As we prepare for the arrival of Hurricane Ian, you are advised that our law office, all Miami-Dade County clerk offices, and all Miami-Dade County courthouses will be closed on Wednesday, September 28th and Thursday, September 29th. We will be working remotely to help address all of your family law concerns. Reach out to us by phone or email. We’re prepared to support you.
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How a family court decides the equitable distribution of boudoir photos, complete with intimate inscriptions and nude photographs, is never easy. A Utah family court recently ordered a woman to hand over her most intimate photographs to her ex-husband and a third-party photographer he chose.
A former wife was married for 25 years and together for 27. As expected, the process of splitting their assets would be complex in a long marriage. The issue became so complex, negotiations failed and a one-day bench trial had to be held.
After the trial, the family judge ordered the former wife to surrender her most intimate photographs of herself to a third-party photographer for editing, and then ordered that the edited photos be given to her ex-husband for his viewing pleasure.
“You don’t know where to turn because you don’t know the law and you have not only your ex-husband who you were married to for years (thinking) that forcing you to distribute basically porn is OK … you have his attorney that also thinks that’s OK. And then you bring it in front of a judge, and he thinks it’s OK.”
The family court’s finding of facts dated July 7th — the day the divorce was finalized — found that the nude photos were given as gifts to the former husband earlier in their marriage, and therefore he “has the right to retain them and the memories they provide.”
The court also found the former wife has a right for her intimate photos to not be in her ex-husband’s possession. So how did the family judge decide the steamy issue? The judge ordered her to turn the images over to the original photographer for editing.
That person is then to do whatever it takes to modify the pages of the pictures so that any photographs of the former wife in lingerie or that sort of thing or even without clothing are obscured and taken out, but the (photo inscriptions) are maintained for the memory’s sake.
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.
However, 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.
In Florida, nonmarital assets which are not divided include things such as assets acquired before the marriage; assets you acquired separately by non-interspousal gift, and assets excluded as marital in a valid written agreement.
Conversely, marital assets which are subject to division, generally include things like assets and liabilities acquired during the marriage, the enhancement in value of some nonmarital assets – and for anyone giving their spouse a gift of sensual boudoir photographs – interspousal gifts during the marriage.
Despite the ruling, the original photographer refused to edit the images over a concern about ethics and legal repercussions to her photography business. Being a boudoir photographer, her clients trust her with their images and privacy, and the photographer took that responsibility seriously.
The judge then made a second ruling, and ordered the former wife to give the images to a different photographer for editing. She was also ordered to retain the original photos for 90-days before destroying them, in case her ex-husband wasn’t satisfied with the edits.
The former wife said her ex-husband isn’t happy with the edited photos, though she feels that she has complied with the court’s order, and she feels that her ex-husband’s demand for the photos was an attempt to control and hurt her.
“If all he was truly interested in was the inscriptions, he got those. I’ve complied with the court’s order, even though I believe strongly that (the) order (is) violating on many levels and has affected my emotional and mental health. I can’t imagine doing this to someone else.”
The ex-husband said his former wife’s description of the situation is her perspective. This is not my perspective nor the perspective of an impartial judge. It appears that she has intentionally misrepresented and sensationalized several aspects of a fair proceeding to manipulate the opinions of others for attention and validation of victimhood.
One attorney was quoted as saying equitable distribution in a divorce always involves a balancing of interests but the judge here has just made a mistake in the balancing of interests and has tipped things much too far in one direction.
The Salt Lake Tribune article is here.
Every year international child abduction cases are reported to the Congress by the U.S. Department of State. These annual Action Reports show Congress the actions taken against countries determined to have been engaged in a pattern of noncompliance. So, which countries in our hemisphere were noncompliant?
Under the Hague Convention, the State Department is tasked as our Central Authority. The Central Authority facilitates implementation and operation of the Hague Convention on child abduction in the U.S.
After passage of the Sean and David Goldman International Child Abduction Prevention and Return Act, the State Department was later assigned the duty of submitting annual Action Reports on International Child Abduction to Congress on the specific actions taken in response to countries determined to have been engaged in a pattern of noncompliance.
The 2022 Annual Report is an overview of the Department’s efforts to support the resolution of international parental child abduction cases.
The Department also reports on their work with foreign governments and authorities to promote procedures to encourage the prompt resolution of existing international abduction cases. The aim is that, in general, international custody disputes should be resolved in the competent court of the country of the child’s habitual residence.
Countries which don’t meet their Convention obligations, or fail to work with the U.S. to resolve child abduction cases, can face “appropriate actions.”
I’ve written and spoken about international child abduction cases under the Hague Convention before. The Hague Convention seeks to deter child abductions by a parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”
The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. Then in 2014, the International Child Abduction Prevention and Return Act was signed into law.
Even if a country is a signatory country and treaty partners with the U.S., returning a wrongfully retained or abducted child may still be complicated because some signatory countries are not complying with the Convention. That is where the State Department’s Action Report comes in.
ICAPRA increases the State Department’s annual reporting requirements. Each year, the Department not only submits an Annual Report on International Child Abduction to Congress, it submits another report on the actions taken towards countries determined to have been engaged in a pattern of noncompliance.
The State Department Action Report includes both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention, and countries where no treaty relationship exists.
The 2022 Action Report reviews the results of cases which were resolved the previous year. Some of the countries in our hemisphere which failed to regularly implement and comply with the Hague Convention include Argentina, Belize, Costa Rica, Ecuador, Honduras, Peru, Trinidad and Tobago, and Brazil.
Brazil has had the Convention in force with the U.S. since 2003. Brazil has also demonstrated a pattern of noncompliance for years. Complaints have criticized its judicial authorities for failing to regularly implement and comply with the Convention, and failing to take appropriate steps to locate children in abduction cases. Brazil has previously been cited for a pattern of noncompliance since 2006.
Brazil is also the country where David Goldman had to fight for his son Sean to be returned to the United States after his wrongful retention by his mother. Sean was only returned to the U.S. after 5 years. The Goldman’s bitter experience in Brazil led to the passage of the ICAPRA.
However, the country of Brazil is not entirely on siesta. Among other steps, Brazil increased its number of Hague Network Judges, published a manual for judges hearing Convention cases, and resolved eight U.S. cases on file – including the return of six children to the United States.
ICAPRA also adds steps the U.S. can take when a country refuses to cooperate in the resolution of overseas abduction and access cases involving American children. The steps can include: a demarche (a petition or protest through diplomatic channels); public condemnation; delay or cancelation of official, or state visits; suspension of U.S. development assistance; and even the withdrawal or suspension of U.S. security assistance.
The 2022 Action Report is available here.
The increase in international divorce rates, due in part to changes in the nature of family and family life, can be seen thoughout the Arab world. Lebanon, in particular, is reporting a marked jump in divorces as more statistics become available.
The Arab world is not insulated from the profound socio-economic changes around the world, and this is evident from the rise in the number of couples choosing to separate in several Middle Eastern and North African countries.
A recent study by the Egyptian Cabinet’s Information and Decision Support Center found that Kuwait, Egypt, Jordan and Qatar are the Arab countries with the highest divorce rates.
In Kuwait, 48 percent of all marriages end in divorce, 40 percent in Egypt, 37.2 percent in Jordan, 37 percent in Qatar, and 34 percent in both the UAE and Lebanon.
Sheikh Wassim Yousef Al-Falah, a Shariah judge at Beirut’s religious court, told Arab News recently:
“On some days, we have up to 16 divorce cases in this court alone. The increasing divorce rate is a phenomenon that we have not seen before, although we do not favor divorce and focus on reconciliation.”
Experts believe this trend has been driven by a combination of economic pressures, evolving societal norms, legal reforms and, above all, the changing role of women.
I’ve written international divorce rates before. In the United States, many complained that no-fault divorce led to an increase in divorce rates here. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.
Proving fault 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.
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.”
Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.
Through much of history, especially among the more conservative cultures of the Arab world, a woman’s place was long considered to be in the home, handling the needs of the family, while male relatives studied and went to work.
Now, as Arab nations modernize their economies and reform their legal systems, women are becoming more independent, increasingly pursuing higher education, progressing in their careers, and choosing to marry and have children later in life.
As a result, Arab women have developed a keener awareness of their civil rights, personal ambitions and self-respect. They increasingly refuse to tolerate domestic violence and are capable of supporting themselves financially.
“The current statistics compiled by the religious courts that handle the personal status of Lebanese citizens and foreigners residing in Lebanon reflect an increase in divorce requests, especially those submitted by women.”
In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationship also appears to play a part in marriage breakdown.
Reforms to the legal status of women in Lebanon have drawn particular attention in recent years, with the introduction of a slew of legislation designed to protect them from sexual harassment and domestic abuse. However, human rights monitors say the reforms do not go far enough.
Lebanon’s 2019 financial collapse and the effects of the COVID-19 pandemic appear to have piled further pressure on relationships as living standards plummeted, people lost their jobs and households were forced into long periods of constant close proximity under lockdown.
Several countries around the world reported spikes in domestic violence during the pandemic and Lebanon is no exception. The nation’s economic woes and disruption to court procedures during the health crisis appear to be making matters worse.
The figures for divorce in Lebanon might be somewhat skewed by the growing use of marriage as a means of gaining citizenship in another country, as waves of young people move abroad in search of better opportunities.
In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationships also appears to play a part in marriage breakdown.
Lebanese citizens will often move between sects to facilitate a divorce. Couples from the Maronite sect, for instance, the courts of which forbid the annulment of marriage in all but the most extreme circumstances, might turn instead to the Catholic or Orthodox sects, which allow the annulment of marriages.
They might even turn to the Sunni sect to access divorce procedures before converting back to their original sect. According to Shariah, divorce — known as khula — has been permitted since the time of Prophet Muhammad.
Obtaining a divorce in a Sunni religious court is considered easier than in a Shiite religious court, after these courts developed new rules that raised the age for child custody, amended the dowry and banned underage marriage.
Family values are cherished in Arab culture, and authorities — both religious and secular — tend to prefer that parents stay together for the sake of their children. Experts believe marriage counseling, better education for young couples, more open discussions about relationships, and even a relaxation of the social taboos surrounding premarital social interaction between men and women could help reduce overall divorce rates.
The Arab News article is here.
Questions arise about a parent’s right of custody in every international custody case, especially Hague Convention child abduction cases. A Colorado district court recently had to make the tough call whether a parent lost his rights of custody after a domestic violence injunction was put in place against him.
In February 2015, an Australian citizen and a United States citizen married in Las Vegas. They lived in the U.S. for the next two years before traveling to Australia with their three-month-old son – who was born in Australia. They lived a nomadic lifestyle, taking numerous trips, moving frequently between rental properties, staying occasionally with family and friends, and camping in a trailer and tent.
In April 2021, while staying at an Airbnb, the parents had an argument which resulted in the Father being escorted to the police station. By the time he returned to the Airbnb, the Mother had left. The Mother had also obtained a temporary protection order against the father based on allegations of domestic violence.
The domestic violence protection order provided the Father:
must not approach to within 100 metres of where [Mother or the children] live[ ], work[ ] or frequent[ ]—except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order under the Family Law Act or when contact with a child is authorised by a representative of the Department of Communities (Child Safety).
The order also provides that Father “must not contact or attempt to contact or arrange for someone else (other than a lawyer) to contact” Respondent or the children . . . and “must not follow or remain or approach to within 100 metres” of Mother or the children. The order was subsequently made permanent for a period of five years.
In May 2021, the Mother and the children came to the United States, and they have lived in Colorado ever since. The Father filed an action seeking return of the children under the Hague Convention and in breach of his custody rights under Australian law.
I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child.
The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Rights of custody can arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.
The Colorado judge found that the Father failed to show what custody rights, if any, he retained under the Australian Family Law Act. After the domestic violence injunction was made permanent for five years, the Father had the burden to prove what his rights of custody were after the injunction — a prerequisite to establishing that his children’s removal was in breach of his rights of custody.
The Father gave no evidence or testimony on the matter and the Court did not want to assume what remaining rights he had after the order and whether they were substantial enough that removal of the children breached his rights.
Not every court has held that the entry of a domestic violence injunction meant the loss of rights of custody under the Hague Convention. In a Maryland case, a court found that a domestic violence injunction was aimed at protecting the safety of the Mother, rather than rescinding parental rights of the Father. Accordingly, the domestic violence injunction was not found to be the equivalent of an order rescinding parental rights.
The case is available here.