Tag: divorce international

Interstate Divorces and Foreign Judgments

Interstate divorces can become a serious constitutional problem when you are enforcing foreign judgments. We recently won an important constitutional victory on appeal after a Florida divorce court refused to enforce a Missouri foreign judgment.

Interstate Divorce

Gateway to a United Country

A couple married in Missouri. Then they asked to borrow money from the Husband’s mother to buy a marital home in Missouri. The mother-in-law agreed to lend them the money for the down payment after the couple agreed to repay her in full.

The couple then asked that the Mother-in-law pay their mortgage payments and lend them even more money to renovate their new home they bought, with the same arrangement that they would repay her from the sale of their previous home.

They didn’t pay back the mother-in-law. Instead, they moved to Florida and defaulted.

The Mother-in-law sued them, and won a final judgment awarding her money from on the unpaid loan in a Missouri Circuit Court.

The parties then filed for divorce in Florida. The mother-in law was concerned her judgment would never be repaid, so she intervened in their divorce as a foreign judgment creditor to enforce her Missouri final judgment.

The Florida divorce court allowed her to intervene and enforce the Missouri judgment, but entered a new divorce final judgment slashing the mother-in-law’s Missouri judgment in half so the couple didn’t have to pay her back what they owed.

The trial court’s actions violated the Full Faith and Credit Clause of the United States Constitution, a constitutional clause which helps make us one country, not 50 independent countries.

Florida Interstate Divorce Issues

I’ve written and spoken about interstate divorce issues before. The typical interstate problems occur in cases in which two parents reside in one state, like Missouri for instance, then one or more of the parents and the children move across state lines to Florida, for instance.

Interstate problems can include enforcing foreign custody orders, enforcing or modifying family support orders (like alimony and child support), or enforcing foreign money judgments.

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, interstate alimony, and child support. 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) and Uniform Interstate Family Support Act (the UIFSA), which Florida and almost all U.S. states passed into law.

A major problem arises when one state’s judgment conflicts with Florida’s public policy. For example, grandparent visitation is an area of law in which Florida does not really recognize a grandparent’s rights, but many other states do.

A few years ago, the Florida Supreme Court the Florida Supreme Court held that Florida is not allowed to elevate its own public policy over the policy behind a sister state’s judgment.

Accordingly, a Florida divorce court cannot refuse to enforce a Missouri judgment for money damages if one happened to be at issue in a Florida divorce. But that’s exactly what happened recently in a divorce court here.

Sunshine State Meets the Show Me State

After the Florida divorce court’s ruling, we asked an appellate court in Florida to reverse what the divorce court had done. On appeal, a panel of judges reviewed the case.

We explained that the Full Faith and Credit Clause of the United States Constitution creates a constitutional duty that U.S. states must honor the laws and judgments of the other sister states.

That is an important aspect of American federalism because it changes the various U.S. states from being independent foreign countries, and making them integral parts of a single nation.

This form of federalism has traditionally meant that one state in the United States may not modify or alter the judgment of a sister state (excluding child support and custody cases which can be modified under very limited circumstances).

In our case, no one disputed the validity of the Missouri judgment. Everyone participated in a full trial on the merits in Missouri. In reversing, the appellate court held that a Florida divorce court was prevented from inquiring into the merits of the cause of action or the logic or consistency of the Missouri court’s decision.

Because the mother-in-law appropriately intervened in the divorce action and asserted her right to enforce the Missouri judgment, the divorce court did not have discretion to alter or reduce the Missouri judgment or it constituted a violation of the Full Faith and Credit Clause of the U.S. Constitution.

The appellate opinion is here.

 

Divorce Causes in India

Divorce can have many causes, but in India there is a bizarre case going on in which a Muslim woman has sought divorce in an Islamic court from her husband on the grounds that he does not fight with her enough.

India Divorce

The Spice of Life

The unidentified woman in the Sambhal district of Uttar Pradesh has sought a divorce from her husband after only 18-months of marital bliss. The woman approached the Sharia court in Sambhal to seek a divorce, leaving the court puzzled.

Why was the court so confused?

The chief complaint from the woman is that her husband loves her too much and does not fight with her. The woman claimed that her husband’s love was ‘suffocating’ her.

“He does not shout at me and neither has he upset me on any issue. He even cooks for me and also helps me in performing household chores.”

She further said, “Whenever I make a mistake, he always forgives me for that. I wanted to argue with him. I do not need a life where the husband agrees to anything.”

The Sharia court cleric, as expected, rejected her plea for divorce, terming it as frivolous. When the Sharia court refused to grant her divorce, the woman took up the matter with the local panchayat (the local self-government in villages in rural India), which also expressed its inability to decide the issue.

Florida No Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. So, whether your husband is always forgiving of your mistakes, or worse, very agreeable to anything you want, you don’t need to allege that as a grounds for divorce.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s nice demeanor. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

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

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.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Divorce Bollywood Style?

Back in India meanwhile, the nice husband has gone on record and stated that he loved his wife dearly and always wanted to keep her happy. He also asked the Sharia Court cleric to reject the divorce plea. Of course.

The court has now asked the couple to resolve the matter mutually.

The Tribune India article is here.

 

Coffee Grounds for Divorce

Coffee used to be grounds for divorce in Turkey after the end of the rule of Sultan Murad IV, who had banned coffee and threw coffee drinkers into the Bosporus. Although Florida is a no-fault state, many people wonder if you still need grounds for divorce.

Coffee Grounds for Divorce

Coffee Talk

Coffee is widely regarded as the second most legally traded commodity after oil in the world today, even though coffee is not technically a commodity since it is fresh produce and its value is directly affected by the length of time it is held.

Coffee, owes its origins as a social beverage to Sufis from Yemen in the 15th century, and then it quickly spread from there throughout the Ottoman Empire. Holding a place of uncertain legality under Islam since its inception, coffee has been alternately banned and blessed depending on the tastes of the ruling government.

During the Ottoman Empire, not even the threat of penalty of death could stop the coffee drinkers of Istanbul. Sultan Murad IV launched his own attack against coffee drinkers as well as tobacco smokers. He brought back the edict about throwing coffee drinkers into the Bosporus and even took it a step further; if he found any soldiers smoking or drinking coffee on the eve of battle, he would execute them or have their limbs.

Coffee was instantly reinstated, along with tobacco use, as soon as this man met his demise. Turkish coffee has been a mainstay of Istanbul ever since to the point where, up until the collapse of the Ottoman Empire, being unable to provide coffee for the household was considered sufficient grounds for a woman to divorce her husband.

Florida No Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s allegedly failure to bring home Starbucks, or preferably, Lavazza. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw hot coffee at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Another Cup of Joe

A cup of coffee can be more than a beverage–it’s a lifeline. Many people claim that they can’t wake up without their morning cup of coffee, others say that they can’t stop drinking it because caffeine is what keeps them creative.

It is not really known where the history of the coffee begins but there is the world-famous legend about Kaldi, a herdsman from Ethiopia who was the first to discover the effects of the coffee beans. According to the legend, around the year 850 AD Kaldi noticed that whenever his sheep ate the red berries that grew on a particular bush, they became excited and more energetic, to the point that they didn’t sleep at night.

Soon word of the energizing berries spread and caught the interest of the Galla tribe in Ethiopia. They invented a kind of a power bar that was prepared with clarified butter and the berry. It was the food of the warriors and it apparently made them invincible. Energizing bars based on coffee berries are still a common snack in Sidamo and Kaffa.

By the late 15th century coffee had become a common beverage in the Near East, but the Ottoman Turks had mastered the art of it. They prepared the coffee with cinnamon, anise, cardamon, and cloves. And this spicy version is still available in some places in Turkey. It is no wonder that they drink coffee after coffee when they prepare each cup with so much love and attention.

Information about coffee in the Ottoman Empire can be found here.

 

Israeli Prenuptial Agreements are Kosher

Whether Israeli prenuptial agreements are kosher is a big question in the holy land as Israel’s version of Real Housewives, Nicol Raidman, has filed for divorce from her former oligarch and billionaire industrialist husband Michael Cherney.

Israeli Prenuptial Agreement

Land of Milk and Honey

Nicol Raidman is a businesswoman, socialite and former reality TV celebrity in Israel, who recently announced she is divorcing her billionaire husband in what is shaping up to be the most expensive divorce lawsuit in Israeli history, Channel 12 news reported Monday.

After 11 years of marriage, Raidman and industrialist Michael Cherney are dissolving their union. But Raidman is alleging that Cherney has failed to honor his prenup with her, which promised her $25 million (NIS 86 million) in any settlement.

She is now planning to take Cherney to court and demanding hundreds of millions of shekels under their prenuptial agreement.

Prenuptial agreements are generally enforceable in Israel, if authorized before a notary, a marriage registrar, or by the family court or the religious court. In fact, former Justice Minister, Ayelet Shaked, called on couples getting married to sign prenuptial agreements to ensure that husbands will not withhold a get, or Jewish writ of divorce, from their wives.

In Israel, where all divorces are subject to religious law, the norm has left thousands of women in legal limbo due to husbands who refuse to grant divorces. The phenomenon has received a lot of attention in recent years as rabbis try to battle husbands who are “get-refusers.”

Some Jewish groups mandate its members require couples to sign a prenuptial agreement to avoid such scenarios. The agreement, commonly referred to as a “halachic prenup,” generally penalizes the husband financially for refusing to give the get.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for celebrity sports figures, and they are about much 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. But 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.

For example, 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.

Real Housewives of the Holy Land

Cherney’s lawyer told the network that any and all claims would be made to the court rather than the media. Raidman is known to be a close friend of Prime Minister Benjamin Netanyahu’s wife Sara.

In 2011-2013 Raidman took part in the Channel 10 reality television show “Me’usharot” based on the US show “The Real Housewives.” She has launched her own luxury clothing and perfume brands.

Cherney, an oligarch who made his fortune in the former Soviet Union, is a close confidant of Yisrael Beyteinu party leader Avigdor Liberman. The couple have two children.

The Times of Israel article is here.

 

International Child Custody and a Washington Woman in Saudi Arabia

In an interesting case involving international child custody and a Washington woman in Saudi Arabia, the woman who previously lost custody of her daughter in Saudi Arabia for being “too western”, is back! She traveled home for Christmas and is trying to stay in Washington state with the child.

International Child Custody

Shifting Sands

I’ve written about the case of Bethany Vierra Alhaidari before. Bethany, a 32-year-old student and yoga teacher, moved to Saudi Arabia to teach at a university in 2011. She divorced her Saudi husband, and sought custody of their four-year-old daughter. But the Saudi court concluded that she would not be a good parent.

“The mother is new to Islam, is a foreigner in this country, and continues to definitively embrace the customs and traditions of her upbringing. We must avoid exposing (the child) to these customs and traditions, especially at this early age.”

She started sleeping with her ex-husband, Ghassan al-Haidari, in a bid to get him to allow her and their daughter to spend Christmas with her family, in Washington state. It worked, but she did not return from the Christmas vacation.

Bethany is now asking a family court in Washington to give her custody of her five-year-old daughter Zaina. She said the custody agreement with her Saudi ex-husband was signed under duress and that she was not given a fair hearing by Saudi courts.

In recent years Saudi Arabia has attempted to shake off its image as one of the most repressive countries in the world for women.

In 2018, the government lifted a long-standing ban on women driving and made changes to the male guardianship system last year, allowing women to apply for passports and travel independently without permission from a man.

However, women continue to face numerous restrictions on their lives, and several women’s rights activists who campaigned for the changes have been detained and put on trial. Some of them are alleged to have been tortured in prison.

Florida and the UCCJEA

I’ve spoken about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting parent’s actions of any practical or juridical consequences.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

The removal or the retention of a child is to be considered wrongful where:

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, many countries, like Saudi Arabia, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country is not a signatory country, the UCCJEA may provide relief.

Florida and almost all U.S. states passed the UCCJEA 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 Washington. The ultimate determining factor in a Washington case then, is what is the “home state” of the child.

Alternatively, Washington could possibly hear the case if Washington was the Home State of the child within 6-months before filing or the children are in Washington and the court has emergency jurisdiction. In Bethany’s case, she is using a rarely used section of the UCCJEA.

A Washington Yogi in King Salman’s Court

Bethany appealed the Saudi ruling last August. But she said that it was ignored and that a Saudi judge forced her to reach a custody agreement. She went back to living with her ex-husband and at Christmas he allowed her to take Zaina to see her grandparents in Washington. They did not return.

She next filed a case with a court in Washington in January that cited a rarely-used clause in the Uniform Child Custody Jurisdiction and Enforcement Act.

Even though Saudi Arabia is not a signatory to the Hague Convention, the UCCJEA requires State courts to recognize and enforce custody determinations made by foreign courts as if they were State courts.

However, a court need not enforce a foreign court order or defer to a foreign court’s jurisdiction if the child-custody law of the foreign country violates fundamental principles of human rights.

The UCCJEA language comes from article 20 of the Hague Convention. The “human rights, or fundamental freedoms defense, is invoked on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.

Washington has some experience with this clause. In 2015, a court in Washington ruled that the state should not enforce custody decrees from Egypt because there was “clear and convincing evidence” that Egyptian child custody laws violated fundamental principles of human rights.

Bethany’s husband has asked a Washington family court to enforce the custody agreement registered in Saudi Arabia, saying that his ex-wife was seeking more favorable terms.

Parents don’t get to just move the child to a foreign state and then start a custody case if they don’t like the parenting plan they had in the child’s home state.

The Wall Street Journal article is here.

The Divorce Pandemic hits Saudi Arabia

The divorce pandemic hits Saudi Arabia after first starting in China, South Korea, and the United States – which have reported increases in divorce filings following the easing of some quarantine restrictions.

Saudi Divorce

Dry Statistics

According to Al-Amri, the number of divorce cases handled by courts across the Kingdom of Saudi Arabia reached 53,675 in 2017 or 149 cases each day.

But new reports show that divorce rates in Saudi Arabia have increased by 30% during the lockdown period enforced by the coronavirus or COVID-19 pandemic, reported the Dubai-based English language newspaper Gulf News quoting Saudi Justice Ministry.

The paper said the rate of divorce has increased compared to the same period last year.

However, during the lockdown period, 13,000 people also tied nuptial knots an increase of 5% compared to the same period in the previous year.

The ministry also informed that as many as 7,482 requests of divorce and Khula – a procedure in Islam which allows a woman to divorce her husband – were lodged.

According to the newspaper, some Saudi working women including doctors, citied secret marriages of their spouses as reasons for seeking a divorce.

Apparently, the preventive measures taken to stem the spread of the coronavirus including imposing lockdown – contributed to helping women to uncover the secret marriage of their husbands.

The high rate of divorce has become a destabilizing factor in Saudi society and it obstructs the Kingdom’s march to greater progress. Social consultant and researcher Salman Bin Mohammed Al-Amri has expressed his deep concern over the repercussions of the high incidence of divorce in society.

The office of the Grand Mufti approved 6,163 divorces during the same year, which is an increase of 846 cases compared to 2016.

“We should know that there are hundreds of divorces not recorded by the courts, so the actual figure could be much higher than what is officially reported”

The total number of divorces could be 40 to 45 percent of the total number of marriages, which was put at 159,386, in the same year. “This shows that we have to take drastic measures to bring down this huge number of divorce cases in the country,” Al-Amri told Okaz/Saudi Gazette.

Florida Divorce

I’ve written about the divorce statistics before. Forced together due to a shelter-in-place order may be the reason for your divorce, but legally you don’t need one. That’s because Florida is a no-fault divorce state.

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

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.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Shifting Sands

Measures must be taken to control divorces to reduce its social impact as it causes untold problems to the children of divorced couple. Men and women who have separated after years of living together also face psychological, economic and social problems.

“We have to conduct a detailed study on the increasing number of divorce cases in Saudi society to find a viable solution.”

Injustice, lack of honesty and trust, and confusion are the hallmarks of divorce cases across the Kingdom. It destabilizes families, the foundation of society.

Saudi and Gulf societies have changed considerably in recent years as a result of foreign influences and other factors, largely affecting social, cultural and economic norms.

“Our families have been influenced by the new urban culture and modern information technology. Education and employment of women and the Kingdom’s openness to foreign cultures were other factors that increased the divorce rate.”

Many parents have failed to prepare their sons to get married by training them to take responsibility. Some men fail to fulfill their Shariah duties toward their wives while those having more than one wife fail to treat all of them fairly and equally.

There are many other reasons including bad temper, infidelity, drug and liquor habits, miserly attitude and high dowry, in addition to psychological, health and social reasons.

Al-Amri said women are the most affected in case of divorce due to society’s negative attitude toward them. A divorcee loses economic support and financial security provided by her husband and this brings down her living standard, in addition to making her a burden on the family.

“As a result of this situation, such women will be forced to seek financial help from the Ministry of Labor and Social Affairs and charitable organizations. This will lead to depression and push them to commit suicide,” he explained.

Most divorced Arab women are unlikely to get married for a second time because of the tough attitude of society toward them.

The situation of divorced men is not very different as they too face a lot of difficulties and mental pressure. They may be forced to pay to child support. Many divorced men are afraid of marrying another woman due to the failure of the first marriage.

Children are the worst hit by divorce as they will lose the sense of security and will not be able to concentrate on their studies. The father will try to take custody of his children and keep them away from their mother. “This will create a horrible family atmosphere for children,” said Al-Amri.

Instead of becoming leaders of progress and prosperity, separated men and women would become depressed individuals unable to make any contributions to the country’s growth. It will increase financial burden on the state, charities and civil societies as the divorcees and their children will require financial support.

The Al Arabiya article is here.

 

Texas Hold ‘Em: Hague Convention and More Good News on the Coronavirus

The national emergency has not stopped international child custody and Hague child abduction cases, but definitely made them more challenging. I recently came back from trial in a Texas federal court helping a father return his daughter to Mexico, and there is good news on the coronavirus front.

Hague Child Abduction Mexico

Oh, Mexico

My client and the Mother are dual citizens of Mexico and Cuba, and met in Cancun, Mexico. They are both professional musicians. Together they have a daughter who is currently five years old.

During the early years of their relationship, they all lived together in an apartment, and traveled together. When they broke up, the Father moved to an apartment nearby, and he and his daughter would timeshare, he paid for her piano lessons, her private school tuition, and even the Mother’s rent.

On July 12, 2019, at approximately 11:30 a.m., the Mother called the Father that she had taken their daughter to an undisclosed location.

He suspected she took her to Florida, and even had a possible address for the Mother here. Unbeknownst to him, the Mother actually took their daughter to a small, west Texas town.

The same day, the Father went to the Cancun Police and filed a missing child report. A few days later, he filed a Hague application for the child’s return. He hired me to file a case in Miami federal court, which was transferred to a federal court in Texas when the child was discovered there.

Habitual Residence and the Hague Convention

While the abduction was going on, and a few days before our Texas trial, the U.S. Supreme Court decided a major Hague Child abduction case involving the habitual residence of a child.

I have written about the recent U.S. Supreme Court case before. In Monasky v. Taglieri, the U.S. Supreme Court held that the determination of a child’s “habitual residence” for purposes of the Hague Convention depends on a totality-of-the-circumstances analysis and that a district court’s habitual-residence determination should be reviewed for clear error.

The Hague Convention on the Civil Aspects of International Child Abduction provides that a child wrongfully removed from his or her country of “habitual residence” must be returned to that country, which then has primary jurisdiction over any resulting custody proceedings.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention instructs that signatory states should “use the most expeditious proceedings available” to return the child to his or her habitual residence.

In Monasky, an American brought her infant daughter to Ohio from Italy after her Italian husband, Domenico Taglieri, became physically abusive. Taglieri petitioned for his daughter’s return under the Hague Convention, arguing that Italy was the daughter’s “habitual residence.”

The federal court agreed, and found the parents had exhibited a “shared intention” to raise their daughter in Italy. The Sixth Circuit Court of Appeals affirmed with dissents. Monasky then petitioned the U.S. Supreme Court, arguing that establishment of a child’s habitual residence requires actual agreement between the parents.

The Supreme Court noted that the Hague Convention does not define “habitual residence.” Relying on the treaty and decisions from the countries who are signatories, the high court concluded habitual residence it is a “fact-driven inquiry into the particular circumstances of the case.”

The Supreme Court also noted that Monasky’s ‘actual agreement’ requirement would leave many children without a habitual residence, and outside the Convention’s domain and the Hague Convention always allows a court concerned about domestic violence to not order a child’s return if “there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Texas Hold Em

Texas Hold ‘Em?

One of the issues which had to be resolved in our trial was the habitual residence of the child, and whether the parents shared an intent to abandon it. During our trial in Texas, the U.S. District Court found the parents did not share an intent to change the child’s habitual residence, among other defenses, and ordered the child returned to the Father and to her home in Mexico.

Relying on the U.S. Supreme Court’s, brand new decision, the federal court found the daughter’s habitual residence is Mexico, and that she was wrongfully removed to the United States in violation of the Hague Convention.

At the same time the Coronavirus was raging across the world, the U.S. government just ordered the border with Canada closed, courts were closing around the country, and there was a real concern we wouldn’t be able to return to Mexico.

But we faced another, potentially bigger problem. How do you enforce a federal court order to return a child to Mexico when the entire world is shutting down? The alternative to us moving immediately to secure the child’s return to Mexico would be to ‘hold em’ in Texas. Acting quickly, the father and daughter made it safely home to the habitual residence of Mexico.

Good News and the Coronavirus

We are under quarantine, and we can expect that to continue in the near future. But that doesn’t mean there isn’t some good news to report. For instance:

  • Distilleries across the U.S. are making their own alcohol-based hand sanitizers and giving it away for free.
  • Restaurants, sports, and businesses are stepping up to combat the community effects of the novel coronavirus. The sports world is raising money for stadium employees, and Uber Eats is divvying out free delivery to help independent restaurants to name a few.

Air and Water pollution has plummeted in cities with high numbers of quarantined individuals. In fact, Venice’s waters are running clear for the first time and people are seeing fish.

  • China is re-opening parks and athletic centers, and loosening travel restrictions as the novel coronavirus comes under control in China, and parks and tourist attractions have reopened across the country.
  • Neighbors across the country are stepping up to make grocery runs for those who can’t leave their homes.

The U.S. Supreme Court decision is here.

Divorce and Adultery May No Longer be a Thing and Good Coronavirus News

Is the coronavirus, SARS-2, SARS-CoV, Covid19 to blame? No one is sure, but British reports are showing far fewer married couples are listing “adultery” as grounds for divorce, according to new figures recently published in Britain.

Adultery Divorce Drop

Divorce Without Fault

The Sunday Times reported that the rate has dropped by more than half in a decade. According to the Office for National Statistics (ONS), it was used for 9,205 divorces in 2018, compared to 20,765 in 2008 and 36,310 in 1998.

A desire to avoid blaming the other person in a doomed marriage comes as a “no fault” divorce bill makes its way through parliament. Speaking to the paper, Sir Paul Coleridge – chairman of the Marriage Foundation – said:

“I think people are more grown up than they used to be and realize that a single act of adultery does not tell you very much about the cause of the break-up of a marriage. It may be a symptom of the problem, but my experience is that it isn’t the cause. The cause is the broken relationship, and the adultery arises out of it.”

According to the ONS, the most common grounds for divorce – used in half of all cases, compared to one in ten for adultery – is unreasonable behavior.

It comes as it was revealed that suspicious partners can order DNA ‘infidelity’ tests online to prove whether their other halves have really strayed.

The ‘evidence’ – such as underwear, bedding, condoms, cigarette butts, strands of hair or chewing gum – is sent off to a lab for analysis

The Sunday Times previously reported that one UK-based company is offering a £90 “semen detection test”, a £299 “gender” test to check if the sample is from a man or a woman, or a £500 comparison test to differentiate between their own sample and a “suspicious” one.

They also found a £60 “sperm detection kit” sold online – containing a solution that turns samples purple if semen is present – which is being sold as a way to catch a “cheating spouse”.

Florida No Fault Divorce

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.

When is adultery relevant in divorce in Florida? Although we are a no-fault state, there is still a statutory basis for infidelity to be an issue in your divorce proceedings, but not as a reason for divorce.

Some people think no fault divorce is one of the main reasons for a high divorce rate. Despite the recent legislative moves in the UK, there is a movement here to return to the old “fault” system to promote families.

Good News and the Coronavirus

  • Did you know that “2019-nCOV” was the initial name given for the virus?

But the name was hard to remember and was misleading, because it gave the misimpression that the virus was novel. It’s not. In fact, it’s the least novel of the respiratory disease-causing viruses. It’s defining feature is its NON-novelty!

  • Do you know how to kill the coronavirus?

Since it is an enveloped virus, it’s killed by soap/detergents, ethanol, Windex (which contains detergents), and bleach.

  • Do you know how long the coronavirus lasts on surfaces?

On steel and plastic, 10-fold drop in ~12 hours; On cardboard, about 1 hour; On a napkin, the survival should be like on cardboard or maybe lower, and the virus will get trapped by the paper fibers. That said, don’t wipe your mouth with a napkin that someone just handed you.

  • Does “social distancing” have any effects?

The R0 rate (“R zero rate”) refers to how contagious an infectious disease is. Preemptive hygiene enhancement and social distancing help reduce the average frequency and intensity of exposure to the virus, might reduce infection risk, reduce the average viral infectious dose of those exposed, and result in less severe cases who are less infectious.

  • Is there a cure for the Covid-19 disease?

Right now people are working on it. But thanks to earlier research, we may already have drugs with activity against it. For example, Remdesivir (Gilead) seems to work against SARS-CoV-2 in cells.

The Times article on adultery and divorce is here.

 

A Royal International Child Custody Case

Child custody cases impact everyone, including world leaders as one recent British case proves. But the stakes in an international child custody matter can change when a parent who holds the power of a state government behind him, gets tough.

Royal Child Custody

A Royal Scam?

When you are concerned in your child custody case about the unlimited resources of the other side, knowing the children’s father is His Highness Sheikh Mohammed bin Rashid Al Maktoum the ruler of the Emirate of Dubai and Vice President and Prime Minister of the United Arab Emirates does not help.

Luckily, the children’s mother is Her Royal Highness Princess Haya bint Al Hussein. She is a daughter of His Majesty the late King Hussein of Jordan and the half-sister of the present ruler of Jordan, King Abdullah II.

The mother is the second official wife of the father, who, in addition, has a number of “unofficial” wives. These two children are the two youngest of the father’s 25 children.

In April 2019 the mother travelled to England with Jalila and Zayed. Although it was normal for the children and the mother to visit England, she made it clear soon after arrival that she and the children would not be returning to Dubai.

The Princess claims she fled the Gulf emirate with her children, saying she had become terrified of her husband’s threats and intimidation. The threats continued after the princess moved to London adding that the Sheikh had used the apparatus of the state “to threaten, intimidate, mistreat and oppress with a total disregard for the rule of law.”

In May 2019 the father commenced proceedings to order the children to be returned to the Emirate of Dubai. The mother initially contested the court’s jurisdiction by asserting that she enjoyed diplomatic immunity, it being the case that shortly after her arrival in England the government of the Hashemite Kingdom of Jordan appointed the mother to the post of First Secretary at the Jordanian Embassy in London

The father, as the ruler of the State of Dubai and as the Head of the Government of the UAE, claims and acknowledges that his position attracts certain immunities, and cannot be required to attend this court to give oral evidence.

In October 2019 the father substantially revised his position by no longer pursuing his application for the children to be returned to Dubai. He agreed that the children would now continue to live with their mother and be based with her in England.

Within the same time period, the father published a poem entitled “Luck strikes once”:

“My spirit is cured of you, girl. When your face appears, no pleasure I feel. Don’t say troublemakers are the ones to blame. It’s your fault, though you’re fairer than the moon…They say luck strikes once in a lifetime and if you lose luck you have no excuse”.

The mother took the poem as a direct reference to herself.

Florida Child Custody

I’ve written about child custody and domestic violence before. Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

The best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including evidence of domestic violence, child abuse, child abandonment, or child neglect.

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

When discussing family or household members, Florida law defines these to mean spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.

In Florida, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further abuse. Protection orders may include the victim’s children, other family members, roommates, or current romantic partner. This means the same no-contact and stay-away rules apply to the other listed individuals, even if the direct harm was to the victim.

This could include a parent leaving a series of anonymous notes in the other parent’s bedroom making threats such as “We will take your son – your daughter is ours – your life is over” or warning her to be careful; and leaving a gun on the bed with the muzzle pointing towards the door and the safety catch off.

Can’t Buy a Thrill

After listening to witnesses and the King’s poetry, a judge at the High Court in London found that the Father “acted in a manner from the end of 2018 which has been aimed at intimidating and frightening” his ex-wife Princess Haya, 45.

Judge Andrew McFarlane also said the Sheikh “ordered and orchestrated” the abductions and forced return to Dubai of two of his adult daughters from another marriage: Sheikha Shamsa in August 2000, and Sheikha Latifa in 2002 and again in 2018.

The judge made rulings after a battle between the estranged spouses over the welfare of their two children, but the Sheikh fought to prevent them from being made public. The U.K Supreme Court quashed that attempt.

The judge found that Haya’s allegations about the threats and abductions met the civil standard of proof on the balance of probabilities. Princess Haya also alleged that Sheikh Mohammed had made arrangements for Jalila — then aged 11 — to be married to the Crown Prince of Saudi Arabia, Mohammed bin Salman.

In 2002 the return was from the border of Dubai with Oman, and in 2018 it was by an armed commando assault at sea near the coast of India.” The judge said Shamsa, now 38, was abducted from the streets of Cambridge and “has been deprived f her liberty for much if not all of the past two decades.”

Sheikh Mohammed is also the founder of the successful Godolphin horse racing stable and last year received a trophy from Queen Elizabeth II after one of his horses won a race at Royal Ascot.

In a statement released after the rulings were published, the Sheikh said that “as a head of government, I was not able to participate in the court’s fact-finding process. This has resulted in the release of a ‘fact-finding’ judgment which inevitably only tells one side of the story.”

“I ask that the media respect the privacy of our children and to not intrude into their lives in the U.K.”

The Time article is here.

 

Big British Property Division Case

A British woman who “sacrificed” her career as a lawyer so she could be a stay-home mum and raise her children has won an unequal property division on top of an equal share of the family’s wealth after her divorce. This case proves that the interruption of your career can impact your divorce.

Merry in England

A woman who “sacrificed” her career as a solicitor so she could look after her children has won compensation on top of an equal share of the family’s wealth after her divorce.

The ruling could have implications for other divorce cases in which one partner has stepped back from their career for the good of the family, a lawyer said. The Cambridge graduate was embroiled in a fight over cash with her millionaire husband, who is also a solicitor, after the breakdown of their marriage.

A judge has decided the pair, who were married for about a decade and have two children, should split assets of nearly £10 million equally but that the woman should get another £400,000 in compensation for curtailing her legal career.

Mr. Justice Moor said there had been “relationship-generated disadvantage” as the husband was still able to enjoy a “stellar” career.

[The woman] viewed herself as the parent who would take primary responsibility for the children. The husband’s career took precedence. I accept that it is unusual to find significant relationship-generated disadvantage that may lead to a claim for compensation but I am clear that this is one such case. I have come to the conclusion that an appropriate sum to award for relationship-generated disadvantage, over and above her half share of the assets, is the sum of £400,000.

As a talented lawyer, our client sacrificed a potentially lucrative career for her family and to care for the children. Although Mr. Justice Moor has made clear this decision should not open the floodgates to a raft of relationship-generated disadvantage claims, the judgment affirms that in truly exceptional circumstances the principle of compensation still exists in family law, and rightly so.

Florida Property Division and Careers

I have written about property division before. Florida’s equitable distribution statute begins with the premise that the distribution should be equal, but the trial court may make an unequal distribution when proper justification is demonstrated.

The equitable distribution statute lists several factors for a trial court to consider in making this determination, and the court must support its equitable distribution scheme with specific factual findings.

As in the recent England case, a Florida trial court follows several factors to support an unequal distribution, including: what were the contributions to the marriage by each spouse, the economic circumstances of the parties, the duration of the marriage, and the interruption of personal careers.

Generally, the fact that one spouse is the primary bread winner won’t support an unequal distribution in Florida.

Stiff Upper Lip

In another British case, a businesswoman who left behind her career in order to become a “stay at home mum” while her husband continued with his high-flying career has been awarded virtually all of the family fortune by a divorce judge.

Jane Morris, 52, had been criticized by her former husband for not bringing more money in after they split, having quit her career as a recruitment consultant to keep house for him and their three children for 20 years.

However, it emerged that she was awarded half a million pounds while husband, Peter Morris, the managing director of a software company with a seven-figure turnover, was left with just £66,000.

Details of the case came out as he launched a challenge in the court of appeal against the financial outcome of the divorce and a six-week prison sentence which is hanging over his head after it was imposed on a suspended basis for non-payment of alimony and support.

The court heard that the 51-year-old businessman “took credit” for the “high standard of living” the couple enjoyed in their £1.2m cottage in the Chiltern Hills.

However, the couple’s “extravagant” spending, both during their marriage and after their “bitterly contested” break-up in 2013, brought them “to the brink of financial disaster”, reducing multi-million-pound family assets to just £560,000.

Awarding 90% of the family assets to her, the judge had said that she “needs adequate maintenance” because sacrificing her career had left her with a “low earning capacity… in her middle fifties with rusty skills.”

Morris had hit out at his wife’s own expenditure and criticized her for not earning more, having re-entered the labor market since they separated. But she was ruled to be “a sensible woman” who was “probably in need of emotional and psychological comfort” during her own spending sprees.

The Guardian article is here.