Chicago Family Law Blog

Same-Sex Marriages and the Federal Defense of Marriage Act

The federal Defense of Marriage Act (DOMA) was signed into law by President Clinton on September 21, 1996. DOMA defines "marriage" to consist exclusively as a heterosexual union of a man and a woman. Further, DOMA directs federal agencies to recognize only opposite-sex marriages for the purposes of enacting any agency programs.

Statutory Language

Among other pertinent provisions, DOMA states: "In determining the meaning of any Act of Congress, or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife."

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State Authority Under DOMA

DOMA also allows each state to determine for itself whether it must recognize same-sex marriages. In other words, DOMA permits a state that has outlawed same-sex marriage to refuse to recognize a same-sex couple that was married in a state permitting same-sex marriage.

Divergent Viewpoints

Critics of DOMA assert that the law violates the following provisions of the U.S. Constitution, and is therefore unconstitutional:

The Full Faith and Credit Clause provides that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Critics argue that Congress exceeded its proper authority under the Constitution by enacting DOMA.
The Equal Protection Clause guarantees that similarly situated persons will be treated alike. Critics of DOMA argue that the legislation illegally discriminates against homosexual couples.
The Due Process Clause protects certain fundamental rights, including the right to enter into a marriage relationship. Those opposed to DOMA argue that the law violates this fundamental right by unreasonably restricting the liberty of same-sex couples.

To the contrary, supporters of DOMA have expressed fear that "liberal" judges will strike down state defense of marriage acts and further erode the "sanctity of marriage." Those opposed to the legal recognition of same-sex marriages have recommended an amendment to the U.S. Constitution. If ratified, the "Federal Marriage Amendment" would amend the Constitution to prevent state and federal courts from redefining marriage as anything other than the union of one man and one woman.

However, the likelihood of the ratification of such an amendment is unlikely, at best. In fact, the Constitution has only been amended 27 times since it was adopted in 1787. Further, in order to amend the Constitution, a two-thirds majority is required in both chambers of Congress (i.e., 290 votes in the House and 67 votes in the Senate), and the amendment must be ratified by at least 38 states.

Tax Issues Associated with Division of Pension Benefits in a Divorce

An increasingly large portion of the assets of married couples consist of rights to payments and stock from pension plans. In many states such assets are subject to division during a divorce. Divorce and division of property are generally controlled by state law, but pension plans are controlled by federal law in many respects.

]]> Pension Plans and ERISA

A major advantage of saving for retirement through a pension plan is that contributions from employees and employers for plans such as a 401(k) plan are not taxed as income until distributed by the plan, usually after retirement, at lower tax rates. However, under provisions of the Federal Internal Revenue Code, the assignment of pension benefits, including transfers to a spouse during divorce, may result in the loss of such tax benefits.

In 1984, Congress passed the Employee Retirement Income Security Act (ERISA), which governs most private pension plans (government and some other plans are not covered, nor are IRAs). To remedy the anti-assignment problem, the Retirement Equity Act of 1984 (REA) amended ERISA to establish an exception to the anti-assignment bar to division of ERISA plan benefits during divorce.

Federal Tax Treatment of QDRO Plan Distributions

To avoid adverse tax consequences, the plan participant/spouse must obtain a "Qualified Domestic Relations Order" (QDRO). A QDRO is usually entered by the court, although under certain circumstances other entities may approve a QDRO. The QDRO must also be approved by the administrator of each plan affected.

The QDRO must contain certain information specified in ERISA, as amended by REA, including the names and addresses of the plan participant and the recipient(s) of the court award (the "alternate payee"). There are also certain provisions that are prohibited in a QDRO, including the authorization of plan benefits and payouts that are not allowed by the plan.

A QDRO creates or recognizes an "alternate payee's" right to receive all or a portion of the plan benefits, or it may actually assign that right to the "alternate payee." An "alternate payee" may only be a spouse, former spouse, child, or other dependent of the plan participant. A validly created and approved QDRO allows the recipient spouse to be treated, for federal income tax purposes, as a plan participant. In addition, the QDRO may allow the alternate payee to take a lump sum withdrawal (if allowed by the plan) or commence payments at the earliest time allowed for retirement, regardless of when the participant actually retires.

Consequences of Plan Withdrawals Absent a QDRO

If a court orders the division of an interest in an ERISA pension plan during a divorce and the plan participant simply pays the amount from the pension plan without obtaining a QDRO, the participant may become liable for an early withdrawal penalty of 10% (depending on age and method of withdrawal), plus income and/or capital gains taxes on the amounts distributed to the former spouse. Federal courts have repeatedly upheld this principle, despite claims of plan participants that they were forced to comply with the court's order and had no other source for the payments, and therefore should not be penalized.

Absent a QDRO, the amount withdrawn from the plan thus becomes income and/or capital gains to the plan participant, not the former spouse. If a valid QDRO is in place, however, the distributions from the plan are treated as income and/or capital gains to the alternate payee/spouse. However, if distributions from the plan are used to satisfy child support or payments to some other dependent of the plan participant/spouse, the distributions are still treated as taxable to the plan participant/spouse for federal income tax purposes, notwithstanding the existence of the QDRO.

Permitting Posthumously Conceived Children to Inherit From a Deceased Parent

Several states refer to children who are born or adopted after the execution of a parent's will and omitted from the provisions of the testamentary instrument as "omitted" or "pretermitted" children. In the interest of fairness, states that recognize the inheritance rights of posthumously born or adopted children have traditionally allowed "omitted" children to inherit under intestate succession (i.e., taking a share equal in value to what the child would have received if the testator had died without a will).

However, the law on the inheritance rights of posthumously conceived children (children conceived after the death of a parent) is less developed. This lack of any firmly established legal precedent for determining the inheritance rights of posthumously conceived children may be attributed to significant and ongoing advances in reproductive technology, which have made it possible for children to be conceived subsequent to the death of a parent.

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Embryo Cryopreservation and Other Reproductive Technology

Advances in "embryo cryopreservation" and other reproductive technology (including the storage of frozen sperm for future use) have aroused new legal issues related to the inheritance rights of children conceived after the death of a parent. In general terms, "embryo cryopreservation" is the process of freezing, storing and thawing embryos not replaced in a fresh embryo transfer to increase pregnancy rates. Similarly, sperm can be frozen and stored for future in vitro fertilization, lasting up to ten years.

Proving Status as "Child" and "Dependent" for Social Security Benefits

Potentially setting a trend in the direction the law might be headed, the U.S. Court of Appeals for the Ninth Circuit held in 2004 that posthumously conceived children should receive the same inheritance benefits as posthumously born children, under certain circumstances. In Gillett-Netting v. Barnhart, the U.S. Court of Appeals for the Ninth Circuit applied a two part analysis to determine the eligibility of posthumously conceived twins for their deceased father's Social Security benefits. In that case, the decedent deposited his sperm to be frozen for future in vitro fertilization after having been diagnosed with cancer (in case chemotherapy rendered him sterile). Before he died, the decedent expressed his intention that his wife could use his sperm to conceive. Ten months after his death, his wife conceived twins.

First, the court set out to determine whether the posthumously conceived twins could prove the "child" status required by the Social Security Act (SSA). The SSA definition of "child" generally includes a "child or leally adopted child," which has been interpreted by the courts to include the natural or biological children of the insured. Extending the general definition of "child" to include the biological children of married parents no matter when conceived, the Ninth Circuit ruled that the twins proved "child" status.

Second, the court considered whether the twins could prove that they were "dependents" of their deceased father, even though the twins never relied on their deceased father's earnings for support (because they were not yet in existence). Under the SSA, "legitimate" children are automatically considered "dependent" for purposes of inheritance. Since the decedent was the "natural" father of the twins and was married to the twins' mother, the court concluded that the twins were "legitimate" under the law of the state in which they resided. Therefore, the twins could be deemed "dependent" under the SSA. Because the twins successfully proved their status as "children" and "dependents," the court ruled that they should be entitled to Social Security benefits based on their deceased father's earnings.

Disparate Rulings in the Ninth Circuit

However, the Ninth Circuit took an entirely different stance in 2009 in Vernoff v. Astrue, denying Social Security survivor benefits to a posthumously conceived child in California. The district court in Vernoff held that there was no showing that the child was dependent upon the deceased, due to the child's posthumous conception. The Ninth Circuit affirmed.

How can the same court, the Ninth Circuit, issue two very disparate rulings on the same issue? The answer is the Ninth Circuit is applying the law of two different states (California law in Vernoff, and Arizona law in Gillett-Netting). Substantial differences in the two state laws resulted in vastly different holdings by the Ninth Circuit.

Rule for Determining Inheritance Rights of Posthumously Conceived Children

In addition to the Ninth Circuit holding, a few states have enacted statutes allowing posthumously conceived children to inherit from a deceased parent if the parent left written consent to that effect (subject to a time limit in some cases). In 2002, the Supreme Judicial Court of Massachusetts established a special rule for when a posthumously conceived child should be able to inherit from a deceased parent under the state's intestacy statute, requiring the child or the child's representative to establish the following:

Proof of a genetic tie
Proof of the now-deceased parent's affirmative consent to posthumous conception and to the support of the resulting child

Despite the aforementioned court decisions and statutes on the question of the inheritance rights of posthumously conceived children, the ongoing advances in reproductive technology and the lack of a definitive legal rule on the subject leave the inheritance status of posthumously conceived children subject to uncertainty.

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Chicago Family Law Blog Receives Honors

Chicago Family Law Blog today received honors as a Top Divorce/Family Law Blog. It is with great pleasure and humility that we are happy to have achieved this honor for the 2009-2010 year and hope that others can appreciate our efforts to bring to the public the news and topics that concern their rights and their families. You can read the story and see the other top bloggers at http://www.attorney.org/law-blogs.html

Establishing Rights and Obligations of Unmarried Couples

The number of couples living together without choosing to get married has more than tripled in the past two decades. Unless the cohabiting couple lives in a state which recognizes common law marriages, living together does not automatically provide them with the legal rights and protections of a traditional marriage. Accordingly, upon separation or death of one cohabiting partner, the law may treat the couple as complete strangers. To prevent such a result, unmarried couples can opt to legally define their relationship by entering into a cohabitation agreement, which will direct a court on how to divide property and assets among the couple.

Cohabitation Agreements

A cohabitation agreement is a legal contract which defines the partnership of an unmarried couple. The agreement is often necessary to preserve some important legal rights, obligations and protections that an unmarried couple necessarily foregoes. In other words, the privileged legal status of married couples, which is provided automatically through custom, statute and agreement, must be affirmatively contracted into by cohabiting couples. Although cohabiting couples cannot achieve all of the legal benefits of married couples (such as tax benefits), a cohabitation agreement provides a good start in defining the rights and responsibilities of each party.

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Cohabitation agreements typically cover the following issues:

Distributing property in case of death or breakup
Obligating financial support during the relationship or upon its dissolution
Handling the payment of and defining responsibility for debts
Dividing the principal residence upon breakup of the relationship
Defining support, custody or visitation rights for minor children (although such an agreement is nonbinding)
Determining the right to serve as guardian/conservator in case of incapacity
Establishing the right to make medical decisions

Distinction Between a Cohabitation Agreement and a Prenuptial Agreement

A prenuptial agreement is an agreement entered into by two parties in contemplation of marriage. Many states have adopted legislation setting forth specific requirements for prenuptial agreements, but very few states have adopted similar legislation governing cohabitation agreements. A prenuptial agreement becomes effective upon the marriage of the parties, whereas a cohabitation agreement is usually no longer valid if the parties marry.

Enforceability of Express Cohabitation Agreements

In general, many courts have begun to recognize express written cohabitation agreements and are willing to enforce such agreements under state contract law. Some states may also enforce express oral agreements to divide real or personal property, provided there is substantial evidence to show such an agreement actually existed.

For example, upon separation, one cohabitant may be able to prove that they had expressly agreed with the other to share their property equally, by combining efforts and earnings during the relationship. This argument may be strengthened if the couple was together for a substantial period of time or if they have children together. In addition, one partner may be able to state a cause of action against the other for recovery of "palimony," or alimony for unmarried cohabitants.

Consequences of Not Having an Express Agreement

As mentioned, cohabiting couples are generally not automatically afforded the same legal rights as married couples. Thus, without an express written or oral agreement with definite and clear terms, the law might treat an unmarried couple as legal strangers upon dissolution or death. This could have the unfortunate effect of leaving one cohabitant with nothing, even where both parties' incomes were pooled in joint purchases of property.

In some cases, one cohabitant may be able to establish that there was an "implied in fact contract," or a contract based on the couple's conduct rather than on an express promise. While responses to such financial claims have been mixed, a few courts have been willing to use doctrines of equity, or fairness, to apportion property and assets in a way that is justified and reasonable to avoid harsh results. In addition, a court may award money to a person who shows that they rendered beneficial services (e.g., household services) to the other with the expectation of being compensated for those services.

Considerations for Entering a Cohabitation Agreement

Courts are generally limited by traditional contract principles to impose legal, financial and other obligations on separating cohabitant couples. Without sufficient express and definite terms of intent, courts may be reluctant to try to accurately discern the parties' expectations on the basis of their conduct alone. Accordingly, some reasons that cohabiting couples may consider entering into express (written) cohabitation agreements include:

Guaranteeing that the financially less secure partner receives an equitable settlement
Allowing the more financially secure partner to limit exposure to potential liability
Properly compensating a partner as a caretaker
Disclosing explicit expectations of the relationship
Discouraging opportunistic and marginal claims

About The Firm

Since 1974 Alan Pearlman, Ltd. has been helping the people of Chicagoland and Lake County with their family law problems. From that time to the present Mr. Pearlman has focused on Family Law matters.

The firm is made up of Mr. Pearlman, who will personally handle your matter, as well as an office manager. The firm is located on the south end of Lake County in Northbrook, Illinois, and is adjacent to the Edens Expressway, with easy access to the offices at 707 Skokie Boulevard.

Mr. Pearlman has been concentrating on Family Law matters for over 37 years, and the firm can meet your needs regarding Adoption, Child Custody Matters, Dissolution of Marriage(Divorce), Child Support, Visitation and Maintenance (formerly known as Alimony).

Mr. Pearlman is a member of several Bar Association Groups and teaches in his area of practice, as well as in the area of Legal Technology. He currently serves as the Webmaster of the American Bar Association's General Practice Section Internet Board and is a member of the Board of Editors of their GP Solo Magazine's Technology and Practice Guide.

He also serves on many bar association legal technology committees, including:

Chairman of the ABA Section of Family Law Technology Committee;
Past-Chair Emeritus of the Chicago Bar Association Committee on Legal Technology;
Past-Chair of the Northwest Suburban Bar Association Legal Technology Committee;
Past-Chair of the Illinois State Bar Association Committee On Legal Technology.

He is also a member of the Editorial Board of Leader Publication's Legal Tech Newsletter, a division of the American Lawyer Media's Publication group, as well as a participating columnist.

In addition to Mr. Pearlman's involvement in the legal technology community he has also served as:

Member Illinois State Bar Association Family Law Section Council,
Member Illinois State Bar Association Committee on Law Office Management and Economics,
Elected member of the Illinois State Bar Association Assembly,
Committee on Minority and Women Participation,
Traffic Law and Court Section Council,
Special Committee to study the Lawyer Referral Services of the Illinois State Bar,
Past Chair of the Fellows of the Illinois Bar Foundation.

He is currently serving as a member of the FAMILY LAW SECTION COUNCIL of the ILLINOIS STATE BAR ASSOCIATION and he has been their Internet Liaison as well! Mr. Pearlman is a frequent speaker at national Legal Technology Seminars, among them:

American Lawyer Media's Legal Tech Seminar,
American Bar Association's Techshow, Minnesota State Bar's Midwest Tech,
Kentucky Bar Associations Annual Convention,
Virginia State Bar's Law Tech'96 and the Illinois State Bar Association's Annual and Mid-Year Meetings.

Mr. Pearlman is a past Assistant State's Attorney for Cook County Illinois, a past Prosecutor for the Secretary of States Office in Illinois and a past Hearing officer for the office of the Secretary of State of Illinois.

Mr. Pearlman has written extensively on the issues involved in theDissolution of Marriage Process and frequently writes articles in several Family Law Journals, including the American Bar Associations Family Advocate Journal.

Agency Adoption vs. Independent Adoption

Adoption is the process by which an adult becomes the legal parent of an individual who is not their biological child. A finalized adoption severs all legal ties between the child and the natural parents, thereby terminating all parental rights. However, adoption also creates new obligations on the part of the adoptive parents. The new parent-child relationship establishes legal responsibility for child support, rights to an inheritance and/or custody. Typically, adoption laws vary by state and there are several different types or forms of adoption including agency and independent adoption.

General Types of Domestic Adoption
Adoption can occur domestically or internationally. Each state has its own laws governing domestic adoptions. There are several different types of domestic adoption including:

Agency adoption
Independent adoption
Identified adoption
Infant or foster care adoption
Stepparent adoption
Domestic partner adoption
Relative (kinship) adoption

]]> All forms of adoption involve different legal procedures, requirements and are governed by different laws. Two typical forms of adoption include agency and independent adoption.

Agency Adoption

Whether public or private, a licensed adoption agency is regulated by the state in which it is located and must meet certain standards. Public agencies are run by the state and they typically handle adoptions of those children who have become "wards of the state" by virtue of being abused, abandoned or otherwise orphaned. In contrast, private agencies might be run by a charity or social service organization and handle adoptions of children placed there by the natural parent(s) or unborn babies of expectant mothers. In addition to state adoption laws, adoption agencies may impose additional requirements on parents' eligibility to adopt and may consider age, marital status, income, health and religion as factors.

Advantages and Disadvantages of Agency Adoption
Using an adoption agency to manage an adoption can involve several advantages and disadvantages. For example, using an agency may help facilitate the process by handling paperwork and necessary legal issues. However, agencies can also make eligibility requirements prohibitively difficult for prospective parents. Other advantages and disadvantages to using an adoption agency are summarized as follows.

Advantages of using an adoption agency include:

Experience in finding children and matching them with parents
Handling all or most of the legal work and advising on state requirements
Conducting studies and research for the parents
Obtaining necessary consents
Providing counseling for the birthparents, adoptive parents and children

Disadvantages of using an adoption agency include:

Selectivity of parents by imposing additional requirements for eligibility
"Lag-time" between initiation and finalization of adoption procedures which may cause the child to be temporarily placed in foster care
Potentially high costs
Unavailability of services of some public agencies due to overcrowding or low funding

Independent Adoption

An "independent adoption" is where the child is placed with the adoptive parents without using an agency. Most states allow independent adoptions, but they are illegal a very small minority of states. Typically involving an adoption attorney, independent adoptions can occur either with the birthparent(s) directly placing the child with the adoptive parents or through use of a third party intermediary. One particular form of independent adoption is an "open adoption," which is where the adoptive parents have a relationship with the expectant mother and unborn baby during the gestation period. Typically, in the case of an open adoption, the adoptive parents and birthmother agree to keep in some form of contact throughout the child's life.

Advantages and Disadvantages of Independent Adoption

As with all forms of adoption, independent adoptions have several advantages and disadvantages. For instance, although independent adoptions may be more intimate and personalized, they can also become emotional and complicated. Other advantages and disadvantages to independent adoption can be summarized as follows.

Advantages of independent adoption include:

Ability of birthparents and adoptive parents to retain control over the process
Avoidance of long waiting lists often associated with adoption agencies
Potentially less restrictive in eligibility requirements
A faster adoption process (typically one year from initiation to finalization)

Disadvantages of independent adoption include:

Additional state restrictions might apply such as prohibitions on adoptive parents advertising for a birthmother or limiting their financial contributions to the costs of the birthmother's prenatal care and medical expenses
Potentially little or no counseling for the parties
Extended periods, in some states, for birthparents to revoke consent, resulting in less stable adoption agreements
Can be time consuming and costly to find a birthmother

Acquiring U.S. Citizenship at Birth When only One Unmarried Parent is a Citizen

Children born out of wedlock outside the United States to one citizen parent and one noncitizen parent face different requirements for acquiring U.S. citizenship, depending on the gender of the citizen parent. The Immigration and Nationality Act (INA) provides that the child must meet additional requirements to obtain U.S. citizenship when their father (but not their mother), is a citizen. The differential treatment depending on the gender of the unmarried parent citizen in determining the child's citizenship was held to be constitutional by the U.S. Supreme Court in 2001.

Child Citizenship Act of 2000

The Child Citizenship Act of 2000 (CCA) governs the acquisition of U.S. citizenship by children born abroad. Specifically, children born outside the U.S. receive automatic citizenship where the following three conditions have been satisfied:

1. At least one parent is a U.S. citizen (either by birth or naturalization);

2. The child is under the age of 18 years; and

3. The child is residing in the U.S., in the legal and physical custody of the citizen parent

pursuant to a lawful admission for permanent residence.

However, where the child was born abroad and out of wedlock, some additional requirements might apply if only the father is a U.S. citizen.

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Immigration and Nationality Act

Children born abroad to unmarried parents of different citizenships face unique citizenship issues depending upon the gender of the "citizen" parent. Under the INA, U.S. citizenship is automatic at birth for a child born to a citizen mother, provided that she has previously resided in the U.S. for at least one year. However, the INA imposes additional requirements for the child to acquire U.S. citizenship if it is the father who is a citizen.

Additional Requirements for Citizen Fathers and Noncitizen Mothers

Where a child is born outside the U.S. to a U.S. citizen father and a noncitizen mother, U.S. citizenship of the child is not automatic. In order to acquire citizenship, the INA requires clear and convincing evidence of a blood relationship between the child and the citizen father. Additionally, before the child reaches the age of 18, one of the following must occur:

The child must be legitimated under the law of his residence or domicile;
The father must acknowledge paternity of the child in writing or under oath; or
The paternity must be established by a court order.

The imposition of additional requirements based on the gender of the citizen parent sparked a constitutional challenge on the ground of denial of equal protection of the laws.

Equal Protection of the Laws Based on Gender

Under the U.S. Constitution, all citizens are entitled to equal protection of the laws. This means that the government is prohibited from enacting legislation which discriminates against a particular class of persons. In general, there are different standards which apply depending on the targeted class of individuals. For example, gender is a "quasi-suspect classification" and any government action which affects one gender more than another must be substantially related to an important government interest in order to be constitutional.

Nguyen v. INS

In Nguyen v. Immigration and Naturalization Service (2001), the U.S. Supreme Court considered whether the INA's parental gender differentiation violated equal protection. Tuan Anh Nguyen was born in Vietnam to an unmarried couple; a Vietnamese mother and an American father. At age six, Nguyen came to live in Texas with his father and became a lawful permanent resident of the U.S. When he was 22, Nguyen was convicted of serious crimes and the U.S. government sought to have him deported as an alien. None of the additional paternity requirements had been satisfied prior to Nguyen turning 18 and he was thus ineligible for U.S. citizenship. Nguyen filed suit, arguing that the additional INA citizenship requirements for children born abroad and out of wedlock where only the father was a U.S. citizen, violated the equal protection clause.

Constitutionality of the INA Classification

The Supreme Court upheld the INA requirements as being constitutional. The majority found that a law which grants or does not grant automatic citizenship to children born abroad to unmarried parents depending on the gender of the citizen parent is justified. Requiring U.S. fathers of children born abroad to take additional steps to establish paternity was held to have promoted the important governmental interest of avoiding proof of paternity problems, which are obviously more difficult to resolve than establishing maternity.

In addition, the Court reasoned that it is more important to establish paternity in order to demonstrate an actual parent-child relationship exists, which was held to be inherent with mothers by virtue of the birthing process. In turn, this relationship provides evidence of a connection between the child and the United States. Finally, the additional requirements imposed by the INA were found not to be overly burdensome and are thus substantially related to important governmental interests.

Divorced Parents' Rights in the Religious Upbringing of Their Children

Parents have a constitutionally protected fundamental right in the care, custody and control of their children. This constitutional guarantee includes the parents' right and freedom to expose their children to their own particular religious beliefs. However, when interfaith spouses divorce, disagreements over the religious upbringing of their children can ensue. In such circumstances, state family courts may be called upon to balance the competing interest of the parents and the children in an effort to resolve the dispute.

]]> Types of Post-Divorce Disputes Regarding Religious Upbringing of Children

Upon divorce, the parent who is awarded the physical custody of their child or children is referred to as the "custodial parent." The other parent is the "noncustodial parent." In some circumstances, parents may be awarded joint custody. In general, disputes over the religious upbringing of children of divorce may be divided into three categories including:

Custodial parents who wish to restrain a noncustodial parent's imposition of their own religious values on their children
Noncustodial parents who object to a custodial parent's religious beliefs as too extreme
Noncustodial parents who object to the lack of religious values of the custodial parent

Regardless of the type of dispute, courts typically must consider what would be in the best interest of the children.

Rights of Custodial and Noncustodial Parents

In the majority of states, the custodial parent is granted the right of directing the everyday management of their children's upbringing, including their religious indoctrination. Despite this right however, most courts hold that the custodian is not thereby entitled to restrain the noncustodian from exposing their children to their own religious beliefs. Thus, the custodial parent's rights in the religious upbringing of their children are not exclusive.

In contrast, a minority of states have held that the right to determine the religious upbringing of children exclusively lies with the custodial parent. In these states, custodial parents are generally entitled to restrict the noncustodial parent from introducing the child to another religious perspective.

Exception to the Majority Rule: Harm to the Child

Although most states bestow both parents with the absolute right to expose their children to their own religious beliefs after a divorce, there is one exception. Where conflicting religious experiences would cause clear and affirmative harm to the child, the noncustodial parent's rights may be restricted. What constitutes sufficient "harm" to justify the restriction of a noncustodial parent's rights is determined on a case by case basis. Generally, while mere confusion or stress to the child is typically inadequate, stress that is so severe as to manifest into physical symptoms might suffice.

For example, one court found sufficient harm where a boy suffered severe stress from attending and keeping up with both Catholic masses and Jewish services, including bar mitzvah lessons. The boy's stress had caused him to develop encopresis, a bowel control problem, which was alleviated after he was removed from the bar mitzvah lessons, as ordered by the court.

Objection That the Religious Beliefs of the Custodial Parent Are Too Extreme

A general agreement exists among the states that a noncustodial parent seeking to modify custody of their children, due to religious differences, must demonstrate that the custodial parent's beliefs would cause them harm. Where the noncustodial parent can sufficiently show that the custodial parent's religious beliefs are "too extreme," a court may be willing to modify custody. For example, a custodial mother who follows a sect touting that any non-believers are "God's enemies" and who teaches her child to lie to God's enemies could be considered too extreme.

A request to modify custody based on extreme religious beliefs of the custodial parent typically requires the court to balance the interest of the parties. On one hand, the court must consider the custodial parent's right to free exercise of religion and rearing of their children. On the other hand, the court must also determine what is in the best interest of the children. However, custodial parents' rights in the religious upbringing of their children are very heavily protected and courts rarely find the requisite showing of harm to the child.

Objection That the Custodial Parent Lacks Religious Values
In cases where the noncustodial parent is seeking to modify custody based on the fact that the custodial parent is "not religious enough," courts do not typically grant the modification. For example, where a custodial Orthodox Jewish mother fails to observe certain tenets and practices of the faith, the noncustodial father will likely not be granted a modification of custody solely on that basis. In addition, a court would typically not allow modification where the religious noncustodian objects that the custodial parent lacks faith of any kind. These types of cases are also subject to the "harm to the child" exception, but sufficient harm is similarly difficult to demonstrate.

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Contracts with Minors are Voidable

In general, individuals must possess the requisite "legal capacity" to enter into a valid and binding contract. Contract law regards such legal capacity as the capability of understanding the nature and consequences of the transaction. In most states, minors do not have capacity to enter into contracts until they reach the age of majority, usually 18 years of age or older. However, this does not mean that minors may not make contracts at all. Rather, the law is designed to protect minors by discouraging other parties from entering into contracts with them. Accordingly, contracts with minors may or may not be binding, depending on the circumstances.

Incapacity of Minors

In order to create an enforceable contract, both parties must have maturity and capacity. If one of those elements is lacking from the bargaining process, one consequence could be the invalidation of the entire contract. Minors, for example, do not possess the legal capacity to enter into contracts with other parties. This is generally because minors are not thought to possess the ability to perceive and process all of the necessary information to make an adequately rational decision. However, this does not mean that minors cannot make contracts, it just means that courts may not enforce the contracts that minors enter into.

]]> Voidability of Contracts with Minors
Contract law, regarding the incapacity of minors to enter contracts, is designed not only to protect minors from their lack of maturity but also to deter others from entering into contracts with minors. The law recognizes that minors might be particularly susceptible to deception. Typically, contracts with minors are "voidable" at the option of the minor but binding on the adult. This generally means that minors can repudiate, or back out of their contracts with other parties, but the other parties are bound by those agreements.

Exceptions to Voidability by Minors
There are certain contracts entered into by minors which are not voidable at their option. Since certain transactions provide significant benefits to minors, the law considers those transactions to be binding on them. Typical exceptions to a minor's right to avoid their contract obligations include:

Contracts for necessities such as food, lodging and medical services
Statutory exceptions including insurance contracts and student loans

In addition, as a matter of public policy, some courts will hold minors' contracts regarding military enlistment to be enforceable. Many states also do not allow a minor to repudiate a real estate transaction until after they reach the age of majority.

Emancipated Minors
Emancipated minors are minors who are legally treated the same as adults. Once emancipated, the minor may enter into any contract as an adult. Emancipated minors include those who are:

Legally married
Serving in the armed forces
Legally emancipated through the courts

In addition, emancipated minors are generally held to the same legal responsibilities and liabilities as an adult.

Ratification of the Contract
Most states allow minors to "ratify" their contracts once they reach the age of majority. The effect of ratification is to affirm the contract, which renders it no longer voidable by the minor. However, this right to ratify the contract, similar to the right to avoid it, belongs only to the minor; another party may not seek to ratify the contract. Ratification does not have to be express, it may also be implied through the minor's conduct if they fail to disaffirm the contract or to return the benefits in a timely manner after reaching the age of majority.

Remedies for Repudiation by Minors
In general, when a contract with a minor has been performed completely or in part and is then disaffirmed by the minor, they must return any benefit that they have already received from the other party. If the minor no longer has the benefit that they received under the contract (e.g., consumed goods or services), many courts will not require the minor to pay for the used, lost or destroyed benefit. This result forces the other party to bear the risk of loss. However, minors (or their parents) are typically always liable to pay for the fair market value of all "necessities" even if they no longer have them.

For example, if a minor purchases a car from another party and later decides to back out of the deal, the minor must return the car to the other party in order to get their money back. However, if the car is destroyed in an accident, the minor may still exercise their right to back out of the contract and get their money back (less depreciation or value of benefit already received), but owes nothing to the other party.

Remedies for Misrepresentation of Age
Courts are divided on how to remedy a situation where the minor represented that they were of legal age when they entered the contract. Some courts regard the misrepresentation as immaterial and treat the contract in the same way as any other with a minor. Some courts allow the other party to avoid the contract on the grounds of fraud and get its full value back from the minor. Other courts use the minor's misrepresentation as justification to revoke the minor's right to back out of the contract.

Successful Divorce Mediation

Divorce mediation, an alternative to traditional divorce proceedings, is a means to resolve the complex issues of a divorce. Mediation involves the services of a trained and neutral person who works with the parties to facilitate the settlement of disputed issues. Such person is known as the "mediator."

In traditional divorce proceedings, the judge ultimately determines child support, child custody, spousal support and property issues. Mediation, on the other hand, allows couples to control the outcome of their divorce. Additionally, the mediation process is non-adversarial in nature, which is especially important for couples with children, as like-minded parents can establish parenting plans with minimum disruption to the lives of their children.

]]> Preparation for Mediation
Divorce mediation is most effective when both spouses have accepted that a divorce is imminent. However, even when only one spouse has decided that they want a divorce, mediation may still be a viable option.

Special Issues That May Frustrate the Mediation Process
It is recommended that the couple be in good mental and emotional health before entering into mediation. If the mediator feels that one spouse's emotional health is at stake, she may refer that spouse to counseling before beginning the mediation process.

Mediation may not be the best alternative in all situations. For example, mediation may not be suitable in situations where domestic violence or drug and alcohol abuse are involved. Inherent in domestic violence situations are volatile feelings, and often, emotional abuse. This often creates a communication gap between the parties that even mediation cannot overcome. Where alcohol and drug abuse are involved, mental impairment and erratic behavior can follow, often frustrating the goal of mediation.

Other factors that may frustrate mediation include:

Spouses who lie about finances
Easily intimidated spouses
Contentious spouses
Spouses who feel that the other spouse is incapable of child care