No Separate Tort Suit Against Ex
November 29, 2004
A New York couple's short marriage may have a lasting effect on New York state law. The Appellate Division, Second Department, said a tort suit between spouses cannot be filed separately from, and after, a divorce action; the claim must be joined to the divorce suit. Accordingly, the court upheld the dismissal of a suit filed by a woman against her soon-to- be-ex-husband for intentional infliction of emotional distress and personal injuries on the basis of claim preclusion. <i>Chen v. Fischer</i>, 2003-00397.
New! Same Sex Partnership Law Report
November 18, 2004
There's a battle raging in local, state and federal legislative bodies and courts,You know the issue. You deal with it every day. Now, get the clarity you need tohelp your clients keep and gain their rights.<br>
<i>Goodridge</i> Decision Spawns Action
November 16, 2004
Although the average American might feel that the reality of same-sex marriages in Massachusetts materialized overnight, activists who have worked on the issue say that the <i>Goodridge</i> decision by the Supreme Court of Massachusetts in November 2003 was not a complete surprise. <i>Goodridge</i> was the result of a well-planned, long-term strategy by same-sex marriage proponents to bring the issue into the legal, cultural, and political mainstream.
Litigation
November 01, 2004
Recent rulings of importance to you and your practice.
Who Gets the Tax Refund?
November 01, 2004
Income tax refunds can involve substantial sums, and are a frequent source of disputes between divorcing spouses. Before advising a client regarding distribution of a joint tax refund, the matrimonial practitioner should review the applicable law. Federal tax law often dictates a different result from that of state equitable distribution or community property law, and the lawyer must know the difference. Liability for taxes does not necessarily confer a property interest. For example, although the parties to a joint federal income tax return are jointly and severally liable for the taxes payable for the year in question, and although the refund check is drawn to the order of the parties jointly, they do not necessarily have joint ownership rights to the tax refund.
The Changing and Conflicting State of Same-Sex Marriage
November 01, 2004
The May 17, 2004 legalization of same-sex marriage in Massachusetts cleared a symbolic and practical barrier to marriage between persons of the same sex within the United States, as the state became the first in the U.S. to give legal sanction to marriage between persons without regard to gender. The formal legal acceptance of same-sex marriage by a single jurisdiction within the United States, however, merely exacerbated a problem that has been developing and evolving for some time: the growing legal uncertainty brought by the legalization of same-sex marriage and unions by certain jurisdictions on the one hand, and increasing efforts to prohibit them from being granted or recognized, in others.
Heterosexual Discrimination By California Courts?
November 01, 2004
A Los Angeles District Court of Appeal threw out a suit by a man claiming that unmarried couples of the opposite sex should have the same right as same-sex couples to file wrongful-death suits. Jack Holguin said the law's exclusion of unmarried heterosexual couples violates his equal protection rights. <i>Holguin v. Flores</i>, B168774, Los Angeles' 2nd District Court of Appeal, Sept. 15, 2004. Holguin's girlfriend, Tamara Booth, was killed in a car accident. They had lived together for 3 years, but never married.
Pre-Nups and Trusts
October 01, 2004
Premarital agreements, commonly referred to as "pre-nups," are usually associated with celebrity marriages. Indeed, you'll likely hear someone ask after a high-profile marriage ends, "I wonder what their pre-nup says?" While most of us would like to learn the juicy details, it's important to remember that a prenuptial agreement does more than list who gets what.
Badmouthing May Lose You Custody in Connecticut
October 01, 2004
Several judges in Connecticut have deprived mothers of custody due to their vitriolic comments about the father. A woman recently lost temporary custody of her sons because, according to Judge F. Herbert Gruendel, her "incessant and completely unjustified vilification" of the father placed their younger son "in a condition of intense psychological turmoil."
Pre-Nups: Estate Planning
October 01, 2004
When drafting and executing prenuptial agreements, the parties are generally concerned about protecting their assets and delineating their rights upon divorce. In addition to provisions in the event of divorce, however, careful attention also must be paid to the disposition of one's assets upon death. The provisions in the event of death may be particularly important where the assets to be protected were received from one's family or are comprised of a family business. Depending upon the circumstances, the death provisions of a prenuptial agreement may be used to negotiate more favorable divorce provisions for your client. Whether or not used in negotiation, any death provisions included in a prenuptial agreement require an understanding of complex federal tax issues, knowledge of state property law, and thoughtful drafting.
