Month: November 2012

Is Your Marriage Valid If You Phoned-in Your Vows?

On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Wednesday, November 28, 2012.

In Florida, it is pretty easy to get married and divorce. You have to apply for a marriage license, which can be issued by any county court judge or the clerk of court, and then the marriage needs to be solemnized by any ordained clergy, judge, clerk of court, or notary public.

Of course, there are a few impediments to marriage. Impediments to marriage mean the marriage won’t be recognized in Florida, which can turn a lawsuit for a divorce into an annulment. The difference can be important if alimony is in dispute. Who wants to learn they aren’t entitled to alimony because their marriage was invalid?

The impediments to marriage fall into two major categories: the lack of consent or incapacity to consent. For example, the age of consent here is 18. So, with a few exceptions, minors generally can’t marry in Florida. Then there is the Bachelor Party wedding; a Las Vegas style marriage which gets annulled because someone was too drunk to consent.

However, if you are a busy bride on the go, or a groom out of town on business, can you appear for your wedding by phone? Can you email your vows to the priest or rabbi? Is the marriage valid? Florida law is unclear, but the Washington Post reported yesterday on a Maryland case in which validity of a marriage was called into question because the husband was in the Congo during his wedding.

Noel Tshiani wasn’t at his wedding – he listened by phone in another country to the ceremony in the Democratic Republic of Congo, according to court records. After about 15 years, the Mrs. Tshiani filed for divorce. Her husband told the divorce judge that he didn’t know about the marriage. That was despite renewing their vows in church, obtaining a green card for his wife and having filed joint tax returns, according to last week’s ruling from the Court of Special Appeals. Soon, he’ll be just as divorced and responsible for alimony and child support, a Maryland court has ruled.

The court noted that the law doesn’t bar Maryland “from recognizing a ceremony where one party participates by proxy – or in the manner that occurred here – and the ceremony is valid in another jurisdiction.”

Being Friends with your Ex-Spouse Could Save Your Life!

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, November 20, 2012.

The divorce process forces spouses against each other, to view each other with suspicion, and as enemies. Not surprisingly, good relations after the divorce seem unlikely, and future friendships seem impossible. It takes a lot to make up with the person who may have ruined your life, or who has been public enemy #1 for a year or more. But just as it takes two to marry, it takes two to make a good or bad divorce. Here are some tips to help keep good relations after the lawyers and judges are long gone. And who knows, maybe it could save your life one day:

– Never express negative sentiments about your ex in front of your children.

– Give up blame, and take responsibility for how you act.

– Be polite. Minding your P’s and Q’s is never out of line.

– Don’t ask your children to keep secrets from their other parent.

– Take the high road.

– Respect your ex.

So how could following any of these guidelines save your life? Consider the following two cases:

Case No. 1 -Su Dan, 32, of China, gave part of herself – literally – to her former ex-husband, Tian Xinbing, 39, when she donated a portion of her liver to him. Dan and Xinbing divorced in July after 10 years of marriage. Two months later, Xinbing was diagnosed with liver cancer and late-stage cirrhosis. After learning that her ex was tenth on the donor waiting list, Dan offered to donate part of her liver.

Case No. 2 – Erica Arsenault, of Massachusetts, volunteered to donate a kidney to her former mother-in-law years after her divorce. The woman made the incredible offer nearly 10 years after she divorced the woman’s son. Six weeks ago, a successful transplant operation was performed and both women are healing now. They say the whole ordeal has brought a family separated by divorce closer than ever.

Grandparent Visitation in the Bluegrass State

On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, November 8, 2012.

Whether or not a grandparent can file a court action for visitation or child custody with their grandchildren has been a closely watched issue in every state in the country. You should know that different states have different standards for allowing grandparent visitation, and that the law is still developing.

Under current case law in Florida, grandparents can be denied visitation with their grandchild by the child’s parents. This is true even if they had what most people would consider a classic grandparent-grandchild relationship; one involving regular visits. Many grandparents complain that they are treated as little better than strangers. This is a little ironic, as Florida has one of the largest populations of the elderly, and has by far the highest proportion of elderly citizens.

In 2000, the United States Supreme Court rendered an opinion to settle the issue for the entire country in the case of Troxel v. Granville. In Troxel the U.S. Supreme Court decided that parents have a fundamental liberty interest in the care, custody, and control of their children, and that a fit parent acts in the best interests of their children. However, the court did not define the precise scope of the parental due process right, the U.S. Supreme Court itself was divided on the issue, and left certain decisions for each U.S. state to decide for themselves.

Kentucky just decided. At the end of October, and in an opinion so new it’s not even published in the official reporter yet, the Supreme Court of Kentucky ruled:

The constitutional presumption that a fit parent acts in the child’s best interest is the starting point for a trial court’s analysis. The grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest. In other words, the grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child’s best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation. A trial court can look at several factors to determine whether visitation is clearly in the child’s best interest.

This is a very different standard than what grandparents in Florida have. Kentucky authorizes grandparent visitation under a basic, best interest of the child standard. Florida adheres to a tougher standard, which requires showing of a compelling state interest to allow grandparent visitation rights over the objections of fit parents. In other word, grandparents have to show some of evidence of harm to the child as a basis for awarding grandparent visitation

Big International Custody Case

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 2, 2012.

In a big international child child custody case, a court ruled that a child taken by her mother to New York from London may stay in New York, over the objections of the father, and despite the mother and child’s lack of legal immigration status.

In 2009 Ms. Montoya Alvarez and her daughter left London to come to live in New York. On November 10, 2010, the father filed a Petition for Return of Child under Article 2 of the Hague Convention and the International Child Abduction Remedies Act. The father wanted an order that the child be returned to London to have a British court make a custody determination.

The trial court found that the father made a prima facie case of wrongful retention under the Hague Convention. However, the court denied the father’s petition to return the child to London. The mother asserted an affirmative defense under Article 12 of the Hague Convention that the child was “now settled” in New York.

The presumption under the Hague Convention is that a child must be returned to the state from which she originally was wrongfully removed unless: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be “now settled in its new environment.”

The father appealed, and argued that the “now settled” defense did not apply because the one-year period in Article 12 should have been tolled until he could have reasonably located his child. He also argued that the child was not settled in New York because the child and mother lacked legal immigration status.

The Second Circuit Court of Appeal held that (1) equitable tolling does not apply to the one-year period in the “now settled” defense and (2) a child’s immigration status should not be given controlling weight in determining whether the child is “now settled.”

The case makes it harder for foreign parents to win an international custody dispute. The Second Circuit’s Lozano v. Alvarez opinion can be read here.