Month: February 2019

Prenups and Immigrants

You met on a warm sunny beach in an exotic country and now want your soulmate to join you in the United States . . . but obviously you want a prenup to protect yourself. Will your prenup protect you from having to support your immigrant spouse if something goes wrong?

prenups and immigrants

Immigration Basics

Many are not aware that since 1996, the U.S. requires all immigration petitioners to promise they will pay financial support to certain classes of foreign nationals. The way the government required support is guaranteed is the famous, Form I-864, Affidavit of Support.

Most family-based immigrants and some employment-based immigrants use Form I-864 to show they have adequate means of financial support and are not likely to rely on the U.S. government for financial support.

The form requires you to promise to maintain the intending immigrant – your new wife or husband – at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”) and to reimburse government agencies for any means-tested benefits paid to the noncitizen beneficiary.

But what if you and your future spouse waive this support in a prenuptial agreement and want to waive the support requirements?

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements, or prenups, are agreements you sign with your fiancé before marriage that outline how you two would end up in case of divorce or death.

A prenup can resolve things like alimony, ownership of businesses, title of properties, and for purposes of this post, spousal support and alimony. There are many other concerns that can be addressed in the prenup:

  • Caring for a parent
  • Going back to school
  • Shopping habits
  • Credit card debt;
  • Tax liabilities;
  • Alimony and child support from previous relationships; and
  • Death or disability

A few of the points of a prenup, is that you get to decide on the amount of alimony, the terms of support, or whether you will pay any alimony at all. Or can it? Because prenuptial agreements can limit how much alimony you pay, you might think that you are safe if you sign Form I-864. You might be wrong.

Building a Prenuptial Wall

The I-864 form is required in all cases where a U.S. citizen or permanent resident has filed an immigration petition for a foreign family member including for a spouse. The form is a serious concern for anyone signing a prenup.

Why? Because whether you can even may enter into a prenuptial agreement that waives a sponsor’s duties to a non-citizen-beneficiary under the I-864 is an open question in courts.

Some courts have held that prenuptial agreements which waive I-864 rights are unenforceable, while other courts have enforced the waiver in prenuptial agreements over the I-864 form. There is a split among courts.

The split decisions between different courts about the right to waive I-864 support rights creates a lot of uncertainty into whether a sponsor and beneficiary spouse can waive enforcement of the I-864.

Are a beneficiary’s I-864 rights in the nature of private rights under a contract, or would allowing waiver of I-864 enforcement allow an end-run around an important public policy?

The law is not as well settled as we lawyers like. If you are thinking about marrying a foreign national and residing in the United States, you are not alone. About 7% of U.S. marriages involve one or more foreign-born spouse.

Information about form I-864 is available here.

 

Communicating During Divorce

The divorce between Jersey Shore star, Jenni “JWoww” Farley, and her husband, Roger Mathews, is getting uglier. Communicating during divorce, especially when you have children, is never easy. Are there lessons to learn from South Jersey?

communicating during divorce

Communicating ‘down the shore’

The Jersey Shore actress released a long statement on her website, accusing her ex of physical abuse and allegedly putting their two young children in harm’s way.

In a video message released the following day, Mathews said her “rant” was “highly erroneous” and “had many lies in it” and then he posted copies of legal documents he says his attorneys sent to the divorce judge.

Mathews posted a lengthy written message on his website:

You painted me as a woman beater. The facts are these. No one, man or woman, husband or wife has the right to put their hands on each other. I take responsibility for that night in question, and one other night that I can think of that, I pushed you. You edited out your actions and violent behavior prior to me pushing you which I knew you would do.

Not to be outdone, JWoww’s team then said in a statement that the accusations he makes in the documents are “laced with false statements.”

Florida No-Fault Divorce

I’ve written about communicating during divorce before, and the “good divorce” too. Historically in Florida, in order to obtain a divorce, one had to prove the existence of legal grounds such as adultery.

This often-required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

Florida Statutes actually still provide that these things may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of parental responsibility.

However, case authority shows little consideration from a legal perspective, relegating them to more of an emotional appeal. But just because Florida does not require a showing of fault does not mean you should go out and create fault either!

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

In Florida, either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months before filing the petition, and the marriage is irretrievably broken.

Fist Pump!

For Jersey Shore cast members, whose way of life was “GTL” (gym, tan, laundry) communicating during divorce is not the time to pull punches. But should they be making these online admissions?

We look like a–holes to the world. We are. We are both a–holes.

Mathews also added:

You claim in your rant that I put our children in harm’s way by filming myself and driving. I was doing 20 miles an hour leaving my buddy’s development, but I will concede that that was not well thought out and I will absolutely refrain from doing that in the future. It’s hypocritical of you however cause you are on the phone constantly while driving and doing your makeup and texting.

Communicating during divorce can be ugly and spiral out of control. Many would be surprised to learn divorce lawyers and judges are not spoiling to see a good fight.

The E Online article is here.

 

Divorce and Infidelity are not Big in Japan

In the U.S. you used to be able to sue your cheating spouse’s lover. Although many think divorce and infidelity cases are common, that kind of lawsuit has gone away. This week, Japan’s Supreme Court rejected a damages claim brought by a man in his 40s against his former wife’s then-lover.

divorce infidelity

Woman from Tokyo

In the Japanese top court’s Third Petty Bench, presiding Judge Yuko Miyazaki said that it is impossible to demand, without special circumstances, that a divorced spouse’s then-extramarital partner pay damages for mental pain from the divorce.

Even if infidelity breaks down a marriage and leads to divorce, unless there are exceptional circumstances, such as the third party involved unreasonably interfering in the marriage in a bid to prompt a divorce, the third party is not liable for paying damages for the divorce.

The ruling does not affect the right to claim damages against a spouse and his or her lover over infidelity itself within three years after detecting the affair.

Florida Law Turning Japanese?

American law used to recognize the tort of “alienation of affection” — causing a woman to lose affection for her husband and often to leave the husband because of the cheating lover.

I’ve written about heart balm statutes before, especially as they relate to engagement rings. These common law torts are commonly referred to as “heart balm” statutes, because they permit the former lovers’ heartaches to heal without recourse to the courts.

The purpose of the heart balm statutes was originally to prevent the perpetration of fraud by litigants who would use the threat of a breach of promise of marriage to force defendants to make lucrative settlements in order to avoid embarrassing publicity.

The Florida heart balm statute, originally passed in 1941, abolishes common law actions for alienation of affections, criminal conversation, seduction, and breach of contract to marry.

The Florida Legislature found that those who break engagements may be “free of any wrongdoing … [and may be] merely the victims of circumstances.”

The preamble declares it to be Florida public policy that the best interests of the people of the state are served by the abolition of the breach of promise action.

Lovers in Japan

In the Japanese case, the man living in eastern Kanto filed a ¥4.95 million damage claim against his former wife’s partner in an adulterous relationship. The couple, with two children, divorced earlier that year after the wife’s affair came to light in 2010.

The Supreme Court overturned a lower court decision ordering the extra-marital partner to pay ¥1.98 million in damages.

The Supreme Court of Japan ruled that whether to divorce is essentially a matter between a married couple, and that the adulterous partner should not bear direct responsibility for the couple’s breakup.

However, the court noted that it is possible to claim damages against such a partner who has intervened in a married couple’s relationship with the aim of causing them to divorce.

The Japan Times article is here.

 

How to Discuss Divorce?

Forget about complex divorce legal issues, the talk about who gets what, and where you’ll live. This post answers a tougher question: how do you tell your spouse you want a divorce?

Discussing Divorce

‘We have to talk’

You’ve no doubt seen it in the movies when it’s shouted out in an argument: “I want a divorce!” But is there a right way to discuss divorce and to let your spouse know your feelings about them?

To say that telling your partner you want to discuss divorce is delicate is an understatement. It is an enormous decision, one that, when raised, will alter both of your lives forever.

Unless you want a big legal battle, or want to treat each other uncivilly forever, it’s in everyone’s interest to learn how to tell your spouse it’s over. So how do you deliver such life-altering news?

Timing is Everything

First, you want to choose a time to discuss divorce when your partner is emotionally ready. Avoid those times when they’re already stressed or emotional.

This is the sort of discussion in which it pays to be patient and remember that the announcement can wait until a moment when its impact will be the least damaging.

Florida Divorce

I’ve written about grounds for divorce before. Florida is a no-fault state, meaning you no longer have to prove someone was at fault for ending the marriage. This takes a lot of pressure off of the conversation about divorce.

In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Knowing that in Florida no one has to be found at fault in order to file a petition for dissolution of marriage should help you and your spouse when you discuss divorce.

Location, location, location

Ideally, you want to discuss divorce in a private, quiet space. Avoid crowded restaurants, shopping malls, or even at home if the kids are in the next room or you have family and friends over.

Avoid phrases like, “You should have,” “You don’t,” or “You didn’t.” You also need to be honest about what you’re feeling and why you believe this decision is the right one.

If you’re in couple’s therapy, the therapist’s office might be a good location. The therapist can help create healthy boundaries moving forward which can prove invaluable when the going gets tough.

Avoid the Specifics

When you discuss divorce for the first time, there is no reason to get into specifics of how the divorce will work. You can leave out the parenting plan, or any other specifics. The emotional toll of discussing a divorce is tough enough, talking about the petty details of the process could be overwhelming.

If your partner is going to be surprised about the divorce and is going to be hearing about it for the first time, don’t talk about dividing the IRA, who should have the kids for summer, or the details of your new apartment.

You want to give the person time to digest the concept, show emotion, and ask questions. Don’t make it worse by blaming the other spouse for their shortcomings.

Even if a divorce is more one-sided, chances are that neither party in the marriage is particularly thrilled about the way things have been going. With this in mind, it’s wise to open the conversation by laying the cards on the table.

The Fatherly article is here.

 

Fault, Adultery, and Divorce

No-fault divorce has been a part of American law for decades. We forget that the law is not universal. In some countries you have to prove adultery or other fault to divorce. That’s the case in England but the law may change if a new bill passes Parliament.

Adultery DIvorce

Faulty Towers

Under the Matrimonial Causes Act 1973 in England and Wales, anyone seeking divorce must prove fault through adultery, desertion or unreasonable behavior.

If both sides agree, they can part after two years of separation. In the absence of consent or evidence of fault, applicants must wait until they have been living apart for five years.

Former Conservative British Member of Parliament and now  Secretary of State for Justice, David Gauke, wants to reform the law in England. So far, responses received by the Ministry of Justice showed widespread support for the initiative.

Florida No Fault Divorce

I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or unreasonable behavior as in England.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Adultery can be the cause of a divorce, but can it impact the outcome? Since Florida became a no-fault state, the fact that, “she (or he) is sleeping with a co-worker” doesn’t hold much traction in court any more.

When is adultery relevant in divorce in Florida. Although we are a no-fault state, there is still a statutory basis for infidelity to be an issue in your divorce proceedings, but not as a reason for divorce.

Some people think no fault divorce is one of the main reasons for a high divorce rate. Despite the recent legislative moves in the UK, there is a movement here to return to the old “fault” system to promote families.

Fault Lines

Demands for change mounted after a case was decided last year; a case which I wrote about at the time. The English supreme court ruled last year that a woman could not divorce her husband until a period of five years had elapsed. The Labor Party in England has also supported changing the law, which has remained unaltered for nearly 50 years

No-fault divorce was first introduced by the Family Law Act of 1996, but its provisions were later deemed unworkable and it was repealed. It has been widely supported by prominent members of the judiciary, lawyers and relationship charities.

There should be no law in our society that traps one human being into being married to another when they long to be free of them. That is just another form of slavery.

The Independent article is here.

 

Can You Lose Your Job in Divorce?

A court in Israel just ordered the nation’s largest commuter bus company to fire an employee because he refuses to divorce his wife. The company has 30-days to comply. Why would you lose your job for refusing to divorce? What if it is a religious divorce?

Religious Divorce

Divorce on One Foot

A Jewish couple from India, who have been married for over a decade, immigrated to Israel with their only child. The Husband has been accused of abusing his wife, and the situation worsened after they moved. Three years ago, the Wife filed for divorce, reconciled, and then renewed the religious divorce.

Israel’s divorce law is based on the Ottoman Empire’s old millet law. Unlike the United States, where divorces are handled by family courts, in Israel there are parallel courts involving divorce, the religious court and family court.

Additionally, divorce court may depend on which religious community you belong to because religious courts have jurisdiction of their own religious members. This means Muslims are divorced in Sharia courts, Christians divorce in ecclesiastical courts, and Jews divorce in Jewish courts.

In Judaism, religious law requires husbands to grant their wives a “get” – a Jewish bill of divorce to be a valid divorce. Ten months ago, a rabbinical court ordered the Husband to grant his Wife a divorce. But he refused, unless she waived her right to their joint property.

Florida Divorce and Religion

I’ve written about the intersection of religion and divorce a few times. Religion, religious beliefs, and religious practices are generally not considered in Florida divorces. Surprisingly for many, even when child custody is an issue, there are no specific statutory factors in determining custody on religious grounds.

Currently in Florida, child custody decisions are based in accordance with the best interests of the child.

As it relates to religion, Florida courts have decided that there must be a clear, affirmative showing that religious activities will be harmful to the child for religion to be a factor.

Egged On

The religious divorce court has imposed various financial sanctions on the Husband for refusing to divorce, including requiring him to pay his wife $410 a month as a sanction. But he still refuses to divorce her.

Last week, a panel of rabbinical judges granted the Wife’s request and ordered an Israeli bus company to fire the Husband within 30-days.

Yad L’Isha praised the decision. “Every creative solution like this gives great hope to other women that there are other ways to release them from the prison of their marriage”. Yad L’Isha is the world’s largest organization dedicated to helping women unable to obtain a Jewish divorce.

The Haaretz article is here.

Photo courtesy of Rickjpelleg

 

Short Term Alimony for a Three-Minute Marriage

In Kuwait, a newly married woman demanded a divorce within three minutes of signing her marriage contract. The Kuwaiti marriage is one of the shortest on record. But here’s an interesting question: what if she asked for short term alimony?

Short Term Alimony

Sands of Time

What lead to such an abrupt change of mind about nuptials? According to Kuwaiti news sources, the newly married woman tripped before exiting the courthouse with her husband after the judge married them.

Her newly minted husband made the “classic” new husband mistake: he started laughing at her for tripping and then called her “stupid”.

The bride became so infuriated with her new husband’s naïve mistake, she returned to the courthouse and demanded a divorce from the judge who just married them.

The Kuwaiti judge agreed and served an annulment just three-minutes after he originally married them. The couple, who live in Kuwait, never even left the courthouse as husband and wife.

So, is she entitled to any form of alimony?

Florida Alimony

I’ve written about divorce and the length of a marriage before. Florida Statutes actually define what the length of your marriage means. For example, in order to determine alimony, there is a rebuttable presumption in Florida that a short-term marriage is a marriage having a duration of less than 7 years.

Florida Statutes define a moderate-term marriage as a marriage having a duration of greater than 7 years but less than 17 years. And, a long-term marriage is a marriage having a duration of 17 years or greater.

How do you measure the marriage term? In Florida, the length of your marriage is the period of time measured from the date of your marriage until the date of filing of an action to dissolve your marriage.

In the Kuwaiti case, a three-minute marriage would be considered “short-term” under Florida law. Is there short term alimony for a short term marriage? The Length of the marriage is very important when it comes to determining the kind of duration of alimony payments. For example, permanent alimony is generally for longer term marriages if the statutory criteria are met. In shorter term marriages and for moderate term marriages, permanent alimony may be considered, but the burden of proof is much higher.

Conversely, bridge-the-gap alimony is generally awarded to allow a person to transition from being married to being single. So, bridge-the-gap alimony is designed for short-term needs. In fact, the length of an award bridge-the-gap alimony may not exceed 2 years.

Durational alimony helps provide a person with economic help for a set period of time after short or moderate length marriages or following a marriage of long duration if there is no ongoing need for support on a permanent basis.

The length of your marriage also factors in to property divisions. When a court divides the marital assets and debts, the court begin with the premise that the distribution should be equal. One of the factors a court can look to in justifying an unequal distribution includes the duration of the marriage.

Are congratulations in order?

Many on the internet who heard about the case responded in support of her choice, lauding her decision because, as one put it, “If this is how he acts in the beginning of their lives together, then its best she leaves now.”

Another responded, “Marriage without respect is a failed one from the start.”

A Twitter user commented: “This woman is a queen” In another case a bride who insulted her husband-to-be when she arrived at the altar and demanded the groom change his outfit. It’s believed to be the shortest marriage in Kuwait’s history.

The Khaleej Times article is here.

 

Child Abduction Defense

International child custody always has the potential of a wrongful abduction. A parent who keeps their child in another country after a vacation, may face accusations the retention is in violation of the Hague Convention. Is there an international child abduction defense?

Hague Convention on Child Abduction

I’m of course talking about The Convention on the Civil Aspects of International Child Abduction done at the Hague on October 25, 1980. The Convention created procedures for the prompt return of children who have been wrongfully retained.

I have written and spoken on international child custody issues and the Hague Convention before. The left behind parent will typically file an application with their local Central Authority for transmission to the Central Authority in the country where the retained children are.

The elements of wrongful retention under the Convention include:

  • the habitual residence of the child was in the country to which return is sought;
  • the retention breached custody rights;
  • the left behind parent was exercising custody rights; and
  • the child is under 16.

If proven, the Convention requires courts to order the child to be returned to the child’s habitual residence, unless the party removing the child can establish at least one of several affirmative defenses.

There’s a Defense to Child Abduction?

In fact, there are a few affirmative defenses which can be raised by the alleged taking parent to prevent a court from ordering the prompt return of a child to the child’s habitual residence.

Rights of Custody

A typical defense is that the left behind parent was not exercising rights of custody at the time of the retention of the child. A custody ruling from a court from the child’s habitual residence may establish a right of custody.

The Hague Convention does not define the key term “exercise” of rights of custody, but many courts have found that they should liberally find “exercise” when a parent keeps regular contact with the child.

Consent

Another defense which can be raised is consent. A court not have to order the return of a child if the alleged taking parent can show the left behind parent gave prior consent to the retention or afterwards acquiesced.

Well Settled

Although there are more defenses, another defense often raised under the Convention is that the child is now “well-settled” in the new environment.

A court is not bound to order the return of a child if the alleged taking parent can prove that the case was filed more than one year after the wrongful retention, and the child is now settled in the new environment.

The Convention does not provide a definition of the term “settled.” But, some things to consider can include

  • The child’s age;
  • The stability and duration of the child’s residence in the new environment;
  • Whether the child attends school or day care consistently or inconsistently;
  • Whether the child has friends and relatives in the new area or does not;
  • The child’s participation in community or extracurricular school activities

The Hague

Keep in mind that the Convention does not consider who, between the parents, should have custody. Instead, the goal of the Convention is to determine whether the child has been wrongfully retained and if so, return the child.

International child abduction cases have some defenses a parent may want to think about before consenting to the other parent taking a quick vacation overseas to see relatives.

More information from the State Department on the Convention is available here.

 

Divorce Dress Code?

There are a lot of curious family laws around the world, but a divorce dress code? One of the most peculiar laws comes from the African nation of Ghana, where divorce is permitted on one condition: the parties attend divorce court dressed the way they dressed at their wedding ceremony.

Divorce Dress Code

This is your Ghanaian Divorce

According to viral news reports – from such trusted sources as the internet – citizens of Ghana are allowed to divorce but only if they attend court dressed the same way they dressed at their wedding; with wedding gowns and tuxedos.

This condition creates very humorous situations in the so-called “Divorce Rooms”, where Ghanaians must go if they want to end their marriage.

In other African countries like in Togo, to be able to divorce, first you must go to your mother-in-law and explain your reasons for divorce in the hope you can receive her approval. Togo today may have a 0% divorce rate.

Florida Divorce

The official term for divorce in Florida is “dissolution of marriage”, you don’t need to show fault, and you definitely don’t have to wear your wedding gown.

Instead, you need to prove you have been a resident of the State of Florida for more than six months before filing your petition and be able to state under oath that your marriage is “irretrievably broken.”

Additionally, mental incapacity is grounds for divorce in Florida, but a court must determine one of the spouses to be incompetent after an examination by a committee. If there is a declaration of mental incapacity, there is a three-year waiting period.

While there are no dress codes in Florida, I’ve written about how you should dress in court before. For example, and as one couple painfully learned, don’t come to a custody hearing wearing your Nazi uniform. You should instead dress in a neat and professional manner.

Meanwhile in Nigeria…

Sure, the Ghana divorce dress code story is fake news. But the idea of dressing appropriately for court is a universal concept. It shows respect for yourself, your children, the court, and the people who labor in it.

In other news, it appears a Nigerian man really did marry his guitar in a ceremony in Lagos. Harris Best shared photos of himself and his guitar – which he dressed in a white wedding gown – on his Twitter account. He took other musical instruments to the wedding venue at Aguda Local Council Development Area in Lagos.

The PM News article from Nigeria is here.