Month: January 2023

China’s Divorce Laws Mean Fewer Marriages

China may be learning an old lesson that strict divorce laws can mean fewer marriages. In addition to the country’s recent worries about the imminent decline in its population, the number of people in China getting married for the first time has been dropping too.

Strict Divorce Law

Hidden Dragon

Although China has 1.4 billion people, the most in the world, its births are set to fall to record lows this year, demographers say, dropping 11.5% from 2020. China’s fertility rate in 2021 was below the OECD standard for a stable population, and among the lowest in the world.

Over the past year or so, China has enacted tax deductions, longer maternity leave, enhanced medical insurance, housing subsidies, and extra money for a third child, but the desire among Chinese women to have children is the lowest in the world.

Adding to the problem is China’s diminishing marriage rate, which slumped again. The number getting married for the first time dropped to 11.6 million last year, almost 700,000 down on the previous year. This was well down on a peak of 23.9 million in 2013.

Faced with mounting fertility problems and a soaring divorce rate, the ruling Communist Party in China introduced a rule last year to keep unhappy marriages together by forcing couples to undergo a 30-day “cooling off” period before finalizing a divorce.

The new law appears to have worked, according to government officials, marriage registration authorities have seen a drop in divorces that many local governments claimed was because of the controversial measure.

But along with that decline in the divorce rate, the number of marriage registrations plunged to a 36-year low in 2021. The fall in marriages has contributed to a plummet in birthrates, a worrying sign in China’s rapidly graying society and a phenomenon more familiar in countries like Japan and South Korea.

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.

I’ve written about divorce trends before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. 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 Great Wall to Marriage

Posters on social media in China have hailed the “wise” decision made by young people not marrying, and said they too would not be getting married. One user wrote:

“Marriage is like a gamble. The problem is that ordinary people can’t afford to lose, so I choose not to take part.”

The controversial measures enacted by the Chinese Communist Party have led to a dramatic fall in the divorce rate but critics have said it disadvantages women, particularly those without an independent source of income.

A divorce seeker has to wait for 30 days after making an application, and longer if the partner refuses to get divorce. Not to mention many people’s divorce requests were not approved even when they were suffering from cheating and domestic violence.

The director of the Guangdong Population Development, told Yicai news:

Young people face increasing life pressures, and cannot afford the burden of getting married, which traditionally involves buying a house and raising children. Young people prefer the freedom of single life.

The average age of people who get married for the first time also increased significantly, from 24.89 in 2010 to 28.67 in 2020, according to the China Population Census Yearbook 2020. A 2021 report published by iiMedia Research also highlighted growing numbers of people consciously identifying themselves as celibate.

Four per cent of 3,900 single respondents between the age 20 and 45 identified themselves as “steadfast celibates”, with another 21 per cent describing themselves as “less-determined celibates”.

Most of the self-declared celibates were women over 30, who were better-educated with a higher income in first-tier cities, according to the report.

The South China Morning Post article is here.

Changing Gender and Child Custody

Florida courts do not weigh a parent’s gender when determining child custody. However, in some countries, gender matters. Why? Because the law can make a presumption that during a child’s “tender” years, around age four and under, the mother is awarded child custody. One father in Ecuador decided to tilt the odds in his favor by changing his gender.

Gender Custody

Paying the Cuenta in Cuenca

On the morning of December 30, 2022, in the dusty town of Santa Ana de los Cuatro Ríos de Cuenca, Ecuador, René Salinas Ramos decided to change his gender from male to female and fight for custody of his two daughters. Salinas had a major complaint about the country’s child custody laws. Namely, the laws gave more rights to the mother than the father.

“My actions are not against anyone in particular but against the system. Being a father in this country, Ecuador, is punished and seen only as a provider.”

The Father was interviewed by La Voz del Tomebamba radio. During the interview he showed his new country ID card, which has his new gender data, “FEMENINO.” However, his ID contains the same names with which he was enrolled with originally over 47-years ago.

While the ID card has his gender as “femenino”, he still identifies himself as a cisgender male. Ecuador passed a law in 2015 that allows people to legally change their gender on government-issued documents.

Florida Child Custody

I’ve written about child custody before. Unlike Ecuador for example, Florida does not apply the “tender years doctrine” anymore. Florida has the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child, not the gender of the parent, is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required, and of course, the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

It is also the public policy of Florida that each minor child has frequent and continuing contact with both parents after the parents separate and to encourage both parents to share the rights and responsibilities, and joys, of childrearing.

When it comes to the parents’ gender, Florida makes no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

In Florida, the court must order that the parental responsibility for a minor child be shared by both parents unless shared parental responsibility would be detrimental to the child.

Género, patria y libertad!

According to Salinas, his daughters live with their mother in an environment in the midst of violence. These allegations of violence are reportedly denounced. Salinas boasts that now that he is a woman, he can be a mother and is on an equal footing to fight for the parental authority of his daughters.

“It is more than five months that I do not see my daughters. I can also be a mother, I know how to cook, give love, iron and other activities of a mother.”

However Salinas never explained what prevents Salinas from approaching the children. In the Father’s opinion, justice is biased in favor of women when it comes to parenting and, according to Salinas, to be on an equal footing, he no longer wants to be called dad, but mom.

“The laws say that the one who has the right is the woman. As of this moment, I am female. Now I’m also a mom, that’s how I consider myself. I am very sure of my sexuality. What I have sought is that I want to be a mother, so that I can also give the love and protection of a mother.”

Until this matter is resolved the children have to stay with their mother he told the media. The law is taking away our right to be parents and changing his official ID to show a new gender “is a proof of love.”

Salinas Ramos is reportedly the first man in Ecuador to use gender laws to gain the upper hand in a custody battle, and news of the gender change has set off criticism from transgender activists in the South American country.

Money may also be an issue. According to reports, the judicial system portal may reflect that the Father maintains a debt with his former and current spouse. This amounts to $10,766 for alimony.

Regarding the breach of this responsibility, Salinas justified that in the case of the current spouse he made an agreement, because he paid all the basic services and school obligations. Additionally, he mentioned a document signed by the mother in which she renounces the debt, but Salinas did not show it, and the document does not appear to be recorded in the computer system either.

Salinas hopes that the issue of the possession of girls will continue to be debated not only at the social level, but also in the Assembly. He acknowledged that after his gender change on the ID he has received calls for support from organizations and even politicians, but he does not want the issue to be mixed with the campaign and preferred not to approach them.

The La Voz Del Tomebamba article is here. (en Español)

Shucking Child Custody and Freedom of Speech

Constitutional guarantees of freedom of speech and child custody rights are in for a shucking when an Indiana family court modifies a marital settlement agreement. Years after a divorce, one of the parents discovers religion. The parents end up back in court on a petition to modify custody and prohibit a parent from talking about religion.

Going Back To Indiana

The parents of a daughter were divorced in September 2012 after the trial court accepted the parties’ settlement agreement. Pursuant to their agreement, the parties shared joint legal custody of the Child, the Father paid weekly child support, the Mother was the Child’s primary physical custodian, and Father exercised parenting time.

Then in 2022, the Mother filed a petition to modify, asserting a substantial change in circumstances in that she and the Child changed churches, and she and the Child now attend Seymour Christ Temple Apostolic.

Since changing churches, the Child stopped painting her nails and now wears only long skirts. The Child attends church three times a week, on Sunday morning and Sunday evening for services and on Thursday night for youth group.

The Mother admitted the Child was baptized without informing Father until after the baptism occurred. Mother testified she wanted the trial court to modify the parenting time to eliminate the Father’s ability to question the Child’s religion or try to talk the Child into believing that there is no God.

The Father testified he is an agnostic. He denied telling Child “there wasn’t a God” and testified he had not tried to “convince her the church she goes to isn’t something she should be attending. He said he wanted Child to make her own choice about religion.

The judge conducted an in camera interview with Child, and concluded:

The Court finds that [Child] has made an independent well-reasoned decision about her faith, which should be respected and encouraged.

The Court awarded the Mother sole legal custody of the Child, primary physical custody, and ordered that the Father shall not discuss religion with Child. The Father appealed.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father, and ordered:

“Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes. The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

“Ope, sorry!”

On appeal, the Father argued the family judge erred when it modified custody based solely on religious beliefs and prohibited him from talking about religion with his Child.

In Indiana “religion” is not one of the statutory factors a trial court must consider when making a decision to modify child custody. Modifying custody based entirely on religion then – even if the Child expressed an interest in participating in religious activities at a church – was not a substantial change in circumstances to justify changing custody.

The appellate court also found the First Amendment of the U.S. Constitution – which prohibit the government from restricting expression because of its message, its ideas, its subject matter, or its content- was also violated.

In this case, the family court judge never found the Father was discussing religion with Child in a way that had a negative impact on her. The Mother testified Child “cries is withdrawn presents with a rash and/or hives, and her face is puffy” after visiting with Father. However, Mother did not specifically attribute Child’s reactions to discussions of religion between Father and Child.

The Mother did not testify about a specific instance during which Father spoke to Child about religion in general, much less a time when Father disparaged Child’s religious views or attempted to persuade Child there was not a God. For his part, the Father testified he never told the Child there was no God. In fact, he wanted the Child to make her own choices about religion.

Even if the Child had reported that Father was disparaging her religious views and telling her there was no God, the trial court’s total prohibition of Father’s right to discuss religion with Child is not narrowly tailored to further the State’s compelling interest in protecting Child’s welfare.

The family court judge’s order totally prohibiting Father from discussing religion with Child violated his right to free speech under the First Amendment. Because the appellate court reversed, it decided it did not need not address whether the order also violated his freedom of religion argument.

The Court of Appeals of Indiana opinion is here.

Is January Divorce Month?

The BBC reports that the first Monday of the New Year has long been known among U.K. solicitors and counsellors (in the U.S. lawyers) as “Divorce Day”. However, in Wales and increasingly around the world, it appears this divorce phenomenon is turning January into “Divorce Month”.

Divorce New Years

New Year, New You

One law firm in the U.K. has reported to the BBC that enquiries in January have spiked at about 150% of the November, December and February average. A relationship counselling charity also said it had seen an increase in couple’s asking for help.

“In terms of stressors on a relationship, Christmas can be right up there with moving house or having a child. There’s the pressure of being cooped up at home with your extended family, or at the other end of the spectrum, not seeing as much of them as you’d like because of work commitments.”

The phenomenon on divorce filings in January is not unique to Wales either. In general, many family lawyers in North America report a rise of nearly one-third in business in the New Year. In fact The president of the American Academy of Matrimonial Lawyers (the AAML), says he typically sees a spike of 25% to 30% every year in January.

Being cooped up in a house for several days when a marriage is experiencing serious problems — while dealing with the pressure to put on a happy face for the kids and visiting relatives — takes its toll on the most stoic of couples.

Holiday time is usually a time when U.S. lawyers (in the U.K. solicitors and counsellors) get a spike in consultations and in being retained by clients. Holiday time is usually fraught with a lot of tension, emotion and financial issues, which is usually the trigger.

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.

I’ve written about divorce and statistics – such as the the new year phenomenon – before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. 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.

Wailing in Wales

In Wales, one lawyer reports rising inflation and costs for good is having an impact on filing for divorce this year. He is finding that there is increasing anxiety over the rise of prices, and wailing about how to heat the home, never mind finding money for Christmas presents. He also reported the Christmas break was a snapshot of what couples experienced during the height of the Covid pandemic.

One charity said many couples expected their relationships to come under increased strain over the coming months, with financial worries, mental health problems and the pressure to create the perfect Christmas cited as reasons.

The pressure seems to be universal, across all ages, married or cohabiting, and straight or same-sex relationships, though the causes do vary according to their age. For the under 35s money worries account for about half the problems identified, with the difficulties of having to live with parents if you can’t afford your own home, and the increase in prices.

However for older couples other factors come into play, such as parenting, and the toll of caring for elderly relatives in an aging population. Communication is vital at any stage of a relationship, but especially so in the early days. Often counselling can help them to understand what has gone wrong, to part as amicably as possible, and avoid making the same mistakes in future relationships.

In Florida, you can file for divorce, and then you have a period of time before you have to serve the papers. Most unhappy spouses wait until after the turkey has been carved, the gifts have been unwrapped, and the new year has started.

The BBC article is here.

Equitable Distribution of the Marital Home

My hometown newspaper, The Miami Herald, weighs in on the problems couples face with the equitable distribution of their home during a divorce. The view is from the perspective of real estate agents around the country. In a perfect world, couples sit down together, and figure out the best time and price to sell their house. But of course, divorce is not a perfect world.

selling marital home divorce

Miami Vices

During a divorce, people react differently, sometimes badly, when it comes time to sell their homes. According to many real estate agents, in an attempt at a power play, one spouse simply disappears. And in rare cases, both spouses can vanish before the home is sold.

Divorce is an emotionally charged event, and often one spouse will take a hike when they believe the other one is exerting too much control over the situation. Sometimes, they disappear before an agreement is reached on how to sell the house. But once in a while, a soon-to-be ex takes off after the place is sold but before the deal goes to closing. If they never come back, the transaction can easily fall apart.

But some real estate agents think that it is better to take off and cool off, than act out in an aggressive manner. One real estate agent reported that one of her colleagues was once threatened with a machete. In another instance, emotions were so high that and agent had to sit between warring spouses at a closing.

Florida Equitable Distribution

I’ve written about equitable distribution of the marital home during a divorce 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.

Generally, 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 opportunities to buy the other spouse’s share. Both may also be on the hook for liabilities.

Until a parenting plan for the children is 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 create problems, and it can be costly, and prohibitive expensive to rent a new place if the process takes a long time.

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, there are also a multitude of problems with selling the marital home during a divorce, as many real estate agents will tell you.

Love It or List It!

One way agents have dealt with angry spouses is not to allow them to be in the same room together. Some suggest interact with clients separately. Another way is for the couple to hire a skilled team in real estate sales and divorce. But many say that the best way is to sit down together and discuss the situation as calmly as possible.

While the joy of living under one roof may have been lost during a divorce, couples could be living together as housemates until the home is sold – if it is sold at all. Whether the house is sold or not, it’s better to negotiate calmly about who will get what, or how the expenses will be handled. If the home is sold, couples must decide: How to divide the proceeds, and how utilities and other household expenses will be handled.

If addressed early on, before tempers flare, it will go a long way toward making your remaining time together as bearable as possible. Actually, you have to keep your cool until the day after you have sat down at the closing table. You can blow off steam after the closing, but don’t let your pent-up anger scuttle the deal at the closing.

One agent reportedly was working with a client seeking to buy a house from a couple who was in the middle of a divorce. When it came time to close, the wife refused to sign the documents until her soon-to-be ex-husband agreed to pay off a “very large” credit card bill that had nothing to do with the house. He didn’t pay. She refused to sign. The buyers didn’t get the house. A lawsuit could result.

The Miami Herald article is here.