Tag: Custody Agreements Religion

Can a Prenuptial Agreement Make You Smile More

Something to make you smile more or less, Amazon founder, Jeff Bezos, did not have a prenuptial agreement when he divorced his first wife, MacKenzie Scott. While his divorce cost him $38 billion, some argue his net worth would hover around $288 billion today. If celebrity net worth lists don’t interest you, the importance of having a prenuptial agreement should.

Amazon prenup

Prenup Prime

At the time of his separation with Scott, Bezos was the wealthiest individual globally, with a net worth of $150 billion, primarily due to his 16 percent ownership in Amazon. Bezos’s divorce is considered a significant shift in the distribution of wealth at the pinnacle of global affluence. That’s because the distribution of the Bezos fortune at the time of the divorce was practically unprecedented in size.

As of February, Jeff Bezos’ wealth is estimated at $191 billion, positioning him near the top of the list of the world’s richest people. Embarrassingly, Bezos is rumored to rank behind Tesla Inc. CEO Elon Musk, whose net worth is $199 billion.

The Musk ranking comes with a caveat. A recent legal decision invalidated $56 billion in options Tesla awarded Musk in 2018, potentially affecting his net worth and standing.

Despite this, Musk’s financial status remains unchanged because of the possibility of an appeal. Both men trail behind Bernard Arnault and his family, who oversee LVMH, with a net worth of $217.6 billion.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just resolving uncertainty in a marriage.

When a spouse is a major shareholder of company, their wealth can be subject to wide price swings. For example, when the head of Continental Resources was getting divorced, shares of his company dropped 2.9%. Conversely, when Rupert Murdoch announced his divorce, shares of News Corp gained 1.4%. Why? Because in Rupert Murdoch’s case, the divorce announcement stressed his prenuptial agreement, and a divorce would have “zero impact” on the company

A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important in second marriages.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.

That’s where prenups come in. Prospective spouses may limit or expand state laws by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce. Prenups can be a reliable guide down rough rivers if they’re done right.

Prime Deals

According to Yahoo! Finance, an intriguing “what if” regarding Bezos’s billionaire ranking develops had he not divorced without a prenup. Before their divorce, Bezos’s 16 percent stake in Amazon was valued at $150 billion.

Following the divorce and subsequent financial decisions, including significant sales of Amazon stock to fund his Blue Origin space venture, Bezos’s share in the company decreased to approximately 10%. These transactions, coupled with the divorce settlement that transferred a 4% stake in Amazon to Scott, have substantially altered Bezos’s potential net worth.

Despite all of that, had Bezos maintained his full share in Amazon, without the divorce, and without liquidating portions of his stock, and without funding Blue Origin, his wealth might have been higher. Given that Amazon’s market cap is now around $1.8 trillion, a 16 percent stake would equate to $288 billion.

Now imagine how much different – and better – his life would have been if he’d only had a prenup?

The Yahoo! Finance imaginary calculation of the Bezos fortune surpasses the wealth of other billionaires, including Musk, Zuckerberg, Gates, and Arnault. Although purely hypothetical, the Yahoo! Finance analysis highlights the importance of having a prenuptial agreement.

The Yahoo! Finance article is here.

Family Law, Free Speech, and Religious Discrimination

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.

Marital Settlement Agreements and Vital Organs

Negotiating for your vital organs is not a part of any martial settlement agreement. However, for one Israeli woman, donating her kidney to save the life of her children’s father, her ex-husband, was a choice she made above and beyond her contractual responsibilities.

Marital Settlement Agreement Kidney

Eilat of Love

Although the ex-wife, Adel, has been divorced for nearly ten years, her divorce and the terms of her marital settlement agreement, did not stop her from donating a kidney to her former husband when she found out his health condition had worsened.

The 41-year-old Rosh Pina resident said in an interview with fashion magazine, Laisha, that she and her spouse have been divorced for nine years, but she did not hesitate to answer the call for help – not least because of the children, of whom the two share custody.

“When I woke up after the surgery, there was some manageable pain. A week later I still feel it, yet anxious to go back to being the Mitzpe Shalom resort manager in the Golan Heights.”

She was aware of her ex-husband’s kidney problems when they met. She states she was 24 at the time and he was 29. He was an accountant and had already been donated one kidney from his mother. He told me right away, but I didn’t care. When I was pregnant with our second child, his father donated another kidney. Seven years later we got divorced. The second kidney held up for 11 years, up until six months ago.

After their divorce their relationship was complicated. But in the last few years things improved:

 We’re both involved with other people now. His girlfriend is wonderful and so is my boyfriend. His name is Eitan, and I told him when we met that if there was a time my ex would need my kidney, he’ll have it. Eitan accepted it right away.

Her ex-husband tested positive for COVID eight months ago and required dialysis and a new kidney. The woman told her ex-mother-in-law, that it was her turn to step up for him. It was very emotional.

Without informing him, she began moving things along. When it was clear she was a match, they informed the kids and then her ex-husband. “He thanked me, but was also concerned about who will attend to the kids while we’re both in surgery.”

Florida Marital Settlement Agreement

I have written about people donating vital organs to their ex spouses before. Erica Arsenault, of Massachusetts, volunteered to donate a kidney to her former mother-in-law years after her divorce. But donations of vital organs are not terms you see in a marital settlement agreement. Donations go beyond the requirements of an agreement.

Most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities (called “equitable distribution”), alimony, child support, payment of attorney’s fees and costs, and any other items to which the parties have agreed.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. The enforceability of contracts in Florida is a matter of importance in Florida public policy.

Accordingly, because a marital settlement agreement is treated like any other contract, and is subject to interpretation like any other contract, they can be enforced by the court.

New Heights

According to Adel, there was no hesitation:

It was clear to me I would do this. He’s the great father to my children, and they need an involved parental figure in their lives to be happy. In my opinion, when you get divorced, the children should always be top priority.

Interestingly she did not consult with anyone. Some family members and friends raised an eyebrow, but they realized how determined she was. Her ex-husband and she had some heart-to-heart conversations about this, and there were people who helped move the process along from an operational perspective.

Doctors explained after the operation she would feel no difference in her day-to-day life. It’s like we were born with two kidneys so we would give one away when needed. What Adel did not anticipate is that she would be a match for someone else while waiting for the surgery.

The donation coordinator at Rabin Medical Center called and said there’s a young man who has been waiting for a kidney match for four years and she was ideal for it. She cried, because now there were two people who needed her help to live.

She spoke with both her ex-husband and the other, who said that as far as he’s concerned, the young man’s new kidney would come from her, while her the other person would receive his from another altruistic donor, who is a doctor himself from Soroka Medical Center.

The organ donation department director at Rabin Medical Center, said:

“This a complex multi-donation event. Whenever that happens, we feel very excited to be able to grant someone a new lease on life.”

The Ynet article is here.

Interfaith Marriage and Divorce

Increasingly, couples are in interfaith marriages, meaning each person is from a different religion. Along with societal disapproval, are there any other possible problems a couple in an interfaith marriage face that could lead to divorce? A recent Indian case sheds some light.

Interfaith Marriage

Gujarat

India is a country of many religions. In the western state of Gujarat, roughly 88.6 percent of the population is Hindu and about 9.7 percent are Muslim. Recently, a division bench of the Gujarat High Court granted relief to an interfaith couple – but then went on to caution the wife’s parents not to “misbehave” due to their opposition to the interfaith marriage.

The order prohibiting in-law misbehavior concerns the marriage of a 26-year-old Muslim man to a 20-year-old Hindu woman under the Special Marriage Act in Ahmedabad in May 2021. The Special Marriage Act is a law that allows solemnization of marriages irrespective of the religion of the couple.

The Act also requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage.

However, the woman’s parents were opposed to the marriage and, the couple decided that the woman will stay at her parental home until their approval.

According to the court petition, the woman was subjected to physical and mental cruelty by her father over the marriage. Then, in December 2021, the woman left her home willingly and started residing at her matrimonial house.

The court also directed the woman’s parents to share the books and clothes of the woman that are in the parents’ possession as the woman is “desirous of continuing her studies,” while disposing the petition.

Interfaith Marriages

I have written about religion and divorce before. Marrying within the faith is still common in the United States, with nearly seven-in-ten married people (69%) saying that their spouse shares their religion, according to a recent Pew Research Center survey.

A comparison of recent and older marriages shows that having a spouse of the same religion may be less important to many Americans today than it was decades ago.

The Pew Religious Landscape Study found that almost four-in-ten Americans (39%) who have married since 2010 have a spouse who is in a different religious group. By contrast, only 19% of those who wed before 1960 report being in a religious intermarriage.

Some research suggested that marriages between members of the same religious group may be more durable than intermarriages. If this is true, the rise in religious intermarriage over time may not be as pronounced as it appears, since the Religious Landscape Study measures only marriages intact today.

Other surveys looking at divorce rates did not find an overall lower – higher divorce rate among interfaith couples. But did find that certain combinations made it much more likely that the marriage would end in divorce.

The most likely interfaith marriages to end in divorce were Evangelicals married to someone of no faith. This may simply be the case that the further apart the religions, the more likely divorce may be.

Interfaith India

The woman’s father, however, then filed a “false complaint” with the Danilimda police station alleging that his daughter left the house with cash and ornaments.

In response, the police visited the house of the husband and “started harassing the family members of the petitioner (husband) in order to get custody” of his wife. To “avoid unnecessary harassment by the police”, the couple left for Ajmer in Rajasthan.

The police soon brought the couple back to Danilimda police station and “illegally and arbitrarily” took the woman in custody. Following production before a magistrate court, was housed at Nari Vikas Gruh in Paldi.

The magistrate court subsequently handed over custody of the woman to her parents. Soon, represented by advocate Rafik Lokhandwala, the petitioner-husband moved the Gujarat HC with a habeas corpus petition.

The Indian Express article is here.

Family Court and Religious School

In a race between schools for your child, when can a family court judge choose the religious school over a secular one? For one Kentucky family’s child custody dispute, the court of appeals decides which school enters the Winner’s Circle.

Custody and School

Starting Gate

In the Kentucky case, a Mother and Father shared joint custody of their daughter, who has been at the center of a protracted legal dispute since the parties’ separation in 2016. The parties could not reach an agreement as to where the child should attend kindergarten, and asked the court to resolve the issue.

The Father, who is Catholic, liked that Seton was a Catholic school but noted that the curriculum also emphasized general Christian principles, as well as secular subjects such as Darwinism and evolution (ed. wow)

Father said that he was willing to pay Seton tuition costs. Father expressed concern about child attending Berea Independent due to Mother’s pending criminal charges in Berea for second-degree animal cruelty. Because Berea is a small community, Father worried child could be stigmatized, even if Mother was acquitted.

Mother, who is Baptist, was not comfortable with child attending a Catholic school and preferred that child attend a secular school. Mother testified that Berea Independent was her primary choice because it was less than a mile from her work, was in a small town, and was where she went to school as a child. She also liked that it provided a K-12 grade education in one place and liked the open classroom layout of the school.

Following the hearing, the family court judge entered an order with detailed findings of fact, concluding that it was in child’s best interest to attend Catholic school.

The Mother appealed.

Florida Divorce and Religion

I have written about the intersection of religion and custody before, especially when that intersection relates to harm to the child. For example in one area there is a frequent religious controversy: whether to give a child their mandatory vaccinations.  Usually, religion is used by the objecting parent as a defense to vaccinating children.

Whenever a court decides custody, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in the Florida custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution.

So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge. 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.

In one Florida case, 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 Florida 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.

The Home Stretch

Mother argued on appeal that the family court’s order compels her to send her child to a Catholic school she is conscientiously opposed to in violation of her constitutional rights.

The appellate court found that when parties to a joint custody agreement are unable to agree on a major issue concerning their child’s upbringing, the trial court must evaluate the circumstances and resolve the issue according to the child’s best interest.

The appellate court found substantial evidence to support the family court’s decision that sending child to Catholic school was in child’s best interest. The court specifically mentioned the school’s proximity to the interstate, its later start time, its teacher-to-student ratio, its on-site aftercare program, and the fact that child would know other students attending.

Perhaps most importantly, the family court felt it was not in child’s best interest to attend the secular, Berea Independent because of the possibility that child might experience negative social stigma due to Mother’s pending animal cruelty case in Berea.

Further, the trial court specifically noted its decision was not based upon religious interests. Mother “bear[s] the burden of proving that the decision of the trial court was based upon religious interests and such impropriety [will] not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”

The Kentucky Court of Appeals opinion can be found here.

Enforcing an Islamic Mahr Prenuptial Agreement

The extent of a court enforcing a religious prenuptial agreement, like the Islamic Mahr agreement, is big news. A family judge in Florida recently ruled that an Islamic Mahr agreement was not only enforceable, but waived equitable distribution and temporary support. How did an appellate court view the ruling?

Mahr Prenuptial Agreement

The Mahr from Thar

For many religious couples, in lieu of a secular prenuptial agreement, they sign a religious contract. Catholics have prenuptial agreements and Jews have a ketubah. In this recent Florida divorce, the parties signed an Islamic premarital agreement called a “Mahr” or “Mehr” agreement.

Although the agreement was entered in Bangladesh, neither party claimed it should be interpreted under Bangladeshi or Sharia law.

A Mahr is a contract to pay money – frequently expressed in gold coins – promised by a groom to his bride in the event of death or divorce. The amount is agreed to before the marriage and negotiated between the parents of the couple.

This Mahr agreement was two pages long, and had the explicit promise by Former Husband to pay Former Wife a total of 15 Bangladeshi lac Taka upon marriage. Five lac Taka were to be paid up front on marriage, and ten more in the event of a divorce.

At the time of the trial, 10 lac Taka was worth about $12,000. The Bangladeshi Taka has not been appreciating against the dollar lately.

At trial, the Former Wife argued that the ten lac Taka Mahr agreement was only the minimum amount she could ask the Former Husband for. In the Former Wife’s view, the Mehr did not waive her right to equitable distribution and temporary alimony.

The Former Husband, on the other hand, argued that the ten lac Taka under the Mahr agreement was the maximum she could get. The purpose of the Mahr was to guarantee an agreed sum to her. By agreeing to a guaranteed payment in advance, she waived her rights to ask for anything else.

The family law judge found that the Former Wife had built up some equity in the jointly titled, marital home, but then awarded it to the Former Husband. Then the court ordered Former Wife to vacate the house.

Relying on the Mahr agreement, the judge also denied Former Wife temporary alimony, limiting her to the ten lac Taka lump sum.

The Former Wife appealed.

Florida Prenuptial Agreements

I’ve written about religious prenuptial agreements, such as the Mahr, before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.

Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt.

But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Because prenuptial agreements may be challenged in court, 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.

Florida the Sunshine Religious State?

Many people don’t realize that religious agreements can be enforceable in Florida. However, there is a limitation, only a religious agreement’s secular terms are enforceable as a contractual obligation. That is true even if the secular terms were agreed to in a religious ceremony.

Here, the parties disputed how the terms of the Mahr agreement should be interpreted. Former Husband argued the Mahr agreement was meant to protect a spouse in the event of a divorce, so the Mahr should be read as the entirety of Former Wife’s recovery.

Former Wife argued the lack of waiver language in the Mahr agreement –stating that the couple intended to waive equitable distribution and alimony – meant she was entitled to ask a Florida court for relief in addition to the Mahr.

The appellate court reversed, holding that parties to a prenuptial agreement — religious or secular — are allowed to contract away their traditional marital rights, but they must do so in a way that comports with Florida law.

To contract away marital rights, a prenuptial agreement’s plain language must unambiguously express a desire to waive equitable distribution. Additionally, any agreement that waives or limits the right to temporary support and attorney’s fees violates Florida public policy.

Because the Mahr did not expressly bar Former Wife from seeking a property division and alimony, it couldn’t overcome Florida’s strong public policy in favor of equitable distribution and temporary alimony.

The opinion is here.

 

When Divorce Court Rules on Your Religion

When a divorce court rules on your religion of choice, Constitutional issues are reborn. This happens frequently when couples agree to raise their children in a certain religion. In a recent appellate case, after the parents chose Christianity as their religion of choice, an Arizona family judge had to decide whether Mormons were Christian.

Divorce Religion

A Monumental Judgment

A Mother and Father married in November 1999 and had two children. In December 2017, the Mother petitioned for divorce and filed with the divorce decree a parenting plan signed by both parents. The Parenting Plan stated:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care. Both parents agree that the minor children may be instructed in the Christian faith.

About a year after the divorce, the Father joined The Church of Jesus Christ of Latter-day Saints, and the children occasionally joined him at meetings. After the Mother learned the children were accompanying their Father to a Mormon Church, she moved to enforce the Parenting Plan, claiming the Mormon Church is not Christian under the Parenting Plan.

The family judge held two hearings on the enforcement petition. During the second hearing, the Mother called a youth ministry leader from her church to testify that Father’s Church is not Christian.

After taking the matter under advisement, the judge decided that the Parenting Plan directs that “the Children shall only be instructed in the Christian faith” and that Father’s Church was not “Christian” within the meaning of the Parenting Plan.

The family court judge decided the Father could not take the children to the Father’s Church’s services, that he had violated the Parenting Plan, and awarded the Mother attorney’s fees.

The Father appealed.

Florida Divorce and Religion

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. 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.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

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.

Road to a Constitutional Victory

On appeal, the first thing the appellate court found was that the trial judge’s ruling was based on the wrong interpretation of the Parenting Plan. The religious-education section of the Parenting Plan unambiguously stated that:

“[e]ach parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.”

This language, it was held, permitted the Father to take the children to any “place of worship,” be it “Christian” or “non-Christian.” Nothing in the clause explicitly limits or narrows this authority. The family judge was found to have erred to the extent that it found the Parenting Plan did not permit Father to take the children to a church or place of worship of his choice.

But, the appellate court also held that even if the clause expressly constrained the Father’s right the court would have vacated the holding because the court violated the First Amendment of the Constitution when it ruled that a Mormon Church is not Christian.

The appellate court ruled that the divorce judge had to abstain from handling Mother’s claim once it became clear the dispute concerned an ecclesiastical matter.

The Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, “preclude civil courts from inquiring into ecclesiastical matters.”

Here, the family court dove right into an ecclesiastical matter by addressing whether the Mormon Church is part of the Christian faith. That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Although the judge was interpreting the Parenting Plan, the court did not resolve it through neutral principles of law but instead engaged in the exact type of inquiry into church doctrine or belief that the First Amendment prohibits.

For example, at an evidentiary hearing, the trial judge allowed in testimony from a minister to claim that Mormon Church was not part of the Christian faith, and admitted a chart comparing the tenets of the Mormon Church with Christian beliefs. The court’s order specifically found “that Mormonism does not fall within the confines of the Christian faith.”

In reversing, the appellate court ruled that courts are not the appropriate forum to assess whether someone who self-identifies as “Christian” qualifies to use that term. If the trial court’s order could stand, the “harm of such a governmental intrusion into religious affairs would be irreparable.”

A parenting plan’s religious-education provision can be enforced without violating First Amendment principles if the dispute does not require a court to wade into matters of religious debate or dogma.

The Arizona opinion is here.

Religion LGBTQ+ and Custody Rights Erupt

Religion LGBTQ+ and child custody rights recently erupted in a Washington federal court. Parents usually have the right to direct the religious upbringing of their children, but one couple found their religious beliefs prevented them from even becoming parents.

Parent Custody

Rumblings

James and Gail Blais wished to become foster parents, and eventually adopt, Gail’s biological great-granddaughter, H.V. The first step to adoption requires them to be licensed foster parents. However, they are observant Seventh day Adventists.

The reason for the need to become foster parents so quickly is because shortly after H.V.’s birth – in fact, while she still was in the hospital – H.V. was removed from her biological parents and placed in foster care out of concerns for her welfare. H.V. is an infant. At no time during the application process has she exhibited any issues with regard to sexual orientation or gender preference.

The Blaises wanted to care for H.V. by becoming her foster parents with the goal of adoption if reunion with her mother was not possible. They are the only biological relatives who have expressed an interest and ability in fostering and adopting H.V.

The Department administers the State’s foster licensing and placement program, and the requirements for becoming a foster parent are laid out in Washington law and the Department’s Policy 6900, entitled “Supporting LGBTQ+ Identified Children and Youth.”

The Blaises participated in Department mandated training and required certification courses. They made clear that, as Seventh-day Adventists, they believe it is important to love and support all, particularly youths who may feel isolated or uncomfortable because of who they are.

But with regard to the specific hypothetical questions relating to possible hormone therapy, in the event H.V. one day developed gender dysphoria, the Blaises said they could not support hormone treatments based on their sincerely-held religious convictions, but would still be loving and supportive of H.V.

The Department denied the Blaises’ foster care license application, and H.V. remains in non-relative foster care. The Blaises filed a federal action against the Department seeking to enjoin the enforcement of the Department policy as it violated the First and Fourteenth Amendments.

Florida Religion and Family Law

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. 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.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

Eruption

The federal judge found the question in this case was whether Washington’s regulations covertly suppressed religious beliefs. The judge found that in practice, the Department regulations work to burden potential caregivers with sincere religious beliefs yet almost no others.

It also found that the Department’s interpretation of its regulations and policies also favored secular viewpoints over certain religious viewpoints.

For example, the Department favors religious and non-religious applicants who have neutral or pro-LGBTQ+ views over religious and non-religious applicants who have non-neutral or anti-LGBTQ+ views.

The State denied their application because the tenet of the Blaises’ faith flouted the Department’s regulations and policy, and therefore “punished the expression of religious doctrines it believes to be false.”

The Court enjoined the Department from using Policy 6900 against prospective foster parents.

The injunction order is here.

 

Custody and Vegans Don’t Pair Well

Child custody and religion often conflict. But can a family court judge ban a parent from feeding their child “fish, meat, or poultry” without the other parent’s consent? What if it is in the child’s best interest to eat vegetarian? A New York court had to answer that question, and the decision may leave a bad taste in your mouth.

Custody and Vegetarians

Nobu, Katz’s Deli & Carbone? Fuhgeddaboudit

In a New York custody case, the parents, who were represented by counsel, agreed to jointly determine all major matters with respect to their child, including “religious choices.”

The parenting coordinator on the case recommended that each parent be free to feed their child as he or she chooses during his or her parenting time, and that neither party shall feed or permit any other person to feed fish, meat or poultry to the child without the other party’s consent.

In their parenting agreement, however, the 24-page agreement did not otherwise mention the child’s religious upbringing and makes no reference at all to dietary requirements.

Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish.

Florida Custody and Vegetarians

I’ve written about child custody issues before, in fact, I have an article on the intersection of religion and custody, especially when that intersection relates to harm to the child.

Knowing whether the dietary impasse between the parents is about the child’s health or religion is an important distinction. The New York dietary ban sounds very much like a religious dispute between the two parents. New York, like Florida, is a melting pot of religions and ethnic backgrounds where kosher, halal and a number of other religious dietary restrictions are common.

Of course, New York is facing another issue involving children and religion: vaccinations. With the recent outbreak of vaccine preventable diseases, such as the New York measles outbreak, lawmakers in New York voted last week to end religious exemptions for immunizations.

Usually, religion is used by the objecting parent as a defense to vaccinating children. In the New York case, the dispute was what to feed the child. Whenever a court decides custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in our custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution. So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed.

Custody and the Big Apple

The New York appellate court found the family judge abused its discretion with the ban on feeding certain foods. To the extent mother promised the father, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding.

The court felt this was particularly in view of the parenting agreement, which omits any such understanding. Nor was there any support in the trial record for a finding that a vegetarian diet is in the child’s best interests.

Recall that in Florida, whenever a family judge has to decide custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. The Mother’s argument that she should have been granted final decision-making authority with respect to the child was improperly raised for the first time in her reply brief.

In any event, the appellate court found that the record does not support her contention that the totality of the circumstance warrants modification in the child’s best interests.

The New York Court of Appeals declined to hear the case. The opinion is here.

 

This is your Religious Prenup

A Detroit-area man must pay his former wife $50,000 under the terms of their Islamic prenup. Not only are prenuptial agreements on the rise among all engaged couples, they are also becoming very popular for religious couples. But is a religious prenup enforceable in the U.S.?

muslim prenup

Mehr Agreements

A Michigan man argued that a family court judge exceeded her authority by trying to resolve a religious issue in a divorce. In 2012, the husband approached Mohammed Ali and asked permission to marry Mr. Ali’s daughter.

They negotiated the terms of the arranged marriage. Mr. Ali proposed that defendant could marry his daughter if defendant paid her $51,000, a payment the parties referred to as Mehr, a traditional component of Islamic marriages.

He agreed to the payment proposed by Mr. Ali. The Wife considered the offer of marriage, on the financial terms negotiated by her father, for approximately one year and ultimately decided to accept the marriage proposal and the parties married in 2013.

Florida Prenups

I’ve written about prenuptial agreements and even about a religious prenup. Prenuptial agreements are about more than just resolving uncertainty in a marriage.

Any couple who brings any personal or business assets to the union can benefit from one. They are also important to have in place before a couple starts investing in businesses, properties and other investments.

A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important in second marriages.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.

Without a prenup, if your spouse dies, you will have statutory rights under state law to a share of your deceased spouse’s estate and may also have a right to lump sum death benefits, or a survivor annuity under a retirement plan.

That’s where prenups come in. Prospective spouses may limit or expand these rights by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce. Prenups can be very worthwhile provided they’re done right.”

The most basic of prenups should list an inventory of premarital assets that would stay with the original owner in case of a divorce. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Religious Prenup

Back in the Michigan case, it was uncontested that the Husband and Wife had only a verbal agreement for payment of $51,000, in consideration of marriage, until the day of their marriage ceremony.

During that ceremony, the parties signed a document that placed the contract to marry in writing. The one-page document signed by the parties was titled “Marriage Certificate” which is the basis for the religious prenup dispute.

The document stated that the Groom solemnly proposes to marry the bride and take her as my wife and agree to pay Mehr of $51,000 Later. Furthermore, the document stated that the Bride solemnly accepted the proposal.

During the course of the marriage, the Husband made several payments, totaling $3,900, toward the $51,000 mehr. In 2016, the Wife filed an action for separate maintenance and the Husband filed a counterclaim for divorce.

During the divorce trial, plaintiff asked the trial court to enforce the contract to marry and award her $47,100, the unpaid amount of the mehr.

The trial court concluded that the parties executed a valid, simple contract and entered a judgment in plaintiff’s favor in the amount of $47,100. In addition, the trial court granted the parties a judgment of divorce, denied the request for spousal support, and divided the parties’ marital assets.

Does Shariah Law Apply?

The Husband actually argued that the contract states on its face that it was made under Shariah law and that it was not made under any state law. But did the Mehr merely provide for a religious obligation or was it an enforceable contractual obligation under Michigan law?

The trial court clearly stated that it was not applying Shariah law, but was applying Michigan law to the parties’ contract:

“We are not interpreting or applying the contract between the parties under Shariah law, but are applying Michigan law to the review of the parties’ contract and the judgment of divorce entered by the trial court.”

In this case, neither the trial court nor this Court is required to resolve ecclesiastical questions. The trial court did not claim any power to grant the parties a divorce under Islamic law, but only the power to grant the parties a civil divorce under Michigan law.

The trial court did not decide the parties’ respective religious obligations under the tenets of their faith tradition, but only decided the parties’ respective obligations under long-established principles of Michigan contract law. Because this case does not require the resolution of any ecclesiastical questions, we conclude that defendant’s argument is without merit.

U.S. courts don’t enforce religious laws, be they Christian, Jewish or Muslim. U.S. courts enforce American law. As long as a religious agreement can be enforced without resolving theological questions it may be enforceable.

The U.S. News article is here.