Month: September 2020

Your French Divorce

Now that France has created an out-of-court divorce option, travel to Paris could be a ticket to your French divorce. In order to make the divorce process simpler and less expensive, France has streamlined the system, but there are some pitfalls for non-French people.

French Divorce

C’est la vie

In France it is now possible for couples to divorce without going through a long and sometimes expensive court process by signing a divorce agreement – but this may not be ideal for couples where one or both person is not French.

On January 1st 2017, the divorce par consentement mutuel (divorce by mutual consent) was created, allowing couples to acknowledge their consent to divorce in an extra-judicial contract without a court proceeding.

To divorce by mutual consent, it is essential that couples agree on all aspects of their divorce with the help of their respective lawyers. They especially need to settle the consequences of the divorce on their children (custody and residence), on their assets and all financial measures (alimony and compensatory allowance).

The consent reached by the couple is then set out in a divorce agreement, prepared by the parties’ lawyers. Following a 15-day cooling-off period, the divorce agreement is signed by the spouses and countersigned by each lawyer.

Once signed, the agreement is submitted to a French notaire for registration. Registration is what makes the divorce agreement enforceable in France. Signing a divorce agreement is the quickest way to divorce in France.

While the duration clearly depends on how the negotiations between the couple progress, it is technically possible to sign and register a divorce agreement in France within approximately one month.

Florida International Divorce

International divorce often brings up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case? The answers are more difficult than people think as I have written before.

A British divorce, for instance, might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. In France, the financial disclosure requirement is weaker, each party is not necessarily required to answer detailed financial forms.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.

The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

No tears and no hearts breaking

Currently it is not possible to sign the divorce agreement remotely. Both spouses and their respective lawyers need to be physically present on the day of signing.

The French National Bar Association clearly indicated, on February 8th 2019, that:

“the divorce agreement by mutual consent without a judge must be signed in the physical presence and simultaneously by the parties and the attorneys mentioned in the agreement, without substitution or possible delegation”.

International couples should however be very careful when signing a divorce agreement as not all countries recognize this type of divorce. As the divorce agreement is entered into out of court – except when a minor child requests to be heard in court – public authorities from certain countries do not recognize and enforce this type of divorce.

In practice, this means that, a couple having signed and registered a French divorce agreement, would be considered as divorced in France, however still be married in their home country/countries if local authorities refuse to register and enforce the contract.

The Local article is here.

 

Marriage Penalties

Although Florida doesn’t have a state income tax, many people moving here from other states and seeking divorce, frequently ask whether our state has marriage penalties built into the tax code. The Tax Foundation has the answer.

marriage penalty

What is a Marriage Penalty?

A marriage penalty is when a household’s overall tax bill increases due to a couple marrying and filing taxes jointly. A marriage penalty typically occurs when two individuals with similar incomes marry; this is true for both high- and low-income couples.

In other words, a marriage penalty arises any time a married couple pays higher income taxes than they would have paid if they were un-married and filed individual tax returns.

At the federal level, the Tax Cuts and Jobs Act of 2017 definitely lowered the cost of being married for many couples. But being married can be more expensive than being two single tax filers on April 15th.

For example, if a couple has children and both spouses earn income, they can owe thousands of dollars every year just for being married.

Some states have their own income tax. Under a graduated-rate income tax system, a taxpayer’s marginal income is exposed to progressively higher tax rates.

A marriage penalty might exist when a state’s income brackets for married taxpayers filing jointly are less than double the bracket widths that apply to single filers.

Put differently, married couples who file jointly under this scenario face a higher effective tax rate than they would if they filed as two single individuals with the same amount of combined income.

Florida Divorce and Tax

I’ve written about divorce and taxes before. For example, in 2012 the 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.

State Marriage Penalties

While Florida doesn’t have a state income tax, fifteen states have a marriage penalty built into their bracket structure. Seven additional states (Arkansas, Delaware, Iowa, Mississippi, Missouri, Montana, and West Virginia), as well as the District of Columbia, fail to double bracket widths, but offset the marriage penalty in their bracket structure by allowing married taxpayers to file separately on the same return to avoid losing credits and exemptions.

Ten states have a graduated-rate income tax but double their brackets to avoid a marriage penalty: Alabama, Arizona, Connecticut, Hawaii, Idaho, Kansas, Louisiana, Maine, Nebraska, and Oregon.

The ability to file separately on the same return is important in states that do not double bracket widths, as is the ability to do so even if the couple files jointly for federal purposes.

While married couples have the option of filing separately—though some states only allow this if they do so on their federal forms as well—this normally creates a disadvantage, because it either disallows or reduces the value of deductions and credits available to the family jointly, which is also a form of marriage penalty.

Filing separately on the same return eliminates this problem, though at the cost of slightly greater complexity than doubling tax brackets for joint filers so that there is no penalty for filing jointly.

The Tax Foundation article is here.

 

Dr. Dre, Divorce, and Dissipation

Rapper, Dr. Dre, and his wife Nicole Young’s divorce is in the news again as she is alleging dissipation in court documents, that Dre “secretly” transferred “valuable trademarks” they jointly owned — both the name “Dr. Dre” as well as his hit album The Chronic— after allegedly kicking her out of their home in April.

Dissipation

What’s the Difference?

Some couples divorce amicably, recognizing that a divorce is best concluded when they come to a quick and fair resolution as soon as possible so they can get on with their lives.

For other couples, divorcing is a lot more difficult. In high conflict cases, greed, anger, and spite are overwhelming, and the process can quickly spiral into all-out war fought over every dollar.

A common dirty trick in divorce is to “dissipate,” or waste, marital assets. When a person tries to dissipate assets, it means they are intentionally squandering marital property to prevent his wife from getting her fair share of it in the divorce settlement.

In the lawsuit, Young alleges that shortly after being “forced to leave their family home,” Dre, 55, registered a new holding company and then began transferring “highly valuable trademarks,” misrepresenting himself as the sole owner.

“Andre’s plan all along was to deny Nicole’s ownership rights,” the lawsuit alleges, claiming that the transfers were made before Dre threatened to file for divorce on June 27. Young went on to initiate proceedings two days later, on June 29.

Although Young claims she has “demanded return of the trademarks,” Dre has “failed and refused to do so. It is inequitable and unjust to retain ownership of the trademarks, and the value they hold, without paying Nicole or allowing her to maintain her equal ownership,” the lawsuit alleges.

Young is seeking damages in an amount to be determined at trial and wants the trademarks in question to be transferred to a trust.

Florida Divorce Fraud

I’ve written about various aspects of divorce and fraud before. In Florida, courts distribute the marital assets, such as bank accounts, between parties under the premise that the distribution should be equal, unless there is a justification for an unequal distribution.

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.

Another important factor 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.

Dissipation of marital assets, such as taking money from a joint bank account, and transferring money and assets into separate accounts. In both cases, the misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.

Misconduct, for purposes of dissipation, does not mean mismanagement or simple squandering of marital assets in a way the other spouse disapproves. There has to be evidence of intentional dissipation or destruction.

Big Egos

Young, who filed for divorce in June after 24 years of marriage, is asking for nearly $2 million in monthly temporary spousal support and is also seeking $5 million in legal fees, according to court documents previously obtained by People.

Young has claimed that her husband’s “net worth is estimated to be in the ballpark of $1 billion” in the filing, adding that he earned much of that sum during their marriage.

The rapper previously filed a response, revealing that the couple had a prenuptial agreement — despite initial reports that said they did not have one. Young, however, has disputed the validity of that agreement, claiming that she was forced to sign it and that Dre ripped it up, rendering it invalid after they were married.

The People article is here.

 

Cardi B, Divorce, and Infidelity

Singer Cardi B has filed for divorce from rapper husband Offset because of his alleged infidelity. The divorce petition was filed in Georgia, and there is an initial hearing scheduled for November. Many have asked whether infidelity is grounds for a divorce.

Cardi B Divorce

No Longer Migos

Belcalis Marlenis Almánzar, known professionally as Cardi B, became an Internet celebrity and her debut album was number one on the Billboard 200, broke several streaming records, was certified triple platinum and named by Billboard the top female rap album of the 2010s.

Kiari Kendrell Cephus, known professionally as Offset, is a member of the hip hop and trap music trio, Migos. The couple married in 2017 in a secret ceremony.

Our relationship was so new breaking up and making up and we had a lot of growing up to do but we was so in love we didn’t want to lose each other, was one morning in September we woke up and decided to get married … No dress no make up and no ring.

Their daughter, Kulture, was born in July 2018 – Cardi B’s first child and Offset’s fourth. Cardi B is reportedly seeking primary custody, and child support from Offset.

Florida Divorce and Infidelity

I’ve written about the impact of infidelity and divorce before. In practical terms, adultery as a crime poses very little threat of prosecution, but it could have other consequences.

“Cheating on your spouse can even be grounds for losing your job. This is particularly true in the military, where adultery has a maximum punishment of a dishonorable discharge.”

Chapter 61 discusses the “the moral fitness of the parents” as one of the factors the court considers in determining the best interests of a child. Adultery may impact the division of property. Proof that one spouse intentionally wasted marital assets could be seen as dissipation of assets. Adultery of either spouse could be a factor in determining the amount of alimony, if any, to be awarded.

There are times when evidence of adultery comes into evidence. Most often it doesn’t. In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that sexual activity between consenting adults is legal.

Bad and Boujee

Their relationship has had high-profile ructions. Following rumors of Offset’s infidelity in 2017, Cardi B said:

“No, it’s not right … But what you want me to do? Start all over again and get cheated on again? This shit happens to everyone.”

The couple stayed together but briefly split in December 2018, with Cardi B saying: “Things just haven’t been working out between us for a long time … we just grew out of love.”

Offset publicly pleaded for a resolution, saying:

“I was partaking in activity that I shouldn’t have been partaking in, and I apologize. For breaking your heart, for breaking our promise, for breaking God’s promise and being a selfish, messed up husband.”

They reconciled in January 2019. But could he “walk it like I talk it?” Their divorce ends one of the highest-profile celebrity relationships in the US. Cardi B is among the world’s most successful and respected rappers – after breaking through in 2017 with US No 1 hit Bodak Yellow she has had three other No 1 singles, more than any other female rapper.

They collaborated with Cardi B on the 2017 single MotorSport. Offset has also released a successful solo album, Father of 4, featuring a hit track, Clout, with Cardi B. He has also guested on US Top 10 hits with Kodak Black and Tyga.

The Guardian article is here.

Photo by Frank Schwichtenberg – Own work.

Free Speech and Domestic Violence

In family law, when a cyberstalking complaint consists of social media posts, free speech and domestic violence can clash. In a recent case, a domestic violence court prohibited one Florida lawyer’s social media comments about the other lawyers in her case.

Cyberstalking

Injunction Junction

Florida lawyer Ashley Krapacs filed a petition for a domestic violence injunction against her ex-boyfriend and represented herself at the DV hearing. Attorney Russel J. Williams represented her Ex.

After Krapac lost the hearing, on jurisdictional grounds, she wrote an article about the opposing lawyer, saying that he lied to the judge on the record during these proceedings. As a result, Williams hired his own attorney, Nisha Bacchus, to sue Krapacs for defamation.

Krapacs responded by writing several social media posts disparaging the new lawyer, Bacchus, with personal insults for representing Williams in the defamation suit against her.

Then Krapacs created a blog post which claimed Bacchus filed a frivolous lawsuit against her, accused her of being a bully, and included a vulgar insult. She tagged Bacchus in more posts and hurled insults at Bacchus and her law firm and identified the car Bacchus drove.

In one of her final Facebook posts, Krapacs stated she was going to connect with Bacchus’s former clients to sue her for malpractice. Bacchus sought to stop this by filing a petition for an injunction, alleging Krapacs was cyberstalking her.

The DV judge entered the injunction and limited Krapacs’ use of her office space since both Krapacs and Bacchus had offices in the same building. The judge also prohibited Krapacs from posting on social media about Bacchus and ordered her to take down all the offending posts about Bacchus.

Krapacs appealed.

Family Law and Free Speech

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also mean cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Cyberstalking and Free Speech

The appellate court felt Krapacs’ actions did not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.

Retagging in social media posts for four hours constituted, in the court’s view, one instance of qualifying conduct under the statute. The other acts Bacchus complained of were deemed to be constitutionally protected and did not qualify as additional instances of repeated stalking.

The court also found that the injunction prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites, and requiring her to take down all social media and internet posts that reference Nisha Bacchus was overbroad.

While the appellate court held that her comments could not be subject to an injunction, it did find that Krapacs was not immune from civil liability for her actions and could face money damages.

Then there’s the Florida Bar, which then filed an emergency suspension petition against Krapacs. The Bar viewed her social media tweets, posts and comments as arising out of the opposing lawyers’ representation of clients who were litigating against her.

The Bar called Krapacs strategy “terrorist legal tactics” and felt it was prejudicial to the administration of justice.

After a hearing, the referee recommended a two-year suspension from the Florida Bar. The Florida Supreme Court reviewed the case, disapproved of the two-year suspension, and instead disbarred her.

The opinion is here.

 

Strategy if Your Spouse Files for Divorce

There is some strategy for you to consider if your spouse asks you for a divorce. MSN discusses some things you could do immediately to protect your personal and financial interests. Obviously, it is difficult to focus on money when your marriage is ending, but you need to make sure that you reach a fair and equitable divorce settlement too.

divorce strategy

A Few Good Moves

You wouldn’t end a business partnership without first determining that all assets were divided fairly. The same holds true for dissolving a marriage. Focus on the following things immediately if you learn that your spouse is planning to end your union.

Hire a good attorney

According to MSN, hiring a lawyer is crucial. Your goal: Find an experienced advocate who will put your personal and financial interests first. Never share the lawyer with your spouse. Make sure you feel comfortable with the attorney.

Get referrals for attorneys from your trusted friends, family members and business associates, but keep in mind you want a lawyer who specializes in family law and divorce, preferably someone board certified as a specialist by your state’s Bar Association, and who is very involved in the legal community.

Monitor your credit reports

Protect yourself by preventing your spouse from running up large or unnecessary bills at this time. For now, at least, you may be responsible for half of any joint expenses.

“You know your spouse better than anyone else. If you know they’re not trustworthy, or they have a gambling problem, or you both are in a lot of debt, that tells you there are financial warning signs.”

Monitoring your credit score and credit reports before, during and after a divorce will ensure that your credit is safe and that no one else is using your name to borrow.

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 before. In order to divorce in Florida, you need to file a petition for dissolution of marriage in the family court.

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.

But there is some additional strategy to protect yourself.

Consider Closing joint accounts

To protect your credit rating, you may want to consider closing credit accounts that your spouse has access to. The idea is to prevent your spouse from incurring large debts before the divorce is final.

With joint credit cards, you are liable for any debts taken on by your spouse, says Sarah Carlson, a certified financial planner in Spokane, Washington.

If your spouse can’t pay the debts he or she runs up on your joint accounts, you may be held responsible.

Determine how much money you’re entitled to

When people divorce, many financial issues are tied to the size of the marital estate. To help you determine which assets you’ll be entitled to in a divorce, you’ll need to understand how much you and your spouse are worth, separately.

“For example, identification of an income-producing asset may be helpful for determination of child support and maintenance issues, while also affecting the division of the marital estate”.

Your job: Find out which assets are in your name and which belong to your spouse.

Protect your savings

It is easy to use up your cash quickly in a divorce. Safeguard your joint assets by asking your financial institutions to require two signatures for withdrawals.

“We generally don’t advise doing this with a regular joint checking account that is continuing to be used for household expenses, because that can become cumbersome. But we do advise dual signatures for any savings or investment accounts.”

Keep things as friendly as possible

Starting your divorce on an amicable note will make the proceedings easier and less time-consuming. From the beginning, work to keep things civil.

When you spend time bickering over minor issues, the only people who benefit are attorneys billing you by the hour.

“If ever there was a time to pick your battles, this is it. If you fight over every detail of your divorce, the fights will be never-ending, and that will impact your emotional state and your wallet.”

Talk with your children

The needs of children sometimes can be overlooked when parents divorce.

The best way to break the news of a divorce to children is for both parents to explain that their relationship is changing, making it clear that both parents love the children and the parents respect each other, says David T. Pisarra, a family law attorney in Santa Monica, California.

The Mayo Clinic advises parents to spend time explaining to children what is happening. Let them know that the separation isn’t their fault and that you will continue to care for them.

The MSN article is here.

 

Enforcing or Modifying Your Marital Settlement Agreement

We scored another big appellate win which sheds light on the question: are you enforcing or modifying your marital settlement agreement when a family court requires the continuation of soccer and other extra-curriculars?

The Beautiful Game

In our recent appeal, the parents had three children. After less than a decade of marriage, they divorced in Portugal, but they never had a parenting plan for their children. After they both moved to Miami with the children, a family court ratified their agreed parenting plan.

Under their parenting plan, they agreed to certain extracurricular activities, including organized activities such as soccer, lessons and special training. However, the sports and activities had to be mutually agreed on by the parents in accordance with Florida’s shared parental responsibility statute.

All of the children’s current extracurricular activities, especially ‘the beautiful game,’ soccer, were agreed upon by both parents. Additionally, they agreed that the parent exercising time sharing with the children handle the transportation with the necessary equipment.

Although all three of the children were traditionally dedicated to sporting activities, their involvement in youth soccer travel teams had increased, requiring more of a time commitment because the children are expected to attend frequent practices, and regularly traveling outside of their local community for games and tournaments.

The father filed a motion to stop the soccer commitments of the children and to eliminate his obligation to transport the children to certain competitive events during his timesharing.

The family judge heard his motion, and, after considering the relative merits of the parties, along with the language reflected within the parenting plan, entreated the parties to reach an agreement as to enrollment and participation in the relevant activities.

When that failed, the court conducted another hearing and authorized the mother to re-enroll the children in their respective leagues and directing the father to transport the children to those competitive events scheduled during his timesharing.

He appealed.

Florida Marital Settlement Agreements

I’ve written about modifications and enforcement of marital settlement agreements before. Most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities, and often times: soccer and other extra-curricular activities to which the parties have agreed.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. The enforceability and modifications of contracts in Florida is a matter of importance in Florida public policy.

Because a marital settlement agreement is treated like any other contract, and is subject to interpretation like any other contract, they can be enforced by the court. Unique to marital settlement agreements though, they may be modified too.

But sometimes it is difficult to tell whether the court’s action is a modification of a contract or the enforcement of a contract. Our recent appellate goal hopefully sheds some light on that distinction.

Goal!

Ruling in our favor, the appellate court wrote an opinion stating that under the principle of shared parental responsibility, major decisions affecting the welfare of the child are to be made after the parents confer and reach an agreement.

However, in cases in which the parents cannot reach agreement on such a decision, the dispute should be presented to the trial court for resolution. In resolving the impasse, the lower tribunal must be guided by a consideration of the best interests of the child.

In our case, the parenting plan allows for shared decisions over extracurricular activities, but prohibited the unreasonable withholding of consent. So, the court was properly permitted to explore the facts and circumstances surrounding both continued participation and transportation.

At the time the parents signed the parenting plan, the children were already heavily involved in soccer. By including a provision that the “present extracurricular activities are agreed upon by both parents,” and allocating continuing enrollment expenses and other relevant allowances for league travel, the agreement clearly anticipated a continuation of such participation.

Further, as the trial court did not “change the status quo [or] alter the rights and obligations of the parties,” but merely rejected the unreasonable withholding of consent, we conclude the decision was grounded in enforcement of the existing 7 terms of the judgment, and affirmed.

The opinion is here.