Tag: divorce news

Is January Divorce Month?

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.

Surprise! Florida Alimony Reform Just Passed

Sneaking in just before the new year, a Florida court issued two surprise decisions which are basically . . . alimony reform. Apparently, some judges have been questioning the constitutionality of awarding retroactive alimony to a spouse. This month, the First District Court of Appeal squarely addressed the issue.

Retroactive Alimony

Merry Christmas!

In the first of the two cases, a Former Husband founded a successful company. During their marriage, the parties’ lifestyle was lavish. When they separated, Former Wife was forced out of the business. Both parties have significant resources. However, Former Husband now earns several times more than Former Wife.

Before the final hearing, the parties settled all their claims against each other except for the Former Wife’s interest in the business, attorneys’ fees, and importantly, her demand for retroactive and prospective alimony.

A year after the conclusion of the trial, the trial court entered a final judgment. It adopted much of the Former Wife’s proposed order verbatim. The trial court awarded Former Wife durational and retroactive alimony.

The amount in durational alimony was set at $4,983 a month for six years. Former Husband was also ordered to pay a lump sum of retroactive alimony for a period spanning the date of the petition, April 13, 2018, to the date of judgment on January 15, 2021. The Former Husband appealed.

Florida Alimony

I’ve written about alimony in Florida. In every Florida divorce case, the court can grant alimony to either party. Not many people realize there are several types of alimony in Florida: bridge-the-gap, rehabilitative, durational, or for the moment, permanent alimony.

Florida courts can 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. Typically, courts consider any type of earned income or compensation 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, it has to decide the proper type and amount of alimony. The court considers several factors, some of which can include things like: the standard of living established during the marriage; the duration of the marriage, and the financial resources of each party.

Florida courts can also award, as the First District Court of Appeal itself has long held, retroactive alimony when appropriate. In fact, retroactivity has been the rule in Florida rather than the exception.

Retroactive Alimony

Happy New Year!

Former Husband raised several issues on appeal, most relevant, he argued the trial court erred in awarding both retroactive and durational alimony because, among other arguments, the trial court failed to impute investment income.

The appellate court reversed the award of durational and retroactive alimony based on the argument about imputation. However, the panel agreed with the concurring opinion, in which Judge Robert E. Long commented:

“retroactive alimony is a fiction of the courts and is not supported by any provision of Florida law.”

The concurrence also noted that retroactive alimony was started in Florida in a 1982 case which found that while there is no authority in Florida to award retroactive alimony, there is no law against it.

The rationale for retroactivity was that other states approved awards of alimony retroactive to the date suit is filed. Additionally, it was inappropriate to look to other state’s decisions discussing retroactive alimony. Florida alimony is a unique creature of Florida state law. If the legislature finds another state’s alimony law compelling, it can adopt it. Judges cannot.

For decades, many judges were silently fuming about the rationale for awarding retroactive alimony. Since then, no Florida court has analyzed the issue. Instead, courts have just routinely affirmed retroactive alimony awards –  but not based on their legality.

Two months later, the First District Court of Appeal reversed another retroactive alimony award. This time the majority opinion held:

Retroactive alimony is a creation of the courts” prohibited by the separation of powers set forth in article II, section 3 of the Florida Constitution.

Florida alimony modifications expressly provide trial courts the discretion to retroactively modify alimony awards “as equity requires.” But Florida Statutes do not expressly allow a trial court to award retroactive alimony in the first instance.

The most recent opinion is here.

Congratulations to Shannon Novey who represented the appellant.

Equitable Distribution of Boudoir Photos in Divorce

How a family court decides the equitable distribution of boudoir photos, complete with intimate inscriptions and nude photographs, is never easy. A Utah family court recently ordered a woman to hand over her most intimate photographs to her ex-husband and a third-party photographer he chose.

Equitable distribution Boudoir

‘Utah: Life Elevated’

A former wife was married for 25 years and together for 27. As expected, the process of splitting their assets would be complex in a long marriage. The issue became so complex, negotiations failed and a one-day bench trial had to be held.

After the trial, the family judge ordered the former wife to surrender her most intimate photographs of herself to a third-party photographer for editing, and then ordered that the edited photos be given to her ex-husband for his viewing pleasure.

“You don’t know where to turn because you don’t know the law and you have not only your ex-husband who you were married to for years (thinking) that forcing you to distribute basically porn is OK … you have his attorney that also thinks that’s OK. And then you bring it in front of a judge, and he thinks it’s OK.”

The family court’s finding of facts dated July 7th — the day the divorce was finalized — found that the nude photos were given as gifts to the former husband earlier in their marriage, and therefore he “has the right to retain them and the memories they provide.”

The court also found the former wife has a right for her intimate photos to not be in her ex-husband’s possession. So how did the family judge decide the steamy issue? The judge ordered her to turn the images over to the original photographer for editing.

That person is then to do whatever it takes to modify the pages of the pictures so that any photographs of the former wife in lingerie or that sort of thing or even without clothing are obscured and taken out, but the (photo inscriptions) are maintained for the memory’s sake.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, 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.

In Florida, nonmarital assets which are not divided include things such as assets acquired before the marriage; assets you acquired separately by non-interspousal gift, and assets excluded as marital in a valid written agreement.

Conversely, marital assets which are subject to division, generally include things like assets and liabilities acquired during the marriage, the enhancement in value of some nonmarital assets – and for anyone giving their spouse a gift of sensual boudoir photographs – interspousal gifts during the marriage.

Wisdom of Solomon

Despite the ruling, the original photographer refused to edit the images over a concern about ethics and legal repercussions to her photography business. Being a boudoir photographer, her clients trust her with their images and privacy, and the photographer took that responsibility seriously.

The judge then made a second ruling, and ordered the former wife to give the images to a different photographer for editing. She was also ordered to retain the original photos for 90-days before destroying them, in case her ex-husband wasn’t satisfied with the edits.

The former wife said her ex-husband isn’t happy with the edited photos, though she feels that she has complied with the court’s order, and she feels that her ex-husband’s demand for the photos was an attempt to control and hurt her.

“If all he was truly interested in was the inscriptions, he got those. I’ve complied with the court’s order, even though I believe strongly that (the) order (is) violating on many levels and has affected my emotional and mental health. I can’t imagine doing this to someone else.”

The ex-husband said his former wife’s description of the situation is her perspective. This is not my perspective nor the perspective of an impartial judge. It appears that she has intentionally misrepresented and sensationalized several aspects of a fair proceeding to manipulate the opinions of others for attention and validation of victimhood.

One attorney was quoted as saying equitable distribution in a divorce always involves a balancing of interests but the judge here has just made a mistake in the balancing of interests and has tipped things much too far in one direction.

The Salt Lake Tribune article is here.

Divorce Rates in the Arab World

The increase in international divorce rates, due in part to changes in the nature of family and family life, can be seen thoughout the Arab world. Lebanon, in particular, is reporting a marked jump in divorces as more statistics become available.

Arab Divorce Rates

As the Simoom Blows

The Arab world is not insulated from the profound socio-economic changes around the world, and this is evident from the rise in the number of couples choosing to separate in several Middle Eastern and North African countries.

A recent study by the Egyptian Cabinet’s Information and Decision Support Center found that Kuwait, Egypt, Jordan and Qatar are the Arab countries with the highest divorce rates.

In Kuwait, 48 percent of all marriages end in divorce, 40 percent in Egypt, 37.2 percent in Jordan, 37 percent in Qatar, and 34 percent in both the UAE and Lebanon.

Sheikh Wassim Yousef Al-Falah, a Shariah judge at Beirut’s religious court, told Arab News recently:

“On some days, we have up to 16 divorce cases in this court alone. The increasing divorce rate is a phenomenon that we have not seen before, although we do not favor divorce and focus on reconciliation.”

Experts believe this trend has been driven by a combination of economic pressures, evolving societal norms, legal reforms and, above all, the changing role of women.

Florida Divorce

I’ve written international divorce rates before. In the United States, many complained that no-fault divorce led to an increase in divorce rates here. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

Proving fault 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.

Like the Cedars of Lebanon

Through much of history, especially among the more conservative cultures of the Arab world, a woman’s place was long considered to be in the home, handling the needs of the family, while male relatives studied and went to work.

Now, as Arab nations modernize their economies and reform their legal systems, women are becoming more independent, increasingly pursuing higher education, progressing in their careers, and choosing to marry and have children later in life.

As a result, Arab women have developed a keener awareness of their civil rights, personal ambitions and self-respect. They increasingly refuse to tolerate domestic violence and are capable of supporting themselves financially.

“The current statistics compiled by the religious courts that handle the personal status of Lebanese citizens and foreigners residing in Lebanon reflect an increase in divorce requests, especially those submitted by women.”

In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationship also appears to play a part in marriage breakdown.

Reforms to the legal status of women in Lebanon have drawn particular attention in recent years, with the introduction of a slew of legislation designed to protect them from sexual harassment and domestic abuse. However, human rights monitors say the reforms do not go far enough.

Lebanon’s 2019 financial collapse and the effects of the COVID-19 pandemic appear to have piled further pressure on relationships as living standards plummeted, people lost their jobs and households were forced into long periods of constant close proximity under lockdown.

Several countries around the world reported spikes in domestic violence during the pandemic and Lebanon is no exception. The nation’s economic woes and disruption to court procedures during the health crisis appear to be making matters worse.

The figures for divorce in Lebanon might be somewhat skewed by the growing use of marriage as a means of gaining citizenship in another country, as waves of young people move abroad in search of better opportunities.

In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationships also appears to play a part in marriage breakdown.

Lebanese citizens will often move between sects to facilitate a divorce. Couples from the Maronite sect, for instance, the courts of which forbid the annulment of marriage in all but the most extreme circumstances, might turn instead to the Catholic or Orthodox sects, which allow the annulment of marriages.

They might even turn to the Sunni sect to access divorce procedures before converting back to their original sect. According to Shariah, divorce — known as khula — has been permitted since the time of Prophet Muhammad.

Obtaining a divorce in a Sunni religious court is considered easier than in a Shiite religious court, after these courts developed new rules that raised the age for child custody, amended the dowry and banned underage marriage.

Family values are cherished in Arab culture, and authorities — both religious and secular — tend to prefer that parents stay together for the sake of their children. Experts believe marriage counseling, better education for young couples, more open discussions about relationships, and even a relaxation of the social taboos surrounding premarital social interaction between men and women could help reduce overall divorce rates.

The Arab News article is here.

Divorce and Digital Accounts

Many couples are not only tied together in matrimony, but in their digital accounts too. If roughly half of marriages end in divorce, how do courts manage an equitable distribution of digital accounts such as Netflix, Amazon, Apple (and with House of the Dragon underway) HBO?

Digital Divorce

Stranger Things

The Washington Post reports that the average American has upwards of 150 digital accounts, according to password-management company Dashlane. That’s a decades-long record of an autonomous life lived online.

If a breakup is going to be an ugly one, a vindictive ex-spouse can cause a lot of digital damage. For instance, if you share cloud storage, or an Apple ID with your ex-spouse, there is a risk everything – from your photos and documents to your browsing and email history can be revealed.

Moving out of the marital home is already a hard and emotional decision. But, now you are faced with taking precautions when you are about to leave your digital home.

As soon as divorce becomes a reality, you need to decide if it’s time to change all the passwords to the accounts you plan on keeping after separation. This is especially true if you share devices like a computer or tablet. Many sources tell you to remember your passwords and create new ones for each account.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, 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.

In Florida, nonmarital assets include things such as assets acquired separately by either party by will or by devise, income from nonmarital assets, and assets excluded as marital in a valid written agreement.

Importantly for a hi-tech divorce, non-marital assets would include assets acquired and liabilities incurred by either party before the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.

Netflix and Chill?

In some cases, a couple can divide, close, or even trade digital assets and decide which of the two households will keep an account. Sharing a Netflix account within your household, for example, may save money. But after divorce keep in mind that account sharing is only permitted for users within the same household. Netflix has announced it will crack down on illegal account sharing.

Putting aside the streaming services, like Netflix, which can easily be closed or limited, many couples may need to continue to share access to certain online accounts, even after a divorce or separation.

It is not hard to see why some accounts might need to stay active. For example, a couple’s joint checking account and credit card account may need to remain active so that certain bills during the divorce can be timely paid. Electronic access to statements and transactions; automatic bill payment services, medical insurance and cloud storage and document sites for photos and important documents and other files may be necessary too.

The law has not caught up with the digital divorce. There are no specific statutes for sharing accounts or establishing consequences should an ex-spouse or spouse change a password to lock out shared accounts.

Depending on the account, you may need to share a single login, set up separate logins to access the same account, or create a new, separate account in your own name. Anyone considering divorce has to secure their online identity, protect their passwords, protect their privacy, and most likely divide or close the shared streaming services.

The Washington Post article is here.

Interfaith Marriage and Divorce

Increasingly, couples are in interfaith marriages, meaning each person is from a different religion. Along with societal disapproval, are there any other possible problems a couple in an interfaith marriage face that could lead to divorce? A recent Indian case sheds some light.

Interfaith Marriage

Gujarat

India is a country of many religions. In the western state of Gujarat, roughly 88.6 percent of the population is Hindu and about 9.7 percent are Muslim. Recently, a division bench of the Gujarat High Court granted relief to an interfaith couple – but then went on to caution the wife’s parents not to “misbehave” due to their opposition to the interfaith marriage.

The order prohibiting in-law misbehavior concerns the marriage of a 26-year-old Muslim man to a 20-year-old Hindu woman under the Special Marriage Act in Ahmedabad in May 2021. The Special Marriage Act is a law that allows solemnization of marriages irrespective of the religion of the couple.

The Act also requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage.

However, the woman’s parents were opposed to the marriage and, the couple decided that the woman will stay at her parental home until their approval.

According to the court petition, the woman was subjected to physical and mental cruelty by her father over the marriage. Then, in December 2021, the woman left her home willingly and started residing at her matrimonial house.

The court also directed the woman’s parents to share the books and clothes of the woman that are in the parents’ possession as the woman is “desirous of continuing her studies,” while disposing the petition.

Interfaith Marriages

I have written about religion and divorce before. Marrying within the faith is still common in the United States, with nearly seven-in-ten married people (69%) saying that their spouse shares their religion, according to a recent Pew Research Center survey.

A comparison of recent and older marriages shows that having a spouse of the same religion may be less important to many Americans today than it was decades ago.

The Pew Religious Landscape Study found that almost four-in-ten Americans (39%) who have married since 2010 have a spouse who is in a different religious group. By contrast, only 19% of those who wed before 1960 report being in a religious intermarriage.

Some research suggested that marriages between members of the same religious group may be more durable than intermarriages. If this is true, the rise in religious intermarriage over time may not be as pronounced as it appears, since the Religious Landscape Study measures only marriages intact today.

Other surveys looking at divorce rates did not find an overall lower – higher divorce rate among interfaith couples. But did find that certain combinations made it much more likely that the marriage would end in divorce.

The most likely interfaith marriages to end in divorce were Evangelicals married to someone of no faith. This may simply be the case that the further apart the religions, the more likely divorce may be.

Interfaith India

The woman’s father, however, then filed a “false complaint” with the Danilimda police station alleging that his daughter left the house with cash and ornaments.

In response, the police visited the house of the husband and “started harassing the family members of the petitioner (husband) in order to get custody” of his wife. To “avoid unnecessary harassment by the police”, the couple left for Ajmer in Rajasthan.

The police soon brought the couple back to Danilimda police station and “illegally and arbitrarily” took the woman in custody. Following production before a magistrate court, was housed at Nari Vikas Gruh in Paldi.

The magistrate court subsequently handed over custody of the woman to her parents. Soon, represented by advocate Rafik Lokhandwala, the petitioner-husband moved the Gujarat HC with a habeas corpus petition.

The Indian Express article is here.

Google Divorce and Prenups

If you google divorce and prenups, you will find different results based on which state you are in. One thing is for sure, Elon Musk’s brief affair with the wife of Google co-founder Sergey Brin, will get you much different search results, and may even call into question an expensive prenup.

Divorce Prenups

I’m Feeling Lucky

Elon Musk is the richest person in the world, with an estimated fortune of $240 billion. While Sergey Brin is no slouch himself, he is clearly struggling to catch up in the rankings with a meager $95 billion.

Despite their competitiveness, Brin provided Musk with about $500,000 for Tesla during the 2008 financial crisis, when Tesla was struggling to increase production. In 2015, Musk gave Brin one of Tesla’s first all-electric sport-utility vehicles.

But in recent months, there has been growing tension between the two. Reportedly, Brin ordered his financial advisers to sell his personal investments in Musk’s companies

Brin filed for divorce from Nicole Shanahan in January of this year, citing “irreconcilable differences,” according to records filed in Santa Clara County Superior Court. The divorce filing was made several weeks after Brin learned of the brief affair, people have said.

At the time of the alleged liaison in early December, Brin and his wife were separated but still living together, according to a person close to Shanahan. In the divorce filing, Brin cited Dec. 15, 2021, as the date of the couple’s separation.

But Shanahan’s side is arguing that the prenuptial agreement they entered was signed under duress, while pregnant.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for computer programmers and awesome car makers, and they are about much more than just resolving expensive millions of Tesla stock acquired during a marriage.

Any couple who brings any personal or business assets into their marriage can benefit from a prenuptial agreement. Prenups are important to have in place before a couple starts investing in start-up, electric car companies, DNA ancestry search companies, and other investments.

But prenups are frequently challenged in court.

Florida has both case law and a statute to help lawyers, judges, and the parties determine if a prenuptial agreement is enforceable. For example, Florida adopted the Uniform Premarital Agreement Act. The Act requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Couples wanting to sign one can enter into a premarital agreement with respect to their rights and obligations in any of their property, whenever and wherever acquired or located; their right to buy, sell, use, transfer, or otherwise manage and control their property and the disposition of their property if they separate, divorce, die, or any other event.

Prenuptial agreements may be challenged in court, as Shanahan may be attempting using the duress defense. When ruling on the validity of a prenup, Florida courts must consider things such as fraud, coercion, in addition to the unfairness of the agreement, whether there was any financial disclosure, and of course, duress.

Ludicrous Mode

About 11 hours after the Wall Street Journal article about the affair was published online, Musk tweeted:

This is total bs. Sergey and I are friends and were at a party together last night!”

Over the past two months, Musk’s personal life has drawn considerable attention. He has been accused of exposing himself to a flight attendant at SpaceX, which he denied. He also reportedly had two children late last year with a female executive at another company he co-founded, Neuralink. One of his 10 children has publicly disavowed him.

Then there’s Twitter. Earlier this month, Musk sought to back out of an agreement to buy Twitter, saying the company hasn’t provided the necessary information to assess the prevalence of fake or spam accounts. Twitter has sued Musk to force him to honor the deal, and a Delaware court has agreed to an expedited trial in October.

Brin and Shanahan already were facing problems in their marriage in the fall of 2021, primarily because of Covid pandemic shutdowns and the care of their 3-year-old daughter.

The liaison with Musk took place in early December 2021, at the Art Basel event in Miami. The alleged affair happened after Musk had broken up with his on-again, off-again girlfriend, the singer Grimes, in September.

Brin and Shanahan are now involved in divorce mediation, with Shanahan seeking more than $1 billion. The two sides have yet to come to an agreement, with Brin’s side claiming that Shanahan is asking for much more than her prenuptial agreement entitles her to.

The Wall Street Journal article is here.

Spare the Rod: Family Law and Spanking

Family law and spanking are in the news. Newly released documents show that a religious candidate for the Oklahoma House of Representatives holds some controversial views on divorce and child discipline which go back to his own divorce.

Custody Spanking

You’re doin’ fine, Oklahoma!

A candidate is running for the Oklahoma House of Representatives with some interesting views on divorce and punishment. He advanced from the Republican primary on June 28, 2022.

According to local media reports, he has been on record saying people would be in the right to stone homosexuals. Demonstrating diplomacy and good governance, he reportedly told Oklahoma’s KFOR that if elected, he would not try to make homosexuality a capital offense.

Interestingly, he wants to make divorces harder to get in Oklahoma. Recently released documents found the candidate harassed his pastor and an elder of his Church in Oklahoma City. Records show the case stemmed from his own divorce “because of his physical and emotional abuse towards her and the boys.”

According to a court order from the Court of Civil Appeals of the State of Oklahoma, while trying to get standard visitation with his kids, the candidate allegedly told the judge:

“I respectfully declare that there’s nothing I did that should have led to what they did wrong. I was deprived of my God-given right to apply corporal discipline to my children.”

The court replied:

“So we are here because you haven’t had an opportunity to spank your boys enough. Is that what you’re telling me?”

The candidate replied, “I think that’s a big factor, sir.” The candidate reportedly acknowledged certain actions he took towards his wife and sons, he would not admit that they were abusive actions.

Florida Divorce and Discipline

I’ve written about divorce and child discipline before. Florida no longer uses the term “custody” after the parenting plan concept was created. For purposes of establishing a parenting plan during a divorce, the best interest of the child is the primary consideration.

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

Historically, parents have always had a right to discipline their child in a ‘reasonable manner.’ Florida laws recognize that corporal discipline of a child by a parent for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.

Harm does not mean just bruises or welts for instance. Harm also can include that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if the child is not physically harmed, a parent’s discipline could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. A run-of-the-mill spanking may be protected from charges of child abuse, but punching a child, pushing a child onto the floor and kicking him is not.

Many people involved in custody disputes forget that lawyers, guardians, investigators, and judges are watching what transpires during the divorce process, and disciplinary methods can become an issue in any custody case.

Oklahoma O.K.

KFOR also reports the religious candidate’s wife allegedly blames the divorce on, not just his discipline, but adultery. While the candidate denied adultery, he then “set out on a mission to get them to ‘repent’ of their part in this ‘sin’ of a divorce” and to “have them removed as church members.”

The candidate began a crusade of weekly e-mails, replete with accusations against the pastor. A church elder complained the candidate rode his bicycle by his home, shouting “‘Repent!’”

Ultimately, he was banned from his church, while his wife and the pastor filed Victim Protection Orders against him. According to his campaign efforts on different social media, changing divorce laws is one of his goals.

“those who are getting married will know from the get go that they are to remain in their marriage ’til death do they part.”

KFOR reached out to his political opponent for House District 87, Gloria Banister, who said “the court records are public documents, and they speak for themselves. There’s really nothing for me to add.”

Oklahoma’s KFOR article is here.

Catastrophic Fraud After Divorce

Fraud can lurk in every divorce case. After the divorce ends, lawyers, professionals, experts, and judges have all moved on to other cases. That is the time many clients and their divorce settlements can be exposed to catastrophic fraud – as one Tennessee woman is reported to have discovered.

divorce fraud

Beale Street Blues

Lawyers act as fiduciaries to their clients during a family law case. Accountants, financial planners, and others can become fiduciaries after the divorce. In a fiduciary relationship, the  duties involved need not be strictly legal; they can also be moral, social, domestic or personal.

In 2003, Ms. Loveland received approximately $1.3 million dollars in connection with her divorce. Knowing that these funds would be vital to her future retirement, she sought out an investment advisor who could manage her assets as she claims she had no knowledge or experience with investments, securities, or financial markets.

Ms. Loveland met with her long-time accountant, who referred her to his friend, Mr. Lentz. She then agreed to allow Lentz to manage her assets. She alleges she informed him that she knew nothing about finance or securities, and that she was relying entirely on his discretion and judgment to manage her investments for her.

Mr. Lentz reassured her that he would take good care of her and would manage her assets in a reasonable and responsible manner, ensuring that she would enjoy some return on her investments while protecting her principal asset base.

However, Ms. Loveland discovered to her shock that Mr. Lentz filled out an Options Account Request Form, purportedly on her behalf, in which he allegedly indicated that her investment objective was “Growth” and that her trading experience was “Extensive.”

According to the lawsuit, Lentz allegedly used “DocuSign” to forge Ms. Loveland’s signature to the Options Account Request, and is also alleged to have cut and pasted customer’s signatures onto forms without their authorization, and arranged to receive Loveland’s financial statements on her behalf.

Last summer, after discussing employment prospects for roughly an hour, Lentz told her:

“now for the bad news . . . you have no money left, it’s all gone.

Loveland’s divorce settlement of around $1.3 million is now worth around $7,000 and she has filed a lawsuit in a Tennessee federal court against Lentz and his companies.

Florida Divorce Fraud

I’ve written about various aspects of divorce fraud before. Interestingly, Ms. Loveland’s case is not about fraud against her ex-husband, but misconduct which occurred after her divorce, involving the loss of her $1.3 million divorce settlement.

What happens if the fraud is caused by a spouse? In Florida, courts distribute the marital assets, such as bank accounts, between parties under the premise that the distribution should be equal, unless there is a justification for an unequal distribution.

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

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

Dissipation of marital assets, such as taking money from a joint bank account, happens a lot. Less common are scams like forging names and diverting financial statements. The misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.

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

However, if the fraud is not from a spouse during divorce, but mismanagement of your divorce settlement by anyone who is not your spouse, you are limited to civil causes of action in civil court, as opposed to family court.

Going to Graceland

Ms. Loveland’s lawsuit alleges a lot of damages. She was forced to surrender a Long-Term Care policy that she paid premiums on since 2004 and surrender a $250,000 Life Insurance Policy in which she had invested over $18,000.00 because she can’t pay the nearly $5,000 premiums.

Loveland alleges that as a result of Lentz’ actions:

“now, at the age of sixty-four, forced to work long hours for Uber and DoorDash merely to make ends meet.”

Ms. Loveland has sued in civil court for violation of the Tennessee Securities Act, breach of fiduciary duty, negligence, among other causes of action, and is seeking punitive damages.

The Wealth Professional article is here.

Free Speech, Child Custody, and Insults

Free speech can be an issue in any child custody case when parents hurl insults at each other in front of their children. Because it is not in the children’s best interest, family judges can order parents not to disparage the other parent in front of the children. One Indianapolis court recently had to consider whether an anti-disparagement order went too far.

Free Speech Custody

Start Your Engines

After several years of marriage, Yaima Israel, filed for divorce from her husband Jamie Israel. After the trial, the family court judge decided that joint legal custody was an “unworkable” option based on the parents’ inability to agree about their child’s health, education and welfare. As a result, Yaima was awarded sole legal custody.

The family court’s decree also contained a non-disparagement clause. Family courts sometimes enjoin speech that expressly or implicitly criticizes the other parent.

In another case for example, a mother was stripped of custody partly because she truthfully told her 12-year-old that her ex-husband, who had raised the daughter from birth, wasn’t in fact the girl’s biological father.

In the recent Indianapolis case, the order prohibited either parent from “making disparaging comments about the other in writing or conversation to or in the presence of child.

However, the order also prohibited insulting the other parent in front of friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone else. All kinds of speech was banned, including “negative statements, criticisms, critiques, insults[,] or other defamatory comments.”

The Husband challenged the judge’s non-disparagement clause that restrained them from ever making disparaging remarks about one another, regardless of whether the child was present.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. The “best interests of the child” test — the standard applied in all Florida child custody disputes between parents — gives family court judges a lot of discretion to ban speech which can harm children. Accordingly, Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In Florida, parents have had their rights to free speech limited or denied for various reasons. In one case, a mother went from primary caregiver to supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes. The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

But some have argued that if parents in intact families have the right to speak to their children without the government restricting their speech, why don’t parents in broken families have the same rights?

The Constitutional Brickyard

The Indianapolis appellate court ruled that the First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law … abridging the freedom of speech.

Restraining orders and injunctions that forbid future speech activities, such as non-disparagement orders, are classic examples of prior restraints. Non-disparagement orders are, by definition, a prior restraint on speech. Prior restraints on speech are the most serious and the least tolerable infringement on free speech rights.

While a prior restraint is not per se unconstitutional, it does come to a court bearing a heavy presumption against its constitutional validity.

To determine whether a prior restraint is constitutional under the First Amendment, the court considers: (a) ‘the nature and extent’ of the speech in question, (b) ‘whether other measures would be likely to mitigate the effects of unrestrained’ speech, and (c) ‘how effectively a restraining order would operate to prevent the threatened danger.’”

There is a compelling government interest in protecting children from being exposed to disparagement between their parents. To the extent the non-disparagement clause prohibits both parents from disparaging the other in Child’s presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment.

But the non-disparagement clause in this case went far beyond furthering that compelling interest because it prohibited the parents from making disparaging comments about the other in the presence of anyone – even when the child was not present.

In the final lap, the court of appeals reversed the portion of the non-disparagement clause including “…friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone” as an unconstitutional prior restraint.

The Indiana court of appeals decision is here.