damnum absque injuria

February 16, 2011

FUBAR

Filed under:   by Xrlq @ 11:03 pm

We interrupt this Family Law is FUBAR series to point out something else that is now FUBAR: my employment situation. If you have any leads for an attorney position, especially any combination of corporate / regulatory / insurance / commuting distance from the Triad, please let me know.

We will return to the original bitch session shortly.

February 9, 2011

Family Law is FUBAR, Part 2: Does Getting Accustomed to Something Entitle You To It?

Filed under:   by Xrlq @ 11:37 pm

When you get accustomed to something, you tend to feel like you own it, but usually you don’t. No one feels entitled to a job they just started, but if you’ve been working for the same company for 20 years and suddenly get laid off, you feel like your rights have been violated, even though they probably haven’t been. Conversely, you probably don’t feel as “entitled” to the house you just bought as you do to the one you’ve been living in for half your life, even though your legal entitlement is the same in either case. So when, and under what circumstances, is being accustomed to something actually a factor in deciding if you are entitled to it? As a former President might say, it depends upon what the meaning of the word “it” is. Here’s a table:

Meaning of “It” Entitled?
Your apartment No
Your job Negative
Your girlfriend/boyfriend Rotsa ruck
Your favorite store or restaurant always being there Nopers
Living rent-free off your parents Fuhgeddaboudit
Leeching off your spouse Yes
Your favorite rock band not breaking up As if
Just about anything else under the sun Don’t hold your breath

Doing nothing while married to someone who does something can pay big dividends. For Lorna Wendt, doing nothing paid $20 million. Nice work if you can get it.

February 8, 2011

Family Law Is FUBAR, Part 1: Chains of Love Act

Filed under:   by Xrlq @ 9:13 pm

One fundamental problem with family law over the years, particularly here in the Bible belt, is the paternalistic notion that family law should aim to keep the divorce rate low, rather than accepting divorce as a reality and trying to smooth the process as much as possible when it happens. The theory seems to be that happy, perfectly functional marriages end abruptly because one partner wakes up on the wrong side of the bed one day and gets a divorce on a whim. Of course few if any couples actually divorce that way. Getting married on a whim, that’s another matter, so if we really are going to go the paternalistic route, perhaps we should stop worrying about the divorce rate, as such, and worry instead about the crappy-marriage rate that feeds into it. As Clemmons dentist Kirk Turner infamously told his late wife Jennifer, there is “more than one way to end a marriage,” only one of which impacts that dreaded divorce rate. So if we’re going to play the paternalism card, we should do so with an aim to prevent bad marriages from happening in the first place.

Needless to say, few states adopt this brand of paternalism at the front end. Individuals don’t (when was the last time you stood up and objected at a wedding when the preacher invited you to?) so it should come as no surprise that democratically elected governments don’t, either. Per About.com, no state requires couples to wait more than five days to marry after applying for a marriage license, and only six (Alabama, Kansas, Massachusetts, Nebraska, Texas and Wisconsin) even limit one’s ability to remarry within the first six months following a divorce. By contrast, North Carolina requires a full year of physical separation before either party can even file for divorce, and another month or two after that before a divorce will actually be granted. Despite this, our divorce rate has held steady at 4.5 per 1,000 in 2001 and 4.4 in 2004, well above the national average in both years. More recently, our rate has increased even as the national rate declined. While inter-state comparisons are always tricky, it seems clear that our long waiting period for divorces is certainly not helping matters, and may even make the marriage failure rate worse.

While lengthy waiting periods do little or nothing to prevent divorce, it does plenty to make the process uglier and more expensive than it needs to be. Not only does requiring one spouse to move out create an unnecessary financial burden for both in the short term, it also sets up the spouse who doesn’t move to cry “abandonment,” which should be irrelevant in a no-fault environment but which does wonders to privilege the spouse who drove the other away over the one who had the cojones to leave. The law shouldn’t favor either spouse over the other. Whoever files has to pay the filing fee, and in return, they get to choose the venue (if more than one is available) and most importantly, they get the warm and fuzzy feeling of having filed an official court document stating that they hereby “complain of” the estranged spouse who for years has been complaining of them. That’s the only difference it ought to make.

February 6, 2011

My Big Gay Flip-Flop

Filed under:   by Xrlq @ 9:52 am

As you’ve probably noticed, I don’t post here much anymore. These days, most of the links and snarky remarkies that would have have gone to the blog end up on Twitter or Facebook rather than here. However, I do still think there’s a place for the blog, particularly when it comes to lengthy, often link-ridden discussions that don’t play well on Facebook or come anywhere close to the 140-character limit. This post is the first of several such entries.

Re the heading, no, I didn’t turn gay, but yes, I have mostly flipped on the issue of gay marriage. I still believe, as I did before, that the issue ought to be decided by the democratic law-making process, and not by judges straining to give the Equal Protection Clause a meaning none of its proponents or even opponents anticipated, and which almost certainly would have been worded differently if they had. Cf. Phyllis Schafly, who almost singlehandedly killed the Equal Rights Amendment in the 1970s, in part by arguing that a comparably worded clause in that amendment would be construed to cover gay marriage. Most thought her argument a stretch but we now know it was prescient. So while I don’t want judges getting involved in this, I do think that allowing same-sex marriage is a legislative decision that voters or legislatures, depending on the law of the particular state, should seriously consider.

The reason for my change is simple. In my heavy blogging days, when Mrs. Ex was Mrs. X and divorce was unthinkable, I naïvely assumed that our existing family law was brilliantly developed over the millennia to make the laws specific to traditional marriages as absolutely perfect as they possibly could be. Well maybe not quite so absolutely, but in that direction. I did not oppose civil unions as an alternative to same-sex marriage, but did reason that the concept of a permanent same-sex union – something most gays themselves didn’t want as recently as a generation ago – was an experiment that should be conducted separately from traditional marriage for at least a generation, with each legislature considering changes to each law separately. Maybe certain blood tests are needed for straight marriages, but not gay, or vice versa. Maybe some are needed for male-male unions but not female-female ones. Maybe no-fault marriage was a terrible idea for straights that should be rescinded someday, but for reasons having nothing to do with gays (and maybe in fact a reason gays didn’t want marriage at all in the bad old days). Too many variables that needed to be experimented with separately for a generation or so. After that period, if our Legislature’s best ideas for male-male unions, female-female unions and male-female unions all just happened to be exactly the same, we could merge the legal concepts then. In the meantime, let’s not corrupt almost a thousand years of common law genius with a brand new experiment. Baby, bathwater, etc.

My new view, after having recently gone through a divorce, is that family law is FUBAR. If you are one of those fortunate ones whose marriages go swimmingly from the day you say “I do” until one of you is dead, good for you. Family law is technically just as bad for you as anyone else, but that won’t matter since none of those crappy laws will ever be applied in your case. But those of us who they do apply to know firsthand just how bassackwards and, in some cases, downright ugly, the laws can be. North Carolina in particular is a judicial hellhole in this regard. In an ideal world, are the best rules for gay unions the same as the best rules for lesbians, let alone straights? Who knows? But I do know that both should be written on a clean slate, and if adding gays to the mix is the political catalyst we need to get the debate going, so be it. The next few posts are going to explain why I think family law is messed up, and what I think ought to be done about it. As always, comments are welcome.

 

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