Today's Law: Adoption and Inheritance, Reform of Divorce Laws, Misrepresentations in University Applications
August 17, 2015
by Forsyth & Forsyth
Adoption and Inheritance
When a child is adopted, the law treats her as the equivalent of a blood heir of her new parents. She inherits from them and loses all rights of inheritance from her biological parents.
What if the father of the adopted child never knew about the pregnancy and the adoptive parents did not notify him of the adoption proceeding? Since a Supreme Court decision in 1972, formal notice is constitutionally required.
But what if the adoption occurred before 1972? May the adopted child inherit from a biological father and, if so, under what circumstances?
The facts of a recent Florida case on the subject were compelling. The unwed mother of Lisa gave up Lisa for adoption in 1961. The father was ignorant of everything. Thirty-six years later she tracked him down. He did not have a wife and thought he was childless, until Lisa introduced herself. They developed a “good relationship.”
He died in 2010 without a will. Several “distant cousins” asserted claims to his estate. Lisa asserted a claim also, arguing her adoption violated the Due Process rights of her biological father.
The court disagreed. It refused to apply the 1972 Supreme Court decision retroactively. It also cited a New York decision on the “central importance of finality in the adoption process.” There “must come a point where the matter is deemed irrevocably closed, so the parties can go forward with their lives, secure in the certainty that their legal and familial status can no longer be disturbed.”
Not stated was the fact the biological father could have avoided the dispute by signing a will naming Lisa as his beneficiary, if he so desired.
Reform of Divorce Laws
Recently, the New York legislature passed a bill that will bring sweeping changes to two areas of matrimonial law: spousal support (maintenance or alimony) and enhanced earnings. Governor Cuomo is expected to sign the bill.
For maintenance awards there will be specific guidelines for the amount and duration of maintenance. The income of the parties will determine the amount. The more you make, the more you will pay. The length of the marriage will determine the duration. The longer you are married, the longer you will pay.
The guidelines will make more uniform the amounts and durations of awards from county to county and judge to judge within a county. Some spouses complained how much they paid depended on the county in which they resided and the judge assigned to their case.
New York was the only state that provided awards for enhanced earnings. For example, assume a couple marry after college and before the husband enters medical school. She supports the two of them. After residency he decides to divorce her. Previously, the courts would have awarded the wife a sum to compensate her for the services she rendered, in and out of the home, to enable the husband to obtain his advanced degree. The theory was the services enhanced his earning power. The new law eliminates these type of awards.
In the previous example the wife is still entitled to a percentage of the fair market value of the husband’s medical practice. The practice is an asset he acquired during marriage and is subject to equitable distribution.
Misrepresentations in University Applications
You may recall the lawsuit against New York Law School (not to be confused with New York University Law School) by nine former students. They claimed fraud. The school enticed them to enroll by inflating the success of its graduates in obtaining jobs.
The courts dismissed the suit. The inability of the plaintiffs to get a job was due more to the 2009 recession than anything the school said or did.
What if the student commits the fraud? Dire consequences may follow, without any remedy at law.
David attended law school at St. John’s University. In his application he acknowledged a conviction for “possession of a controlled dangerous substance” and gave some detail of the circumstances surrounding the charge.
Unfortunately, the detail was not complete or accurate. As a teenager he regularly used and sold drugs. The conviction was actually for distribution of LSD, not possession. He disclosed the full detail halfway through his second year.
When the law school learned of the misrepresentations, it bounced him. The courts supported the school.
The action was not arbitrary. The school followed, belatedly, its own unwritten policy on not admitting persons who sold drugs, and the penalty was not “so excessive” to “”shock’s one sense of fairness.” The school had a strong interest “in ensuring the integrity of the future attorneys under its tutelage.”
It helped that St. John’s is a private university. If it was a public university, the Due Process Clause may have provided David greater protections and possibly an opportunity to stay in school.
As it was, one appellate judge did find the penalty of expulsion too harsh. David volunteered the information, he had three semesters worth of credits, and he paid the tuition for the semesters.
Update on the Forsyths
Speaking of school, Scott’s daughter, Caitlin, graduated from NYU Law School in May. She took the New York Bar Exam the end of July and is awaiting the results. She starts work in October at Gibson, Dunn & Crutcher in New York City. It is a Big Law Firm with more than 1,000 attorneys in 18 offices around the world. We wish her the best.
As for George, we are proud to announce he is a grandfather. Gail and Tyler Forsyth had a boy, Logan, on April 10. Congratulations to the parents and the grandfather.
If you have any questions about adoptions, inheritances, maintenance, schooling, or any other matter, please contact us.
FORSYTH & FORSYTH
16 W. Main Street, Suite 110
Rochester, N.Y. 14614