Tag: divorce international

Dissipation and Soccer

Posted by Ron Kauffman on

Hiba Abouk, the wife of Moroccan soccer star Achraf Hakimi, filed for divorce only to discover she may be the victim of a massive dissipation of marital assets. Many are wondering if Abouk will walk away empty-handed after her husband passed all of his assets to his mom.

Dissipation Divorce

Red Card?

Hiba Abouk was born in Madrid, and is the youngest of four children. She is also a successful actress, and has amassed a small fortune throughout her career in television. The 36-year-old Spanish model is approximately worth $3 million.

Achraf Hakimi is one of the highest paid Moroccan professional soccer players, and is currently playing for Paris Saint-Germain and the Morocco national team. He began playing for Real Madrid Castilla in 2016, then signed with Inter Milan, and after helping the club win the 2020–21 Serie A title – their first in 11 years – signed with Paris Saint-Germain. Hakimi’s wealth is estimated to be around $70 million, as per media reports

The pair started dating in 2018 and got married in 2020. Together, they have two boys. But then in March 2023, a 24-year-old woman filed a complaint against Hakimi accusing him of raping her in his house in Paris while his wife and two sons were away on holiday.

French prosecutors indicted Hakimi on rape charges after he was questioned by investigators. Hakimi’s mother has claimed that the charges against her son are false, and she is confident that her son is innocent.

Abouk filed for divorce after returning in March 2023, but to her shock, her husband had no properties or money in the bank in his own name. According to reports Hakimi had registered all of his assets in his mother’s name and may even have assigned to his mother most of his salary.

Florida Dissipation

I’ve written about dissipation of marital assets and unequal distribution of assets before. In a proceeding for dissolution of marriage, when distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

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 two years prior to the filing of the petition.

Dissipation of marital assets, such as spending marital funds on extramarital relationships (buying expensive gifts for a girlfriend) or putting the family home in mom’s name, or excessive gambling are examples which happens a lot. Less common are schemes like transferring all of your assets and assigning 80 percent of your income to a family member. 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.

Dissipation Soccer

A Rat in Rabat?

According to media reports, Abouk filed her divorce claim and demanded half of the World Cup star’s fortune before she discovered the bitter truth: that Hakimi’s mother had it all. Media reported that court officials have told Abouk that her husband legally owned nothing and that all his millions, and even his PSG salary, were registered under his mother’s name.

Morocco World News reported last year that Hakimi was the sixth highest-paid African footballer, earning more than $215,000 a week. However, his wife was astonished when she was told by the court that more than 80 percent of his salary is credited to his mother’s bank account.

He appears to have no properties, cars, or jewelry registered in his name. After the financial disclosure, Hakimi is now entitled to seek half of his ex-wife Hiba Abouk’s net worth, which is rumored to be $3 million.

Hakimi’s lawyer, Fanny Colin, said that her client being indicted was an “obligatory step for any person being accused of rape,” and would allow the footballer to defend himself.

The Morocco World News article is here.

The Importance of Divorce Jurisdiction

Posted by Ron Kauffman on

The jurisdiction where you file your divorce can be of extreme importance. File in the wrong jurisdiction, and your divorce can be deemed a nullity. In Afghanistan, where divorce is taboo, the Taliban have started to void divorce judgments granted under the previous government.

Divorce Jurisdiction

Trouble in Kabul

Reports from Afghanistan are flowing in about women, who were abused for years by their ex-husbands, who have now had to go into hiding with their children after the Taliban tore up their divorce decrees.

A small number of women, under the previous US-backed government, were granted a legal separation in Afghanistan. However, when Taliban forces swept into power in 2021, husbands claimed they had been forced into divorce and the Taliban are ordering women back to their husbands.

“My daughters and I cried a lot that day. I said to myself, ‘Oh God, the devil has returned.”

The Taliban government, which imposes strict Islamic law, has placed severe restrictions on women’s lives that some have called “gender-based apartheid”. Afghan women have been denied education, restrictions on movement, and a lack of participation in the economy.

Importantly, lawyers say that several women have reported being dragged back into abusive marriages after Taliban commanders voided their divorce judgments.

Florida Divorce Jurisdiction

I have written about jurisdiction in Florida divorce cases before. In Florida, there is no common law right to a divorce. Divorce in Florida is formally called a “dissolution of marriage”, and the cause of action for dissolution of marriage is entirely dependent on Florida Statutes.

The only true jurisdictional requirement imposed by statute in Florida is to show that one of the parties to the marriage has resided six months in the state of Florida before the filing of the petition for dissolution of marriage.

The importance of meeting the statutory requirement is important as it allows you to obtain recognition of your divorce judgment in other states under the full faith and credit clause of the United States Constitution.

Although Florida’s residency requirement sounds simple enough, it is a jurisdictional requirement which must be alleged and proved in every case. Failure to do so, renders your divorce null and void.

Bad News in Kunduz

According to the UN’s mission in Afghanistan, nine in ten women will experience physical, sexual or psychological violence from their partner. However, divorce is considered more taboo than domestic violence is in Afghanistan. Worse, the culture remains unforgiving to women who part with their husbands.

Under the previous US-backed government, divorce rates were steadily rising in some cities, where the small gains in women’s rights were largely limited to education and employment.
As awareness grew, women realized that separating from abusive husbands was possible.

Under the US-backed regime, special family courts with women judges and lawyers were established to hear such cases, but the Taliban authorities have made their new justice system an all-male affair.

Divorces under the new Taliban government are limited to when a husband was a classified drug addict or has left the country. In cases of domestic violence, or when a husband does not agree to a divorce, divorce is not permitted.

Child marriages are also an ongoing phenomenon in Afghanistan. In one case, Sana was 15 when she married her cousin who was 10 years older than her. With the help of a free legal service project Sana won a divorce from her husband in court — but her relief was shattered when Taliban commanders came knocking.

Threatened with losing custody of her four daughters, she returned to her ex-husband who by then had also married another woman. She escaped after he announced the engagement of her daughters to Taliban members.

The oppressive measures against women in Afghanistan are aggravating the economic woes of the country. A report by the International Crisis Group states that many western countries, and even private donors, have canceled donations fearing backlash from funding such an oppressive regime.

India’s NDTV article is here.

Divorce May be Coming to the Philippines

Posted by Ron Kauffman on

While most of the world has legalized absolute divorce, the Philippines have not. But legalalized divorce may be coming to the Philippines after the House Committee on Population and Family Relations approved, in principle, several bills on divorce and dissolution of marriage.

Philippines Divorce

A Thrilla in Manila

Going much further to modernize its family laws, in fact, the House committee on population and family relations has approved in principle eight bills on divorce. The bills will be consolidated into a substitute measure by a technical working group.

According to Representatives:

The Philippines is now the only country that has not legalized absolute divorce. Till death do us part, is wonderful. Marriage is beautiful. But only for those who get it right.

Currently, the only legal ways for a married couple to separate are separation in the Philippines. Even by the standards of former Spanish colonies, the Philippines has very socially conservative laws. It is the only country in world, bar the Vatican City, to outlaw divorce.

Historically, the only way of ending a marriage in the Philippines, short of dying, is to have it annulled, but that can be done only on narrow grounds and at great expense. Abortion is illegal, too, and anyone undergoing or performing one risks up to six years in prison.

Florida 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 international divorce issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity. 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.

Philippines Divorce2

Possibilities in the Philippines

In the Philippines, more modern laws have replaced older Spanish civil laws, which only referred to relative divorce or legal separation. The laws have allowed divorce on the ground of criminal conviction for adultery or concubinage. However, most couples filed for dissolution of marriage from 2009 to 2022, records show.

But apart from the expensive and long process of annulment and dissolution of marriage, annulments and dissolutions of marriage for cause are also complicated in the Philippines:

“Unlike in a divorce proceeding which it is mandated to be inexpensive, affordable and expeditious poor women are left without options, but we surprisingly see rich personalities able to expedite annulment they have the money.”

In annulments – and dissolutions of marriage based on psychological incapacity, – causes must exist before or contemporaneous with the celebration of the marriage.

Some groups have expressed opposition to the divorce bills. Many argue the bills are contrary to the constitutional mandate to strengthen and protect the family as a basic autonomous social institution and marriage as an inviolable social institution.

Another group, however, countered that having divorce is important, especially if the husband or wife is in an abusive relationship. Allowing married spouses trapped in irremediably broken marriages to break free and start anew.

The Philippine Catholic Church has strongly opposed the measure, calling it “anti-marriage and anti-family.” The catechism of the Catholic Church considers divorce a “grave offense” against natural law as “it claims to break the contract, to which the spouses freely consented, to live with each other ’till death.”

However, the Catholic Bishops Conference of the Philippines, meanwhile, said it is supportive of the bill recognizing church annulment:

“We are not supportive of the bill on absolute divorce but we are actually supportive of the bill recognizing church annulments. It’s going to be cheaper than the usual one.”

It is claimed that the bill legalizing divorce in the Philippines will ease the burden on separated or irreconcilable couples. They can go on their separate way and be free to remarry a new spouse. Broken homes are prevalent anyway among families, even without divorce.

The CNN Philippines article is here.

China’s Divorce Laws Mean Fewer Marriages

Posted by Ron Kauffman on

China may be learning an old lesson that strict divorce laws can mean fewer marriages. In addition to the country’s recent worries about the imminent decline in its population, the number of people in China getting married for the first time has been dropping too.

Strict Divorce Law

Hidden Dragon

Although China has 1.4 billion people, the most in the world, its births are set to fall to record lows this year, demographers say, dropping 11.5% from 2020. China’s fertility rate in 2021 was below the OECD standard for a stable population, and among the lowest in the world.

Over the past year or so, China has enacted tax deductions, longer maternity leave, enhanced medical insurance, housing subsidies, and extra money for a third child, but the desire among Chinese women to have children is the lowest in the world.

Adding to the problem is China’s diminishing marriage rate, which slumped again. The number getting married for the first time dropped to 11.6 million last year, almost 700,000 down on the previous year. This was well down on a peak of 23.9 million in 2013.

Faced with mounting fertility problems and a soaring divorce rate, the ruling Communist Party in China introduced a rule last year to keep unhappy marriages together by forcing couples to undergo a 30-day “cooling off” period before finalizing a divorce.

The new law appears to have worked, according to government officials, marriage registration authorities have seen a drop in divorces that many local governments claimed was because of the controversial measure.

But along with that decline in the divorce rate, the number of marriage registrations plunged to a 36-year low in 2021. The fall in marriages has contributed to a plummet in birthrates, a worrying sign in China’s rapidly graying society and a phenomenon more familiar in countries like Japan and South Korea.

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 trends before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. 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.

The Great Wall to Marriage

Posters on social media in China have hailed the “wise” decision made by young people not marrying, and said they too would not be getting married. One user wrote:

“Marriage is like a gamble. The problem is that ordinary people can’t afford to lose, so I choose not to take part.”

The controversial measures enacted by the Chinese Communist Party have led to a dramatic fall in the divorce rate but critics have said it disadvantages women, particularly those without an independent source of income.

A divorce seeker has to wait for 30 days after making an application, and longer if the partner refuses to get divorce. Not to mention many people’s divorce requests were not approved even when they were suffering from cheating and domestic violence.

The director of the Guangdong Population Development, told Yicai news:

Young people face increasing life pressures, and cannot afford the burden of getting married, which traditionally involves buying a house and raising children. Young people prefer the freedom of single life.

The average age of people who get married for the first time also increased significantly, from 24.89 in 2010 to 28.67 in 2020, according to the China Population Census Yearbook 2020. A 2021 report published by iiMedia Research also highlighted growing numbers of people consciously identifying themselves as celibate.

Four per cent of 3,900 single respondents between the age 20 and 45 identified themselves as “steadfast celibates”, with another 21 per cent describing themselves as “less-determined celibates”.

Most of the self-declared celibates were women over 30, who were better-educated with a higher income in first-tier cities, according to the report.

The South China Morning Post article is here.

Is January Divorce Month?

Posted by Ron Kauffman on

The BBC reports that the first Monday of the New Year has long been known among U.K. solicitors and counsellors (in the U.S. lawyers) as “Divorce Day”. However, in Wales and increasingly around the world, it appears this divorce phenomenon is turning January into “Divorce Month”.

Divorce New Years

New Year, New You

One law firm in the U.K. has reported to the BBC that enquiries in January have spiked at about 150% of the November, December and February average. A relationship counselling charity also said it had seen an increase in couple’s asking for help.

“In terms of stressors on a relationship, Christmas can be right up there with moving house or having a child. There’s the pressure of being cooped up at home with your extended family, or at the other end of the spectrum, not seeing as much of them as you’d like because of work commitments.”

The phenomenon on divorce filings in January is not unique to Wales either. In general, many family lawyers in North America report a rise of nearly one-third in business in the New Year. In fact The president of the American Academy of Matrimonial Lawyers (the AAML), says he typically sees a spike of 25% to 30% every year in January.

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 U.S. lawyers (in the U.K. solicitors and counsellors) 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 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 statistics – such as the the new year phenomenon – before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. 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.

Wailing in Wales

In Wales, one lawyer reports rising inflation and costs for good is having an impact on filing for divorce this year. He is finding that there is increasing anxiety over the rise of prices, and wailing about how to heat the home, never mind finding money for Christmas presents. He also reported the Christmas break was a snapshot of what couples experienced during the height of the Covid pandemic.

One charity said many couples expected their relationships to come under increased strain over the coming months, with financial worries, mental health problems and the pressure to create the perfect Christmas cited as reasons.

The pressure seems to be universal, across all ages, married or cohabiting, and straight or same-sex relationships, though the causes do vary according to their age. For the under 35s money worries account for about half the problems identified, with the difficulties of having to live with parents if you can’t afford your own home, and the increase in prices.

However for older couples other factors come into play, such as parenting, and the toll of caring for elderly relatives in an aging population. Communication is vital at any stage of a relationship, but especially so in the early days. Often counselling can help them to understand what has gone wrong, to part as amicably as possible, and avoid making the same mistakes in future relationships.

In Florida, you can file for divorce, and then 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 BBC article is here.

International Divorce and Comity

Posted by Ron Kauffman on

International divorce cases may require recognition or enforcement in your home country. But when your international divorce decree is subject to dismissal for lack of jurisdiction though, it is not a laughing matter. That is where knowing about the concept of comity may help.

Divorce Comity

Comity Hour

Carmen filed her divorce in Nebraska, claiming she and her husband Arlin were married in Omaha, had no children, that her husband was a Nebraska resident and that she is “not now a party to any other pending action for divorce, separation or dissolution of marriage.” Carmen wanted a divorce to divide their property and debts.

Carmen’s husband tried to dismiss the divorce for lack of jurisdiction. While he admitted they got married in Nebraska on March 8, 2003, he said they were also married in Venezuela on March 11, 2003.

The punchline: they were already legally divorced in Venezuela.

Since they were no longer legally married, the husband asked the court to dismiss the divorce for lack of subject matter jurisdiction and other grounds.

Florida Divorce and Comity

I have written about international divorce issues before. In Florida, a person must have resided in Florida for 6 months before the filing of the petition for the court to have jurisdiction over your divorce. The term “reside” generally means a legal residence in Florida with an intention to stay there, as opposed to a temporary residence.

However, when children are involved, or you are seeking financial assistance, such as alimony, child support, or a division of property, the court needs to have jurisdiction over your spouse too.

There are even more complex, multi-state laws which impact if a court can hear a divorce, the children’s issues, or the family support issues.

Recognizing a foreign divorce is different. In general, where courts in one country have concurrent jurisdiction over substantially similar parties and claims, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that divorce. This is known as the principle of priority.

While the principle of priority is not a duty, as a matter of comity, courts may stay a pending divorce on the grounds that a case involving the same subject matter and parties is pending in the court of another U.S. state. But the principle of comity applies – not only to proceedings pending in two different U.S. state courts – but to divorce cases pending in foreign courts too.

Comity Isn’t Pretty

Back in Nebraska, the parties focused their arguments exclusively on whether the Venezuelan divorce decree should be recognized as valid in Nebraska under principles of comity.

The family court dismissed Carmen’s complaint with prejudice, stating: The question before the Court is whether the Venezuelan Decree is valid. On that issue, Carmen argued the Venezuelan decree was invalid and she was therefore entitled to seek a decree of dissolution in Nebraska.

Arlin, on the other hand, argued the Venezuelan decree was valid in Nebraska and the parties were already legally divorced, so the Nebraska dissolution action should be dismissed. The family court agreed with the husband and found the Venezuelan decree was valid in Nebraska. The Wife appealed.

The Supreme Court of Nebraska reversed. The court reasoned that the husband’s evidence did not show the trial court lacked subject matter jurisdiction over the divorce. As long as the trial court had met the basic requirements, it had jurisdiction.

The family court confused the doctrine of comity with subject matter jurisdiction. The doctrine of priority is not the same thing as subject matter jurisdiction. A subsequent court does not lack the judicial power over a divorce. The issue of whether a foreign divorce decree should be recognized, the principle of comity, is not a matter of subject matter jurisdiction – or grounds for dismissal.

Whether the Venezuelan divorce decree is entitled to recognition under principles of comity was still a contested issue in the divorce, and that issue did not impact the family court’s subject matter jurisdiction.

The Supreme Court of Nebraska opinion is here.

Speaking on International Child Custody in Morocco

Posted by Ron Kauffman on

Looking forward to speaking about international child custody on a panel with IAFL fellow attorneys: Sarah Hutchinson from England, Elisha D. Roy from the U.S., and Frances Goldsmith from France. We will be discussing international issues arising under the UCCJEA for non-U.S. attorneys.

UCCJEA Moroccoa

Hot Child Custody Issues

From the beaches of Sarasota to the Sahara desert, international child custody today is a hot issue – and admittedly a little dry too. The Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) and The Hague Convention on international child abductions are two well-known laws with international importance which can impact your case.

Parents are increasingly moving from country to country for various reasons. Whether children are moved by parents wrongfully or not, that moving makes international child custody complicated.

The UCCJEA is a uniform state law regarding jurisdiction in child custody cases. It specifies which court should decide a custody case, not how the court should decide the case. The  UCCJEA and The Hague Convention on Child Abduction can overlap in certain cases, and the jurisdiction of each law can differ in important ways too.

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, enforce an existing child custody determination, and modify one. There are also several foreign laws which can interact with your child custody determination.

More information on the IAFL can be found here.

Divorce Planning and Residency

Posted by Ron Kauffman on

As cold winds begin to blow, marriages start to feel the chill. Recent statistics show divorce rates rising by nearly 10 percent in some places. This means divorce planning. Your residency, the state where you file your divorce, can have a big impact on the outcome.

Divorce Residency

 

Florida Divorce and Taxes

The 2018 Tax Cuts and Jobs Act increased the tax incentives for people to move to Florida, both for older and younger taxpayers. One reason is because Florida is one of only a few U.S. states with no state income tax. Another reason is the dolphins.

New York, unlike Florida, has income tax rates exceeding eight percent. In New York, there is also an additional income tax levied within New York City. Similarly, California has a state income tax. The rates in California can reach up to 12.3 percent, in addition to a one percent mental health services tax applied to incomes exceeding $1m.

However, the tax implications aren’t the only impacts to consider when deciding to change your residency. Residency and domicile are the terms often used around the country in different states to describe the location of a person’s home, the place to which a person intends to return and remain, even if they reside elsewhere.

Because a lot of interest has developed in changing residence and domicile – primarily for the best tax savings – the question remains: do you qualify? States examine many factors to determine your permanent home.

The residency analysis can include how much time is spent in a state, where your car is registered, where you bank, what state you vote in, what you declare on your tax returns, and where your dentist or doctor is.

State and local tax laws differ from state to state, and they are enforced based on your place of residence. While there are major tax implications of changing your home, there are some important divorce issues to consider on top of the tax savings.

Florida Divorce and Residency

I have written about divorce planning in the past. In Florida, divorce is called “dissolution of marriage”. In order to file for dissolution of marriage in Florida, at least one of the spouses to the marriage must reside six months in the state before the filing of the petition.

Residency under Florida law usually means an actual presence in Florida coupled with an intention at that time to make Florida the residence.

In Florida, there is a difference between domicile and residence. A person’s domicile in Florida, involves the subjective intent of the person. Residence, on the other hand, is a matter of objective fact.

Although the state residency requirement has been construed to mean you must reside in Florida for the six months immediately preceding the divorce filing, courts have recognized exceptions. For example, Florida allows military and government personnel to file for divorce – without proving their actual presence in the state during the six-month statutory period – prior to the filing of their petitions of dissolution.

Under this exception, when a Florida resident is stationed outside the state by the military, the person did not lose their Florida residency, and could file for divorce – even though she had not been physically present in the state for the immediately preceding six-month period.

Moving to the Sunshine State

Before picking up and moving your residence or domicile to Florida to save on state income taxes, there are other things you may want to consider that can impact your legal rights and your savings.

For one, there’s a difference between equitable distribution states and community property states. The effect of moving from an equitable distribution state to a state with community property ownership, may have a huge impact on your property rights.

Many western states are community property states. In California, a community property state, marriage makes two people one legal “community.” Any property or debt acquired by one person during the marriage belongs to the community. In a divorce proceeding, community property is generally split equally by the court.

Conversely, Florida is an equitable distribution state.  In a divorce proceeding the court distributes the marital assets and liabilities with only the premise that the distribution should be equal. However, there may be a justification for an unequal distribution based on certain statutory factors.

The differences between states are not limited to property division. Each state has different local laws to deal with alimony, child support, child custody, and even prenuptial and postnuptial agreements.

Changing the state you live in can be complex, and there are factors besides the tax savings to consider before making any change.

The Crain’s Chicago article is here.

The Hague Convention Meets the Best Interest Test

Posted by Ron Kauffman on

The United Nations Committee on the Rights of the Child determined that the Supreme Court of Chile violated the rights of a child after ordering the child returned to his habitual residence of Spain without applying the best interest test.

Hague Convention Best Interest Test

Answering An Andes Abduction

The Mother is a national of Chile. In 2015, she married the Father, a national of Spain. In January 2016, her son J.M., a dual Spanish Chilean citizen, was born in Chile. The Mother and her son left Chile to live with the Father in Spain in November 2016.

When J.M. was a little over a year old and living in Spain with both parents, medical professionals suspected he had a language delay and a form of autism.

Shortly after this spectrum diagnosis, the mother wanted to bring J.M. to Chile where she had arranged his treatment and support plan. The mother wanted to stay in Chile for at least two years.

In July 2017, the father signed an authorization for the mother to travel with J.M. to Chile, where the mother scheduled treatments and support for autism. They decided to stay in the country for at least two years. and had the father’s written approval to travel.

In 2018, one year after authorizing the travel, the father filed a complaint with the Central Authority in Spain, the Ministry of Justice, for wrongful abduction and/or retention of J.M. under the Hague Convention on the Civil Aspects of International Child Abduction.

In January 2019, two lower courts in Chile agreed with the Mother and rejected the father’s return petition. The courts rejected the father’s claim on the grounds that he had given the tacit, even explicit, consent to remain in Chile, which has been the child’s place of habitual residence since birth.

In September 2019, the Supreme Court of Chile overturned the lower courts’ decisions and ordered the child returned to Spain. The Supreme Court did not indicate the conditions under which J.M.’s return should take place, in whose company he should travel, or where and with whom he would ultimately reside and in what circumstances.

The Mother filed a complaint before the United Nations Committee on the Rights of the Child  in 2020.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody 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.

While there are several defenses to a return of a child, the best interest of the child is not one of those defenses. That’s because the Hague Convention prioritizes expeditious determinations as being in the best interests of the child.

UN-Heard Of

The U.N. Committee held that the Chile Supreme Court’s order for the restitution of J.M. to Spain failed to conduct a best interests assessment required in all actions concerning children, and violated the child’s procedural guarantees under the Convention on the Rights of the Child.

The Committee noted that, under the Hague Convention, decisions on the return of children must be taken promptly to ensure that the child’s normal situation is duly restored. However, the Committee considered that the purpose and objective of the Hague Convention does not entail that a return of the child should be automatically ordered.

The Committee held that in international child abduction cases, states must first assess the factors that may constitute an exception to the duty to immediately return the child under articles 12, 13 and 20 of the Hague Convention, and then secondly, these factors must be evaluated in the light of the best interests of the child.

The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court of Chile failed to apply the necessary procedural safeguards to ensure that return would not expose the child to harm or a situation contrary to his best interests:

A court applying the Hague Convention cannot be required to carry out the same level of examination of the best interests of the child as the courts called upon to decide on custody, visitation arrangements or other related issues . . . the judge ruling on the return must assess . . . the extent to which the return would expose him or her to physical or psychological harm or otherwise be clearly against his or her best interests.

The U.N. Committee ruled that Chile should re-assess the return petition, take into account the length of time elapsed, the extent of J.M.’s integration in Chile, and pay reparations for the violations suffered, including compensation.

The Committee also ruled that Chile should try a little harder to prevent future violations by ensuring the best interests of the child are a primary consideration in decisions concerning international return.

The U.N. Committee on the Rights of the Child press release is here.

International Child Abduction Action Report

Posted by Ron Kauffman on

Every year international child abduction cases are reported to the Congress by the U.S. Department of State. These annual Action Reports show Congress the actions taken against countries determined to have been engaged in a pattern of noncompliance. So, which countries in our hemisphere were noncompliant?

International Abduction Action Report

2022 Action Report

Under the Hague Convention, the State Department is tasked as our Central Authority. The Central Authority facilitates implementation and operation of the Hague Convention on child abduction in the U.S.

After passage of the Sean and David Goldman International Child Abduction Prevention and Return Act, the State Department was later assigned the duty of submitting annual Action Reports on International Child Abduction to Congress on the specific actions taken in response to countries determined to have been engaged in a pattern of noncompliance.

The 2022 Annual Report is an overview of the Department’s efforts to support the resolution of international parental child abduction cases.

The Department also reports on their work with foreign governments and authorities to promote procedures to encourage the prompt resolution of existing international abduction cases. The aim is that, in general, international custody disputes should be resolved in the competent court of the country of the child’s habitual residence.

Countries which don’t meet their Convention obligations, or fail to work with the U.S. to resolve child abduction cases, can face “appropriate actions.”

Florida International Child Abduction

I’ve written and spoken about international child abduction cases under the Hague Convention before. The Hague Convention seeks to deter child abductions by a parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

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.

The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. Then in 2014, the International Child Abduction Prevention and Return Act was signed into law.

Even if a country is a signatory country and treaty partners with the U.S., returning a wrongfully retained or abducted child may still be complicated because some signatory countries are not complying with the Convention. That is where the State Department’s Action Report comes in.

ICAPRA increases the State Department’s annual reporting requirements. Each year, the Department not only submits an Annual Report on International Child Abduction to Congress, it submits another report on the actions taken towards countries determined to have been engaged in a pattern of noncompliance.

A Carnival of Noncompliance

The State Department Action Report includes both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention, and countries where no treaty relationship exists.

The 2022 Action Report reviews the results of cases which were resolved the previous year. Some of the countries in our hemisphere which failed to regularly implement and comply with the Hague Convention include Argentina, Belize, Costa Rica, Ecuador, Honduras, Peru, Trinidad and Tobago, and Brazil.

Brazil has had the Convention in force with the U.S. since 2003. Brazil has also demonstrated a pattern of noncompliance for years. Complaints have criticized its judicial authorities for failing to regularly implement and comply with the Convention, and failing to take appropriate steps to locate children in abduction cases. Brazil has previously been cited for a pattern of noncompliance since 2006.

Brazil is also the country where David Goldman had to fight for his son Sean to be returned to the United States after his wrongful retention by his mother. Sean was only returned to the U.S. after 5 years. The Goldman’s bitter experience in Brazil led to the passage of the ICAPRA.

However, the country of Brazil is not entirely on siesta. Among other steps, Brazil increased its number of Hague Network Judges, published a manual for judges hearing Convention cases, and resolved eight U.S. cases on file – including the return of six children to the United States.

ICAPRA also adds steps the U.S. can take when a country refuses to cooperate in the resolution of overseas abduction and access cases involving American children. The steps can include: a demarche (a petition or protest through diplomatic channels); public condemnation; delay or cancelation of official, or state visits; suspension of U.S. development assistance; and even the withdrawal or suspension of U.S. security assistance.

The 2022 Action Report is available here.