Family Law, Free Speech, and Religious Discrimination

Posted by Ron Kauffman on

Free speech and family law clash again after a court tries to prohibit religious discrimination by ordering the parents not to criticize the other parent’s religion. How does the First Amendment balance family court orders that try to keep the peace and protect the rights of free speech?

Religion Family Law

Sleepless in Seattle

In the Washington case, the parents were previously married and share two sons. Both children have complex special medical and educational needs. They agreed to their original parenting plan in 2016, which contained joint decision-making responsibility.

Then in March 2020, both parents asked to change the parenting plan, and each sought sole decision-making authority. After trial, the family court awarded the Mother sole decision making authority, and among other things, ordered:

“No parent will put down Christianity to or in front of the children, or allow other members of their household to put down either parents’ spirituality.”

The Father argues the family court’s wording of the religious upbringing provision violates the First Amendment, and he appealed.

Florida Religion and Family Law

I’ve written about the intersection of religion and family law before. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases. One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

But left unsaid is whether a court can restrict a parent’s right to free speech under the First Amendment if the speech relates to the other parent’s religion.

The Battle in Seattle

The family law order prohibiting a parent from disparaging Christianity to or in front of the children, or allow other members of their household to put down either parents’ spirituality was not discussed until a post-trial hearing.

The Mother identified herself as “a practicing Christian,” and the father stated, “I don’t identify with any particular religion.” The mother just wanted to be sure that the father does not have the ability to block her from teaching the children about her religion.

The mother was concerned:

“[M]y only concern is that my children have expressed that they have been told denigrating things about Christianity in their dad’s house. … I have no concern about raising my children with a respect for all religions and beliefs and non-beliefs.”

On appeal the court noted that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. The parental right to determine the child’s religious upbringing derives both from the parents’ right to the free exercise of religion and to the care and custody of their children.

A parent’s right to direct the religious upbringing of a child may be subject to limitation “if it appears that parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens.

In other states, for example in Massachusetts, courts upheld a prohibition that a parent “shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about their mother or about themselves.

The Washington Court of Appeals found that, as written, the order limited religious topics the parents may discuss with the children in potentially undefined and subjective ways, and is not specific to non-disparagement of the respective parents’ spirituality.

The Court of Appeals of Washington opinion is here.

Yellowstone S5 E1 Dances with Prenups

Posted by Ron Kauffman on

Like an episode of Yellowstone, Kevin Costner and his estranged wife Christine Baumgartner are in court fighting over the validity and enforceability of the kind of agreements many celebrities sign before their marriage: prenups.

Yellowstone Prenup

“We’re enemies now”

Costner and Baumgartner have already battled it out over custody and living arrangements with Baumgartner being forced to move out of the family home by July 31. Now the issue is the validity of the prenup. Although not reported in the Costner divorce, some people insist on putting unique clauses in their agreements.

Some couples have ‘anti-cheating’ clauses for instance. An anti-cheating clause tries to penalize a spouse for having an affair. There are also requests for clauses such as the one requiring that a spouse have sex on demand, or one in which a spouse must maintain a certain weight to remain in compliance with the prenup.

These sort of morality and other provisions are not really enforceable and may even violate public policy. Some of the things you can do to make sure your prenup is enforceable is to make sure that the agreement is fully negotiated, both parties have an opportunity to hire a lawyer, and that full financial disclosure is exchanged.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for cowboys on the Yellowstone. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement. Prenups are important to have in place before a married couple starts investing in businesses, properties, and other investments.

But prenups can be challenged in court too. Florida has both case law and a statute to help lawyers, judges, and the parties determine if a prenuptial agreement is enforceable. For example, Florida adopted the Uniform Premarital Agreement Act. The UPAA is a statute that requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Couples wanting to sign a prenup can enter into an agreement with respect to their rights and obligations in any of their property. Whenever and wherever property was acquired or where it is located; couples can control their right to buy, sell, use, transfer, or otherwise manage and control their property if they separate, divorce, or die.

When ruling on the validity of a prenup, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure. While prenuptial agreements may be challenged in court, we will have to wait and see if the court will invalidate Costner’s prenuptial agreement.

“You are the trailer park. I’m the tornado”

A prenup also has the unintended consequence of forcing people to talk about money before they start their marriage. It is difficult to have conversations about ‘what if’ we break up or one of us dies during marriage”, so couples tend to avoid discussing important questions. Only after people are married do spouses learn each other’s financial expectations. A prenup negotiation gets all that into the open up front.

Divorce attorneys add that some people might not marry after understanding their partner’s financial expectations – like sharing property owned before the marriage equally, and more. Jessica Simpson, who did not sign a premarital agreement when marrying Nick Lachey, later regretted her decision:

“I wish I would have signed a prenup and that’s the funny thing is that Nick wanted me to sign a prenup, but I was, like, so offended. I was like, ‘We’re going to be together for the rest of our lives. We’re saying our vows to God and in front of all of our family and friends. Like, this never gonna end.’ And, we didn’t sign a prenup.”

The reasons for signing a premarital agreement can vary, from a strong distrust that marriage can truly last a lifetime, to the need to control a partner, or simply good planning for the protection of both spouses. Prenups can be complex too. However, prenups can also be a major advantage when it comes to keeping lives in order in the event of divorce.

The Fox article is here.

Florida Alimony Reform 2023

Posted by Ron Kauffman on

Gov. Ron DeSantis signed a bill that will reform Florida alimony in 2023. The Florida alimony reform bill was signed after three vetoes of similar bills and a decade of legislative battles. But this year things changed. The 2023 proposal got the support of The Florida Bar Family Law Section, which had fought against poorly worded alimony reform bills in the past.

Alimony Reform

Florida Alimony

I’ve written about alimony in Florida before. In every Florida divorce case, the court can grant alimony to either party. Not many people realize there are several types of alimony in Florida: bridge-the-gap, rehabilitative, durational, and before July 1st, permanent alimony.

Florida courts can also award a combination of alimony types in a divorce. Alimony awards are normally paid in periodic payments, but sometimes the payments can be in a lump sum or both lump sum and periodic payments.

In Florida, once a court determines there is a need and the income available to pay alimony – sometimes referred to as the ability to pay alimony – it has to decide the proper type and amount of alimony.

Florida Alimony Reform

Last week the governor signed into law CS/SB 1416, which makes significant changes to alimony awards. The most talked about feature of the new law is that permanent alimony, which is sometimes called lifetime alimony, is eliminated.

The elimination of permanent alimony leaves only bridge-the-gap, rehabilitative, and durational forms of alimony. However, rehabilitative alimony has now been limited to five years. Additionally, durational alimony is now not awardable to people married for less than three years. But, if a couple has been married 20 years or longer, they will be eligible to receive payments for up to 75 percent of the length of the marriage.

Another big change is the new law’s limits on the amount of durational alimony. Durational alimony is now calculated to be the lesser of the recipient spouse’s reasonable need or no more than 35 percent of the difference between the parties’ net incomes.

Another change is in the area of supportive relationships. Courts reduce or terminate alimony in cases in which they find that a supportive relationship exists. The new law also places the burden on the payor of alimony to prove by a preponderance of the evidence that a relationship exists. Once proven, the burden shifts to the recipient spouse to prove by a preponderance of the evidence the court should not reduce or terminate alimony.

The new law also impacts modifications by codifying a 1992 Supreme Court decision that judges use as a guidepost when making decisions about retirement. If a payor of alimony wants to retire, he or she may apply for modification of the alimony award no sooner than 6 months prior to the planned retirement. The bill provides several factors courts have to consider in determining whether to modify or terminate alimony. The new law became effective July 1, 2023.

The new law is here.

Florida Releases Three New Child Custody Updates

Posted by Ron Kauffman on

Florida just released major new updates to our child custody and timesharing laws. With these new releases, family lawyers can expect a presumption in favor of a equal timesharing, some bug fixes, and overall improvements to enhance your user experience.

Child Custody Update

Florida Child Custody and Timesharing

Florida courts have consistently ruled that a parent’s right to the care and custody of his or her child is an important interest that is given deference unless there is some powerful countervailing interest requiring the child’s protection. Each parent also has responsibilities for their children, including supervision, health and safety, education, care, and protection.

Child custody in Florida is broken down into two distinct components: parental responsibility (which is decision-making) and timesharing (physical custody and visitation rights). Both components must be incorporated into a “parenting plan.”

Although the right to integrity of the family is among one of the most fundamental rights, when parents divorce or separate, the parents’ rights are subject to the overriding concern for the ultimate welfare their children. We call this, the “best interest” test.

Florida did not have a presumption in favor of any specific timesharing schedule. In establishing timesharing, the court always considered the best interests of the child and evaluated all factors affecting the welfare and interests of the child and the circumstances of the family.

What’s new in the latest release?

Equal Timesharing

One of the latest updates just released is a new presumption in favor of equal timesharing for both parents. According to the release notes:

There is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child. Except when a time-sharing schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in subsection (3) and make specific written findings of fact schedule when creating or modifying a timesharing schedule.

With this new update, Florida has created a rebuttable presumption that equal timesharing is in the best interest of the child at issue. As such, a court must operate under the rebuttable presumption in favor of equal timesharing when creating or modifying a parenting plan.

In order to overcome the new law’s rebuttable presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child.

The new law still generally requires a court to evaluate all factors listed under the statute, however now it requires the court to provide written findings of fact for such factors.

Modifications

A new bug fix is an update to the procedure for modification of parenting plans. Generally, a court may only modify a parenting plan and timesharing schedule after a substantial, material, and unanticipated change in circumstances has been established.

The requirement for a substantial change in circumstances promotes finality in family cases, and reflects the general belief that stability is good for children. The test to modify timesharing of a minor child is to prove circumstances have substantially and materially changed since the original custody determination; the change was not reasonably contemplated by the parties; and the child’s best interests justify changing custody.

Demonstrating a substantial change in circumstances is an extraordinary burden on users. But the burden was a design feature not a flaw. The heavy burden is intended to preclude parties from continually disrupting the lives of children by initiating repeated custody disputes.

However, when there have been significant changes affecting the well-being of the child, especially when the change of circumstances has occurred over a substantial period of time, changes may be necessary.

The new update streamlines the modification experience by removing the requirement that a party who demonstrates the alleged substantial and material change in circumstances which warrants modification of a parenting plan or timesharing schedule, must also demonstrate that the change be unanticipated.

Relocation

Another bug fix attempts to streamline the user’s relocation experience. There is currently no presumption in favor of or against a request to relocate with a child when the relocation will materially affect the current timesharing and contact with the other parent.

But simply relocating alone was not considered a substantial change in circumstances to warrant modification. If you were the user seeking to modify timesharing, you still had to overcome the substantial change test before a court could address the modification.

In custody disputes involving the relocation of a parent, courts generally conclude that the relocation does not amount to a substantial change if the relocation is not a significant distance away from the child’s current location. As such, a parent’s relocation alone is not considered a sufficient to trigger a modification of timesharing and custody under current law.

Under the new law, if the parents of a child live more than 50 miles apart when the last order establishing time-sharing is entered, and a parent subsequently moves within 50 miles of the other parent, then that move may be considered a substantial and material change in circumstances for the purpose of modifying the time-sharing schedule.

The move does not need to be unanticipated to warrant a modification of the time-sharing schedule. However, modification of the time-sharing schedule may not be permitted if the modification is not in the best interests of the child after an analysis of the statutory factors.

The new statutory amendments are here.

Version 61.13 will be available July 1st.

Child Abduction and the Grave Risk Exception

Posted by Ron Kauffman on

Few people outside of international family law attorneys know that even if a child abduction is proven, courts don’t have to return a child if the grave risk exception, or another treaty defense, is proved. The grave risk defense took center stage at a recent appeal of a child abduction case.

brazil child abduction

Garota De Ipanema

The mother, Dos Santos, and the father, Silva, met in 2011 in Brazil. They have one child together, a daughter who was born in 2012 in Brazil. The three lived together in Brazil until April 2020, when the parents separated.

In August 2021, the mother left Brazil with their daughter and traveled to the United States. The mother did so without the father’s consent to move the child permanently. to the US.

After he learned that his daughter was in the US, the father filed an application with the Brazilian central authority for the return of his child under the Hague Convention. The Brazilian government referred the matter to the United States Department of State-the United States’s central authority under the Convention.

No one disputed at trial that the mother wrongly removed her daughter from the her habitual residence in Brazil and from the lawful joint custody of her father, and abducted her to the US. Normally, that would mean the child would be promptly returned to Brazil.

But the mother claimed returning their daughter posed a grave risk that the child will be exposed to physical or psychological harm or an otherwise intolerable situation.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

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.

While there are several defenses to a return of a child, the grave risk defense is one of the frequently relied on, and misunderstood defenses available under the Convention.

Mas que nada

Generally, the Hague Convention has six exceptions. In the recent Brazilian case, the mother alleged the grave risk defense. Under this defense, return to Brazil is not required if there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

However, the grave-risk exception is narrowly construed and has a higher burden of proof than most of the other defenses. At the trial, the judge found that the mother had failed to establish that the child will face a grave risk of physical or psychological harm should she be returned to Brazil.

Without an established exception, the trial court granted the father’s petition for return of the child to Brazil

The Mother appealed and the appellate court reversed. The mother described an altercation between the father and her subsequent boyfriend which may have been videotaped. But the video recording was not brought in as evidence. The court also heard from two other witnesses who saw the mother with bruises and a witness who testified about threatening social media messages.

Importantly, the trial judge didn’t believe the father’s testimony. To the appellate court, that meant the trial judge should have considered the father’s testimony as corroborating substantive evidence that the mother’s allegations were true.

Because the trial judge thought there were some issues with the father, including “anger management issues” and “making threats to people”, a majority of the appellate panel felt the trial judge mistakenly felt her hands were tied.

The appellate decision is here.

Beautiful No Fault Divorce

Posted by Ron Kauffman on

Divorce lawyers hear many reasons for filing for divorce. “My spouse is too beautiful”, however, is a new one. But it does not matter as most states abolished fault as a ground for divorce. But in some state legislatures there is an effort to overturn our system of no-fault divorce.

beauty no fault divorce

In the eye of the beholder

A prominent right-wing commentator, Steven Crowder, is making waves this month after he complained his ex-wife started the divorce process on her own. Crowder emphasized the divorce was against his will, and is blaming the no-fault system of divorce:

“Since 2021, I’ve been living through what has become a horrendous divorce. . . This was not my choice. My then wife decided she didn’t want to be married anymore. And, in the state of Texas, that is completely permitted.”

Crowder’s comments come on the back of recent proposals by state legislatures to overturn no-fault divorce laws on the books in Texas, Nebraska, and Louisiana. The repeal of no-fault divorce would hit Zambian husband, Arnold Masuka, hard.

Masuka has taken the extraordinary step of seeking the dissolution of his marriage because his wife is exceptionally beautiful.

This surprising revelation left officials and witnesses in awe at a local court in the Zambian capital city of Lusaka. The newspaper, Zambian Observer, reported that during the divorce proceedings, Masuka shocked those present in court when he candidly expressed to the judge that his wife, Hilda Muleya, possessed a beauty that had caused him countless sleepless nights.

The sheer allure of his wife had become an overwhelming source of anxiety for him, leading him to make this unconventional request. Masuka explained to the court that he lived in a state of perpetual fear, constantly worried about the possibility of losing his wife to another man.

Florida No-Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. Interestingly, given the recent attack on no-fault divorce, it was former Governor Ronald Reagan of California who signed the nation’s first no-fault divorce bill.

The no fault divorce law eliminated the need for couples to fabricate spousal wrongdoing in pursuit of a divorce; indeed, one likely reason for Reagan’s decision to sign the bill was that his first wife, Jane Wyman, had unfairly accused him of “mental cruelty” to obtain a divorce in 1948.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your wife’s exceptional beauty. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Lost in Lusaka

Masuka’s increasing fear of his wife’s beauty had grown so intense, that he found himself hesitating to leave his wife Hilda unattended. He stopped going to work, and was totally consumed by the nagging thought that his wife might be lured away by other suitors.

In Masuka’s eyes, Hilda, originally from Gokwe, Zimbabwe, was the epitome of beauty. Among all the women he had encountered in his life, none had captivated him quite like her. This powerful attraction had become both a blessing and a burden, fueling his insecurity and prompting him to take this unusual legal recourse.

As the court listened attentively to Masuka’s heartfelt plea, it became evident that his intentions were driven by genuine concern for his wife’s well-being. However, whether the dissolution of their marriage was a viable solution remained to be seen.

Ultimately, the fate of Arnold Masuka’s marriage rests in the hands of the court, which will consider the implications of his request for dissolution.

The Nigeria World article is here.

UCCJEA and Gender Dysphoria

Posted by Ron Kauffman on

The UCCJEA, the scaffold of our interstate child custody system, has two dueling new exceptions related to child gender dysphoria. What will be the impact on interstate child custody lawyers with the latest UCCJEA changes sweeping the country?

UCCJEA Sex

An Increasing Health Care Concern

Children in the U.S. can identify as a gender different from the one they were assigned at birth. The number of children identifying as gender nonconforming and transgender is growing.

Health technology company Komodo Health Inc., attempted to quantify the number of children seeking and receiving care by analyzing millions of health insurance claims. Between 2017 and 2021, the number of new diagnoses of children aged 6-17 with gender dysphoria increased by nearly 178 percent.

Of these cases, a smaller number of children with gender dysphoria are choosing medical interventions to express their identity. Appropriate treatment for children diagnosed with gender dysphoria is the subject of debate internationally, and not surprisingly, among different U.S. states.

Dysphoria in the UCCJEA

I have written and spoken on many issues related to the UCCJEA as a family law attorney. Next month I will be presenting an introduction to the UCCJEA for foreign lawyers at the IV Congreso Internacional de AIJUDEFA in Mexico.

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; and has the aspirational goal of promoting uniformity of the laws governing custody issues.

One of the ways the UCCJEA helped to avoid jurisdictional competition in child custody matters is by solving the historic problem of different courts issuing different orders covering the same child. Under the UCCJEA one state is a child’s home state, and the home state keeps exclusive jurisdiction to modify the custody arrangement unless, for example, the child is another state and there is an emergency.

uccjea

Dueling Banjos

Periodically, child custody disputes can become emergencies. The UCCJEA provides deliverance from such disputes by authorizing any state – even if it is not the home state of the child – to take temporary emergency jurisdiction to protect a child subject to, or threatened with, mistreatment or abuse.

California recently amended its version of the UCCJEA. California Governor Gavin Newsom – fresh from having visited Florida to poke fun of Gov. DeSantis – signed a bill expanding temporary emergency jurisdiction in California under the UCCJEA.

Effective this year, California courts are now authorized to assume temporary emergency jurisdiction of children in California, who are subjected to, or threatened with, mistreatment or abuse, “or because the child has been unable to obtain gender-affirming health care or gender-affirming mental health care.”

Florida recently amended its version of the UCCJEA. Gov. DeSantis – fresh from having visited California to poke fun of Gov. Newsom – signed a bill expanding temporary emergency jurisdiction in Florida under the UCCJEA.

Effective this year, Florida courts are now authorized to assume temporary emergency jurisdiction of children in Florida, who are subjected to, or threatened with, mistreatment or abuse, “or It is necessary in an emergency to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures.”

The California Senate bill is here. The Florida Senate bill is here.

International Child Abduction Compliance Report

Posted by Ron Kauffman on

Each year, a country’s compliance with laws governing international child abduction is evaluated in a report issued by the U.S. Department of State. These annual reports show Congress the countries determined to have been engaged in a pattern of noncompliance. They also show if any countries cited in the past improved.

Compliance Report

2023 Report

Under the Hague Convention, the U.S. State Department is tasked as our Central Authority. The Central Authority facilitates implementation and operation of the Hague Convention on child abduction in the U.S.

After passage of the Sean and David Goldman International Child Abduction Prevention and Return Act, the State Department was later assigned the duty of submitting annual Action Reports on International Child Abduction to Congress on the specific actions taken in response to countries determined to have been engaged in a pattern of noncompliance.

In 2022, a total of 165 abducted children were returned to the United States.

The 2023 Annual Report is an overview of the Department’s efforts to support the resolution of international parental child abduction cases.

The Department also reports on their work with foreign governments and authorities to promote procedures to encourage the prompt resolution of existing international abduction cases. The aim is that, in general, international custody disputes should be resolved in the competent court of the country of the child’s habitual residence.

Countries which don’t meet their Convention obligations, or fail to work with the U.S. to resolve child abduction cases, can face “appropriate actions.”

Florida International Child Abduction

I’ve written and spoken about international child abduction compliance under the Hague Convention before. The Hague Convention seeks to deter child abductions by a parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. Then in 2014, the International Child Abduction Prevention and Return Act was signed into law.

Even if a country is a signatory country and treaty partners with the U.S., returning a wrongfully retained or abducted child may still be complicated because some signatory countries are not complying with the Convention. That is where the State Department’s annual reporting comes in.

ICAPRA increases the State Department’s annual reporting requirements. Each year, the Department not only submits an Annual Report on International Child Abduction to Congress, it submits another report on the actions taken towards countries determined to have been engaged in a pattern of noncompliance.

Don’t cry for me, Argentina

The State Department reports include both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention, and countries where no treaty relationship exists, such as Russia.

The 2023 Action Report reviews the results of cases which were resolved the previous year. Some of the countries in our hemisphere which failed to regularly implement and comply with the Hague Convention include Argentina, Belize, Brazil, Ecuador, Honduras, and Peru.

The Convention has been in force between the United States and Argentina since 1991.  In 2022, Argentina had continued to demonstrate a pattern of noncompliance.  Specifically, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention.

As a result of this failure, 50 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. Granted, there was only 2 abduction cases in Argentina. One case was resolved with the return of the child, and the other one is still unresolved after a year. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2022 Annual Reports.

ICAPRA also adds steps the U.S. can take when a country refuses to cooperate in the resolution of overseas abduction and access cases involving American children. The steps can include: a demarche (a petition or protest through diplomatic channels); public condemnation; delay or cancelation of official, or state visits; suspension of U.S. development assistance; and even the withdrawal or suspension of U.S. security assistance.

The 2023 Report is available here.

AAML, Trusts & Divorce

Posted by Ron Kauffman on

I was honored to be invited to speak at the American Academy of Matrimonial Lawyers (AAML) Florida Chapter’s 45th Institute on Family Law on the topic of trusts and divorce. I spoke with co-presenters: AAML Fellow, J.J. Dahl, and estate and trust attorneys, S. Dresden Brunner, and Sarah Butters. The AAML Institute is the premier, advanced continuing education opportunity for family law in Florida.

Trusts and divorce 2

Trust Basics

Divorces typically involve the equitable distribution of marital property, the payment of spousal support, maintenance and alimony to a spouse, and child support for the children. Worryingly, trusts have increasingly become a problem in divorce proceedings.

Estate planners love to use acronyms to describe their estate planning tools: ILIT, QTIP, QPRT, SLAT, and of course, APT (asset protection trusts). An asset protection trust is just that, a trust designed to protect a donor-spouse’s assets from creditors, while still allowing some discretionary access to the assets for the donor.

By design, APTs don’t allow the donor-spouse to have complete access to the funds, and decision making about paying distributions is usually in the hands of an independent trustee.

Florida does not permit asset protection trusts. However, Florida residents create them in other states, most notably Nevada, and even in other countries.

Trusts can raise several issues when divorcing. Some types of trusts are created by third party grantors, while others are self-settled trusts. In divorces, one of the two spouses is the beneficiary, and may have other roles. The assets in third party trusts belong to the trust, not the spouse. These types of trusts are not usually subject to equitable distribution, but the income may be calculated for determining support. There is also the possibility that assets may be subjected to attachment by the court.

Trusts may be revocable and irrevocable. Irrevocable trusts are generally created by one of the spouses and may be marital unless solely separate funds were used to fund it. A key distinction of revocable trusts is that the grantor keeps control over the assets, and in a divorce, a court can order trust assets to be distributed.

Untrustworthy

Irrevocable trusts are not themselves marital assets subject to distribution, even if a spouse intentionally funds it with marital property. Trusts are governed by the probate code, and there is no corresponding ability to ‘pierce the veil’ in trust law as there is for corporations.

Trusts may also be an obstacle when trying to recover unpaid alimony and child support. This is where the different public policies supporting probate law and family law clash. People create trusts legally, for the purpose of protecting property and income for the beneficiary. Some trusts are created to protect beneficiaries from themselves. During a divorce, Family law seeks an equitable distribution of marital assets, not asset protection.

Trusts typically have spendthrift clauses to protect beneficiaries. A spendthrift clause prevents a creditor who is owed money by a beneficiary from forcing the trustee to pay over the beneficiary’s share of the trust.

In essence, as long as the trust assets are still held by the trustee, they are out of reach of the creditor. If not for spendthrift clauses, trust beneficiaries who owe creditors money could see their trust benefits attached by a court when trust funds are distributed.

Spendthrift clauses, which are an essential part of trusts, can be a huge problem in divorce. Former spouses may be owed alimony and child support by a trust beneficiary. In those cases, former spouses are considered creditors of the beneficiary who is obligated to pay. When alimony and child support are owed by a trust beneficiary, many factors will impact whether a court will be able to order alimony and child support to be paid from trust assets.

More about the AAML Florida Chapter and the Institute is available here

 

 

Divorce Waiting Period

Posted by Ron Kauffman on

Many U.S. states, including Florida, have a waiting period before you can divorce your spouse. In India, the Supreme Court just ruled that it can enter a divorce without a waiting period in cases of irretrievable breakdown of marriage.

Divorce Waiting Period

India Divorce Waiting Period

The Supreme Court’s judgment relates to a 2014 case filed in the top court, titled Shilpa Sailesh vs. Varun Sreenivasan, where the parties sought a divorce under Article 142 of the Indian Constitution.

The procedure to obtain a divorce by mutual consent is laid down in Indian law, which states that both parties can file a petition for dissolution of their marriage by presenting a decree of divorce to the district court, on the grounds that they have been living separately for a year or more or that they have not been able to live together or have mutually agreed to dissolve their marriage.

However, both parties seeking divorce have to wait between 6 to 18 months from the date on which they presented their petition to obtain the divorce decree. The waiting period for divorce is given so that the parties have ample time to withdraw their plea.

After the passage of the mandated period and hearing both parties, if the court is satisfied, it may conduct an inquiry and pass a decree of divorce, dissolving the marriage with effect from the date of the decree. However, these provisions apply when at least one year has elapsed since the marriage took place.

Additionally, divorce can be sought by either spouse on grounds like adultery, cruelty, desertion, religious conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death. In circumstances of exceptional hardship or depravity, a divorce petition may be allowed under Section 14, even before the lapse of one year since marriage.

Florida Divorce Waiting Period

I’ve written about divorce waiting periods, and your rights in divorce before. Like India and other states, Florida also has a divorce waiting period of sorts. Although it’s not as long as other states  or India’s six to 18 month policy. In Florida, no final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage.

The thinking behind waiting periods in Florida reflects the protective regard Florida holds toward the preservation of marriage and a public policy that marriage is the foundation of home and family.

In some cases the waiting period is longer. For instance, no dissolutions in Florida are allowed in cases of an incapacitated spouse unless the party alleged to be incapacitated has been adjudged incapacitated for a preceding period of at least 3 years. However, the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

Patience is a virtue, impatience a vice

In India, the mandatory six-month waiting period under can also be waived by filing an exemption application before a family court in a motion for the court to pass a decree of divorce. The high court has ruled:

“Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage.”

Accordingly, if a marriage has broken down irretrievably, the spouses have been living apart for a long time unable to reconcile their differences, and then they mutually decided to part, it is better to end the marriage to enable both spouses to move on with their lives, the court said.

While the parties can approach the family courts for initiation of divorce proceedings, this process is often time-consuming and lengthy, owing to a large number of similar cases pending before such courts. If the parties wish to opt for a divorce more expeditiously, they can approach the Supreme Court for the dissolution of their marriage.

The Indian Supreme Court also aims to clarify whether the application of its powers would extend to all divorce cases; and whether it could be used in cases where one of the parties is not consenting to the divorce. For this, the court appointed senior advocates for assistance in the case.

The Indian Express article is here.