Tag: divorce international

Divorce and Alimony Laws Changed in China

Posted by Ron Kauffman on

Divorce and alimony laws changed in China this year. Under the new Civil Code, a judge just ordered a man to pay thousands of dollars to his former wife for housework she did during their five-year marriage. In China, they call it a landmark ruling.

Divorce Alimony China

New Chinese Divorce Laws

The new Civil Code of China became effective on January 1, 2021. Both spouses are treated equally under the law and are equally entitled and obligated to take care of the children and support each other.

So, if parents do not sufficiently perform their duties caring for their children, the child may demand reasonable maintenance costs from the parents.

Children do not get off easy either. The new code makes children obligated to support their parents. Adult children are generally obligated to support their parents if they can no longer work or otherwise provide for their livelihood.

In the landmark ruling, the wife demanded $24,700 from her husband after he filed for divorce. The wife said she was left to take care of the couple’s child and do the housework alone, and her husband barely cared about or participated in any kind of domestic chores.

The family court ordered the husband to pay her $7,700 as “housework compensation,” after splitting their joint property equally. Wife was also awarded custody of their son and $300 per month in alimony.

The ruling is the first of its kind under China’s new civil code.

Florida Divorce and Alimony

Divorce and alimony are nothing new in Florida. I’ve written about subject of alimony in Florida. In every Florida dissolution of marriage case, the court can grant alimony to either party – husband or wife.

Not many people realize there are several types of alimony in Florida: bridge-the-gap, rehabilitative, durational, or permanent alimony.

Florida courts can also award a combination of alimony types in a divorce. Alimony awards are normally paid in periodic payments, but sometimes the payments can be in a lump sum or both lump sum and periodic payments.

In determining whether to award alimony or not, the court has to first make a determination as to whether a wife or a husband, has an actual need for alimony, and whether the other party has the ability to pay alimony.

Typically, courts consider any type of earned income or compensation — that is, income resulting from employment or other efforts — along with recurring passive income, such as dividends on your investments, in establishing the amount of support you will be responsible to pay.

In Florida, once a court determines there is a need and the income available to pay alimony – sometimes referred to as the ability to pay alimony – it has to decide the proper type and amount of alimony. In doing so, the court considers several factors, some of which may include:

  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age and the physical and emotional condition of each party.
  • The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
  • The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate.

But, after establishing Hightower’s need for alimony, how much dinero is there to determine De Niro’s ability to pay?

Chinese Divorce Express

China’s new Civil Code provides two ways to divorce, either the simple official registration of the divorce with a joint application or divorce proceedings in court.

If everyone signs a marital settlement agreement, a divorce can be registered with the authorities if both spouses file a corresponding divorce application. A short cooling off period of 30 days applies.

In contested cases, the court initially acts as a family mediation court, tries to prevent the divorce or reach a settlement of the conflict. If unsuccessful, and the court considers the marriage to be irretrievably broken, the court orders the divorce.

Interestingly, a husband may not apply for divorce if his wife is pregnant or within one year of the birth, or within six months of the end of the pregnancy. The only exceptions are if the wife herself applies for divorce or if the court considers it necessary to grant the husband’s divorce application.

If the divorced spouses have a child under 2 years of age, the mother generally receives custody. In the case of a child between 2 and 8 years of age, if the parents cannot reach an agreement, the court can decide which parent will be given custody. If the child is older than 8 years, his or her preference must be taken into account.

The recent landmark ruling became a trending topic on Weibo, China’s Twitter-like service, viewed more than 500 million times. While some comments applauded the ruling as a recognition of the hard, unpaid labor at home, others said the amount awarded was too little to cover five years of housework and childcare.

Unequal gender roles in domestic life have been a topic of public debate in China in recent years amid a rising feminist movement. Despite increasing education levels and women’s growing economic status, gender norms and patriarchal traditions have not caught up with these changes, and women are still expected to carry out most of the childcare and housework after marriage.

Housework compensation is designed to offer additional protection to spouses who have undertaken more domestic chores — and sacrificed opportunities to advance their career or education, according to legal experts.

For the spouse who has been working quietly at home, they will have to face the problem of returning to work, which means that the homemaker has to pay a hidden cost in addition to the efforts they paid during the marriage.

The right to seek housework compensation in divorce proceedings is not a new concept in Chinese law. In 2001, housework compensation was added to a revision of China’s marriage law with the precondition that it only applied to couples who agreed to separation of property, in which each spouse retains exclusive ownership of property acquired during the marriage.

Divorce rates in China have climbed nearly five times in the past three decades. According to government statistics, there were 0.69 divorces per thousand people in 1990. By 2019, the latest figures available, that number stood at 3.36.

Now that the new civil code is in force, the judge said she expected more cases involving demands for housework compensation to be filed. But in practice, we still need to accumulate experience in how to meter out the amount of compensation.

The CNN article is here.

Cooling Off Divorce in China

Posted by Ron Kauffman on

A new law in China, which makes it harder for couples to divorce because of the cooling off period, has sent husbands and wives rushing to file applications to dissolve their marriages.

China Divorce

Divorce Express

Under the new Chinese law, which was implemented on January 1st, couples who agree to dissolve their marriage must complete a month-long “cooling-off” period to reconsider their positions. After the 30 days have passed, couples can go to their local civil affairs bureau to apply a second time for their official divorce documents.

Divorce lawyers have been inundated with requests from couples to file for divorce once their 30 days are up.

In some cities, the demand for consultations with divorce lawyers is so high that scalpers are charging premium prices online to help couples secure appointments.

A lawyer based in Sichuan province who specializes in divorce, says he has already received numerous phone calls from anxious clients concerned that the new law complicates their divorce and compromises their freedom to split.

If one party withdraws from the agreement to divorce before the 30 days are up, the application is cancelled, leaving the other party to apply again and restart the 30-day clock, or to sue for a divorce – a costly and lengthy process.

One client was a rubber stamp away from having her divorce finalized when her husband changed his mind. Even before the cooling-off period was introduced, it was easy for one party to a mutually agreed divorce to change their mind. Now, with the 30-day period, the divorce process is too unpredictable.

Florida Divorce

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

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

You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken.

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

While the coronavirus pandemic has caused a spike in divorce filings in Florida, there have not been reports of scalpers yet. The divorce process can be very emotional and traumatic for couples as well as their kids. Spouses often do not know their legal rights and obligations. Court clerks and judges can answer some basic questions but cannot give legal advice.

The Mediation Exception

When the Chinese law was passed last year, Chinese citizens criticized the central government for interfering in private matters. More than 600 million comments were posted online using the hashtag “oppose divorce cooling-off period”. It became the top trending topic online, with internet users demanding to know if Chinese people no longer had the freedom to divorce as they chose.

Officials believed the legislation would lower the divorce rate in China, which has risen rapidly, and prevent “impulsive divorces” among young people. Lockdowns to stop the spread of coronavirus have coincided with a spike in the divorce rate.

Couples may be able to avoid delays in settling their affairs by applying for mediation instead of filing for divorce.

Mediation is a process that helps separating and divorcing couples find amicable solutions to their disputes. The process uses an impartial third party, a family mediator, who is trained in mediation. In mediation, if both parties reach an agreement, the court issues a document that carries the same weight as a divorce decree.

The new law also does not apply if a spouse files for divorce on the grounds that they are a victim of domestic violence. However, the law would still disadvantage women, particularly those without an independent source of income.

That’s because men can decide whether they want to divorce or retract their application. If a woman wants to and the man doesn’t, the woman will then have to sue, hiring a lawyer at great personal and financial cost. Many women – particularly full-time housewives – aren’t in a position to do this.

Another way around the new law is for couples to sign a prenuptial contract on childcare arrangements and the division of property in the event of a split. That way if, during the month-long cooling-off period, one party changed their mind, the contract already in place would streamline the process.

The rights of Chinese citizens to marry and divorce has long been a matter for public debate. In December, weeks before the law brought in the cooling-off period for divorcing couples, a woman in Shaanxi province, northwest China, filed for divorce after “being beaten by my husband for 40 years”, according to public court documents on the website Chinese Judgements Online.

The judge refused to grant a divorce, saying the couple had been together for 40 years and would need each other in their later years. “She should cherish her hard-earned happiness in her later years,” the judge wrote on the case file.

The South China Morning Post article is here.

 

Divorce Rates in Italy

Posted by Ron Kauffman on

Divorce rates in Italy appear to be skyrocketing, along with the divorce rates in the rest of the world, fueled by the coronavirus, the quarantine, financial stress and many other factors. The news out of Italy is consistent with what is happening in Florida too, as more people begin filing for divorce.

Divorce Rates Italy

Arrivederci

According to Italy’s National Divorce Association (l’Associazione nazionale divorzisti italiani) the divorce rate increased by 60% in 2020. The requests for separation have increased a lot, mainly due to forced coexistence,” the association’s president, family lawyer Matteo Santini, told Sky TG24.

In 40 percent of cases, the divorces were due to the fact that lockdown made it more difficult to hide infidelity and “double lives”.

Another 30 percent of separations were due to domestic violence, and the remaining 30 percent were listed as being down to other causes.

“It’s one thing to share weekends and evenings but another to share the whole day, with all the problems related to the health emergency: health stress due to illness, lack of work, living with children with difficulties related to distance learning. This causes an emotional explosion that leads to the desire for separation and the request for separation.

Florida Divorce

I’ve written about no-fault divorces before. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Divorce Law Change

As with many sets of statistics in Italy, there was a marked difference between the north and south of the country. There were more than twice as many separations recorded in the north in 2020, with 450 per thousand couples in the north, and 200 in southern Italy.

Italy, where more than 80 percent of people describe themselves as Catholic, has long had one of Europe’s lowest divorce rates, with only Ireland, Slovenia, and Malta reporting lower figures.

Divorce numbers in the country however surged in 2015 after the enactment of legislation making it easier and quicker to end failed marriages.

The 2015, “fast divorce law”, which the lower house approved with an overwhelming vote of 398 for and 28 against, cuts the time Italians have to wait for a divorce to six months in uncontested cases and a year in contested ones.

Several Italian studies have confirmed that the pandemic and subsequent economic crisis is having a major impact on families, with national statistics agency Istat finding that Italy’s already record-low birth rate was plunging even further due to “the climate of fear and uncertainty and the growing difficulties linked to employment and income generated by recent events.”

The Local Italian article is here.

90-Day Fiancé and International Child Custody

Posted by Ron Kauffman on

A 90 Day Fiancé star, Jihoon Lee, may soon become involved in an international child custody case after his estranged wife moved from South Korea to Utah with their son and a child from another relationship.

International Child Custody

Seoul to Soul

According to reports, Jihoon hasn’t reached out to estranged wife, Deavan Clegg in months amid their divorce, an insider exclusively reveals to In Touch.

“Things are very messy with the divorce right now. The papers have been filed, but Jihoon is currently on the run from trying to be served them,” the source continues. “Deavan’s lawyer is taking every step possible to make sure he is served and the divorce can be finalized soon so she can officially move on from their relationship.”

Jihoon is not taking his son’s removal to the United States well:

Being alone is so painful. I miss [my son] so much and I want to hug him. I felt broken without [my son] after not being together for a year. But now another man is pretending to be [my son’s] father and my wife’s husband. On paper, Deavan and I are still married.

While there has not been a report of a court action to return any child to South Korea, what are the remedies available if he wanted to do something about returning his child to South Korea?

Florida and International Child Abduction

I’ve written 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, unlike South Korea and the United States, are either 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 Utah. The ultimate determining factor in a Utah case then, is what is the “home state” of the child.

90-Day Divorce?

Jihoon, 31, confirmed the separation from Deavan, 24, in August while their story line on season 2 of 90 Day Fiancé: The Other Way was still playing out on TV. Deavan then confirmed she moved back to America from the former couple’s marital home in South Korea with their son and her daughter from a previous relationship.

Since Deavan left Jihoon in South Korea, the couple have not been in communication. He reportedly blocked Deavan for five months now so it’s been hard to get a hold of him or even reached out to their son since he’s been back in America, so it’s nice to see Topher step in as a father figure.

Jihoon previously spoke out against Deavan’s claims, defending himself and explaining the reason why he blocked the mother of his son on all platforms.

“The reality is terrible. I know all this s–t. Like he’s going to have a new father. Do you know how it feels? My heart is always breaking. It happened without my knowledge,” Jihoon wrote in a statement via Instagram on September 3, revealing Deavan had not yet filed for divorce at the time. “And I don’t want to get involved in their lives. So I blocked them all. So extreme. But that’s how I organize my mind-set. I will never forget my son and love him forever.”

The In Touch article is here.

 

Exploding International Divorce Rates

Posted by Ron Kauffman on

More news about exploding international divorce rates as new data shows the largest annual percentage increase in separations in England and Wales in nearly 50 years – with same-sex splits almost doubling.

International Divorce Rates

Not So Merry England

The Office for National Statistics (ONS) said divorces of heterosexual couples rose by 18.4% 90,871 in 2018 to 107,599 last year – the highest number since 2014, when 111,169 divorces were granted.

It was the largest annual percentage increase in the number of divorces since 1972, following the introduction of the The Divorce Reform Act 1969 which made it easier for couples to divorce upon separation, the ONS said.

Divorces among same-sex couples in England and Wales nearly doubled, from 428 in 2018 to 822 last year. Nearly three-quarters (72%) of these were between female couples.

The data suggests a reversing trend after divorce rates in the previous two years had dropped to their lowest since the early 1970s.

Florida Divorce Rates

I’ve written about fluctuating divorce rates in the United States before. Part of the problem with counting divorces in the U.S., unlike in England and Wales, is that collecting divorce statistics in the United States is not consistent.

Individual counties in some states keep excellent records of finalized divorce cases, an important statistic in measuring divorce rates. Miami-Dade County, for instance has excellent records of filing online. However, other counties in Florida and outside of Florida may not.

Additionally, different American states and the federal Census Bureau, have had a rocky history of collecting the data from across the country on divorce rates. In fact, the federal government has stopped providing financial support for detailed state collection.

The Crown . . . of Statistics

The crown of statistics gathering in England, the ONS, said that the scale of the recent increases could partly be attributed to divorce centers processing a backlog of casework in 2018, which was likely to have translated into a higher number of completed divorces in 2019.

It added the size of the increase can be partly attributed to a backlog of divorce petitions from 2017 that were processed by the Ministry of Justice in early 2018, some of which will have translated into decree absolutes (completed divorces) in 2019.

This is likely to have contributed to both the particularly low number of divorces in 2018 (the lowest since 1971) and the increase seen in 2019.

“The pandemic has put immeasurable strain on relationships and has caused a massive influx of cases hitting the divorce courts. In 35 years as a family lawyer I have never seen a consistently busy year like this year and that will be reflected in next year’s divorce numbers.

The ONS also said that the number of same-sex divorces has risen each year, reflecting the increasing size of the same-sex married population since the introduction of marriages of same-sex couples in March 2014.

Same-sex couples have been able to marry in England and Wales from March 2014. Since then, the number of divorces of same-sex couples increase each year from very small numbers in 2015, when the first divorces took place, to more than 800 in 2019, reflecting the increasing size of the same-sex married population in England and Wales.

While we see that 56% of same-sex marriages were among females, nearly three-quarters of same-sex divorces in 2019 were to female couples. The ONS said that there had been an overall downward trend in divorce numbers since the most recent peak of 153,065 in 2003.

But this is broadly consistent with an overall decline in the number of marriages between 2003 and 2009. Unreasonable behavior was the most common reason for couples divorcing in 2019, the ONS said.

The new figures showed that 49% of wives and 35% of husbands in heterosexual marriages petitioned for divorce on these grounds. It was also the most common reason for same-sex couples divorcing, accounting for 63% of divorces among women and 70% among men.

The Independent article is here.

 

Coronavirus and the World Divorce Crisis

Posted by Ron Kauffman on

The BBC reports on the seldom talked about impact of the coronavirus pandemic around the world: the divorce crisis. Divorce filings, applications and break-ups are skyrocketing across the UK and around the world.

Pox and Pax

Pox Britannica

Leading British law firms reported a 122% increase in inquiries between July and October, compared with the same period last year. Charity Citizen’s Advice reported a spike in searches for online advice on ending a relationship.

Here at home in the US, a major legal contract-creation site recently announced a 34% rise in sales of its basic divorce agreement, with newlyweds who’d got married in the previous five months making up 20% of sales.

There’s been a similar pattern in China, which had one of the world’s strictest lockdowns at the start of the pandemic. The same is true in Sweden, which, until recently, largely relied on voluntary guidelines to try and slow the spread of Covid-19.

It’s old news that the pandemic is affecting many of our core relationships. But lawyers, therapists and academics are starting to get a clearer understanding of the multiple factors feeding into the Covid-19 break-up boom – and why it looks set to continue into 2021.

Some describe the pandemic as “the perfect storm” for couples, with lockdowns and social distancing causing them to spend increased amounts of time together. This has, in many cases, acted as a catalyst for break-ups that may already have been on the cards, especially if previous separate routines had served to mask problems.

What’s been different is the significant increase in the number of women initiating divorces, with 76% of new cases coming from female clients, compared with 60% a year ago. This trend ties in with the findings of numerous studies of working parents’ lives during Covid-19, which suggest that a disproportionate share of housework and childcare is still falling on women, even in heterosexual couples where the male partner also works from home.

Florida Divorce

I’ve written about no-fault divorces before. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Pax Britannica

For other couples, the increase in mental health problems linked to the pandemic is playing a role in break-ups. Some relationship experts believe that even strong couples who weren’t facing problems before the pandemic, and avoided major shifts in household health or dynamics may also be susceptible to break-ups.

This is because the pandemic has taken away well-established routines that offered comfort, stability and rhythm. Without these, this leaves partners with limited opportunities to “seek other forms of support or stimulation” beyond their relationship, which can put them under strain.

“More people are finding themselves trapped in a situation where they are struggling to cope with what is going on for them as well as what is going on between them. Like a pressure cooker that does not let any pressure out, the lid can eventually pop and the relationship breaks down.”

The pandemic is likely to be one of the first major life challenges young couples face together, which might partly explain the rise in divorce applications from newlyweds in some countries, including the US and Canada.

Newlyweds and couples relatively early on in their relationship might not have been tested in the way the marriages of 30-years have been over the years with different trials and tribulations. The stripped-back lifestyle that the crisis has created is the opposite of many new couples’ visions of “wedded bliss about how perfect life is going to be”.

Additionally, relationship experts say the financial impact of Covid-19 is also likely to be playing a major role in break-ups, as people find themselves unemployed, furloughed or taking home lower pay checks.

The number of divorces has tended to increase without exception during economic downturns at least since the Second World War. Given that we are now experiencing a severe crisis especially economically, we expect that the end result will be an increase in marital instability.

Decreased income increases the potential for strain on the relationship due to conflicts on how to prioritize different types of consumption, and psychological strain increases that in turn, resulting in reduced relationship quality due to worries of how to make ends meet.

The pandemic has disproportionately hit those who were already working in insecure employment in low-income industries such as hospitality, leisure, retail and tourism – sectors in which women, young people and ethnic minorities are overrepresented.

Interestingly, some believe that improved economic fortunes could actually trigger divorces, because some spouses currently experiencing marital problems may be putting off splitting up for practical reasons.

This new wave of break-ups might also include partners who are currently staying together because they are nervous about being alone, beginning to date again in an era of social distancing or, conversely, worried about the logistics of starting divorce proceedings while still cohabiting during lockdowns. They don’t want to have to say, ‘I want a divorce’ and then have to spend 24 hours a day with them.

Psychotherapists argue that the pandemic is also prompting more existential re-evaluations of what, and whom, people want in their lives. This is clear from evidence showing that people are looking to move house and have a different lifestyle, such as moving to the country with less time spent commuting.

Such re-evaluation is also taking place in marriages, with couples reassessing their life choices and their emotional needs. The pressures of the pandemic have reminded us all that life might be short and we are tasked to assess how, and with whom, we are spending our precious time.

The BBC article is here.

 

Canada, COVID, Custody, and Class

Posted by Ron Kauffman on

The COVID pandemic resulted in a recent child custody case from Canada, which decided between in-person class or remote, online education. The family judge in Ontario found the father in contempt for registering their daughter for in-person class, but then the order took a surprising turn.

Covid Education

Learning the Hard Way

In the Canadian custody case over COVID and classroom learning, the parties lived together from 2009 to 2014, and had a nine-year-old daughter. After their separation, the child timeshared between parents on a week on/week off basis. The parents shared joint custody and equal parenting time.

Importantly, their custody decree also stated that both parties had to agree to a decision concerning the child’s education, and if they disagreed, they would go through mediation before initiating litigation.

Last March, the COVID-19 pandemic impacted in-person education at schools. From July to August, the parties exchanged emails discussing what they should do about the child’s education when the elementary school reopened in September.

The father wanted the child to attend school in person and to take the school bus, while the mother objected. Despite the mother’s opposition, the father registered the child for in-person education and arranged for the child to be transported by bus during his weeks.

The mother asked the court to order their child attend school remotely from home through online learning and that the father be found liable for contempt of court due to his act of unilaterally registering the child for in-person education in violation of the order. The father in turn asked the court to order that the child attend school in person and use the school bus for transportation.

Florida COVID Custody and Class

I’ve written about the custody and education before. In Florida, shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

Oh Canada!

The Ontario Superior Court of Justice ruled that it was in the child’s best interests to attend the elementary school’s French Immersion Program in person and to be permitted to take the bus for transportation between her father’s house and the school.

“In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus,” wrote Justice Mark Shelston for the Superior Court.

Justice Shelston considered a number of factors presented by the parties in determining the child’s best interests. For instance, a doctor’s report indicated that the child was at risk for psychosocial and school difficulties. The doctor recommended that the child have an individual educational plan that would support her needs.

Justice Shelston noted that this plan required the child’s in-person attendance so that she could work closely with the teachers. The child would also benefit from the French social and linguistic milieu provided by in-person attendance.

Though the mother alleged that members of the immediate and extended family, including the child’s grandparents, suffered from underlying chronic medical conditions – which placed them at a heightened risk for severe illness from COVID-19 – Shelston said that there was no medical evidence to support this allegation. Neither was there evidence that the grandparents lived with the child.

As regards the child riding the school bus, Shelston stated that there was no basis to conclude that the child would be at higher risk of contracting COVID-19 when taking the bus.

Though the father was successful with regard to the school issue, the court ordered him to pay the mother’s costs associated with the motion for contempt. The father was held liable for contempt of court because he had registered the child for in-person education and had made school bus arrangements without the mother’s approval, in breach of the 2017 court order to which both parties had consented.

The Law Times News article is here.

Is No Fault Divorce Unconstitutional if You’re Religious?

Posted by Ron Kauffman on

An Orthodox Christian Husband, who is a dual citizen of the U.S. and Lebanon, is claiming that Maryland’s no-fault divorce law is unconstitutional. The Husband is deeply religious, and claims his constitutional rights will be violated if the court grants his Wife a civil divorce outside the Church.

Religious Divorce

The Cedars of Maryland

In 2009, Husband and Wife were married in Tripoli, Lebanon, at an Orthodox Christian church. Husband is an Orthodox Christian, and Wife is a Catholic. The couple had met a year earlier in Beirut, where Wife, a citizen of Lebanon, worked as an opera singer.

Husband, a dual citizen of Lebanon and the United States, has resided in the United States for over 30 years, but often travels to Lebanon to vacation and visit family members. Soon after their marriage, the parties moved to Montgomery County, Maryland where Husband operates a medical practice.

On August 4, 2016, Wife moved herself and her children out of the couple’s home in Montgomery County. On that same day, Wife filed for a limited divorce in the Circuit Court for Montgomery County

The Husband did not want a divorce. He regularly demonstrated combative and belligerent behavior, refused to comply with court orders imposing sanctions on him and did not consistently pay the legal fees awarded to Wife.

I will repeat it, I will say it now, and say it until I die: there will not be a divorce, [she] is married to me until I die. So, she has to kill me to get the divorce.

The court found that Husband was “not credible” and that he “used his resources to disrupt and delay the divorce trial, filing multiple appeals on dubious grounds, failing to cooperate with discovery, and hiring and then firing counsel.

The Husband asked for summary judgment, arguing that only Lebanese courts have jurisdiction over the divorce and that the court’s dissolution of the marriage would infringe on his free exercise of religion as an Orthodox Christian.

He also argued that Maryland’s no-fault divorce statute violated his constitutional right to marry; that the divorce would infringe on his children’s fundamental rights; and that the dissolution of his marriage would impair the obligations under his marriage contract, in violation of the Contracts Clause of the United States Constitution.

The trial court denied the Husband’s motion and he appealed.

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.

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.

In addition, and what the Husband overlooked in the Maryland case, is the big requirement for divorce: to obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.

Believe it or not, the residency requirement can be a major impediment to divorcing for many people. Almost all states require you to be a resident before you can file for divorce. However, the amount of time you have to reside there can vary from state to state.

Divorce and the Constitution

The Husband argued that the family court lacked jurisdiction over the divorce because the parties were married in an Orthodox Christian ceremony in Lebanon and only Lebanese courts have jurisdiction to dissolve the marriage.

He contended that a Maryland court has no power to dissolve a marriage, celebrated in Lebanon, between two persons who are now residents of Maryland. The Maryland appellate court wasted no time in dismiss his argument as without merit, finding that, like Florida:

[A]n essential element of the judicial power to grant a divorce, or jurisdiction,’” is that one spouse be domiciled within the state at the time the complaint was filed.

The big question for the court then, as to jurisdiction, is not whether they were married in Lebanon but whether the Husband or Wife were a Maryland resident.

The Husband also argued granting a “no-fault” divorce was in violation of the United States Constitution. He claimed his marriage contract does not permit no-fault divorces and that the court impermissibly expanded the terms of the parties’ marriage contract by granting the divorce on the grounds of twelve-month separation,

The court found that, although marriage is a civil contract for some purposes “marriage is not a contract within the meaning of the Constitution’s prohibition and courts have regularly held that marriage is not a contract that is constitutionally protected from interference and can be modified by laws divorce laws.

The Husband also argued the divorce infringed on his First Amendment right to free exercise of religion. Because the Orthodox faith does not permit divorces absent fault, a no-fault divorce would unconstitutionally force him to commit a mortal sin according to his religion.

The Supreme Court has long held that legislatures may enact general laws that regulate marriage, even if the application of the law interferes with some religious practices.

Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse’s religious beliefs prohibit no-fault divorces.

The opinion is here.

Your French Divorce

Posted by Ron Kauffman on

Now that France has created an out-of-court divorce option, travel to Paris could be a ticket to your French divorce. In order to make the divorce process simpler and less expensive, France has streamlined the system, but there are some pitfalls for non-French people.

French Divorce

C’est la vie

In France it is now possible for couples to divorce without going through a long and sometimes expensive court process by signing a divorce agreement – but this may not be ideal for couples where one or both person is not French.

On January 1st 2017, the divorce par consentement mutuel (divorce by mutual consent) was created, allowing couples to acknowledge their consent to divorce in an extra-judicial contract without a court proceeding.

To divorce by mutual consent, it is essential that couples agree on all aspects of their divorce with the help of their respective lawyers. They especially need to settle the consequences of the divorce on their children (custody and residence), on their assets and all financial measures (alimony and compensatory allowance).

The consent reached by the couple is then set out in a divorce agreement, prepared by the parties’ lawyers. Following a 15-day cooling-off period, the divorce agreement is signed by the spouses and countersigned by each lawyer.

Once signed, the agreement is submitted to a French notaire for registration. Registration is what makes the divorce agreement enforceable in France. Signing a divorce agreement is the quickest way to divorce in France.

While the duration clearly depends on how the negotiations between the couple progress, it is technically possible to sign and register a divorce agreement in France within approximately one month.

Florida International Divorce

International divorce often brings up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case? The answers are more difficult than people think as I have written before.

A British divorce, for instance, might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. In France, the financial disclosure requirement is weaker, each party is not necessarily required to answer detailed financial forms.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.

The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

No tears and no hearts breaking

Currently it is not possible to sign the divorce agreement remotely. Both spouses and their respective lawyers need to be physically present on the day of signing.

The French National Bar Association clearly indicated, on February 8th 2019, that:

“the divorce agreement by mutual consent without a judge must be signed in the physical presence and simultaneously by the parties and the attorneys mentioned in the agreement, without substitution or possible delegation”.

International couples should however be very careful when signing a divorce agreement as not all countries recognize this type of divorce. As the divorce agreement is entered into out of court – except when a minor child requests to be heard in court – public authorities from certain countries do not recognize and enforce this type of divorce.

In practice, this means that, a couple having signed and registered a French divorce agreement, would be considered as divorced in France, however still be married in their home country/countries if local authorities refuse to register and enforce the contract.

The Local article is here.

 

Interstate Divorces and Foreign Judgments

Posted by Ron Kauffman on

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.