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Many divorcing couples jointly own a house together. The jointly owned home is likely to have been an important and heavy financial investment for both parties that holds a lot of strong emotions and memories. Thus, the issue of who gets to keep the home after the divorce can often become a contentious battle. Some people become obsessed and determined to remain in the home as the sole owner of the property. However, before becoming determined to fight over the home, the matter should be carefully considered.

To begin, the fight over the home may become an extremely difficult legal battle, generating huge attorney fees. While most attorneys are more than willing to go to battle for you, a good attorney will do their best to guide you on the best course of action that will be financially sound for your budget and appropriate for your mental health. Additionally, from a practical standpoint, it is important to remember that a home, although a great financial investment, is still a huge financial burden.

The person who keeps the home may have to refinance the property solely in their name. This can be expensive and may not even be a possibility for some people. Moreover, beyond the additional burden of changing the title and possibly refinancing, there is the basic expenses of maintaining a home.

Whoever keeps the home in the divorce will take on the responsibility of paying for the general maintenance and upkeep of the home. On the low end, just for basic home maintenance, the US News and Freddie Mac suggests a homebuyer should budget 4% of the property value for annual maintenance expenses. For example, if your home is worth $300,000, expect to pay $12,000 a year just in basic maintenance, or $1,000 a month. However, there is a lot more to the cost of owning a home than just the basic maintenance expenses. Beyond the upkeep, the person keeping the home will likely have to pay all the mortgage, property taxes, various homeowner insurances, landscaping expenses, water and sewage bills, trash bills, heating and electric bills, upkeep and replacement of appliances, and any HOA fees. All these expenses should be considered (and compared to an apartment or different home) before deciding to fight for the marital home in a divorce proceeding. And don’t forget, as the home ages, all of these expenses will likely increase.

In general, when making the decision of what property to seek possession of when filing for divorce, it is important to consider both need and affordability, while doing your best to remove sentimental and emotional attachment from the equation. It is also important to keep any anger or spite from factoring in. An attorney can help you through this process, while also having your best interest in mind and guiding you through all the important questions and factors to consider. At the Barnds Law Firm, we have guided hundreds of clients through this difficult process and are happy to help you. Call us today to set up your consultation.

Why the US Should Follow Britain’s Historic Decision to Approve Mitochondrial Transfer, i.e., “Three-Parent Babies”

By Kevin L. Boyd

In the summer of 2011, I took Professor June Carbone’s International Bioethics and Assisted Reproduction class where I first learned about an innovative in-vitro fertilization (IVF) technique known as mitochondrial transfer, or what is sensationalized and colloquially referred to as “three-parent babies” – much to the chagrin of many scientists. Since then, I continued to study and remain up-to-date on the topic, which is why I was excited to read about Britain passing an amendment this month permitting IVF techniques targeting inherited mitochondrial diseases, making Britain the first country in the world to officially allow the mitochondrial transfer. Once the Human Fertilisation and Embryology Authority approves the science, the procedure will assist thousands of women in the UK to safely reproduce without the fear of passing on certain devastating, and sometimes even deadly, mitochondrial genetic disorders.

The Treatment

For years now, it has been possible to diagnose mitochondrial diseases and debilitating conditions such as muscular dystrophy, Leigh syndrome, diabetes mellitus and deafness, and various problems affecting a child’s heart, liver, and other vital organs… but then what? Parents and children are given very few treatment options and there is no cure for these horrible afflictions. According to recent estimates from the New England Journal of Medicine, nearly 2,500 women of childbearing age in the UK, and more than 12,400 in the United States, are at risk of transmitting mitochondrial diseases to their children. In Britain at least, these women will finally have the safe option to utilize mitochondrial transfer.

Every human cell is comprised of two main parts: (1) the nucleus, which contains our DNA, the genetic code that helps shape our inherited traits such as your eye color, hair color, your dimpled chin, etc. – essentially the stuff many people think of as making you “you”; and (2) the cytoplasm containing the mitochondria, which are sometimes called the “battery” or “powerhouse of the cell” – the mitochondria are tiny organlike units within the cytoplasm whose job is to provide biochemical energy to every living cell. The mitochondria contain tiny amounts of their own DNA, which are maternally inherited. Even though there is only a trace amount of DNA in the mitochondria when the DNA is defective and malfunction, it can be devastating.

In normal IVF treatments, a woman’s eggs are harvested, combined with the collected sperm of a man, and then placed in a petri-dish for fertilization, creating a tiny embryo that can later be implanted into a woman’s womb. Building on this treatment, the mitochondrial transfer is essentially the placement of the nucleus from the intended mother’s egg into the healthy mitochondria of a donor’s egg, i.e., the “third parent.” The fertilized egg is then implanted in the intended mother’s womb.

Unnatural Responses

The media’s dramatic description of this treatment as “three-parent babies” has been unhelpful throughout the discussion and debate of this topic, intended only to illicit fear and concern of something unknown or unnatural – as if the child were a Frankenstein-like monster, born from a hodge-podge mix of three random people. However, the reality is far less dramatic because the words “three-parent baby” do not reflect the science

Each mitochondrion contains a mere 37 genes; in comparison, the nucleus contains 20,000-25,000 genes. Hence, over 99.9% of a child’s genetic makeup comes from the intended mother and father. Granted, an important characteristic of the child’s health will be derived from the donor (otherwise there would be no need for the treatment), but the socially and ethically important characteristics of the child, including personality, talent, and physical attributes, all derive from the nucleus and sperm of the child’s true biological parents.

Beyond this though, most parents will tell you that parenting is so much more than the mere transfer of chromosomes. We have already seen that the family dynamic can include three- and sometimes four-parent families: gay couples with children via sperm or egg donation, step-parents, adoptive families, etc. Ultimately, the science behind this treatment does not equate to parenting; being a parent is a role each individual must choose on their own. Unfortunately though, deep-rooted ideas about “naturalness” have framed much of the discussion about mitochondrial transfer.

Addressing Concerns

While mitochondrial transfer allows a safe alternate reproductive method for women who are carriers of severe mitochondrial defects, there are still those who voice concerns about the treatment. However, most of the concerns expressed amount to nothing more than pandering to uninformed constituents who have an ill-conceived notion that this treatment is genome modification within an egg’s nucleus leading to sensationalized “designer babies.” The reality is that this treatment is the transfer of an egg’s nucleus from a potentially lethal environment of defective mitochondria, into the safer, healthy donor’s mitochondria.

Arguments that doctors performing this treatment are “playing God” seems rather odd considering that doctors – in the sense of interfering with the natural course of events in order to increase the length and improve the quality of human lives – are required to “play God” every day. We, as a society, have asked doctors to address the predicaments of women, men, and families, and to assist whenever possible. Doctors have accepted this responsibility and now consider it their duty. Thus, whether performing a transplant to replace a naturally faulty heart or delivering a baby by cesarean section because natural birth was dangerous or simply not possible, doctors are righting the wrongs of nature, which is the essence of medicine.

Some have argued that this is a slippery slope, but this argument has been raised whenever there is an advance in medicine, technology, or any field really. Moreover, the rigorous debate of both the science and public opinion that occurred before passing approval for this treatment serves as a perfect model of what will happen in the future. Thus, there is no “slop” because any ethically challenging future advance will require significant scientific research and vigorous public debate before moving forward. That is how progress is made.

There are some concerns that, although possibly valid, can all be addressed and ultimately do not warrant keeping the technology illegal. According to some experts, there are “unknown risks” associated with this treatment, but this is true of any new medical advancement. (It should also be noted that similar arguments were made when IVF was first introduced). Other experts have argued that the children will require lifetime monitoring, along with the children’s children, in order to identify any unknown risks to the child and future generations, such as faulty mitochondrial DNA transferring during the procedure and the possibility that some mitochondrial diseases are actually caused by something other than defective mitochondria, possibly genetic faults in the nucleus.

First, basic check-ups are necessary for anyone, and this would certainly be necessary for any child born to a mother with a mitochondrial disease without treatment. Second, this is an argument regarding the technology’s effectiveness and the long-term impact it will have on the child, not against the technology in principle. Third, all of these concerns seem like a small price to pay in order to live a life free of debilitating mitochondrial conditions. Finally, and most importantly, though possibly valid, all these concerns are ethically acceptable when informed consent of the parents is required, allowing the parents to decide whether or not the risks are worth proceeding with the treatment.

In the end, most of the opponents against mitochondrial transfer have tried to describe this debate as one between amoral scientists hell-bent on progress at any cost, and those who are supposedly seeking to advance science within a moral framework. But how is it morally correct to prevent medical advancement and treatment that would alleviate unnecessary suffering and misery for both parents and children? …It isn’t; rather it is only morally correct to inform and reform reproductive practice by introducing this life-saving treatment under appropriate regulation as soon as possible to give hope to thousands of families. Britain understood this when it made the ethical decision to embrace the future. I hope the US will do the same.

Fourth Amendment Balancing: Expectations of Privacy

The Constitution provides many freedoms and protections, but each has necessary burdens, limitations, and exceptions in order to ensure that society can properly function. The difficulty of determining how extensive these exceptions and limitations should be, and how to correctly apply them in a specific situation, such as determining when an officer can detain an individual and search his or her personal belongings, is one both police officers and courts face on a daily basis.

According to the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This essentially protects individuals from searches and seizures that are conducted outside the judicial process (without prior approval by a judge or magistrate of the court). However, as discussed above, all protections afforded by the Constitution are subject to several exceptions, including the well-known Terry stop and frisk. Indeed, a Terry stop and frisk is a perfect example of the difficulty surrounding the extent and application of an exception to a constitutionally protected right.

A Terry stop is a brief detention of a person, or persons, by a police officer. In order to perform the Terry stop, the officer must have an objectively reasonable suspicion that the search is necessary. If an officer has such reasonable suspicion, based on particular facts and totality of the circumstances, the officer is then permitted to do a minimal search of the detained person for the limited purpose of ensuring the safety of prospective victims, as well as the police officer’s own safety. Although Terry stops were originally limited to the famous “pat-down” of an individual, subsequent case law has expanded the permissible scope of searches so that they now include a protective search of the area within the immediate control of the person(s). The phrase “within the immediate control” has been construed to include the area from which the individual might gain access to and/or possession of a weapon or contraband (i.e., destructible evidence).

While this seems like a specific and well-delineated exception, the unfortunate reality is that police officers are faced with unique situations on a daily basis in which they must decide, within seconds, how to correctly apply this exception in order to ensure their own safety while also protecting an individual’s rights. For example, consider the case of State v. Johnson from the Kansas Court of Appeals (2009). In this case, a police officer, Officer Tucker, was called to an apartment to investigate a possible burglary. Three police officers arrived at the apartment and observed two women packing. The officers learned that both were helping the tenant – who was not present – leave the apartment. After confirming this with the landlord, Officer Tucker continued to speak with the tenant’s girlfriend, Vicki Johnson, the defendant, while the other officers contacted the tenant to confirm the women’s story. During the discussion, Johnson asked if she could smoke and reached for her purse to grab a cigarette. The purse was outside the defendant’s reach, and Officer Tucker told her “no,” explaining that he did not want her to reach into the purse, or anything else, for officer safety reasons. Unfortunately, Johnson went ahead and grabbed the cigarette package from the purse, at which time Officer Tucker seized the package from Johnson. Then, though some of the details are unclear, Officer Tucker eventually looked inside the package and found a glass cocaine pipe. He then searched the purse and found cocaine in a prescription bottle.

Johnson filed a motion to suppress the evidence found in Officer Tucker’s investigatory search based on officer safety, but the district court denied the motion and Johnson was found guilty of possession. Johnson appealed her case, asking the Court of Appeals to make the difficult determination of whether, “once Officer Tucker had seized the cigarette package and thereby removed the package from the defendant’s possession, [did] Officer Tucker still had sufficient safety concerns under Terry to justify his search of the cigarette package and purse?” According to the majority of the Court of Appeals, no, the search of the cigarette package was not justified. As the Court of Appeals explained, by the time of the search and seizure – the Terry stop – Johnson had been identified by the landlord and had offered a plausible explanation for her presence at the apartment, which was being verified by the other officers. Comparing the cigarette package to both a purse and car by citing decisions from other jurisdictions, as well as the United States Supreme Court’s decision in Arizona v. Gant, the Court concluded that once the cigarette package was no longer in Johnson’s possession, a protective search of the package was not justified pursuant to Terry. Thus, the Court found that Johnson’s motion to suppress should have been granted and reversed the district court’s judgment. However, Judge Stephen Hill wrote an insightful dissent in which he disagreed with the Court’s conclusions.

In his dissent, Judge Hill identified an important paradoxical and dangerous issue by asking, “[d]oes this mean that an officer can lawfully seize a container for his or her protection but then not examine its contents to discover if there is indeed danger? If that indeed is the rule, I pray the container has no exploding device.” Judge Hill also found the comparison of a cigarette pack to a purse and car to be both disproportionate and unreasonable with regard to the circumstances and expectations of privacy surrounding the searches. As Judge Hill explained, “[a] glance inside an open cigarette pack is not the same intrusion as an officer pawing through the contents of a purse nor is it the same as a methodical search of a car for weapons or contraband.”

The State appealed the Court of Appeal’s decision to the Kansas Supreme Court; however, the Supreme Court concluded that the Court of Appeals was correct in determining that the defendant’s motion to suppress should have been granted. Significantly though, the State wrote a supplemental brief in which it raised Judge Hill’s argument that the defendant had no reasonable expectation of privacy in the cigarette package. Unfortunately, because this was the first time the State had raised this argument, the Kansas Supreme Court did not address the merits of Judge Hill’s argument that Johnson lacked a reasonable expectation of privacy in the cigarette package. Thus, Judge Hill’s concerns are arguably still valid, and may still need to be addressed by the Court at some point.

The legal system has a difficult task when balancing the freedom and protections afforded by the Fourth Amendment against the safety of law enforcement officers and the need to preserve destructible evidence. In the blink of an eye, a police officer must calculate the risks associated with an individual’s action and weigh it against the need to respect that individual’s freedom. Though seemingly innocuous, the struggles surrounding this balancing act continue to develop as the courts are faced with unique and complex situations.

Barnds Law is a full-service law firm that specializes in a range of services, including Family Law, Divorce, Child Custody, Criminal Defense, DUI’s, Drug Charges, Business Law, and Contracts. We are different than others around town because we have a team orientated environment, this allows us to work together effectively and efficiently, providing our clients with the best possible representation for their unique cases. Our team approach also gives us a favorable “Home Field Advantage” over other law firms, allowing us to better serve our clients and achieve favorable outcomes.