professionalism and excellence in the practice of family...

n institute for family law associates June23–26,2011 Renaissance Hotel Chicago,Illinois

nafcc/aaml conference September15–17,2011 Westin Philadelphia Philadelphia,Pennsylvania

nannual meetinG November1–4,2011 Renaissance Hotel Chicago,Illinois

nmiDyear meetinG March11–15,2012 Marriott Los Sueños Ocean and Golf Resort PlayaHerradura,CostaRica

naicPa/aaml conference May9–11,2012 Bellagio Hotel LasVegas,Nevada

n institute for family law associates June21–24,2012 Renaissance Hotel Chicago,Illinois

nannual meetinG November7–10,2012 J.W. Marriott Hotel Chicago,Illinois

American Academy

ofMat ri mo nial Law yersn e w s n e v e n t s n i n f o r m a t i o n

s P r i n G / s u m m e r 2 0 1 1

The Mission of the AAML is to provide leadership that

promotes the highest degree of professionalism and excellence in the practice of family law.

During the annual AAML meeting in Chicago in November 2011, the AAML Foundation will celebrate its 20th Anniversary. It is, therefore,

an appropriate time to share the history of our Foundation.

The Vision

The American Academy of Matrimonial Lawyers Foundation was the vision of our Fellow and AAML Past President, DonnFullenweider. While a member of the Board of Governors, Donn successfully convinced the Academy to create a charitable foundation independent of the Academy. Donn was familiar with the workings of the Texas Bar Foundation and the charitable nature of its mission. He recognized that the AAML would realize many benefits by creating a foundation to raise money to fund special projects related to family law. Further, Donn believed that raising funds for charitable projects would have a public relations benefit to the Academy. Of all the fields of law that needed a better image, Donn felt strongly that it was the family law bar. A charitable foundation was the vehicle to assist projects helpful to those going through divorce, especially children.

When Donn convinced the Board of Governors to create a Foundation, he had no idea that it would become as successful as it is today. Shortly before Donn became President of the American Academy, he reached out to other Fellows in the Academy to bring the vision to life. Many leaders stepped to the plate. LouiseRaggio, who had been very active with the Texas Bar Foundation, provided advice and assisted in the creation of the AAMLF. LeonardLoeb and DonnFullenweider were among the first contributors to the Foundation.

The Turning Point

During the early years, the Foundation struggled to obtain sufficient donations to fund its charitable causes. In 1997, Foundation President JoyFeinberg, Immediate Past President LeonardLoeb and GeorgeStern realized that the Foundation was at a critical juncture and needed a boost. Joy, Leonard and George undertook to recruit MikeAlbano to serve as the President of the Foundation. Mike agreed

Celebrating 20 Years!Celebrating 20 Years!the AAML FoundAtionhttp://www.aaml.org

Cal endar AAML/AFCC Program in Philadelphiaby Linda Lea Viken, AAML President | Rapid City, South Dakota

We are very excited about the inaugural joint educational program between the American Academy of Matrimonial Lawyers and the Association of Family

and Conciliation Court. “AdvAnced Issues In chIld custody: evAluAtIon, lItIgAtIon And settlement”will be presented at the WestinPhiladelphia,September15–17,2011.

This is an advanced level program presented by family lawyers, mental health professionals, judges, and others who work in the field of child custody. Ten teams consisting of an AAML Fellow and a member of the AFCC will present ninety-minute programs on such topics as parental alienation, witness preparation, direct and cross examination, psychological testing, child development and custody, domestic violence, child relocation disputes, bias and Opinion formulation, mental health consultation, and ethical issues.

There will also be a pre-conference Institute on Thursday morning, September 15, 2011, with a concentrated focus on “What Lawyers can Teach Mental Health Professionals: Rules of Evidence, Courtroom Procedure and Etiquette, and Terminology” and Advanced Mental Health Concepts: A Lawyer’s Guide to the DSM-IV-R and the Use and Misuse of Psychological Evaluations in Litigation.

AdvanceprogramregistrationisavailablesolelytomembersoftheAAMLandAFCCuntilJune 30, 2011.Weexpecttheprogramtoselloutquickly,soitisimportantforyoutoregisterassoonaspossible.WelookforwardtoseeingyouinPhiladelphiaonSeptember15.

AAMLVicePresidentMariaCognetti was honored as an Association of Family and Conciliation Court Ambassador at the association’s June program in Orlando, where she and AAML Fellow GaetnoFerro were presenters. This distinction is given each year to AFCC members who help promote the ideals and goals of the AFCC. She was honored as an Ambassador as a result of her work in the development of the first conjoint AFCC/AAML program being presented in Philadelphia September 15 –17, 2011. (AAML Foundation ar ticle continues on page 11)

American Academy

of Mat ri mo nial Law yers

2010/2011 OFFICERS

PRESIDENT Linda Lea M. Viken, South Dakota

PRESIDENT-ELECT Kenneth P. Altshuler, Maine

FIRST VICE-PRESIDENT Alton L. Abramowitz, New York

VICE-PRESIDENTSMaria P. Cognetti, Pennsylvania

Joslin Davis, North Carolina Sarah (Deb) Eldrich, Connecticut

Madeline Marzano-Lesnevich, New JerseyJames T. McLaren, South Carolina

John S. Slowiaczek, Nebraska

TREASURERG. Thomas Vick, Texas

SECRETARYSusan Myres, Texas

IMMEDIATE PAST-PRESIDENTMarlene Eskind Moses, Tennessee

PAST-PRESIDENTGary L. Nickelson, Texas

COUNSELRonald Anteau, California

PARLIAMENTARIANCatherine Petersen, Oklahoma

EXECUTIVE DIRECTORVicki L. West

NEWSLETTER STAFFEDITOR: Kenneth P. Altshuler, Maine

EDITOR: Cheryl Lynn Hepfer, MarylandWynter Reneaux Collins, Kentucky

James Higdon, TexasPeter Walzer, California

ThePresident’sMessage

I have decided that one of my jobs as President is to “fix it and finish it.” For example,

changes are being made in the Bylaws to clarify that the incoming President’s committees start in November; to move the Executive Committee and Board of Governors into the electronic age by allowing voting via e-mail when needed (such as to approve the committees of the incoming President so they can begin in November); and updating the categories of membership.

The website transition and enhancement is continuing, but there is more work to do. The Academy Journals are being placed on the website and the various articles will eventually be noted under the topic headings. Website Chair Sarah(Deb)Eldrich needs more help to continue the website expansion. Please volunteer to assist.

Handbooks for the Executive Committee, Board of Governors, Committee Chairs, and Chapter Leaders are now in the Member’s Section. AAML In The News and our webinars can all be found on the home page. Take a look at the benefits of the hard work by our public relations firm. You will find the AAML has been highlighted in such diverse places as TV shows, the NewYorkTimes, the FinancialTimes, and the HuffingtonPost, as well as in articles abroad.

The Custody Standards for the Representation of Children report is being finalized. The National Test Committee is reviewing our national exam. A special committee is comparing our standards

for admission and our application form to our Bylaws and policy requirements.

The CLEs in Maui were wonder-ful thanks to ChairJimMcLaren and Program Chairs JoslinDavis, MelissaAvery and AnitaVentrelli.

As a result of the presentations, the Best Practices

Committee proposed a three-part series spin off on electronic evidence be presented as webinars for those of you who did not attend the great meeting in Maui.

The website Chair needs more help to continue the website expansion. Please volunteer to assist.

Our program with the Association of Family and Conciliation Courts is scheduled for September 15–17, 2011, in Philadelphia. I believe this collaboration with AFCC will be beneficial to us all as is our work with AICPA. Pleaseplantoattend.Weneedtoshowoursupport.

I have recently been approached by the National Council of Juvenile and Family Court Judges to explore the possibility of AAML working with their organization. I believe these kinds of relationships will help us fulfill our missions

n Linda Lea Viken AAML President 2010–2011

AmericAn AcAdemy of mAt ri mo niAl lAw yers | 2 | Spring/Summer 2011

“to provide leadership that promotes the highest degree of professionalism and excellence in the practice of family law.”

I have visited a number of our Chapters and am excited and enthused about the contributions our Fellows make to the practice of family law. I am proud to be your President.

Ifyouhavequestions,concernsorcompliments,pleasefeelfreetocontactme.

WithPersonalRegards,

LindaLeaViken AAMLPresident2010–2011Rapid City, South Dakota

newsletter contents

AAML/AFCC progrAM in phiLAdeLphiA . . . . . . . . . . . . . . . 1

AAML FoundAtion CeLebrAtes 20 yeArs . . . . . . . . . . . . . 1

the president’s MessAge . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

AAML neWs-in-brieF

n photos from the Midyear Meeting . . . . . . . . . . . . 2, 7, 9, 10, 12, 13, 16, 23–27

n report of the 2011 nominating Committee . . . . . . . . . . . . 4

n CLe preview: Annual Meeting, november 2011 . . . . . . . . . 5

n From the desk of the president-elect: Midyear 2012: plan now for a Costa rican Adventure . . . . 6

n Welcome, new Fellows! . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

n AAML 2011 Maui open golf tournament . . . . . . . . . . . . . . 7

n teleconferences, Webinars, and Videos . . . . . . . . . . . . . . . . 8

n Family Law Funnies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

n AAMLF donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

n Chapter Leaders Meeting report of March 2011 . . . . . . . 13

n Chapter reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 – Alabama Chapter – Minnesota Chapter – ohio Chapter – south Carolina Chapter – southern California Chapter

n good CounseL: Go Figure, an ongoing . . . . . . . . . . 17-18 column by Financial research Associates: simplification of present Value Concepts to Assist settlements

n good CounseL: Maintenance, support and underemployed payors . . . . . . . . . . . . . . . . . . . . . . . . . 19-20

n good CounseL : . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21–23 Military Custody bill in Congress

Colophon, submission information, editorial notices . . . . . 28

nJeff and Linda Lea Viken and Ken Altshuler

nTom Vick and Linda Lea Viken


midyear meeting in maui, march 2011

nMary Jo McCurley and Marlene Moses

nKit Petersen and Elizabeth Lindsey

AAml news in Brief


Report of the 2011 Nominating Committeeby Kenneth P. Altshuler Nominations Committee Chair, AAML President-Elect Portland, Maine

The AAML Nominating Committee met throughout April and May 2011. Attending were committee members MarleneMoses,

RonaldTweel, LauraBelleau, LeeRosenberg, and ChairKenAltshuler.

The Committee discussed the applications received and all potential candidates for the open positions, and unanimously voted to propose the following slate of officers:~ PresidentElect AltonAbramowitz

~ FirstVicePresident MariaCognetti

~ VicePresident JohnSlowiaczek

~ VicePresident PeterWalzer (to fill the remainder of MariaCognetti’s term as a VP)

~ Secretary SusanMyres

~ Treasurer CaryMogerman

~ Governor-at-Large(Non-Chapter State) DeborahTate

~ Governor-at-Large MelissaAvery

~ Governor-at-Large WillliamGlucksman (to fill the remainder of PeterWalzer’s term)

Abriefstatementofeachnominee’sactivitiesintheAcademyand,generally,inthelegalprofession:

AltonAbramowitz~ Alton is in private practice in New York, New York. He has served as Secretary of the AAML and is currently First Vice President. Alton has been a member of Board of Governors, co-chaired the Committee to Review the Standards for Representation of Children and has chaired the Policies- and Outreach to Fellows Committees. He has also been a member of the Bylaws-, Budget and Finance-, and Long-Range Planning Commit-tees.

MariaCognetti~ Maria is in private practice in Central Pennsylvania. She is currently serving her second term as a Vice President of the AAML. Maria was previously the Pennsylvania delegate to the Board of Governors. Maria presently chairs the Child Custody Evaluation Standards Committee and the By-Laws Committee. She has previously served on the CLE-, Sales and Marketing-, and Mediation Committees. Maria is also active on the Policies Committee and Strategic Plan Implementation Committee.

JohnSlowiaczek~ John is in private practice in Omaha, Nebraska. John currently serves as a Vice President. John has been a faculty member and mentor of the Institute for Family Law Associates for many years. He has served on several other committees over the years and, most recently, he has been involved with the Standards for Representing Children Committee. In 2010, John co-chaired the Com-mittee that rewrote the Divorce Manual. John is currently co-chairing the Bounds of Advocacy Committee.

PeterWalzer ~ Peter is in private practice in Los Angeles, California. Peter chairs the Webinar Committee and is co-chair of the Chapter Leaders Committee. He also has served on the Amicus-, Newsletter-, and Website Committees. He was named Fellow of the Year in 2010.

SusanMyres ~ Susan is in private practice in Houston, Texas. Susan was the Chair of the Membership Committee for the past five years, served as an at-large member of the Board of Governors, and is currently the secretary of the AAML.

CaryMogerman~ Cary is in private practice in St. Louis, Missouri. Cary became an Academy Fellow in 1995 and is a past-President of the Missouri Chapter. He has repre-sented Missouri on the AAML Board of Governors since 2005. Cary is a member of the Admissions Procedures Committee and Institute for Family Law Associates Committee. He serves as a mentor/faculty member for the annual Institute for Family Law Associates. Cary became a member of the AAML Foundation board last year.

DeborahTate~ Deborah is in private practice in Providence, Rhode Island, and is a past President of the Rhode Island Bar Association. She is a co-editor of “A Practical Guide to Divorce in Rhode Island” and has been a faculty member and mentor of the AAML’s Insti-tute for Family Law Associates. Deb is a founding member of the New England Provisional Chapter, has chaired the Elderly Affairs Committee, and has served on various committees and projects for the Academy. She received the Academy’s Distinguished Service Award in 1997.

MelissaAvery ~ Melissa is in private practice in Indianapolis, Indiana. Melissa currently serves as a CLE Program Chair for the AAML. She is also a member of the ABA Family Law Section Council, CLE Committee, and Finance Committee and the Chair-Elect of the Indiana State Bar Family Law Section. Melissa is also a Fellow of the IAML.

WillliamGlucksman ~ Bill is a partner of Kolodny & Anteau, practicing in Beverly Hills, California. Bill served as a CLE Program Coordinator in 2010 and has served on Admissions and Membership Committees. Bill is currently Immediate Past President of the Southern California Chapter, having served on its Board since 2004. Bill is also an Assistant Treasurer of the IAML and US Chapter of the IAML.

Annual meeting in november

CLE Preview: Annual Meeting, November 2011by James T. McLaren CLE Committee Chair, AAML Vice President Columbia, South Carolina

ContInuIng legAl educAtIon ProgrAms will be held on Wednesday, November 2, 2011,

Thursday, November 3, 2011, and Friday, November 4, 2011 — which is a schedule change from prior years — at the Annual Meeting in Chicago, CLE Chair JamesT.McLaren with Program Chairs MelissaJ.Avery, JoslinDavis, and AnitaM.Ventrelli have put together an exceptional program for our Fellows. Please mark your calendar and plan to attend.

wednesday, november 2, 2011

Program Chair MelissaJ.Avery will begin the program on Wednesday with an intensive look at the more “Complex Tax Issues” facing our Fellows in their divorce practices.

s Fellows DanielJ.Jaffe of Beverly Hills, California and DavidS.Dolowitz of Salt Lake City, Utah will join CPA, ABV and CFF MichelleF.Gallagher of Lansing, Michigan to create an experienced panel certain to provide valuable information on high level taxation questions arising in divorce.

The speakers will address such issues as: how to get and use IRS Private Letter Rulings; tax planning in prenuptial agreements; the status of innocent spouse relief; domestic partnerships; off shore accounts; alimony recapture and family support; prepaid taxes, estimated payments and losses as a marital asset; foreclosures and cancellation of debt; attorney fees; and retirement accounts.

Finally, the panel will provide helpful trial techniques and tips for presenting clear and persuasive evidence to judges regarding tax issues.

thursday, november 3, 2011

Program Chair JoslinDavis will lead day two, Thursday. The speakers will address “Privacy Issues” and “Male/Female Communications.”

s Our first speaker will be Fellow WilliamM.Levine from Boston, Massachusetts who will be discussing privacy issues, specifically, the new Massachusetts law and give us insights about the wave of future privacy requirements that are coming the way of all family lawyers. Mr. Levine is also a Fellow of the International Academy of Matrimonial Lawyers and has recently completed a term as a member of the Board of Directors of the Association of Family and Conciliation Courts, Massachusetts Chapter.

s Next, we will hear from StevenD.Stark and SarahWald who will present on “Male/FemaleCommunicationsIssues.” They will give you fascinating practical tools for understanding how gender affects communication in American life and dozens of tips to help you in your daily work.

~ Mr. Stark is a writer, lawyer, and consultant who teaches courses on writing and speaking to lawyers and other professionals. A former cultural commentator for CNN,NationalPublicRadio, and the VoiceofAmerica, he has written frequently for the NewYorkTimes, the LosAngelesTimes, the AtlanticMonthly, and the BostonGlobe where he was an op-ed columnist.

~ Ms. Wald is the former Dean of Students at Harvard Law School and a former Assistant Provost at Harvard University. She is currently Chief of Staff at the Harvard Kennedy School.

Friday, november 4, 2011

Program Chair AnitaM.Ventrelli has arranged an excellent program otherwise known as the “Truth or Consequences Day.”

s The day begins with “Liar’sCourt:DefeatingLiesinMatrimonialMattersfromNegotiationtotheCourtroom,” a presentation by MarioR.Ventrelli, a partner at Schiller DuCanto & Fleck LLP that will school Fellows on the non-verbal signs of lying in negotiations, with a multi-media presenta-tion and audience participation.

s In the second half of the day, “TheTruthisMoreImportantthantheFacts:TheConsequencesofLying,” TheHonorableEdwardJordan of the Cook County Circuit Court, Domestic Relations Division and our own Past-President, DonaldFullenweider, will delve into the panoply of consequences of lying by parties, witnesses or counsel of record.

n Jim McLaren


Plantocometothe annualMeetinginChicagoandlearnfromourvarietyof informativespeakerson topicsofinteresttoday!

AAML

How About Activities?

Just a few things you can experience (in alphabetical order): Aerial Tram > ATV Tour > Biking > Bird Watching > Bungee Jumping > Butterfly Farm > Camping > Canopy Tour > Canyon Tour > Catamaran Tour > Coffee Plantation > Crocodile Safari > Deep Sea Fishing > Golf >

Hang Gliding > Hanging Bridges > Hiking > Horseback Riding > Jet Ski Touring > Kayaking > Kite Boarding > Mountain Climbing > National Park Tours > Rock Climbing > Scuba Diving > Snorkeling > Surfing >

Tennis > Volcanoes > Waterfalls > White Water Rafting > Zip Lines.

Not in the Mood for Activities?

No problem! Just relax at the fabulous Marriott Los Sueños. With a world class spa and a friendly casino, you do not have to leave the grounds at all. Or how about a round of golf? But not just any round of golf. Ever play on a golf course in the middle of a rain forest? We can’t be responsible if one of the white eagles picks up your ball before you have a chance at that birdie putt!

Hungry?

Not a problem. You can enjoy one of the hotel restaurants (LaVista,NuevoLatino,Hoyo19), the CasadelCafé coffee house, or the PuestadelSol pub.

If you want to dine off site, you can either drive the few miles into the quaint town of Jacó, or walk across the lawn to the Los Sueños Marina, where you will find four wonder-ful dining opportunities, including ElGaleónRestaurant, LanternaRistoranteItialiano,BambuSushiandAsianCuisine, or the DolceVitaCoffeeandSweets. And for nightlife, the marina also has the lively Hook Up (no, I did not make up the name of this restaurant/ night club).

Championship Golf Course. nestled alongside an exotic rainforest with breathtaking ocean views, this 18-hole, par-72 championship course offers not only a challenging ted robinson-designed layout but also a spectacular gallery featuring friendly monkeys and brightly hued macaws .

AAml news in Brief

W hen I was contemplating meeting sites for the 2012 Midyear Meeting for the AAML, I would often

ask people if they had ever been to Costa Rica. The answer, inevitably, was “No, but I have always wanted to go there!”

Well your chance to do so has arrived! I invite you to join family and friends at the five-star Marriott Los Sueños in Playa Herradura, on the pacific coast of Coast Rica, March 11–15, 2012.

You will receive more information and your registration materials for the meeting later this year. We have arranged to reserve every room at the hotel exclusively for our group. Because of this, we need to accelerate room reservations in advance of meeting registrations.

By now you should have received the form to reserve your room for the meeting.

Zip Line Canopy Tour

We strongly encourage you to book your room today so that you can join the rest of the group in this wonderful hotel. We are urging fellows to arrive Saturday, March 10, re-turning on Saturday, March 17.

To facilitate your travel plans, we have scheduled “party buses” to leave the San Jose airport (SJO) at regular intervals on the 10th for the trip to Los Sueños. Not only will you have snacks, “beverages,” and hands-free travel to the hotel, but each bus will have a guide to provide you with the history and color of this unique country, while you take the new national highway to the pacific coast.

And of course, there will also be the customary cocktail parties, top-shelf CLE, and a little salsa dancing thrown in.

Reservations.

To make it easier for you to book your stay, Vicki and her staff are exclusively processingallofthereservationsforthehotel (which means donot call the hotel for reserva-tions — all reservations will be processed solely through the AAML office). So please book your hotel as soon as possible.

Our welcoming reception will be at the Villa Caletas, located on a rainforest hilltop 1,150 feet above the Pacific Ocean, overlooking the Nicoya Gulf and the crescent beaches of Jacó. The 360-degree panoramic view is breath-taking and just a hint at what is in store for you the remainder of your trip.

n Ken Altshuler

From the Desk oF the PresiDent-elect:

2012 Midyear Meeting: Plan Now for a Costa Rican Adventure by Kenneth P. Altshuler AAML President-Elect Portland, Maine

Spa Pavilions: oceanside and gardenside pavilions to enjoy your massage to the sounds of nature .

Oceanside Pool

Los Sueños Marriott Ocean & Golf Resort

T his will be a trip of a lifetime,

so bring the kids and grand- children and be prepared for the Pura Vida (pure life) of Costa Rica!


HLos Sueños Marriott

three-toed sloth in tree, Costa rica

AAml news in Brief

AAML Maui Open Golf Tournament, March 2001by Kenneth P. Altshuler Golf Tournament Director Portland, Maine

Forty-fourgolfersgatheredunderthebeautifulMauiskiestoparticipateinthe2011AAMLMauiOpen.Intheclosestcontestinyears,theteamofTonyDick, JanetDick, RobertBlevans,

and LawrenceMoskowitz chargedaheadtowinthetournamentcrown.Theteamwillhavetheirnamesengravedonthe “Eat, Drink and Remarry Trophy,” displayedattheannualmeetinginChicagoforalltoadmire.

ArnoldSheinvold won the prize for the men’s longest drive and JoslinDavis had the women’s longest drive. TomEngland hit his tee shot closest to the pin for the men and, as mentioned above, ElaineEskind hit her shot closest to the hole in the women’s division.

AAml news in Brief


n Ann E. BauerSt. Louis, Missouri

n Suzanne E. BayleNew Orleans, Louisiana

n JoAl Cannon-SheridanAustin, Texas

n Helen E. CasaleNorristown, Pennsylvania

n Patricia A. CooperDenver, Colorado

n Michael C. CravenChicago, Illinois

n Carolyn N. DalyMorristown, New Jersey

n Paige D. FirmentWorcester, Massachusetts

n Michael I. FloresOrleans, Massachusetts

n Todd M. FrankfortHouston, Texas

n Susan Saper GalambaOverland Park, Kansas

n John J. Hollis, Jr.Nashville, Tennessee

n Anne M. HonsaMinneapolis, Minnesota

n Shirley F. KeislerFairfax, Virginia

n Candice L. KomarPittsburgh, Pennsylvania

n Darcy E. LovelessDenton, Texas

n Lora L. McCollomDes Moines, Iowa

n Joani C. MobergMinneapolis, Minnesota

n James E. MonnigSan Antonio, Texas

n Alexandra MussallemSan Francisco, California

n Reid B. RobertsPittsburgh, Pennsylvania

n Stephen R. SmithPhoenix, Arizona

n Eric S. SolotoffRoseland, New Jersey

n Howard B. SoypherBethesda, Maryland

n Charles F. Vuotto, Jr.Matawan, New Jersey

Welcome, New Fellows!

W earealwaysproudtoprintthenamesandlocationsoftheattorneyswhohaverecentlybeenadmittedtoourFellowship.Wewelcomeournew

members,encourageeveryonetomeetandgettoknowthembetter,andinviteournewFellowstoparticipateinthevariousAcademyprojects,activitiesandevents.

New Members as of June 15, 2011

nTom Simpson, Bill Glucksman and Peter Walzer

nJanet and Bill Glucksman

nDean Dussias and and Norman Ruber nLee Rosenberg

the 2012 AAML Open Golf Tournament will be held at the beautiful La Iguana Golf Club at the Marriott Los Sueños Ocean and Golf Resort

— set in the middle of the Costa Rican rain forest.

So join us on March 13, 2012 and compete to get your team name on the Championship Trophy!

You can log into the following programs “on demand”:

n TheTaxReturn—AGPSforDivorceLawyers JerryRandall,CPA, ForrestKuhn, JonFeder

n Here,ThereandEverywhereJurisdictionUndertheUCCJEA

ProfessorAndreaCharlow, JosephBooth, DanielBray, KitPetersen;

n CrossExaminingtheBusinessValuationExpert BarrySziklay,CPA, PeterM.Walzer, GuyFerro

n We videotaped last year’s annual meeting. Out of the nine hours of video tapes, we selected BusinessIncomeAvailableforSupport Ron Granberg’s presentation.

We are offering that on our website. See Ron’s presentation by logging into the video, article below.

Business Income Available for Support: Phantom Income, Depreciation and Other Demons [video replay]

A judge calculating support can face difficulties when a parent or spouse participates in a “pass-through income entity” such as an S Corporation, partnership or LLC.

Find out the secrets by watching the video of RonaldS.Granberg’s program from the AAML annual meeting in Chicago, November 2010.

Ron discusses when “phantom income” should be considered in a support calculation. Should a business owner’s loan principal payments be deducted from income available for support? Should some or all depreciation be added


Teleconferences, Webinars, and Videosby Peter Walzer Webinar Committee Chair Los Angeles, California

The AAML has initiated a series of webinars that can be viewed at anytime by logging into http://www.aaml.org (look in the middle of the

home page). We have already presented three webinars and we have four more planned.

There is some confusion as to what a webinar actually is. The word webinar is used inter-changeably with the word “teleconference.” In a webinar or teleconference, you would not actually see a live person wav-ing their arms about. You hear the speakers on your telephone

and you view the power point on your computer. You can type in questions as if you were texting or you can call in questions and the speakers will field them. The speakers can see the names of the people who are listening and the names of those who ask questions. A savvy presenter may even mention you by name, as in “good question, Saul.” If you are “watching” the teleconference in real time, we say you are watching it live. If you log in to our website later on and listen in at your leisure, you are using our “on demand” feature. The only difference between the two is that in the “on demand” feature you cannot ask questions of the speakers.

We charge the same fee for listening live and on demand. If you wish to listen live and later have the webinar “on demand” we charge a higher registration fee.

back to income? What proof should be given regarding the necessity of business expenditures? What accounting manipulations (e.g., understated ending inventory,FIFO /LIFO change) should the support recipient identify?

Ron Granberg is president of the Northern California chapter of the Academy. He is erudite, dynamic, practical, and witty.

Log in at http://www.aaml.org to register for the program, look for the Webinar box in the middle of the home page.

E-Discovery in the Family Law World

This summer we are offering a webinar titled “E-Discovery in the Family Law World” with JamesA.Hennenhoefer and GordonD.Cruse.

The program is to be aired on July 21 at noon Eastern-; 10 a.m. Central-; and 9:00 a.m. Pacific Time. This one and a half hour program is designed as a primer on e-discovery. The speakers will discuss how to promulgate it, how to comply with it, and how to oppose it. Jim and Gordon presented this seminar at our midwinter conference in Maui to rave reviews. To sign up, log into the link in the middle of the home page of http://www.aaml.org.

nRon Granberg

n Gordon Cruse nJames Hennenhoefer

n Peter Walzer

(Family Law Funnies continues on page 27)

AAml news in Brief

Family Law Funniesby Mark Gruber Newton New Jersey

Witnesses Say the Darndest Things!: Farm Country

In Sussex County, equitable distribution often involves dividing the “back forty.” The county is bucolic with rolling hills, farmland, lakes and streams. As such, or Sussex County mindset varies greatly from the more urban counties of New Jersey. During a palimony hearing, a Defendant testified that, although his relation with the Plaintiff lasted more than 21 years, the last 14 years were best character-ized as roommates without any sexual relationship. His testimony averred that the parties slept in separate bedrooms, he had several relationships with other persons, and that he had never held himself as the spouse of the Plaintiff, nor had he ever promised to support her. The Plaintiff’s sworn testimony, as one would imagine, was quite different. She alleged hat the parties held themselves out as husband and wife, and that they has a sexual relationship. She recounted one specific recent incident in which the Plaintiff has purchased a new waterbed and the Defendant had taken great joy in installing a mirror on the headboard to enjoy their lovemaking activities. In a serious and pointed cross-examination, the Plaintiff was asked whether, during the recent incident described in her direct examination, there had been penetration. In an honest and forthright manner, she testified that the waterbed mattress was very rocky-and-rolly. After several more questions on cross- examinations she finally admitted in true Sussex County fashion, “he kept trying but couldn’t get the horse into the barn.”

Lawyers Say the Darndest Things!: “The Layover”

We, divorce lawyers, can’t take ourselves too seriously. A Husband filed for divorce because his wife had rekindled a high school romance when she attended her tenth-year high school reunion. The boyfriend was a firefighter from Oregon and the Wife a resident


nEd Winer and Mike Albano nSusan Myres and Nancy Kellman

nRico Johnson and Kimberly Stockinger

nRoger Dodd’s family

nMichael Weiner, Susan Moss, Julia and Sydney Weiner


nJoslin Davis, Linda Lea Viken and Kit Petersen


nDavid Ladov, Susan Myers and Alex UrinRon Tweel, Joann and Bruce Wilder

nLouise Packard and Ron and Denise Granberg

nLarry Moskowitz, Ken Altshuler and Bob Moses

nDonna, Dani and Larry Martin


nDavid Carlock, Denise Mills and Dale Johnson

AAml foundation news : foundation donations

n AAML Foundation New Lifetime Member Ronald Rosen

n AAML Chapters General Contributions Florida Chapter New York Chapter Northern California

n In Honor of Melvyn B. Frumkes AAML Virginia Chapter

n In Honor of Alan Hirschfeld in celebration of his 60th Birthday Laurence J. Cutler

n In Honor of Anne Marie Jackson on the birth of her twins Thomas C. Ries

n In Honor of Donald Schiller in receiving the Samuel S. Berger Award Roger G. Fein

n In Memory of Alma Bertrand

From a Past President of the AAML

From a Past President of the AAML

n In Memory of Ellyne Ladden

Melvyn B. Frumkes

L. Stephen Wright, Jr.

Kolodny & Anteau Law Offices LLC

n In Memory of June Welty Sarah D. Eldrich

n In Memory of Louise B. Raggio Michael J. Albano

David S. Dolowitz

Margaret S. Travers

The Matrimonial Network (Dirty Thirty)

n In Memory of Marian Harris AAML Kentucky Chapter

— If you would like to make a contribution to the AAML Foundation, please contact —

Vicki L. West, Administrator

AAML FoundAtion | 150 No. Michigan Avenue, Suite 1420 |Chicago, Illinois 60601

phn:312.263.6477|fax:312.263.7682|eml:[email protected]

Donations to the

American Academy of Matrimonial Lawyers’ Foundation…as of June 3, 2011

lAw yers | 11 | Spring/Summer 2011 AmericAn AcAdemy of mAt ri mo niAl

AAML/AFCC Program in Philadelphia (continued from cover)

to become President for a two-year term (March ‘97– November ‘99). Immediately, Mike implemented a personal outreach to urge Fellows to donate generously to the Foundation. Mike and the Board sought input from all Fellows regarding what could be done by the Foundation Officers and directors to increase contributions from the Fellows. In the process, it was discovered that many Fellows were reluctant to contribute due to a perception that not enough funds were being used to help families and children going through the process of divorce.

In response, the Board sent a letter to Academy Fellows making a commitment to use the contributions to the Foundation for grants to organizations committed to helping children and parents who were suffering from the effects of divorce. Many leading Fellows, including MikeAlbano, JoyFeinberg, LeonardLoeb, ArnoldRutkin,and GeorgeSternfelt that the commitment letter was a major turning point in the Foundation’s prospects. Impressively, almost 80% of our Fellows responded and many of the responses included checks payable to the Foundation!

After receiving the generous responses, the Foundation Board and MikeAlbano announced a new and ambitious goal — to raise $1,000,000 as a principal base for the Foundation! This principal amount would be in addition to funding all of the grants that the Foundation would issue after 1997.

Fellows Who Have Served as President of the AAML Foundation:

JosephDuCanto > MargaretTravers > MichaelOstrow > BeverlyGroner > LeonardLoeb > JoyFeinberg > MichaelAlbano > BernardRinella > ElliotGourvitz > JamesHennenhoefer >SuzieThorn > BrianWebb > JohnMcDougall

DonnFullenweider,MikeAlbanoandtheOfficersandBoardmembersoftheAAMLFoundationareproudandgratefulforallthepastPresidents,Boardmembers,andthegenerousFellowswhohavehelpedtomakeour$1,000,000goalwithinreachin2011.

WehopeyoucanjointheotherFellowsastheFoundation’sguestatourannualcocktailpartyonWednesday,November2,2011,duringtheAAMLannualmeeting,withaspecialemphasisoncelebratingour20thAnniversaryandhonoringourfounders!

Scenes from the Midyear Meeting in Maui, March 2011.

nMary Kay Kisthart and Peter Walzer

nPat and Jim McLaren

AAml news in Brief: midyear meeting in maui

nTerese Colling and Dennis Hottell nLili and Tom Simpson

nRon Tweel and Larry Moskowitz nDee and Cary MogermannDeb Eldrich and Dan Hoffnung

nAllan and Carol Mayefsky


AAml news in Brief

AmericAn AcAdemy of mAt ri mo niAl lAw yers | 13 | Spring / Summer 2011

AAml chapter news

MaryDoherty and PeterM.Walzer led the Chapter Leaders meeting at the Grand Wailea

Hotel in Maui this March. Rather than go to the beach or the pool, chapter

leaders from sixteen of our chapters gathered indoors to share their successes and figure out ways to build on them. After the general meeting with the Executive Committee, the chapters separate into two groups — the larger chapters with more than fifty fellows, and the smaller chapters.

The chapter leaders shared their successful programs and initiatives, ways to develop awareness of the Academy among other lawyers and the judiciary, and raise revenue to run the chapters.

> Texas and Florida partner with their state bar associations to host annual seminars and draw hundreds of family lawyers from all over their states. These seminars generate considerable revenue for their chapters.

> Illinois, Pennsylvania, California (North and South), Minnesota and NewYork have monthly or bi-monthly meetings.

> Minnesota puts on its Divorce Camp in the North Woods every fall.

> The Illinois chapter has an annual gala event where they invite judges to participate.

> The NorthernCalifornia chapter has a mentoring program where their fellows show newer family lawyers the ropes. They hold an annual symposium and they donate the proceeds to charity. They have a trial training program every other year.

> The SouthernCalifornia chapter holds an annual institute that generates revenue for the chapter. They give an award to outstanding judges and an award to someone who has made an outstanding contribution to family law in the past year.

About half of the larger chapters have paid administrators. Most of the chapters have websites.

The chapters with under fifty fellows who attended the Hawaii meeting included Georgia, MountainStates, Michigan, Ohio, Maryland, Virginia, Michigan, Nevada, Oregon, and Connecticut. Georgia fellows provide a free late-case evaluation in conjunction with their courts. The attorneys are selected from a pool of thirty fellows in rotation by local judges. Virginia fellows make a probono commitment to their courts. Some chapters have a program to work with people taking the AAML exam. The leaders traded ideas on how to attract quality new fellows.

It was useful to get the chapter leaders together to share ideas and figure out ways to generate more income, promote the Academy, and draw qualified new applicants. The chapter leaders resolved to continue to find ways to build the Academy and improve its reputation. They then quickly made their way towards the beach.

Chapter Leaders Meeting Report of March 2011

nJohn Slowiaczek, Ken Altshuler, Lynda Doyle, Alton Abramowitz and Elizabeth Lindsey

nCary Mogerman, Allan and Carol Mayefsky and Dee Mogerman

AAml news in Brief


AAml chapter news

Alabama Chapter Report

The Fellows of the Alabama Chapter of the AAML went to Austin, Texas, for their 2011 retreat.

A great time was had by all thanks to the hard work of the retreat committee members AnneDurward, RobinBurrell and JessicaDrennan.

One of the highlights of the retreat was when the Austin, Texas fellows joined us for dinner at a local Tex-Mex restaurant. There was a spirited game of trivia. The Texas fellows had to answer questions about the State of Alabama, and the Alabama fellows had to answer questions about the State of Texas. The Texas winner EricRobertson won a gift basket of Alabama items ranging from a copy of the fiftieth anniversary edition of ToKillAMockingbird to Ala-bama style barbeque sauce. The Alabama winner, FlorannBoyd, wife of Alabama Fellow RonBoyd,

Minnesota Chapter Report

The Minnesota Chapter is in the final stages of completing its third Strategic Plan. The first Plan

was adopted in 2001 and helped us to focus our efforts in organizing. Please let us know if you want to receive a copy of our Plan once it is finalized. The Chapter has also been actively working at the legislature in opposition to two new proposals. The first would impose a presumption of joint physical custody in all cases. The second would require all potential litigants to enter a counseling or education program before filing dissolution of marriage proceedings.

Divorce Camp

The dates of the highly acclaimed “Divorce Camp,” a four-day conference in the northern Minnesota lakes country, is set for September 22–25, 2011, at Breezy Point Resort in northern Minnesota.

This year’s conference, entitled “Splitting the Baby: The Psychology and Economics of Shared Parenting,” will bring together one hundred and fifty lawyers, judges, mental health professionals, financial profes-sionals and (for the first time) legislators to address the latest research on children of divorce.

The keynote speaker will be the Chief Justice of the Minnesota Supreme Court, LoriGildea.

Divorce Camp is an interactive conference with (Chapter Repor ts continue on the next page.)

attendees hearing large group presentations and then working in small groups to use that information to identify ways to improve the law. Attendees will address the changing demographics of families in Minnesota and consider how legislative changes can better meet the needs of Minnesota families. They will look at legislation in other states and consider their successes and failures. At the conclusion of the conference, planners will prepare a white paper that will serve as a guide for future legislation.

In 2009, Divorce Camp focused on the Rules of Family Court Procedure. The Rules have been largely unchanged since 1994. Since then, changes in tech-nology alternative dispute resolution and a reduction in litigation have made the existing rules less and less relevant. In large group presentations, small group dis-cussions, and writing groups, attendees scrutinized the Rules and recommended changes. This culminated in a final debate and a vote at the end of the three-day con-ference. Academy members SusanRhode and DebraYerigan compiled all of the changes and submitted them as a proposal to the Minnesota Supreme Court. Earlier this year, the new Chief Justice of the Minne-sota Supreme Court, LoriGildea, directed the Rules Committee to Court to take up the proposed rules.

The Rules Committee took comments through June 1, 2011 and will now make a written report to the Minnesota Supreme Court.

won a gift basket of Texas products ranging from Texas music CDs to Texas style barbeque sauce and dry rub.

The Fellows also enjoyed a “duck boat” tour, which started on the streets of Austin then made a splash land-ing in Lake Austin where the tour continued. The last night of the retreat, the Alabama Fellows feasted on Texas barbeque beef. There is much disagreement regard-ing whether it is better than Alabama style barbeque.

The Alabama Chapter held their monthly business meeting and elected officers for the 2011–2012 year, officers are:

> G.JohnDurward,Jr., President> AnneLamkinDurward, President-Elect> JessicaKirkDrennan, Secretary> RickFernambucq, Treasurer.

ByallaccountstheAlabama-Texas retreatwasasmashingsuccess!

n Fellows gather at the Texas-Alabama Retreat

Optimism is the foundation of courage.

— nichoLAs MurrAy ButLer

AAml news in BriefAAml chapter news


Ohio Chapter Report

The Ohio Chapter’s proposed revised bylaws were recently approved by the AAML Board of

Governors. This much needed updating of the 1986 Chapter Bylaws conformed them to the Chapter practice of two-year terms for officers, modified the Board of Managers and Executive Committee to eliminate duplication in membership, and, most importantly, extended the formal succession of officers to include a Second Vice President.

Expanding the succession of officers was impor-tant to the Chapter because the First Vice President is responsible for program planning for the annual Symposium on Family Law. The new Second Vice President will be responsible for planning the annual Chapter retreat.

The Chapter holds an annual retreat for all Fel-lows, usually out of state. This year the retreat is being held at the Prince of Wales Hotel at Niagara-on-the-Lake, Ontario, Canada June 23–26, 2011).

The Ohio Chapter’s charitable donations increased in 2010 to $42,500. Recipients included the AAML Foundation, in memory of HerbPalkovitzandBobZashin, and several Legal Aid and Defender Societies. Since 2008, the Ohio Chapter has made $122,000 in charitable contributions.

The Chapter has established an active “Members Only” section of its web site. Fellows have access by password and can view a complete archive of Chapter documents. A Google list serve is also being regularly used by Fellows to keep in touch on various matters.

The centerpiece of the Ohio Chapter is its Annual Symposium on Family Law. The success of the Symposium has made possible the charitable gifts noted above. No single person has contributed

more to the success of the Symposium than Fellow HaroldKemp of Columbus.

In honor of Harold’s years of tireless and selfless contributions as the logistical head of the Symposium, the Chapter has renamed it as the HaroldR.KempSymposiumonFamilyLaw to preserve for years to come the Chapter’s heartfelt appreciation for Harold’s contributions.

n Chapter President Amy Weis presenting Harold with this honor. From left, Amy Weis; Harold R. Kemp and Jackie Kemp, Chapter 2nd Vice President

South Carolina Chapter Report

The South Carolina Chapter enjoyed its annual meeting at Hilton Head Island on January 21,

2011, held in conjunction with the South Carolina Bar Annual Convention.

We were honored to be joined by AAML President LindaLeaM.Viken, who presented information about activities and items of interest on the national level.

Fellow BobStevens and his wife, LynGeiger, hosted a wonderful oyster roast for our chapter, the national AAML Executive Committee, potential fellows, and members of the judiciary—and the weather was most cooperative.

Feedback from the Executive Committee about their weekend in South Carolina was very positive—we hope to have them back again soon.

At the annual chapter meeting the South Carolina officers for 2011 were installed, as follows:

> RobertN.Rosen, President> MichaelW.Self, PresidentElect> DianeC.Current, VicePresident> BobStevens, Secretary> LonShull, Treasurer> TimothyE.Madden, ImmediatePastPresident> J.MarkTaylor, NationalDelegate

Southern California Chapter Report

The Southern California Chapter celebrated its 25th anniversary at Disneyland in Anaheim on

May 22, 2011. The celebration was held at Brennan’s Jazz Kitchen

in Downtown Disneyland and emceed by our president SharonBlanchett. The Chapter honored StuartB.Walzer, its founder, and president for the first two years. Disneyland’s first president, JackLindquist told stories of his tenure at Disneyland. Each fellow was given Jack’s personally autographed memoir. HaroldStanton showed his latest film showing how our chapter overcame adversity to achieve success.

The event was concluded the next day with a breakfast for the Fellows and their families in Disney-land. Mickey and Minnie each made a personal appearance at the breakfast for photo opportunities with the Fellows and their families.

It was noted that Mickey and Minnie did not appear at the event at same time. Rumors of their breakup are exaggerated.

The Chapter thanks fellow TomStabile and his wife Donna (who met while working at Disneyland) for planning this special event.

nGreg Herring, Peter M. Walzer and Mickey

n ARTICLE SuBMISSIONS (see back cover): you can submit your electronic articles to: Co-Editor, KEN ALTSHuLER > [email protected]

n PHOTOS FOR PuBLICATION: your photos are also welcome; high-resolution, jpg format is preferred . photos from meetings and gatherings should include id information . send jpgs to: Co-Editor, CHERyL LyNN HEPFER > [email protected]

n In addition to local Chapter News, the newsletter committee welcomes articles of person al and human interest, along with educa tional articles pertinent to our profession. If you have a special interest or know ledge in an “extra-curricular” field, please consider sharing your enthusiasm in the AAML newsletter.



nBill and Janet Glucksman

nSusan Lach and Susan RhodenTom Wolfrum, Nancy Kellman, Roger Dodd, Baby Dodd, and Tricia Kuendig

nJeff and Linda Lea Viken nKen Sobbe and Judy Tyrrell

AAml news in Brief


Youaretryingtosettleadivorcecaseandtheofferisfor$1,000,000($1m)todayor$1,300,000($1.3m)in6years(2016).Whichofferdoyoutake?

Your first logical question should be if you take the money today, what investment return is necessary to earn more than $1.3M by 2016? If your client is a conservative investor and, at best, can only earn a 3% return each year, then $1M grown at 3% a year, compounding annu-ally, is approximately $1,194,000 in 2016. The $1M invested today at 3% will only grow to $1,194,000 by 2016; therefore, assuming it is secured and your client does not need the cash for emergencies, you should accept the $1,300,000 in 2016.

The math is straightforward — take the $1,000,000 and multiply it by the interest rate, and compound it yearly, monthly, or daily. To compound yearly you would use a yearly interest rate of 3%. The first year you multiply the $1,000,000 by .03 and get $30,000 in interest income; the new balance in the account is $1,030,000. The next year you multiply the $1,030,500 by .03 and get $30,900 in interest income; the new balance is $1,060,900. Eventually you will end up at $1,194,000 by 2016. This is somewhat tedious and a lot more calculations if you do this monthly or daily, so you would want to use a financial calculator.

Good counsel | Go Figure, an ongoing column by Financial Research Associates

Give Me Money Today or ToMorrow? Simplification of Present Value Concepts to Assist Settlementsby Michael Saponara, CPA/ABV, JD Managing Director, Financial Research Associates

(Ar ticle continues on the next page.)

How do you mechanically calculate the present value? Multiply the future value of $1,300,000 by the present value factor of .837484 and the result is the present value of $1,088,729. But where is the present value factor of .837484 coming from?

The present value interest factor (PVIF) formula is as follows:PVIF = 1/(1+r)^t

The “r” is for interest rate and the “t” is for time. In the example above, “r” the interest rate is 3% and “t” the time is 6 years. Plugging that into the formula you get a factor of .837484.

Using this formula is fine if you do it once or twice, but to constantly do it is not fun. You can use a financial calculator to make things easier, or you can develop a chart. Going into a settlement meeting, think the issues through and create a chart in advance that fits your needs. Table One is an example of a chart you could use at a settlement meeting.

Table One. Present Value Interest Rate Factors (PVIF) Chart

y e a r 3% 4% 5% 6%

1—2011 .970873 .961538 .952380 .9433962—2012 .942595 .924556 .907029 .8899963—2013 .915141 .888996 .863837 .8396194—2014 .888487 .854804 .822702 .7920935—2015 .862608 .821927 .783526 .7472586—2016 .837484 .790314 .746215 .7049607—2017 .813091 .759917 .710681 .6650578—2018 .789409 .730690 .676839 .627412

The years run from year 1, 2011, to year 8, 2018. Next, the interest rates are shown as 3%, 4%, 5% and 6%. You need to determine what your client’s expected rate of return would be if they take the cash today. In our example, we were looking at 6 years in the future and a 3% rate of return which produces the present value factor of .837484.

But, there is an easier way to do this. This is determining the present value of the $1,300,000 or its value in today’s dollars. Using our assumption of a 3% interest rate and a time-frame of 6 years, the result is a present value of $1,088,729. Thus, the present value of the $1.3M today is $1,088,729 and this is greater than the $1,000,000, so the answer is the same, take the $1.3M in year 2016 over the $1M today.

Present value converts future expected cash flows to a current value allowing comparisons between alternative cash flow patterns to be made. Present value captures the time value of money. Simply stated, it is better to get a dollar today rather than a dollar tomorrow, because, funds can be invested. To calculate a present value all we need is a cash flow pattern and a rate of interest. The rate of interest represents the rate of return you expect to earn on those future cash flows.

The choice of the interest rate depends upon the risk/return trade-offs of your client. For example, a client who will need to use these funds to live on will probably want to keep the funds invested in low risk investments. Thus, in today’s economic environment an expected after-tax return of 2.5% to 3% may be the most reasonable.

However, if your client will primarily use these funds for retirement spending and has a 20 year time horizon then an expected after-tax rate of return of 5% might be more appro-priate, as the distribution proceeds will be invested at higher expected rates of return on investment. Of course, returns on these investments will be more at risk. However, the longer investment horizon mitigates some of this risk.

n Michael Saponara

PVIF = 1/(1+r)^t

Good counsel | Go Figure, an ongoing column by Financial Research Associates

Give Me Money Today or ToMorrow?: Simplification of Present Value Concepts to Assist Settlements (continued)

An investment of $35 in a basic financial calculator and 30 minutes to learn how to do the basic present value calculations like those discussed above are well worth the investment to help in settlement discussions.

If your client is highly risk adverse and needs the funds to live on, then the use of an after-tax expected rate of return of 2.5% or lower is what your client finds acceptable. This results in Option2 being superior to the other options as indicated by the shaded area. However, if funds are expected to earn more moderate returns by your client taking some risk then Option3 is superior as shown by the shaded area. Finally, if your client expects to use the funds for retirement and expects to earn at least a 5% return then taking the $1,250,000 now would be the best alternative.

The financial comparisons also allow a judgment to be made whether the extra current value is worth the likelihood of a default.

Often, calculations cannot be done in advance as settlement negotiations are generally done in real time, and even advance preparation with charts and other calculations will not be flexible. Accordingly, an investment of $35 in a basic financial calculator and 30 minutes to learn how to do the basic present value calculations like those discussed above are well worth the investment to help in settlement discussions.

~MichaelA.Saponara,CPA/ABV,JD,MAisaManagingDirectoratFinancialResearchAssociates,withofficesinNewJersey,NewYorkandPennsylvania.Mr.Saponarahasspecializedinlitigationsupportsince1994andhasfrequentlyprovidedexperttestimonyonbusinessvaluations,lifestyleneeds,networthcalcula-tionsandotherforensicaccountinganalyses.Hehasalsotestifiedincomplexcommercialdamagecasesandothercorporatelitigation.

Mr.SaponaraobtainedaJDin1993fromVillanovaUniversityandanMAinEconomicsin2004fromTempleUniversity.Mr.SaponaraisaCPAandholdsanAccreditationinBusinessValuation(ABV)fromtheAICPA.

You might not want to do the chart yourself. You can have your accounting or valuation consultant prepare the chart for you, and all you will have to do is take the $1,300,000, multiply it by the PVIF of .837484, and get the Present Value of $1,088,729. You will then know with this simple multiplication that the $1,300,000 in 2016 is better than $1,000,000 today.

There are drawbacks to a chart; it is not very flexible and it becomes problematic when you have more complicated payment plans being proposed. A more likely real world settlement offer is the following:

Option1:Lump sum of $1,250,000 now, or

Option2:$17,000 a month for 7 years (total of $1,428,000) or

Option3:$400,000 now and $19,500 a month for 4 years (total of $1,336,000)

So which alternative is best for your client? To compare these alternatives, we must determine the present value of each one. Option1 is already a present value of $1,250,000, but the $1,428,000 for Option2 and the $1,336,000 for Option3 are future values. Table Two shows the current value of Options2and3 at varying rates of interest.

Table Two.Present Value of Settlement Options at Varying Rates of Interest

Expected Rate of Return Option 2 Option 3

1.5% $1,354,784 $1,307,9232.0% $1,331,513 $1,298,8192.5% $1,308,784 $1,289,8413.0% $1,286,582 $1,280,9853.5% $1,264,895 $1,272,2494.0% $1,243,708 $1,263,6324.5% $1,223,007 $1,255,1325.0% $1,202,781 $1,246,7485.5% $1,183,017 $1,238,476

nCary Mogerman, Brian Webb, Lynda Doyle and Ken Altshuler

nMadeline Marzano-Lesnevich, David Hofstein, Walter Lesnevich and Pat McLaren


AAml news in Brief


Good counsel

payor, spouse or an obligor trying to set, reduce, or terminate maintenance for a payee spouse capable of gainful employment.

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) created time-limited rehabilitative maintenance to encourage the payee spouse to obtain the skills or training necessary to become self-sufficient.4 Further, Illinois case law establishes an affirmative obligation for every payee spouse to become financially sufficient.5

This “affirmative obligation” is subject to interpre-tation and generally falls within the sound discretion of the court based on the facts and circumstances of the case. For example, a 32 year-old unemployed college graduate married for eight years will likely have a greater affirmative obligation to become self-sufficient than a stay-at-home mom in her 50s who has been out of the work force for 20 years. Neverthe-less, the practitioner should consider the use of the job diary as a strategic tool in developing the case for or against maintenance.

Carefully Analyze the Diary Entries

A payee in a divorce, child-support, or maintenance action should always ask the court to require the payor (obligor) to maintain a job diary if unemployment is a factor. The order requiring the diary should specify that it include a date or dates for production and the following details at a minimum: the name, telephone number, and address of employer; the name of contact person or interviewer; the date of contact or interview;

the position applied for; salary information; and follow-up notes and results. It should also be verified or under oath.

The Illinois Child Support Enforcement Division, under the direction of the Illinois Department of Healthcare and Family Services, uses the “job diary” as a tool in the collection of unpaid child support.

Once a job diary has been ordered, the payee’s attorney should vigilantly follow up. If the payor fails to produce or comply with the specifications of the diary as ordered by the court, the payee’s attorney may ask the court to hold the payor in contempt. The payee’s attorney should carefully analyze the diary to ensure that the payor is making a good faith effort to not only keep up the diary but actually to secure employment.

Because the job diary is required by court order, the information provided by the unemployed payor can— and should— be used as evidence against him at trial. For example, if the payor testifies in a deposition or at trial that he or she has been unable to find work despite good faith efforts, the payee’s attorney should use the job diary where appropriate to refute that testimony.

Imputing Income to a underearning Spouse

In response tot the growing number of petitions for child-support modification—and particularly the dubious claims of some obligors seeking a decrease —some courts have imputed income to unemployed payors for purposes of determining their support obligation.

Under 750 ILCS 5/505(a)(2) of the IMDMA, the court may deviate from support guidelines set forth in section 5/505(a)(1) after considering relevant factors and specifying the reasons for the deviation. It is well-established that courts have the authority to compel parties to provide support at a level commen-surate with their earning potential. 6 In several cases, the court has imputed income to a voluntarily unemployed or underemployed obligor, looking to his prior income to determine earning potential. 7

The Three Conditions

Before the court can impute income to the unemployed obligor, it must find at least one of the requisite conditions: the obligor must be(1)volun-tarily unemployed, be(2)attempting to evade a support obligation, and/or have(3)unreasonably failed to take advantage of employment opportunity.

In InReMarriageofAdams,the payor father quit his job and moved to Germany to live with this

Isyourclient’sexunwillingtogetworkordeliberatelytakingalesser-payingjobtoavoidpayingsupportormaintenance?Here

aresomeresourcesandremediesavailabletolitigantsseekingsupportfromanunemployedorunderemployedobligor.

As the economic downturn persists, more and more divorce practitioners represent clients who seek support from obligors who are unemployed or underemployed (i.e., they earn less than they could). Fortunately for these obligees, the Illinois legislature and the courts have created remedies designed to compel payors to meet their full obligation as parents and providers. Here’s a quick look at some of the most helpful.

Job Diaries: A Record of Obligators’ Efforts to Find Work

Every parent has a duty to support his or her child and is not relieved of that obligation merely because he or she chooses to remain unemployed.1 Indeed, every child has the right to the “physical, mental, emotional and monetary support of his or her parents.” 2

The Illinois Child Support Enforcement Division, under the direction of the Illinois Department of Healthcare and Family Services, uses the “job diary” as a tool in the collection of unpaid child support. An unemployed noncustodial parent is statutorily required to seek gainful employment and create a contemporaneous record of his or her efforts. Job diaries are frequently ordered by the courts.3

Job Diaries and Maintenance Recipients

Job diaries can and should be used in maintenance as well as child support cases. Interestingly, they can help your case whether you represent an obligee seek-ing an award of maintenance from an unemployed

Maintenance, Support and Underemployed Payors by Burton S. Hochberg Kimberly A. Cook Chicago, Illinois Chicago, Illinois

(Ar ticle continues on the next page)

nBurton S. Hochberg nKimberly A. Cook


Good counsel

girlfriend without first obtaining employment. The court imputed income based on findings that he was voluntarily unemployed and his prior income reflected his earning potential. 8

The court has also imputed income where the motivation for underemployment is an attempt to evade a support obligation. In InreMarriageofSweet,the trial court concluded that the payor’s self-employ-ment produced little income and he either willfully misrepresented his income or refused to support his children. The appellate court held that without a good-faith effort to satisfy his support obligation, the trial court properly imputed additional income based on his earning potential. 9

Courts also require obligors to take advantage of reasonable employment opportunities. In InreMarriageofHubbs,the appellate court upheld a support award based on imputed income based on the obligor’s rejection of a job opportunity that would have paid him a salary commensurate with that earned during the marriage. 10

Courts make clear that at least one of the three requisite conditions must be met before they will impute income. In InreMarriageofGosney,the trial court abused its discretion by imputing income where none of the conditions existed. 11

Income Averaging

Where it is difficult for the obligee to determine the obligor’s net income, courts sometimes allow averaging past earnings to determine the obligor’s net income or to impute income for purposes of making a support award. In InreMarriageofNelson,the court used an average of the obligor’s previous three years of

earnings to determine net income because the annual amount had fluctuated widely. 12

However, using income information dating back too many years may be an abuse of discretion. In InreMarriageofSchroeder,the court held that data six years old does not reflect the current circumstances of the parties. Using it would thus violate a key purpose of the Act, which is to make reasonable provision for spouses and minor children during and after the marriage.13

Also, the court will not impute income based on an average or the earning potential of the obligor where a good-faith, voluntary change in employment lowers his or her earning capacity or where circumstances beyond the payer’s control have affected income. The critical consideration is whether the employment change was made in good faith and not to evade support responsibilities.14

Assets As Well As Income: 5/503(g) Trusts

Courts have also considered obligors’ assets in addition to their income in setting both maintenance and child support, including the obligor’s nonmarital property. Where the obligor is voluntarily or involun-tarily unemployed or underemployed, the court may set aside property in a trust pursuant to 750 ILCS 5/503(g) of the IMDMA for the support, mainte-nance, education and general welfare of the child.15

Even if the obligor is in jail, his or her support obligation is not automatically relieved. In InreMarriageofHari,the trial court was found to have the discretion to set aside the incarcerated obligor’s nonmarital assets in a trust to secure payment of child support.16

using Vocational Experts to Show Earning Potential

Since the introduction of rehabilitative mainte-nance, the courts have allowed evidence supplied by vocational experts to help show employment

capacity and earning potential. For instance, in InreMarriageofPeterson,the trial court did not abuse its discretion in awarding the wife maintenance based on the testimony of her vocational expert regarding her earning capacity.17

Vocational experts help determine the obligor’s highest level of employment capability and the appropriate imputed income range based on a variety of factors. They are vital to effective discovery because they know what pertinent job — or education-related information and documentation obligors often omit.

Without a vocational expert, attorneys are often forced to rely on outdated information and assumptions or inaccurate statistics. With the help of a vocational expert, the attorney can accurately depict the evaluee’s capabilities and earning potential to allow the court to impute income.

Conclusion

Attorneys should use all available resources to win support for their clients, even— indeed, especially—when the obligor is unemployed or underemployed. Because support is a material issue in most cases, lawyers must take the time to explore the available resources and remedies and choose the right ones for their clients.

Maintenance, Support and Underemployed Payors, (continued)

1. In re Marriage of Reimer, 387 Ill App 3d 1066, 1075, 902 NE2d 132, 139 (3d D 2009).

2. Illinois Parentage Act, 750 ILCS 45/1—45/1.1.3. 750 ILCS 45/15.1(a).4. IMDMA, 750 ILCS 5/504.5. In Re Marriage of Wade, 158 Ill App 3d 255,269,

511 NE2d 156, 166 (4th D 1987).6. In re Marriage of Sweet, 316 Ill App 3d 101, 106,

735 NE2d 1037, 1041 (2d D 2000).7. In re Marriage of Adams, 348 Ill App 3d 340, 344,

809 NE2d 246, 249 (3d D 2004).8. Id.9. Sweet at 10708, 735 NE2d at 1043.10. Hubbs, 363 Ill App 3d 696, 706, 843 NE2d 478,

488 (5th D 2006).11. Gosney, 394 Ill App 3d 1073, 1078, 916 NE2d

614, 619 (3d D 2009).12. Nelson, 297 Ill App 3d 651, 655, 698 NE2d

1084, 1087 (3d D 1998).13. Schroeder, 215 Ill App 3d 156, 161, 574 NE2d

834, 837 (4th D 1991).14. Id.15. IMDMA, 750 ILCS 5/503(g).16. Hari, 345 Ill App 3d 1116, 804 NE2d 144 (4th D 2004).17. Peterson, 319 Ill App 3d 325, 342, 744 NE2d

877, 890 (1st D 2001).

~BurtonS.Hochberghaspracticedlawformorethan36yearsandhasconcentratedonmatrimoniallawforthepast23yearsHehassignificantexpertiseintheareasofrealestateandbusinessvaluation,childsupport,childcustody,andmaintenance.Anexperiencedtrialattorneyhandlingmajorlitigation,heislicensedtopracticeinIllinoisandFloridaandhasbeendesignatedasoneofthenation’stopmatrimoniallawyersbyThe Best Lawyers in America.

~KimberlyA.CookisanassociateatSchiller Ducanto & Fleck llPandconcentratesherpracticeonlitigationofcomplexfamilymatters.ShereceivedherBachelor’sdegreefromSpelmanCollegeandherJurisDoctorfromTheCatholicUniversityofAmerica—ColumbusSchoolofLaw.KimberlyisamemberoftheIllinoisStateBarAssociation,ChicagoBarAssociation,CookCountyBarAssociationandDeltaSigmaThetaSorority,Inc.


Good counsel

Department, after an exhaustive survey of reported cases, issued a report to Congress finding that there are no cases where a servicemember lost custody solely due to deployment.

State Expertise vs. “A National Standard”

The states have the background and expertise to write, pass and enforce such legislation. Rather than encouraging states to pass laws, this bill would federalize the area of child custody, removing any incentive for states to pass custody laws protecting troops. As pointed out above, the states are rapidly passing laws to protect servicemembers and their children. Already there are substantial protections in about 40 states, with bills pending in several others. These prevent loss of custody due to any form of military absence (e.g., temporary duty and remote assignments), not just deployments. Many of them allow substantial additional protections.

State Initiatives

It is not just state primacy in the field of family law which is at stake here. Congressional intrusion into the significant protections and creativity demonstrated by the states would stifle the unique initiatives that they have enacted for the protection of parents in uniform. And the protections offered by state legislation are significantly better for military personnel than the terms of Turner’s bill.

For example, many state statutes provide for the use of electronic means of testimony for service-members. This is wholly absent from Mr. Turner’s bill. They allow expedited dockets for those who wish to put their affairs in order before deployment. They take into account mobilization for Guard/Reserve personnel, as well as temporary duty (TDY) when these situations mean an unaccompanied tour of duty. They deal with all forms of active duty, including

humanitarian missions and remote tours of duty, not just deployment (“contingency operations”). These state statutes mandate the availability of the child or children for visitation during periods of leave for ser-vicemembers. All of this is missing in the Turner bill.

Most significantly, the statutes passed in a majority of the states deal with the issue of visitation for service-members who donothavecustody. This is an issue on which the Turner bill is silent— visitation or access rights of military parents. It’s completely left out of the bill, as if the drafters were not even aware that— of those servicemembers who have minor chil-dren— most are not custodial parents. The demands of military life generally require release of custody into the hands of the non-military parent. By an over-whelming majority, the usual arrangement for single parents in the armed forces is secondary custody, access or visitation rights, not primary physical custody. The states are well aware of these facts. In addition to statutes allowing compensatory visitation for time lost due to military duties, many states have enacted or are passing bills which let the judge delegate the visitation rights of a parent in uniform to a close family member if this is in the best interest of the child. There are no protections for military parents with visitation rights in Mr. Turner’s bill.

The passage of an overarching gridwork of federal law will intrude in a field which has always been re-served for the states. It will destroy the initiative of those states which are considering initial legislation or thinking about improving their current laws to protect military members and their children.

Congress Says NO

On three occasions since 2007, a bill has been in-troduced which would add custody terms for military

(continues on the next page.)

At this time next year, family law practitioners will find that the rules for custody in mili-tary cases are found in the federal statutes,

not their own state laws and cases, due to the upcom-ing National Defense Authorization Act (NDAA 2012). To help the reader understand what will be pending this year in Congress, here is some history.

Background

Rep. Mike Turner of Ohio has introduced legisla-tion in the past 3 years to amend the Servicemembers Civil Relief Act (SCRA), 50 U.S. Code Appx. 501 etseq. The proposed legislation would create a federal law of military custody. The bill has passed the House each of the past three years. It would declare that:

a. courts cannot enter permanent custody orders while a custodial parent is on deployment in support of a contingency operation,

b. deployment may not be the sole factor in modifying such parent’s custody rights, and

c. upon return of the military custodial parent, custody must be given back to him or her.

The Turner bill has been and is opposed by the National Governor’s Association, the National Association of Adjutants General, the National Conference of State Legislatures, and the National Military Family Association. The American Bar Association is on record opposing this misguided bill through Resolution 106, passed in 2009. Until recently, the Department of Defense also was on record as being against the Turner bill.

Department of Defense About-Face

The support of DoD ended earlier this year. On February 15, Secretary of Defense Robert Gates sent a letter to Rep. Turner withdrawing the Department’s objections to legislation which would bar the courts from modifying custody when the sole factor for such a change is the custodial parent’s deployment. In the past, those opposed to “federal military custody” have been counting upon the Defense Department’s opposition to Rep. Turner’s perennial submission. It was one of the major pillars of support for the lawmakers, lawyers and citizens who believe that the rules for custody are best handled by the states.

Now that the Department will be cooperating with Mr. Turner, the bill will make its way into the National Defense Authorization Act for Fiscal Year 2012. Letters, resolutions and state bar statements of opposition are needed to convince members of Congress to stop this bill.

A Solution in Search of a Problem

There is no reported case in which a servicemember has being denied custody initially due to deployment or has lost his or her custody rights upon return from deployment for that reason. The bill is asolutioninsearchofaproblem. In the spring of 2010 the Defense

n Mark E. Sullivan

Military Custody Bill in Congress by Mark E. Sullivan Raleigh, North Carolina


Good counsel

Federal Rights, Federal Remedies

It is clear that, where there is a specific remedy enumerated and prescribed by federal statute, the litigant has the right to have that issue determined in the federal courts. PuertoRicov.Russell&Co., 288 U.S. 476, 53 S.Ct. 477, 77 L.Ed. 903 (1933): “Federal jurisdiction may be invoked to vindicate a right or privilege claimed under federal statute.” Id. at 483. The federal rights set out in the Turner bill will lead directly to federal court involvement in military custody cases. Despite a clause claiming that “Nothing in this section shall create a Federal right of action,” it says nothing about presently existing rights of action, and there are several ways that creative counsel can get a case involving federalrights into the federalcourts. No one has examined these and nobody has really thought through the issue of federal court jurisdiction and the enhanced litigation that this bill would create through-out the nation in military custody cases.

Whenever counsel wants to avoid unpleasant results in state court, the procedure of removal to federal court is the logical next step. This is what we can expect if one party loses in state court and per-ceives the loss to be caused by noncompliance with a federal custody rule in the SCRA. While Mr. Turner’s bill doesn’t create a federal right of action, it says nothing about the existing remedy of removal under 28 U.S.C. § 1441 or 28 U.S.C. § 1442a. Nor does it mention a declaratory judgment action in federal court under 28 U.S.C. §§ 2201-2202. Or a civil rights action against the other party in the lawsuit, brought under 42 U.S.C. § 1983.

For example, if counsel wants to avoid unpleasant results in state court, the procedure of removal to federal court is the logical next step. While H.R. 4469 doesn’t create a federal right of action, it says nothing about the existing remedy of removal under 28 U.S.C.

§ 1441. Such a transfer will add months and months onto the custody litigation, while a federal judge decides whether to take the case or send it back to state court. That translates into months and months of time ticking against the servicemember who thought that Mr. Turner’s bill was there to helphim or her; now it’s the sole reason why counsel fees are spiraling out of control at the rate of several thousand dollars a month. Is this the kind of protection that we want for Sergeant Jane Doe’s custody rights when she returns from deployment? Will she afford litigation in two courts instead of just one? Should we open the door of federalrights when it’s clear that a federal remedy must be given to those who are protected by this law? It’s simple: there’s nothing in H.R. 4469 which bars removaltofederalcourt.

A specific basis for removal jurisdiction may be found in Title 28 of the U.S. Code, Section 1442a. The statute provides:

A civil or criminal prosecution in a court of a State of the United States against a member of the armed forces of the United States on account of an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the armed forces thereof, or under the law of war, may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States for the district where it is pending in the manner prescribed by law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally com-menced therein and shall have full power to hear and deter-mine the cause.

Does this apply where a servicemember is sued for a change of custody? Let’s set out the elements and analyze it:

parents into the U.S. Code. And on three occasions Congress said NO. Who is in favor of custody protec-tions for military personnel but opposes this bill? Senator John McCain has led the way. In a letter of July 28, 2009 to Rep. Turner, Senator McCain noted that:

Child custody laws and litigation, as you know, have tradi-tionally been the province of the States. I suggest that we need to proceed with care in considering federal legislation that would preempt the States in their approaches to the child custody issues you have identified. I have been in-formed, for example, that 29 States have enacted laws pro-viding guidance and direction to their own State courts about what standards to apply in cases involving military parents. I am not convinced at this point that there needs to be a na-tionwide standard in view of the historical federal deference to the State legislatures and the obvious concern that the States have shown about this issue.

I also have some concerns about the opposition that has been raised to your proposal from Associations with expertise in this area. The Senate Veterans’ Committee, the committee with jurisdiction over the Servicemembers’ Civil Relief Act, has opposed the legislation you have advanced. In addition, the American Bar Association, led by its Standing Committee on Legal Assistance for Military Personnel, issued a resolution in February 2009 that opposed modifying the SCRA in the way you have suggested.

American Bar Association Opposition

Also opposed to Mr. Turner’s bill is the American Bar Association. In Resolution 106, passed in February 2009, the ABA went on record as rejecting the ill-conceived ideas previous set out in the Turner bill, because it would:

Military Custody Bill in Congress (cont.)… allow federal courts to exercise jurisdiction in

child custody cases, including matters which involve military parents

… dictate case outcomes in state child-custody cases… run roughshod over the powers of state courts in

custody cases involving servicemember-parents, and… pre-empt the growing body of state laws which

comprehensively address servicemembers’ needs in the child custody area.

The National Military Family Association’s Position

The Turner bill is opposed by the National Military Family Association. For over 40 years, the NMFA has been the only national military organization that has represented officers, enlisted personnel and their family members from all branches of the armed forces. The NMFA, in a letter dated July 21, 2009 to Senators Benjamin Nelson and Lindsey Graham of the Senate Armed Services Committee, stated that

We would also like to urge your support of the American Bar Association’s (ABA) Resolution 106 concerning child cus-tody and servicemember-parents. Based on our experience, we agree with the ABA that federal intervention in what has traditionally been a state matter would be burdensome to the states and stifle the efforts they have already made to address this issue. Educating state and local judges would also go a long way in alleviating confusion and misconceptions about the Servicemembers Civil Relief Act.

A Visit to Federal Court

The worst of dire consequences is litigation of military custody in federal court. Imagine what would happen if litigants in military custody cases had anotherdoor open to them, namely, federal courts. All of a sudden, makingafederalcaseoutofitbecomes a real option, not a mere throw-away phrase. The in-creased cost for military single parents is obvious. (Ar ticle continues on the next page.)

Good counsel

set of rules for state custody cases; state lawmakers have far more knowledge about these matters than members of Congress, who have never before enacted substantive custody rules and placed them into federal law.

The states have already taken this matter in hand by the rapid-fire enactment of strong and creative legisla-tion to protect military personnel who have custody. They continue to do so. The bill would disrupt the care-fully crafted state custody laws which are in place and which already provide a fair and even-handed system of handling child custody cases. The Uniform Laws Com-mission has drafted a new model statute, The Uniform Deployed Parent Custody Act, to send out to the states for military custody and visitation protections. The issues covered include all three terms in Mr. Turner’s bill, as well as numerous other protections for the troops and their children, as outlined above in this testimony. Significant steps have been taken by the states, with at least 40 responding to the call already.

The Turner bill contains major flaws and would lead to a major intrusion into federal court for troops and ex-spouses, difficulties which would cost them dearly in time and money. AAML Fellows who feel the same way should contact their representatives in the House and the Senate. Let your Representatives and Senators know how you feel. If you are opposed to such a radical revision of federal law, then let your voice be heard in Washington, so that we can ensure that this unnecessary and harmful bill never becomes a federal custody law.

~MarkE.SullivanhaspracticedfamilylawinRaleigh,NorthCarolina,forover30years.AretiredArmyReserveJAGcolonelandtheauthorofThe Military Divorce Handbook(Am.BarAssn.2006),hehaswrittennumerousarticles,informationpapersandInternetinfo-lettersonmilitaryfamilylawissues,especiallypensiondivision.HeteachesregularlyattheArmyJAGSchoolandtheNavalJusticeSchool,andheisaboard-certifiedspecialistinfamilylawaswellasaFellowoftheAmericanAcademyofMatrimonialLawyers.Hecanbereachedatwww.ncfamilylaw.com.

~ Sergeant Jane Doe, U.S. Army, has been sued in “a court of a State” regarding custody.

~ She is “a member of the armed forces of the United States.”

~ There is a case against her and it is a “civil prosecution.”

~ And she would be relying on the rights prescribed for her; those rights, if H.R. 4469 were passed, would be in the Servicemem-bers Civil Relief Act.

~ These rights are “under a law of the United States respecting the armed forces thereof,” since the Service-members Civil Relief Act is, of course, such a law.

~ And thus the state court case may be removed into federal district court, where the federal judge would have full power to hear and determine the cause.

So Sgt. Doe is in federal court, trying a custody case!When a servicemember’s case may be decided contrary

to H.R. 4469, there is another remedy—a declaratory judgment suit in federal court. Such an action is brought under 28 U.S.C. 2201-2202. It involves these elements: 1. a contested case, 2.within the jurisdiction of the federal district court, 3. involving a declaration of the rights and other legal relations of any interest party, and 4) whether or not further relief is sought. This is another pathway to federal court which H.R. 4469 would not limit.

Yet another portal of entry into the federal court-house is a civil rights action. When a client’s civil rights have been violated by the other party in regard to the terms set out in H.R. 4469, a good lawyer would recom-mend suing in federal court for a civil rights violation. Such an action would be brought under 42 U.S.C. § 1983. Once again, the bill would open the door to such a filing, based on the federal “civil rights” granted in H.R. 4469.

Helping (and Hindering) the Servicemember

These problems and omissions in Mr. Turner’s bill show clearly the error in trying to insert into the U.S. Code a

Military Custody Bill in Congress (cont.)

nBob Sanders

nJim and Lea Hennenhoefer

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Greetings from maui, march 2011

of New Jersey. The court granted the husband’s request to restrain the wife from exposing the children to the boyfriend because the children were young and it would not be in their best interest. One day, during a scheduled parenting time, the young children sang a childhood song to the husband, “Mommy and Danny sitting in a tree, K-I-S-S-I-N-G.”

The husband immediately brought an Order to Show Cause seeking further sanctions and a transfer of custody, because the wife had exposed the young children to the boyfriend. In the wife’s Certification in Opposition to the Order to Show Cause, she certified that, in fact, the children had been exposed to the boyfriend for a brief hour or two at Newark Airport. She explained that her boyfriend was a firefighter and had flown into Newark to respond to the 9-11 catastrophe and that she had greeted him at the airport. She did not have a sitter for the children so the brought them along thinking that it was inno-cent enough. At oral argument, the trial judge asked the wife’s lawyer (me) what the boyfriend was doing at Newark Airport and I responded innocently, “The boyfriend was in New Jersey on a layover.” The red embarrassed look on my face lasted a lot longer than the laughter in the courtroom.

Family Law Funnies (continued from page 8)

American Academy of matrimonial lawyers

notiCe:

This newsletter is published to inform our Fellows and friends about social events enjoyed by the Academy and current issues of importance in the field of Family Law. The materials presented in this newsletter should be viewed only as a summary of Academy events. Any topic discussed herein should not be construed as legal advice or the formation of

a lawyer/client relationship. Legal counsel should be sought for answers to specific legal questions. The opinions expressed herein are the opinions of the individual Fellows and are not necessarily the opinions of the

American Academy of Matrimonial Lawyers (AAML) or any of its Chapters.

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