do these days.
It is reported that many hedge funds are now mandating that prospective partners have an executed post-nuptial marital property settlement agreement waiving any interest in or claim to the hedge fund. Other funds merely strongly encourage it.
Following suit, postnups are also reportedly making a splash among partners in investment banking companies as well.
Before long, postnuptial waivers of claims to business entities may become the price of admission to partnership in numerous businesses, including, among many others, accounting firms, law firms, medical practices, etc.
Of course, it is important to keep in mind that waiving a claim to the business itself is not necessarily the same thing as waiving a claim to a share of the value of the business, which could be paid from other assets. It may, however, complicate the process of determining the value of the business.
But it all depends on how broadly or narrowly, and creatively, the postnuptial agreement is drawn.
Read more in this New York Times article: Hedge Funds: With More Money Comes More Post-Nups.
What do all of the above have in common?
They are all professionals who may be sole or part owners of a private professional practice.
Therefore, in the event of a divorce, a key concern of such a professional is likely going to be what rights, if any, his or her spouse may have to the practice.
An excellent introduction to how a professional practice will be valued and divided in a divorce appears in an article by my North Carolina colleague, Lee Rosen, in the Carolina NewsWire: When A Professional Divorces - Protecting a Professional Practice.
One particularly important component of value in a professional practice is probably goodwill. As Lee explains, there are two types of goodwill, personal and enterprise, - and different states treat each type differently in the event of a divorce.
As Lee explains, in a professional practice, the personal goodwill of the professional may be significant. What that means is that, without that particular individual professional, the practice may have little or no value.
There is a fairly even split among states as to whether personal goodwill of one spouse is marital property which should be divided in a divorce. (Of course, property division of a professional practice in a divorce refers only to division of the value, not of the practice itself.)
Unlike Lee’s North Carolina, in Florida, personal goodwill of a spouse is not marital property and should not be divided in a divorce.
This article is well worth reading for all stakeholders in professional practices.
A new study conducted in Australia finds that it pays - literally - for “baby boomers” to stay married.
According to the study, members of the baby boom generation who divorced without remarrying were significantly less likely to become homeowners again after divorce - and had fewer assets and less income - than their married counterparts.
The study also concluded that men who remarried were more likely to “catch up” financially than women.
But, paradoxically, the study revealed that divorced women who remained single were more likely to become homeowners again than divorced men who stayed single.
Study aside, some spouses report, anecdotally, that they, personally, benefit financially from divorce.
All interesting observations but, in the final analysis, decisions on whether or not to divorce may turn upon more than balance sheets.
Read more in this All Headline News article: Divorce Effecting [sic] Baby Boomers Into Retirement.
Aging couple with four children live in spacious three story home in distinctive ethnic Brooklyn neighborhood both love.
Marriage breaks down. Among other issues, the wife alleges both psychological and physical abuse.
While the couple owns other nearby properties, each parent claims to love this home and does not want the upheaval of moving.
Further complicating the situation, it appears that physical custody of the children will be split, with one child to reside primarily with the husband and the remainder to reside primarily with the wife.
The trial court presiding over the case fashioned a creative solution: construct an interior wall to divide the house in half, with half to be occupied by the husband and half by the wife.
The innovative ruling was upheld on appeal by the wife.
In some states, including Florida, if one spouse dies during a divorce action but before the divorce is final, the divorce grinds to a halt and the case is generally dismissed.
Does that mean that everything the court has done along the way is out the window and forgotten?
In a recent Vermont case, a divorce court ordered a temporary freeze on marital assets during the case.
That’s not uncommon, usually to protect one spouse from the other spouse siphoning off, mismanaging or dissipating marital assets.
Despite the order, the husband changed the designated beneficiary on his life insurance policy from his wife to other relatives of his. And died.
When the wife moved to enforce the court’s temporary order, the trial court ruled that it no longer had jurisdiction to enforce its prior order. And the wife appealed.
The state’s highest court reversed, holding that, since the order was valid when it was entered, the court still had the power to enforce it now. And equity demanded that outcome.
Read more in this Lawyers USA article: Vermont Supreme Court finds family court retains jurisdiction despite death before divorce.
The Browns had been married for twenty-five years.
They enjoyed a very prosperous lifestyle, which went with their millions.
When in their seventies, they began their divorce.
It was a bitter divorce.
The tab for the legal maneuvers alone ran about $3 million.
Yet for all that trouble and expense, the Browns didn’t get their divorce.
Because Mr. Brown passed away … Then Mrs. Brown followed …
Before the divorce was finalized … So the case died with them.
Ironically, if their divorce had been more amicable, it would have been finalized before their deaths.
But it wasn’t.
So now their heirs and estates have taken up still more litigation.
An illustration of how not to conduct your divorce.
Read more in this Sify article: ‘Til death did they spar.
A divorced woman brought a fraud claim against her former TV-writer ex-husband for allegedly hiding millions in assets at the time that they entered their divorce settlement.
She argued that she was pushed into accepting millions less than she should have received, because he “cried poverty”.
Yet then he reportedly turned around and bought a mansion on Central Park West.
The court found for her ex, because it ruled that she hadn’t proved her case.
Illustrating yet again that, in court, the difference between knowing and being able to prove is all the difference in the world.
Read more in this United Press International article: Claim ex-writer hid assets doesn’t fly.
When all is said and done, for some spouses, the absolute worst part of divorce is the prospect of property division, called equitable distribution in Florida.
And so it apparently was for a Long Island father and husband who had been married for 9 years but together with his wife for 20 years in total.
According to his wife, the man was abusive and controlling. In the end, his wife said, it was all about “greed and control” for him.
In an effort to avoid having to part with any of his assets, the man allegedly attempted to hire a paid hit man to murder his wife. He reportedly tried to schedule the “hit” for a time when their children would be out of the country with him.
Under arrest, the man now probably has different concerns, such as the possibility of 25 years behind bars.
And his wife says she lives with fear as her constant companion. And the stress of trying to protect their kids from the knowledge of what their father allegedly did.
Amazingly, the man’s sister tried to pick up one of their kids from school after the man’s arrest. She wasn’t successful.
The man’s lawyer now says the man later had a change of heart and tried to back out of the contract killing.
Before or after his arrest?
Read more in:
Last month, approximately 60 retired and active service members mounted challenges in a federal appellate court to the Uniformed Services Former Spouses Protection Act on constitutional grounds.
The statute withstood attacks on due process, equal protection and discrimination grounds as well as an argument that it impinged on Congress’ right to raise and support armies.
Among other things, the Act provides for the division of military pensions by state divorce courts.
Read more in this Honolulu Advertiser article: Ex-spouse benefits act unyielding.
WomansDivorce.com shares the expertise of financial planners and analysts in an article titled Divorce and Your Finances - The 7 Most Costly Mistakes.
The article serves as a good reminder of some of the more subtle pitfalls to watch out for in negotiating settlements, such as:
Here’s a local Palm Beach County case that powerfully illustrates why couples entering subsequent marriages may wish to enter prenups if they have children from previous marriages.
The subsequent marriage was quite lengthy and the couple amassed many millions in assets. The marriage fell apart and there was a vigorous dispute over the assets.
Before a property settlement agreement was finalized, the husband died in an accident.
The wife then contended that the divorce proceedings should be terminated - a position well supported by law.
The husband’s family contended that a temporary agreement should be made permanent.
Although permanent agreements often do turn out quite similarly to permanent agreements, it doesn’t have to happen that way. And temporary agreements are - by definition - temporary, that is, only intended to govern during the divorce case.
The trial court adopted the husband’s argument. The wife appealed and later passed away. But the appeals court just ruled in her favor.
So what happens to all those millions the husband made?
They will be inherited by the wife’s son from a previous marriage.
Even parents with more modest estates agonize over the prospect of their own children being similarly disinherited in favor of a subsequent spouse’s children from a previous marriage.
There’s a moral here: this “surprise” outcome could have been easily avoided with just a little premarital planning.
Read more in this Palm Beach Post article: Widow wins money battle posthumously.
Florida Corrections Secretary recently pleaded guilty to taking kickbacks from the operator of commissaries in Florida prisons.
As part of the punishment for his crimes, the Corrections Secretary forfeited his pension and retirement benefits.
The Corrections Secretary was married to his wife throughout nearly his entire corrections career. They were just divorced.
As part of the property division in their divorce, the Corrections Secretary was awarded half of his pension and retirement benefits - the ones he forfeited when his crimes caught up with him.
Will the Corrections Secretary’s wife get to keep her share of the pension and other retirement benefits?
The argument on behalf of the state is that the wife’s benefits derive solely from her husband’s now-forfeited benefits.
The argument on behalf of the former wife is that she was an innocent spouse, who did not commit any crime or have any knowledge of her husband’s criminal activities.
The concept of the innocent spouse is borrowed from US tax law, grounded in principles of fairness and equity.
It appears that the appropriate family court orders for the wife to receive her benefits were already entered. Therefore, the burden will be on the state if it wishes to challenge her entitlement.
Read more in this St. Petersburg Times article: State, ex-wife want Crosby pension.
In most states, pets are viewed legally as property, to be equitably distributed in a divorce.
In practice, pets typically follow the children in a divorce.
But what about when the pets are the children, the only children?
Childless couples can be as attached to their “pet children” as couples with human children are to their children.
The law’s very different current view of pets can be powerful incentive to settle pet “custody” by mutual agreement, rather than incur the displeasure of a judge.
But change may be in the wind.
More and more divorcing couples do see what happens to the family pets as a custody / visitation issue.
And the Animal Legal Defense Fund is lending support to their cause.
In an 18 page friend of the court legal brief, the Fund makes it clear that pets do have preferences as to caretakers and the best interests of the pet deserve consideration.
And animal law, including animal rights law, is gaining recognition as a distinct branch of the law.
It’s likely only a matter of time before custody law catches up to pet owners’ (or pet parents’) perceptions.
Read more in this Hartford Courant article: It Can Be A Regular Dog Fight.
A recent New Jersey case serves as a reminder that “getting the goods on your spouse” via their computer may not be all it’s cracked up to be.
In this New Jersey case, the spied-on wife walked away from their divorce with an extra $7,500 because of it. That’s bad enough.
But unauthorized interception of real-time electronic communications is illegal in some states, including Florida. This parallels non-consensual phone-tapping, which is also illegal in many states, including Florida.
The “goods” probably won’t be allowed in family court - and you may go to jail for your trouble.
And even if the goods are admissible, the risks may all have been for nothing.
Real-time communications, such as in chatrooms and instant-messaging, are likely to show only infidelity. In no-fault states, such as Florida, one spouse’s infidelity often has no impact on their divorce case.
Read more about the consequences of interception of real-time electronic communications in this ZDNet article, Police blotter: Husband spies on wife’s computer and this other ZDNet article, Court: Wife broke law with spyware on a Florida case.
Since bigamy is a crime, one might be tempted to conclude that a bigamist should lose out in the division of property from his or her prior, valid marriage.
But that’s not necessarily so.
Many states, like Florida, have shifted to no-fault divorce schemes.
Under such schemes, bigamy may be viewed as an example of non-economic fault, which should not normally be considered in a divorce.
And so the New Mexico Court of Appeals reasoned when it recently held that mere bigamy is no reason to deviate from New Mexico’s community property scheme requiring a 50/50 split of marital property.
Read more in this KGWN TV news article.
The US Senate Armed Services Committee has reportedly approved changes intended to update and streamline the Uniformed Services Former Spouses Protection Act .
Highlights of the proposed amendments include:
These amendments still have to be passed by the full Congress.
Lobbyists on behalf of military spouses reportedly seek additional amendments.
Read more in this Everett (WA) Daily Herald article.
Divorce Online has published this handy article containing tips on finding Unreported Income and Hidden Assets.
A couple of highlights:
A Wisconsin couple’s divorce isn’t going to be amicable or private.
The wife alleges that the husband
Only the last allegation of asset hiding is routine in a case like this, in which the husband is a respected businessman.
The wife is seeking significant monetary damages, including substantial punitive damages.
Read more in The wife of a Husdon, Wis.-area businessman says she was abused and forced into a sex-slave agreement.
Attorney / stockbroker Adriane Berg suggests 10 strategies to divide the property in divorce courtesy of MSN Money.
This article is worth reading for anyone whose divorce includes property division. Be forewarned that some of the advice is not really practicable for divorces with modest assets, or where one or both spouses is unwilling or unable to function in a reasonable and civil manner.
But, for those couples with preconceived notions about equitable distribution (”let’s split each asset and debt, one by one”) that are off-base, the article brings home the important message that there are many different strategies for property division - with, potentially, very different net outcomes. And it may stimulate more creative thinking, from a “bigger picture” perspective.
That’s a win-win for both spouses and any children they have.
This blog has previously noted that prenuptial agreements have becoming increasingly popular. But a South Carolina news article raises a very valid point: you may need more than a premarital agreement.
Although the article is aimed at seniors contemplating second (or later) marriages, much of the advice is relevant for people planning to marry at any age.
A couple of often-overlooked points are well worth repeating:
What happens to the family pet in a divorce? The answer may require looking beyond the present state of the law, in most states, in many cases.
As discussed in a previous post, legally, Fido is marital property, to be divided, along with the silverware and the bank account.
In reality though, every pet owner knows that a pet is entirely different, a member of the family. And no one but King Solomon would propose dividing a member of the family.
In practice, where the family has minor children, the pet normally lives with the children and the custodial parent. That rarely has to go to a judge.
But where the couple doesn’t have minor children, the law often falls short. According to this Memphis news story, it sounds like Tennessee has adopted the same rule of law as Florida.
But laws can be interpreted and applied in dramatically different ways. In this case, property division is described as being about possession and not custody.
It just looks like custody and visitation.
From the Concord (NH) Monitor:
Back in the 1980s, a New Hampshire judge awarded a husband to pay his (second) wife a sum of money as a property settlement in their divorce.
As sometimes happens, the husband never complied with the New Hampshire court order.
Fast forward to 1999 in Connecticut, where the husband brings suit challenging the validity of his Mexican divorce from his first wife and, as a result, his subsequent marriage and New Hampshire divorce from his second wife.
The Connecticut court ruled that the Mexican divorce was invalid.
Thereafter, a New Hampshire judge apparently refused to modify its prior divorce judgment to conform to the Connecticut court’s subsequent ruling. And the New Hampshire Supreme Court upheld him.
The husband then brought suit in federal court in Connecticut to enforce the Connecticut state court ruling nationwide, apparently intending to use it to his advantage in New Hampshire. The federal case was dismissed.
Fast forward to 2006. New Hampshire legislators bring something called a bill of address to remove the New Hampshire judge from the bench - because of his failure to honor the Connecticut ruling.
While the law does sometimes work in mysterious ways, in this particular case, one might speculate that other forces are working in mysterious ways.
Granted, the doctrine of full faith and credit generally requires states to honor valid judgments previously entered in sister states. But in this case, the Connecticut judgment was entered years after the New Hampshire judgment.
And, based on the limited information contained in the article, it is difficult to see the basis for the Connecticut court’s jurisdiction to enter a valid order.
This case illustrates an important real world observation: legal cases may be fought in a courtroom based on the law and the facts at hand but, under the right circumstances, the outside world and non-legal considerations may intrude - even if it takes years.
The Utica (NY) Observer-Dispatcher recently ran an interesting article, New Court Combines Domestic Cases. In upstate NY, the article reports, they have been introducing Integrated Domestic Violence Court.
What’s that? In a nutshell, if family members appear in domestic violence court, any subsequent family legal matters (such as divorce, crimes between family members, custody and visitation issues, etc.) will be heard in that same courtroom, before that same judge.
Here in Florida, we have been gradually implementing throughout our state a variation on that theme. In Florida, we call itUnified Family Court. Under this new paradigm, all family type cases are now heard in a Unified Family Court by the same judge.
Although demanding of our judges and our court clerks, this new court model finally enables and empowers the courts to do what family lawyers have always done: (directly or indirectly) serve the family as a whole.
As part of this transformation of the family court system in Florida, Unified Family Court judges are reportedly receiving more comprehensive training in allied legal disciplines than previously. With a thus specially-trained presiding judge observing the entire family dynamic firsthand, he or she will be in far better position to rule holistically on all family-related legal issues.
As a bonus, the legal process should also be less disruptive and more beneficial for families.
What happens to a spouse’s inheritance if there’s a divorce? That question comes up a lot.
And Smart Money tackles it in Hands Off My Inheritance.
The article’s analysis is generally consistent with Florida law. It is worth repeating that, to maintain an inheritance as separate property, inheriting spouses should take care with how they hold and use their inheritances.
Also, it’s important to understand that an inheritance, although not divided, is not ignored or irrelevant in the divorce. On the contrary, an inheritance may be taken into account in how other, marital property is divided - and in whether or how much spousal support there should be.
The year was 1987.
She asked for $1 million as her share of the property division. He refused.
Early on the day of the hearing on whether to set aside their postnuptial agreement, she was murdered by a professional killer.
Law enforcement favored him as the suspect most likely behind it.
Now, a former local Palm Beach resident is standing trial in Georgia for the murder of his wife.
In this unusual case, the wife’s former divorce attorney is a key prosecution witness.
If convicted, the husband may face the death penalty.
You can read more about this case in the Palm Daily News or on CourtTV.com.
Just don’t model own divorce after it.
It’s no surpise that a divorce can have an enormous impact on a small business owned by one or both of the spouses. But, under the right circumstances, a divorce of a key corporate player has the potential to exert an enormous impact even on a publicly-owned corporation.
Consider the pending divorce of Stephen Pomeroy, the recently designated CEO of Pomeroy IT Solutions, a company currently listed on the NASDAQ stock exchange. According to a Cincinnati Post article, Jennifer Pomeroy, his wife, recently filed at least three related lawsuits in addition to her divorce action.
At least one of her lawsuits reportedly strikes at the very heart of corporate operations, alleging serious misconduct by key personnel. And the company reportedly may face being dropped from NASDAQ.
At least one other of her lawsuits reportedly raises very serious questions about her husband’s alleged propensity for violence.
One of the interesting sidenotes of the article is that the Pomeroys reportedly made a prenuptial agreement.
Most people think of prenups as ways to control property that they acquire either before or during the marriage in the event of death or divorce. Or to avoid or limit alimony in the event of divorce.
But there’s another important, although less obvious, reason for prenups that is implicit: the hope of avoiding wide-ranging litigation that may affect a spouse’s reputation and business, whether directly or indirectly.
Sometimes, the best-laid plans go awry …
The Women’s Institute for Financial Education (WIFE) offers guidance from a financial planner on an ever-popular topic in the article
Where to Search for Hidden Assets During Divorce. The WIFE website is actually loaded with financial information which is worthwhile for any woman - or man.
As I’ve posted previously, a divorce is a lawsuit. In many states, that means the lives of the divorcing parties are an open book. Needless to say, most of those books are not the stuff of best-sellers.
But, in one sense or another, some of them are.
Many states, including Florida, now require detailed financial disclosures from divorcing parties, to promote fairness in the division of marital property. Where a divorcing party is a principal or high level executive in a corporation, the the result of such disclosures is that a corporation becomes, in effect (and sometimes literally), a party to a divorce.
In this way, divorce may make wealthy parties and certain businesses vulnerable to becoming the unwitting stars in future best-sellers. Similar publicity can threaten the viability of certain businesses.
For these reasons, wealthy parties and privately-owned corporations alike have been fiercely fighting to evade these public disclosures, to keep what they view as private information, private.
The local Broward Daily Business Review recently ran the article below to spotlight this conflict between privacy protections one the one hand and sunshine (open public records) laws on the other hand.
Broward Daily Business Review
November 18, 2005 Friday
PUBLIC RECORDS; Pg. 12 Vol. 62 No. 32
1708 words
Business and divorce;
PUBLIC RECORDS;
Corporations seek to seal family files to protect trade secrets, salary information, share pricesTresa Baldas
The nation’s courts are getting hit with a growing number of requests to seal divorce records but not by squabbling couples.
Divorce lawyers say corporations ? along with the rich and powerful ? are increasingly asking judges to seal the divorce records of top executives to protect trade secrets or crucial financial information from leaking out, or simply to avoid embarrassment.
Attorneys note that while the courts have long protected children in divorce cases by sealing records, they are now doing the same for companies, treating trade secrets, assets, stock values and executive salaries as valuable, sensitive information that needs special protection.
And with state court records now available on the Internet in 30 states, fears of data theft or data leaks are at an all-time high among businesses.
“This has become an increasingly prevalent issue,” said attorney James Feldman, head of the family law practice at Chicago’s Jenner & Block, who in recent years has seen a notable increase in companies intervening in divorce cases. “This year alone I’ve represented several key executives in divorce cases where a protective order or a confidentiality agreement had to be obtained in order to prevent information from getting out.”
Feldman noted that companies fighting disclosure of financial data in divorce cases has become more popular in recent years.
“It seems like in the old days it wasn’t done that often. And in the new days, it happens all the time,” Feldman said, adding that judges have become more sensitive to corporate concerns, especially “if you can show that disclosure will harm the business.”
Meanwhile, attempts to restrict or limit access to divorce records have kept divorce lawyers and corporate counsel busy in the courtroom.
Most recently in California, on Oct. 17, investment giant Capital Group Cos. convinced a California judge to limit access and seal secret company information in the divorce trial of one of its executives.
Also in California, billionaire investor Ron Burkle is seeking to keep his financial records sealed in his divorce, and is appealing a March court ruling that struck down a California law allowing financial data in divorce records to be sealed. A group of newspapers is challenging that year-old law on constitutional grounds.
In New Hampshire, a new law that seals financial statements in divorce and child support cases is being challenged before the state Supreme Court by five newspapers. The case isAssociated Press v. State of New Hampshire.
In Connecticut, the sealing of divorce records triggered a major controversy in 2003 when the Connecticut Law Tribune, a sister publication of the National Law Journal and the Daily Business Review, discovered a “super-secret docketing system” that allowed special treatment for prominent divorce cases and other civil matters. The Connecticut judiciary passed new rules that set standards for the closing of courtrooms and sealing of materials, among them a rule requiring a judge to articulate the reasons for the closure or sealing and why they override the right of access.
Family lawyers irked
On the legislative front, several states have introduced legislation in recent years to restrict public access to divorce records. California, New Hampshire and Virginia successfully passed bills limiting access. Colorado and Kentucky tried but failed to pass similar laws. And Utah and South Dakota are considering measures to limit access.
Such attempts to restrict public access to divorce documents have irked First Amendment lawyers and many family law practitioners, who argue that the proceedings are too secretive and foster the perception that the rich and powerful get special treatment in the courts.
“The desire for corporate secrecy is outweighing the public’s right to know,” said First Amendment attorney Susan Seager, who argued against the sealing of records in the recent California case involving Capital Group Cos.,Armour v. Ritter. “When courts conduct private proceedings behind closed doors it creates public mistrust and suspicion.”
That is what she claims happened in the divorce trial of 45-year-old Timothy Armour, an executive with Capital Group, which last month convinced a judge to partially close the divorce trial to the public and seal various exhibits and transcripts. According to court documents, attorneys for Capital Group argued that certain information, such as executive pay levels and stock awards, would hurt the company if made public.
“CGC strongly believes that it is absolutely vital to its competitive position and business interests, as well as the privacy interests of its associates and employees, that its confidential information be protected from disclosure to the public,” attorney Pamela Palmer of Latham & Watkins’ Los Angeles office, who is representing Capital Group, stated in court documents.
Palmer declined to comment.
Philip De Toledo, chief financial officer for Capital Group, stated in court records that disclosure of his company’s financial position, stock ownership and employee compensation “would be an informational windfall” to competitors. He also argued that disclosure “would be very harmful to CGC’s corporate culture and the morale of its employees.”
Those claims outraged Seager, who in arguing against Capital Group on behalf of the Los Angeles Times, the Associated Press and a newspaper group, claimed that the company had no grounds to close the trial.
“An executive salary is a trade secret? I’ve never heard of that before. And they argued that [disclosure] would hurt company morale. That doesn’t seem to be a basis for shutting down a trial,” Seager said. “It’s one thing to ask that part of a deposition be sealed, or a part of a record that reveals an honest-to-God trade secret … but that doesn’t mean that the guts of the trial ? the testimony, the opening statements ? are done behind closed doors.”
Only for the rich?
Several divorce attorneys across the country echoed Seager’s sentiments, maintaining that the public’s right to know how divorce proceedings are conducted outweighs privacy rights. Several also expressed concern that public access to divorce records is increasingly becoming threatened.
“I think that perhaps we’re seeing a lot more of this coming to light now. I also think that more people are becoming aware that divorce records are public records. And people are much more sensitive to wanting more records sealed,” said divorce attorney Sharyn Sooho, founder of DivorceNet, a 10-year-old divorce consulting Web site.
Sooho believes that the public is best served with open divorce records, not closed ones.
“It should be well known to the litigants that the records are not sealed. It begins that slippery slope: ‘What’s too private? What’s not?’ We don’t have to tell everything to the public to be discreet,” Sooho said.
Albert Momjian of Philadelphia-based Schnader Harrison Segal & Lewis said that his concern with sealing divorce records is that only the rich and powerful who can afford attorneys will have access to such privileges.
“When they’re sealed, they’re going to be sealed for the high-profile cases. And I don’t think it’s fair when people who don’t have that kind of wealth can have their smut exposed,” Momjian said. “Why should wealthy people get the protection that other people should get?”
Momjian noted, however, that the courts aren’t always willing to help the rich. Ten years ago, when he handled the divorce of Larry King, he requested that court proceedings remain closed. The judge said no and allowed 16 reporters to come in.
“The judge said, ‘This is a public forum and a public courtroom. There’s no reason to do that,’ ” Momjian recalled.
Faster settlements
From a strategic standpoint, divorce attorney Steven Lake of Chicago-based Lake Toback & D’Arco believes that an open-records policy helps divorce lawyers secure settlements faster.
He noted that when company executives know that information in court proceedings could be made public, they’re more likely to settle with a spouse than risk possible embarrassment or disclosure of sensitive company information.
“I’ve got a woman whose husband’s family is worth a billion dollars. And the fact that we’re going after them and that some of this stuff may become uncomfortable is exactly the leverage I need for them to sit down at the table with us and settle the case instead of screwing around with it,” Lake said.
On the other hand, Lake, who also represents companies that get tangled in divorce cases, acknowledges that not everything should be made public in divorce litigation. He said that there are ways for attorneys to get around open-records laws so that sensitive corporate material remains out of the court file.
For example, he said, divorce settlements can be drafted in a way that they don’t have to be filed with the court.
“We strongly recommend that when a company receives a subpoena in a divorce case that they maintain their own counsel and come in and try to protect themselves. And I think the judges are sensitive to that,” Lake said.
“I don’t think it should be a secret system, but you should have the opportunity to protect children and protect people from needless public exposure, companies too,” he said.
Atlanta divorce attorney John Mayoue, who has handled the divorce cases of Jane Fonda, Newt Gingrich and Halle Berry, believes that there should be a limit on the public’s right to know.
Given the rise of the Internet and the looming threat of identity theft, he said that open divorce-records policies should be limited to facts of public interest and not include any personal finances or personal matters.
“I think it’s stretching the First Amendment to say that the public needs to know the balance ‘John Q’ has on his MasterCard,” said Mayoue of Warner Mayoue Bates & Nolen in Atlanta.
Mayoue currently is handling several divorce cases in which he is seeking to have financial information sealed.
“My biggest concern is having persons with access to personal information that they will misuse,” Mayoue said.
“A lot of courts don’t like to seal. But courts will find ways to provide protection for confidential information,” he added. u
Tresa Baldas reports for the National Law Journal, an affiliate of the Daily Business Review.
For educational purposes only and not intended to infringe on Copyright 2005 ALM Properties, Inc.
Back in September, I posted on the topic of Artificial Intelligence Previews Alternative Final Judgments. My post was totally inspired by an article I had read in the Sydney Morning Herald about a software project in Australia. You can read my original post with the text of the Herald article here.
One of the developers of the profiled software, Professor John Zeleznikow of the School of Information Systems at Victoria University, recently e-mailed me with some comments on my post. I thank Professor Zeleznikow for his readership, for sharing his insights and for granting me permission to post his comments below.
A very interesting article.
I think you have misunderstood some of our research. Reading a
newspaper article does not give the full details of our work.First of all, we do not claim everything can be reduced to rules. In
some areas we use machine learning to try to understand patterns of
judicial decision making. And we accept there should be no
inferencing re child welfare or refugee law.In Australia, child support is mandated - the court has no discretion.
We have learned how judges distribute property.
We do not argue that child custody should be awarded to a parent
simply because that parent wants it the most and allocates the most
points to it. In fact we explicitly say interest based negotiation is
more relevant to industrial relations than child welfare issues.In Australia, parents do not have automatic rights to see for or care
for their children (the only test is the paramount interests of the
child). Nevertheless, some parents still negotiate as if they own
their children.
I stand by my original post, which, like my comments in this post, are about family law dispute resolution software generally and not about any specific piece of software in particular . As to the Victoria University software project, I have no specific firsthand knowledge or experience with it.
Still, I don’t think Professor Zeleznikow and I are in disagreement.
Rather, I think my original post focused on why I think the glass is half empty with respect to family law dispute resolution software in general. And Professor Zeleznikow’s comments focus on why he thinks the glass is half full.
I think we both agree on what it is that is in the glass though.
I look forward to following the progress, evolution and adoption of Professor Zeleznikow’s intriguing software in the field.
| Listen to Janet |