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.

Think Before You Text…

Or email, or update your Facebook status, or tweet – because the use of evidence from smart phones and social networking sites in family law matters is on the rise.  The American Academy of Matrimonial Lawyers, a prestigious national association of family law attorneys, released the results of a survey which indicates that 92% of the AAML’s members have seen an increase in the use of evidence from iPhones, Droids, and other smart phones in family law matters in the last three years.  Overall, 94% of AAML members said that they have seen an increase in the use of text messages in particular.

In an interview with Reuters, Ken Altshuler, president of the AMML, notes that the immediacy of text messaging causes some people to fire off angry messages to their ex without thinking about the possible consequences.  As a result,  “spontaneous venting” via text message can be useful evidence of  a family law litigant’s “thoughts, intentions, and actions.” And, because text messages aren’t as easy to reproduce as an email or other written communication, many people wrongly assume that their ex won’t be able to present a nasty text to the court later.

According to the AAML’ s members, other popular types of smart phone evidence and internet include e-mails, internet search histories, and Facebook pages.

Evidence from smart phones and social networking sites is most definitely becoming a popular tool in family law cases – and not without controversy.  Back in November, I wrote about a Connecticut case in which estranged spouses were ordered to swap their respective Facebook passwords so that their attorneys could search for evidence relevant to a nasty custody dispute. There’s a story in the news this week about an Ohio man who was found in contempt of court and ordered to post an apology to his wife on his Facebook page after he wrote a long rant about his contentious divorce on the site.

While some of these cases do raise credible concerns about privacy and free speech rights, the average family law litigant should still heed their inherent warning: be careful what you say on the internet, and in texts and emails, if you’re involved in a litigation with your ex.  Today’s technology makes it all too easy for a slip of the electronic tongue to come back to haunt you.

Stories via Yahoo! News, the AAML, and WBTV.

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.

Question

My ex and I have two kids together.  We’re not divorced yet, but we’ve been separated for several months. Since we split up, we’ve been able to work out a schedule where the kids live half of the time with me, and half of the time with my ex.  We have recently decided to move forward with a formal divorce, and my ex mentioned that we’re also going to have to figure out how much child support is going to be. However, I have heard that when you have a 50/50 parenting plan, there is no child support payment between the parents.  Is this true?

Answer

In some cases, the court will reduce or even eliminate a parent’s child support obligation based on the amount of time that the children spend with that parent.  However, the right to such a deduction (legally referred to as a “deviation”) is not absolute.

Washington statute RCW 26.19.075(d) sets out the standard for a deviation based on the residential schedule.

To summarize, a parent who wants the court to reduce their child support payment due to the residential schedule has to prove three things: (1) that a support reduction won’t cause a financial hardship in the child’s other residence; (2) that the parent seeking the reduction has increased costs due to the amount of time spent with the child; and (3) that the other parent’s expenses are decreased due to the amount of time the child spends with the parent who is seeking the deduction.

In other words, simply having a 50/50 schedule does not guarantee that a parent won’t have to pay child support to the other parent.  You should consider consulting with an experienced family law attorney about the specific facts of your case in order to determine whether you might be entitled to a deviation.

Systemic Bias or Selective Fact Finding?

Last week the Seattle Weekly ran a cover story detailing a supposed “systemic bias” against men in King County’s family court system.

In a rebuttal article – currently posted on Slog, the blog for Seattle’s other weekly, The Stranger – Rao & Pierce managing partner Christopher Rao takes issue with the article’s conclusions, arguing that decisions in family court are not based on gender stereotypes, but rather:

The truth is that wining in Family Court depends mainly on avoiding dubious he-said, she-said hysteria, and instead presenting a reasonable proposal to the court, backed by solid evidence from reliable sources.

You can read the entire article here.

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.

Divorce can be an especially painful process for parents with infants.  In addition to the stress and emotion of caring for a new baby, the parents also have to adapt to living apart and co-parenting under less-than-ideal circumstances.  And, unlike older children who are capable of expressing their feelings verbally, it can be difficult for parents to determine how their conflict is affecting their infant.

In his column this week, parenting advice columnist Mr. Dad responds to the concerns of a man in just this situation.  His key points:

First, it’s not the divorce itself that can negatively impact a baby, it’s the behavior of the parents during the divorce. Obviously, a baby is not capable of understanding what a divorce is. However, babies can and do pick up on the emotions of their parents; they will react to a hostile or depressed home environment.

Indeed, because of this, Mr. Dad points out that parental separation can actually be good for a baby, as it may eliminate hostility in his environment.

Secondly, living in a high conflict environment or with a very depressed parent will affect a baby’s behavior and development.  A baby who is living with openly feuding parents may be prone to cry and fuss more than a baby who is not.  A baby with a parent too depressed to pay full attention to him may start exhibit depressive behaviors, such as sluggishness and decreased appetite.

In order to avoid this, Mr. Dad advises both parents to put their child’s needs first and avoid engaging in conflict in the baby’s presence.  (This advice is obviously applicable to children of any age.)  Secondly, in the case of an infant, set up a schedule where each parent can see the baby on a daily basis.  This will encourage bonding because babies have very short memories and need regular contact to build a bond.  This is especially important for dads, who do not have the natural, daily connection of breast feeding to share with their child.

Finally, be sure to be interactive with your baby during the time you do have – play, sing, cuddle, etc.  Don’t let your emotions about your spouse get in the way of your growing relationship with your child.

Check out Mr. Dad’s whole column 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.”

According to the Telegraph, a ninety-nine year old Italian man has set a new record: world’s oldest divorce petitioner.  The man, identified only as “Antonio C.”, discovered letters indicating that his ninety-six year old wife “Rosa C.” had carried on an affair during the 1940s.  The devastated man confronted his wife, who admitted that she had indeed been unfaithful some 70-odd years ago. Antonio has since filed for divorce.

The couple, who briefly separated approximately ten years ago, have five children, twelve grandchildren, and one great-grandchild.  Antonio now has the distinction of being the world’s oldest known divorce petitioner, surpassing a 98 year old couple who divorced in England in 2009.

 

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