Surprise discovered in local divorce cases
Agreements could strip away the right to own a gun
NWI Times
Jul 31, 2002
http://www.nwitimes.com/uncategorized/surprise-discovered-in-local-divorce-cases/article_7cddc73b-32fc-59d8-95a4-f684d47665ac.html
VALPARAISO -- 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.
