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Update To The Uniform Interstate Family Support Act

Posted in Child Support, Legislation

Senate Bill 85, which is designed to improve the enforcement of child support orders, was recently signed into law. The Summary describes the Bill in more detail as follows:

Before 1950, a parent who wanted child support from another parent who lived in another state had to travel to that state to take legal action. In 1950, the Uniform Law Commission (ULC) drafted the Uniform Reciprocal Enforcement of Support Act (URESA) to allow participating states to enforce each other’s support orders. URESA was amended in 1952 and 1958 and was amended and renamed the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) in 1968. Ultimately, all states adopted one or more versions of the ULC’s uniform acts on this subject.

In 1992, the ULC promulgated a new act, the Uniform Interstate Family Support Act (UIFSA), which Delaware adopted in 1994. The ULC revised UIFSA in 1996 and 2001, with Delaware adopting the 2001 version in 2005.

In November 2007, the United States signed the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Convention). In 2008, the ULC revised its 2001 version of UIFSA to integrate the appropriate provisions of the Convention into UIFSA, to put the Convention into effect.

This Act adopts the 2008 version of UIFSA, to improve the enforcement of United States child support orders abroad and ensure children residing in the United States will receive the financial support due from parents wherever those parents may reside. This Act also complies with the 2014 Preventing Sex Trafficking and Strengthening Families Act, signed by the President of the United States in September 2014, which requires all states enact the 2008 version of UIFSA by the end of their 2015 legislative session as a condition for continued receipt of federal funds supporting state child support programs.

The U.S. Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement (OCSE) explained in an Information Memorandum dated October 9, 2014 that, “once UIFSA is in effect in your state, international cases will not be processed under Article 7 of UIFSA 2008 until the 2007 Family Maintenance Convention enters into force for the United States. Once this occurs, Article 7 of UIFSA 2008 will be in effect for all cases transmitted and received under the 2007 Family Maintenance Convention.” OCSE further noted, in an Information Memorandum dated April 13, 2015, that, “[o]nce all states have enacted UIFSA 2008, the President will sign the instrument of ratification, and deposit that instrument as required for the U.S. to become a party to the treaty.”

This Act also makes technical corrections to conform existing law to the guidelines of the Delaware Legislative Drafting Manual.

The Bill may be read in its entirety here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com

 

Can Your Reclaim The Gift Of Puppy Love?

Posted in Uncategorized

Syd puppy

It can be a touching and romantic gesture when someone gives a puppy as a gift to his or her significant other.  Sadly, not all relationships last forever.  A prior post explored pets and divorce, but what if the dog was a gift between a couple who are dating but never get engaged?

Though dog lovers may strongly disagree, dogs are considered personal property under Delaware law.  As a result, neither the best interest of the dog nor a person’s attachment to the dog are the key, ownership is.

Typically, once they are given gifts are the property of the recipient.  There are, however, exceptions to this general rule.  As examined in the case of Conte v. Fossett, Del. Super., No. 12A-03-007, Jurden, J. (March 19, 2013), a person giving a gift of personal property may recover the gift “(1) when there is an express agreement that the gift is conditional; or (2) when the gift is of such ‘symbolic significance or value’ that the law will imply it was given in contemplation of marriage.”  Id. at *7.  For those thinking that the second exception presents a safe haven for every boyfriend or girlfriend who gives a puppy as a gift to their significant other – think again.  The Court in Conte specifically noted that the second exception does not extend to gifts given in “contemplation of relationships,” only contemplation of marriage.  In addition, the Court held that the dog in that case had the same legal status as a piece of furniture and did not have any symbolic significance.  Id. at 8.  Given the limited application of the second exception, the best course may be to consider the first exception – an express agreement as to who owns the dog and who gets to keep it if the relationship ends.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Divorce And The Family Pet

Posted in Delaware Family Court

SydThere is no question that pets can be and often are beloved members of the family. Much as we love them, it probably doesn’t surprise anyone to know that in a divorce pets are considered personal property.  As prior posts have explored, the Delaware Family Court favors the two-list method for division of personal property.  Does that apply to pets?

In my experience, the issue is not often presented to the Court.  Typically, the parties will agree on who gets to keep the cat or dog.  However, when the question is presented to the Court, it may and has elected a kinder, gentler approach rather than lumping man’s (and woman’s) best friend in with the kitchen table.  Take for example, the case of Snyder v. Scott, 1999 WL 1456944 (Del. Fam. Ct. 1999).  In this case, the Family Court was asked to decide whether the parties’ two dogs should be treated like other household property and included in the two-list method of division.  After hearing testimony from the parties on the importance of the dogs in their lives, the Court concluded:

While the dogs are certainly items of personal property belonging to the parties, the Court believes, because dogs often have greater sentimental or attachment value than they do monetary value, that to include them on the two-list could greatly skew the division of the parties’ personal belongings. In this case, since the dogs have been with Wife since the parties’ separation two years ago and since it may be disruptive to the dogs to remove them from their home in Delaware to Husband’s home in Florida, or even to separate them this late in their lives, Wife shall retain the two dogs but shall pay the sum of $100 to Husband to assist him in purchasing a new pet.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Amendment To Delaware Supreme Court Rule 41

Posted in Delaware Supreme Court

The General Assembly recently amended Article IV, Section 11, paragraph (8) of the Delaware Constitution of 1897 to expand the entities that may certify questions of law to the Supreme Court.  The list now includes the highest appellate court of any foreign country and any foreign governmental agency regulating the public issuance or trading of securities.  By Order dated today the Supreme Court has amended Rule 41(a)(ii) today to reflect this change.  The amended Rule may be read here.

leslie_SpoltoreLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Appellate Practice – Filing A Timely Notice Of Appeal Is Critical

Posted in Delaware Supreme Court

AppealYou are not happy with the trial court’s decision – now what?  If you have a right of appeal to the Delaware Supreme Court filing timely is an important jurisdictional requirement. Failure to comply with that requirement can be fatal to the appeal as seen in the recent case of Owens v. Owens, No. 310, 2015 (July 1, 2015).

The Family Court order denying the Petition – Rule to Show Cause filed by Ms. Owens was docketed by that court on May 5, 2015.  On June 15, 2015, the Supreme Court received her notice of appeal.  Under Supreme Court Rule 6, however, “the notice of appeal should have been filed on or before June 4, 2015.” Id. at 1.  As a result, the Supreme Court issued a notice to Ms. Owens to show cause why her appeal should not be dismissed as untimely. In response she asserted that Family Court personnel told her that she had sixty days to file her appeal.

The Supreme Court held that unless Ms. Owens could demonstrate that her failure to file the notice of appeal in a timely manner is attributable to court-related personnel, her appeal cannot be considered.  The Court found that: (i) her contention that she received incorrect information from court personnel was unsubstantiated, and (ii) court personnel are prohibited from providing such legal advice to litigants.  As a result, the Court stated “[her] attempt to attribute her untimely filing to court personnel is unavailing. Thus, the…appeal must be dismissed.”  Id. at 2.

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leslie_SpoltoreLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Alimony – Does It Last Forever?

Posted in Alimony, Delaware Family Court

Whether someone is paying or receiving alimony they typically want to know how long it will last.  As with many legal questions, the answer is “it depends.”  Determining the answer begins with knowing whether the alimony order was issued by a judge after a hearing or whether it is the result of an agreement of the parties themselves.

The Delaware Code provides that when alimony is awarded by judicial determination:

AlimonyA person shall be eligible for alimony for a period not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility; however, the factors contained in subsection (c) of this section shall apply and shall be considered by the Court. 13 Del. C. § 1513(d).

So, if a couple is married for ten years, the statutory period is five years.  If a couple is married for more than 20 years then there is no statutory period.  In either instance the obligation to pay alimony terminates upon the death of either party or the remarriage or cohabitation of the party receiving alimony. 13 Del. C. § 1513(g).  Additionally, alimony awarded by the Court may be modified or terminated upon a showing of real and substantial change of circumstances. 13 Del. C. § 1519(a)(4).

When, however, the issue of alimony is resolved by an agreement of the parties themselves the Delaware courts have ruled that general contract principles apply to control the interpretation, duration and modification of alimony.  So, in that instance the parties themselves set the terms regarding duration, termination and modification.

 

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

The Delaware Uniform Interstate Family Support Act Has Been Amended

Posted in Child Support, Legislation

Governor Jack Markell recently signed Senate Bill 85 into law.  The bill amends Subchapter I, Chapter 6, Title 13 of the Delaware Code regarding interstate child support.  The synopsis to the Bill describes is purpose and effect as follows:

Before 1950, a parent who wanted child support from another parent who lived in another state had to travel to that state to take legal action. In 1950, the Uniform Law Commission (ULC) drafted the Uniform Reciprocal Enforcement of Support Act (URESA) to allow participating states to enforce each other’s support orders. URESA was amended in 1952 and 1958 and was amended and renamed the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) in 1968. Ultimately, all states adopted one or more versions of the ULC’s uniform acts on this subject.

In 1992, the ULC promulgated a new act, the Uniform Interstate Family Support Act (UIFSA), which Delaware adopted in 1994. The ULC revised UIFSA in 1996 and 2001, with Delaware adopting the 2001 version in 2005.

In November 2007, the United States signed the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Convention). In 2008, the ULC revised its 2001 version of UIFSA to integrate the appropriate provisions of the Convention into UIFSA, to put the Convention into effect.

This Act adopts the 2008 version of UIFSA, to improve the enforcement of United States child support orders abroad and ensure children residing in the United States will receive the financial support due from parents wherever those parents may reside. This Act also complies with the 2014 Preventing Sex Trafficking and Strengthening Families Act, signed by the President of the United States in September 2014, which requires all states enact the 2008 version of UIFSA by the end of their 2015 legislative session as a condition for continued receipt of federal funds supporting state child support programs.

The U.S. Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement (OCSE) explained in an Information Memorandum dated October 9, 2014 that, “once UIFSA is in effect in your state, international cases will not be processed under Article 7 of UIFSA 2008 until the 2007 Family Maintenance Convention enters into force for the United States. Once this occurs, Article 7 of UIFSA 2008 will be in effect for all cases transmitted and received under the 2007 Family Maintenance Convention.” OCSE further noted, in an Information Memorandum dated April 13, 2015, that, “[o]nce all states have enacted UIFSA 2008, the President will sign the instrument of ratification, and deposit that instrument as required for the U.S. to become a party to the treaty.”

The Bill may be viewed in its entirety here.

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leslie_SpoltoreLeslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com

 

 

 

Appellate Practice: The Importance Of The Record

Posted in Delaware Family Court, Delaware Supreme Court, Evidence

The recent Supreme Court decision in Franklin v. Franklin, No. 602, 2014 (June 22, 2015), demonstrates the importance of providing the Court with the transcript of the proceeding below.

After a hearing in the Family Court, in which both parties testified, that Court entered an order modifying Mr. Franklin’s visitation.  Under the modified order, the terms of Mr. Franklin’s visitation changed slightly to alter exchange arrangements, but the total amount of his visitation time remained unchanged from the prior order.  The Family Court also noted that the testimony of both parties reflected their daughter’s confusion about Mr. Franklin’s gender transition and concluded it was their daughter’s best interest that the parties’ obtain counseling for her.  The Court also ordered the parties to participate in the counseling, but ordered that Mr. Franklin should bear the cost of the counseling.

Appeal

Mr. Franklin appealed the Family Court’s decision alleging, among other things, that the Family Court’s decision was unlawfully discriminatory against him because he is a transgender individual.  He also asserted that the Family Court erred in denying him additional time with his daughter and in accepting certain testimony from Ms. Franklin. The Supreme Court noted, however, that:

[Mr. Franklin] challenges [Ms. Franklin’s] credibility and faults the Family Court for accepting [her] testimony on certain issues.  Father also contends that the Family Court exhibited bias because of [Mr. Franklin’s] gender transition. [Mr. Franklin] failed to provide this Court with a copy of the transcript of the Family Court in order to support those claims.  Without an adequate record, the Court has no sufficient basis to review [Mr. Franklin’s] challenge to any of the Family Court’s factual findings or credibility determinations. (emphasis added)

The Supreme Court found no error in the trial court’s application of the law and found that “under the circumstances, we find no basis to disturb the Family Court’s factual findings . . . Moreover, the allegations that the Family Court’s decision reflects discrimination against [Mr. Franklin] as a transgender person is completely unsupported by the record.” Id. at 7.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com

The U.S. Supreme Court Issues Its Decision On Same Sex Marriage In Obergefell et. al v. Hodges

Posted in Uncategorized

The Supreme Court issued its highly anticipated decision today in the  case of Obergefell et al. v. Hodges, Director, Ohio Depertment of Health, et al.  Justice Kennedy delivered the opinion of the Court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan.  The majority concluded that,

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

 

The Court held that  the Fourteenth Amendment to the United States Constitution requires a State to license a marriage between same sex couples, and to recognize that marriage if it was lawfully licensed and performed out-of-state.

Delaware passed its Marriage Equality Act in 2013, but based on the Supreme Court’s decision the marriages performed in Delaware will now be recognized in other states.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

 

Delaware Senate Confirms Nomination Of Felice Glennon Kerr

Posted in Delaware Family Court

Family Court SealThe Delaware Senate has confirmed the nomination of Felice Glennon Kerr to serve as a Judge of the Family Court.  Her confirmation fills the Associate Judge vacancy created with Judge Michael K. Newell became the Chief Judge of the Family Court on June 10, 2015.

 

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.