Category: Agreements

Shared Custody Agreements and Religion

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, January 18, 2013.

Joint child custody in parenting plans and agreements help resolve a lot of the child timesharing issues after the divorce. But sometimes the provisions conflict with each other. The Volokh Conspiracy recently reported on the interesting New York case of Katz v. Katz. Katz involves two ultra-orthodox Jewish parents. The parties separated religiously, but never had a court approve their agreement. The agreement said:

(7) JOYOUS OCCASIONS. The Child will participate in every joyous occasion of the relatives who are disqualified as witnesses, such as engagement, wedding . . .

(8) EDUCATION. The 2 parties are obligating themselves to raise The Child to appropriately respect the 2 parents. . . No party will take The Child to any place which is incompatible with the aforementioned style and manner, not even temporarily . . .

The mother wanted to travel to Israel with the child for her brother’s wedding. The father objected, citing his religious beliefs that travel to Israel violated the religious views of his Jewish sect. He argued travel to Israel would undermine the child’s religious beliefs, confuse the child and “would be against the child’s best interests because he is too young to understand the differences that he will be exposed to in Israel . . .”

The mother noted that the father himself has already traveled to Israel – in fact he acknowledged that he traveled to Israel three times, and as recently as within the last 12 months, but that each time he traveled to Israel it was in his adult life, not as a child.

Strangely, the judge ruled:

At this juncture, it is not in this child’s best interest to require him to travel to Israel for a celebration; the emotional risk to him outweighs any benefit that conceivably would be derived from the experience. Furthermore, the mother did not demonstrate any serious adverse affects that would be contrary to the child’s best interests if he were to stay.

As a side note, religion and divorce often get thrown together, such as in the Muslim Mehr agreements I blogged about earlier. The establishment clause tries to separate government and religion, but Katz shows why it can’t be avoided sometimes. However, the Establishment Clause is usually not violated when neutral principles of law, such as the best interest of the child test, can resolve a dispute without relying on religious doctrines.

Bad Gift Idea for a Second Marriage: A Muslim Prenup

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, September 11, 2012.

In an earlier post I hinted that a prenup made a fine gift for a second marriage. But not all prenuptial agreements are created equal. An interesting case out of Kansas City refused to enforce a Muslim divorce. News of the case comes from The Volokh Conspiracy.

The Muslim premarital agreement is known as a mahr agreement. Mahr agreements are negotiated before the marriage between the groom and the bride’s family. Mahr agreements have two parts: a premarital payment in exchange for marriage vows, and a post-nuptial payment made if the marriage ends in divorce or death (a sort of deferred settlement). According to the wife in the Kansas case, her mahr agreement required the Husband pay her the deferred payment of 1,354 gold coins – worth about $677,000.

There were a lot of problems with the mahr agreement in the Kansas case. These problems often arise in marriage contracts from foreign countries which are primarily for religious purposes, or intended to be enforced in religious or foreign courts. The most important grounds the court gave for not enforcing the mahr included:

1. The mahr was never translated into English;

2. The mahr would function as a penalty, and Kansas is a no-fault state;

3. The mahr created tension between the Establishment and Equal Protection Clauses; and

4. The court suggested the mahr might not even qualify as a prenuptial agreement.

Florida law is slightly different from Kansas in this area. There are very few Florida appellate cases, and no Florida Supreme Court cases about mahr agreements. However, at least one Florida court has held muslim religious agreements may be enforceable in Florida, if they comply with secular contract law.

Whether you have a foreign premarital agreement, or want to enter into one, you can incorporate your religious or secular customs into a legal agreement, and have them enforced in Florida. As the Kansas case shows though, this is not something to be left for the imams back home.

Good Gift Idea for a Second Marriage: A Prenup

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, September 6, 2012.

The probability of divorce is around 50% for first marriages. For second marriages, it’s more like 67%. The National Center for Family and Marriage Research recently analyzed the data, and found that the overall divorce rate was greater for second marriages.

What some clients don’t realize is that going through a second, third, or fourth divorce can be more complicated than first-time divorces. In multiple divorces, couples are older, and have less time to make up for losses. Also, couples are competing for dwindling resources. Child-support, alimony, and dividing up of the retirement accounts may still be pending, and there can be little left to divide in a second divorce.

Prenuptial agreements can be extremely important if you are thinking of marrying again, and they are not just for the ultra-rich. You can limit what’s in a prenup. Some can simply state what assets each party has brought into the marriage, and what assets each party will take away if the marriage ends. Or, if there is a disparity in incomes, you can add to the contract how much the lower-income spouse will receive. Also, if you have children from previous marriages, you can also provide some protection for an inheritance.

Of course, a prenup isn’t a requirement, you could just live together without the vows.

That may turn out swell if you are both earning about the same amount of income. Boback cautions, however, “It’s good for the person with all the stuff — and money. But the person who takes care of the home or kids and has nothing of their own after, say, 10 years of living together and then splitting up? They’re out of luck.”