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Extramarital affairs are cited as the most common reason for divorce in the UK and Wales, accounting for 29 per cent of break ups, a survey revealed on Monday. "Mid-life" crisis are reportedly blamed for this increase. Family strains were reportedly the third most common cause of marital break-up.

Apparently Brits are hiring private investigators to trail suspicious spouses and go to great lengths to find out the truth, even though it hurts.

Sir Mark Potter, president of high court's family division, acknowledged that London has become "the divorce capital of the world."

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USA Today published an article in yesterday's edition (2/14/08) about electronic messages promulgating a divorce or at least, being used as evidence. According to the article, about 88% of American Academy of Matrimonial Lawyers say they've seen an increase in the number of divorce cases using electronic data as evidence during the past 5 years. The evidence is being used to catch people in the midst of affairs and hiding assets, such as buildings, to avoid having to divide the same pursuant to a divorce proceeding.

Lawyers are also looking at MySpace and Facebook pages as well as electronic calendars and other computerized data. Also, spouses are "email snooping," that is, looking at a spouse's private email and text messages. Look at what happened to Detroit Mayor Kwame Kilpatrick--he and a former chief of staff are under investigation after a newspaper revealed contents of their text messages on city-issued paging devices.

The article notes that electronic evidence probably has not led to more divorces but makes evidence gathering easier. The upshot is: be a sleuth if you believe funny stuff is going on; be discreet if you are doing the funny stuff.

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Many people may not think much about their bodily remains.  Some people, hopefully my clients, will at least discuss their preferences and express their wishes to family members of what to do with their remains.  Cremation? Bury? Where to bury? With whom? Toss in a ditch?

A recent Iowa Supreme Court case from September 2007 highlighted the issue that can arise.  In the Stark case, a dispute arose over where to bury poor Mr. Stark's body.  Mr. Stark had been buried for some time in a plot with his first wife, when his second wife decided that his particular location wasn't the best.  So Mrs. "Second Wife" has the body disinterred and reburied at another location.  The adult children from the first marriage didn't take kindly to this and objected like any true American...by filing a lawsuit.

The Iowa Supreme Court eventually determined that the statute permitted the surviving spouse the ability to do just that.  As a result, the adult children of Mr. Stark will have to wait until Mrs. "Second Wife" passes, at which time they can disinter poor ole dad-again-and move him back.

The Iowa Legislature is currently debating a change in the law.  Currently, there are two bills under consideration with very different positions.  A Des Moines Register article discusses the two bills, one which is supported by the Iowa State Bar Association and the other by the Iowa Funeral Directors Association.  One bill, Senate File 473, enables the deceased individual to make those decisions for his/her body prior to death.  The other bill, House File 2088, provides for an authorized list of individuals to make the decision for the deceased.  The funeral directors claim that providing for an optional document places too much of a burden on them, as opposed to just applying a list.

While it may make the funeral director's job simpler for the bill backed by the funeral directors, the disposition of one's remains is truly one's final decision for their resting place and an extremely important matter for many people.  Everyone should be entitled to choose what happens to their remains, not which is necessarily the simplest solution.

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The Iowa Court of Appeals recently reviewed what remedies are available when aparent fails to pay child support. In John Martin Farrell v. Iowa District Court for Polk County, the Iowa Court of Appeals annuled the district court's finding that a father was in default for failing to pay extracurricular activities but sustained a finding of contempt.

A parent refusing to pay child support or other support such as extracurricular activities (when required by the decree) is a common occurrence. In its decision, the Farrell court outlined the difference between "contempt" and "default." If a parent "willfully" fails to pay child support on time there is a good chance s/he will be found in contempt--or willful noncompliance with a court order. There are defenses to a charge of nonpayment of support as outlined in the Farrell ruling.

A court can also find that although the payor's behavior wasn't willful, s/he nonetheless contravened the decree and issue a finding of default, or a technical violation. Either way, both of these may be viable options if a parent fails to pay support in a timely fashion.

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According to an article in the Des Moines Register the Iowa State Association of Counties has proposed legislation insulating “counties and cities from liability for injuries or damages resulting from bike accidents on their roads unless it is shown that government officials were notified of a road deficiency before an accident and that road crews neglected to take action.” The proposed legislation was a result of a $350,000 settlement paid by Crawford County to the widow of Kirk Ullrich who died in a 2004 RAGBRAI accident.

The need for the legislation is questionable. The current law governing county tort liability contains a laundry list of exemptions from liability for counties. Since the case was settled prior to any judicial determination we don’t know whether any of these exemptions would have applied. I would even suggest that the standard for county liability suggested in the proposed legislation is similar to the standard that a court may have imposed.   What is obvious, however, is that the county thought it had enough exposure to cause it to settle the case. 

Crawford County has since banned all RAGBRAI and similar events from occurring on its county roads. Perhaps the legislation was proposed to prevent additional counties from banning RAGBRAI from its roads. An influx of “RAGBRAI bans” could possibly prevent the event from occurring in the future which would be a detriment to the state.

photo on flickr by sandcastlematt

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We all know that sometimes HOW you say something is more important that WHAT you say or WHY you say it. This is especially true when it comes to terminating employees. In “Halloween” from Season 2 of The Office, Michael Scott provides one way to go about terminating an employee. (You can purchase this episode at iTunes or Amazon). However, I would suggest reading today’s posting on the Pennsylvania Employment Law Blog for excellent tips to use if you have to terminate an employee. It stresses the importance of focusing on HOW you terminate an employee rather than WHY you are terminating an employee. Focusing on the HOW may reduce the blow of WHAT you are saying.

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Employee retirement plans, including 401(k)s and pensions plans, are benefits offered by many businesses.  It's important if your business offers such a benefit that the plan comply with all the laws governing the plan.  However, mistakes can be made, therefore the IRS has published a 401(k) fix-it guide.  Although named a 401(k) fix-it guide, many of the corrections are applicable to other types of employee benefit plans.  The guide lists the eleven most common mistakes made by businesses and then offers tips on finding the mistake, fixing the mistake, and avoiding the mistake in the future.  Most errors can be self-corrected.  If you have questions consult with your plan administrator or attorney.

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Steve Worrall, who maintains the Georgia Family Law Blog, recently wrote about a unanimous opinion written by the Georgia Supreme Court's Chief Justice in Blige v. Blige, S07F1817. This case holds that the trial court did not abuse discretion in setting aside the parties' prenupital agreement, since the evidence supported the trial court’s finding that the husband failed to make a full and fair disclosure of his assets, income and liabilities prior to execution of the agreement.

The parties did not live together before the marriage and the husband actively hid the fact that he had $150K in cash in his possession when the parties signed the agreement.

In Iowa, prenuptial agreements are generally upheld; however, like the Georgia Supreme Court emphasized, there must be written disclosure of the parties' full financial picture prior to execution. In addition, to increase the legitimacy of a prenuptial agreement, it should be entered into well-before the big wedding day. For other tips contact a family law attorney.

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Congratulations on our very own Jennifer Jaskolka-Brown on making the 2008 class of "Forty Under 40" as sponsored by the Des Moines Business Record.    Great job Jennifer and congratulations!

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"Probate" is a term that is often mentioned (well, maybe not often) but many people don't understand what it really involves. Probate is the legal process where, through a court-supervised system, a deceased individual's assets are transferred to their rightful heirs/beneficiaries; taxes are paid; and debts/claims are handled. The probate process also includes the validation of a will.

It is not necessary to have the attorney who drafted the will handle the process. The "administrator" or "executor" can select whatever attorney they choose.  The administrator or executor is the individual appointed by the court to handle the various steps in probating an estate.

In Iowa, the probate process primarily consists of 5 stages.

1. The filing of the initial set of documents to open the estate.
2. Publication of notice in a newspaper for filing of claims and giving notice to heirs and creditors.
3. Waiting the time period for the filing of any claims or contests to the will.
   
4. Filing of the report and inventory and payment of taxes.
5. Distribution to beneficiaries/heirs and discharge of the executor/administrator.

Every state is different in how the probate process is administered and you should contact a knowledgeable attorney to handle the probate process. Feel free to contact me if you have any questions about the probate process in Iowa.

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Home builders in Iowa recently received a ruling from the Iowa Supreme Court that significantly expands their liability.  The Court ruled in the case of Speight v. Walters Development Company, Ltd. that a home builder can be held responsible under a theory of implied warranty of workmanship construction to third party purchasers.

What does that mean?  It used to be the law in Iowa of caveat emptor, or "buyer beware".  That meant that a home buyer should thoroughly inspect the house they were buying and find any defects, because after they bought it, it was too bad if there was something wrong with it.  Eventually, in 1985, the Iowa Supreme Court expanded builder liability by requiring that a building be constructed in a reasonably good workmanlike manner and reasonably fit for the intended purpose.  This "implied warranty" was only applied to the first owner of the house.  Thus, if a house was defectively built, only the person buying it from the builder could bring a lawsuit against the builder.

This February 1, 2008 ruling takes the next step and holds a builder responsible to subsequent owners for defective conditions.  In Speight, the house was built in 1995 by Walters Development and sold to Roche, who then sold it Rogers, who then sold it to the Speights on August 1, 2000.  After purchasing the house, the Speights noticed water damage and mold that were a result of a defectively constructed roof and defective rain gutters.  Speights brought suit against Walters, lost at the trial court level and lost on appeal to the Iowa Court of Appeals until the Iowa Supreme Court reversed the ruling and changed Iowa law.

The Court noted that pubic policy justifications support further erosion of the doctrine of caveat emptor.  The purpose of the rule is to ensure that innocent home buyers are protected from latent defects.  Subsequent purchasers are in no better position to discover those defects than the original purchaser.  "Builders should be accountable for their work" quoted the court.

While whether this will crowd the courthouse with lawsuits on defective houses is yet to be seen, it certainly expands a builder's liability for the houses they build.

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What is your role as a friend when a close couple-friend breaks up or divorces? CNN.com ran an article today addressing this problem, primarily in the boyfriend/girlfriend break-up scenario. However, much of the advice applies to divorcing couples.

What should you do when you're friends with both parties? Where should your loyalties lie, and how can you avoid alienating either member of the couple? Sometimes distancing yourself from one or both until tension eases is a good solution. Sometimes buying the first round of drinks for the first-in line-first in time (a/k/a "I knew you first") friend is the trick. Whatever route you take, remember if there are children involved keep them protected. Make sure that any discussions regarding the other spouse/party is done outside the earshot (preferrably home) of the children.

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