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Category: Divorce

Outlaw Divorce?

Posted by Ron Kauffman on

Swaziland’s King Mswati III has told leaders that it is against culture to divorce, and instructed them to tell citizens that there will be no pulling out from marriage, once it takes place. So much for no fault divorce in Swaziland.

Swaziland Divorce

King Mswati III of Swaziland is Africa’s last absolute monarch. The 49-year old king who calls himself “the lion,” owns most of the country’s land and rules by decree, appointing all of the government’s top positions. Now he may make Swaziland the first country in Africa to outlaw divorce.

“In our culture, once you marry someone, there is no turning back,” he said  speaking at an Easter ceremony earlier this month, according to a local paper, Times of Swaziland. There is no word for “divorce” in Siswati, the official language of Swaziland, the king added.

Swaziland officials have been quick to clarify that divorce has not been officially banned. The king’s comments, which are not a decree until he officially tables them, run counter to a recently submitted marriage bill by Swaziland’s attorney general that allows for divorce on certain grounds.

Divorce is not permitted under current legislation, but a process called Kumbuyisela ekhaya, which refers to reuniting a married woman with her family, is allowed.

King Mswati III has at least 15 wives, and is entitled to a new one every year, chosen at an eight day festival known as the reed dance. Polygamy is common in Swaziland where women are considered the property of their husbands. Domestic abuse and sexual violence are prevalent. Leaders often criticize ideas of equal rights for women as foreign values that should be subordinated to Swazi culture, according to Human Rights Watch.

Divorce Around the World

The Philippines is the only country in the world where divorce is illegal for most of the country’s population. (Muslims are allowed to divorce and the country’s mostly Catholic population can annul marriages.) In Vatican City, there are also no procedures for divorce.

Florida, of course is a “no fault” divorce state. I mentioned in an a earlier post that Florida abolished fault as grounds for filing a divorce. The only reason you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” But many people want to return to the old “fault” system to stem the numbers of divorces.

The King’s directive comes as the kingdom’s attorney-general is drafting a marriage Bill which will make it easier to divorce, particularly for women. The king’s wish is likely to become law, if he formally tables it. This would mostly affect women, whom it says are already oppressed.

“It is not necessarily a decree. However, given the vast powers that the king has it may sound as it is. Remember that he’s also a chairperson of the judiciary commission. I’m just imagining women going there to demand a divorce given that the judge himself will be worried about his job after they had to contradict their boss; in this case the king,” said Lucky Lukhele from the Swaziland Solidarity Network.

The article is available here.

 

Divorce & Halala Marriages

Posted by Ron Kauffman on

For Muslim women who divorce, a number of online sites are charging thousands to have “halala” marriages where you pay to marry, have sex with, and then divorce a stranger, to reconcile with your first husband.

Triple Talaq Divorce

As the BBC reports, Farah – despite an abusive marriage, hoped things would change. Her husband’s behavior worsened – leading to him “divorcing” her via text message.

“I was at home with the children and he was at work. During a heated discussion he sent me a text saying, ‘talaq, talaq, talaq’.”

“Triple talaq” – where a man says “talaq”, or divorce, to his wife three times in a row – is a practice which some Muslims believe ends an Islamic marriage instantly. It is banned in most Muslim countries but still happens.

Farah says she was “absolutely distraught”, but willing to return to her ex-husband because he was “the love of my life”. She says her ex-husband also regretted divorcing her.

This led Farah to seek the controversial practice known as halala, which is accepted by a small minority of Muslims who subscribe to the concept of a triple talaq.

Halala involves the woman marrying someone else, consummating the marriage and then getting a divorce – after which she is able to remarry her first husband. But in some cases, women who seek halala services are at risk of being financially exploited, blackmailed and even sexually abused.

One man, advertising halala services on Facebook, told an undercover BBC reporter posing as a divorced Muslim woman that she would need to pay £2,500 and have sex with him in order for the marriage to be “complete” – at which point he would divorce her.

Florida Divorce Reconciliations

I’ve written about the intersection of religion and divorce before. In Florida, there is no law or restriction on reconciliation with your former spouse after a dissolution of the marriage. In fact, many people have re-married their former spouse after the divorce.

During a divorce, courts can issue orders to promote a reconciliation of the parties. For example, when there are children involved in a divorce, or when someone denies that the marriage is irretrievably broken, the court can order you to consult with a marriage counselor, psychologist, psychiatrist, religious leader, or any other person deemed qualified by the court and acceptable to the parties.

The court can also continue the proceedings to enable you to effect a reconciliation; or take other actions in the best interest of the parties and the children.

Criticism of the Nikah Halala

There is a lot of criticism about the Nikah Halala marriage. For example, the BBC reports the Islamic Sharia Council in East London – which regularly advises women on issues around divorce – strongly condemns halala marriages.

“This is a sham marriage, it is about making money and abusing vulnerable people,” says Khola Hasan from the organization. “It’s haram, it’s forbidden. There’s no stronger word I can use. There are other options, like getting help or counselling. We would not allow anyone to go through with that. You do not need halala, no matter what,” she adds.

Farah ultimately decided against getting back with her husband – and the risks of going through a halala marriage. But she warns there are other women out there, like her, who are desperate for a solution.

“Unless you’re in that situation where you’re divorced and feeling the pain I felt, no-one’s going to understand the desperation some women feel.

“If you ask me now, in a sane state, I would never do it. I’m not going to sleep with someone to get back with a man. But at that precise time I was desperate to get back with my ex-partner at any means or measure.”

The BBC report can be found here.

Divorce & April 18th Tax Day

Posted by Ron Kauffman on

That is not a typo. Tax Day in the U.S. this year is on April 18th. And, if you divorce as of 11:59 p.m. on December 31st, you can file as single for the entire year.

Filing “single” might be better for you, and after a divorce, every cent counts. Some people may be better off filing “married jointly”, but sharing any tax savings, and sharing information with your soon-to-be Ex, may make filing “single” your choice.

Tax Penalties

I’ve written about divorce and taxes before. For example, the 2012 American Taxpayer Relief Act made permanent the Bush-era expanded standard deduction, and the expanded 15% bracket for joint filers.

But for high income earners, the 2012 law raised taxes on couples making more than $450,000, and individuals making more than $400,000. As it turns out, some couples found out they could save over $25,000 a year if they divorced.

If you could save over $25,000 a year in taxes, you could take a trip to Italy, ski Deer Valley, put a little cash away for college, and still have some mad money to spend just by divorcing and turning their marriage into a long term relationship.

There are also a lot of risks though, known and unknown. Consider how a divorce will impact your relationship. There is no fake divorce. Once the court signs the final judgment, you are divorced. IRS rules regarding your filing status have something to say.

In addition to knowing that the filing deadline to submit 2016 tax returns is Tuesday, April 18, 2017 – rather than the traditional April 15 date – Forbes Magazine has some additional tax year tips if you have divorced, or are in the process of divorcing.

Filing Status

Be sure to select the right federal tax filing status. As noted above, it’s based on whether you were married or single on the last day of the year.

If your divorce was finalized by year-end, file your taxes as a single person or, if you had a child and qualify, head of household status; head of household offers more tax advantages than filing as a single person. Otherwise, choose “married filing jointly.”

Exemptions

Claim an exemption for your child if you’re allowed. You may be eligible to lower your taxes by taking the dependent exemption for your son or daughter if you were divorced or legally separated last year. To do so, you must have been named the custodial parent in your divorce decree

Child Support

Don’t run afoul of the tax rules for child support. Neither you nor your ex can deduct child support payments you made. But child support you received isn’t taxed as income, either.

Alimony

Avoid getting tripped up by the tax rules for alimony. If your ex-spouse paid alimony – or gave you money each month to maintain your home and life – you may owe taxes on that income. Your former spouse can deduct the payments. The rules are reversed, of course, if you were the one paying alimony.

The Forbes article is here.

 

No-Fault Divorce Around the World

Posted by Ron Kauffman on

A British woman who alleges she was “desperately unhappy” being married lost her divorce. Unlike Florida, many places require proving fault, you can lose your case, and have to stay married!

As the BBC reports, Tini Owens, 66, asked the Court of Appeal to overturn a family court judge who turned her down when she asked to divorce her husband Hugh Owens, 78.

You read that correctly. Of all of the issues facing you when you divorce: who gets custody, how will I support myself, what are the tax implications of alimony, in some places you could actually lose your request to divorce and have to stay married.

The appellate court judges in Great Britain upheld the trial judge’s ruling. Mrs. Owens claimed that her marriage had broken down, but Mr. Owens disagreed.

The Husband argued that the couple still had a “few years” to enjoy. And the trial judge agreed with him. The judge ruled the Wife’s allegations were “of the kind to be expected in marriage”. Parliament decreed “it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”

Florida is a “No-Fault” state. No-fault laws are widespread across the United States, but not everywhere. No fault laws have helped to reduce animosity in divorces by reducing the need to distort, lie, and air dirty laundry.

I’ve written about no-fault divorce before. Florida abolished fault as grounds for filing a divorce. The only reason you need to file for divorce in Florida is that the marriage is “irretrievably broken.” But as the case of Mrs. Owens shows, in other places, that is not always true.

While Florida is a No-Fault state for divorce, it is interesting to know why people divorce. A recent study out of the UK reveals some surprising reasons why people divorce. Interestingly, adultery is a declining factor.

It appears that couples are less likely to cite adultery as the cause of a divorce than they were 40 years ago. However, claims of “unreasonable behavior” (a British term) have skyrocketed to more than 5 million divorce cases.

The BBC article is available here.

Religion: Divorce or Stay Married?

Posted by Ron Kauffman on

A woman sued her divorce lawyers for negligence, claiming they failed to tell her finalizing her divorce would end her marriage. Crazy, right? It also places the issue of religion and divorce back in the news.

According to the U.K.’s Independent, the divorce malpractice case had already been rejected by the court, but was before a higher British court on appeal.

Jane Mulcahy had argued that the lawyers should have made it clear that a divorce would cause her marriage to be terminated – something which she apparently wanted to avoid.

The lawyers failed to regard her Roman Catholic faith, and should have recommended judicial separation – a step down from full divorce – as an alternative course of action, she said.

I’ve written about religion and divorces before. Each religion has its own requirements for completing a divorce. Although religion is not a factor Florida courts can consider in granting a divorce, for the parties, religion can be extremely important.

Islam has a waiting period. The Catholic Church has the Decree of Invalidity and other remedies so spouses are free to marry again. In Judaism, a husband must give his wife a “Get”.

To avoid problems such as the British woman’s Florida allows people to file for alimony and child support unconnected with dissolution.

In Florida, if a spouse has the ability to contribute to maintain and support the family, but fails to, the other spouse can apply to a court for alimony and for support for the child – without seeking a dissolution of marriage.

Many people are often unaware that there are serious consequences to ending your marriage (loss of health insurance and tax implications for example) and that you can’t simply annul your marriage the way you can divorce.

In the British case, Lord Justice Briggs said:

“The most striking of Mrs Mulcahy’s many allegations of negligence against her solicitors was that, having regard to her Roman Catholic faith, Mrs Boots had failed to give her the advice which was requisite in view of her firmly held belief in the sanctity of marriage…

The Independent article is here.

Ben Affleck: Should You Separate or Divorce?

Posted by Ron Kauffman on

Jennifer Garner filed for divorce from her husband, actor Ben Affleck, almost two years ago, but has yet to officially end her marriage despite a long-term separation.

Affleck has reportedly even been staying in a spare bedroom on the family’s Los Angeles compound. A few weeks back, Us Weekly reported that the couple would keep on with their divorce despite rumors of a possible reconciliation.

The next day, though, E! News claimed that the couple has a “fluid” relationship and that “nothing has really changed” for the couple who has “been working on their relationship for the past few years” and remain in a long-term separation.

Not obtaining an official divorce decree, and having a long-term separation, seems like a good idea, but there are risks. I’ve written about the risks when people separate for years before filing for, or dissolving, their marriages.

Control Over Assets

If you are in a long-term separation, you can be totally out-of-the-loop about your financial well-being. You don’t know what your spouse is earning, spending, investing, selling or buying. In Equitable Distribution states, like Florida, you may be on the hook for some of the debts accumulating during the long-term separation.

Hiding Assets

While you may see no immediate need to legally dissolve your marriage, a long-term separation allows a spouse to plan for a divorce. And, spouses usually plan to make sure that valuable, or difficult to trace, assets are gone when the time comes to disclose your assets and liabilities.

Relocation

Florida has laws governing all aspects of the divorce process, especially as they relate to children. During a long-term separation, your spouse could be transferred to another city, state, or even another country. You should know that the laws relating to divorce and interstate custody are not the same in every state.

Alimony Laws are Changing

For the last several years, the Florida Legislature has tried unsuccessfully to change our alimony laws. The Florida House and the Florida Senate have already introduced bills this year that would dramatically change alimony in Florida. During a long-term separation, alimony laws can change.

The new bills require use of factors to calculate alimony; provide presumptions concerning alimony awards based on the duration of marriages; provide for imputating income in certain circumstances; provide requirements related to taxing and deducting alimony; and prohibit courts from changing the duration of alimony award.

Meeting Someone New

While meeting someone new may make you happier and more fulfilled, it may not help your settlement negotiations. When spouses enter new relationships, they might spend your share of marital assets on their new love interest: buying gifts, going to expensive restaurants, and taking fancy vacations.

Whatever the reasons Ben Affleck and Jennifer Garner have had for putting off their divorce, there are pitfalls of a long separation you should be aware of.

The Vanity Fair article is here.

Divorce and Privacy

Posted by Ron Kauffman on

How private is your information after filing for divorce? Divorce and privacy come to mind after former Florida governor Charlie Crist announced his divorce from his wife Carole.

After nine years of marriage, U.S. Rep. Charlie Crist has filed for divorce. For a career politician like Crist, divorce and privacy are important for career survival.

The former governor has taken the right tone: “I think the world of Carole. She’s an amazing person. It just didn’t work out for us,” the former governor told the Tampa Bay Times. “I wish all the best for her.”

Crist, 60, said the divorce should have no impact on his service. He and Carole, 47, own a condo in downtown St. Petersburg, and details about whether he will continue to live there have yet to be worked out.

Divorce exacts a heavy financial and emotional toll. For many people, including businessmen, politicians, celebrities and others, this means preserving your good name and legacy for future generations.

New York and several other states try to protect the privacy of litigants by granting document access only to litigants and counsel. This might create a false sense of confidence for clients though, because sometimes the other party leaks information purposefully.

I have written about the topic of divorce privacy before. It is very important to protect the privacy of parties to a divorce, and prevent identity theft, especially when Florida court rules make disclosure of sensitive financial information mandatory.

Some initial steps you can take to protect your divorce privacy include changing the passwords to your computer log-in screen, email accounts, social media sites, such as Linkedin and Facebook, and even your voicemail at work and at home. Change these passwords will help to keep your information private.

Florida recently adopted a confidentiality rule to better protect social security and bank account numbers for instance. But Florida court filings are not private. Privacy – and confidentiality of court filings – are easily overlooked issues when filing for divorce, and something you should be aware of in deciding to file.

The Miami Herald article is here.

Cheating and No-Fault Divorces

Posted by Ron Kauffman on

Not every state has no-fault divorce. That means you have to prove grounds, such as infidelity, and your divorce could take a decade or more. Why? Because you can waive grounds for divorce.

Mississippi is one of only two states without a true “no-fault divorce” law. If one spouse doesn’t want a divorce, he or she can often stave one off for a long time. In one reported case, it was more than a decade.

As WTSP in Tampa Bay reports, there’s an effort in the Mississippi Legislature to make some reforms to their divorce laws. But such efforts have failed in the past. A measure to create a “no-fault” divorce based on length of separation has already been watered down early in the legislative process this session.

Getting a divorce in Mississippi is difficult and expensive. Lawmakers and the religious lobby in this Bible Belt state have been reluctant to make it any easier or cheaper, mainly in efforts to uphold the institution and sanctity of marriage.

Yet, Mississippi still ranks continually near the top of states in its divorce rate — seventh highest in one recent study.

Experts say Mississippi’s antiquated divorce laws, little changed over a century, put low-income people at a disadvantage — particularly homemakers who don’t have resources to fight a lengthy court battle. They likely hurt the state’s overall economy, clog the courts and cost taxpayers.

In Mississippi, you still have to prove grounds for divorce, so a spouse who condones, or forgives marital fault can’t get a divorce unless the conduct happens again.

In a case of infidelity then, the non-cheating spouse who reconciles with the cheating spouse, may be found to have condoned the infidelity; and may have lost the grounds for divorce until it  happens again.

No-fault laws are 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.

I’ve written about no-fault divorce before. Florida abolished fault as grounds for filing a divorce. The only reason you need to file for divorce in Florida is that the marriage is “irretrievably broken.” But as the case of Mississippi shows, in other states, that is not always the case.

The WTSP article is here.

The Frye Test: Florida’s Newest Old Law

Posted by Ron Kauffman on

Few people know that Florida passed a new law about expert witnesses which impacts family law. I published an article giving a little history about the new Florida statute, along with a warning that it may be unconstitutional.

I have also blogged about this problem before. The possible Constitutional problems dealt with the way the law was passed. Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Bar Board of Governors voted to reject the new rule, and keep the old rule announced in Frye. The Board voted 33-9 to reject Daubert, the new rule, accepting the recommendation of the Bar’s Code and Rules of Evidence Committee.

Yesterday the Florida Supreme Court weighed in on the Amendment, and declined to adopt it. While the Court did not address the constitutionality of the statute or proposed rule, it ruled that “the fact that there may be “grave concerns about the constitutionality of the amendment” has been a basis previously for the Court not adopting an amendment to the Evidence Code to the extent it is procedural.”

“Accordingly, having heard oral argument and carefully considered the Committee’s recommendation and the numerous comments both submitted to the Committee and filed with the Court, we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy”

The Supreme Court opinion is available here.

Big News on Pet Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, January 30, 2017.

Who gets the dog in a divorce? Although pets are more like family than property, divorce courts have treated them like chattel. But in a new twist, Alaska changed its law to allow for pet custody rights.

As the Washington Post reports, although pet custody battles are often passionate and sometimes truly wacky, courts think of them more prosaically: as part of the “property distribution” in a divorce.

As of January 17, 2017, courts in Alaska will begin granting custody of pets when their humans divorce. This is a dramatic change, because four-legged family members are traditionally classified as “property.”

The amendment makes Alaska the first state in the country to require courts to take “into consideration the well-being of the animal” and to explicitly empower judges to assign joint custody of pets. In a blog post, the Animal Legal Defense Fund called the well-being provision “groundbreaking and unique.”

I’ve written about Florida and pets in divorces before. Your chocolate lab may be considered a member of the family to you, but under Florida law, “Brownie” is merely chattel – personal property to be divided in divorce. A judge lacks authority to grant custody or award visitation or a timesharing schedule to personal property.

As the Alaska amendment shows, there is a shift occurring in our society in which the pet is considered more a member of the family and becomes a part of the battle when the family disintegrates.

Some people argue that pets should stay with the children; others think they should remain with whoever purchased them, or whoever was their primary caretaker.

Often couples purchase pets with shared money, but rarely do people want to be “bought out” of their share of Fido, as might happen with a car or a house.

The Alaska amendment was sponsored by former representative Liz Vazquez (R) and the late representative Max Gruenberg, a Democrat and family lawyer who told the Associated Press in 2015 that he’d once handled a divorce that resulted in joint custody of a sled dog team.

The Alaska bill also allows courts to include pets in domestic violence protective orders and requires the owners of pets seized in cruelty or neglect cases to cover the cost of their shelter.

The Washington Post article is here.