Articles Posted in Family Law

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During their acrimonious divorce, Paula accused Barry of serial infidelity. In discovery Barry asked her for all documents related to that accusation. Paula complied and produced copies of incriminating emails between Barry and several other women. In a separate lawsuit, Barry alleged that Paula violated the federal Wiretapping and Electronic Surveillance Act, 18 U.S.C. 2520, by surreptitiously placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to her and that Paula’s lawyer violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district judge dismissed. The Seventh Circuit affirmed that Paula’s lawyer cannot be liable for disclosing Barry’s own emails to him in response to his own discovery request. The allegations against Paula, however, technically fall within the language of the Act, “though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.” The emails attached to the complaint did not conclusively defeat Barry’s allegation that Paula intercepted his emails contemporaneously with their transmission, as required by the Act. View "Epstein v. Epstein" on Justia Law

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In 2010, Trentadue’s ex‐wife sought to modify placement and child support, related to one of their six children. A three-year legal dispute over custody, placement, health insurance, and child support followed, involving substantial motion practice, requests for contempt findings, engagement of experts, and evidentiary hearings. The Wisconsin state court overseeing the litigation determined that Trentadue’s conduct resulted in excessive trial time to resolve the case and awarded Trentadue’s ex‐wife $25,000 in attorney’s fees for “overtrial,” to be paid to attorney Gay. Trentadue never paid Gay. Instead, he filed a chapter 13 bankruptcy petition. Gay countered by filing a $25,000 claim for the unpaid overtrial award and classified it as a nondischargeable, domestic support obligation entitled to priority. Trentadue objected that the obligation was imposed as a punishment, not a domestic support obligation. The bankruptcy court overruled his objection. The district court and Seventh Circuit affirmed, noting the restorative nature of the award. which “furthers two objectives, providing compensation to the overtrial victim for fees unnecessarily incurred and deterring unnecessary use of judicial resources.” The court also noted that Trentadue’s finances are “not so bleak,” including monthly income of six to seven thousand dollars. View "Trentadue v. Gay" on Justia Law

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For the first seven years of A.M.’s life, he lived in Illinois with his mother, Martinez. A.M.’s father, Cahue, lived nearby. The two never married, but had a private arrangement, never formalized through a court order, for custody and visitation rights. In 2013, Martinez, a Mexican citizen who worked at the Mexican Consulate in Chicago, moved to Mexico and took A.M. with her. About a year later, Cahue persuaded Martinez to send A.M. to Illinois for a visit; he then refused to return A.M. to Mexico. Martinez petitioned for his return under the Hague Convention on Civil Aspects of International Child Abduction, implemented by the International Child Abduction Remedies Act, 22 U.S.C. 9001. The district court found that Illinois remained A.M.’s habitual residence and dismissed Martinez’s petition. The Seventh Circuit reversed and ordered the child’s return to Mexico. At all relevant times, Martinez had sole custody of A.M. under Illinois law, while Cahue had no right of custody either under Illinois law or the Convention; only Martinez’s intent mattered, and Martinez wanted A.M.’s habitual residence transferred to Mexico. View "Martinez v. Cahue" on Justia Law

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Mother and father, Mexican citizens, dated in 2001-2002. In 2002, mother gave birth to a child, D.S., in Mexico. Although mother has had physical custody of D.S., father played an active part in the child’s life. In 2013, mother and D.S. moved to Chicago. Father sought D.S.’s return to Mexico under the Hague Convention on Civil Aspects of International Child Abduction, to which Mexico and the U.S. are parties (International Child Abduction Remedies Act, 22 U.S.C. 9001). Once the child is in a participating country, local courts are empowered to resolve any questions about custody, support, or other family law matters. The Seventh Circuit held that the Hague Convention is no exception to the general rule, Federal Rule of Civil Procedure 44.1, that an issue about foreign law is a question of law, not fact, for purposes of litigation in federal court and that father had the necessary custodial right over D.S. at the time when mother refused to permit his return to Mexico. Because D.S.’s habitual residence is Mexico, mother’s retention of D.S. is wrongful under the Convention. The district court had adequate reason to refuse to defer to D.S.’s indications that he prefers to stay in the U.S. View "Salazar-Garcia v. Galvan-Pinelo" on Justia Law

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Ortiz filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of his children to Mexico City. The children are currently residing in Chicago with Martinez, their mother. Martinez accused Ortiz of sexually molesting his seven-year-old daughter and asserted that their 16-year-old son had expressed a desire to remain in the United States. The district court denied the petition to return the children. After interviewing the children and hearing testimony from Martinez and a court appointed psychologist, the court found that Martinez had wrongfully removed the children from Mexico, but that an exception to the Convention’s mandatory-return rule applied with respect to each child. The Seventh Circuit affirmed. View "Ortiz v. Martinez" on Justia Law

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Jones was murdered, leaving no will. He owned a life insurance policy through his employer. He did not designate a beneficiary. The policy provided that the proceeds ($307,000) would go first to a surviving spouse (Jones never married), second to surviving children, third to surviving parents, and fourth to his estate. Quincy claimed to be Jones’s son; Moore, claimed to be his daughter. The insurance company filed an interpleader action. After paying $24,000 for funeral expenses and $137,000 to Quincy, the company deposited the remainder with the court. Jones’s biological sister also claimed the proceeds, arguing that Jones was homosexual and had not fathered children. Jones’s income tax returns showed that he had claimed various children as dependents, sometimes omitting Quincy. A DNA test established that Moore was not his daughter. The district judge declined to order a test for Quincy because Jones had held Quincy out as his biological son and had signed an order in 1996 acknowledging Quincy (then six years old) as his son. The judge awarded Quincy the deposited funds.. The Seventh Circuit affirmed. Rule 35 would have allowed, but did not require, the judge to order a DNA test, given the presumption of paternity under Illinois law.View "MN Life Ins. Co. v. Jones" on Justia Law

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The Seventh Circuit affirmed district court decisions invalidating Indiana and Wisconsin laws that did not recognize the validity of same-sex marriages, whether contracted in those states or in states (or foreign countries) where they are lawful. The states gave no “reasonable basis” for forbidding same-sex marriage, but more than a reasonable basis was required because the challenged discrimination is “along suspect lines,” being against a minority and based on an immutable characteristic of the members of that minority, against an historical background of discrimination against the persons who have that characteristic. These circumstances create a presumption that the discrimination is a denial of the equal protection. The discrimination does not confer an important offsetting benefit on society as a whole and is not appropriate to its stated objectives. The court stated that: “Formally these cases are about discrimination against the small homosexual minority,” but at a deeper level, they are about the welfare of children. Children adopted by homosexual couples would be better off emotionally and economically if their adoptive parents were married. With respect to the states’ arguments about governmental interest in the welfare of children, the court noted that infertile heterosexual couples are allowed to marry. View "Wolf v. Walker" on Justia Law

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Gary and Deborah divorced in 2003 and agreed to a marital settlement. Gary purchased an annuity, to pay him $200 per month until his death; the settlement required him to pay her “$200 per month…in lieu of her interest in [the annuity].” Two years later, Gary filed for Chapter 7 bankruptcy and asked the court to discharge financial obligations to his ex-wife under the settlement. Gary attempted to blackmail Deborah into cooperation, using nude photos of her sister as a child. He is now in prison for bankruptcy fraud and possession of child pornography. 18 U.S.C. 152(6), 2252A(a)(5)(B). Deborah and the bankruptcy trustee agreed that she had an unsecured claim for $158,455.63, including $12,400 representing 62 monthly payments that the trustee had received under the annuity. Gary owned the annuity, so these payments were part of the bankruptcy estate and their inclusion in her claim was a mistake. The trustee successfully moved the bankruptcy judge to permit transfer to Deborah of $1000 in annuity payments collected since settling her claim, and to direct the company to make future payments to her directly. The Seventh Circuit reversed, directing the court either to order Deborah to return the $1000 or order the trustee to deduct it from her claim and to instruct the company to resume making payments to the trustee. View "Peel v. Peel" on Justia Law

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Allen suffered a fatal heart attack in 2009, leaving a wife of three years, Arlene, and three adult children from a previous marriage. At the time of Allen’s death, his daughter and her children lived with Allen and Arlene. Allen had a will bequeathing $100,000, but his assets passed outside of probate, leaving his estate with insufficient funds for the bequest. Allen had designated his children as beneficiaries of assets, including a home, life insurance policies, retirement accounts, and other savings accounts. Allen had one life insurance policy as part of his compensation package as a pharmacist, which provided $74,000 in basic coverage and $341,000 in supplemental coverage. If the policyholder failed to designate a beneficiary by his date of death, the proceeds would pass to the policyholder’s spouse by default. The insurer never received any indication that Allen wished to designate a beneficiary. In the days following Allen’s death, however, the children found a change-of-beneficiary form, allegedly completed by their father more than a year before his death, but never submitted. The district court ruled in Arlene’s favor, finding that even if Allen had filled out a change-of-beneficiary form he had not substantially complied with policy requirements for changing beneficiaries. The Seventh Circuit affirmed. View "Kagan v. Kagan" on Justia Law

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Mary, who has both U.S. and Irish citizenship, attended college in Ireland.She and Derek lived together in Ireland for 11 years, but never married. Their son was born in Illinois. The three returned to Ireland 11 days later. A few months later Mary and the baby moved to Illinois against Derek’s wishes. As an unmarried father, Derek had no standing under Irish law to resort to the Hague Convention on the Civil Aspects of International Child Abduction, which requires return of children to their country of habitual residence if they are “wrongfully removed to or retained in” another country in breach of the custody rights of the left-behind parent. After 3-1/2 years, an Irish court granted Derek guardianship and joint custody. Mary was in Ireland with the baby for the final hearing. The court allowed her to temporarily return to Illinois. Eight months later Derek filed a Hague Convention petition in Illinois. The district court ordered the child returned to Ireland. The Seventh Circuit reversed. The district court incorrectly treated the parents’ last shared intent as a test for determining habitual residence. Under the Hague Convention, that determination is a practical, flexible, factual inquiry. When Mary moved with the baby to Illinois she was his sole legal custodian and removal was not wrongful under the Convention. By the time of the alleged wrongful “retention,” his life was too firmly rooted in Illinois to consider Ireland his home. View "Redmond v. Redmond" on Justia Law