Month: July 2024

Recognizing International Divorce Decrees

A recent Texas case resolves an important dispute over recognizing international divorce decrees. A couple filed for divorce in Texas. Then, the husband traveled to his home country of Pakistan for a ‘quicky’ divorce. Does the Texas court have to honor the international divorce decree?

International Divorce

Longhorns in Lahore

The parties were married in Pakistan in 2009 and later moved to Texas. Husband filed an original petition for divorce in Dallas County district court in 2021. He asked for a divorce, the division of their property, and for the court to decide child custody.

Eight months later, Husband filed a “Notice of Filing of Foreign Judgment.”  He attached a “Divorce Registration Certificate” that was issued in 2022 by the Union Council in his home town of Lahore, Pakistan.

The Pakistani certificate lists addresses in Lahore for both parties. The Husband asked the Texas court to recognize the Pakistani divorce decree, and he also amended his divorce petition. He dropped his demand for a divorce as they were divorced now in Pakistan.

But the Pakistani divorce decree did not “dispose of the parties’ marital interest in various assets” or decide custody so he asked Texas to decide those issues. The Wife objected to recognizing the foreign judgment.

In 2023, after a hearing, the Texas family court sustained Wife’s objection to the recognition of the Pakistani decree, and rendered a final decree of divorce on June 7, 2023. The Husband appealed.

Florida Comity and International Divorce

I have written about international divorce issues before. In Florida, a person must have resided in Florida for 6 months before the filing of the petition for the court to have jurisdiction over your divorce. The term “reside” generally means a legal residence in Florida with an intention to stay there, as opposed to a temporary residence.

However, in our mobile society many couples have multiple residences where they reside. Some of those residences can be in other countries, and more than one country may have jurisdiction. Will a foreign divorce decree be recognized in the U.S.?

Generally, comity is the recognition that a country gives to the legislative, executive or judicial acts of another country, having due regard both to international duty and convenience, and to the rights of its own citizens.

A U.S. state will respect and give effect to the laws and judicial decisions of another jurisdiction, provided that they do not conflict with public policy. Comity ensures that international divorce decrees will be recognized and enforced across different countries.

Cowboys, Curry, and Comity

On appeal, the Husband argued the court didn’t have subject matter jurisdiction to grant a divorce because they were no longer married. The appellate court noted that states, however, are not required to give full faith and credit to every single foreign divorce decree. Dismissal of a case based on comity is a matter of discretion for a trial court.

In this case, the only evidence the Wife received notice about the Pakistani divorce proceeding was an email from the Husband stating: “I am attaching NADRA divorce certificate for your records” and a one-sentence text message saying: “to fulfill religious obligation, I have pronounced verbal divorce today.”

The Husband argued Pakistan is not required to follow Texas-specific due process laws or rules. The appellate court agreed Pakistan did not have to follow American notions of due process. But, a U.S. court can refuse to recognize judgments obtained without due process. Since there was never notice to Wife of the Pakistani proceedings until after a judgment was rendered, she was deprived of minimum due process, and the international decree was not recognized.

The opinion is available at MKFL International Family Law.

Equitable Distribution Isn’t Always Equitable

Dividing marital property in a divorce is governed by the equitable distribution statute. Sometimes the division is not so equitable. One former husband complained to the appellate court the values of the marital property awarded to his former wife increased so much after the trial, he needed more money to do equity.

Equitable

What goes up

In 2018, the parties’ marriage was dissolved, and their assets were equitably divided and distributed. The former wife was awarded the marital home, valued at around $138,000. The final judgment required the former husband to sign over a deed of his interest in the home to his former wife, but also obligated the former wife to pay cash to the former husband to equalize the distribution.

Neither party appealed the revised equitable distribution scheme in the amended final judgment, which continued to award the former wife the marital home and continued to value it at $138,413.

In 2022, the former husband filed a motion claiming that value of the home had increased so much, that he was entitled to have the value from any sale equally divided. He did not move to set aside either the final judgment or the amended final judgment as inequitable.

Instead, he argued that the valuation of the home in both judgments was put in place to show if the house had been sold at the current market, what it would be worth. Following a hearing, the family judge disagreed, and the former husband appealed.

Florida Equitable Distribution

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

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

However, when dividing up a marital estate, a court can’t always divide it equally to the penny. To ensure a marital estate is equalized, a court may order one spouse to pay the other spouse a lump sum payment. This amount is referred to as an “equalizing payment”.

An equalizing payment is proper only when the distribution schedule justifies it and the payment is in the ability of the paying spouse to make the payment without substantially endangering his or her economic status.

Must Come Down

On appeal, the court found that when an equalizing payment is ordered by a court to equitably distribute marital assets, they payment becomes vested when the judgment is entered, and is treated as a debt owed.

Here, the former husband had 30 days after entry of the final judgment to challenge the equitable distribution but he didn’t. The equalizing payment vested and could not be challenged because res judicata applies to prevent either party from relitigating the issue.

The court also held that even if the former husband had timely brought a claim under rule 12.540 it would fail. Former husband had to allege “new circumstances.” The fact that the marital home may have appreciated in value is not a new circumstance.

The opinion is here.

Transforming Nonmarital Property Into Marital Property

For many clients going through divorce, there is a concern that their nonmarital property can transform into marital property, and then get distributed by a court. Believe it or not, divorce lawyers know that in certain cases, it is easy for your nonmarital asset to be transformed into a marital one. One couple in north Florida found out how courts look at whether your nonmarital property has been transformed into a marital property during a divorce.

marital property

Defining Marital and Nonmarital Property

Understanding a little about Florida’s equitable distribution statute will help you protect your premarital assets from being wrongly divided. In Florida marital assets and liabilities include assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

Many people forget that marital assets also include the enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.

Another area of transforming nonmarital assets into marital one is by gifts. Under Florida law, marital assets include gifts between spouses during the marriage.

Conversely, nonmarital assets and liabilities include things like assets acquired and liabilities incurred before the marriage, and assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent. For example, an inheritance may initially be considered nonmarital property absent anything else.

Before a court will classify your assets as either marital or nonmarital, the court will consider numerous factors. One of the factors a court will look at is the title of the property. A court will also consider whether you commingled your marital funds with your nonmarital funds. Were there any increases in the value of your nonmarital stock accounts because of marital efforts, or control of the funds? If so, a court may consider that too. They will also look at the length of the marriage, and your intent concerning the marital or nonmarital status.

Transforming Marital Property

In a recent case in Florida’s panhandle, a husband and wife divorced. During the trial, the family judge added to the equitable distribution schedule one of the husband’s Certificate of Deposit accounts. However, there was no evidence that the CD account, which was acquired ten years before the marriage, had transformed into a marital asset.

On appeal, the appellate court reversed the decision. The appellate court found that there was no evidence at the trial that there was any enhancement of the CD account through the husband’s efforts. The court also noted that there was no evidence that the husband commingled his nonmarital funds with marital funds. Lastly, there was no evidence that he had given to his wife the CD account as a gift.

Gifts between spouses are an important and frequent way in which a nonmarital asset becomes a marital asset. Believe it or not, there are even cases in Florida where spouses accidentally gifted non-marital homes to their spouse by birthday card, not realizing they would be found to have the proper donative intent.

Florida’s New Anti-Gift Law

This year the law changed in Florida. The revised equitable distribution statute now prohibits interspousal gifts of real estate unless there is written documentation that complies with the provisions for conveyance of real property under the statute governing deeds to property.

The mere inference of a gift of real property will now not meet the threshold required for an interspousal gift unless there was written documentation for a conveyance.

The new law in Florida also makes it clear that when a spouse merely signs a deed for the sole purpose of conveying a homestead property – other than the other spouse or both spouses jointly – the deed does not change the character of the real property from nonmarital property to marital property.

Finally, the new amendment to the equitable distribution statute changes the definition of nonmarital assets and liabilities so that real property acquired separately through non-interspousal gift, bequest, devise, or descent and in which legal title has not been transferred to both parties as tenants in the entireties, remains non-marital property.

The appellate decision is here.

Mistakes In Your Agreement

What happens when you discover mistakes in your marital settlement agreement? Family and divorce lawyers are always interested in protecting their clients, and themselves, against mistakes. When agreements are entered into fast and furiously, mistakes can happen. One married couple in Florida found out just how courts look at mistakes in a marital settlement agreement.

Mistake Divorce Agreements

Fast and Furious Divorce

In 2019, the wife filed for divorce. In their in pretrial stipulation, the parties agreed they would each keep their own cars and pay their respective car loans. However, their agreement was not specific as to what type of car each party owned and which care they would keep.

At their final hearing, the trial court entered a final judgment and incorporated their agreement. The husband kept the 2010 Mercedes and the wife kept the 2005 Mercedes.

About a month after their divorce the wife asked the family judge to correct their final judgment, arguing, in part, that the 2010 Mercedes actually belonged to her, that they no longer owned the 2005 Mercedes, and that they actually owned a 2015 Mercedes. The Husband argued in response that the 2010 Mercedes was really his car, and that there was no error in the final judgment.

During the hearing on her motion, the wife told the judge the 2010 Mercedes is titled in her name, it was her Mother’s Day gift for herself, and they intended for her to keep the care when they signed the agreement.

The husband argued that they purchased the 2010 Mercedes after being in a car accident with their previous vehicle. The couple alternated which vehicle they drove based on their needs. Before their divorce, the husband testified that it was always his understanding that he would keep the 2010 Mercedes when entering into the agreement.

Following this hearing, the court found a mutual mistake in the agreement and final judgment should be set aside. The trial court entered a Consent Order Equitably Distributing Vehicles giving the wife a one-half interest in the 2010 Mercedes and sole possession of the 2015 Mercedes. The husband appealed.

Florida Setting Aside Final Judgments

After a final judgment is entered in a divorce, courts are limited in granting relief, but not entirely. For example, a court can relieve a person from a final judgment because of things like, mistake, inadvertence, surprise, or excusable neglect, newly discovered evidence, fraud and the like.

Motions seeking relief from a judgment usually must be filed within a reasonable time, and usually not more than 1 year after the judgment. However, there is no time limit in Florida if the motion for relief is based on a fraudulent financial affidavit in marital or paternity case.

Fate of the Furious

On appeal, the husband argued that, at most, there was a unilateral mistake on behalf of the wife, which is insufficient grounds to set aside the final judgment.

The appellate court agreed. A marital settlement agreement may be set aside when it is entered into as a result of mutual mistake. However, a mutual mistake occurs when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.

But if the mistake is due to your own negligence and lack of foresight and there is absence of fraud or imposition, equity will not relieve you.

In this case, the parties’ agreement provided that “each party shall keep their own vehicle. However, there was no evidence regarding the vehicles at the final hearing, and the motion for relief filed afterwards only showed that the parties’ testimonies contradicted each other. The order was reversed and the original agreement and its disposition of the cars was reinstated.

The appellate decision is here.

Florida’s New Safe Exchange Locations Law

A new law amending Florida parenting plans this month deals with the concept of a ‘safe exchange location’. Every child custody and timesharing case must have a court approved parenting plan in which parents share decision-making and physical custody of their children. In some timesharing cases, the places parents do their pickups and drop-offs can be a problem. Family lawyers in Florida will be interested in the new changes to parenting plans.

Safe Exchange

Cassie Carli Law

Florida parenting plans not only govern the relationship between parents relating to decision making, but must contain a timesharing schedule for the parents and the children. Ideally, a parenting plan should attempt to address all issues concerning the minor child like the child’s education, health care, and physical, social, and emotional well-being.

But a frequent problem has been the place where exchanges of the child for timesharing takes place. Timesharing exchanges commonly occur in either parent’s homes, or well-lit parking lots of popular establishments, rest stops at the midway point between both parents, the child’s school, or a common landmark such as a specific coffee shop. There is really no limit to the location parents can agree to for the timesharing exchange.

However, when the parents have a contentious relationship, it is generally preferable that the exchange be made in a public, well-lit location with security cameras and high foot traffic by other people. Usually, parents are able to agree on a change in exchange location and deviate from the location prescribed in the parenting plan as needed.

Some sheriff and police departments allow parents to use their lobbies as an exchange location, but there is no standard process or procedure for all locations and many disapproved of the process.

The new law is often called  the “Cassie Carli law.’ The law was named for Cassie Carli, who was a 37-year-old mother from Navarre, Florida. Cassie went missing after a custody exchange with her ex-boyfriend. Days after she went missing, Cassie was found buried in Alabama.

Under the new law effective this month, every sheriff in Florida must:

  • designate at least one parking lot as a neutral safe exchange location for use by parents of a common child and
  • identify minimum requirements that each designated safe exchange location must satisfy, including a purple light or signage in the parking lot and a camera surveillance system.

Starting this July, family courts in Florida can order that exchanges of a child be conducted at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange.

The bill amends the domestic violence statute to allow the petitioner to request that the court require timesharing exchanges to be conducted at a safe exchange location, and to authorize or require the court to order the use of a neutral exchange location in an ex parte order for a temporary injunction under certain circumstances.

The bill also amends the law to provide that a parenting plan must generally designate authorized locations for the exchange of the child and may be required to take place at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange; the court finds such a requirement necessary to ensure the safety of a parent or the child; and such a requirement is in the best interest of the child.

Florida’s new designated safe exchange locations are not always staffed but are considered a secure environment because of the video surveillance and proximity to law enforcement. Police suggest that if anything occurs during the exchange to call 911 immediately.

The bill became effective July 1, 2024.