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Can divorcing spouses blog about their ex?
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It's no surprise that divorce is unpleasant, and many spouses want to tell the world about how awful their ex-partner is.
In the past, a spouse's ability to do this was limited. They might want to tell the whole world, but in practice they usually just told a few friends over a drink or two.
But today, it's easy to publish a blog that can be read by anyone with Internet access. And a growing number of spouses are taking out their frustrations by putting the intimate details of their failed relationships online for everyone to see.
This can be extremely unpleasant and offensive to the other spouse, who may feel that their privacy has been invaded, and may feel defamed as well.
But is it illegal? And can anything be done about it?
This is a whole new area of the law, and the rules are still very unclear.
The issue arose recently in Vermont, when William Krasnansky and Maria Garrido ended their nine-year marriage. Krasnansky published a blog that included what he described as a work of fiction, but which appeared to be an account of the break-up in which he blamed Garrido for the failure of the marriage. He also scanned and published excerpts from Garrido's diary.
Garrido responded by asking the divorce judge to order Krasnansky to remove the blog. But Krasnansky claimed this would violate his right to free speech under the First Amendment.
Who was right?
The court made three rulings:
• First, in general Krasnansky had a right to publish the blog. It's true that a court can prohibit one divorcing spouse from harassing the other, but in this case the blog didn't amount to harassment in a legal sense. It didn't interfere with Garrido's personal liberty, and it didn't contain any direct or indirect threats of physical harm.
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• Second, Krasnansky did not have the right to reproduce Garrido's diary. The diary was Garrido's property, and she had a copyright in its contents. So Krasnansky had to remove the diary pages.
• Third, if Krasnansky defamed Garrido, she could sue him – but she'd have to do that in a separate lawsuit. The divorce court couldn't prevent Krasnansky from saying what he had to say, but if it was defamation, Garrido could bring a separate claim for money damages. (To prove defamation, Garrido would have to show that Krasnansky made false statements, as well as meeting other requirements.)
In general, courts are very reluctant to prohibit people from speaking. The usual approach is to let them speak, and if they slander or libel someone, to allow a lawsuit afterward. A few years ago, for instance, the U.S. Supreme Court struck down another court's order that had prohibited a man who didn't like attorney Johnnie Cochran from ever talking about him in public.
This area of law is new, so it's uncertain what will happen elsewhere. But if you've ever been tempted to go online and talk about your ex, in general it's not a good idea. For one thing, you might end up being sued for defamation. For another, your comments might come back to haunt you, in the divorce case or otherwise. You might feel frustrated, but you're almost certainly better off finding another, more constructive way to channel your anger.
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Father's employment benefits increase child support
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The value of a father's employment benefits can be included in his "income" when deciding how much child support he has to pay, says the Arizona Court of Appeals.
In this case, the father's employer contributed about $12,000 a year to his pension, health insurance, workers' compensation insurance, life insurance and long-term disability plan.
The father said that none of these payments should be considered as "income" because he never saw them and they didn't reduce his everyday living expenses.
But the court said they might be "income" because, if the employer didn't provide them, the father would have to pay for these things himself out of his regular paycheck.
The law on this issue varies a lot from state to state and from case to case. But with so many types of benefits now being provided by employers, it's
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important to consider what does and doesn't "count" when deciding on child support.
If you're paying child support and you recently switched jobs – or if you're receiving child support and the person who pays you recently switched jobs – you might want to discuss with us whether the new job should change the amount of your support payments...even if the amount of take-home pay hasn't significantly changed.
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Some couples can agree not to appeal their case
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In some states, it's possible for a divorcing couple to agree that if there’s ever a dispute between them in the future, it will be decided by a judge and neither side will appeal the decision.
This can be a benefit, because it means that any disputes will be resolved quickly and won’t be dragged out through endless appeals.
Of course, you give up something in return – the right to appeal if a decision goes against you.
In a recent case, a Virginia couple put a "no appeal" clause in their property settlement. A dispute later arose over
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whether the husband had cancelled health care coverage he had promised to continue. A judge found for the wife on that issue, but refused to make the husband pay her attorney fees.
The wife then appealed over the attorney fees. But the Virginia Court of Appeals rejected the suit because the wife had signed the "no appeal" provision.
"Given the contentious nature" of divorce cases, the court said, "such provisions protect both parties by resolving the dispute more quickly and minimizing costs."
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Unwed father's child support continues after he dies
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After an unwed father died in a car accident, the mother can sue his estate and force it to continue making child support payments, says the highest court in Massachusetts.
During his lifetime, the father acknowledged that the child was his, and he made voluntary payments to help raise the child. Because he had made these payments, the mother never obtained a court order for child support.
After he died, the executor of his estate refused to make any more payments, and argued that the estate had no obligation to the child since there
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had never been a legal child support judgment against the father while he was alive.
But the court said this was unfair. Since the father had acknowledged the child, his estate had an obligation to provide support, and the fact that his voluntary payments had made a court order unnecessary shouldn't change the outcome.
However, the court also said that any amount the estate owed should be reduced by other benefits the child received as a result of the death – such as life insurance payments, Social Security survivor benefits, etc.
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Husband who wasted assets has to pay more to wife
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A husband who spent lots of money and "wasted" the couple's assets just prior to a divorce may have to pay more to the wife as a result.
The wife in this case was awarded $95,000 a year in alimony and child support. She argued that she should get more money, because the couple would have had more assets if the husband hadn't burned through them just before the divorce.
The judge in the case rejected this claim. The judge said that if the husband wasted the assets after the divorce, then the wife could get more as a result, but this wasn't true if the husband wasted assets before the divorce, while the couple were still married.
On appeal, though, the Connecticut Supreme Court sided with the wife. The court said the husband could be punished for his wastefulness if it occurred while he was contemplating divorce or while the marriage was in serious jeopardy.
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Wife couldn't take out life insurance on ex-husband
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An ex-wife doesn't have a right to buy a $1 million life insurance policy on her ex-husband's life in order to secure her right to alimony and child support, says the Nebraska Supreme Court.
Since the husband was wealthy and the wife was entitled to a large amount of alimony and child support, she wanted the policy to make sure she would be taken care of if anything happened to him. She promised to obtain the policy and pay the premiums; all she wanted was for the court to order the husband to submit to a physical exam so the insurance company would issue the policy.
But the court said no.
Nebraska (like many states) has a law that says you can't buy a life insurance policy on someone else's life without their consent. The one exception is if you’re the person’s spouse – which the wife no longer was at this point.
So under the law, the court couldn't
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order the husband to submit to a physical.
Now, the law makes sense in general – you wouldn't want people to take out a life insurance policy on you without your consent, because that might give them an incentive to engage in foul play.
Of course, there was no suggestion here that this was the case with the wife. But because of the way the law was written, it nevertheless worked to the husband's advantage.
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'Jilted bride' wins $150,000 jury verdict
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A woman who left her job in Florida to move to Georgia and get married – only to have her fiancé break off the engagement – has won a $150,000 jury verdict against him.
RoseMary Shell left an $81,000-a-year job in Pensacola, Fla. to marry Wayne Gibbs after he proposed. The middle-aged couple, both of whom have adult children from previous marriages, began living together in Gibbs' home in Georgia. Shell says she told Gibbs she had amassed about $40,000 in debt, and he offered to pay it off.
Two weeks after she moved in, though, he broke up with her.
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Shell says it took her a year to find a new job – a $31,000 position at a state college.
The jury of six men and six women deliberated for three hours before announcing the verdict.
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Be sure you understand the tax consequences of divorce
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Sometimes it can be hard to tell whether a periodic payment from a spouse is actually alimony or a form of property settlement.
Does it really matter, as long as you get the money? Yes! That's because generally, alimony is subject to income tax, and a property settlement isn't.
A California woman found this out the hard way when she didn't report $63,000 in monthly payments from her
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ex-husband on her income tax return. The IRS assessed her $25,000 in back taxes and penalties.
The woman argued that the payments were part of a property settlement, but a federal appeals court examined the divorce agreement and decided that they were alimony.
If you have any questions about the tax treatment of any of your divorce payments, be sure to consult with us.
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More mothers paying child support
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There has been an increase in the number of mothers paying child support over the last five years, according to a recent national survey of divorce lawyers.
Some 55% of divorce lawyers surveyed said they had noticed a significant increase in the number of mothers being required to pay child support.
The biggest reason for the change appears to be that many states now calculate child support strictly according
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to a mathematical formula. These formulas simply look at how much each spouse earns, and don't take into account other factors that, for better or worse, many judges used to consider.
The survey also suggests that child support awards in general are going up. Some 42% of divorce lawyers said the average award has increased over the past five years, versus only 14% who said the average award had decreased. The remaining lawyers said they had seen no significant change.
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This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today.
The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.
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