December 2012 Archives

December 27, 2012

Court Upholds Order Unsealing Pleadings in NASCAR CEO's Divorce Matter

file8651274380509.jpgThe issue of confidentiality of financial records in a divorce matter recently came before the North Carolina Court of Appeals. The court affirmed a lower court's order unsealing the documents in a man's post-divorce proceeding against his ex-wife, in which he alleges that she breached confidentiality provisions in their pre-nuptial agreement. After one judge initially sealed the pleadings, a different judge unsealed them, citing the public's interest in open judicial proceedings. The appellate court affirmed this decision in France v. France, No. COA12-284, slip op. (N.C. App., Dec. 31, 2012).

The plaintiff, Brian France, was married to and divorced the defendant, Megan France, on two separate occasions. Their second marriage, which began in December 2007, included a pre-nuptial agreement. In exchange for certain financial benefits in the event of divorce, the defendant agreed to keep any financial information in her possession about the plaintiff confidential, unless she was compelled by law to disclose such information. Breach of the confidentiality provisions, according to the pre-nuptial agreement, would constitute a material breach creating a cause of action for damages.

The couple separated in 2008. While the details of their divorce were kept confidential, statements made on the record in court indicated that the plaintiff, who is the chief executive officer of the National Association for Stock Car Auto Racing (NASCAR), would pay the defendant $9 million, as well as child support of $10,000 per month and alimony, for a period of ten years, of $32,000 per month.

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December 21, 2012

Technology Intersects with Privacy and Discovery in Divorce Cases

_DSC0835.JPGDiscovery in divorce litigation can be protracted and difficult, as it may involve the parties' efforts to find "dirt" about each other. New technologies have expanded people's ability to communicate, and accordingly, the number of potential sources for incriminating information in a divorce matter. Communications technologies, like email and social media, are an obvious potential source of discovery. New, "smart" technologies, including not only smartphones but other devices that record and communicate data, are also becoming a frequent subject of discovery requests and subpoenas. As these technologies quickly develop, the usefulness of such data in divorce litigation and other legal matters, especially criminal investigations, must be balanced with privacy rights.

One of the newest innovations are "smart meters," used to measure usage of energy in homes and share data with the utility companies, according to an article this month by National Geographic. Devices like these may one day form part of a "smart grid," which may allow utilities and other industries to meet customers' needs efficiently and respond quickly to outages and other problems. The technology is also controversial, as people may not know exactly what data their device is sending, who may see that data, and how the recipient may use that data. Data on daily energy usage, for example, could easily establish when someone is home or away, and hackers could intercept the data and use it to plan burglaries. A less alarmist view is that the data could also be subject to subpoena during a divorce case, adding a whole new dimension to the type of evidence introduced in a court proceeding.

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December 14, 2012

State Laws Present Difficulties for Transgender Man in Divorce Case

701085_49601368.jpgThe case of an Arizona man seeking a divorce from his wife has encountered difficulty based on conflicting provisions of state law. The husband in the case, Thomas Beatie, is a transgender man, having been born a woman and transitioned to male through a variety of means. He obtained legal documents stating that he is a man, and he legally married his wife. He considers himself the father of his three children, but he, rather than his wife, gave birth to them, since he still has female reproductive organs. This has created a dilemma for the judge presiding over the couple's divorce, as Arizona law does not recognize same-sex marriages, and it is not clear if the state recognizes the validity of a marriage between a transgender man and a woman.

Beatie began the process of transitioning to male in 1997, when a psychologist determined that he had "male gender identification." He underwent testosterone therapy, and had his first of a series of surgeries in 2002. Arizona law allows a person, after a sex change operation, to obtain a new birth certificate and other official documents upon written request. After the first set of surgeries, he legally became a man.

He began dating his soon-to-be ex-wife, Nancy, in 1998, and they were married in 2003. Nancy was unable to have children, so Thomas bore all three of the couple's children. He made headlines as "The Pregnant Man," giving birth to children in 2007, 2009, and 2010. The couple separated in early 2012, and filed for divorce in Maricopa County Superior Court.

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December 6, 2012

Juvenile Court May Exercise Jurisdiction Over a Child Even Without Parental Negligence or Abuse - In re Maricela H.

800px-OldPasadena3.JPGA mother appealed a court order giving jurisdiction over her daughter to the juvenile court. She argued, in In re Maricela H., that insufficient evidence existed to support the court's finding because no evidence demonstrated that she was in any way abusive or negligent. The appellate court held that the plain language of the statute does not require actual abuse or negligence, and that the evidence supported the court's ruling. A dissenting judge held that, even with the majority's interpretation of the statute, the juvenile court's jurisdiction was unwarranted.

According to the appellate court's opinion, the mother had little to no control over her daughter, Maricela H. The girl rarely told her mother where she was going, and she abused drugs and alcohol. The mother took Maricela's son in 2010 and cared for him after Maricela gave birth to him at the age of 15. Maricela reportedly left home again on September 16, 2011 and threatened to take the baby with her. In response, the mother contacted the police and the Department of Children and Family Services (DCFS).

DFCS took the baby into custody and placed Maricela into a Pasadena group home. Maricela reportedly expressed a desire to improve, but she continued to act out and abuse drugs. After she ran away from the home on November 8, 2011, she was detained, and DCFS filed a petition under California Welfare and Institutions Code § 300 to have her declared a dependent. Her behavior reportedly improved after that incident. The court declared her a dependent under § 300(b), based on a finding that she was at risk of "serious physical harm or illness" due to her mother's "failure or inability...to adequately supervise or protect" her. The mother appealed this decision.

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