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FAM-LAW-LIT: A SURVEY OF CURRENT PERIODICAL LITERATURE ADDRESSING FAMILY LAW ISSUES
Laura W. Morgan, Esquire Welcome to FamLawLit, a survey of current periodical literature concerning family law issues, for March 1998. This page provides a synopsis of current law review articles that discuss issues in family law. As a new feature, we have added "Ethics Spotlight" which will deal with ethical issues facing family law attorneys. This month, we examine ethics opinions and case law concerning the propriety of an intimate sexual relationship between a divorce attorney and his/her client. Next month, we will look at maintaining attorney-client privilege and work-product when communicating by e-mail. Starting next month, we will add "Hot Cases" which will recap the latest cases from around the country concerning issues of interest to family law attorneys. ~ PRIMARY FAMILY LAW PERIODICALS ~
AMERICAN JOURNAL OF FAMILY LAW Bruce L. Richman, Taxpayer Relief Act of 1997: A Summary of Provisions Affecting the Divorce Practitioner: A review of the Taxpayer Relief Act of 1997, focusing on capital gains, gain on principal residence, child tax credit, innocent spouse rules, education tax incentives, and deduction for interest paid on higher education loans. Gary Shulman, QDROs of Last Resort: Problems with the Government's Model QDRO: A critique of the model QDRO released by the Pension Benefit Guaranty Corporation. Honorable John N. Kirkendall, Setting Up a Family Court: His honor relates experience in Washtenaw County, Michigan, in setting up a unified family court David H. Kelsey, Ten Ways Lawyers and Psychologists Can Work Together: The author presents ten ways lawyers and psychologists can work together in the preparation of a case, comprising five primary principles for lawyers and psychologists, three simple principles for lawyers, and two principles for psychologists. Richard P. Bricken and Diana M. Schobel, Attorney Advertising and the First Amendment: The authors suggest that the United State's Supreme Court's failure to define the permissible scope of attorney advertising has inappropriately transformed the standard from the public's right to know to the attorney's right to advertise. The authors conclude that the task for evaluating attorney advertising should be returned to the states.
CHILDREN'S LEGAL RIGHTS JOURNAL Carol Daugherty Rasnic, European Domestic Secondary Legislation: A Better Route for the American Student?: The author, drawing on her own experiences, suggests ways which might assure that a child's individual talents and aspirations are more realistically directed into the appropriate and desired career path, and further proposes that college or university study is not appropriate for all children. Julie Dworkin and Les Brown, Organizing Homeless Youth: A Strategy for Change: The authors propose that state child welfare systems have failed to assure that adolescent wards have a stable environment, and that advocate systems must step in to increase funding for homeless youth programs. Stephen Post, Patricia Frutig, and James Bennet, Children at Risk: A Moral Assessment of Protective Policies: The authors assert that for child protective services to work, there must be a social commitment to all children, parental responsibility for children that is defined, a wider definition of what constitutes a child "at risk," and a willingness to forego family preservation when the well-being of the child is compromised. Thus, foster care and adoption should be utilized on a greater basis. William S. Geimer, Abusing Abuse Evidence: Professor Dershowitz Knows Better: The article is devoted to illustrating the difficulty of the law's effort to accommodate evidence that a criminal defendant was a victim of abuse, and the author seeks to enlist the help of the legal community in avoiding the unjust consequences that will result if an indifferent public consigns the difficult matter to ridicule under the heading "the abuse excuse." (ABA Center on Children
DIVORCE LITIGATION (National Legal Research Group) Brett R. Turner, Valuation of Businesses in Divorce Cases: An Annotated Survey of Methods: In part one of a two-part article, the author explains the various methods used to value businesses in divorce cases, providing ample case law as illustrations for each method. The author also critiques the cases, explaining whether the method employed was proper given the facts of the case.
EQUITABLE DISTRIBUTION JOURNAL (National Legal Research Group) Unavailable
FAIR$HARE (Aspen Law & Business) Bruce F. Malott, Domestic Relations Aspects of the Tax Payer Relief Act of 1997: The author, a CPA, provides a brief overview of those aspects of the tax law passed by this Congress in 1997 that affect domestic relations practice, including the child credit, the exclusion of gain on sale of a principal residence, the Education IRA, and the Hope Scholarship Credit. Lee Slater, Ten Critical Financial Mistakes in Divorce: The author, a CPA, lists what he believes to be the ten financial mistakes often made in divorce cases: (1) the failure to pro-actively minimize taxes; (2) the failure to produce a historical budget analysis; (3) disregarding the tax impact of assets in the divorce settlement; (4) the failure to use computer models to develop and evaluate settlement proposals; (5) the failure to consider insurance needs; (6) the failure to update personal documents; (7) not planning for the wife's retirement; (8) not accounting for the long term impact of inflation; (9) not waiting until a wife is eligible for her ex-husband's Social Security benefits; (10) not encouraging post-divorce financial planning. John Nichols, Oral Argument: Strategies and Alternatives: In the third of a four part article, the author, a trial lawyer in Houston, discusses the style and tone of oral argument, as well as how to create a focus and theme. Robert Reilly, Accounting Practice Fractional Interest Discounts and Premia: The author, a contributing author to the well-respected author of the treatise Valuing Professional Practices & Licenses: A Guide to the Matrimonial Practitioner, provides a checklist for identifying and quantifying the various discounts and premia associated with the appraisal of a partial ownership interest of a professional practice. Mark E. Sullivan, Custody Checklist: Testimony of Client and Witness: The author suggests areas of inquiry, via a checklist, that should be pursued in custody cases.
FAMILY ADVOCATE (American Bar Association Family Law Section) Ron W. Little, Getting Out Front Upfront: The author recommends developing a preliminary pretrial motion strategy to maximize the strengths of your client's case. Kathleen A Hogan, Pretrial Discovery Motions: The author summarizes the more common pretrial motions and analyzes their usefulness. Jill Hersh, Sure and Swift Relief: The TRO: The author recommends securing a temporary restraining order whenever there is a need to protect: (1) a client's physical or emotional safety; (2) the physical or emotional safety of children; (3) the marital estate; (4) a client's economic stability. The author also provides practice pointers, such as obtaining corroborating evidence, serving necessary financial institutions, and how to draft the pleadings. Lynn S. Hilowitz, Money Matters: The author provides guidance on how to put together pendente lite motions that will provide temporary financial assistance. The author provides checklists for preparing the client's affidavit and/or an appraiser's affidavit. Sidney S.F. Bennett, Property Thrust and Parry: The author recommends the use of pretrial motions to protect and preserve marital assets from loss or dissipation, to aid in valuation, to determine entitlement, to allow for orderly management of property, and to allow for sale when necessary. George T. Carlson, Ellen R. Welner, and Thomas M. Mathiowetz, Bankruptcy Bailouts: The author recommends that family law attorneys discuss bankruptcy with a client whose financial picture is bleak, since prompt filing could preserve a client's assets. Steven H. Levey, Divide and Conquer: The author discusses when it may be appropriate to bifurcate a divorce case into component issues. David N. Hofstein and Michael L. Kleiman, Get to the Bottom of the Business: The authors recommend the use of injunctive relief to preserve a family owned business which may be the most valuable marital asset. The authors provide a good sampling of case law and statutory authority. Ronald E. Lais, Curing Custody: The author recommends certain pretrial motions to stimulate settlement of what is often the most contentious of issues: child custody.
FAMILY AND CONCILIATION COURTS REVIEW Kevin M. Kramer, Jack Arbuthnot, Donald A. Gordon, Nicholas J. Rousis, and Joann Hoza, Effects of Skill-Based Versus Information Based Divorce Education Programs on Domestic Violence and Parental Communication: The authors compared two divorce education programs: the skill-based "Children in the Middle," and the information based "Children First in Divorce." The authors compared the programs in terms of efficacy in reducing domestic violence and increasing parenting skills. Geoffrey L. Grief, Many Years After the Parental Abduction: The article reports on information in 48 families who have been followed for a number of years after the recovery of a missing child. Irene M. Cohen, Postdecree Litigation: Is Joint Custody to Blame?: The Joint Symposium Project examined 600 court files in five jurisdictions to investigate the common perception that joint custody contributes significantly to relitigation rates. The authors conclude that this perception is false. Steven L. Abel, Social Security Benefits: The Last Insult of a Sexist Society: The author concludes that for many retiring women, getting just half as much Social Security as their husbands is just one more insult from a sexist society that depresses women's wages. Nicole Pedone, Lawyer's Duty to Discuss Alternative Dispute Resolution in the Best Interests of the Children: The author, co-winner of the law school essay contests, concludes that the ethical rules should be revised to require attorneys to discuss ADR with their clients.
FAMILY LAW QUARTERLY (American Bar Association Section of Family Law) Margaret Howard, A Bankruptcy Primer for the Family Lawyer: The author provides an overview of the bankruptcy system, focusing on that part that family lawyers are most likely to encounter, highlighting those respects in which family claimants enjoy most favored creditor status. Margaret Dee McGarity, Avoidable Transfers Between Spouses and Former Spouses: The article focuses not on interspousal conflict, i.e., what is dischargeable, but on transfers between spouses and former spouses that might be recoverable by a trustee for the estate, with the emphasis on the bankruptcy trustee obtaining assets, not on objecting to the discharge on account of the transfers. Bernice B. Donald and Jennie D. Latta, The Dischargeability of Property Settlement and Hold Harmless Agreements in Bankruptcy: An Overview of § 523(a)(15): A review of the history of § 523(a)(15) of the Bankruptcy Code, which changed the law of bankruptcy in making marital debts presumably nondischargeable, and how to litigate under this section. Richard H.W. Maloy, Using Bankruptcy Court to Modify Domestic Relations Decrees: Problems Created by § 523(a)(15): A review of the case law under § 523(a)(15) of the Bankruptcy Code and the ambiguities that exist in the case law. Michaela M. White, The Procedural Plight of the Property Settlement Creditor: How to navigate around § 523(a)(15) when an ex-spouse has filed for bankruptcy. Allen M. Parkman, The Dischargeability of Post-Divorce Financial Obligations Between Spouses: Insights from Bankruptcy in Business Situations: The author takes the position that none of the financial obligations of ex-spouses should be dischargeable in bankruptcy, demonstrating his thesis with illustrations from the business world. Sheryl Scheible Wolf, Divorce, Bankruptcy, and Metaphysics: Avoidance of Marital Liens Under § 522(f) of the Bankruptcy Code: The article focuses on the mechanics and theories of marital lien avoidance, focusing on Farrey v. Sanderfoot, the United States Supreme Court case and the amendments to § 522(f) of the Bankruptcy Code. Daniel W. Shuman, What Should We Permit Mental Health Professionals to Say About "The Best Interests of the Child"?: An Essay on Common Sense, Daubert, and the Rules of Evidence: The author examines the seeming contradiction between increased judicial control and scrutiny of expert testimony, and continued judicial reliance on expert testimony in child custody and visitation cases. Melissa Rothstein, The Defense of Marriage Act and Federalism: A States' Rights Argument in Defense of Same-Sex Marriage: The author states that the Defense of Marriage Act is unconstitutional because it infringes on fundamental principles of federalism. Susan Higgenbotham, "Mom, Do I Have to Go to Church?": The Noncustodial Parent's Obligation to Carry Out the Custodial Parent's Religious Plans: The author concludes that a court may require a noncustodial parent to carry out the wishes of the custodial parent regarding religious upbringing only when the best interests of the child demand it. J. Allan Cobb: What Happens When Cyberspace Is Used to Lure Children into Sexual Relations - A Brief Look at Important Federal Venue Provisions: The article analyzes federal venue issues concerning child sexual abuse crimes which occur or are initiated in cyberspace, specifically discussing federal venue statutes concerned with sexual abuse crimes committed across state lines.
INTERNATIONAL JOURNAL OF LAW, POLICY & FAMILY Ira Mark Ellman, The Misguided Movement to Revive Fault Divorce, and Why Reformers Should Look Instead to the American Law Institute: The article examines the current debate about whether to discard no-fault divorce, and concludes there is little evidence that pure no-fault laws have any negative effects on marriage, and that increased waiting periods do more harm than good. The article also concludes that recent proposals by the American Law Institute for reforming property and alimony laws would be of little effect if fault were revived.
JOURNAL OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS Unavailable
UNIVERSITY OF LOUISVILLE JOURNAL OF FAMILY LAW Robert Kraimer, Preconception Fertilization Agreements: Valid or Void?: The author notes that in some states, Virginia for example, surrogacy contracts are not void per se; rather, they are regulated by statutory provisions that provide couples may enter into such agreements with preconception court approval. The author opines on whether such contracts should be encouraged as a matter of public policy. Melanie A. Kennedy, Information Superhighway: Parental Regulation, The Best Alternative: The author discusses the recent efforts by Congress to regulate the internet, and concludes that regulation of cyberspace, like regulation of print media, is best left to parents.
UNIVERSITY OF LOUISVILLE JOURNAL OF FAMILY LAW Unavailable, but previewed by the publisher as follows: Kupenda, Two Parents are Better Than None: Whether Two Single, African American Adults Should Be Allowed to Jointly Adopt and Co-parent African American Children Arriola, Law and the Family of Choice and Need Marcosson, The Lesson of the Same-Sex Marriage Trial ~ OTHER PERIODICALS ~
UNIVERSITY OF MISSOURI AT KANSAS CITY LAW REVIEW Jean Peters-Baker, Punishing the Passive Parent: Ending a Cycle of Violence: The author proposes that the only way to end the cycle of child abuse, whereby abused children become abusive parents, is to punish not only those parents who actively abuse children but also those parents who allow the other parent to abuse his/her children, either intentionally or negligently.
JOURNAL OF FAMILY ISSUES (National Council on Family Relations) Cosandra McNeal and Paul R. Amato, Parents' Marital Violence: Long Term Consequences for Children: The authors conclude that parents' marital violence predict their children's reports of negative outcomes in adulthood, including poor interpersonal relationships, lower psychological well-being, and more violence within their own marital relationships.
JOURNAL OF DIVORCE AND REMARRIAGE (Haworth Press, Inc.) Richard A. Gardner, An Instrument for Objectively Comparing Parental Disciplinary Capacity in Child Custody Disputes: The author notes that when conducting a child custody evaluation, examiners compare a list of parental assets and liabilities, one of which is disciplinary skills and techniques. The author recommends use of the "Parental Discipline Techniques - Self-Report Instrument" to objectively compare parents with regard to their capacity to utilize disciplinary techniques.
MAINE LAW REVIEW (University of Maine School of Law) James A. McKenna, Housekeeping Ain't No Joke: How Maine's Child Support Guidelines Can Be Biased Against Mothers (at 281): The author, Assistant Attorney General of Maine, agrees with other authors that many state child support guidelines are biased against nonworking custodial mothers.
RES GESTAE (State Bar of Indiana) Douglas G. Amber & Richard R. Hofstetter, Financial Roulette: Mathematical Error and Inconsistencies in the Indiana Child Support Guidelines: The authors analyze the formula used in high-income cases and conclude that the formula is inconsistent and, in fact, mathematically insoluble. ~ INTERNET RESOURCES ~
FAMILY LAW IN THE NEWS FAMILY LAW ARTICLES ON THE NET "An Evaluation of Post-Secondary Educational Support on a State by State Basis" "Summary of 1997 California and Federal Statutes Affecting the Practice of Family Law" Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690
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