Author: Ron Kauffman

Chinese Property Division

China’s Supreme People’s Court just redefined what a marital debt is. Now, Chinese spouses will no longer be on the hook for unreasonable marital debts during the marriage as part of a divorce settlement.

The Supreme People’s Court, in a revision to Article 24, said that debts will be considered marital liabilities only if both partners sign the original paperwork, or if a non-signatory later approves the borrowing.

The change does not apply to spending or borrowing considered reasonable in a marriage, such as payments made for shelter or food, the court said.

Speaking at a press conference, Supreme Court judge Cheng Xinwen said the update to the article was intended to reflect a changing society.

It was considered necessary in view of the rising number of cases of people finding themselves in financial difficulty because of their spouses’ clandestine borrowing, he said.

Florida Property Division

I’ve written about property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

However, if there is a justification for an unequal distribution, the court must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

Additionally, courts can consider the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

China’s Distribution Solution

The previous version of the Chinese law stated that all debts incurred in a marriage were the joint liability of both partners.

Many people in China are in favor of the new law because of the values behind it.

I see no point in drafting an article to protect a creditor’s interests, as a person who’s able to lend money is always in the dominant position and capable of demanding that both spouses sign the paperwork before lending them money.

There were cases where husbands had sought to cheat their partners by concocting fake loan agreements in collaboration with dubious associates who would then demand repayment from the unsuspecting and legally defenseless wife.

Judge Cheng said that the law was introduced to help maintain market order – and creditors only as a consequence – at a time when there was a growing number of cases of couples trying to evade their debts by faking a divorce.

The South China Morning Post article is here.

 

Which is the Happiest City to Work In?

OK, the category “happiest city to work” may be an oxymoron. Still, Forbes has published a report detailing which cities have the happiest employees, and which have them singing the geographical blues. (That’s from the article) The winning city is surprising many.

The Forbes report is an effort to determine the happiest and unhappiest places to work. They looked at eight key factors that can influence an employee’s happiness.

The factors relied upon in the article include: work-life balance, an employee’s relationship with his or her boss and co-workers, general work environment, compensation, opportunities for advancement, company culture, and resources.

The No. 1 city in the report? Miami.

I agree!

The Forbes article is here.

 

Upcoming Speaking Engagement

I will be speaking at the Florida Bar Family Law Section and AAML’s, Marital & Family Law Review Course in Orlando on Friday, January 26th. I will be discussing interstate child custody, interstate family support, and The Hague Convention on international child abductions.

Interstate Custody

Parents move from state to state for various reasons. It is a matter I have often written about . Whether children are moved by parents wrongfully or not, moving creates interstate custody and child support and spousal support problems. The Uniform Child Custody Jurisdiction and Enforcement Act, and The Hague Convention on Child Abduction, can work together in those cases.

International Child Abductions

You should become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your ex has taken your children out of the country against your will, the Hague Convention can help you get them back.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the 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.

Certification Review

It is a privilege to be asked to address interstate custody and international child abductions at the annual Family Law Board Certification Seminar again.

The annual seminar is the largest, and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

More information is available here.

 

Hague Convention in Japan

James Cook wants his 4 kids back. His estranged wife, Hiromi Arimitsu, says they want to stay with her in Japan, and they’ve been fighting in Japanese courts for almost three years. Isn’t The Hague Convention supposed to make international custody cases easier?

Japanese Cooks

If child custody battles are messy and expensive when the parents live in the same city, they’re much worse when they live in different countries, and are fighting over where the children should live.

For three years of their lives, the Cook kids have not had their dad. Kids need their dad, they need both their parents. I can’t describe to you the hell that this has been.

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, lived in the U.S. for almost the whole time they had been together.

Three years ago, Cook agreed that Arimitsu could take their 4 children to Japan for the summer – with a notarized agreement that she would bring them back. When that ended, they agreed that Arimitsu and the kids stay a little longer, while Cook looked for work.

By the end of the year, Cook realized his family wasn’t coming back. The problem: court officers failed to enforce the order, saying the children refused to be returned, and the Osaka High Court nullified the enforcement order under the grave risk of harm defense.

Hague Child Abductions

I have written – and will be speaking later this month – on international custody and child abduction cases under The Hague Convention.

The Hague Convention on the Civil Aspects of International Child Abduction is supposed to provide remedies for a “left-behind” parent, like Mr. Cook, to obtain the wrongfully removed or retained children to the country of their habitual residence.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, The Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

There are defenses though. For example, in the Cook case, the court considered whether there is a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place the child in an intolerable situation.

Outside Japan, the grave risk exception is very narrowly drawn because the exception can swallow the rule, and also, there is a belief that courts in the left behind country can protect children – just as easily as Japan can.

Big in Japan

Many suspect Japan is not really compliant with The Hague. Japan signed the Convention in 2013 – and only because of international pressure.

Under their law, Japan expanded the grave risk exception by making it a mandatory defense. Japan also requires Japanese courts to consider more things when the defense is asserted, such as whether there is “a risk”, as opposed to a grave risk.

Japanese courts also can consider if it’s difficult for parents to care for a child – a factor outside the scope of the Convention – which allows Japanese parents to complain about the challenges of being away from home.

The U.S. has determined that Japan was one of just two “Convention Countries That Have Failed to Comply with One or More of Their Obligations under The Hague Abduction Convention.”

Enforcement is a big problem in Japan. Japan cannot enforce their orders. The law Japan passed to implement The Hague forbids the use of force, and says children must be retrieved from the premises of the parent who has taken them.

According to research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

For now, that leaves James Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his kids.

The Standard-Examiner article is here.

 

Divorce and Privacy

Huma Abedin and Anthony Weiner’s divorce are a lot of things: “Messy” comes to mind, and definitely “sordid.” It has also been front page news. However, now the divorce is going to be closed to the public. Is it about reconciliation or privacy?

A Very Public Divorce

Huma Abedin was a top aide to former presidential candidate Hillary Clinton, and privacy has always been a struggle. She has been front page news most recently, as the State Department posted a number of her emails after the messages were found on her husband’s laptop by the FBI.

Several of the released documents were found to contain information classified “confidential,” and were heavily redacted.

If that wasn’t front page news enough, her husband is Anthony Weiner. Anthony is the former Democratic congressman from New York who won seven terms as a Democrat, never receiving less than 60% of the vote. Politicians don’t get elected by being shy.

In May last year, Weiner pled guilty to a sexting charge of transferring obscene material to a minor, and was sentenced to 21 months in prison and is required to register as a sex offender for the rest of his life.

According to the New York Post, the couple withdrew their divorce proceeding from the New York court where it was being heard. They’re not reconciling though, it appears they are trying to keep their divorce private.

Divorce Privacy

I’ve written about the issue of privacy and public access to divorce records before. For example, in the Tom Cruise divorce, his ex-wife could have filed in New York or California, but they chose New York because of privacy laws there.

In Florida, court filings are not private. In fact, it has long been the policy of Florida that all state, county, and municipal records are open for personal inspection and copying by anyone.

In Florida, privacy is not the rule. Far from it. Here, providing access to public records is an affirmative duty of each agency. And, any agency that maintains a public record has to provide to any person, a copy of any public record which is not exempted by law from public disclosure.

The Weiners

In a statement to the New York Daily News, Abedin’s attorney said it’s for the privacy of their family.

“In order to ensure the proceedings have a minimal impact on their child, the parties have decided to finalize their divorce swiftly and privately.”

Privacy would certainly be a change for this couple’s tumultuous and much-scrutinized marriage, which is heading to an end after the sexting scandals.

The New York Daily News article is here.

 

India and Fault Divorce

A new Bollywood film concerns a woman who left her husband for failing to provide a toilet. It’s based on the true story of Anita Narre who threatened divorce to get her husband to build one. Do you need grounds to file for a divorce?

Indian Toilet Shortages

Many are surprised to learn that about 60% of India’s households lack access to toilets. That is surprising news for a country associated with ‘high tech’, but the situation is so bad, health advocates launched a “No toilet, No bride” campaign.

And, a family court judge in the state of Rajasthan has ruled that failure to provide a bathroom is an act of cruelty sufficiently significant to be grounds for divorce.

Florida No Fault Divorce

The Indian case is interesting for Floridians because Indian courts can grant divorces only in limited circumstances, by proving fault, such as physical abuse.

I’ve written about no-fault and fault standard divorces around the world before. Florida, as opposed to India, is a no-fault state.

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.”

Many people argue that the introduction of no fault divorce is the reason the United States has a high divorce rate. In fact, many people think so, and want to return to the old “fault” system to promote families and er flush away no fault.

Down the Drain

The divorce case in India, described as a first by The Times of India, came in the case of a woman whose husband refused to provide a toilet, saying they were unnecessary. This forced her to go to the bathroom outside.

“We spend money on buying tobacco, liquor, and mobile phones, but are unwilling to construct toilets to protect the dignity of our family”.

Private bathrooms are in rare supply, and in some places, women have to wait until sunset to answer nature’s call.

This is not only physical cruelty but also outraging the modesty of a woman,” said the judge Rajendra Kumar Sharma.

The ruling comes at a time when the government is running a crusade against open defecation under the `Swachh Bharat Abhiyan’.

The Times of India article is here.

 

2018 Pet Custody News Update

New divorce court cases surge as people start the New Year with a clean slate, and put the holiday stress behind them. But divorce can also lead to a pet custody fight over your four-legged fur baby. Well, there’s big news in pet custody.

Pet Custody News

In Illinois at least, according to a new state law effective January 1st, judges in divorce proceedings can consider the well-being of companion animals in allocating sole or joint ownership.

According to the sponsor of the legislation, a self-proclaimed animal lover:

It sort of starts treating your animal more like children instead of property. If you’re going before a judge, they’re allowed to take the best interest of the animal into consideration.

The new Illinois law, similar to one in Alaska, applies only to pets that are marital assets, not service animals.

Pets are another issue to hash out in a divorce, in addition to money, children and possessions. For years, pets have been treated no differently than other pieces of property to be divvied up between the couple.

Florida Pet Custody

I’ve written about pet custody issues before. Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

So, Florida courts have not, or cannot, undertake the same responsibility as to animals.

A chocolate lab may be considered a member of the family to you, but under Florida law, your dog “Brownie” is just personal property to be divided in divorce in Florida.

Pet Custody Around the Nation

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Pet custody cases are becoming more and more prevalent around the country. That is because state lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals.

About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Over the last decade, the question of pet custody has become more prevalent, particularly when it involves a two-income couple with no children who shared responsibility for and are both attached to the pet, she said.

The new Illinois law gives judges more leeway in deciding what to do with a pet instead of simply giving it to one side or the other. The matter could be resolved with both parties sharing custody or, as the law calls it, joint ownership.

The Chicago Tribune article is here.

 

Religious School and Custody

When two parents with equal custody disagree about sending their kids to religious school, how does a court decide? A couple from Nevada just found out if courts must choose the religious school over the secular one.

Religious or Secular School?

A Nevada couple agreed to joint custody of their two children, to send their children to private school, and equally split the cost of private school tuition and costs for the minor children. But, they disagreed about which school.

The Father wanted his daughter to attend a religious private school, Faith Lutheran. He said it was in her best interest because she was used to private schooling, she wanted to enroll there, and it had a high college placement rate.

The Mother objected to her child receiving a religious education at Faith Lutheran. She argued that she should attend the local public school, Bob Miller Middle School, which was highly ranked for academics and closer to the daughter’s primary residence.

The trial court concluded that both schools were good, and didn’t make any findings that one was better, but chose the public school “because it was ‘taking into consideration the Mother’s religious objection.”

The mother appealed, saying her religious objection should categorically trump because courts can’t indoctrinate a child with their religious views, particularly over the objection of a parent.

Private School Tuition

I’ve written about the intersection of private school and child custody before. Very often the issue is should a parent have to pay for private school (religious or not).

Pursuant to Florida Statutes, a trial court cannot order a parent to contribute to private school expenses unless it first finds that:

(1) the parties have the ability to pay such expenses
(2) the expenses are in accordance with the customary standard of living of the parties, and
(3) attendance at private school is in the child’s best interest.

If parents are unable to reach an agreement with respect to the payment of tuition, a judge will review the evidence you present and make a decision.

If this becomes necessary, the judge will review all of the financial aspects of the case, including each parent’s income, the history of paying certain expenses and the schools themselves.

The Constitution and Religious Schools

Sometimes tuition cost is not the problem though, religion itself is. The Nevada Supreme Court rejected the mother’s argument:

“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Neutrality means that the court “may not be hostile to any religion or to the advocacy of no-religion.”

The court can violate this principle of neutrality when it treats one parent’s religious objection as dispositive when deciding between a religious school and a nonreligious school.

In the Nevada case, the family court disfavored religion rather than acting neutrally toward it. In ordering that the daughter attend a nonreligious school, the only explanation the court provided was that it had taken into consideration religious objection.

However, there were no findings regarding the child’s best interest and appears to have treated the Mother’s religious objection as dispositive in an attempt to avoid constitutional issues related to religion.

In trying to steer clear of constitutional issues, however, the district court collided head-on with the First Amendment’s Establishment Clause by disfavoring religion.

Neutrality, under the Constitution means that the father doesn’t have a right to demand that his child go to a religious school and the mother have a right to demand that the child go to a secular school. Courts have to decide issues like this on a basis other than the school’s religiosity.

The article from Reason is here.

 

New Article on Grandparent Visitation

The holiday season is in full swing. In the spirit of shameless self-promotion – and if you are looking for a last-minute gift for the family law reader in your life – what could better than my new, Game of Thrones themed article, “Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation”?

The Game of Thrones

The struggle for grandparent visitation rights in Florida has become a game of thrones between the three branches of Florida government.

The Florida Supreme Court has stricken all previous attempts to legislate grandparent visitation as unconstitutional. Yet, the legislature and the governor keep passing new laws to enforce grandparent visitation rights for Florida voters.

I’ve written about grandparent visitation rights before. However, this new article not only reviews the history of grandparent visitation rights in Florida, but it provides an update on those rights through the Florida Supreme Court’s recent decision earlier this year.

The Wall

In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.

Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.

The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest.

In Florida, that compelling state interest was harm to the child: “[W]e hold that the [s]tate may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.”

The High Sparrow

The U.S. Supreme Court, has also commented, reasoning that the 14th Amendment’s due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

The U.S. Supreme Court did not hold that the due process clause requires a showing of harm or potential harm to the child as a condition for granting visitation. Instead, the U.S. Supreme Court left those decisions for the states to decide because:

much state-court adjudication in this context occurs on a case-by-case basis.

There have been a few legislative attempts to grant some rights of visitation for grandparents in Florida, but they have been very modest.

Despite these recent recent legislative victories for grandparent visitation rights in Florida, a recurring problem has also been what to do about out-of-state grandparent visitation court orders.

Florida courts have been unwilling to enforce them until recently.

Dances with Dragons

This year, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights  – are protected and enforceable under the PKPA.

And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.

The Florida Bar Journal article is available here.

 

Sex, Lies and Prenups

Why didn’t the wife of Hollywood producer Harvey Weinstein file for divorce months ago when the news broke? It may be because of their prenuptial agreement. According to Newsweek, their prenup may make the amount of alimony he pays her pegged to the number of years they remain married.

Weinstein in Love

Chapman, the 41-year-old Marchesa fashion owner, met her much-older husband, 65-year old  film maker Harvey Weinstein, after he approached her at a party in 2004.

She was a young fashion model just starting out. He was an old, balding, overweight, movie producer worth millions. Obviously love at first sight.

The couple dated for the next three years, until they got engaged in November 2007, marrying one month later in Connecticut.

The Crying Game

A few months before the 10-year mark of their marriage, things have turned sour. But Chapman did not file for divorce despite the news reports and string of celebrity interviews.

Harvey Weinstein has become the new face of sexual transgressions in the workplace. He was ousted from his own company after The New York Times uncovered a string of settlements paid out by Weinstein for harassment over multiple decades.

A subsequent investigative report by The New Yorker alleged incidents of sexual assault and rape.

A chorus of women have come forward to condemn the producer and share stories of his sexual misconduct, including Angelina Jolie and Gwyneth Paltrow.

Despite world-wide headlines about the sexual scandal, Weinstein’ wife has steadfastly stuck by him over the next few months, and no one can figure out why.

A little digging by reporters has turned up the Weinstein prenuptial agreement, which may explain his wife’s decision. His wife Chapman, a bridal and couture designer, stands to gain nearly $12 million in spousal support based on the couple’s prenuptial agreement.

Under the agreement, which was signed by Weinstein and Chapman in December 2007, Chapman could be awarded $400,000 annually for every year of marriage after reaching their 10-year mark.

The amount could increase to $1 million annually after 11 years of marriage. The couple had their 10-year anniversary on Friday.

Prenup Fiction

I’ve written about prenuptial agreements before. Many people think prenuptial agreements are for the wealthy. That is nothing more than pulp fiction. Even if you don’t enter a marriage with Weinstein riches, it might not be a bad idea to have a prenup. It certainly seemed to help Harvey Weinstein’s wife, and maybe even protect him too.

Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets in case of divorce or death.

A prenup can resolve things like alimony, ownership of businesses, title of properties, and even each spouse’s financial responsibilities during the marriage.

There are many other concerns that can be addressed in the prenup:

  • Caring for a parent
  • Going back to school
  • Shopping habits
  • Credit card debt;
  • Tax liabilities;
  • Alimony and child support from previous relationships; and
  • Death or disability.

There are times when a prenup is a “must-have”:

  • When one person enters the marriage with significantly more money or assets than the othe
  • When one or both future spouses have family money or inheritances
  • When you want to keep parts of your finances separate: such as separate bank accounts, and a joint account for paying household bills.

One of the points of a prenup, is that you get to decide on the amount of alimony, the terms of alimony or whether you will pay any alimony at all.

Kill Harvey Vol. 3

Though no divorce petition was ever filed, Chapman left Weinstein in October after the multiple allegations of sexual harassment and assault became front page news world-wide. No one knows if the alimony provision in the Weinstein prenup is the cause.

In a statement to People magazine released on October 10th, Chapman announced her plans. albeit without a timeline:

“My heart breaks for all the women who have suffered tremendous pain because of these unforgivable actions. I have chosen to leave my husband.”

The Newsweek article is here.