Thursday, March 28, 2013

Same Sex Marriage and The US Supreme Court

The United States Supreme Court heard arguments this week on two cases involving same sex marriages.  These cases deal with the rights and benefits of same sex couples to wed and receive benefits.  It is anticipated that the Supreme Court will make a ruling on the constitutionality of the Defense of Marriage Act (“DOMA”) which legally defines a spouse as a person of the opposite sex.  (1 U.S.C.A. § 7).  Under DOMA, federal protections and provisions such as Social Security, bankruptcy benefits, and family medical leave protections do not apply to same sex couples.  This is true even if the state in which the couple resides allows for same sex marriage.  One of the cases being heard involves a lesbian woman challenging the fact that she had to pay more in estate taxes when her spouse died because the marriage was not recognized under DOMA even though their home state of New York recognized the marriage.  (See United States v. Edith SchlainWindsor, In Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.SC Docket No. 12-307).  The 2nd Circuit Court of Appeals determined that DOMA is unconstitutional and violates the equal protection clause.  
The second case before the Supreme Court deals with California’s Proposition 8 which bans same sex marriage.  (See Dennis Hollingsworth, et al., v. Kristin M. Perry, et al. SCDocket No. 12-144).  The issue before the Court is whether the Constitution's guarantee of equal protection prevents states from refusing marriage to a defined class of people.  The ruling of the high Court on this issue could impact laws all across the United States.  In the United States, nine states allow same sex marriage. See a breakdown of the numbers provided by CNN.  Connecticut is among the nine states that do allow same sex marriage.
Attorney Pamela Magnano practices divorce and family law with Attorney James T. Flaherty at Flaherty Legal Group in West Hartford, Connecticut
Attorney Pamela Magnano practices divorce and family law at Flaherty Legal Group in West Hartford, CT with Attorney James Flaherty and Attorney Sandi Girolamo

Wednesday, March 6, 2013

Alternatives to Litigation: Mediation and Arbitration

The divorce process does not have to resemble the movie “War of the Roses”.  Today, there are alternatives to divorce that promote a more conciliatory process than traditional litigation.

Mediation is a process by which both parties meet with a mediator to try to resolve their differences amicably.  The mediator is a neutral, trained professional that will attempt to assist the parties in resolving all issues including but not limited to custody, support, and asset division.  During mediation, each party is entitled and encouraged to review agreements with his/her own independent legal counsel.  A benefit to mediation is that parties can reduce their legal fees by not spending tireless hours at the courthouse fighting over the issues that could be addressed through mediation.  Additionally, because mediation promotes problem-solving and not litigating, this process is beneficial for the entire family, including the children.  Finally, mediating a divorce allows the parties to retain control over what happens in their case rather than leaving these life changing decisions to a Judge.

Another alternative to traditional litigation is collaboration.  In collaboration, both parties agree not to go to Court and agree to disclose all information that is relevant to the divorce.  Both parties are represented by counsel and that representation will terminate if the collaborative process fails and either party begins court proceedings.  In addition to counsel, the parties may jointly engage mental health professionals, financial consultants or other experts as needed.  Similar to the role of the attorney, the engagement of these experts would terminate if collaboration failed.  The collaborative process allows the parties to receive the support of trained professionals without the adversity of litigation.