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Over the years, intra-family immunity from lawsuits against other family members developed; “parental immunity” and “spousal immunity.” Some have suggested that these immunities were part of a body of rules that historically limited tort recoveries in general. At one time, there was even a certain stigma to bringing a lawsuit against another family member for damages. This radically changed in the latter half of the 20th Century, when courts (and laws) began to expand liabilities and recoveries for a number of reasons. Not all states recognized the doctrines of parental and spousal immunity from suit, but most states did. Recently, however, more states have abandoned or created exceptions to these doctrines.Continue Reading The Right to Sue Family Members

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.

 

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 According to the Child Welfare League of America, an estimated 200,000 children have a mother in prison, and at least 1.6 million children have a father in prison. As such, many children have been forced to enter the foster care system, and there has been a significant increase in the number of children visiting their incarcerated parents.

 
Such overwhelming statistics have influenced federal adoption law and, more recently, played a role in a notable U.S. Supreme Court decision on the constitutionality of restricting prison visitation by the children of inmates.
 
Adoption and Safe Families Act
With the goal of achieving prompt permanency plans for children in foster care, Congress passed the Adoption and Safe Families Act (ASFA) in 1997. The law requires states to move to sever a parent’s right to a child after the child has spent 15 months in foster care.
 
As mothers are often their child’s primary caretaker, ASFA has certainly affected the parental rights of incarcerated mothers, whose sentences prevent a timely reunification with their children. For example, under ASFA, a state would most likely file to terminate the parental rights of a mother serving five years in prison, where her children have been in foster care for 15 of the last 22 months. In fact, an incarcerated mother will often surrender her parental rights after her children have spent 15 months in foster care, so that her children can be formally adopted by their foster family. 

Continue Reading Severing the Parental Rights of Inmates and the Constitutionality of Restricting Visitation

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." 

Continue Reading Same-Sex Marriages and the Federal Defense of Marriage Act

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.
 

Continue Reading Tax Issues Associated with Division of Pension Benefits in a Divorce

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.
 

Continue Reading Permitting Posthumously Conceived Children to Inherit From a Deceased Parent

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 …

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. 

Continue Reading Establishing Rights and Obligations of Unmarried Couples

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. Continue Reading Successful Divorce Mediation