Much to dismay of many single women here in Minnesota, Twins baseball player, and “Hometown Hero” Joe Mauer, recently announced his engagement to a former high school classmate. His happy news came just a little over a month after the demise of fellow Minnesota-born athlete Kris Humphries’ marriage to Kim Kardashian. News reports indicated that Kardashian declared an intention to keep her reported $2 million engagement ring. A pre-nuptial agreement also may play into the balance, with various news reports indicating that the agreement allows Kardashian to purchase the wedding ring in the event of a divorce.

So what is the law on this classic law-school scenario? On WestlawNext, try a plain language search using West Search in all state cases:

ownership of engagement ring

We get some promising looking results in the case law, but Related Documents includes an ALR article titled,  Rights in respect of engagement and courtship presents when marriage does not ensue, 44 A.L.R.5th 1 . So it looks like we have a good start for the broken engagement situation. But what about a divorce? What happens to the ring when a marriage happens, but fails? For that, simply try,

Ownership of engagement ring after divorce

I click on the cases link on the left to see what we get, and quickly I see language about whether engagement rings are considered marital or separate property. I see references to statutes and again on the right side of the screen, under Related Documents, I see a Yale Law Journal article:

When the marriage ceremony ends, the law declares that a woman has done her part with respect to the ring and can keep it forever.

Rebecca Tushnet, Rules of Engagement, 107 Yale L.J. 2583, 2603 (1998)

Wisconsin is the latest state to enact legislation authorizing powers of attorney for temporary delegation of parental authority.  Traditional legal solutions for empowering another person to care for one’s children involve petitioning the court for guardianship or for out-of-home placement through social services.  Parents not willing to go to such extremes might simply place children in the care of a relative or other trusted person, but this may present problems if health care or educational decisions must be made on behalf of the child.

Parents may have a variety of reasons for wishing to temporarily delegate parental authority.  A military parent may wish to execute such a power of attorney while on deployment.  Or a power of attorney may be used to manage the care of a child who is living away from home for school or while engaging in activities such as athletic training and competition. 

Where a child is at risk, however, a parental power of attorney may not be used to avoid protective services.  And many parental powers cannot be delegated under the power of attorney provision, such as the parent’s right to consent to marriage of a minor child, or to consent to military enrollment.  Neither can it be used to voluntarily place the child in foster care without the parent’s consent.

A number of states have similar parental power of attorney provisions in place, with some variation state to state.  For example, Ohio law provides for a Grandparent Power of Attorney (Ohio Rev. Code Ann. § 3109.52), specifying that the person caring for the child must be a grandparent, while the person delegating the authority can be a “parent, guardian, or custodian.” 

RESEARCH REFERENCES

To look for similar laws in other jurisdictions, on WestlawNext try a search in statutes for parental power of attorney.  On Westlaw.com, try “power of attorney” /s parent child.  If you’d like to see a more comprehensive list, you can also check the 50 State Survey for Indemnification, Conservator, and Guardianship Issues (on Westlaw), which includes listings for delegation of parental powers where available.

Recently, I watched a documentary on Netflix called “The Medicated Child”. It was a Frontline exposé on the over-medication of children for conditions such as Attention Deficit Hyperactivity Disorder (ADHD). According to the program, ADHD is one of many mental illnesses whose levels have steadily increased in children since the late ’90s. The program focused on two of the more common drugs used to treat ADHD –  Ritalin and Adderall. Although many parents and doctors interviewed maintained that these drugs make it much easier to deal with children with ADHD, they all agreed that very unpleasant side effects, such as sleeplessness, anxiety and loss of appetite, can be presented.

This rise in prescriptions also means an increase in litigation surrounding this issue. For example, several failure to warn cases have been instituted against Ciba-Geigy, the maker of Ritalin. In one of these cases, a child’s parents sued because they claimed that the manufacturer of the drug and the child’s physician failed to warn them that Ritalin could cause Tourette’s Syndrome. The court ruled that Ritalin was an “unavoidably unsafe product”, but the defendants would only be held to a negligence standard rather than a strict liability standard and found for the defendants Witherspoon v. Ciba-Geigy, 1986 WL 2138.

Another case against Ciba-Geigy was a class action lawsuit claiming that the manufacturer failed to warn of certain side effects of Ritalin. Because the plaintiffs were not able to show that their children experienced any of these side effects, the case was dismissed for failure to state a claim Hernandez v. Ciba-Geigy 200 F.R.D. 285.

  In addition to the product liability cases, ADHD medications have also come up in cases involving educational matters. These types of claims are usually based on section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act (IDEA). One of the earlier cases, Valerie J. v. Derry Cooperative School District, 771 F.Supp. 483, involved an instance where a 12 year old boy’s parents did not agree with the school’s requirement that their son take Ritalin before being given a specialized educational plan called an “Individual Educational Plan” or IEP. The parents prevailed because the court ruled that a child could not be forced to take medication without parental consent.

To get a better idea of the legal trends surrounding this topic, look at the following searches:

WESTLAWNEXT

Content: All State & Federal

Search: ritalin or adderall and hyperactivity and children or adolescents

WESTLAW

Database: FILING-ALL,BRIEF-ALL,JV-ALL

Search: RITALIN ADDERALL /p A.D.D. A.D.H.D. /p CHILD MINOR YOUTH INFANT ADOLESCENT TODDLER & side-effect

Database: ALLCASES

Search – RITALIN ADDERALL /100 A.D.H.D. “ATTENTION DEFICIT HYPERACTIVITY DISORDER” /150 CHILD MINOR YOUTH INFANT ADOLESCENT TODDLER % ti(commonwealth people u.s. “united states”) sy,di(child-custody divorce)

 Database: TP-ALL

Search: RITALIN ADDERALL /100 A.D.H.D. “attention deficit hyperactivity disorder” /150 CHILD MINOR YOUTH INFANT ADOLESCENT TODDLER

On October 12th, New York’s new “no fault” divorce statute will become effective.  New York is the last state to adopt such a measure.  The new language can be found on Westlaw in NY LEGIS 384 (2010):

The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

 In “no fault” systems, petitioners are not required to plead fault, but can substantiate grounds for divorce typically consisting of an allegation that reconciliation is impossible.  Like New York’s new language, “irretrievable” breakdown is common among state laws, along with similar language like “irreconcilable differences,” “incompatibility” or “insupportability.”

To find a particular state’s statutes regarding divorce, I recommend using the Statutory Index for the state.  Westlaw has statutory indices for all 50 states and they are linked from search pages and state tabs.  I like the indices, because the standardization of language allows you to find the right statutes whether you search for “dissolution,” “divorce,” or even “marriage.”

Some other good reference pieces on Westlaw include:

- Validity, construction, and effect of “no-fault” divorce statute providing for dissolution of marriage upon finding that relationship is no longer viable (55 A.L.R.3d 581)

- 50 State Statutory Survey on Grounds of Divorce

And don’t worry – you can still allege “fault” in many jurisdictions.  Some interesting grounds include:

- “habitual intemperance” & “commission of any infamous crime involving a violation of conjugal duty” (Connecticut – C.G.S.A. 46b-40)

- “indignities rendering life burdensome”  (Alaska – A.S. 25.24.050)

- “when one spouse has sufficient pecuniary or physical ability to provide suitable maintenance for the other and, without cause, persistently refuses or neglects so to do” (Virginia – 15 V.S.A. 551)

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One trend during the economic downturn seems to be a lower number of divorce filings. However, some say that this trend has nearly run its course. We get a fair amount of calls on division of assets in a divorce but have not noticed an increase one way or the other based on research requests. If you’re interested in tracking current legal trends or expanding your practice, this may be an area you want to watch and monitor.

To search for articles on the topic of divorce during a recession, try the following search:

Database: JLR

Query:ti(divorce (dissolution /2 marriage) “family law” & down-turn economic! recession) & DA(AFT 2008)

Number of Results: 6

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