Tag: divorce international

Home in Milan: International Child Custody and the Hague

Posted by Ron Kauffman on

Last week, the Supreme Court decided a big international child custody case. The decision involved a baby brought here from Milan by her American Mother after her marriage to her Italian husband ended. At issue, where the baby’s ‘habitual residence’ is under the Hague Convention on the Civil Aspects of International Child Abduction – Italy or here.

Hague Milan Child Custody

An Italian Drama

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that requires a child wrongfully removed from his or her country of “habitual residence” be returned to that country.

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

The mother, Michelle Monasky, a U.S. citizen, brought her infant daughter to Ohio from Milan, Italy after her Italian husband, Domenico Taglieri, allegedly became physically abusive. Taglieri asked a U.S. court to order the daughter’s returned under the Hague Convention.

The father argued that Italy was the daughter’s “habitual residence.” The district court agreed, finding that the parents had a “shared intention” to raise their daughter in Italy. An appellate panel affirmed, but in a divided opinion.

The Mother asked the Supreme Court to decide the matter, and it did.

International Child Custody and the Hague

I have written and spoken on international custody and child abduction cases 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 a child.

The key inquiry in many Hague Convention cases, and the dispositive inquiry in the Taglieri case, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.

Many people don’t realize it, but the Hague Convention does not actually define the key term ‘habitual residence.’ There are a couple of ways to determine it. The primary way looks to the place where the child has become “acclimatized.” The back-up inquiry for young children too young to become acclimatized looks to where the parents intend their child to live.

Not abducted children

Under the Tuscan Sun

The Supreme Court affirmed the two lower courts and ordered the child returned to Italy, albeit five years later. The Court rejected the Mother’s argument that you need an “actual agreement” to determine habitual residence, and held that a child’s habitual residence depends on a totality-of-the-circumstances.

The Court noted that the Hague Convention does not define “habitual residence,” but relied on the Convention’s text, its negotiation and drafting history, and decisions from the courts.

The Hague Convention’s text alone does not definitively tell us what makes a child’s residence sufficiently enduring to be deemed “habitual.” It surely does not say that habitual residence depends on an actual agreement between a child’s parents.

No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.

Relying on foreign law, the U.S. Supreme Court found that there was a “clear trend” among our treaty partners to treat the determination of habitual residence as a fact-driven inquiry into the particular circumstances of the case.

The U.S. Supreme Court also resolved a circuit split, and held that a trial court’s habitual-residence determination is primarily a question of fact, entitled to clear-error appellate review. The Court declined to remand for further fact finding, noting that the parties had not identified any additional facts that the district court did not already have an opportunity to consider during the four-day bench trial.

The U.S. Supreme Court decision is available here.

International Divorce on the Rise in Turkey

Posted by Ron Kauffman on

Fewer people in Turkey got married in 2019 while more filed for divorce as compared to the previous year, said the Turkish Statistical Institute recently. Because many foreign spouses are involved in Turkish divorces, these statistics raise international divorce issues.

Turkey international divorce

What’s Cooking in Turkey

Turkey is a predominantly Muslim country governed by secular laws. Women have equal rights to property and are eligible for alimony after divorce. But Turkey’s conservative Justice and Development Party has pushed a strong family values agenda.

Turkey provides incentives for married couples such as a tax break, and women who work part-time can get subsidized childcare. Despite such measures — and to the government’s dismay — the rate of marriage has declined by 27 percent.

Divorce — though originally sanctioned more than 1,400 years ago by Islamic law — is still widely viewed in Muslim societies as a subversive act that breaks up the family.

Women who seek divorce can often find themselves ostracized and treated as immoral. Despite such taboos and restrictions, however, divorce rates are rising across Islamic countries, even in ultra-conservative places like Afghanistan.

Turkey, in particular, is seeing a record number of divorces, as both women and men are looking for a way out of unhappy and sometimes abusive marriages. Over the past 15 years, the divorce rate has risen from under 15 percent of marriages to nearly a quarter of them.

Domestic violence is almost always cited as a leading reason by Turkish women seeking a divorce. This is true even outside urban areas, which have also seen a slight growth in divorce cases; increasingly, women are willing to seek divorces in smaller, religious towns such as Konya, in central Anatolia, where Nebiye was raised. More of these girls and women also now have access to education and online information.

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 might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

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.

Well Done Turkey

According to government statistics, the number of couples who got married was 554,389 in 2018, and 541,424 in 2019, decreasing 2.3 percent. The crude marriage rate – the number of marriages per thousand population – was 0.656 percent in 2019, down from 0.681 percent in 2018.

Age difference at first marriage between male and female was 3 years. The province having the highest mean age difference at first marriage was the northeastern province of Kars with 4.5 years.

TÜİK also gave data on the proportion of marriage with foreign partners of total marriages, saying the proportion of foreign brides rose, while it fell for grooms.

The number of foreign brides was 23,264 in 2019, 4.3 percent of total brides. Syrian women topped the foreign brides with 14.5 percent, followed by Azerbaijani brides with 11.7 percent and German brides with 10.5 percent.

On the other hand, the number of foreign grooms was 4,580 in 2019, 0.8 percent of total grooms,” it noted. When analyzed by citizenship, German grooms took first place, accounting for 34.1 percent of the overall figure. German grooms were followed by Syrian grooms with 13.1 percent and Austrian grooms with 7.8 percent.

The Hurriyet Daily News article is here.

 

This is Your Reno Divorce

Posted by Ron Kauffman on

In the 1950’s you had to prove grounds for divorce, with no guarantee that a court would grant one. States that granted divorce recognized grounds that were nearly impossible to prove, such as physical evidence of abuse. No wonder so many people opted to go to Reno instead: the “divorce capital of the world.”

Reno Divorce

The biggest little city in the world

In Reno, Nevada, local laws allowed people to establish residency in a mere six weeks, and then expect a rubber-stamp divorce decree no matter the circumstances of their split.

The practice of seeking divorce in Reno dates back to the early 20th century, when the city shrewdly built lodging and entertainment steps from its courthouse, drawing a steady flow of “divorce tourists” looking to escape the East Coast press.

By the 1950s, by which time Reno’s divorce laws had further loosened, a thriving economy had evolved for the sole purpose of meeting divorcees’ needs while they waited — and, indeed, Reno relied on the divorce trade to keep her coffers full.

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

Back in the Silver State

The first divorce boom occurred right after World War II, with rates decreasing in the 1950s before beginning to rise again. The reason for post-war divorces was women getting a taste of independence while their husbands were away fighting.

The decline of the divorce rate in the 1950s owes to the idealization of the nuclear family, with rigid gender roles assigning women responsibility for staying home and raising children.

That the majority of Reno divorce-seekers were women reflects the fact that men had jobs that kept them home, though many women found work in Reno, either by choice or necessity.

New arrivals found an atmosphere of relaxed morals, where they might try their hand in a card room or go to a tavern unaccompanied by a man. Hotels and ranches offered full calendars of entertainment including roulette lessons, singalongs, live music performances and even bawdy shows.

A crop of male “drivers” made themselves available to escort the well-to-do, often partying with them long into the night. Dancing and flirting were the norm in many establishments, liquor was readily available and women’s inhibitions often vanished, especially since the system itself seemed to run on a winking disregard for social and even legal censure.

By the early 1950s, the days of casual acceptance were numbered: The Cold War brought homophobia, transphobia and a police clampdown on suspect activities, including a ban on cross-dressing performances.

An early bill to change divorce law was penned by women and published in the Women Lawyers Journal in 1952, proposing that a divorce should be granted when a court finds:

“that there is no reasonable possibility of reconciliation … and that the welfare of [the husband, wife, and children, if any] will be promoted by the divorce.”

In the years that followed, no fault laws began to change across the country. Eventually, there was no need to go to Reno to end a marriage, and Reno’s reputation faded — but it hasn’t been very long since splitting from one’s spouse could most easily be accomplished by an adventure in Reno.

The Time article is here.