Potential Pitfalls in Marital Separation Agreements

Potential Pitfalls in Marital Separation Agreements

Marital settlement agreements (MSA) are the backbone of a divorce. They set down in writing the agreements reached by the divorcing parties, and they should be carefully crafted with an eye to the future and possible changes in circumstances. Absent such foresight, a couple can find itself back in court – even years after the divorce is final. This is particularly true concerning spousal support, or alimony agreements.*

Fattore v Fattore, 485, N.J. Super.75 (App. D.V. 2019)

The Fattores were a military couple, married for 35 years. At the time of their divorce in 1999, Mr. Fattore was employed in the Army National Guard and his wife was an operating room nurse. The divorce was not contentious, and both agreed to a mutual waiver of spousal support. Likewise, they agreed that Mrs. Fattore would receive 50% of the military pension accumulated by her husband during the marriage. A qualified domestic relations order (QDRO) -a judicial document that splits a retirement pension by recognizing its joint marital ownership – was prepared and duly entered into by the couple.

After the divorce, even though they had children and grandchildren in common, the couple did not stay in contact.

In 2002, Mr. Fattore became disabled and was eligible to collect his pension. Military pensions are taxable, however, and Mr. Fattore opted to receive tax-free VA disability benefits instead. His ex-wife was not notified.

Eight years later, and unaware of the change in circumstances, Mrs. Fattore contacted the Army to find out why she had not yet started to receive her share of her ex-husband’s military pension.  The Army informed her that her ex-husband’s decision to receive tax-free VA disability benefits supplanted his right to receive military pension benefits. The pension, 50% of which was Mrs. Fattore’s, simply no longer existed.

Mrs. Fattore was not in a financial position to dispute this outcome until 2016 when she filed a motion to compel her ex-husband to compensate her for the loss of her share of the military pension. In February 2017, a New Jersey Trial Court ordered Mr. Fattore to pay his ex-wife an amount the court-appointed appraiser had determined to be equal to Mrs. Fattore’s interest in the military pension. Mr. Fattore appealed.

The USFSPA & Howell v Howell, 137 S. Ct. 1400 (2017)

The Uniformed Services Former Spouses Protection Act (USFSPA) was enacted in 1982 as a means to protect divorcing spouses of military personnel. The Act created a means for veterans’ disposable retirement pay to be treated as community property during divorce. The USFSPA explicitly excludes from disposable pay any amounts waived to receive VA disability compensation.

Howell v Howell, a US Supreme Court case that examined this issue, confirmed the exclusion. The case was decided just prior to Mr. Fattore’s appeal. The Court reiterated that Federal Law “completely pre-empts the States from treating waived military retirement pay as divisible community property.” Id. at 1405.

The Court further found that the family court order that required Mr. Howell to reimburse his ex-spouse for the loss of her share of his military pension was a semantic side-stepping of congress’ intent to shield VA disability benefits from being treated as community property. No equivalent compensation could be permitted.

Although the Court was not unsympathetic to the plight of disenfranchised spouses affected by its ruling, the justices argued that family courts should take the possible loss in value of a military pension into account at the time of the divorce.

Fattore: Resolution

The New Jersey Appeals Court agreed with Mr. Fattore that Howell v Howell rendered the decision to replace the amount of the lost military pension from other assets erroneous as a matter of law. Although equivalent compensation was disallowed, the Court found that Mr. Fattore’s decision to accept VA disability payments in lieu of pension benefits constituted a substantial change in circumstances that warranted a review of the couple’s spousal support waiver. They felt that the record demonstrated Mrs. Fattore waived spousal support in exchange for the promise of her future share in her ex-husband’s military pension. They remanded the case to permit Mrs. Fattore to pursue an spousal support claim.


Galassi v Galassi, 2009-NMCA-026

At the time of their divorce, the Galassis painstakingly constructed a spousal support schedule as part of their MSA:

“[Husband] shall pay spousal support in the amount of $2,100 per month for twelve (12) months beginning January 20, 2004. Beginning January 20, 2005, [Husband] shall pay spousal support in the amount of $2,000 per month for twelve months. Beginning January 20, 2006, [Husband] shall pay spousal support in the amount of $1,900 per month for twelve months. Beginning January 20, 2007 through December 20, 2008, [Husband] shall pay spousal support in the amount of $1,500 per month.   The spousal support shall be non-modifiable for five (5) years, after which it shall terminate.” Galassi v. Galassi, 2009-NMCA-026 ¶3.

Clear as a bell, right? Except that nowhere was the possibility of Mrs. Galassi’s remarriage considered. But remarry she did, in 2005, well before the termination of the spousal support agreement. Mr. Galassi went to District Court to terminate the support. He cited common law and prior New Mexico case law to support his assertion that spousal support terminated upon remarriage, absent demonstrable extraordinary circumstances.

Specifically, he rested his case on a 1956 New Mexico Supreme Court case, Kuert v. Kuert, 60 N.M. 432, 292 P.2d 115 (1956). In this case, the New Mexico Supreme Court held that “remarriage creates a prima facie case that alimony should stop unless the recipient shows exceptional conditions calling for continued support.” Id. 439-40, 292 P.2d at 120.   Mr. Galassi argued that the Kuert decision should still hold sway. Mrs. Galassi claimed that changes to the statutes governing spousal support in 1993 and 1997 amendments displaced the Kuert ruling.

Current New Mexico Spousal Support Statutes

The substance of the statutory provision related to spousal support established by Kuert remained substantially unchanged until 1993. In that year, New Mexico Section 40-4-7(B) upended existing law by completely revising the existing law. The first provision simply changed the nomenclature from “alimony” to “spousal support”, but subsections (a) through (e) defined five categories of spousal support, four of which were new:


  • detailed support of indefinite duration. This was roughly analogous to the spousal support previously allowed.
  • defined rehabilitative support to aid in increasing the receiving spouse’s ability to self-support. This provision could be conditioned on compliance with a rehabilitation plan.
  • defined transitional support as an award to supplement the receiving spouse’s income for a stated period. Transitional support did not include any condition other than it have a definite term.
  • and (e) allowed an award of a single sum payable in one or more installments. Under Subsection (d) single sum support stops “only” upon the death of the receiving spouse. Under Subsection (e), even the death of the receiving spouse does not end the obligation to pay the single sum agreed to.

And most pertinently to the Galassi case, the new provision also allowed the designation of rehabilitative or transitional support “as nonmodifiable with respect to the amount or duration of the support payments[.]”  Section 40-4-7(B)(2)(b).

Galassi resolution

The New Mexico Court of Appeals found for Mrs. Galassi, stating that the statutory standard of nonmodifiability controls. It reversed the district court’s order terminating Mrs. Galassi’s spousal support and remanded the case for further proceedings.


Both these cases started with the divorcing couples in agreement as to how they wanted to split their assets during divorce, both in intent and in detail. They were careful to set up the proper documents (the QDRO in Fattore and a very specific payment schedule in Galassi). The fact that they both ended up back in court and in appeal puts the onus very squarely on family court and family law attorneys to do a better job of contingency anticipation and planning.


*spousal support is the preferred term for alimony in New Mexico (and many other states) law. Alimony remains the preferred term in New Jersey.



Frozen Embryos: The Law at a Crossroads

Frozen Embryos: The Law at a Crossroads

There are over 6 million children in the world born as a result of In Vitro Fertilization (IVF). There are also an estimated 800,000 frozen embryos. The right to these embryos often becomes hotly contested during divorce, as the embryos are most usually created from an infertile couple’s genetic material.

IVF creates a viable embryo that can be directly implanted or frozen for future use. The technology was first used in the 1980s, but, to date, there is no clear legal consensus as to whether the embryos are “humans in vitro”, property to be distributed, or something in between. There is no federal statute addressing the status of embryos, and decisions reached by the courts and legislatures have varied from state to state. What is ultimately decided on their status will have wide-ranging implications, including potentially impacting stem cell research, abortion and even the availability of some forms of birth control.

Since the earliest cases, there has more or less been a consensus that the progenitors, at the time of fertilization, have the right to determine what will become of their embryos at the time of fertilization and that the right to not procreate generally trumps the right to procreate. All that may be changing.

Background and Precedent

Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) was an early frozen embryo divorce case. The wife wanted to donate the embryos to another couple for implantation; the husband wanted the embryos destroyed. The case went to the Tennessee Supreme Court who, in its findings, established precedent for many of the issues raised in other frozen embryo cases across the country.

The Tennessee Supreme Court resolved the issue of personhood under state law by stating that pre-embryos are neither persons nor property but, rather, belong to an “interim category that entitles them to special respect because of their potential for human life” Id. ¶ 30.

The court further held:

-the first resource for determining the fate of frozen embryos should be an agreement between the parties, and this agreement should be presumed valid. The progenitors should retain decision-making authority as to the embryos’ disposition;

-absent the existence of an enforceable agreement, the constitutional right to privacy prevents undue state interference with the right to have children. The Davis court further held that the right to privacy also protects the right of an individual to choose not to have children;

-when two rights of equal significance (the right to procreate and the right to avoid procreation) are pitted against each other, a balance of interests approach should be used. The court, in this instance, found that the husband’s right not to have children should prevail over the wife’s wish to donate. But Davis also stipulated:

Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the [embryos] in question. If no other reasonable alternatives exist, then the argument in favor of using the [embryos] to achieve pregnancy should be considered. Id. ¶ 56.

Most courts have agreed with the Tennessee court on all counts, including tending to give more weight to the right not to become a parent. Terrell v. Torres, No. CV-19-0106-PR, 2020 Ariz. LEXIS 25, (Jan. 23, 2020), the most recent frozen embryo case, put the law to the test, highlighting the problems seemingly inherent to agreements between the progenitors, and, due to the highly emotional nature of the case, moving the Arizona state legislature to take unprecedented action on the subject.

Torres v Terrell Case Overview

At thirty-five and single, attorney Ruby Torres faced every woman’s nightmare: she was diagnosed with an aggressive form of breast cancer. She needed a double mastectomy, radiation, and chemotherapy. Her doctors told her the treatments would greatly diminish her fertility. Wanting to preserve her future ability to bear a biological child, Torres asked her then-boyfriend, John Terrell, if he would donate sperm for frozen embryos. At first, he declined, but when Torres’ ex-boyfriend said he would help, Terrell changed his mind. Torres went through fertility treatments and, with Terrell’s help, 7 embryos were created and frozen.

Things moved quickly on the relationship front after that: Torres and Terrell were married four days after the treatment. (Terrell later claimed this was so Torres would be covered by his health insurance). Torres underwent cancer treatment and all went well until two years later. When Torres discovered Terrell was having an affair, they decided to divorce. Torres requested guardianship of the embryos as part of the divorce settlement. Terrell wanted the embryos donated to another couple.

Torres and Terrell had signed an agreement before creation of the embryos. But like many agreements signed at the time of fertilization, it was problematic. Three courts, the trial court in the case, an Arizona court of appeals and the Arizona Supreme Court, all came to different conclusions as to the meaning of the agreement.

All the courts agreed the agreement should be the point of departure for its findings, and that Torres and Terrell had indicated in the agreement that the embryos should not be destroyed. The trial court found the agreement to be indeterminant as to which spouse should be awarded the embryos and took a balance of interests approach. Determining that Torres maintained the possibility (estimated at 1% according to court documents) of procreating without the use of the embryos, the court found that Terrell’s interest in not being a parent outweighed Torres’ claim to the embryos and directed the IVF clinic to donate the embryos to another couple.

The Court of Appeals disagreed. It read the contract as providing consent for a court to decide who should receive the embryos and additionally found that the trial court had not correctly balanced the interests of the parties. It cited exceptions to Davis, including Szafranski v. Dunston, 2013 IL App (1st) 122975, 373 Ill. Dec. 196, 993 N.E. 2d 502 and Reber v. Reiss, 2012 PA Super 86, 42 A.3d 1131. These cases both involved women who had undergone cancer treatment and would be unable to bear a biological child without the frozen embryos. The Court of Appeals concluded:

The trial court erred by improperly concluding Torres’ “less than one percent” chance of becoming pregnant through normal means and the remote possibility of adoption or insemination with a donor embryo negated her claims to these embryos. The trial court overstated Torres’ ability to become a parent through means other than the use of the disputed embryos. Moreover, the court gave insufficient weight to Torres’ desire to have a biologically-related child—which was the entire purpose of engaging in IVF in the first place. Terrell v. Torres, 246 Ariz. 312, 438 P.3d 681 (Ariz. Ct. App. 2019), ¶ 47.

The Appeals Court awarded the embryos to Torres.

The Arizona Supreme Court reviewed the case and had, yet again, another interpretation of the agreement. It found that the contract did indeed cover the disposition of the embryos in the event of divorce. The Supreme Court expanded its review of the contract from the specific section where a choice had been checked to the context provided elsewhere in the contract. It concluded that the contract was clear that the parties chose to donate the embryos, absent a contemporaneous agreement for use by one of them. Since Torres and Terrell were not currently in agreement, they affirmed the trial court’s decision that the embryos should be donated, albeit reaching that decision based on contract law rather than a balance of interests.

All three courts in the case based their decisions on the agreement signed between Torres and Terrell at the time of the fertility treatments. Although all three interpreted the agreement differently, that an agreement should be honored was not questioned. That may not continue to be the case.

Legislative Action

After the trial court in the Terrell case awarded custody of the embryos to Terrell, the Arizona state legislature stepped in. The legislature was outraged that Torres could not bear her own baby – but a stranger could. The statute, Ariz. Rev. Stat. § 25-318.03 (LexisNexis 2018) a.k.a. the Embryo Statute, went into effect in August 2018. It states that Arizona judges must award embryos to the spouse that will give them the best chance for the in vitro human embryos to develop to birth. It prohibits judges from considering any prior agreement between the parties. Under this statute, the disposition of a couple’s embryos is no longer under the control of its progenitors. The statute’s proponents argue the decision to procreate takes place at the time of the creation of the embryo, not at its implantation, making the courts’ arguments concerning the right not to procreate moot after the fact.

Arizona’s stature is the most far-reaching, but other state legislatures, including New Mexico’s, have introduced restrictions on how frozen embryos must be treated. These restrictions are strongly contested, with the sides forming from traditional allies: on one side, religious organizations and conservative politicians, on the other, Planned Parenthood, the ACLU and the IVF medical community. Until this is finally decided, couples cannot be assured that they will retain the right to decide what becomes of their embryos once they have been created.

The Arizona statute was not retroactive so it was not mandatory that the Court of Appeals or the Arizona Supreme Court take the statute into consideration. Neither did, and the Supreme Court’s decision in Torres stands.

Same-Sex Custody Disputes: Chatterjee v King, 2012-NMSC-019

Same-Sex Custody Disputes: Chatterjee v King, 2012-NMSC-019

Chatterjee v King, 2012-NMSC-019, and, more recently, Tomlinson v Weatherford, 2017-NMCA-055, examined the rights of same-sex partners in custody disputes. Although the laws are rapidly changing, same-sex parents continue to face legal issues not encountered by heterosexual couples, as these cases illustrate.

Chatterjee v King: Case Overview

Chatterjee and King had been living together in a committed relationship for several years when they decided to adopt a child. In 2000, they traveled together to Russia to adopt. They learned that Russian adoption agencies would not grant a same-sex adoption; they also learned that the adoption agency would view King’s ethnicity more favorably than Chatterjee’s.  To facilitate the adoption, King became the sole legal adoptive parent. The family stayed together for 8 years after the adoption, and child rearing was equally shared by both Chatterjee and King.

For a time after Chatterjee and King separated, King allowed their daughter to spend time with Chatterjee.  She began to reduce the frequency of visits and finally cut off all contact between the child and Chatterjee. Soon after, King moved to Colorado and effectively prevented any further contact.

In December 2008, Chatterjee filed a petition to be recognized as “a presumed natural parent” and sought joint custody of their child. King did not legally respond to or contest the merits of Chatterjee’s claims regarding parenthood. Instead, she moved to have Chatterjee’s petition dismissed, arguing that Chatterjee was simply a “third party” and, unless King had been found to be unfit, Chatterjee had no legal standing to bring a claim for custody.

On appeal, the New Mexico Supreme Court found that Chatterjee had standing.  New Mexico’s laws concerning parentage were reinterpreted to include the possibility of legal parentage for non-biological/non-adoptive mothers.

Uniform Parenting and Dissolution of Marriage Acts

Two pieces of New Mexico legislation came into play in Chatterjee v King. The first, New Mexico’s Uniform Parenting Act, deals with who can be considered a child’s parent; the second, the Dissolution of a Marriage Act, delineates who and under what circumstances a person can request custody of a child.

Chatterjee’s “presumed natural parentage” rested on New Mexico’s Uniform Parent Act (UPA).  The first UPA was federal.  In 1973, the National Conference of Commissioners on Uniform State Laws proposed a Uniform Parentage Act that radically changed how parentage was determined in the United States. Prior to 1973, the laws of most states failed to identify two legal parents if the parents were not married.  “Illegitimate” children did not benefit from the financial and legal benefits of having two legal parents. The UPA sought to provide a uniform way to identify two legal parents for children born in and out of wedlock.  The New Mexico UPA, NMSA 1978, ¶¶ 40-11A-101 – 903 (2009, as amended through 2013) lists presumptions, or circumstances, that may be used to establish paternity in the law. It suffices to fulfill any of the presumptions to be held as a natural parent.  Specifically, the UPA provides that a man is to be the natural father of a child if “…he resided in the same household with the child and openly held out the child as his own.” ¶ 40-11A-204(A)(5).  Chatterjee indeed lived with the child and held the child out as her own, but Chatterjee was not a man.

Article 4 of Chapter 40 NMSA covers all aspects of divorce: grounds, residency requirements, property division, alimony and custody. Under the provisions relating to custody, the Act stipulates “When any person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent a showing of unfitness of the natural or adoptive parent.” ¶ 40-4-9.1(K). Sidestepping Chatterjee’s claim to parentage, King rested her request for dismissal on this.

How the case unfolded

The district court, where Chatterjee’s initial petition was submitted, dismissed the petition as requested by King. Its reasoning was that Chatterjee could not be considered a natural parent: the UPA presumptions were gender-specific to males and did not extend to females.

New Mexico courts generally grant visitation (the right of a non-custodial parent to see a child) to non-custodial parents unless it is shown to be against the child’s best interests. The law concerning visitation by non-parents (grandparents, family members, 3rd parties) is less clear cut. In the Chatterjee v King case, the district court did not grant Chatterjee visitation privileges.

Chatterjee appealed the District Court’s ruling. The New Mexico Court of Appeals affirmed the state court’s finding that Chatterjee could not be deemed a natural parent, agreeing that the UPA paternity presumption could not be applied to women. But the Court of Appeals reversed the District Court’s dismissal of Chatterjee’s petition for visitation. They sent it back to District Court to determine if visitation would be in the best interests of the child. On remand, and upon the recommendation of the appointed Guardian ad Litem, visitation was granted.

Still fighting to be acknowledged as a natural parent (and for joint custody), Chatterjee appealed to the New Mexico Supreme Court.

In June 2012, four long years after the first petition was filed, the NM Supreme Court, in a unanimous decision, decided in Chatterjee’s favor. Their decision clearly established that the UPA was henceforth to be applied equally to men and women. Their decision rested on four arguments:


  1. Plain Language: the court reasoned that the ability to hold a child out as one’s own by providing full-time emotional and financial support is based on conduct, not gender, and it is therefore practicable for a woman as well as for a man.
  2. Legislative Intent: the authors of NM’s original UPA, in commentary to the act, had noted that masculine terminology was used only for simplicity’s sake and not to limit its application to males.
  3. Application in other jurisdictions: The California Supreme Court and the Colorado and Oregon Courts of Appeals had all extended the parentage presumption to women in similar cases.
  4. Public Policy: NM’s public policy is to promote the best interests of the child and that end is usually best served by facilitating that the child has two loving parents.

Tomlinson v Weatherford Case Overview

A more recent New Mexico case, also a same-sex custody dispute, turned more on establishing jurisdiction, but nevertheless underscored the same lack of protection a non-biological, non-adoptive parental faces in same-sex child rearing.

Tomlinson and Weatherford were in a domestic relationship and decided to have a child. Weatherford was artificially inseminated and gave birth to R.W., in Oklahoma in April 2007. Following closely on the birth, Tomlinson and Weatherford requested and were granted co-guardianship of their child in an Oklahoma District Court.

In 2008, the family moved to New Mexico. From the time of the child’s birth until May 2009, the two women and their child lived as a family. In 2009, Tomlinson left the home but continued to share parenting responsibilities until September 2012, when Weatherford cut off contact between Tomlinson and their child.

In May 2013, Tomlinson initiated action to establish parentage and determine custody and timesharing. Weatherford left New Mexico right after the petition was filed and returned to Oklahoma. She was not served prior to leaving New Mexico, as she could not be located.

Weatherford’s move and subsequent engagement of the Oklahoma courts began a four-year legal tug of war during much of which Tomlinson was unable to see or visit their child.

How the case unfolded

Once back in Oklahoma, Weatherford filed an objection to New Mexico’s jurisdiction over Tomlinson’s parentage petition. She also filed a change of venue in the 2007 co-guardianship case in an apparent attempt to have a basis for claiming that there was a simultaneous custody proceeding occurring in Oklahoma.

Weatherford succeeded in obtaining a stay in the New Mexico case and in further delaying a legal decision on Tomlinson’s claim.

In the end, the New Mexico state court declined jurisdiction. It did not address Tomlinson’s request for interim visitation, and it denied her motion to stay the enforcement of its judgement, pending appeal.

When Tomlinson went to the New Mexico Court of Appeals, she argued that the district court had:

  • erred in declining jurisdiction
  • overstepped by making findings on the merits of her custody claim when the sole issue in front of the court was that of jurisdiction
  • violated due process by failing to address her repeated requests for interim visitation
  • violated equal protection

The first two of these (and her right to interim visitation) were based on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and the Court of Appeals resoundingly agreed with her. The Court of Appeals declined to address the constitutional issues raised, however, agreeing with the District Court that the question of jurisdiction needed to be resolved before any other claims could be evaluated.

Uniform Child Custody Jurisdiction and Enforcement Act (the Act)

The UCCJEA is federal legislation adopted by every state for the purpose of determining which state has jurisdiction over, and authority to make decisions for a child in a custody case.

New Mexico’s UCCJEA supersedes earlier state legislation. The earlier act signaled 4 bases for establishing jurisdiction:

  • it was the child’s home state
  • assuming jurisdiction would be in the child’s best interests
  • in emergency circumstances to protect the child
  • if no home state existed, or another state had declined jurisdiction

Significantly, the CCJA did not prioritize between these bases. The new act clearly prioritized the “home state”, defined as “…the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding”. § 40-10A-102(7).  The UCCJEA also eliminated the “best interests” language which had created confusion between the jurisdictional issues and substantive custody determination.

The Court of Appeals Decision

In a strongly worded decision, the Court of Appeals found for Tomlinson across the board. It strongly agreed that the New Mexico District Court was the proper venue for the custody proceedings. It concluded “…at the time the petition was filed, New Mexico was R.W.’s home state and the district court had jurisdiction to make the initial child custody determination” Tomlinson v Weatherford, 2017-NMCA-055, ¶ 16. Regarding Weatherford’s claim that the co-guardianship created a simultaneous proceeding, the court tersely stated, “We are not persuaded” Id. at 17.  It questioned the NM district court’s decision to decline jurisdiction, noting that “The legal basis for the district court’s decision is not clear” Id. at 25.

Lastly, the New Mexico Court of Appeals remarked on what was possibly the most difficult aspect of a prolonged custody fight for Tomlinson – the years during which she was unable to have contact with the child.  The Court stated:

In May 2013 when the petition to determine parentage and child custody was filed, Petitioner moved for interim visitation and contact with R.W. The district court did not rule on Petitioner’s motion, and in August 2013 Petitioner again requested that the court address the issue of visitation. However, it appears from the record before us that while the district court addressed other issues in the case, this particular issue was not addressed.  Id. at 25.

Tomlinson had prevailed in the Court of Appeals, but she had all the same been deprived of years of contact with her child.


Both Chatterjee and Tomlinson cases were bitter and long fought. In Chatterjee, the issue of same-sex parenting was directly addressed in the issues of the case. In Tomlinson, it remained sub rosa, yet many believe attitudes toward same-sex parenting nevertheless influenced the proceedings.  In each case, the relationships between the parent and the child were affected immensely.

Same-sex marriage has been legal since across the United States since 2015 and, had the partners in these cases been married, the petitioners would have been afforded more protections under the law.  But in both cases, official adoption would have ensured iron-clad rights of the non-biological/non-adoptive parent and that would hold even if the law of the land changes again on same-sex marriage.


Michael Golden named Best Lawyers® 2020 Santa Fe Family Lawyer of theYear

Michael Golden named Best Lawyers® 2020 Santa Fe Family Lawyer of theYear

August 15th 2020: For the second time in four years, Michael Golden has been chosen as Best Santa Fe Family Lawyer of the Year by Best Lawyers. This honor marks the fifth time since 2012 that a WBMH attorney has been recognized as being at the top of the field.

The honor is particularly satisfying, since it is based on peer review. Best Lawyers uses a process designed to capture the consensus opinion of local lawyers about the professional abilities of their colleagues. To be named Lawyer of the Year means Golden’s professional colleagues rated him highest overall for a family lawyer in Santa Fe.

Golden has been practicing family law for over 40 years, 31 of which were as partner at Moore & Golden. His career has spanned all aspects of family law, but Golden’s preferred work is in alternative dispute resolution. Golden joined WBMH in 2016, of counsel, to continue this work in financially complex cases. Along with his WBMH colleagues, Golden focuses on family law cases in which financial or geographic complexities require the highest level of family law competence.

Golden and WBMH partners David Walther and Sarah Bennett were also selected by their peers for inclusion in the 2020 edition of Best Lawyers in America, a distinction all three have earned year after year.

WBMH serves New Mexico and out-of-state clients from offices located at 123 E. Marcy Street, Suite 205, in Santa Fe, New Mexico. For more information, please visit www.wbmhlaw.com or contact Amber Macias-Mayo at 505-795-7117.


International Custody: Chafin v Chafin

International Custody: Chafin v Chafin

Chafin v Chafin, 568 U.S. 165, 133 S. Ct. 1017 (2013) involved an international custody dispute between Sgt. Jeffrey Chaffin, a member of the U.S. military, and Lynn Chafin, his wife and a Scottish UK citizen. During divorce proceedings, both parents sought custody of their child, E.C., and each sought to have his and her home country determine custody. The case is an illustration of the complexities that can arise when parents of different nationalities divorce.

Facts of the Case

Jeffrey and Lynn Chafin married in Scotland in 2006. Their daughter, E.C., was born the next year in Germany, where Sgt. Chafin was stationed. When Sgt. Chafin was deployed to Afghanistan, Mrs. Chafin took E.C. to live with her in Scotland. After Sgt. Chafin’s tour of duty in Afghanistan ended, he was transferred to Alabama, and Mrs. Chafin and E.C. joined him there. According to lawyers for Sgt. Chafin, Mrs. Chafin initiated the paperwork for permanent residency and declared her intent to permanently relocate to the United States.

Sgt. Chafin filed for divorce in 2010 and sought custody in Alabama. Mrs. Chafin was subsequently arrested for domestic violence and was deported back to Scotland. E.C. remained with her father in the United States. Once in Scotland, Mrs. Chafin contended that E.C. was being unlawfully detained in the United States by her father. She filed a petition in U.S. District Court requesting E.C.’s return to Scotland. The court found that the child’s habitual residence was in Scotland and granted the petition – a ruling which effectively put custody determination in the control of the Scottish courts.  The same day, Mrs. Chafin and E.C. left for Scotland. Sgt. Chafin appealed the court’s decision, and the 11th Circuit Court dismissed the appeal as moot on the grounds that, once a child has been taken to a foreign country, the United States courts are powerless to grant relief.

In Fawcett v McRoberts, 326 F. 3d 491, a similar case, the 4th Circuit Court of Appeals ruled that an appeal was not moot and allowed the case to proceed. This circuit split resulted in the Supreme Court taking the rare step of hearing a domestic relations case.  Just as the district court was engaged to determine the habitual residence of the child and not to consider the actual merits of the custody dispute in the Chafin case, however, the Supreme Court tackled only the legal issues of mootness, stays and expeditious handling. Who the best parent was to raise E.C. could not even enter into the discussion until the judiciary had decided which country’s courts had jurisdiction to hear and decide on the merits of the actual custody cases.

The Hague Convention

The underlying legal context of the Chafin case is the Hague Convention, a multinational treaty that provides rules as to where custody disputes should be resolved when parents are in different countries. Its goal is to ensure that children are promptly returned to their country of habitual residence following kidnapping, abduction, removal or retention of a child by one parent without the permission of the other. The Convention’s intention is to preserve whatever status quo child custody arrangement existed immediately before the wrongful removal or retention, as to deter parents from fleeing to another country seeking a more sympathetic court.

In Chafin, E.C. had resided in Scotland for several years and in the United States for less than one. A layman might quickly conclude that E.C.’s habitual residence was in Scotland.  However, the Hague Convention deliberately refrains from offering a precise definition of habitual residence.  Some legal experts contend the sole criterion should be physical residence over time; others that the element of physical presence needs to be considered in conjunction with evidence of an intention of continued future residence.  If it could have been proven that Lynn Chafin intended to permanently immigrate to the United States, Sgt. Chafin’s appeal would have had merit according to this second definition.

The appeal was denied on the grounds of mootness.

The Issues and the Supreme Court’s Decisions


Federal courts have the power to act when the parties to the case have a concrete interest in the outcome of the litigation.  A case becomes moot when it is impossible for a court to grant effectual relief. Could Jeffry Chafin’s appeal result in effectual relief? He and his estranged wife continued to disagree over E.C.’s habitual residence and over an award of attorneys’ fees. Mrs. Chafin’s attorneys argued the appeal was moot since the district court lacked authority to order E.C. returned to the United States, and any order to return, if issued, would not be enforced by the Scottish courts.

The Supreme Court rejected these arguments stating they conflated merits with mootness: whether Sgt. Chaffin’s request for relief could succeed had no bearing on mootness. The court held that the return of a child to his or her habitual residence pursuant to an order of a trial court does not render an appeal from that order moot.

Stays and Expeditious Handling

If appeals were found to be moot once a child has left the country, could stays be entered to preclude mootness and preserve appellate rights?

The Hague Convention emphasizes that, in the best interests of the child, disputes should be swiftly resolved, explicitly mentioning a time period of less than 6 weeks as desirable. If the lower courts had allowed a stay of the decision to allow Mrs. Chafin to take E.C. to Scotland, would the stay have violated this key tenet of the Hague Convention?

The Supreme Court found that stays entered to preclude mootness would undermine the goal of prompt return of displaced children. That said, the Justices noted that lower courts possessed the “familiar judicial tools of expediting proceedings and granting stays where appropriate”.  Chafin, 568 U.S. 165, 178.  The Supreme Court’s decision on mootness serves to eliminate the need for such stays. Justice Roberts summed up the Court’s stance aptly when he concluded, “The best thing is to hold things up briefly, so that the child doesn’t have to go overseas and then have to be brought back.” [12-5-12 ORAL ARG TR 43:23-25] Failing the assurance of the right to appellate review, he said, the message for other parents would be “Get on the first plane out and then you’re home free.”  [12-5-12 ORAL ARG TR 53:15-16].


For the principals, the Chafin case was a miasma of legalities. The important decisions for both Sgt. Chafin and Mrs. Chafin were where and in whose custody E.C. would grow up.  The road to that decision took them through some very arcane legal issues.  SCOTUS ultimately held that return of the child to Scotland did not render the case moot.  Relief was still available for the prevailing parent on appeal because the United States courts continued to have jurisdiction over Mrs. Chafin and the custody issues.  Neither because the child was no longer present in the United States, nor because of the possibility that Mrs. Chafin would not comply with an order directing return of the child, meant that the issues were moot.  The unfortunate conclusion for parents is that they can win the legal battles, as Jeff Chafin ultimately did, yet still lose the war and end up having custody decided by a foreign court. Although most international custody disputes are not quite as complex as the Chafin case, they are all more legally challenging than a domestic custody dispute and require navigating through complex custody laws.