Kansas Family Law Blog

Here is a curious case. A divorce settlement calling for a transfer of real property is read into the record on the day set for trial. Both parties orally acknowledge the settlement in court, and the court's reporter duly transcribes their remarks. However, one party later refuses to sign the agreement. She claims, among other things, that enforcement of the settlement agreement would be unlawful because state law requires a writing to transfer real property.

The Kansas Court of Appeals recently entertained this argument and rejected it, remarking along the way' that an electronic signature was created in the trial judge's courtroom, thereby satisfying the state-law requirement of a writing for real property transactions.

The court said this was so because Kansas had adopted the Uniform Electronic Transactions Act. Under UETA -- with some exceptions that aren't relevant here -- qualifying digital records, sounds, symbols, you-name-it, will be treated as 'writings' if a writing is required by state law. UETA, the court said, 'probably' makes the electronically produced record of the divorce litigant's in-court statement the legal equivalent of a written signature:

The record does not disclose the type of equipment used by the court reporter, but it would be quite rare today for a court reporter's equipment not to at least require electricity. The UETA deems records generated by electronic means, including the use of electrical or digital magnetic capabilities, to be electronic records.

In order for a record to qualify as an electronic signature, a party must also adopt the record 'with the intent to sign.' The court doesn't make much of an effort to explain how the litigant in this case 'adopted ... with the intent to sign' the court reporter's record of her remarks. Apparently, it was enough that the litigant uttered aloud her acknowledgment of the divorce settlement that had been recited in open court. '[A]ssuming that the court reporter's equipment was consistent with modern practice, it would appear that the electronic capture of Mieko's oral assent that this was the agreement would satisfy the statute of frauds.

The case is In re Marriage of Takusagawa, No. 95,508 (Kan. Ct.App. Sept. 7, 2007)

SOURCE FOR POST: E-Commerce and Tech Law Blog

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The South Carolina Family Law Blog posted his reasons for flat fees in family law cases today. In doing so, he gave us some of the benefits clients receive from hiring attorneys for a fixed fee:

• Clients know the total cost up front, which enables them to determine prior to retaining the attorney whether or not they can afford his/her services and to budget for the attorney's fees and costs.'
  
• Clients have another basis upon which to compare attorneys, both in the manner they charge for their services (fixed fee vs. hourly) as well as the amount charged ($X vs. $Y).
  
• Clients never end up in fee disputes with their attorneys, because all fees were negotiated and agreed upon before the representation began.
• This method encourages open communication from the client to the attorney.' In hourly billing situations, clients sometimes hesitate to provide information to the attorney because they know that they will incur fees and costs for doing so.
• Clients have a higher level of trust with their lawyers, which results in a better working relationship, which frequently yields better outcomes in the clients' cases.

I could not agree more. I have been doing flat fee cases in my family law practice for at least 3 years now. It really does work better for both the client and attorney.

Source for Post: South Carolina Family Law Blog.

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Children are still vulnerable to family violence even after separation from abusive situations

Kansas has received a $400,000 grant from the U. S. Department of Justice, Office on Violence Against Women. via KAKE-TV Wichita

Source for Post: Kansas - Topix.net.

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The United States Court of Appeals for the Tenth Circuit has upheld a district court judgment that a state law barring recognition of adoptions by same-sex couples already finalized in another state is unconstitutional. The case involved three same-sex couples who had adopted children in other states.' These three families brought suit against the state of Oklahoma seeking to enjoin enforcement of the adoption amendment, naming the governor, attorney general and commissioner of health in their official capacities.' The court held that 'final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause.

Finstuen v. Crutcher (US App 10th Cir. August 3, 2007)
Opinion online' (last visited August 10, 2007 bgf)

Source for Post: Oklahoma Family Law Blog.

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As I have mentioned here in this blog and more times than I can count to my clients, one of the areas married couples argue about is money. There are really three, money, children and the other one we won't mention. But, in my own experience, money is the one that usually causes more problems than the other two. Let me just say, I am just as guilty on this one as you are.

First of all, we don't communicate about money. We have to talk to our spouse openly about money. Both spouses should feel free to talk about their concerns and fears. And BOTH spouses should have an equal say in how YOUR money is spent, saved and invested. Remember one thing, when you got married you were two who became one. When one spouse takes total control of the money in the household and keeps the other in the dark, problems arise.

Spending, saving and investing should be done as a partnership. If done that way, fewer problems will come up. And by doing this, we take one of the causes of divorce out of the picture.

To help start the conversation going, there is a great list of things you can do to create an emergency fund. Check out 28 ways to save for an emergency fund. And talk about it.

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Ask the Advisor has a very good post concerning divorce and credit. I am not going to paste the article here. I am however, going to provide a link to the post. It is called, How Will My Divorce Affect My Credit?

While you are there check out some of the other information contained in Ask the Advisor.

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Here is a great Q&A from Bankrate.com. The advise in the answer applies not only to student loans, but to overdue child support.

Q:

My wife had a student loan, but the school went bankrupt before she could finish the course. She did not get her training and the school kept all tuitions. For the past 17 years when we've filed taxes, the state of Florida has been taking them. The federal government has dismissed the loan, but a company in Florida bought the loan and somehow they got approval to take my tax refund. Can they take my tax refund even if it was incurred before our marriage? How can I make them understand that the student loan has been charged off?

A:

IRS Tax Topic 203 discusses the Treasury Offset Program for past-due obligations. These include amounts owed for child support, federal agency debts and state income tax obligations. Continue Reading...

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I have touched on this issue before. And based on a U.S. Tax Court ruling, the IRS is taking this requirement serious.

As stated on a fellow family law blog, New York Divorce Report:

In order for the non custodial parent to take the dependency deduction, it is essential to file the Form 8332 with the tax return

So, make sure you file the proper forms with your tax return if you are planning to take the deduction. In addition, make sure you discuss this issue with your attorney and have the proper language included in any orders or settlement agreements that each party will execute the necessary forms so you can take the deduction.

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With all the talk going on right now about collaborative law and mediation, it was great to see my fellow family law blogger, Oklahoma Family Law Blog publish his recent post on the topic. There is a clear difference between the two methods. And this post will help explain the two.

In mediation, there is one 'neutral' who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.

Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

Source: DivorceNet.com.

Source for Post: Oklahoma Family Law Blog.

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With all the talk going on right now about collaborative law and mediation, it was great to see my fellow family law blogger, Oklahoma Family Law Blog publish his recent post on the topic. There is a clear difference between the two methods. And this post will help explain the two.

In mediation, there is one 'neutral' who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.

Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

Source: DivorceNet.com.

Source for Post: Oklahoma Family Law Blog.

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