| Surprise discovered in local
divorce cases
BY BOB KASARDA Times Staff Writer
Posted on Wednesday, July
31, 2002
VALPARAISO [Indiana] -- Porter
Superior Court Judge Thomas Webber dug around his desk and
pulled out a single-page notice likely to come as a surprise to
some recently divorced individuals and their attorneys.
The official-looking document announces in capital letters
and bold type that as a result of specific wording used in
divorce agreements to protect one or both parties from harm, the
federal Brady Act has been invoked. The result is the potential
offender loses his or her right to possess a firearm and is
required to turn over all weapons.
This triggering of the federal law only recently was
discovered by Webber and Porter County Magistrate Katherine
Forbes while they were implementing state-mandated changes
involving the use of protective orders. The changes, which took
effect July 1, limit the use of protective orders to cases
involving domestic and family violence, sexual assault and
stalking.
The Brady Act is triggered by specific language and
conditions commonly made part of divorce agreements in Porter
County, said Webber. The first of the three triggers occurs when
the person is subject to a court order that restrains him from
"harassing, stalking or threatening an intimate
partner," according to the notice prepared by Webber.
The final two triggers occur when there is an order
prohibiting the use, attempted use or threatened use of physical
force, and the order is issued after the person has had an
opportunity to be heard.
While some attorneys intentionally may seek to trigger the
Brady Act, Webber said others likely are to be surprised by the
news. It is on behalf of this latter group, Webber has decided
to attach notice of the act to applicable divorce agreements. He
also is including a suggestion for alternative language that can
be used in the agreement without triggering the Brady Act.
"We are now suggesting lawyers take a closer look at
standard language," he said.
A different approach has been taken by Christina Miller, a
Lake County Circuit Court magistrate who served on the
Protective Order Committee, which recommended the changes to the
state's protective order law.
When those rules took effect July 1, she began separating
protective orders from divorce agreements. Now, each is handled
as its own order, she said.
It is important to be careful when triggering the Brady Act,
she said, particularly when it involves police officers,
security guards or others who must carry a gun for a living.
"We've seen it," Miller said.
The use of two separate orders is the recommended approach in
divorce and paternity cases, said Jeffrey Bercovitz, director of
juvenile and family law at the Indiana Judicial Center and staff
attorney for the center's Protective Order Committee.
"We think it's cleaner," he said.
Porter County's decision to continue including the protective
language within the divorce agreement, however, is a valid
approach, said Bercovitz.
Webber was aware of the recommendation for separate orders,
but said it has not been pursued in Porter County because it
would create too much additional work for the county clerk's
office and there would be no financial reimbursement. Filing
fees cannot be charged for protective orders, he said.
While the concern about the Brady Act is coming to light only
in Porter County, Bercovitz said the threat was around long
before the July 1 changes to the protective order law. Counties
have just been responding at different speeds.
Bob Kasarda can be reached at bkasarda@howpubs.com
or (219) 462-5151, Ext. 345.
|
Northwest Indiana News