Last week the Washington Post published an interesting peek into the uniquely complicated marriages and divorces of CIA agents.  Unsurprisingly, the secrecy required of CIA agents can take a tremendous toll on the civilian spouse, leading to an “astonishingly high” rate of divorce in the agency.

The article highlights to story of one unidentified woman’s divorce from her CIA agent husband, which at times reads a bit like something straight out of a spy thriller:

Her sense of being used grew more acute two years later when her husband asked her to visit a winery with their newborn daughter.

“I said, ‘No, unless you tell me what we’re getting into,’ ” the woman recalled.

He revealed the ulterior motive: A potential informant was meeting that day with a CIA colleague at the winery. But the colleague was not going to show up. The agency wanted to see how the informant would handle a surprising situation, the wife said she was told. The CIA needed her husband to observe the informant’s behavior. And the husband needed his wife, with baby in tow, to help him blend in.

The family of three found seats on a bench at the winery, the wife said. She fed the baby while they kept an eye on their target: The man in the dark suit waited 15 minutes before he made several frantic phone calls, the wife recalled. Eventually, he left.

Meanwhile, over on the Huffington Post’s divorce blog, you can read up on the affairs and divorces of presidential candidates throughout history, starting with a recount of Franklin Delano Roosevelt’s two year affair with a younger woman who also happened to be Eleanor Roosevelt’s personal secretary. The article was inspired by the recurring media hubbub over Newt Gringich’s three marriages (and two divorces).

In addition to providing mildly titillating details on the escapades of various presidential candidates, the article highlights how Americans’ views on divorce and adultery have changed over time.  In FDR’s day, a divorce and/or affair could be political suicide (if the media chose to report it, which they often declined to do). Today, Newt’s alleged marital misconduct – including an allegation that he served his ailing wife with divorce papers while she was in the hospital – are of little concern even to most very conservative voters.

Cynthia Shackelford suspected something was up with her husband when his late nights at the office became more frequent and charges at fancy restaurants started appearing on his credit card bill.  So, she hired a private investigator, who confirmed her heart wrenching suspicions: her husband of 33 years was having an affair with a woman named Anne Lundquist.

Shackelford and her husband, Allan, have separated and are now in the process of divorcing.  But Shackelford wanted more than a divorce from her cheating husband – she wanted to send a message to would-be adulterers: “you don’t go after married men and break up families.”

So, under a centuries-old common law doctrine known as “alienation of affection,” Shackelford sued Lundquist for intentionally seducing her husband and ending her marriage.  And, last week a jury ordered Lundquist to pay $9 million in compensatory and punitive damages.  In an interview with ABC’s Good Morning America, Shackelford said she was shocked at the amount of the jury’s award.  Lundquist (who did not appear at the trial and says she will appeal) called the verdict “hysterical.”

Like the common law action for breach of a promise to marry, the alienation of affection doctrine dates back to the era when marriage was viewed as a property transaction, with the wife herself considered the property of the husband.  Thus, if another man swooped in and “stole” the wife by seduction, the aggrieved husband had a right to compensation.  In modern times, states that still recognize the doctrine allow either spouse to sue.

The vast majority of U.S. states have abolished the doctrine – including Washington State, which did away with it by way of a 1980 Supreme Court decision in the case of Wyman v. WallaceIn that opinion, the court endorsed the appellate court’s decision to bar a man from suing the man who had an affair with his wife.

In the Wyman opinion, the Supreme Court agreed with the Court of Appeals’ five stated reasons for eliminating the doctrine, which were that:

(1) The underlying assumption of preserving marital harmony is erroneous; (2) The judicial process is not sufficiently capable of policing the often vicious out-of-court settlements; (3) The opportunity for blackmail is great since the mere bringing of an action could ruin a defendant’s reputation; (4) There are no helpful standards for assessing damages; and (5) The successful plaintiff succeeds in compelling what appears to be a forced sale of the spouse’s affections.

In short, Washington courts now see such an action as promoting an outdated and unrealistic view of marriage, while also being a potential weapon for abuse of the legal process.

Only seven states continue to recognize the alienation of affection doctrine: in addition to North Carolina, Hawaii, Illinois, Mississippi, New Mexico, South Dakota, Utah all permit a wronged spouse to sue their personal home-wrecker.

Source: ABC News.

In this three-part series, we’re examining the Washington common law remedy of “de facto parentage,” which will sometimes afford parental rights to individuals who are not legally considered parents to a child, if they can prove that they have – in the words of the Washington Supreme Court – “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”

In this third, and final, part of the series, we’ll examine an opinion recently issued by the Washington Court of Appeals that clarifies the application of the doctrine to step-parents.

2011: In re the Custody of B.M.H.

Like the M.F. case, the facts of B.M.H. are somewhat complex:

Background:  In 1993, a woman, dubbed “LH” by the court, and a man, referred to as “MH” by the court, started a romantic relationship.  In 1995, LH and MH had a child, “CH.”  In 1998, LH and MH broke up.  That same year, LH began a new relationship, got engaged, and became pregnant. In early 1999, her fiance – the father of her unborn child – died in a workplace accident.

MH and LH rekindled their relationship at some point after the death of LH’s fiance.  MH became very involved in LH’s pregnancy.  He was present when the child, “BMH” was born (he even cut BMH’s umbilical cord).  Shortly after BMH was born, LH and MH got married.  But, their marriage was short-lived and LH and MH were divorced in 2001.

The final parenting plan entered in their divorce contained a residential schedule for CH (the child that LH and MH had in 1995 during ‘Round 1′ of their relationship), but did not address BMH.  However, both CH and BMH spent substantial amounts of time with MH in the years after the divorce.  Indeed, both LH and MH acted as though MH was BMH’s father throughout BMH’s life.

For example, in 2002, and after the divorce, LH changed BMH’s last name to MH’s last name.  In 2008, MH and LH discussed having BMH adopted by MH, but decided against it due to to the fact that BMH was entitled certain death benefits from his biological father’s estate; those benefits would be terminated if BMH became the legal child of MH.  In addition, MH had regular visits with BMH, usually at the same time he had with CH.

However, the parties had periods of conflict over BMH’s relationship with MH.  Problems always arose, MH contended, whenever LH began new relationships. According to MH, LH had “multiple and very short-term relationships with other men and frequently during those times she has on occasion tried to limit my involvement with [BMH].”

Indeed, it appears that LH had a rather chaotic personal life that included another, very brief, marriage, and numerous other short-lived romantic relationships.

In 2009, CH moved in with MH, while BMH stayed with his mother.  MH soon learned that LH was planning to move BMH to Vancouver, BC so that they could live with LH’s newest boyfriend.

De Facto Parentage Petition.  In February of 2009, MH filed a petition for establishment of de facto parentage, of BMH*.  He argued that the move would disrupt BMH’s life by taking him out of the only school he’d ever attended. He also argued that the mother was unstable and that her frequent short relationships with various men were damaging to BMH.

The court appointed a guardian ad litem to investigate and report on an appropriate parenting plan for BMH, and ordered LH to keep BMH in his current school until the report was released.  The court also ordered that BMH continue to have time with MH on alternating weekends.

The court later entered an order in which it found that MH had established a prima facie case for de facto parentage.  LH appealed by filing a revision motion. Before the hearing on that motion, the Washington Supreme Court issued its ruling in the M.F. case.  The court proceeded to grant the mother’s revision motion, holding that the M.F. case barred a stepparent from petitioning for de facto parent status.

Now it was MH’s turn to appeal, and the case went on to the Washington Court of Appeals.

The Court of Appeals issued its opinion on December 6, 2011, and found that MH could be considered BMH’s de facto parent.  The court noted that the M.F. decision was subject to two interpretations.

The first interpretation was that M.F. stood for the proposition that a stepparent could never be a de facto parent.

The second interpretation was that a stepparent, or former stepparent, could not be a de facto parent to a child who has two existing, fit parents.

The court adopted the second interpretation, and found that because BMH had only one living biological parent (LH) when MH stepped in as his other parental figure, MH had a case for de facto parent status. The court concluded as follows:

[W]here, as here, a child has only one existing parent when a former stepparent enters the child’s life, the former stepparent may assert a de facto parentage.

The court then sent the case back to the Superior Court for a factual determination regarding whether MH’s case met the factors set forth in L.B.

Conclusion

The B.M.H. case has clarified the law of de facto parentage with respect to stepparents for now.  To summarize, a stepparent may be able to attain de facto parent status if the child at issue has only one living parent, and if the stepparent can prove the L.B. factors:

(1) the natural or legal parent consented to and fostered the parent-like relationship,

(2) the petitioner and the child lived together in the same household,

(3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and

(4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

And, of course, under L.B., de facto parent status may also be established by a non-biological parent after the break up of committed but unmarried relationship between persons of the same sex.  However, with Washington having recently legalized same-sex marriage, establishing parental status in the context of a same sex relationship may become much less complicated (assuming that a same sex couple chooses to form their family bond through marriage).

It may well be that we’ll soon see another development in the evolution of the de facto parent remedy.  We’ll be sure to update accordingly.

__

 *MH also petitioned for other relief, including non-parental custody of BMH, but for simplicity’s sake, we discuss only the de facto parentage action.

Heartbreak on Display

If you’ve ever been through a painful divorce or breakup, chances are at some point you found yourself staring at an object that was once a treasured token of  your great  love – the movie ticket from your first date, the dried flowers from a Valentine’s day bouquet, the thoughtfully compiled mix CD – and saw only an irritating or even painful reminder of your relationship’s demise.  Your usual options for getting rid of unwanted relationship ephemera?  Toss it, sell it, give it away, or, if you’re feeling more extreme… destroy it.

But, there is another avenue for freeing yourself from the weight of such painful trinkets: donate them to the Museum of Broken Relationships.

The creators of the museum, Olinka Vištica and Dražen Grubišić, aim to create a “collective emotional history” by displaying the cast-off symbols of love gone wrong.  Their collection features everything from a discarded wedding dress to a cell phone, each item with a written explanation of the significance to the donor.

The museum’s permanent collection is in Zagreb, Croatia, so chances are you won’t be able to find solace in the Museum’s artifacts of heartache (or dine in the Brokenships Cafe) without a rather expensive plane ticket.  However, you can donate your unwanted trinket, or check out some of the exhibits online, from anywhere in the world.

Abraham Lincoln: Divorce Attorney

A few years ago, I was fortunate enough to be in Washington D.C. during the running of the “Abraham Lincoln: An Extraordinary Life” exhibition at the National Museum of American History.  The exhibition was wide-ranging in scale, but of particular interest to me was the portion describing Lincoln’s 23-year career as a “prairie lawyer” in Springfield, Illinois.  I was surprised to learn that I was in good historical company when I read that Honest Abe specialized, among other things, in family law.

Lincoln or his law partner, William Herndon, were involved in around 140 divorce cases during their association.  Lincoln and Herndon were in practice over a century before the dawn  of “no fault” divorce laws, but at least one historian has argued that the records of Lincoln and his law partner’s divorce cases indicate that Illinois courts were relatively liberal in granting divorces during their time.

At the time that Lincoln was in active practice, Illinois state law provided seven grounds for divorce: (1) adultery, (2) bigamy, (3) impotence, (4) willful desertion, (5) extreme and repeated cruelty, (6) repeated drunkeness, or (7) commission of a felony.

According to the research of Stacy Pratt McDermoott, 63% of Lincoln’s divorce clients were women; 79% of them succeeded in their request for a divorce.  His male clients obtained divorces 69% of the time.  For woman plaintiffs, the most successful claim for divorce was cruelty and drunkenness.  For men, claiming an adulterous wife was most effective.

According to McDermott, these rates indicate that women in Illinois had greater access to divorce than women in the southern and eastern states, perhaps due to the mobile nature of the frontier state’s population.

Check out a brief summary of some of Lincoln and Herndon’s divorce cases here.

The Same Sex Divorce Quandary – Updated!

On a global level, the law regarding same sex marriage seems to be changing every day.  Here in Washington, where”everything but marriage” domestic partnerships have been in effect since 2007,  the state legislature appears to be on the verge of making same sex marriage legal.  And of course, there are six other states in the United States, as well as the entire country of Canada, which already permit same sex couples to marry.

Cue happy same sex couples in less progressive states and countries planning destination wedding in places like Windsor, Ontario and Boston, Massachusetts.

But what happens to these folks if or when the marriage proves to be a failure and they want a divorce? That has proven to be rather tricky.  Two recent news stories out of Canada highlight the conundrum faced by same sex couples who want to legally end their relationship.

The stories concern two different couples who traveled to Canada to get married.  One couple has since split up, with one spouse living in Florida and the other living in the United Kingdom.  The other couple resides in Michigan.  Neither couple is able to obtain a divorce in their home states because those states don’t recognize same sex marriages, and therefore will not grant a divorce.

However, Canada courts will not grant divorces to folks who haven’t lived in Canada for at least a year.  The Florida couple is currently fighting this requirement, arguing it’s unconstitutional.  A lawyer for the Canadian government has further muddied the waters by filing a motion which alleges that the marriage isn’t valid in the first place because the spouses weren’t Canadian residents when they married, and because their marriage isn’t recognized where they truly reside.

The case involving the Florida couple is expected to resolve in February, and the ruling will surely clarify the rights of non-residents to divorce in the jurisdiction where they married.  However, given the ever-changing state of the law across the U.S., in Canada, and beyond, it’s clear that, while it’s getting easier for same sex couples to marry, trying to get divorced may be a a Kafkaesque experience.

You can read the full stories about this issue on the CBC ‘s website.

Update – In response to international outrage regarding the Canadian government’s apparent stance on the martial status of non-residents, the government announced their intent to close the “legislative gap” that made it difficult (if not impossible) for non-Canadians to obtain a divorce in Canada:

We will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada… This of course will apply to all marriages performed in Canada.”

In this three-part series, we’re examining the Washington common law remedy of “de facto parentage,” which will sometimes afford parental rights to individuals who are not legally considered parents to a child, if they can prove that they have – in the words of the Washington Supreme Court – “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”

In this second part of the series, we’ll take a look at how the Supreme Court dealt with the application of the de facto parentage doctrine in the context of a stepparent/stepchild relationship.

2010: In re Parentage of M.F.

In 2010, the Supreme Court addressed the applicability of de facto parent status to a stepparent in the case known as In re Parentage of M.F., 168 Wn.2d 528.  The history of M.F. is somewhat complicated: M.F.’s biological parents separated shortly after she was born in 1993. They divorced in 1995.  At that time, a parenting plan was entered which designated M.F.’s mother as her primary residential parent, but provided for M.F. to spend alternate weekends and some holidays with her father.  It is unclear whether M.F. actually had regular visitation with her biological father after her parents divorced.

M.F.’s mother had begun dating John Corbin when was M.F. was about 14 months old, (before she was officially divorced from M.F.’s biological father).  Corbin and M.F.’s mother married in 1995, the same year in which M.F.’s biological parents were divorced.  During their five year marriage, Corbin and M.F.’s mother had two additional sons; but they divorced in 2002.

The parenting plan in that case gave Corbin substantial visitation with the boys he had fathered with M.F.’s mother.  For about three years after the divorce, M.F. usually lived with Corbin at the same time as the two boys.  M.F. stopped seeing her stepfather shortly after Corbin filed a petition to modify the parenting plan which governed Corbin’s time with his sons.

In 2006, Corbin filed a petition to establish de facto parental status in respect of M.F., based on the factors set forth in the L.B. case.  M.F.’s mother filed a motion to dismiss the petition on the grounds that Corbin did not have a prima facie case for de facto parentage.  That motion was denied by the court, thereby giving preliminary approval to Corbin’s petition (pending a trial).  M.F.’s mother appealed.  The Court of Appeals reversed the trial court, and Corbin sought review by the Washington Supreme Court.

The Supreme Court ruled that Corbin could not be established as M.F.’s de facto parent because (1) M.F. already had two legal parents whose rights would be infringed upon if Corbin was deemed a de facto parent; and (2) because there was another legal avenue available to Corbin to attain custodial rights to M.F.

The Court clarified that in L.B.:

We created a common law method to establish parentage where, had the respondent been able to participate in traditional family formation, parentage would have or could have been established by statutory means. But here, the petitioner is a third-party to the two already existing parents, which places him in a very different position than the respondent in L.B.

In addition, the Court noted that Corbin already had a legal remedy available to him in the form of a petition for third party custody.  The Court pointed to is decision in the Allen case, in which a stepmother successfully sought to have primary custody of her stepson on the grounds that the stepson would suffer “actual detriment” if he were to live primarily with his father.  (You can read a previous article which discusses the Allen case in depth here.)

The standards for establishing third party or nonparental custody were later codified in RCW 26.10.  That statute permits any person other than a parent to become the primary custodian of a child, if neither of the child’s parents are “suitable custodians.”  The person seeking third party custody must show that the child will be harmed by continuing to reside with their parent(s), which is a much higher standard than the “best interests of the child” standard applicable in other child custody proceedings.

The M.F. case was a source of some confusion – some in the legal community read it to mean that a stepparent could never seek de facto parent status over a stepchild; others (including this author), read it to mean that a stepparent could not seek de facto parent status if the child already had two living legal parents.  Luckily, the case we’ll discuss in the final part of this series, cleared up much that confusion… at least for now.  Stay tuned.

“Alimony Reform” Sweeping the Nation?

According to an ABC Action News report, at least three U.S. states have enacted, or are considering enacting, drastic changes to their spousal support laws.  At the forefront of the reform trend (if three states a trend makes), is Massachusetts.  The legislature there is changing state law to eliminate life time alimony, and to enact a formula by which courts will determine how long a spouse has to pay alimony. Proponents of the changes say they bring spousal support laws into the present day, in which many woman earn as much or more money than men.

Two other states, New Jersey and Florida, are reportedly also considering changing their alimony laws.  Florida, for example, is considering barring courts from taking allegations of adultery into consideration when awarding alimony.

So could “alimony reform” come to Washington state?  Not likely.  Washington law did away with the concept of unlimited “alimony”decades ago.  Instead, Washington’s statute regarding spousal support provides for an award of “maintenance” to a spouse, regardless of gender and without consideration of “marital misconduct” (such as adultery).  Maintenance in Washington is intended to provide financial support to a less advantaged spouse for a period of time after a divorce so that they may seek education or otherwise develop job skills, with an end goal of that spouse becoming financially independent.

Washington’s maintenance statute also requires the court to consider the length of the marriage when determining how much support to order, and for how long.  While there is no legally binding formula in place, all Washington courts distinguish between short, mid, and long-term marriages in determining whether and for how long to award maintenance.

So, it would seem that our state is already ahead of the curb in “alimony reform”.  Or at least ahead of Massachusetts, Florida, and New Jersey.

Check out a previous “Ask a Lawyer” for more on Washington’s maintenance statute.

 

It’s probably not altogether uncommon for unhappy brides or grooms to sue over sloppy wedding photos or terrible food.  But Todd Remis of New York has taken the wedding vendor lawsuit to the next level.  He’s suing the photographer and the photography studio for failing to capture every precious moment of his 2003 wedding (specifically, the last dance and the bouquet toss).  He wants them to pay him $4,100 – the cost of the original photos – and another $48,000.00 so that he can re-create the entire wedding for proper documentation.  Says Remis: “I need to have the wedding recreated exactly as it was so that the remaining 15 percent of the wedding that was not shot can be shot.”

It turns out that there may be some logistical problems with Remis’ plan.  For one thing, he is now divorced from the woman whom he claims was insufficiently photographed.  For another, his ex-wife may have moved back to her native country of Latvia, and Remis hasn’t spoken to her in quite some time.

A New York Supreme Court judge has already thrown out most of Remis’ claims, including a claim that the photographer and studio inflicted emotional distress.  However, his claim that the photography studio breached their contract with Remis and his ex-wife stands.

Story via the New York Times.

The Divorce Hotel is Coming to America

And we should have guessed it’d arrive in one of America’s favorite formats – reality television.  That’s right, Jim Halfens, the man who brought the upscale “Divorce Hotel” to wealthy and unhappily marrieds in the Netherlands, has teamed up with an American television producer to bring the Divorce Hotel to American television.  And what better way to drum up some media attention for the still-in-the-works show than by inviting one of Hollywood’s hottest couples in crisis to be the first “guests”?

Yes, Ashton Kutcher and Demi Moore have been formally invited to check into the American Divorce Hotel.  The show’s producer notes that they’re the ideal couple for the show, as they each came into the marriage with their own wealth, and have no children together.

It’s true – the Divorce Hotel, at least its non-televised Dutch incarnation, does seem like an awfully nice way to wrap up a low-conflict, low-stakes divorce, if one can afford the reservation.  But I have a feeling that Halfens won’t be getting a call from either Ashton or Demi any time soon.

Story via New York Post.

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