Month: August 2020

Divorce Real Estate Problems: House Custody?

You can face many real estate problems in a divorce, but how about house custody? One unique case involves a couple which jointly owns a home, are both on the mortgage, and whose children left. She wants to be able to spend time living at their home alone. The husband disagrees and refuses to leave for any amount of time. Does she have the legal right to house custody half of the time?

House Custody

Brick and Mortar Issues

The New York Times article re-frames the issue as a case of a married couple, jointly owning a house, with equal rights to it. So, the article states both need to be in agreement about what to do with the property.

Neither of you can sell the house without the other’s consent, nor can you limit each other’s access to it. It’s as much his house as it is yours.

If they bought it together and maintained it together, it’s marital property and most likely it would be divided 50-50. Most likely, they would be both entitled to live there until the place is sold.

The article suggests that for the moment, set aside your immediate desire to share time at the house and, instead, figure out what you ultimately want for the house once your divorce is finalized.

Do you want to keep the house? If so, you may eventually need to buy out your husband when you divide your assets. Or do you want to move? In that case, your husband could either buy you out or you could sell the property and divide the assets.

Florida Divorce Real Estate Problems

I’ve written about real estate problems in divorce cases before. A big question frequently arises: should you move out of the house before the divorce is over?

Sometimes the arguing gets too intense, and the court must intervene. For one couple in Brooklyn, their arguing resulted in their being ordered to build a wall dividing their home so each could stay in the house peacefully.

This was not just a simple line on the floor as in the 1989 movie: War of the Roses, but an actual wall of plywood and sheetrock through the middle of their house (see picture above). Interestingly, the judge gave the wife the kitchen and the husband the dining room.

The marital home is a valuable asset, maybe your most valuable asset, but it is also a place for you to live in and it is an important, and possibly big part, of the final settlement. Consider the following:

Marital Asset

The home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process. If a home is marital then both parties have equal rights to buy–out the other’s share. Both may also be on the hook for liabilities.

Children’s Issues

Until a parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life. Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Cost

The person leaving may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.

If you Leave

Before moving out, there should be some discussions about maintaining the home and who is paying for which expenses, an inventory should be made of the personal property, artwork, silverware etc., and the boundaries for when the ‘out-spouse’ can use and enjoy the home after vacation

The New York Times piece correctly suggests thinking about your long-term goals. Once you’ve done that, try to reach a temporary agreement for how to weather this transition period.

That may mean that you alternate time spent in the house, or it may mean that one of you moves out, or that you both continue to live there until you can sell the property and move on with your lives. Moving out will have financial ramifications for both of you and those need to be carefully considered.

The New York Times article is here.

 

Interstate Divorces and Foreign Judgments

Interstate divorces can become a serious constitutional problem when you are enforcing foreign judgments. We recently won an important constitutional victory on appeal after a Florida divorce court refused to enforce a Missouri foreign judgment.

Interstate Divorce

Gateway to a United Country

A couple married in Missouri. Then they asked to borrow money from the Husband’s mother to buy a marital home in Missouri. The mother-in-law agreed to lend them the money for the down payment after the couple agreed to repay her in full.

The couple then asked that the Mother-in-law pay their mortgage payments and lend them even more money to renovate their new home they bought, with the same arrangement that they would repay her from the sale of their previous home.

They didn’t pay back the mother-in-law. Instead, they moved to Florida and defaulted.

The Mother-in-law sued them, and won a final judgment awarding her money from on the unpaid loan in a Missouri Circuit Court.

The parties then filed for divorce in Florida. The mother-in law was concerned her judgment would never be repaid, so she intervened in their divorce as a foreign judgment creditor to enforce her Missouri final judgment.

The Florida divorce court allowed her to intervene and enforce the Missouri judgment, but entered a new divorce final judgment slashing the mother-in-law’s Missouri judgment in half so the couple didn’t have to pay her back what they owed.

The trial court’s actions violated the Full Faith and Credit Clause of the United States Constitution, a constitutional clause which helps make us one country, not 50 independent countries.

Florida Interstate Divorce Issues

I’ve written and spoken about interstate divorce issues before. The typical interstate problems occur in cases in which two parents reside in one state, like Missouri for instance, then one or more of the parents and the children move across state lines to Florida, for instance.

Interstate problems can include enforcing foreign custody orders, enforcing or modifying family support orders (like alimony and child support), or enforcing foreign money judgments.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, interstate alimony, and child support. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) and Uniform Interstate Family Support Act (the UIFSA), which Florida and almost all U.S. states passed into law.

A major problem arises when one state’s judgment conflicts with Florida’s public policy. For example, grandparent visitation is an area of law in which Florida does not really recognize a grandparent’s rights, but many other states do.

A few years ago, the Florida Supreme Court the Florida Supreme Court held that Florida is not allowed to elevate its own public policy over the policy behind a sister state’s judgment.

Accordingly, a Florida divorce court cannot refuse to enforce a Missouri judgment for money damages if one happened to be at issue in a Florida divorce. But that’s exactly what happened recently in a divorce court here.

Sunshine State Meets the Show Me State

After the Florida divorce court’s ruling, we asked an appellate court in Florida to reverse what the divorce court had done. On appeal, a panel of judges reviewed the case.

We explained that the Full Faith and Credit Clause of the United States Constitution creates a constitutional duty that U.S. states must honor the laws and judgments of the other sister states.

That is an important aspect of American federalism because it changes the various U.S. states from being independent foreign countries, and making them integral parts of a single nation.

This form of federalism has traditionally meant that one state in the United States may not modify or alter the judgment of a sister state (excluding child support and custody cases which can be modified under very limited circumstances).

In our case, no one disputed the validity of the Missouri judgment. Everyone participated in a full trial on the merits in Missouri. In reversing, the appellate court held that a Florida divorce court was prevented from inquiring into the merits of the cause of action or the logic or consistency of the Missouri court’s decision.

Because the mother-in-law appropriately intervened in the divorce action and asserted her right to enforce the Missouri judgment, the divorce court did not have discretion to alter or reduce the Missouri judgment or it constituted a violation of the Full Faith and Credit Clause of the U.S. Constitution.

The appellate opinion is here.

 

Divorce Causes in India

Divorce can have many causes, but in India there is a bizarre case going on in which a Muslim woman has sought divorce in an Islamic court from her husband on the grounds that he does not fight with her enough.

India Divorce

The Spice of Life

The unidentified woman in the Sambhal district of Uttar Pradesh has sought a divorce from her husband after only 18-months of marital bliss. The woman approached the Sharia court in Sambhal to seek a divorce, leaving the court puzzled.

Why was the court so confused?

The chief complaint from the woman is that her husband loves her too much and does not fight with her. The woman claimed that her husband’s love was ‘suffocating’ her.

“He does not shout at me and neither has he upset me on any issue. He even cooks for me and also helps me in performing household chores.”

She further said, “Whenever I make a mistake, he always forgives me for that. I wanted to argue with him. I do not need a life where the husband agrees to anything.”

The Sharia court cleric, as expected, rejected her plea for divorce, terming it as frivolous. When the Sharia court refused to grant her divorce, the woman took up the matter with the local panchayat (the local self-government in villages in rural India), which also expressed its inability to decide the issue.

Florida No Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. So, whether your husband is always forgiving of your mistakes, or worse, very agreeable to anything you want, you don’t need to allege that as a grounds for divorce.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s nice demeanor. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. 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 annoying behavior in a government enforced quarantine.

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.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Divorce Bollywood Style?

Back in India meanwhile, the nice husband has gone on record and stated that he loved his wife dearly and always wanted to keep her happy. He also asked the Sharia Court cleric to reject the divorce plea. Of course.

The court has now asked the couple to resolve the matter mutually.

The Tribune India article is here.

 

The Force of Bifurcation in Divorce

The force of bifurcation proceedings in divorce rises again as Star Wars actor, Ewan McGregor and his wife of 22 years, Eve Mavrakis, asked for bifurcation before finalizing their divorce last week. Being declared unmarried in the eyes of the state before signing the final divorce papers is becoming the hottest move in Hollywood.

Bifurcation

The Divorce Menace

The actor filed for divorce in January 2018. But in November 2019, McGregor asked a judge to declare himself and Mavrakis single before they’d finalized their divorce in a move known as bifurcation.

The court must not have kept the details of McGregor and Mavrakis’s proceedings under lock and key, as People magazine has obtained the settlement.

The settlement details obtained by People are pretty revealing: Mavrajus received roughly $14,934 per month in child support for their youngest child, the only one of the four who is under 18. Mavrakis also reportedly receives an alimony amount of $35,868 each month.

Florida Bifurcation

I’ve written about various family law issues before. One of those issues is bifurcation. Sometimes, people need a divorce, and like all members of the Jedi Order (which prohibits marriage), need a divorce fast. But can you get an immediate divorce?

Put another way, when can a family law judge enter a dissolution of marriage final judgment, but reserve jurisdiction to determine all of the other issues in a divorce relating to custody, support, and property rights for later?

In a highly unusual procedure, there’s also a trifurcated dissolution. The family law court first dissolves the marriage. Then separates the remainder of the financial issues, and reserves on timesharing and child support for the children.

The real issue is bifurcation, and it is a split procedure of entering a final judgment to divorce and keep power over the case to determine all the other issues. The practice is rare and limited to special cases.

In general, family law judges try to avoid this kind of split procedure. The law is designed for one final judgment and one appeal of divorce. Splitting the process can cause a lot of legal and procedural problems which result in delay and additional expense to people.

So, in Florida this split procedure is really only used when it is clearly necessary for the best interests of the parties or their children. The convenience of two law professors to remarry would not justify its use.

The Dark Side

McGregor and Mavrakis, who’s a French-born production designer, separated in 2017, so there was an argument that anything McGregor made after that point would not be subject to the division of assets. However, the judge designated his 2018 Disney film, Christopher Robin, for which he earned $3,000,000, community property—meaning that Mavrakis would be entitled to her share of the earnings.

in a judgement purportedly obtained by People, McGregor, 49, and Mavrakis’ divorce was finalized o with a judge appointing both of them joint legal and physical custody of their youngest child.

The two have agreed to continue to “have a flexible custodial schedule to accommodate” their daughter’s schedule, according to the documents.

The two have also split their assets, although any earned income from films or TV series McGregor has starred in the past — such as Fargo, the Star Wars prequels, the Trainspotting films, Big Fish, Moulin Rouge, Emma and Now You See It, among others — are considered community property and all residuals and royalties will be split with Mavrakis.

McGregor and Mavrakis met on the set of the British TV crime series Kavanagh QC, and they were married in 1995. Mavrakis is a production designer who was born in France and raised in China. She also served as a production interpreter on the Chinese set of Steven Spielberg’s 1987 movie Empire of the Sun.

A family source confirmed the two had separated in May 2017 amid news McGregor was spotted kissing his Fargo costar, actress Mary Elizabeth Winstead.

After winning the Golden Globe for best performance by an actor in a limited series or motion picture for television in 2018, McGregor thanked Mavrakis and Winstead, 35, in his acceptance speech, saying, “I’ve always loved being an actor and hanging out with actors and I got amazing actors to work with on this and it wouldn’t be any Emmett or Stassi without David, Michael, Carrie Coon and there would be no Rey without Mary Elizabeth Winstead so thank you very much.”

McGregor pointedly thanked his ex during his acceptance speech, saying, “I want to take a moment to thank Ev, who always stood beside me for 22 years and my four children, I love you.”

The Vanity Fair article is here.

 

Equitable Distribution of Personal Injury Awards

Comedian Tracy Morgan is not amused a court may have to consider the equitable distribution of his multi-million-dollar personal injury award after his terrible accident. Less than a month before his fifth wedding anniversary, he and his Wife announced they filed for divorce.

personal injury

The Rock

“Sadly, after nearly five years of marriage, Megan and I are filing for divorce,” Morgan confirmed in a statement to E! News on Wednesday, July 29.”This is a challenging time for all involved, so I ask that you please respect our privacy.”

It’s also been three years since a Walmart truck slammed into the back of Morgan’s limo van on the New Jersey turnpike. His friend, comedian James McNair, was killed and two others were seriously injured.

Morgan suffered a broken leg, broken ribs and what his lawyer describes as a “traumatic brain injury.” One year after the crash, he talked about the long road to recovery.

The truck driver in the accident, Kevin Roper, later pleaded guilty to vehicular homicide. Walmart took full responsibility for the crash and awarded Morgan and one of the other passengers a settlement that has been reported to be as high as $90 million.

Will Tracy’s wife be entitled to any of the personal injury settlement between Walmart and Tracy?

Florida Divorce Personal Injury Awards

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

When distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

What about a $90m personal injury award? The supreme court of Florida has held that in determining whether a worker’s compensation award is marital property, the trial court should use an analytical, rather than a mechanistic or unitary, approach.

The court should consider the purpose of the award and focus on the award’s “elements of damages.” Only that portion of damages paid to the injured spouse as compensation for past lost wages and loss of earning capacity is to be considered marital property and subject to equitable distribution.

Damages for future loss of earnings and loss of earning capacity and future medical expenses are considered to be the non-marital, separate property of the injured spouse.

Keep in mind that the award may be considered in fashioning alimony and support awards.

The Hard Place

Wollover, 33, made the request in her divorce filing. She also wants the “30 Rock” star to pay her alimony as agreed upon in their prenuptial agreement, which they signed on Aug. 5, 2015.

Morgan, 51, filed his response one day after Wollover and requested joint legal and shared residential custody of their daughter, according to docs. He also wants the court to allocate parenting time “in the best interests” of Maven.

“Sadly, after nearly five years of marriage, Megan and I are filing for divorce,” Morgan said in a statement to Page Six following Wollover’s divorce filing. “This is a challenging time for all involved, so I ask that you please respect our privacy.”

The news of Morgan’s split comes just a few months after he made comments about their sex life while in quarantine during a TV interview in April.

On a more serious note, in an interview with Oprah Winfrey after recovering from the car crash, he called Wollover “a strong woman” for how she oversaw his treatment in the hospital.

“I’m glad I’m here,” he told Winfrey during their sit-down at the time. “I’m glad my wife is over there.

The E online article is here.

Divorce Strategy During the Pandemic

Divorce strategy during the pandemic is on people’s minds because, even in the best of times, marriage and relationships are hard work. As the Wall Street Journal reports, the pandemic has produced a pressure cooker inside homes, straining even strong partnerships and, experts say, likely breaking others.

divorce covid strategy

The Virus Among Us

Families are cooped up, with spouses trying to work while also taking care of their kids. Job losses, caring for at-risk elderly parents, arguments over what’s safe, and disagreements over school reopening are all taking a toll.

Susan Myres, president of the American Academy of Matrimonial Lawyers (AAML), which represents 1,600 members nationwide, says she expects new divorce filings to increase somewhere between 10% and 25% in the second half of this year.

Florida, unlike many state courts have been processing divorce and custody filings and are back to a manageable case flow. Many AAML member attorneys are reporting that we have received more queries than normal since the pandemic in March.

More than one-quarter of adults said they know a couple likely to break up, separate or divorce when the coronavirus pandemic ends, according to an Ipsos poll of 1,005 people conducted at the end of July.

In Charlotte, N.C., one attorney has consulted with 263 new clients on divorce issues from April to July compared with 217 clients in that same period a year ago, says Nicole Sodoma, founder and managing principal of the firm.

Summertime is usually when separating parents make the transition to two households, giving themselves time to acclimate before the school year begins. But courts have either been closed or backed up, she says, and many clients have felt stuck. “It’s added stress to an already stressful situation,” she says.

Florida Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.

I’ve written about divorce and the Coronavirus before. In order to divorce in Florida, you need to file a petition for dissolution of marriage in the family court. No grounds are necessary, such as “COVID-19” or “my house is a pressure cooker.”

The no-fault concept in Florida means you no longer have to prove a reason for the divorce. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. 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 Pressure Cooker

In some cases, tensions created from the effects of the shutdown, quarantine, and pandemic, can mount into violence. The National Domestic Violence Hotline says total contacts—calls, texts and online chats—increased 9% to more than 62,000 in the period from mid-March to mid-May, compared with the same period a year earlier.

Spouses who experienced greater external stress, from work stressors to financial problems, had lower relationship satisfaction than couples with fewer external stressors.

Even in the most communicative partnerships, there is more stress. “We have a strong marriage,” says Courtney Westling, a public-schools official in Portland, Ore. “But this has not been easy.” She and her husband of seven years, Mike, have spent recent months negotiating new work spaces in their home as well as child care for their sons, ages 3 and 5.

Strategy for Stress

The Covid pandemic has put strain on households and is testing marriages and relationships. Here are a few strategies.

Keep in mind this is a unique situation. When your spouse does something that upsets you, it’s easy to veer into blaming it on some character flaw. That is not a good sign. Couples that tend to see “situational attribution,” do better.

“If I have the mentality that this is because of the situation and not my partner, that should be beneficial.”

Think twice about big relationship decisions. Clients under marital duress should take a step back and pause. Recognize that everyone is under added strain, and that a partner’s on-the-surface behavior may really be about something deeper.

Maybe what you don’t recognize is that your spouse is actually anxious about the uncertainty, maybe his job or some underlying health issue, and it causes them to act out. But that doesn’t mean it’s the end of a marriage. That’s particularly true in a relationship that had previously been solid, she says.

“Recognize that we are not living in ordinary times.”

Don’t forget to play! The world feels heavy right now, and so it is more important than ever to find joy. Take advantage of the added time with your partner to find moments to laugh and have fun. And if those moments don’t come to you, make them. You need to create moments of play.

“Go out for a run, listen to a podcast together, spend time in nature. Play is not only how children learn, but it is also how we refresh ourselves.”

Creating lighthearted moments is also a useful tool in reminding ourselves what attracted us in the first place to our partners. Remember that this is the same person, but this is just a short period in time.

The Wall Street Journal article is here.

 

Straight Outta Court

Dr Dre is wondering if his prenup will get him straight outta court. He announced that he and his wife Nicole Young are getting divorced after 24-years of marriage. Young filed for divorce from Dre, whose real name is Andre Romelle Young, citing irreconcilable differences. One of the interesting issues is whether Young signed a prenuptial agreement.

Compton

Straight Outta Compton

The couple, who married in May 1996, share two children together, son Truice, 23, and daughter Truly, 19. Dre also has four children from previous relationships, daughters Tyra Young and La Tanya Danielle Young, and sons Marcel and Curtis.

The music mogul, 55, and Young, 50, announced their split after 24 years of marriage in June, and Dre revealed that the couple, who wed in 1996, does have a prenuptial agreement, despite initial reports that indicated the two do not. Young is asking for spousal support and a division of property.

In 2019, Forbes estimated that Dre’s net worth was $800m, making him the second-wealthiest hip hop artist in the world that year. The rapper’s fortune is in part due to the success of his headphone line, Beats by Dre, which was acquired by Apple in 2014 for $3bn.

According to TMZ, Dre, who listed the date of their separation as March 27, 2020, and cited irreconcilable differences as the reason for their split, agreed to pay spousal support but says any distribution of property should be controlled by their prenuptial agreement. Young’s petition did not mention a prenup and the outlet reported that she has claimed she never signed one.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just protecting yourself after your marriage. A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry.

A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important for those who boldly go into fourth marriages.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment. Many couples divorcing would prefer not to spend too much time litigating in family court.

That’s where prenups come in. Prospective spouses may limit or expand state laws by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce.

There are many problems with prenuptial agreements too. If a prenuptial agreement includes any provisions that violate the law or public policy, it may automatically be deemed invalid.

Additionally, a prenuptial agreement cannot waive child support, and can’t set an amount for child support. Courts have plenary power over support issues, so child support amounts are determined by courts based on our child support guidelines.

Also, a premarital agreement may not be enforceable in a family court case, for instance, if it was not signed voluntarily; or if it was the product of fraud, duress, coercion, or overreaching.

Deez Prenups

The 55-year-old, who started his career as a member of the rap group NWA, also founded the record label Aftermath Entertainment, which previously signed Eminem and 50 Cent.

In 2015, Dre apologized to “the women I’ve hurt” following allegations of physical abuse against women, telling The New York Times:

Twenty-five years ago I was a young man drinking too much and in over my head with no real structure in my life. However, none of this is an excuse for what I did. I’ve been married for 19 years and every day I’m working to be a better man for my family, seeking guidance along the way. I’m doing everything I can so I never resemble that man again.

This divorce, given the stakes and the profiles of the parties, is expected to be completed relatively quickly and privately. Generally, anything he acquired before marriage would be his separate property, with or without a prenuptial agreement. Dre sold Beats during the marriage so there may not be a separate, or non-marital, component to it – meaning there is a very large sum of money that is at stake as marital property.

Young is going to get half of what he’s worth very likely, but while Dr. Dre has claimed he is willing to pay spousal support, Young probably won’t need spousal support after the marital estate is divided. She asked for temporary support and she may be able to get hundreds of thousands of dollars a month before the case is resolved. The couple was last seen together in public in February at the Tom Ford fashion show.

The Independent article is here.