Year: 2024

North Korea Divorce Requirements

Posted by Ron Kauffman on

North Korea, similar to many countries, has requirements to initiate a divorce proceeding. Just as many U.S. states have requirements before filing for divorce, North Korea has its requirements too. Frustrated by the number of divorces, the Supreme Leader of North Korea has just added a new requirement: any couple that divorces will now be sent to labor camps.

North Korea Divorce

Your North Korean Divorce

Kim Jong Un, at 42 years of age, is North Korea’s “Supreme Leader”. He is also the “general secretary of the Worker’s Party”, and the “marshal of the Korean People’s Army”. Kim Jong Un follows in his father’s and grandfather’s footsteps and rules the socialist paradise of North Korea.

As “Comrade General Secretary”, Kim Jong Un recently declared that dissolving your marriage demonstrates anti-socialist sympathies, which therefore warrants punishment. This declaration from the “Marshal of the Democratic People’s Republic of Korea” represents a toughening of existing divorce laws, which previously only punished the party seeking the divorce — even in cases of physical abuse.

The “Sun of Juche’s” new divorce law, in an effort to protect the family structure, requires that spouses be imprisoned once the divorce is finalized. As one resident of the northern Ryanggang province reportedly said:

“I went to the Kimjongsuk County People’s Court … where 12 people received divorce decrees. Immediately after the verdict, they were transferred to the county labor training camp. Until last year, when a couple divorced, only the person who first filed for divorce was sent to a labor training camp. Starting this month, all divorced couples will be sent to labor training camps.”

According to Kim Jon Un, who is sometimes known as the “Only and Unique Successor and Leader of the Juche Revolution”, the act of divorce is not only considered an affront to socialism, but also to the Confucian values that tie into the thinking of those in the north and south.

Florida Divorce Requirements

I have written on divorce jurisdiction issues, such as residency and other requirements to obtain a divorce, many times before. Similar to North Korea, Florida has its own requirements to obtain a divorce. For example, Florida has a six-month residency requirement before filing for divorce.

Durational residency – as a pre-condition to divorce – has been considered by many courts and upheld as a valid requirement. The Supreme Court of the United States has consistently recognized the unique status of marriage and has left the entire field of marriage and divorce laws to the individual states.

Florida has a compelling state interest in requiring a durational residency so that Florida avoids intruding on the rights and interests of other states that might otherwise be paramount. There is another important reason.

Domicile of a divorcing party is essential, not merely because of technical jurisdictional rules, but because a divorce can be obtained ex parte, by constructive service of process which can have permanent future effect on the lives and property of third persons as well as the rights of sister states.

Accordingly, U.S. states must go slow, must be careful, and owe a duty to other states and other affected parties to make a record in support of a divorce final judgment that can withstand collateral attack and which will merit full faith and credit by other states.

Stigmatizing Divorce

The foundation of North Korean-style socialism, with its emphasis on the people and the masses, depends on whether family cells are managed effectively. That’s why – to North Korea’s “Brilliant Comrade” – divorce is considered an abnormal event and the breakup of the family.

Broken families are classified as social problems, and the children of these families often do not get along with other children and suffer various forms of discrimination, such as not being called on in school.

The socialist party’s firmly held position is that revolutionizing the family is equivalent to revolutionizing society and that improving the members of the family is equivalent to improving members of society. As a result, government officials who are divorced are considered to have failed to revolutionize their family, and are often unable to rise in rank or hold important positions.

Notwithstanding the “Beloved Father’s” efforts, reports from North Korea show divorce rates increased on the back of the Covid-19 lockdown. Initially, the “Father Marshal” started an education campaign to prevent, specifically women, from getting divorces.

To prevent divorces, lectures were given to members of the Socialist Women’s Union, the largest women’s organization in the country, under the theme:

“Let’s thoroughly eliminate the phenomenon of divorce and build a harmonious family, the cell of society.”

When that didn’t work, the “Supreme Leader of our Party, State and Armed Forces” tried other deterrents. The most obvious deterrents, publicly shaming the parents of divorcees, and publicly shaming the officials of  state owned companies responsible for high divorce rates among the workforce, were applied.

Surprisingly, given the socialist party’s campaign and other deterrents, divorces did not significantly decrease. So, the “Respected Comrade Supreme Leader” had no real choice but to act even more punitively by sending divorcing couples to forced labor camps. As one resident is reported to have said:

My brother divorced after three years of marriage. His wife first submitted a divorce application to the court and received a divorce ruling. She was sent to a labor camp for six months, while he has to do one month.

The London Evening Standard article is here.

Syrian Dictator and Divorce Jurisdiction

Posted by Ron Kauffman on

When you are the Wife of a Syrian dictator living in Russia, and mass graves are found in your home country, divorce jurisdiction may become a big issue. According to press reports, the former first lady of Syria, Asma al-Assad, the wife of the deposed Syrian dictator, Bashar al-Assad, has filed for divorce in England while living in Russia.*

Divorce Jurisdiction

Syrian Saga

Asma Fawaz al-Assad is the former first lady of Syria. She has been the wife of Bashar al-Assad during his tenure as president-for-life from 2000 until he was overthrown December 2024. She was born to Syrian parents in London, she was also raised in London, and holds dual British and Syrian citizenship.

Bashar al-Assad is a the ousted Syrian dictator who has ruled Syria since 2000 after the death of his father, president-for-life, Hafez, who ruled Syria from 1971 until 2000. In November 2024, a coalition of Syrian rebels mounted a military offensive in Syria. Earlier this month, as rebel troops entered Damascus, the Assads fled Syria to Russia, and were granted asylum.

According to international press reports, Asma al-Assad is seeking to leave Moscow for England. Because she holds both British and Syrian citizenship, she is rumored to have started consulting with a family law firm in England.

There are also reports that Asma al-Assad has already filed for divorce from Bashar al-Assad in a Russian court, and has requested special permission to leave Moscow for London to pursue her divorce there.

Florida Divorce Jurisdiction

I have written about jurisdiction before. Generally, jurisdiction is the power of the court to hear a certain controversy, like a divorce. If the court does not have jurisdiction over the subject matter, or the parties to the divorce, any final judgment entered can be void or voidable and unenforceable.

Florida has jurisdiction to act in a divorce case if one of the parties has been a resident of Florida for six months before the filing of the petition for dissolution of marriage. In addition to jurisdiction over the subject matter, a court will need to have personal jurisdiction over the parties to the divorce.

One cannot simply  stipulate to the court’s jurisdiction of the subject matter, the court must actually have jurisdiction over the subject matter.

When children are involved, jurisdiction requires additional steps under the Uniform Child Custody Jurisdiction and Enforcement Act. The general purposes of the Act are to avoid jurisdictional competition and conflicts with other courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

No Depo in Aleppo

Although the Assads sought refuge in Russia after they fled Syria, Bashar Assad’s situation in Russia remains tightly regulated. Russian authorities have imposed strict restrictions on him, such as preventing him from leaving Moscow or engaging in any political activity. His request for a special permit to leave the capital is currently under review.

The Kremlin has also taken significant economic measures by freezing his assets and wealth held in the country, a move that strengthens Russia’s control over the movements of the Assad family while limiting their future influence. Russian authorities have frozen 270 kilograms of gold, $2 billion, and 18 apartments in Moscow.

The situation is particularly complex for Maher al-Assad, Bashar’s brother, whose asylum request is still pending. He and his family are currently under house arrest awaiting a decision. The possible departure of Asma al-Assad, who may be suffering from cancer, could further weaken the already perilous situation of the family in Russia.

The Albawaba article is here.

*  The Kremlin recently denied reports that Asma al-Assad sought a divorce and wanted to leave Russia.

Marital Settlement Agreements and Divorce Agreements

Posted by Ron Kauffman on

Marital settlement agreements are a matter of course in a divorce ending in settlement. However, a divorce agreement is not the same thing as a marital settlement agreement. A court in China has to decide whether an agreement to divorce is valid after a mistress paid a wife to divorce her husband, but the wife kept both the money and the husband.

Divorce Agreements

鱼与熊掌，不可兼得 (You can’t eat the fish and the bear’s claw too)

In December 2013, a man named Han married his wife, Yang, with whom he had two daughters whose ages remain undisclosed. Han started an affair with a colleague, a woman named Shi. They also entered into a business partnership and welcomed a son together in November 2022.

In an attempt to “replace” Han’s wife, Shi confronted Yan with a proposal. Shi offered to pay the Wife 2 million yuan ($280,000) if the Wife agreed to divorce her husband Han. As a down payment, and to initiate the agreement, Shi transferred 1.2 million yuan to the Wife at the end of 2022.

But incredibly, more than a year later, the Wife still had not consented to a divorce. Frustrated, the mistress demanded her money back and then filed a lawsuit to recover the 1.2 million yuan after the wife refused to return it.

Over a year after receiving the money, Yang still had not agreed to a divorce, prompting the mistress to take her to court. In the lawsuit, Shi claimed there was a “verbal agreement” that the payment was contingent upon Yang divorcing Han and requested the court to order Yang to return the money along with overdue payment interest for breach of contract.

Florida Marital Settlement Agreements

I have written about 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, alimony, child support, and any other items 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 of contracts in Florida is a matter of importance in Florida public policy.

A marital settlement agreement is recognized as conducive to marital tranquility and public policy. But contracts intended to promote a divorce will be declared illegal as contrary to public policy. The reason for the rule lies in the nature of the interest of the State. The state’s interest in the preservation of marriage is the basis for the rule that a divorce cannot be awarded by consent of the parties.

胸有成竹 (Be confident)

Back in China, the Shishi People’s Court in China ruled against Shi’s request, stating that the payment violated societal moral standards and public order as it was intended to disrupt a lawful marriage. Additionally, it was determined that Han and Yang had already signed a divorce agreement and were in a “cooling-off period”, which meant that the payment did not meet the legal conditions for a refund.

This “cooling-off” period, imposed by the Chinese government in 2021, requires couples to wait 30 days after submitting a divorce application before the separation is finalized. It has also been revealed that during his marriage, Han spent over 6 million yuan ($825,000) on Shi without his wife’s knowledge.

The court denied Shi’s refund petition, stating the payment violated societal morals and public order by aiming to disrupt a lawful marriage:

“Any significant assets acquired by a married man during the affair, without his wife’s consent, are considered jointly owned by the couple. The wife has the legal right to demand the return of her share from the third party.”

It remains unclear whether Han might face legal repercussions for potentially committing bigamy by living with and having children with someone else while still legally married. The case has sparked lively discussion on Chinese social media, with many describing the outcome as “justice served”.

The South China Morning Post article is here.

Hague Convention and the Mature Child Exception

Posted by Ron Kauffman on

A  common international custody issue under the Hague Convention involves a wrongfully removed child when there is an exception to being returned home. One such exception is the mature child exception. How mature does a child have to be in order to avoid being returned to the child’s habitual residence? A recent Florida case analyzes that question.

Hague Mature Child 2

Oh Mexico

The Father and Mother are the parents of a child born in Mexico in 2013. They lived together in Mexico until approximately one year after the child was born. After their separation, a Mexican court granted custodial rights and child support obligations. The custody order also contained a clause which prohibited Mother from removing minor child from Mexico without Father’s consent.

Then in December 2022, the Mother abducted the child to the United States. After learning his child was abducted, the Father filed a return petition under the Hague Convention in Florida.

The Mother opposed returning the child by arguing that the child was “sufficiently mature and intelligent to object to being repatriated to Mexico.” The trial court conducted an in-camera interview with the child who was then ten years old and had been exclusively with Mother in Florida for over a year. The child testified she lived in an apartment with Mother and her little brother and was attending school and taking English classes. She enjoyed playing at parks and wanted to join a football team.

She also admitted seeing Mother crying and being told by Mother that Father wanted minor child to go back to Mexico and that “I’m afraid that you might be sending me back to Mexico and that I won’t be able to see my mom.” The Mother testified she not only told minor child about the proceedings, but also told her she feared minor child “would be taken back to Mexico and no longer be with me.”

The trial judge denied the Hague return petition after applying the mature child exception. The father appealed.

Hague Convention

I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention’s mission is basic: to return children to their country of habitual residence.

In the recent Mexican case, the father had to prove by a preponderance of the evidence that the child was a habitual resident of Mexico immediately before her abduction, the removal was in breach of his custody rights under Mexican law, and he was actually exercising rights of custody, or would have been so exercised but for the removal. If so, the child must be promptly returned to Mexico unless there is an exception to return.

The key inquiry in this recent case was the mature child exception. A court may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is ap­propriate to take account of its views. A court may find that the child’s objection in and of itself is conclusive—it does not have to be coupled with another defense to be sustained.

Talking ’bout Mexico

On appeal, the district court noted that the child was exceptionally bright and articulate, she calmly and clearly conveyed her reluctance to return to Mexico, and conveyed significant family ties, teachers, and friends in Florida.

But in determining whether the mature child exception applies, courts primarily consider whether the child is sufficiently mature, has a particularized objection to being returned and whether the objection is the product of undue influence.

Here, the ten-year-old child’s preference to remain with Mother in Florida was based primarily on: friends, a desire to attend high school, and an upcoming school trip to Orlando. The appellate court found these to be generic and near-sighted responses and demonstrated the child’s inability to maturely comprehend or appreciate the long-term impact of her decisions.

This was especially true considering the child provided no significant testimony as to her life in Mexico or how life in Mexico differed from life in the United States. Also, her fear of return was based solely on not wanting to be separated from her Mother and return to Mexico does not necessarily mean she will be separated from Mother as Mother is free to return with her to Mexico.

Importantly, only a child’s objection is sufficient to trump the Convention’s strong presumption in favor of return, not the child’s mere preference. Here, the child just didn’t want to be separated from her mom. The only fear of returning to Mexico was being separated from Mother and not an unwillingness to live in Mexico.

Finally, the child’s objection was clearly the product of Mother’s undue influence. For example the Mother admitted she told minor child about the legal proceedings and about her fears of minor child being returned to Mexico.

The court reversed and remanded for the trial court to grant return to Mexico.

The opinion is here.

Hague Convention Now Settled Defense

Posted by Ron Kauffman on

An increasingly litigated area of international child custody involves returning a child to their habitual residence under the Hague Convention. However, there are also defenses to a return under the Convention. Recently, a Florida court answered the question whether a wrongfully retained child in Florida was now settled here and need not be returned.

Hague Convention

Return to Machu Picchu?

In the Florida case, a Father and Mother married in Peru in 2012. One child was born during the marriage, and all three are Peruvian citizens. They divorced in 2015, had joint custody, but the child lived primarily with Mother.

In 2021, Mother wanted to visit Florida. The parents signed a travel authorization for the trip from September 2021, through October 2021. However, the Mother and Child never returned. More than a year later, Father filed a state court petition for return of the child to Peru.

The trial court found that Father had rights of custody, had been exercising his rights at the time of the wrongful retention and Peru was the child’s habitual residence.

However, the trial court found that the Father was aware that the Mother was not returning to Peru with the Child before the October return date and that the Mother established, by a preponderance of the evidence, the “well settled” or “now settled” recognized exception under the Hague Convention. The Father appealed.

Florida and the Hague Convention

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 or retaining 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.

However, a child need not be returned if it is demonstrated that the child is now settled in the new environment. The U.S. State Department’s interpretation of what “settled” means includes factors such as the child’s age; the stability and duration of the child’s residence in the new environment; whether the child attends school or day care consistently or inconsistently; friends and relatives and participation in school activities, such as team sports, youth groups, or school clubs for example.

Unsettling

The appellate court found that the “well settled in her new environment” exception to the Hague Convention, is not specifically defined in either the Convention itself or in the federal implementing statute ICARA.

But, a child has been considered to be “settled ‘within the meaning of the Convention when a child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that return would be to child’s detriment.

The appellate court reviewed the extensive testimony and the record which adequately shows that the trial court received competent substantial evidence. Accordingly, the appellate court held that Father failed to establish that clear error was committed by the trial court in finding that Mother met her burden of proof on this exception and in thereafter exercising its discretion to not return Child to Peru. Accordingly, the final order denying Father’s petition for return of Child to Peru is affirmed.

The opinion is here.

Exclusivity and International Child Support Orders

Posted by Ron Kauffman on

In the Unites States, once a court of a state has entered a child custody or child support order, the state keeps control of the custody and child support matter unless specific things happen. This exclusivity is true in international child support orders and recently came into play in a case starting in Australia.

Foreign Child Support

A Blunder Down Under?

In 2010, an Australian court awarded two parents equal timesharing of their daughter and incorporated their binding child support agreement. But then in 2018, the Australian court entered another consent order. The parents agreed that the Mother and their daughter could relocate permanently to the United States.

As part of their agreement, the court ordered a long-distance timesharing schedule and added their previous 2018 Child Support Order which provided:

The parents agree to terminate their child support agreement requiring the Father to pay support while the daughter remained in the U.S.

The Father stayed in Australia and the Mother and daughter moved to North Carolina. Soon after, Mother and daughter moved to Florida. This time, they relocated without providing Father with their new address, preventing him from exercising his timesharing rights and contact with their daughter. The Father filed an action in Florida seeking to register and enforce their Australian timesharing order under the Uniform Child Custody Jurisdiction and Enforcement Act.

The Mother filed her own petition asking the Florida court to modify timesharing and child support because the Father had not exercised his timesharing rights, resulting in increased timesharing on her part. The Father moved to dismiss her modification petition, arguing that the Australian court had continuing, exclusive jurisdiction under the Uniform Interstate Family Support Act. The trial court allowed Mother to file an amended petition and denied Father’s motion to dismiss. The Father then petitioned for a writ of prohibition to prevent the trial court from exercising jurisdiction over Mother’s petition to modify the Australian support order.

Florida and Exclusive Jurisdiction

I have written on international custody and support issues before. The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

One of the more important purposes of UIFSA is to determine the “controlling” order in the event of multiple orders being entered in multiple states and countries. What distinguishes UIFSA is that all states will be enforcing the same amount because there is only one controlling order. Another important feature is that UIFSA adopted a concept that there should be only one court with the exclusive jurisdiction to modify a current support order. The UIFSA uses the term continuing, exclusive jurisdiction.

Back to the Billabong

On appeal, the district court ruled that under UIFSA, Florida courts may modify foreign orders only when a foreign country lacks or refuses jurisdiction to modify its child support order pursuant to its laws or lacked or refused jurisdiction.

In this case, the Mother never alleged that Australia lacked jurisdiction or refused to modify nor did she seek modification in Australia. Because Australia did not lack jurisdiction or refuse to exercise jurisdiction to modify support, the Florida court could not exercise jurisdiction under UIFSA to modify the Australian child support order.

Additionally, the court noted that the Father never waived his objection to the Florida court’s jurisdiction to modify the Australian child support order. Because the Australian court has continuing, exclusive jurisdiction to modify its support order, the Florida court lacked jurisdiction over Mother’s petition to modify child support. The appellate court granted prohibition, and the case was remanded with directions to grant Father’s motion to dismiss Mother’s petition to modify the foreign child support order.

The decision is available here.

Three Men Family Law Case Update 2024

Posted by Ron Kauffman on

Not even a hurricane could stop the popular Three Men and a Family Law Case Update webinar. The La Niña, high sea surface temperatures, and new appellate opinions have made 2024 an active season in Florida  family law. So, for anyone interested in discussing the latest developments in Florida family law, and hasn’t already registered, it is time again to register for the Three Men and a Family Law Case Update 2024 on Friday, November 1, 2024 starting at 12:00 PM to 1:30 PM

Case Update

Join me and AAML fellows/board certified lawyers, Reuben Doupé and Cash A. Eaton, for an active discussion on some of the major Florida marital and family law changes that have changed the family law landscape in 2024.

The course is an online webinar, and we will be reviewing many of the most important recent appellate opinions within Florida Marital and Family Law. Reuben, Cash and I will cover a wide range of topics from Florida’s newest family law cases.

Sponsored by the Florida Bar Family Law Section, attendees will be eligible for 1.5 CLE credits.

Registration is still open so register here.

Injunction for Posting Negative Comments

Posted by Ron Kauffman on

Family law frequently involves domestic violence. Can a court enter a domestic violence injunction against former partners or spouses and prohibit posting negative comments on social media about their ex-spouse? A former married couple from Arizona just found out.

Arizona Injunction

Monumental Decision

The former husband asked a court for a protective order against his former wife. He complained that she was stalking his community, delivered his personal information to people in his community, was on his porch looking through the front window, blasted him on social media and harassed his friends and family for a year.

The trial court determined that she had committed the offense of harassment and granted the order of protection. Because of the videos on a social-media platform, the trial court added a directive that the former wife “shall not post” messages about him on the internet or on social media.

The former wife also testified, and she provided a copy of the article she and others had been interviewed, which accused the former husband of having committed stolen valor and other deceitful acts. She also admitted that she had shared the article with others.

Her defense was she had intended only to warn others of his alleged wrongdoing. She denied having trespassed on his property; she admitted having driven past his home, but maintained she could see into the windows from the street.

At the end of the hearing, the court found that her disclosure of negative information about him to third parties amounted to harassment, and an act of domestic violence. The former wife appealed.

Florida Domestic Violence

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.

In 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 harassment. Harassing means engaging in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.

Cyberstalking is another form of 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.

Injunction Valley

Valley of Decision

On appeal, the Arizona appellate court agreed with the former wife. that the court misapplied the definition of harassment, and that her actions were “directed at” her former husband.

A court must enter an order of protection if it determines that the “defendant has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period.”

Harassment in Arizona can include contacting or causing communication with another person, following another person after being asked by that person to desist, surveillance of another person, making false reports to police or credit agencies for example.

But the appellate court found that the former wife neither made nor attempted contact with her ex as is required. They were “directed at” the third parties, not at him. The court concluded that her actions do not satisfy the domestic violence statute, and that the trial court abused its discretion by determining otherwise. The court vacated the domestic violence injunction.

The Arizona Court of Appeals opinion is here.

Cryptocurrencies are now Marital Property in South Korea

Posted by Ron Kauffman on

The South Korean Supreme Court, and now South Korea’s legislature, have made it clear that cryptocurrencies are marital property which are subject to property division during a divorce. Under the new law, South Korean spouses can claim a right to distribute cryptocurrency, such as Bitcoin holdings, during divorce proceedings.

South Korea Bitcoin

Bitcoin and Bibimbap

South Korean divorces can be different from Florida divorces. For example, Florida is a no-fault state. But unless a married couple agrees to divorce by mutual consent, South Korea is strictly fault-based. This means that a party must prove adultery, desertion, extreme maltreatment or the whereabouts of the spouse have been unknown for three years to obtain a divorce.

South Korean divorces have been different from Florida divorces for another reason until recently, such as how to treat cryptocurrencies.  Most Americans are familiar with cryptocurrencies such as Bitcoin and Ethereum. They are virtual currencies that use cryptography for security and operate on decentralized networks known as blockchains.

Cryptocurrency and other blockchain technologies have grown in recent years. Bitcoin is the most well-known cryptocurrency, and is currently valued at around $63,126. Under a new South Korean law, both tangible and intangible assets can be divided during a divorce:

Article 839-2 of the Korean Civil Act provides that a spouse may request a division of marital assets accumulated during the marriage upon the divorce in Korea.

This provision encompasses any “property” acquired during the marriage, including both tangible and intangible assets. Additionally, a recent Korean Supreme Court decision confirmed that cryptocurrency and other virtual assets, including Bitcoin, constitute “property” due to the recognized economic value as an intangible asset. Accordingly, any form of cryptocurrency held by a spouse during the marriage may be considered part of the marital estate if acquired during marriage in South Korean.

If a party is aware of cryptocurrency exchange was utilized, a Korean court can issue a fact-finding investigation or an order to obtain financial transaction records to verify the amount of cryptocurrency. In cases where a party is unaware of which exchange is being utilized, analyzing a spouse’s bank withdrawal records and other creative means of forensic investigations can trace transactions related to cryptocurrency exchanges.

Florida and Cryptocurrency

I have written about property division 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.

While there is no specific case addressing the topic, under Florida’s equitable distribution statute, marital assets include as those acquired during the marriage, regardless of which party holds title. Additionally, a Florida appellate court last year approved a trial court’s equitable distribution of bitcoins and further authorized deducting Bitcoins from a Former Husband’s original share of Bitcoins, to reimburse the Wife for the cost of recovering the Bitcoin hard drive.

A Cryptocurrency Armistice

Under South Korean law, when it comes to the actual division of cryptocurrency during a divorce, you may have the option to sell the holdings at the market value at an agreed time and divide the proceeds between the parties, or alternatively, simply divide the cryptocurrency holdings between the spouses, retain your interest and hope it appreciates. However, you should always consider the volatility of cryptocurrencies -meaning the price can change quickly in a very short time, making it possible for you to experience big gains or losses.

In some respects, tracking cryptocurrencies may be easier than keeping track of cash. That’s because you may be able to trace trades. blockchain technology preserves all transactions and does not allow external factors to modify or delete entries. Bank withdrawal records and other forensic investigations may allow for the discovery of unknown sources of crypto holdings.

The Korean Law Blog article is here.

Islamic Triple Talaq Divorce and the UCCJEA

Posted by Ron Kauffman on

Under Islamic law a husband can get a divorce pretty easily. It’s called the “triple talaq” and involves merely saying the word “talaq” three times. Will enforcement of the triple talaq in the U.S. under the UCCJEA be enforced? A married couple from India is battling the triple talaq divorce in Louisiana.

Triple Talaq UCCJEA

No Place Like Home

Khan and Azeez are citizens of, and were married in, India. However, they moved and have been residing in the United States since 2007.  They have two children. When they traveled to India in 2018, Khan deserted his wife and took her passport. He was granted a divorce under Islamic law by saying the word “talaq” (divorce) three times. However, triple talaq divorces were declared illegal and unconstitutional in India in 2019. This was made retroactive to 2018 under the Muslim Women Protection of Rights on Marriage Act.

When Azeez eventually got a new passport and was able to return to the United States in 2019, she immediately filed a petition for dissolution of marriage in Illinois. In his answer, Khan objected to the Illinois family court taking jurisdiction over his case because he was already divorced in India by saying “talaq” three times.

The Illinois trial court denied Khan’s exception under the Uniform Child Custody Jurisdiction and Enforcement Act, and basic principles of human rights. The trial court held that the divorce by talaq and any subsequent child custody determinations were invalid.

In 2019, the Illinois court rendered a judgment finding the India divorce judgment based on triple talaq was invalid. The Illinois court dissolved the marriage, set child custody, and awarded spousal and child support under Illinois law.

Then in 2023, Khan filed a petition in Louisiana seeking to have his Indian divorce judgment recognized under Louisiana law. Azeez filed an exception of res judicata. The Louisiana trial court granted Azeez’s exception and dismissed Khan’s claims and Khan appealed.

Florida and the UCCJEA

I have written about the UCCJEA and the issues of religion and divorce before. The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters.

The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child.

The UCCJEA helps to facilitate enforcement of custody decrees – even when the custody decrees come from a foreign country – and has the aspirational goal of promoting uniformity of the laws governing custody issues. Under the UCCJEA, a foreign country should be treated as a US state for the purposes of applying the UCCJEA.

However, a U.S. court does need not always recognize a foreign country’s order under the UCCJEA. For example, if the child custody law of a foreign country violates fundamental principles of human rights, the foreign final judgment may not be recognized here.

Triple Talaq Trouble

Khan argued on appeal that the Illinois proceeding was never made executory, and the divorce decree admitted into evidence by the Louisiana court was incompetent and inadmissible evidence because it was not admitted via an ordinary proceeding which would allow Khan to present evidence.

Generally, foreign judgments are entitled to full faith and credit in Louisiana. In fact, courts in the U.S. are required to give full faith and credit to judgments of courts of other states under the U.S. Constitution. The UCCJEA is applicable to foreign judgments, and sets forth specific rules regarding the recognition, modification, and enforcement of child custody determinations. The statute applies to international cases as well as domestic cases.

The purpose of the UCCJEA is to “provide clearer standards for which States can exercise original jurisdiction over a child custody determination. The UCCJEA permits registration of an out of state custody determination. The use of the word may in the statute indicates that registration of the judgment is permissive.

Under the UCCJEA, a court has a duty to recognize and enforce an out-of-state child custody determination if the other state exercised jurisdiction in compliance with the UCCJEA or the determination was made under factual circumstances complying with the jurisdictional standards of the UCCJEA and the determination has not been modified.

Here, Khan argued that every foreign judgment afforded full faith and credit by this state must first have a full evidentiary hearing in order to make the judgment “executory.”  But the former wife in this case was not seeking to execute the Illinois judgment. Thus, the only question before the court was whether the trial court’s finding that the Illinois judgment was entitled to full faith and credit was erroneous.

The former wife successfully proved that a valid judgment was executed in Illinois; thus, res judicata applied to prohibit litigation of the same issues arising out of the same facts.  Accordingly, the trial court did not err in granting full faith and credit to the Illinois judgment.

The appellate opinion is here.