Month: April 2017

Interstate Custody

According to the U.S. Census Bureau, international marriages are rising. Child custody issues are complex under normal circumstances. If the parents move to different countries, those interstate custody problems can multiply.

The U.S. Census Bureau report on the increase in international marriages is not really a surprise given our increasingly mobile and global society. The uptick in cross-border relationships has also led to an increase in international child custody disputes.

International & Interstate Custody

I’ve written about international and interstate custody cases before. You may find yourself in this situation right now, or you fear that your ex partner or soon to be ex could take your children out of the country against your will.

There are various laws and statues you should know about which can protect you and your children, and possibly help you resolve an international custody battle quickly and safely.

Consult a family law attorney with experience resolving international child custody cases. He or she will be able to represent your interests across international borders and help to ensure fair and timely court proceedings.

In some cases, an experienced attorney can also help determine where your ex currently lives and proactively negotiate to secure the prompt, voluntary, and safe return of your children.

The Hague Convention

Become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention. This international treaty exists to protect children from international abductions by requiring their prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, the Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your ex has taken your children out of the country against your will, the Hague Convention can help you get them back as it is best used as a “return mechanism” to take wrongfully abducted or retained children.

Uniform Child Abduction Prevention Act

Most U.S. states, including Florida, have adopted the UCAPA. The UCAPA offers protections to parents who are concerned about the possibility of custody-related parental abduction. If you already have a child custody order in place, or you have a custody hearing coming up, you may be able to file a petition under the UCAPA to address your specific concerns.

There are several risk factors that you should be aware of to determine if there should be put in place prevention measures for abduction. Prevention measures can include things like: orders not to remove a child from the court’s jurisdiction and the ability to require a bond or other security as a deterrent to abduction.

Foreign Courts

In addition to the local and international treaties and laws, it is important to understand the cultural and/or religious beliefs that could impact your case. Countries can have religious courts, and customs, which can drive the outcome of your case.

For example, some international jurisdictions may have a preference for granting sole physical custody mothers. However, judges in other countries are required to always grant custody to fathers. Knowing about these issues up front can help you more effectively prepare for your case.

Florida law currently provides some preventative measures to deter domestic and international child abductions once a custody proceeding has begun, or there is a court order regarding custody or visitation.

The U.S. Census article is here.

 

Facebook Divorce

Facebook has revolutionized the way we keep relationships, and the way we divorce. At least it has for Iain Theyers, of Britain. Ian thought he could re-marry until his wife searched Facebook to get a hold of him.

Dual Marriages on Facebook

According to the BBC, Iain married a woman named Louise Martin while apparently still hitched to wife of five years, Marian Belahonia, it is alleged. Ms. Belahonia, who wanted to file for divorce, discovered through Facebook that Ian had re-married.

The couple met when Ms. Belahonia moved to Britain while Mr. Theyers was working at the airport, and married in 2006 at her parent’s home in Peru, while pregnant with his child. Ms. Belahonia returned to Britain and was later granted full UK citizenship in 2013.

After their marriage deteriorated in 2010, she tracked him down on Facebook in an effort to file for a divorce, but then discovered he had already married Louise Martin in 2011.

Social Media Evidence

I’ve written about social media and divorce before. I have also published an article about Facebook evidence and divorce. There are many benefits, but also obstacles, in gathering and using Facebook evidence at trial.

But there is no question, as Ms. Belahonia quickly found out, that Facebook evidence can be very helpful in court. Some other examples of Facebook evidence being used at trial include:

Husband . . . [posts] his single, childless status while seeking primary custody of said nonexistent children.

Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.

Social media can have such a big impact on people’s lives, many clients have started demanding social media clauses in their prenuptial agreements. In fact, prenuptial agreements should include a “social media clause”.

Prenuptial Agreement Clauses

A Social Media Clause could protect against a public relations disaster because your wife liked that cute picture of you passed out on vacation, or prevents your husband from uploading a picture of you in the bathroom because he thought it was funny.

You and your partner could agree not to post, tweet, or otherwise share certain positive, negative, insulting, embarrassing, or flattering images or content. While married, you have control over what gets posted, but after an angry breakup, it could be “anything goes.”

In his defense, Ian has claimed his marriage to Ms. Belahonia in Peru was a sham to enable her to get a UK visa. Remember, the next time you log in, what you do in the digital world could have a very impact in the real world.

The BBC article is here.

 

Outlaw Divorce?

Swaziland’s King Mswati III has told leaders that it is against culture to divorce, and instructed them to tell citizens that there will be no pulling out from marriage, once it takes place. So much for no fault divorce in Swaziland.

Swaziland Divorce

King Mswati III of Swaziland is Africa’s last absolute monarch. The 49-year old king who calls himself “the lion,” owns most of the country’s land and rules by decree, appointing all of the government’s top positions. Now he may make Swaziland the first country in Africa to outlaw divorce.

“In our culture, once you marry someone, there is no turning back,” he said  speaking at an Easter ceremony earlier this month, according to a local paper, Times of Swaziland. There is no word for “divorce” in Siswati, the official language of Swaziland, the king added.

Swaziland officials have been quick to clarify that divorce has not been officially banned. The king’s comments, which are not a decree until he officially tables them, run counter to a recently submitted marriage bill by Swaziland’s attorney general that allows for divorce on certain grounds.

Divorce is not permitted under current legislation, but a process called Kumbuyisela ekhaya, which refers to reuniting a married woman with her family, is allowed.

King Mswati III has at least 15 wives, and is entitled to a new one every year, chosen at an eight day festival known as the reed dance. Polygamy is common in Swaziland where women are considered the property of their husbands. Domestic abuse and sexual violence are prevalent. Leaders often criticize ideas of equal rights for women as foreign values that should be subordinated to Swazi culture, according to Human Rights Watch.

Divorce Around the World

The Philippines is the only country in the world where divorce is illegal for most of the country’s population. (Muslims are allowed to divorce and the country’s mostly Catholic population can annul marriages.) In Vatican City, there are also no procedures for divorce.

Florida, of course is a “no fault” divorce state. I mentioned in an a earlier post that Florida abolished fault as grounds for filing a divorce. The only reason you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” But many people want to return to the old “fault” system to stem the numbers of divorces.

The King’s directive comes as the kingdom’s attorney-general is drafting a marriage Bill which will make it easier to divorce, particularly for women. The king’s wish is likely to become law, if he formally tables it. This would mostly affect women, whom it says are already oppressed.

“It is not necessarily a decree. However, given the vast powers that the king has it may sound as it is. Remember that he’s also a chairperson of the judiciary commission. I’m just imagining women going there to demand a divorce given that the judge himself will be worried about his job after they had to contradict their boss; in this case the king,” said Lucky Lukhele from the Swaziland Solidarity Network.

The article is available here.

 

Dissipation: Wasting Money in Divorce

Mary J. Blige, has filed for divorce from her estranged husband, Martin “Kendu” Isaacs. In court filings, there are allegations that he spent hundreds of thousands of dollars on his girlfriends. How does this impact the property division?

Mary has won nine Grammy Awards, four American Music Awards, and has recorded eight multi-platinum albums. She is the only artist with Grammy Award wins in R&B, Rap, Gospel, and Pop. However, she is now concerned about dirty tricks in divorce.

Dirty Tricks

Some couples divorce in a business-like, and even a friendly way. They recognize that coming to a fair end as quickly as possible allows them to get on with their lives.

However, there is no shortage of dirty tricks in divorce. One of the most common is to “dissipate,” or intentionally squander money so a spouse can’t get a fair share of it in the divorce.

Mary and her husband Martin married back in 2003. The divorce cited irreconcilable differences as the reason for the split. The couple has no children together. Mary is purportedly asking the judge to deny Martin’s ability to get spousal support.

According to TMZ, in recent filings, Martin is accused of having dissipated $420,000 of the parties’ marital funds. Martin was Mary’s manager. So, it could be that much of the money allegedly spent on himself or a girlfriend can be chalked it up as “travel charges.” However, Mary alleges the $420,000 in expenses were not business-related.

Property Division

In Florida divorces, courts distribute the marital assets and liabilities between the parties with the premise that the distribution should be equal, unless there is a justification for an unequal distribution. I’ve written about various aspects of property division before.

Some of the factors to justify an unequal distribution of the property include things like the financial situation the parties. The length of the marriage, whether someone has interrupted their career or an educational opportunity, or how much one spouse contributed to the other’s career or education.

Dissipation and Waste

One of the relevant factors courts look to is whether one of the parties intentionally dissipated, wasted, depleted, or destroyed any of the marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

Spouses could dissipate assets by spending money on girlfriends, as Mary alleges. Other instances of waste have included gambling losses, and drug usage. Some people would rather lose the money outright than split it with their spouses.

Where this kind of marital misconduct results in a depletion or dissipation of marital assets, it can serve as a basis for unequal division of marital property. Alternatively, the misconduct can also be assigned to the spending spouse as part of that spouse’s equitable distribution.

Martin is purportedly asking for more than $110,000 per month in spousal support, which Mary objects to. Mary is quoted as saying: “I am not responsible for supporting [Martin’s] parents and his children from another relationship which he lists as ongoing monthly expenses.”

The TMZ article is here.

 

Pet Custody News

When couples get divorced, children are not the only ones who can get caught in custody disputes. As the New York Times reports, pet custody fights over the beloved chocolate lab can be just as painful.

Status of Pet Custody

Pet custody cases are becoming more and more prevalent around the country. That is because state lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals.

Pets are becoming a recognized part of the family. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

One case in San Diego that gained national headlines featured a pointer-greyhound mix named Gigi, who was the focus of a contentious divorce between Dr. Stanley and Linda Perkins.

At first, they were granted joint custody of Gigi, but neither human was satisfied with the arrangement. A court fight followed that took two years and cost about $150,000 in legal fees.

The court case involved a court-ordered “bonding study” conducted by an animal behaviorist and a videotape, “A Day in the Life of Gigi,” showing the dog spending time with Ms. Perkins, who was ultimately awarded sole custody.

It has been reported that there has been a 27% increase in pet-custody cases over the past five years, with 20% of respondents citing an increase in cases where judges had deemed pets an asset in a divorce.

Pet custody is not limited to just dogs and cats. Owners of exotic pets — including an iguana, an African grey parrot, a python, and a giant 130-pound turtle — have been involved in disputes.

Current Pet Custody Legislation

I’ve written about pet custody issues before. Alaska became the first state to enact a pet custody law. The law allows a court to consider the animal’s well-being. The measure, which defines animals as a “vertebrate living creature not a human being,” took effect in January of this year.

Currently, a bill was introduced in the House of Representatives in Rhode Island which is very similar to the law of Alaska which was enacted this year. The Rhode Island bill requires judges to “consider the best interest of the animal” in a divorce or separation.

The Times article also notes the popular theory that pet custody battles flare when there are fewer or no children in a family, and pets have become the focus of a couple’s emotions.

Historically, judges in divorce cases have gone through the same steps in determining pet ownership as they did with property. They figured out which property belonged to the couple, how much each piece was worth, and whether some agreement was in place about who got what.

Florida Pet Custody Law

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children. Accordingly, Florida courts have not or cannot undertake the same responsibility as to animals.

A chocolate lab may be considered a member of the family to you, but under Florida law, your dog “Brownie” is just personal property to be divided in divorce in Florida.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

The New York Times article is here.

 

Divorce & Halala Marriages

For Muslim women who divorce, a number of online sites are charging thousands to have “halala” marriages where you pay to marry, have sex with, and then divorce a stranger, to reconcile with your first husband.

Triple Talaq Divorce

As the BBC reports, Farah – despite an abusive marriage, hoped things would change. Her husband’s behavior worsened – leading to him “divorcing” her via text message.

“I was at home with the children and he was at work. During a heated discussion he sent me a text saying, ‘talaq, talaq, talaq’.”

“Triple talaq” – where a man says “talaq”, or divorce, to his wife three times in a row – is a practice which some Muslims believe ends an Islamic marriage instantly. It is banned in most Muslim countries but still happens.

Farah says she was “absolutely distraught”, but willing to return to her ex-husband because he was “the love of my life”. She says her ex-husband also regretted divorcing her.

This led Farah to seek the controversial practice known as halala, which is accepted by a small minority of Muslims who subscribe to the concept of a triple talaq.

Halala involves the woman marrying someone else, consummating the marriage and then getting a divorce – after which she is able to remarry her first husband. But in some cases, women who seek halala services are at risk of being financially exploited, blackmailed and even sexually abused.

One man, advertising halala services on Facebook, told an undercover BBC reporter posing as a divorced Muslim woman that she would need to pay £2,500 and have sex with him in order for the marriage to be “complete” – at which point he would divorce her.

Florida Divorce Reconciliations

I’ve written about the intersection of religion and divorce before. In Florida, there is no law or restriction on reconciliation with your former spouse after a dissolution of the marriage. In fact, many people have re-married their former spouse after the divorce.

During a divorce, courts can issue orders to promote a reconciliation of the parties. For example, when there are children involved in a divorce, or when someone denies that the marriage is irretrievably broken, the court can order you to consult with a marriage counselor, psychologist, psychiatrist, religious leader, or any other person deemed qualified by the court and acceptable to the parties.

The court can also continue the proceedings to enable you to effect a reconciliation; or take other actions in the best interest of the parties and the children.

Criticism of the Nikah Halala

There is a lot of criticism about the Nikah Halala marriage. For example, the BBC reports the Islamic Sharia Council in East London – which regularly advises women on issues around divorce – strongly condemns halala marriages.

“This is a sham marriage, it is about making money and abusing vulnerable people,” says Khola Hasan from the organization. “It’s haram, it’s forbidden. There’s no stronger word I can use. There are other options, like getting help or counselling. We would not allow anyone to go through with that. You do not need halala, no matter what,” she adds.

Farah ultimately decided against getting back with her husband – and the risks of going through a halala marriage. But she warns there are other women out there, like her, who are desperate for a solution.

“Unless you’re in that situation where you’re divorced and feeling the pain I felt, no-one’s going to understand the desperation some women feel.

“If you ask me now, in a sane state, I would never do it. I’m not going to sleep with someone to get back with a man. But at that precise time I was desperate to get back with my ex-partner at any means or measure.”

The BBC report can be found here.

Divorce & April 18th Tax Day

That is not a typo. Tax Day in the U.S. this year is on April 18th. And, if you divorce as of 11:59 p.m. on December 31st, you can file as single for the entire year.

Filing “single” might be better for you, and after a divorce, every cent counts. Some people may be better off filing “married jointly”, but sharing any tax savings, and sharing information with your soon-to-be Ex, may make filing “single” your choice.

Tax Penalties

I’ve written about divorce and taxes before. For example, the 2012 American Taxpayer Relief Act made permanent the Bush-era expanded standard deduction, and the expanded 15% bracket for joint filers.

But for high income earners, the 2012 law raised taxes on couples making more than $450,000, and individuals making more than $400,000. As it turns out, some couples found out they could save over $25,000 a year if they divorced.

If you could save over $25,000 a year in taxes, you could take a trip to Italy, ski Deer Valley, put a little cash away for college, and still have some mad money to spend just by divorcing and turning their marriage into a long term relationship.

There are also a lot of risks though, known and unknown. Consider how a divorce will impact your relationship. There is no fake divorce. Once the court signs the final judgment, you are divorced. IRS rules regarding your filing status have something to say.

In addition to knowing that the filing deadline to submit 2016 tax returns is Tuesday, April 18, 2017 – rather than the traditional April 15 date – Forbes Magazine has some additional tax year tips if you have divorced, or are in the process of divorcing.

Filing Status

Be sure to select the right federal tax filing status. As noted above, it’s based on whether you were married or single on the last day of the year.

If your divorce was finalized by year-end, file your taxes as a single person or, if you had a child and qualify, head of household status; head of household offers more tax advantages than filing as a single person. Otherwise, choose “married filing jointly.”

Exemptions

Claim an exemption for your child if you’re allowed. You may be eligible to lower your taxes by taking the dependent exemption for your son or daughter if you were divorced or legally separated last year. To do so, you must have been named the custodial parent in your divorce decree

Child Support

Don’t run afoul of the tax rules for child support. Neither you nor your ex can deduct child support payments you made. But child support you received isn’t taxed as income, either.

Alimony

Avoid getting tripped up by the tax rules for alimony. If your ex-spouse paid alimony – or gave you money each month to maintain your home and life – you may owe taxes on that income. Your former spouse can deduct the payments. The rules are reversed, of course, if you were the one paying alimony.

The Forbes article is here.

 

Marijuana and Child Custody

Comedian Ralphie May and his wife filed for divorce. She is getting temporary sole child custody, and the comedian will take random drug tests twice a month. This raises the issue of substance abuse and child custody.

Marijuana and Child Custody

The couple has two children together, an 8-year-old daughter and 6-year-old son, and co-starred in their own podcast called Perfect 10. Turner wants sole physical custody and joint legal custody of the kids, plus spousal support from May.

The judge in their divorce has provided timesharing in the case. However, the judge only granted Ralphie two weekly visits with his children, and one Skype call. Additionally, a court appointed monitor must be present for the first 3 weeks.

Ralphie, who’s made no secret of his love of marijuana, has agreed to submit to random drug tests twice a month. Ralphie rose to fame after he won the runner-up spot on the first season of Last Comic Standing.

However, in January, he had to be escorted out of his own show by police after being too high on marijuana to continue.

Pot’s Growing Acceptance

I have written about the use of marijuana in custody cases. No data exist to show how often marijuana use comes up in custody disputes, or how often child welfare workers intervene in homes where marijuana is used.

But in dozens of interviews, the consensus is clear: marijuana’s growing acceptance is complicating the task of determining when kids are in danger. Right now, Florida’s legislative session is underway, and marijuana is being debated.

Medical marijuana implementation plans are being introduced and discussed in both chambers of the Florida Legislature. Florida’s Amendment 2, which was favored by 71% of voters in November 2016, may expand the previously limited Florida medical marijuana law.

Florida has not legalized recreational marijuana. Twenty-six states and the District of Columbia currently have laws broadly legalizing marijuana in some form. Seven states and the District of Columbia have adopted the most expansive laws legalizing marijuana for recreational use.

Most recently, California – where May and Turner filed for divorce – passed a measure in legalizing recreational marijuana use the way Colorado considers marijuana use legal.

Marijuana is still listed as a Schedule I controlled substance, like heroin, under federal law.

Whether you are a parent with a medical marijuana prescription, the analysis of whether your custody case can be impacted by smoking pot will depend on the facts and circumstances of your case. There is no hard and fast rule for the use of medical marijuana by parents involved in a custody dispute.

Florida Child Custody & Pot

Compare pot smoking to drinking alcohol. It is legal for adults to consume alcohol, to drink alcohol at home, and to have alcohol present in their home.

However, the State of Florida may lawfully remove children from their parents if a court determines that the children have been exposed to alcohol abuse, or there is a threat of, or injury as a result of the use of alcohol.

In divorce and child custody cases, one of the factors judges in Florida look to is whether or not a parent has the demonstrated capacity and disposition to maintain an environment for the child which is free from substance abuse.

The Florida statute does not distinguish between legal and illegal substances. Our law only considers whether substances are abused or not. So, marijuana, even if legal for recreational or medical uses, can still be a factor in your child custody case.

The TMZ article on Ralphie May’s divorce is here.