Tuesday, May 30, 2006

Til Death Do Us Divorce

PITTSBURGH — Dr. John Yelenic and his wife separated in 2002, agreed to a divorce and even hammered out a property settlement.

But the Blairsville dentist was slain the day before he was to sign his divorce papers, setting the stage for what attorneys say is a first-of-its-kind request in Pennsylvania: a divorce decree after death.

The dentist's divorce attorney, Effie Alexander, says simply that Yelenic would have wanted it that way. Another attorney who represents Yelenic's estate believes the decree is needed to protect a property settlement an Indiana County judge approved last week.

But an expert in Pennsylvania family law says there is no reason to declare a dead man divorced because the dentist's wife and adopted son will receive support under the property settlement, which legally overrides his will.

"What difference does the decree really make?" said Pittsburgh attorney Jay Blechman, chairman of the family law section of the Pennsylvania Bar Association. "As far as I can tell, there isn't a difference."

Alexander isn't so sure.

"We are, along with the estate attorney, conducting research to determine if there's any significance to the decree being denied," she said.

Officials in at least one other state are grappling with posthumous divorces.

In Connecticut, Hayley Kissel is seeking to divorce her estranged husband, Andrew, a millionaire developer found slain in his Greenwich home last month. Millions of dollars are at stake.

Judge Kevin Tierney said Friday a death doesn't necessarily mean the marriage has been dissolved and suggested the case could end up in the court's complex litigation section if it is not resolved.

In Pennsylvania, Indiana County Judge Carol Hanna refused to issue the divorce decree after a May 19 hearing, but gave the dentist's divorce attorney until June 2 to file written arguments on why one should be issued.

"From my perspective, this is what John wanted," Alexander said. "You know how people say after someone is dead, `If there was one thing I could do for him now'? Well, this is really a personal thing for me and my law firm."

Yelenic and his wife, Michele, of Indiana, Pa., married in 1997 and adopted a son, J.J., now 8. The couple separated in 2002 and Michele Yelenic filed for divorce the next year, citing an irretrievable breakdown of the marriage.

John Yelenic, 39, was slain at his home on April 13. Investigators have not identified a suspect but believe his death was not random. They have refused to say how he died, other than that he bled to death after a violent attack.

The strange case of the Yelenics' divorce revolves around a January 2005 amendment to the state's divorce code and the implications of a bifurcated, or two-part, divorce _ one in which the divorce decree is issued separately from a property settlement.

A two-part divorce is used, for example, when a person wants to remarry without having to wait for the property settlement _ which is often far more complicated _ to be resolved, Blechman said.

Before the change in the law last year, the dead spouse's will or estate laws held sway if a property settlement hadn't been finalized, Blechman said.

Under the amendment, a judge can posthumously enforce a property settlement if grounds for the divorce existed when the spouse died. Judge Hanna approved the settlement based on an affidavit Yelenic had signed saying the couple have lived apart for more than two years, which is grounds for divorce in Pennsylvania.

Michele Yelenic's attorney, Daniel Lovette III, declined comment on the case. But Lovette said he doesn't oppose efforts by Alexander, the dentist's divorce attorney, and Paul Anthony Bell II, the estate attorney, to seek the posthumous divorce decree.

Bell sees the divorce decree as a way to tie up loose ends.

"It seems to everybody that the divorce decree being granted would definitely put a seal on" the property agreement, Bell said. "I guess we're all leery that something might come up as to the estate aspect of it if the decree is not granted."

Source: AP

Monday, May 22, 2006

Attempted Remarriage Before Dissolution of First Marriage Does Not Terminate Termporary Orders

This case makes for a good variation on the void marriage problem. Here, Husband and Wife were married for over 13 years. Husband filed for divorce and the court issued temporary orders requiring Husband to pay maintenance to Wife. While the divorce was still pending, Wife, who had a significant alcohol problem, remarried in Nevada.

Husband asked the court to grant the divorce and to enter the judgment nunc pro tunc, arguing that a nunc pro tunc judgment dissolving the as of a date prior to her remarriage would render her most recent marriage valid and he would be relieved of the obligation to pay temporary spousal support. Husband also argued that Wife's remarriage, even though void, triggered the statutory provision that terminates support orders upon "death or remarriage." California statutes, like the majority of states (See November 8 Family Law Prof Blog post), terminates support orders as a matter of law upon remarriage. The trial court denied Husband's motions and the California Court of Appeals affirmed.

The court reasoned that "Since remarriage is a legal impossibility in California prior to dissolution of the existing marriage, it is reasonable to conclude that the Legislature never expected or intended that 'remarriage,' within the meaning of [the statute terminating support] would encompass an attempted remarriage prior to dissolution of the first marriage....Our conclusion is consistent with principles of common sense and justice. Application of [the statute] prior to dissolution would deprive the trial court of the discretion so necessary at this unsettled stage of the proceedings. It may be that a spouse's attempt to remarry prior to dissolution would warrant termination of temporary support where the conduct was evidence of a real change of circumstances. The court has discretion to terminate support in that case. But where the attempted remarriage is due to a lapse in judgment on the part of the supported spouse and where the supported spouse actually has no means of support, no funds to prosecute the litigation, and no control over the marital property that has yet to be divided, the attempted "remarriage" does not diminish the supported spouse's need for support pending trial. Automatic termination of the temporary support order in that situation would be manifestly unjust and would conflict with the purposes for which temporary spousal support is intended."

In re Campbell, 2006 Cal. App. LEXIS 155 (February 7, 2006)
Opinion on the web (last visited February 10, 2006 bgf)
Posted at Family Law Prof Blog

How May I Serve You?

Of all stages of the divorce process, giving and receiving service of process is probably one of the most emotional and misunderstood.

In most cases getting served with notice of a divorce is never a complete suprise. People in a happy marriage don't generally just wake up next to their loving spouse and say "I'm gonna get a divorce today". However, despite the many signposts that may pop up in the months and years preceeding a divorce suit, there is often a sense of suprise and betrayal by the one being served- even if it is simply the thought that "that SOB did it before I had a chance to!"

So why is all this sneeking around with a stack of papers necessary?

It is a basic tenent of the law that the person being sued in court has the right to know the action is happening and to appear in court to defend against the actions. There are strict requirements for service of process and the family law practictioner who ingnores them risks the prospect of a default ruling being retried in a motion for new trial.

Only certain people may serve process. Under the Texas Rules of Civil Procedure, this is (1) any sheriff or constable or other person authorized by law; and (2) any person authorized by law who is at least 18 years old and has not interest in the outcome of the case. (TRCP 103).

Process may also be served by mail. The problems with that is that if the party does not personally sign the return green card, there is no proof of the service if the party then complains and seeks a new trial.

A party may sign a waiver of service that they have received notice of the suit. This is usually the easiest method, but many times parties refuse to sign anything thinking that they are giving up some sort of rights. Usually the only thing they are doing is forcing delaying the inevitable.

Alterntive forms or service are available if personal service or mail by service is not possible. Permission must be obtained by the court to use the methods covered by TRCP 106. These substitute services include delivering the citation to anyone over 16 years of age at the last known address of the person to be served. These require an affidavit as well as a court order.

Another method of service is by publication. Service may be obtained by publishing under Rule 116. There are special provisions in the Family Code under TFC 102.010 and 6.409 which allow the publication to be only once. Also, if there is the case does not involve children, service may be obtained by posting notice of citation at the courthouse door. (The only exception to that is if the name of the respondent is not known in a termination case.)

Whoa There Cowboy!: Temporary Restraining Orders

The big thing about dealing with the Courts is timing. They do their best, but there are times when it seems like the Courts took their scheduling notes from the same book as the DMV.

A suit for divorce in Texas can take a MINIMUM of 60 days from start to finish. (TFC 6.702). More likely it can take upwards of nine months depending on the facts. During that time, most cases need the Court to intervene and set up some temporary orders so that everyone can "play nice" while the case is going on. I'll discuss temporary orders in more detail later.

Sometimes, the parties to a suit are in need of some IMMEDIATE intervention by the court to either keep the peace between the parties, make sure a parent does not disappear with a child, or ensure that one party does not destroy or use up the community property just to be a jerk. Unfortunately, once a suit has been filed it may take two, three, or at some times of the year, even four weeks before the case can be brought before the Judge. A lot of bad things can happen in that time.

The law's solution to this problem is called a Temporary Restraining Order (not to be confused with Temporary Orders-which will be discussed in a later post). A "TRO" is what we call an "ex parte" order- that is, it is signed by the judge without the need for a formal hearing of both parties. Often the TRO is presented to the judge on the same day that you file your original petition with the Court. The reason the courts can get away with signing an order without offering a hearing for both parties is that the nature of the TRO is very temporary relief. Your TRO will have a hearing date set on it by the clerk in which you will have to appear before the judge. (That is why the form is formally called a "Temporary Restraining Order and Notice of Temporary Order Hearing"). The law limits a TRO order to being effective for only 14 days. The idea is that the clerk of the court will give you a hearing in front of the judge within this time. Ha! Fat chance. In most of the larger counties, you will have to wait much longer. That is why the law allows the TRO to be renewed for an additional 14 days. (TRCP 680). Beyond that you are going to have to seek out a judge and explain why you need additional time under a TRO. Generally accepted reasons are that you have tried, but have not yet served the other party, or if the other party was served, they had too little time to find an attorney and prepare for the hearing.

Texas Family Code 6.501 sets out ten standard items that may be included in the TRO. If there are children, you can also include injunctions (what I call "thou shall nots")against disturbing the peace of the kids or removing them from a certain geographical area. There are limitations to what a court can order in a TRO because it is done without a fair hearing and a party has a right to have a hearing if an order would otherwise be unfair or impinge on constitutional rights. You can't exclued a spouse from living in their residence without a hearing (unless a protective order is also sought due to domestic violence). You can't prevent a party from making reasonable expense for basic living needs. You can't require a party to do something like pay bills or pay child support. If there is a pre-existing order on the children, a TRO cannot change the party appointed as the primary conservator.

Many lawyers file the TRO restricting only the other party. Some courts have a policy to only grant TROs if they are made mutual to both parties- and they will stamp the TRO with a big "MUTUAL" stamp so that the injunctions are binding on both the husband and the wife. This makes sense because neither party should be making harrasing phone calls, or making threats to the other party, and all the other "play nice" injunctions of 6.501. In fact more attorneys are simply making it mutual from the drafting stage.

Pleadings and Other Preliminaries

So you decide that you are legally married and want to get a divorce. Where do you start? In most cases, you will file an "Original Petition for Divorce" with your local district court. The Origianl Petition contains all your pleadings and may be amended without seeking permission from the court up to seven days prior to final trial (as long such amendment doesn't unfairly "surprise" the other side with a whole new set of legal issues) (TRCP 63).

State law controls the requirments for a divorce in Texas. There are seven statutory grounds for divorce. The first, and by far the most common, is "insupportability" (TFC 6.001). This is the catch all grounds which brings Texas in line with the modern trend among most all states to allow people a "no fault" divorce. Basically, if you don't want to be married anymore, then you don't have to come up with an excuse. For strategic purposes, such as trying to get a disproprtionate share of the community estate, or obtain primary custody of a child, or to further a tort claim, then pleading a divorce "for cause" may be done. These grounds include Cruelty (6.002); Adultry (6.003); Conviction of a Felony (6.004); Abandonment (6.005); Living Apart (6.006); or Confinement in a Mental Hospital (6.007).

Although we'll discuss some of them in more detail in later postings, in general some of the things you may plead for in your initial petition is for spousal alimony(maintenance); temporary orders (court orders while the case is pending); temporary restraining orders (restricting the actions of one or both parties).
It is also usually necessary to plead that the court divide the community property. It is not necessary to get into any detail about the property- only that property exists and should be divided. Although it is possible to make a statement that there is no community property, it is my opinion that there is always some kind of community property even if you are getting divorced from your quicky marriage in Vegas and all you ever got together was a few poker chips from Harrah's. Better to plead for it now then cry about it later.

Related to this is the necessity to plead for any reimbursement or economic contribution claim (when community funds where unfairly spent on seperate property).
Also, you must generally make a pleading involving the children of the marriage (if any). Although a suit involving children is technically a seperate law suit (called a "Suit Involving the Parent Child Relationship" or "SAPCR"); in Texas, you must include the children issues in your divorce case and they are tried together as one case. The only exceptions to that is if you already have a SAPCR order in place (usually if there is a long seperation and one of the parties was seeking child support) or if the children are adults.

Name changes for an adult or a child are also plead for. Under TFC 6.706, the court shall change the name of a party specifically seeking the change, unless the court specificall gives a reason why it won't in the final decree. The name change requires that the person previously used the name being changed to and that the change is not to avoid creditors or avoid criminal prosecution. Now usually this is a woman changing her name back to her maiden name, but in theory a guy could do this too. I recommend to my clients that they plead for the change even if they are unsure about it. You can make sure in the end that you keep your name if you want to. (And by the way, no one can force you to change your name if you don't want to). Otherwise, if you change you name after the divorce, you have to file a seperate suit and pay the fees. If you do it now, it is free with your other fees.
And on the topic of fees, this varies for county to county. In Harris County Texas, fees to file a divorce are around $200.

Another thing that is commonly plead in the original petition is a request that the other side pay your attorney fees. You may not get them awarded to you by the judge at the end of the case, but you definately won't get them awarded to you if you don't plead for them at the beginning of the case.