Technology and the economy will make big waves in the national discourse this year, local attorneys say. And if their outlook is any indication, these hotbutton topics will have everyone talking!
Evolutions in Family Law
Social media and the economy are two issues that increasingly affect couples considering divorce, says Margo Green of Green Cordonnier & House. She points to a recent case where the judge required a husband and wife to share their Facebook passwords so that each could monitor what the other was saying about them. Although that hasn’t happened in Missouri yet, technology increasingly makes it harder to maintain privacy, she says.
“I believe that people who are guilty of marital misconduct will be caught by their spouse more and more frequently in 2012 because with the Internet, you can easily find out where your spouse is and see if they’re telling the truth,” Green says.
Courts also routinely subpoena cell phone records, and if the same number shows up repeatedly at all hours, it can be used as evidence of an affair, she notes. That was not the case for landline phones, because those records don’t show what number is called as long as it’s local. Green says the ease of gathering evidence makes it increasingly likely that more divorces will settle out of court.
The economy caused a decrease in the number of divorces in 2011, and Green expects that trend to continue this year. “Couples who would have chosen to divorce chose not to because they would have to divide up the home and retirement plans, and they couldn’t survive,” she says. “In a better economy, they would have gone ahead with it.”
Heartbreak and Hardship
Even when couples do go ahead with a divorce, the economy can still make a big impact on the proceedings, says Sam Hais of Hais, Hais, Goldberger, & Coyne. “The issue of shrinking family income caused by unemployment is going to continue to have massive repercussions on the issue of what used to be known as alimony (now spousal support),” he says. “There just isn’t enough money to go around. Both litigants and judges will be called upon to find creative ways to keep two households going instead of one.” It’s not just unemployment, Hais notes—stagnating salaries contribute to the problem, as well. “When people separate and divorce, expenses go up dramatically. It’s a dire circumstance in this type of an economy that is not only deeply troubling, but shows no real signs of recovery.”
The economic hardships many families face also can create a need for relocation, Hais notes. “Courts have traditionally taken a very wary view of relocation because of the difficulties of child custody and visitation having to be re-worked to be meaningful for children at greater distances,” he says. A parent can be denied permission to move when it’s judged to be not in the best interest of minor children, he adds. “Motives are strongly taken into consideration, and these are hotly contested cases.”
This election season, there has been plenty of debate over the effectiveness of new government regulations. Patrick Foppe of Lashly & Baer called our attention to one in particular, which he expects we will be hearing about as the year goes on. The Federal Motor Carrier Safety Administration (FMCSA) has proposed new regulations limiting the number of hours that truck drivers can be on the road—a move that would potentially impact both road safety and the price of everyday goods, Foppe says.
The number of allowable driving hours has been regulated for almost as long as there have been commercial trucks, and the current regulations have been in effect since 2004, Foppe notes. Since that time, the number of truck-related fatalities has reduced by 38 percent, and the number of injuries has gone down by 39 percent. That compares to a 21 percent decrease in all traffic fatalities during the same time period, he says.
The new regulations would decrease the average maximum allowable hours of work per week from 82 hours to 70, Foppe says, and would go into full effect in the summer of 2013. While the FMCSA hopes the move would further decrease the number of fatigue-related trucking accidents, the industry counters that additional regulations would increase the number of trucks on the road along with the cost of doing business. “Their argument is that the current regulations seem to be working very well, based on those statistics regarding the number of accidents, and that especially in a down economy, this could wait—if it has to be done at all,” Foppe says. “I see it as part of the larger debate about federal regulations and the impact on jobs.”
With somewhere on the order of 40 percent of children in the U.S. born out of wedlock, paternity cases are quickly becoming ‘the 21st century divorce,’ says Kirk Stange of Stange Law Firm. “Because of high divorce rates, more people are not getting married before having kids, and inevitably just like a lot of marriages, some of these relationships fail,” he says. “The parties are left figuring out who gets the child when, and who makes decisions.”
Stange says that in these cases, there is usually a period of time when the parents are able to work out schedules and visiting rights on a handshake deal. However, disagreements crop up as the two people enter new relationships and start to move on. “Even married people have differences on how kids should be raised, but if they’re not in a relationship, it’s virtually impossible that two people will work everything out on a handshake deal for 18 years.”
Stange adds that although a father’s name is present on the child’s birth certificate, there’s no place where it accounts for who gets the child on Christmas. “It’s similar to a divorce. Those parties need a court order to say who’s going to see the kids when,” he notes. Once a father gets a paternity order, Missouri law says that both parents are to have ‘frequent and meaningful contact.’ And once a schedule is in place, both parties—along with the kids—can breathe easier, Stange says. “The parents don’t have to bicker about who gets to see the child when.”
Not everyone is looking for assisted reproductive help, but the field is growing, and that’s leading to a rise in sticky legal situations, says Tim Schlesinger of Paule, Camazine & Blumenthal. “As more and more frozen embryos are created, and more and more frozen embryos are stored, we start to think about the percentage of marriages that end in divorce,” he says. “This is an increasing problem that needs to be dealt with.”
For many couples, a fertility clinic is the last best hope to start a family, but unfortunately, unintended situations sometimes arise, Schlesinger says. “When people go in for in vitro fertility treatments, embryos are created, and even if embryos are implanted, you usually don’t use all of them,” he notes. “The result is that embryos are saved and frozen, or cryopreserved.” He poses the question of what happens if, for example, a couple divorces and the wife wants to use the cryopreserved embryos to have another child, but the husband does not. While cases like this have come up in Missouri, so far all have been resolved without reaching the appellate level, Schlesinger says. Meanwhile, the Supreme Courts of seven other states all have decided in favor of the party who does not want to be a parent against their will, he adds.
Legal issues also can arise from an outside donor, either known or anonymous, Schlesinger notes. “The most important thing I could say is that people who are going through assisted reproduction need to have agreements that are drafted by an attorney and tailored to their situation,” he says. He counsels clients to sign agreements with the donor, as well as the fertility clinic, even if the donor is anonymous. “Why wouldn’t you take that extra step to protect something as precious as your child?”