Injunction for Posting Negative Comments

Posted by Ron Kauffman on

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

Arizona Injunction

Monumental Decision

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

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

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

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

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

Florida Domestic Violence

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

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

Cyberstalking is another form of harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Injunction Valley

Valley of Decision

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

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

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

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

The Arizona Court of Appeals opinion is here.

Cryptocurrencies are now Marital Property in South Korea

Posted by Ron Kauffman on

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

South Korea Bitcoin

Bitcoin and Bibimbap

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

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

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

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

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

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

Florida and Cryptocurrency

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

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

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

A Cryptocurrency Armistice

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

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

The Korean Law Blog article is here.

Islamic Triple Talaq Divorce and the UCCJEA

Posted by Ron Kauffman on

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

Triple Talaq UCCJEA

No Place Like Home

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

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

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

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

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

Florida and the UCCJEA

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

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

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

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

Triple Talaq Trouble

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

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

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

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

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

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

The appellate opinion is here.

Fighting A Fraudulent Divorce

Posted by Ron Kauffman on

In Louisiana’s Cajun country, a woman is fighting in a family court after finding out her husband of 12 years is trying to get away with a major fraudulent divorce scam. According to reports, her husband used a woman to impersonate his wife in order to get his divorce decree. What are some ways to protect yourself from a fraudulent divorce scam?

Divorce Fraud Bayou

Divorce Gris Gris

Teqela Mouton is going through a mix of emotions after learning her husband, Kendrick Paul Francis, was allegedly part of a scheme to get a fraudulent divorce from her. A worse surprise was finding out her husband’s friend, LaShonda Pope, allegedly impersonated her to obtain the divorce final judgment.

“The way I’m feeling right now is insane. I really don’t know how to feel that a person could actually steal your identity and get away with it.”

Mouton now lives in Texas where she and her husband have been married for 12 years in November. They have two children together, ages 9 and 14. Mouton said for the past two years, she has been traveling back and forth to the Acadiana region of Louisiana to gather information on how she ended up getting divorced without her noticing?

“My husband did not contact me, told me anything about he wanted to divorce me and didn’t tell me that he filed for a divorce. If he wanted a divorce, I would have given it to him.”

Mouton said she never received a summons and was not present in any court proceedings for the alleged divorce.

Florida Fraudulent Divorce

I have written on fraud in divorce before. But an actual imposter posing as you to get a divorce is a fraud that is not a common occurrence. But fraud can happen. Historically in Florida, a contrived, false or fraudulent grounds for a dissolution of marriage, and then terminating a marriage through fraud on the courts, was not tolerated. This is inherent in the judicial process.

Fraud could also take the form of misrepresentations, concealments or untruths by a spouse. Courts will not indulge or reward falsehoods, and when a fraud upon the other spouse, or on the court, is proved it would be a failure of proof that the marriage was irretrievably broken for instance.

In addition, courts can relieve a party from a final judgment of dissolution of marriage for fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party under the rules of procedure. However, the motion must be filed within a reasonable time, and not more than 1 year after the judgment unless the motion is based on fraudulent financial affidavits in marital or paternity cases.

A Fraudulent Fais Do-Do

Mouton never received the paperwork, couldn’t get actual copies of the final judgment or pleadings, and the only thing the courthouse let her do was to look at the documents in the court file. She says that the documents she reviewed had a lot of incorrect information, from spelling of names, to children’s birthdays, to wrong addresses.

Then she saw where the summons was originally sent to, LaShonda Pope’s address in Abbeville, Louisiana even though Mouton had been living in the state of Texas since 2022. She gathered the information from the courthouse, and went to an attorney.

In a voice recording shared with local news in Louisiana, the imposter told Mouton:

“You have been divorced, it’s public record. Guess what you see that ring, guess what I’m about to be married to him next. So you can get ready. I’ll get you an invitation.”

According to the state of Louisiana, Mouton and her husband Francis are still married. St. Martin Parish considers the divorce decree to be fraudulent. The police have been involved. The imposter has had an arraignment at the Vermilion Parish courthouse, and is being charged with first-degree injuring public records. She has pled not guilty.

The KLFY article is here.

Paternity and Celebrity

Posted by Ron Kauffman on

Paternity meets celebrity after rocker, Dave Grohl, announces he is welcoming a child, but his wife of 21 years is not the mother. Dave is rumored to have already retained a divorce lawyer. Besides the couple’s raw emotions, what are some of the family law issues involved when a spouse has a child outside of the marriage?

Celebrity Paternity

I have a confession to make

Dave Grohl was the drummer for grunge band Nirvana, and is the founder, lead singer, guitarist, and principal songwriter of the Foo Fighters. Dave is recognized as the father of rock ’n roll these days: he’s talented, family-oriented, and beloved by fans, musicians and divorce attorneys alike. His nickname is “the nicest dude in rock.”

Dave and his wife Jordyn Blum met in 2001 when she was working as a producer at MTV. They married in 2003. They share three kids. His previous marriage ended in 1997. This week Dave’s reputation may have taken a hit after he announced in a post that he was having a child outside his marriage:

“I’ve recently become the father of a new baby daughter, born outside of my marriage. I plan to be a loving and supportive parent to her. I love my wife and my children, and I am doing everything I can to regain their trust and earn their forgiveness. We’re grateful for your consideration toward all the children involved, as we move forward together.”

The decision by Dave to make a pre-emptive announcement may well have been an attempt to control the narrative, something that crisis communications experts say is savvy. But there are also important family law issues when you have an extra-marital relationship which results in the birth of a child.

Florida Paternity Law

I have written about Florida family law matters, such as paternity, before. When a child is born during a marriage, the legal duty to support that child presumptively rests with the married couple. This presumption protects the welfare of the child. In Dave’s case, it is unclear if the natural mother of Dave’s child is married to another man.

Florida has specific laws relating to children born out of wedlock. Right now, Dave would be considered a “putative father”, meaning someone who may be the biological father of a child, whose paternity has not been established, and the child’s mother was unmarried when the child was conceived and born.

Generally, the parents of a child born out of wedlock, after paternity is established, are the natural guardians of the child, and are entitled and subject to the rights and responsibilities of parents.

But until the father has established paternity under Florida law, the mother of a child born out of wedlock is the natural guardian of the child. Before a court determines paternity, the mother is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.

Monkey wrench

The announcement was met with different reactions. Some fans took it as a personal affront. Mockery and memes of a sad-looking Ben Affleck also proliferated online, even as Dave pleaded for “consideration toward all the children involved, as we move forward together.”

The level of upset by fans speaks to Dave’s place in the music world, where he has reached high levels of adoration and respect. He is one of just a small group of musicians enshrined into the Rock & Roll Hall of Fame with two bands.

But Dave is not the only celebrity to have paternity issues. He joins a list that includes Governor Arnold Schwarzenegger, Bob Marley, and Eric Clapton. While Dave’s celebrity paternity announcement may have gotten ahead of the news, it also left several unanswered legal questions.

The Newsweek article is here.

Divorce after Death in Japan and Florida

Posted by Ron Kauffman on

While rocky marriages in Florida may end in divorce, in Japan, there is a growing trend for couples to divorce after the death of one of the spouses. Many Florida divorce and family lawyers may not be aware of this Japanese concept of a posthumous divorce. Why is divorce after death growing in popularity in Japan and who is behind it?

Divorce After Death

Lost in Japan

Cases of divorce after death have been skyrocketing in Japan, more than doubling in just a decade. Studies have shown that women are overwhelmingly the ones filing to divorce their husband’s families after death. The reason comes down to cultural expectations toward wives in Japan.

The notion of a meddlesome in-law is a classic in western culture. But in Japan, they have an official process for severing one’s ties with a deceased spouse’s family called 死後離婚 (shigo rikon) in Japanese.

A shigo rikon is not a situation in which a spouse dies during the pendency of an ongoing divorce proceeding. A Japanese shigo rikon – is very different from your basic 離婚 (rikon, “divorce”). A rikon divorce can only be obtained while both spouses are still alive. This allows the surviving partner to inherit the deceased’s legacy and pension.

The technical term for a shigo rikon is “notification of marital relationship termination”, which means one is officially severing ties with the family of a deceased spouse. There are cases where a first-born might specifically leave their inheritance to their spouse in their will, at which time the person seeking the posthumous divorce would have to arrange a successor in the late spouse’s family first.

Even if a spouse is living with the in-laws at the time of the death, they would no longer have a legal obligation to take care of them. It becomes more of an ethical situation whether or not to continue doing so.

Florida Death and Divorce

I have written about divorce and Japan before. There is no similar process for a shigo rikon in Florida. It is the law in Florida that a marriage, being a purely personal relationship, is automatically terminated by the death of either spouse. The reason is simple: a dissolution of marriage action is a purely a personal action, so it cannot survive the death of either person in the marriage.

But, while a Florida divorce court loses jurisdiction if one of the spouses dies, if a final judgment of dissolution has been entered before the death of a spouse, the family court could keep its jurisdiction to determine property rights after the spouse’s death.

If you are involved in a divorce action, it is important to consider your estate planning documents and speak to a specialist in that area of law. While Florida does not prohibit you from amending your will or trust or changing beneficiary designations, some Florida jurisdictions have temporary standing orders impacting amendments to estate documents.

Big in Japan

A shigo rikon has no effect on your legal relationship with your deceased spouse. So, you can still keep your spouse’s surname and are still eligible for all inheritances, pensions, and insurance policies as they were before the posthumous divorce.

According to data from Japan’s Ministry of Justice, the number of posthumous divorces averages around 4,000 per year. Many of these cases use the divorce as a tool when spouses are dragged into inheritance disputes or other problems by order of the deceased’s will.

A shigo rikon shouldn’t be taken lightly though. It may not only impact relationships with in-laws, but could potentially impact relations between children and other relatives. Removing the responsibility for memorial services and grave upkeep may make it more difficult for a widow to participate in those services or visit his grave. And once the documents are filed, the process cannot be undone.

Despite those risks, shigo rikons are viewed as empowering for Japanese women, and an increase in the use of the process may demonstrate a change in family values and mindset in Japan.

The Sora News 24 article is here.

Interstate Alimony Awards

Posted by Ron Kauffman on

Are interstate alimony awards enforceable and modifiable in Florida after an interstate divorce? An Alabama ex-spouse who moved to Florida discovers the answer is more complex than many family lawyers might think. This recent case shows how a court should treat interstate alimony awards.

Interstate Alimony 2

Sweet Home Alabama

The parties divorced in 2004 and a Final Judgment of Divorce was entered in Alabama. That judgment adopted the parties’ marital settlement agreement. Under their agreement, the husband agreed to pay the wife $1,000 per month in alimony. But over time, the wife was receiving her ex-husband’s Social Security benefits, and that raises an issue about whether social security benefits reduce a spouse’s obligation to pay alimony and child support.

Later, the husband relocated to Florida. In 2013, the wife filed a Verified Petition to Establish Foreign Decree as Florida Order and for Enforcement of their agreement in Florida. In 2014, that family judge signed an order declaring it would apply Alabama law to resolve the legal issues raised in the wife’s petition in interpreting the agreement. The court also concluded that Social Security benefits may be used to satisfy an alimony obligation, or stated another way, were a credit against alimony due.

Over the years, while her petition remained pending in the family court, the wife challenged whether her former spouse was entitled to a credit against the required alimony payments for the payments she was receiving through his Social Security benefits.

In 2022, a Florida court denied her motions, finding that because she was receiving, through her ex-husband’s Social Security benefits, payments in excess of the alimony obligation, the alimony obligation was “terminated as a matter of law.”

Florida Social Security Benefits and Alimony

Under Alabama law, Social Security is the same as an insurance policy with a private carrier, similar to a parent insuring against death or loss of physical ability to fulfill moral and legal obligations to dependent children. Just as insurance payments may fulfill and discharge alimony, Alabama law reasons, why shouldn’t Social Security benefits apply to child support as well as alimony obligations?.

Florida is different. Court do not allow a spouse to unilaterally use social security disability payments, for example, as a set-off against past due alimony unless there is some compelling equitable criteria and considerations or a settlement agreement provides for it.

Alabama Getaway

The wife appealed. On appeal, the court held that while the agreement adopted under Alabama final judgment requires the husband to pay alimony, the trial court correctly determined that the wife did not establish that her ex-husband failed to meet his alimony obligation.

The trial court applied Alabama law and concluded that the payment of his Social Security benefits satisfied his alimony obligation in full.

However, the Florida family court had also concluded that his alimony and life insurance obligations were “terminated as a matter of law.”

The family court erred in declaring alimony was terminated in two ways. First, a Florida court lacks jurisdiction to terminate an alimony final order of another state under the Uniform Interstate Family Support Act.

Second, under Alabama law, an alimony obligation is not terminated through the payment of Social Security benefits. Rather, the party required to pay alimony receives a credit against an alimony obligation for Social Security payments or benefits received by the other party.

The opinion is here.

Recognizing International Divorce Decrees

Posted by Ron Kauffman on

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

Posted by Ron Kauffman on

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

Posted by Ron Kauffman on

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.