Tag: Divorce Advice

Speaking at the Family Courthouse

What an honor to speak at the Family Division Courthouse Lunch & Learn series, co-hosted by Family Court Services and the First Family Law Inn of Court. The discussion, attended by family law attorneys judicial officers, and professionals, was on the new technological changes that impact everyone in family court, in addition to the annual Town Hall presented by the Honorable Judge Scott Bernstein.

Family Law

Family Law Technology

Technology is constantly changing our lives, and may times for the better! The Eleventh Judicial Circuit is rolling out “courtMAP” this month. CourtMap is a new online Management and Access Platform that combines eCourtesy with online scheduling, online notification/confirmation, and allows judges to create and e-File orders. courtMAP also allows parties to self-schedule their case events – motion calendar, special sets, and trials – and attach the documentation previously submitted via eCourtesy.

Family Court Services and Kidside

KidSide, Inc., has been developed to raise and secure funds to provide the best possible services and facilities to the children of Miami-Dade County who have suffered through the conflict of their parents’ divorce or other litigation in the Family and Domestic Violence Courts. By working with Family Court Services, a unit of the Miami-Dade County Eleventh Circuit Court, Family Division, KidSide strives to ensure that the best interests of the children are considered by parents and the Court.

More information about Kidside is available here.

 

Another Case of Fraud and Divorce

A 77-year old Tampa businessman filed to divorce his 26-year-old wife who may have tried to steal $1,000,000.00 from him. Is this yet another case of divorce fraud, and if so, what can be done? The Husband’s divorce attorneys at Sessums Black Caballero Ficarrotta will have to find out.

Divorce Fraud 3

A Tampa Bay Buccaneer

Court records show that 77-year old Richard Rappaport’s attorney filed an action for dissolution of marriage against his 26-year old wife, Lin Halfon, on Friday, Jan. 10. The couple was married in Sarasota in August.

Halfon won’t have an easy time getting to divorce court because she’s been incarcerated for a month at the Hillsborough County Jail on Falkenburg Road.

She is facing charges of money laundering, organized fraud, exploitation of the elderly and conspiracy to commit money laundering.

His wife, Ms. Halfon, has been charged with money-laundering, organized fraud and exploitation of an elderly person after being arrested at Tampa international airport in Florida.

Florida Divorce Fraud

I’ve written about various aspects of divorce fraud before. In Florida, courts distribute the marital assets, such as bank accounts, between parties under the premise that the distribution should be equal, unless there is a justification for an unequal distribution.

Some of the factors to justify an unequal distribution of the property include things like the financial situation the parties, the length of the marriage, whether someone has interrupted their career or an educational opportunity, or how much one spouse contributed to the other’s career or education.

Another important factor is whether one of the parties intentionally dissipated, wasted, depleted, or destroyed any of the marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

Dissipation of marital assets, such as taking money from a joint bank account, happens a lot. Trying to cash a million dollar check at a payday loan store . . . less so. In both cases, the misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.

Misconduct, for purposes of dissipation, does not mean mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. There has to be evidence of intentional dissipation or destruction.

When it’s Friday and Payday!

This divorce fraud case may also get entered into the world’s dumbest criminal’s museum. She’ll join a trio of drug thieves who broke into a Florida home, snorted the contents of three jars – which were in fact urns – only to discovery they’d inhaled the remains of two cherished dogs.

The Wife went to a payday loan company called, Amscot, and tried to cash a $1 million check with both of their names on it. Court documents said Rappaport’s wife returned to the bank with three checks in the amount of $333,000. The police investigation began after an employee refused to cash the checks.

After being notified by investigators, Rappaport said he wanted to give his new wife the benefit of the doubt and did not want her to be deported. When asked later if he felt he was the victim of fraud, Rappaport told investigators, “yes.”.

The Wife’s defense attorney Todd Foster said he plans to file motions asking for bond and evidentiary hearings and asked:

“Can a wife steal from her husband? Is that a crime? We’re looking at that.”

Rappaport’s daughter said in an arrest affidavit that his family members were unaware of the marriage and believed Halfon was ‘conning’ Rappaport due to his age” according to the arrest affidavit.

The Wife’s attorney claims it “was a valid marriage” and that they loved each other.

Tampa’s Channel 8 article is here.

Did Your Promotion Cause Your Divorce?

Does a promotion to a top job increase your likelihood of divorce? Two Swedish professors researched that issue, and found that a promotion to a top job doubled the probability of divorce for women . . . but not so much for men.

Sweden Divorce

Divorce Stockholm Syndrome

The professors also found that there was a widening gender gap in divorce rates for men and women after being promoted to CEO. Their analysis of possible mechanisms may show that divorces are concentrated in more gender-traditional couples, while women in more gender-equal couples are unaffected.

No one doubts that the economic and social roles of men and women have been converging in recent decades. Women in Western democracies have largely caught up with men in terms of labor force participation, tertiary education, and career expectations.

But what lags behind is women’s realization of those career goals. In 2015, men accounted for 95% of CEOs in Forbes 500 firms and more than 75% of the world’s parliamentarians.

The professors argued that one potential reason for women’s slower career progressions is that a job promotion for a woman causes more stress and strain on the household than the job promotion of a man.

They also offer the first empirical analysis of how the promotion to a top job in the economy affects the marriage durability of men and women. They found that a promotion to a top job leads to an increased rate of divorce among women, but not among men.

Florida Divorce

I have written about some of the various reasons why people divorce in the past: snoring, calling the bride “fat” at the wedding and others. In Florida, a divorce is called a “dissolution of marriage.” Florida abolished fault as a ground for dissolution of marriage. The only requirement to dissolve a marriage is for one of the parties to prove that the marriage is “irretrievably broken.”

Either spouse can file for the dissolution of marriage. Generally, you have to prove that your marriage exists, one of the spouse’s has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken.

The reason for the irretrievable breakdown, however, may be considered under certain limited circumstances in the determination of alimony, equitable distribution of marital assets and debts, and the development of the parenting plan.

Every case is different, so results can differ from case to case. Outcomes in a divorce include, among other things, dividing the assets and debts, an award of alimony, determining the amount of child support, and parental responsibility and time-sharing schedules. There is no “one-size-fits-all” or “standard” dissolution of marriage in Florida.

Divorce can be highly emotional for couples and their children. But was your promotion to CEO the cause of all of this trauma?

Relationship Fjords

The professors’ analysis was carried out using Swedish register data and targets promotions to three types of top jobs. Two of the jobs are top public sector jobs, and the third type was in the private sector: CEOs of companies with more than 100 employees.

The analysis linked the divorce impact of the promotion to couples for which the woman’s promotion to a top job conflicted with gender-traditional behavior in the household.

Divorces are more likely to occur when the wife is younger than her husband by a greater margin, and where she took a larger share of the couple’s total parental leave.

Another important finding was a large gender difference in the correlation between the probability of a divorce and experiencing a promotion that shifts earnings from dual-earner into the woman becoming the dominant earner.

Among women whose promotions make them the dominant earner, i.e. making more than 60% of household income, more than 15% divorced within three years after the promotion. In the corresponding group for men, only 3% had divorced.

Some of the problems with the study included the fact that there is no register for which spouse initiated the divorce, there is no good annual measure of the division of household work, and Sweden does not measure cohabitation accurately.

So, if job promotion causes divorce among women, is that a good thing or a bad thing? The professors argue that the implications for society are largely negative because human talent for top positions is evenly distributed among men and women and the vast majority of men and women put “family” at the top of their list of priorities for life satisfaction.

An abstract is available here.

 

Is January Really Divorce Month?

January is usually reserved for kicking bad habits and beginning work on those New Year’s resolutions. But some parts of the internet, this blog included, have suggested that January has earned it’s nickname as “divorce month.” Is there truth to it? The New York Times recently investigated.

divorce january

‘Tis the Season?

There is no doubt that divorce is a seasonal phenomenon. From Thanksgiving until New Year’s, lawyers’ offices can slow down with new filings because people have decided to put off until after the holidays their decisions to separate.

A Google trends search for “divorce last year returned that it was – ever so slightly – most popular from January 6th to January 12th. The term has peaked at various times though, from March and September too!

A 2016 study by the University of Washington analyzed divorce filings in Washington state from 2001 to 2015 and found they peaked in March and August, following the winter and summer holidays.

Florida No-fault Divorce

Divorce rates started to increase in the 1970s when baby boomers started divorcing at higher rates and the introduction of no-fault divorce laws.

I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida 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.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or unreasonable behavior as in England.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Adultery can be the cause of a divorce, but can it impact the outcome? Since Florida became a no-fault state, the fact that, “she (or he) is sleeping with a co-worker” doesn’t hold much traction in court any more.

Some states still have fault-based divorce, and some of the common fault-based grounds for divorce are adultery, desertion, extreme cruelty, incarceration for conviction of a crime, institutionalization for mental illness, and a spouse’s continued abuse of drugs or alcohol.

New Year’s Resolution?

Not everyone thinks January is divorce month. Some people think it is a perception of the end of the year slow-down, and that the comparison makes it appear to be a big month for filing.

However, divorce timelines can also be impacted by state. In Georgia, divorces can be granted in as little as one month, or could take years. In California, there is a mandatory six-month waiting period for a divorce to be finalized.

When you file for divorce, you may impact everything financial including taxes. Your marital status on the last day of the year can determine how you file your taxes. If a state has a rule regarding your filing status and separation, that could be a reason for a January filing.

Responsibilities for children, lack of romance, incompatibility and money problems are all big drivers of divorce. Many people feel there is an uptick in divorce filing around anniversaries and Valentine’s Day too. The answer to the question “is January really divorce month?” is, maybe.

The New York Times article is here.

 

New Year Divorce Surge

Market Watch is reporting on a consistent pattern: divorce filings surge in January as people decide to start their New Year with a clean slate, helped by a stressful holiday period and, perhaps, even more stressful in-laws.

NYE Divorce

Happy New You

In general, many family lawyers report a rise of nearly one-third in business in the New Year. The president of the American Academy of Matrimonial Lawyers, says he typically sees a spike of 25% to 30% every year in January.

That’s not only true for the United States, but around the world. Similar trends are seen in the U.K.: one in five couples plan to divorce after the holidays, according to one survey of 2,000 spouses by legal firm Irwin Mitchell.

Being cooped up in a house for several days when a marriage is experiencing serious problems — while dealing with the pressure to put on a happy face for the kids and visiting relatives — takes its toll on the most stoic of couples.

Holiday time is usually a time when we get a spike in consultations and in being retained by clients. Holiday time is usually fraught with a lot of tension, emotion and financial issues, which is usually the trigger.

Florida Divorce

I’ve written about the rise in new years divorce filings, and many times the holiday season can highlight problems. What should you do? Whatever the reason for your problems, there are a few things that anyone looking into divorce for the first time needs to know to help them through the process.

Prioritize

Line up your priorities for life after the divorce. Is it finding a home? Is it retiring? Getting a job? Managing your special-needs child? Consider writing down your most important goals.

Consult

Even if you aren’t certain you need to hire an attorney, or filing for divorce at all, it is a good idea to meet with an expert in Florida’s divorce and family laws. Who better than someone certified by Florida as an expert in marital and family law? We offer free consultations, but even when there is a charge, it is well worth the fee to get accurate information.

Alternatives

Litigation is something to avoid. It’s time-consuming, contentious and expensive. The majority of divorces end up settling. There are many forms of alternative dispute resolution out there, including collaborative divorce, mediation, and informal settlement conferences.

As Market Watch further reports, there is good reason for treating a divorce like a calm business deal. Don’t rush to file. Think about your end game. Many people file quickly out of anger perhaps after learning of a spouse’s misconduct. But it’s better to be strategic.

New Year, New Priorities

If not planned correctly, divorce can be one of the most financially devastating life events, so get an up-to-date assessment of your spouse’s accounts.

“It may be illegal to open another person’s mail, but you can, however, make a note of the financial institution that mails statements. If you give your attorney those names, we can subpoena that information.

Lawyers are cautious about taking on clients who refer to their attorneys as a pit bull or a shark. “Sometimes, people might say that because we’re tough, but if you go in with all guns blazing and start in a mean, aggressive manner, you automatically create a very adversarial situation.

That could increase the cost of the divorce — which could vary between $25,000 to $100,000, depending on the assets involved, the lawyer’s fees and where you live — by double or even triple, he says. “Be courteous and respectful. The key is to avoid escalation.”

It may be that divorce is not the best option, particularly if one partner doesn’t have company health insurance. Annual premiums for employer-sponsored family health coverage reached $18,142 this year, up 3% on last year, with workers on average paying $5,277 towards their coverage, according to the Kaiser Family Foundation, a nonprofit group based in Menlo, Calif.

Premiums for Obamacare are expected to rise 22% next year for the benchmark silver plan. Some health insurers won’t insure both parties on the same policy if the couple has legally separated so people report.

Avoid serving your partner with divorce papers during the holidays, especially if you have children. As they grow older they’ll hate that holiday memory forever. But that doesn’t mean you shouldn’t do some preparation in the meantime.

In Florida, you can file for divorce and you have a period of time before you have to serve the papers. Most unhappy spouses wait until after the turkey has been carved, the gifts have been unwrapped, and the new year has started.

The Market Watch article is here.

 

An Interstate Custody Marriage Story

The new Netflix divorce drama, Marriage Story, is an excellent movie which has brought critics and audiences together – with divorce attorneys! Largely overlooked in the detail it deserves is the legal implications of Nicole and Charlie’s interstate child custody fight which develops when Nicole moves to California from New York with their son Henry.

interstate custody

Act 1: Whose Fault is It?

Nicole is the one who moves to Los Angeles with their son. She doesn’t have to – they are a New York family, despite her having been raised on the west coast. The movie makes a lot of their having married in Los Angeles and their son was born there, but for the past 10-years, they’ve lived and worked in New York.

The reason for Nicole’s relocation to Los Angeles is a job offer, she gets hired to be in a TV pilot. Job offers are a common source for needing to relocate interstate with a child. However, there is no indication that she can’t find acting work in New York. Surely there are other work opportunities she could have in New York, had she really looked.

Then she makes her husband’ efforts to see their son in Los Angeles difficult when he visits. She steered Charlie away from sleeping for the night on the day he’s arrived – even though he has no idea she filed for divorce. Worse yet, he’s served with divorce papers in her parent’s house. Then Halloween becomes a sad, lonely time.

Act 2: Interstate Custody

I’ve written and spoken about interstate custody cases before. Generally, when two parents reside in a state, like Florida for instance, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

That’s exactly the problem Charlie faced after Nicole moved with their son to California from New York. But which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to state law in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines. With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York for the Nicole and Charlie example. The ultimate determining factor in a New York case then, is what is the “home state” of the child. New York has initial jurisdiction to hear Nicole and Charlie’s case, for example, if New York was the Home State of their son on the date Nicole filed her case.

Alternatively, New York could possibly hear their case if New York was the Home State of the child within 6-months before Nicole filed her case, and their son was absent from New York, but one of the parents still lives in New York. This usually happens when a parent takes a child across state lines.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida, California and New York – and the other states – all have a strong public policy interest in protecting children in their states.

Act 3: The Big Decision

Charlie does face a serious interstate child custody problem, and has a few weaknesses too. Charlie cheated and feeling guilty, allowed Nicole and their son to move to California for at least a year. We don’t know how long after Nicole moved to California she filed for divorce. Nicole has always done more of the childcare and has extended family in California – a luxury that Charlie doesn’t enjoy.

The stakes in the movie are extremely high for interstate parents facing a custody problem. The big issue is whether Charlie will need to move to Los Angeles to keep up regular contact with his son or be able to force Nicole to return their son to New York so she can timeshare there.

I won’t give a spoiler as to how their interstate child custody case is finally resolved. Instead, know that the movie does an amazing job of portraying the high stakes and anxiety involved in an interstate child custody divorce.

The new Netflix movie, Marriage Story, is great, and stars Scarlett Johansson, Adam Driver, Laura Dern, Alan Alda, Ray Liotta, Azhy Robertson, Julie Hagerty, Merritt Wever, and Wallace Shawn and basically follows a married couple going through a coast-to-coast divorce.

Highly recommended!

*Gage Skidmore photo credit

Five Ways to Improve Your Divorce

While your performance never faltered before, after you enter into a divorce, you can become overwhelmed by the competition for your attention. Forbes magazine reports on five way to improve your divorce and maintain your productivity.

Improve Divorce

1. Build an emotional support network outside of the office. From both an emotional and a practical standpoint, keeping conversations about your divorce out of the workplace is smart. Of course, you need to talk with those involved in collecting the requisite documents—an HR representative, for example—but those discussions should be factual in nature. Talking about the personal and emotional aspects of your divorce should be reserved for close friends or family members outside of work.

Don’t neglect your need for emotional comfort during this time. Divorce is stressful. In addition to having a strong support network, make sure you hire a lawyer who makes you feel empowered and comfortable, who helps you understand the divorce process and is accessible when you need counsel.

2. Be cooperative and realistic in your efforts to work with the other side. If you or your spouse take positions in your divorce that lead to additional court appearances, your productivity will be affected, because those appearances will take you away from your office. In fact, even preparing the paperwork with your lawyer can take you away from your job for hours at a time. You can minimize this time away by approaching your divorce pragmatically, organizing as much as you can in your off-hours, and being as straightforward and transparent as you can be in terms of the documents and information you produce. If everything becomes a tug of war, with subpoenas being issued and every aspect of the divorce litigated, you will be diverting precious time and energy from your career.

3. Allocate a certain amount of time each day to addressing divorce-related communications. As much as you might like to wait until you get home at night to handle divorce matters, reality sometimes dictates speedier replies. Divorce matters are generally handled during working hours, and if your lawyer has a question or information to share, your delayed response could mean a slowdown in the process. Set aside a block of time during the day when you can read and respond to related emails and place necessary phone calls. Keep a running list of to-do items and questions for your lawyer so that you can jot them down when they occur to you throughout the day and then put them out of your mind until later. Sending your lawyer just one comprehensive email a day with all of your questions and concerns will improve your productivity as well as your lawyer’s (which can also save you money!).

Florida Divorce

I’ve written on various divorce issues. In Florida, a divorce is called a “dissolution of marriage.” Florida is also one of the many states that have abolished fault as a ground for dissolution of marriage.

The only requirement to dissolve a marriage is for one of the parties to prove that the marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage.

Although no-fault divorce is Florida law, the process of going through a divorce can be grueling, and will eat into your productive time. Part of the stress comes from the fact that the divorce process can be very emotional and traumatic for couples as well as their kids.

4. Have separate work and personal email accounts. This is, of course, good advice whether you’re going through a divorce or not. Nothing can distract you faster than seeing personal emails popping into your inbox all day long. In fact, you may even want to create a new account specifically dedicated to divorce correspondence. Then, when “Divorce Management” pops up on your calendar, you can get straight to all divorce-related matters and take care of them during your allotted time slot.

Likewise, keep any divorce-related documents in their own secure folder on your computer so you can access them at a moment’s notice rather than having to spend time hunting them down.

5. Keep your lawyer apprised of any blackout dates on your calendar. If you travel for work or have certain must-attend meetings or events, make sure your lawyer is aware of these as soon as they are scheduled so you can avoid conflicts with any necessary court appearances or other important meetings related to your divorce. Being unable to meet key business obligations can not only set back your productivity but also damage your standing in the eyes of clients, your manager or your peers.

The Forbes article is here.

 

Divorce and the Engagement Ring

Kim Kardashian reportedly refused to give back her engagement ring to estranged husband, former basketball player, Kris Humphries. Is a spouse obligated to return an engagement ring after a divorce has been filed – whether the ring is worth $2mm or not?

engagement ring

Keeping Up with the Kardashians

A source close to the Kardashian situation reports that her husband Kris contends that the marriage was a total sham and that Kim only wed him for publicity so therefore she has no right to keep such an expensive gift.

This is the latest battle in the drawn-out Kardashian-Humphries divorce proceedings. The reality star filed for divorce from Humphries in October 2011 after just 72-days of marriage. He responded a month later by filing for an annulment on the basis of fraud and a legal separation.

Florida Engagement Rings

I’ve written about some of the history and law about engagement rings before. Until the 1930s, a woman jilted by her fiancé could sue for financial compensation for “damage” to her reputation under what was known as the “Breach of Promise to Marry” action.

As courts began to abolish such actions, diamond ring sales rose in response to a need for a symbol of financial commitment from the groom. Florida abolished the appropriately termed “heart balm statutes”. Heart balm statutes were laws allowing couples to sue each other to recover money for the alienation of affections and breaches of contract to marry.

As one court poetically noted:

[A] gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor – if the anchor of contractual performance sticks in the sands of irresolution and procrastination – the gift must be restored to the donor. A fortiori would this be true when the donee not only refuses to sail with the donor, but, on the contrary, walks up the gangplank of another ship arm in arm with the donor’s rival?

After an engagement ring is given, and if the couple doesn’t marry, in New York the law deems a broken engagement as no one’s fault. Accordingly, the ring should be given back to the giver, with few exceptions. Most states have adopted that approach.

This is true in Florida. Lawsuits to recover an engagement ring by disappointed donors usually are resolved by courts looking to see if the engagement was terminated by the donee or by mutual consent of the parties. The rationale is that rings are given on the implied condition that a marriage ensue.

Once a marriage proposal is extended and accepted — once the promise is made — no matter what day of the year, that ring is no longer considered a gift. It’s a contract to enter into marriage.

The general rule in Florida is that an engagement ring given before the marriage, becomes a non-marital gift if the marriage is completed. If so, the ring becomes the non-marital property of the Wife.

If the engagement ring is viewed by the court as a non-marital asset, it is not subject to equitable distribution in divorce proceedings, and the spouse keeps it as their own.

Reality TV

Relying on real attorneys and not Judge Judy, both sides of the Kardashian case have accused each other in court and in the media of deliberately slowing down the divorce process, which has lasted five times longer than their marriage.

Recently, Kardashian’s attorney told the judge that her client is “handcuffed to Mr. Humphries” because his team is still not ready for trial. The estranged couple is set to return to court in mid-February to determine a trial date.

The Huffington Post article is here.

 

Divorce and the Date of Marriage

The date of your marriage should be an easy question to answer. But, for one same-sex couple in the midst of a messy divorce – who made national headlines fighting to have their same-sex relationship recognized – the answer is anything but easy.

Divorce and Date of marrage

Divorce in Hot Lanta

Lawrie Demorest, an Atlanta attorney and Lee Kyser, a retired psychologist, are making headlines again, but this time over how to end their more than 20-year relationship.

The couple fought very publicly to have their relationship recognized by the Druid Hills Golf Club in Atlanta as the same as heterosexual couples, giving them the same rights and benefits as others.

Demorest, who has fought for LGBTQ equality, in response to a divorce brought by her lesbian partner, the former co-chair of the board of directors for the Human Rights Campaign has tried to legally nullify a relationship she once said should be treated the same as a marriage.

The two officially broke up in December 2017, and Demorest wanted the couple to walk away with what was titled in their own names. Kyser said no because in part she said she gave up her job to raise the twins the couple adopted in 1999, and her only source of income right now is Social Security. She accused Demorest of “setting her up for an undignified retirement.”

Kyser is suing Demorest for a divorce using the unusual argument that Georgia’s common law marriage, which was banned in 1997, coupled with the Obergefell v. Hodges decision “retroactively date the start of Kyser and Demorest’s marriage to July 1996, when Kyser moved into Demorest’s home. [Kyser] shows that, but for the unconstitutional prohibition on same-sex marriage, the parties would have been married by common law in July 1996.

DeKalb County Superior Court Judge Mark Anthony Scott denied Demorest’s Motion for Summary Judgment on Sept. 4. This means Kyser can further argue her claim that the couple should be considered common-law married due to the Obergefell ruling between July 1996, when they moved in together and January 1997, when the state banned common law marriage.

Florida Divorce

I have written about same-sex marriage and divorce issues before. Georgia, like Florida is among the states that do not recognize common law marriage. The Georgia case is important because same sex marriages were not recognized until 2014 and left an entire group of people “out in the cold” without the protections the law provides to heterosexual couples.

Florida law is similar in that no common-law marriage entered into after January 1, 1968, is valid in Florida. The generally established principle is that the validity of a marriage is determined by the law of the place where the marriage occurred. So, while Florida no longer recognizes common law marriages, nevertheless, it may to recognize the validity of common law marriages in other states.

Given the U.S. Supreme Court’s decision to recognize same sex marriage, everything else from the marriage follows including rights of the parties, including marital property, alimony, divorce, and anything else. The rights and duties of marriage now apply to same sex couples.

This divorce is unusual, because one spouse is arguing they were never legally married under Georgia law.

Wisdom, Justice, Moderation

Kyser said her shock with Demorest seemingly so willing to write off nothing close to a legal marriage led to the divorce filings. She said Demorest’s longtime advocacy for marriage equality is counter to what she is doing with her own family as part of the couple’s split.

For example, Demorest served 13 years on the national Human Rights Campaign board of directors, including as co-chair between 2002-2005 during its heyday in the fight for marriage equality. She also formerly served on the board of directors of the National LGBT Bar Foundation.

However, now that her 20-year relationship with Kyser has ended, Demorest has argued in court filings that their extended union was never a marriage, was never intended to be a marriage, and that Demorest, a national leader for LGBTQ rights, “did not anticipate or have any expectation that marriage would ever become available to same-sex couples in Georgia.”

“I just can’t get over her blindness. How did she get to where she really talked herself into believing that she can advocate for equality and have this tremendous reputation, and then turn around and try to exit our relationship in this way, which is totally contradictory to fairness and equity. To have built up such a reputation professionally and politically, and to then turn and handle her own relationship and family like this just tears it down.”

In court documents, Demorest said although she and Kyser were together for two decades, including holding a commitment ceremony in 1998 and adopting and raising twins together, they never were legally married even as marriage became legal for same-sex couples.

“Up until recently when I decided that I could not wait any longer to end our relationship, I had always considered my relationship with Lee to be as my ‘significant other’ or domestic partner and co-parent of our two children, but never at any time as a legally wedded spouse,” Demorest said in an affidavit.

Demorest’s attorney said that “it’s a very murky thing to dive into and talk about the spirit of the relationship because each relationship has its own milieu. They had the opportunity to get married in 2004, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 and they did not.

In ’15 [when Obergefell legalized same-sex marriage nationwide], they could’ve marched over to the probate court in DeKalb County like a thousand other people did and get a marriage license, but they chose not to do that.

The article is here.

 

When Parent Relocation is Murder

Parent relocations are stressful, but can they lead to murder? Years after a contentious Tallahassee divorce, the trial of the murderers of FSU law professor Dan Markel is underway. Many suspect he was murdered for contesting parent relocation.

Parental Relcation Murder

In Cold Blood

More than five years after his horrific murder, and after numerous delays and postponements, the trial of two of the alleged murderers of law professor Dan Markel got underway in Tallahassee this week.

Professor Markel was gunned down in his driveway after sending off his children for the final time. The trial of two of the alleged perpetrators, Sigfredo Garcia, one of the alleged gunmen, and Katherine Magbanua, the alleged go-between who set up the murder, began this week.

A third man formally accused in the plot — Luis Rivera — says he joined Garcia on the hit and agreed to split $100K with the other two. Rivera already took a plea and will be the star witness.

Unfortunately, Rivera can’t give police the one thing they don’t have: a case against the people who offered up the $100,000 payment he says the crew were promised. Police believe it’s the family of Markel’s ex-wife, Wendi Adelson, who now has custody of the couple’s children and has kept them cut off from their paternal grandparents.

Adelson divorced Markel by moving out of the house and leaving divorce papers on the bed while Markel was on a business trip. After Markel was killed, Adelson told police that her brother joked about hiring a hit man to kill him and she tearfully admitted that she suspected this was done on her behalf.

Miami area Defendant Katherine Magbanua is the ex-girlfriend of Wendi Adelson’s brother, Charlie Adelson, who is also from the Miami area, who may be an unindicted co-conspirator.

Florida Parent Relocation

I’ve written about Professor Dan Markel’s case before. Parent relocations with children during a divorce happens frequently in our mobile society.

In Florida, “relocation” is defined as changing a parent’s principal residence to a new one at least 50 miles away from his or her current address for at least 60 consecutive days. Relocation is a topic that I have lectured and written on before.

Florida has a relocation statute, which in addition to defining relocations, sets out the requirements a parent needs to fill to legally relocate by agreement or court order.

The relocation statute is very technical, and lays out very specific factors a relocation parent must prove, and the court must consider to determine if the proposed relocation is in the best interests of the child.

There is no presumption in favor of or against a request to relocate with the child even though the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent.

Instead, the court looks at specific factors, such as: the child’s relationship with the relocating parent and with the non-relocating parent, the age and needs of the child, the ability to preserve the relationship with the non-relocating parent; and the child’s preference, among others.

Of course, if one of the parents dies during the divorce proceedings, that would likely cause the divorce, and related issues of parent relocation with the children, to be dismissed.

Murder She Wrote

The divergent theories of Professor Markel’s killing surfaced as attorneys laid out their cases and testimony finally began in the trial of a Miami couple charged in the alleged murder-for-hire plot.

Defense attorneys for Sigfredo Garcia and Katherine Magbanua sought to distance their clients from prosecutors’ theory that the pair carried out the grisly end of a scheme financed by the family of Markel’s ex-wife Wendi Adelson. Investigators say the motive “stemmed from the desperate desire of the Adelson family” that Wendi and the couple’s two young sons be allowed to move to South Florida in the fallout of a contentious divorce with Markel.

Magbanua is the accused conduit between the Adelsons and the killers, Garcia and his friend Luis Rivera. Prosecutors say they drove from Miami to Tallahassee to shoot Markel in July 2014. The pivotal question is why the Adelson family is not facing charges, Kawass told jurors during her 30-minute opening. She asked them to follow the evidence, which prosecutors will present piecemeal.

“There is no direct evidence (Magbanua) was involved. Zero. And that’s because she wasn’t involved. She had absolutely nothing to do with this case,” she said. “The government made it very clear who is behind the killing of Dan Markel. Why aren’t the Adelsons here? Why aren’t they charged? Because they don’t have the evidence to do it.”

Details of the Tallahassee Police Department probable cause affidavit released the morning of June 2, 2016 reveal the route taken by murder suspect, Sigfredo Garcia.

Before the two defense attorneys made their case, prosecutor Georgia Cappleman traced the murder-for-hire allegations.

“Wendi Adelson had a problem and the name of that problem was Dan Markel. And the solution to that problem was Sigfredo Garcia, Katherine Magbanua and Luis Rivera. I believe that you will be convinced the state is not pulling a fast one on you but rather that Katherine Magbanua was hired to solicit Garcia to in turn solicit Rivera to come to Tallahassee and execute Mr. Markel in cold blood.”

Garcia’s attorney began his opening statements by pointing out that the third man charged, Luis Rivera, only received a seven-year sentence for his confession. But the statements to investigators by the state’s key witness were rife with inconsistencies, he told the jury.

The Tallahassee Democrat article is here.