Tag: divorce news

New Year Divorce Surge

Posted by Ron Kauffman on

Market Watch is reporting on a consistent pattern: divorce filings surge in January as people decide to start their New Year with a clean slate, helped by a stressful holiday period and, perhaps, even more stressful in-laws.

NYE Divorce

Happy New You

In general, many family lawyers report a rise of nearly one-third in business in the New Year. The president of the American Academy of Matrimonial Lawyers, says he typically sees a spike of 25% to 30% every year in January.

That’s not only true for the United States, but around the world. Similar trends are seen in the U.K.: one in five couples plan to divorce after the holidays, according to one survey of 2,000 spouses by legal firm Irwin Mitchell.

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 we 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 Divorce

I’ve written about the rise in new years divorce filings, and many times the holiday season can highlight problems. What should you do? Whatever the reason for your problems, there are a few things that anyone looking into divorce for the first time needs to know to help them through the process.

Prioritize

Line up your priorities for life after the divorce. Is it finding a home? Is it retiring? Getting a job? Managing your special-needs child? Consider writing down your most important goals.

Consult

Even if you aren’t certain you need to hire an attorney, or filing for divorce at all, it is a good idea to meet with an expert in Florida’s divorce and family laws. Who better than someone certified by Florida as an expert in marital and family law? We offer free consultations, but even when there is a charge, it is well worth the fee to get accurate information.

Alternatives

Litigation is something to avoid. It’s time-consuming, contentious and expensive. The majority of divorces end up settling. There are many forms of alternative dispute resolution out there, including collaborative divorce, mediation, and informal settlement conferences.

As Market Watch further reports, there is good reason for treating a divorce like a calm business deal. Don’t rush to file. Think about your end game. Many people file quickly out of anger perhaps after learning of a spouse’s misconduct. But it’s better to be strategic.

New Year, New Priorities

If not planned correctly, divorce can be one of the most financially devastating life events, so get an up-to-date assessment of your spouse’s accounts.

“It may be illegal to open another person’s mail, but you can, however, make a note of the financial institution that mails statements. If you give your attorney those names, we can subpoena that information.

Lawyers are cautious about taking on clients who refer to their attorneys as a pit bull or a shark. “Sometimes, people might say that because we’re tough, but if you go in with all guns blazing and start in a mean, aggressive manner, you automatically create a very adversarial situation.

That could increase the cost of the divorce — which could vary between $25,000 to $100,000, depending on the assets involved, the lawyer’s fees and where you live — by double or even triple, he says. “Be courteous and respectful. The key is to avoid escalation.”

It may be that divorce is not the best option, particularly if one partner doesn’t have company health insurance. Annual premiums for employer-sponsored family health coverage reached $18,142 this year, up 3% on last year, with workers on average paying $5,277 towards their coverage, according to the Kaiser Family Foundation, a nonprofit group based in Menlo, Calif.

Premiums for Obamacare are expected to rise 22% next year for the benchmark silver plan. Some health insurers won’t insure both parties on the same policy if the couple has legally separated so people report.

Avoid serving your partner with divorce papers during the holidays, especially if you have children. As they grow older they’ll hate that holiday memory forever. But that doesn’t mean you shouldn’t do some preparation in the meantime.

In Florida, you can file for divorce and 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 Market Watch article is here.

 

Social Media and International Child Custody

Posted by Ron Kauffman on

An American woman living in Saudi Arabia has been punished in her international child custody divorce. During the divorce trial, her Saudi ex-husband was able to introduce exhibits from her social media account into evidence. The social media evidence proved fatal to her custody case.

ocial media international child custody

Desert Justice

Though she succeeded with the divorce, her custody battle appeared to reach a dead end after a Saudi judge awarded custody of their daughter Zeina to the husband’s mother, who lives with him, despite video evidence Ms. Vierra submitted to the court that she said showed her ex-husband doing drugs and verbally abusing her in front of their daughter.

“It’s like 10,000 times worse here because so much is at risk for women when they go to court. I genuinely thought that there would still be justice served here, and I kind of put everything on that.”

Saudi courts prioritize ensuring that children are raised in accordance with Islam. According to court documents, the judge accepted Ms. Vierra’s ex-husband’s arguments that she was unfit to raise Zeina because she was a Westerner, and ran a yoga studio.

Social Media and International Child Custody

Divorce trials usually require the introduction of sensitive and personal evidence. For example, it is common to hire private investigators to film spouses, or use forensic accountants to hunt for strange credit card charges.

Sometimes though, the evidence falls in your lap. Facebook and other social media sites are often filled with very personal information which is increasingly being used in divorce trials. You may have heard of some examples:

  • A Husband posts his status as single and childless on Facebook while seeking primary custody of his children.
  • A mother is accused of never attending her kids’ school events because of her online gaming addiction. Evidence subpoenaed from World of Warcraft tracks her on-line with her boyfriend at the time when she was supposed to be with the children.
  • A husband denies he has any anger management issues, but posts on Facebook; “If you have the balls to get in my face, I’ll kick your ass into submission.”
  • A mom denies in court that she ever smokes marijuana, but then uploads photos of herself smoking pot on Facebook.

Is the evidence admissible? And if so, how do you prove the evidence is real and not maliciously put there? The Florida Bar Commentator published an article I wrote about using Facebook evidence at trial.

The article discusses the evidentiary potential of social media sites, and the peculiar challenges of authenticating materials from the internet. Social media websites like Facebook have had an astronomical growth worldwide, and are showing up in divorce trials.

The article suggests some of the benefits and obstacles in gathering and using Facebook and other social media evidence at trial. The article also reviews the then leading national cases on social media websites, and outlines when it is necessary to use computer forensic firms and other sources to ensure that the evidence is properly admitted.

Your Desert Kingdom Divorce

The status of women in Saudi Arabia is changing. Many women now enjoy new reforms in the law which allow women to drive, and even to a certain degree, vote. The election allowing it was for municipal councils with few powers, but the reform is a milestone for many women.

But the dramatic changes have not touched the most fundamental restriction on Saudi women, a guardianship system that gives men control over many critical parts of their wives.

The guardianship system’s rules extend to women who marry Saudis, like Ms. Vierra. Even after she divorced her husband last year, Ms. Vierra’s ex-husband remains her guardian. Wielding his guardianship powers, he prevented her from going home to see her family at Christmas and let her legal residency expire, which left her stuck, unable to access her bank account or leave Saudi Arabia.

During the divorce trial, he told the court that Ms. Vierra, did not speak Arabic well, and that she was an atheist. He also submitted photos of her in a bikini, in yoga pants . . . with her hair uncovered! This social media evidence of Ms. Vierra wearing forbidden yoga pants, in a country that requires women to wear loose abayas in public, was devastating at the divorce trial.

The court accepted his testimony at face value, she said, while hers was legally worthless unless she could bring in male witnesses to back her up. She tried to counter with videos of him that she said showed him rolling a joint to smoke hashish, talking on the phone about his marijuana use and screaming at Ms. Vierra, all with Zeina in the room. Though he acknowledged his drug use, he accused her in court of giving him the drugs and of forcing him to say he was an atheist, both of which Ms. Vierra denies.

In the end, the judge found both parents unfit to raise Zeina, awarding custody instead to the husband’s mother. But Ms. Vierra did not find this comforting; she said her ex-husband’s sister had testified that their mother had hit them and emotionally abused them as children.

“This is not just my story — there’s much worse. It’s hard to believe stuff like this can happen.”

The Independent article is here.

 

An Interstate Custody Marriage Story

Posted by Ron Kauffman on

The new Netflix divorce drama, Marriage Story, is an excellent movie which has brought critics and audiences together – with divorce attorneys! Largely overlooked in the detail it deserves is the legal implications of Nicole and Charlie’s interstate child custody fight which develops when Nicole moves to California from New York with their son Henry.

interstate custody

Act 1: Whose Fault is It?

Nicole is the one who moves to Los Angeles with their son. She doesn’t have to – they are a New York family, despite her having been raised on the west coast. The movie makes a lot of their having married in Los Angeles and their son was born there, but for the past 10-years, they’ve lived and worked in New York.

The reason for Nicole’s relocation to Los Angeles is a job offer, she gets hired to be in a TV pilot. Job offers are a common source for needing to relocate interstate with a child. However, there is no indication that she can’t find acting work in New York. Surely there are other work opportunities she could have in New York, had she really looked.

Then she makes her husband’ efforts to see their son in Los Angeles difficult when he visits. She steered Charlie away from sleeping for the night on the day he’s arrived – even though he has no idea she filed for divorce. Worse yet, he’s served with divorce papers in her parent’s house. Then Halloween becomes a sad, lonely time.

Act 2: Interstate Custody

I’ve written and spoken about interstate custody cases before. Generally, when two parents reside in a state, like Florida for instance, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

That’s exactly the problem Charlie faced after Nicole moved with their son to California from New York. But which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to state law in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

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, visitation, and time-sharing. 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), which Florida and almost all U.S. states passed 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 New York for the Nicole and Charlie example. The ultimate determining factor in a New York case then, is what is the “home state” of the child. New York has initial jurisdiction to hear Nicole and Charlie’s case, for example, if New York was the Home State of their son on the date Nicole filed her case.

Alternatively, New York could possibly hear their case if New York was the Home State of the child within 6-months before Nicole filed her case, and their son was absent from New York, but one of the parents still lives in New York. This usually happens when a parent takes a child across state lines.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida, California and New York – and the other states – all have a strong public policy interest in protecting children in their states.

Act 3: The Big Decision

Charlie does face a serious interstate child custody problem, and has a few weaknesses too. Charlie cheated and feeling guilty, allowed Nicole and their son to move to California for at least a year. We don’t know how long after Nicole moved to California she filed for divorce. Nicole has always done more of the childcare and has extended family in California – a luxury that Charlie doesn’t enjoy.

The stakes in the movie are extremely high for interstate parents facing a custody problem. The big issue is whether Charlie will need to move to Los Angeles to keep up regular contact with his son or be able to force Nicole to return their son to New York so she can timeshare there.

I won’t give a spoiler as to how their interstate child custody case is finally resolved. Instead, know that the movie does an amazing job of portraying the high stakes and anxiety involved in an interstate child custody divorce.

The new Netflix movie, Marriage Story, is great, and stars Scarlett Johansson, Adam Driver, Laura Dern, Alan Alda, Ray Liotta, Azhy Robertson, Julie Hagerty, Merritt Wever, and Wallace Shawn and basically follows a married couple going through a coast-to-coast divorce.

Highly recommended!

*Gage Skidmore photo credit

Your Social Media Divorce Farce

Posted by Ron Kauffman on

When your divorce becomes social media fodder because you yourself are posting things online about it, what are the risks? Lifestyle and mommy blogger Eva Amurri Martino – who has posted to her followers that she and her husband are going to “lovingly part ways as a couple” (aka divorce) – may find out the hard way.

Social Media Divorce

News Feed

Eva, the daughter of Susan Sarandon, and her husband who is a former soccer player, announced their split with simultaneous posts on both their Instagram and Twitter accounts. In the photo, they are beautiful and laughing on their porch with their two adorable young children, despite the somber message.

Eva is 23-weeks pregnant with the couple’s third child, making the beautiful laughing picture and self-described “lovingly parting ways” description seem like a total farce.

The couple also has been remodeling a home and both posted declarations of love on their anniversary less than a month ago. Her followers immediately began speculating what happened on various internet forums, and they have become tabloid fodder.

Florida Divorce and Social Media

Eva Amurri Martino’s decision to “lovingly part ways” and broadcast her divorce to the world is part of the recent phenomenon of the “divorce selfie” and other social media announcements.

I’ve written about the widespread use of social media in society, and how that impacts family court cases. Social media evidence is increasingly becoming important at trial – especially when it comes to authenticating exhibits in family court.

Some exhibits are so trustworthy they don’t even require a witness to authenticate. Evidence Rule 201 lists matters which a court must judicially notice, meaning a judge does not have discretion but to admit indisputable evidence.The list is short, and includes laws of the Congress and Florida Legislature; Florida statewide rules of court, rules of United States courts, and U.S. Supreme Court rules.

Rule 202 includes even more matters, but also provides judges leeway in deciding whether or not to take judicial notice. For example, the statute allows a court to take judicial notice of facts that are not subject to dispute because they are “generally known within the territorial jurisdiction of the court”, and facts that are not subject to dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”

With evidence of foreign governments using social media to spread disinformation and propaganda, and the widespread use of fake social media accounts, you have to wonder whether the genuineness assumption of evidence in family court still stands.

Create a Post

Eva and Kyle’s divorce raises an interesting question: when your brand is your life, how do you post divorce information? Influencers usually handle this in three ways: They ignore it and “keep it off the feed,” they offer an unfiltered look at their hardship, or they go dark until the storm passes.

Eva has kept up her usual posts and aesthetic, but mixed in the realities of her new situation. Her activity over the past week features her usual glam, well-lit Instagrams, but with divorce talk sprinkled in. For example, she hosted a “slumber party” for her girlfriends, complete with makeup, pearls, and matching silk pajamas. She also has been posting family shots, now missing a member.

For his part, Kyle posted this absolutely heartbreaking post the other day. Something about how peppy and lovely it looks kind of kills me?

If you’re considering divorce — even if you plan to file for divorce online and expect it to go amicably — take some precautions. Lockdown privacy settings for example, and be cognizant that your posts could be used against you.

Even if things are moving forward in an amicable fashion, you don’t want to turn your divorce into a contested legal battle. That may include keeping your divorce off Facebook and Twitter. If you have children, consider an agreement that child-related social media posts are limited especially photos and posts that give insight into children’s personal lives.

Influencers like Eva, who have used their children to create a family brand, may have little choice but to make glowing comments such as “lovingly parting ways” while 6-months pregnant and in the middle of a remodeling project.

The Buzzfeed article is here.

 

Five Ways to Improve Your Divorce

Posted by Ron Kauffman on

While your performance never faltered before, after you enter into a divorce, you can become overwhelmed by the competition for your attention. Forbes magazine reports on five way to improve your divorce and maintain your productivity.

Improve Divorce

1. Build an emotional support network outside of the office. From both an emotional and a practical standpoint, keeping conversations about your divorce out of the workplace is smart. Of course, you need to talk with those involved in collecting the requisite documents—an HR representative, for example—but those discussions should be factual in nature. Talking about the personal and emotional aspects of your divorce should be reserved for close friends or family members outside of work.

Don’t neglect your need for emotional comfort during this time. Divorce is stressful. In addition to having a strong support network, make sure you hire a lawyer who makes you feel empowered and comfortable, who helps you understand the divorce process and is accessible when you need counsel.

2. Be cooperative and realistic in your efforts to work with the other side. If you or your spouse take positions in your divorce that lead to additional court appearances, your productivity will be affected, because those appearances will take you away from your office. In fact, even preparing the paperwork with your lawyer can take you away from your job for hours at a time. You can minimize this time away by approaching your divorce pragmatically, organizing as much as you can in your off-hours, and being as straightforward and transparent as you can be in terms of the documents and information you produce. If everything becomes a tug of war, with subpoenas being issued and every aspect of the divorce litigated, you will be diverting precious time and energy from your career.

3. Allocate a certain amount of time each day to addressing divorce-related communications. As much as you might like to wait until you get home at night to handle divorce matters, reality sometimes dictates speedier replies. Divorce matters are generally handled during working hours, and if your lawyer has a question or information to share, your delayed response could mean a slowdown in the process. Set aside a block of time during the day when you can read and respond to related emails and place necessary phone calls. Keep a running list of to-do items and questions for your lawyer so that you can jot them down when they occur to you throughout the day and then put them out of your mind until later. Sending your lawyer just one comprehensive email a day with all of your questions and concerns will improve your productivity as well as your lawyer’s (which can also save you money!).

Florida Divorce

I’ve written on various divorce issues. In Florida, a divorce is called a “dissolution of marriage.” Florida is also 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.

Although no-fault divorce is Florida law, the process of going through a divorce can be grueling, and will eat into your productive time. Part of the stress comes from the fact that the divorce process can be very emotional and traumatic for couples as well as their kids.

4. Have separate work and personal email accounts. This is, of course, good advice whether you’re going through a divorce or not. Nothing can distract you faster than seeing personal emails popping into your inbox all day long. In fact, you may even want to create a new account specifically dedicated to divorce correspondence. Then, when “Divorce Management” pops up on your calendar, you can get straight to all divorce-related matters and take care of them during your allotted time slot.

Likewise, keep any divorce-related documents in their own secure folder on your computer so you can access them at a moment’s notice rather than having to spend time hunting them down.

5. Keep your lawyer apprised of any blackout dates on your calendar. If you travel for work or have certain must-attend meetings or events, make sure your lawyer is aware of these as soon as they are scheduled so you can avoid conflicts with any necessary court appearances or other important meetings related to your divorce. Being unable to meet key business obligations can not only set back your productivity but also damage your standing in the eyes of clients, your manager or your peers.

The Forbes article is here.

 

New Article: Daubert House

Posted by Ron Kauffman on

My new article on the changes to our expert witness rules, which impact all family law and divorce cases, is now available at the Family Law Section website. Daubert House not only discusses Florida’s changes to the expert witness rules, it mixes in references to National Lampoon’s Animal House for reasons those familiar with the Florida Supreme Court’s recent opinion will understand.

family law daubert

Were the Changes Even Constitutional?

In amending the Florida Evidence Code, the Legislature bound Florida courts to the Daubert standard for the admission of expert testimony and opinions. However, those changes were short lived. The Florida Bar Board of Governors and several Florida Bar committees strongly opposed the changes.

Up until recently, there was also the controversy lingering about the constitutionality of what the Florida Legislature did. While the Legislature can enact substantive law, only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

In response, the Florida Supreme Court declined to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised. The Florida Supreme Court instead left it for a proper case or controversy.

That case was DeLisle v. Crane. The Florida Supreme Court found that the Legislative amendments to Section 90.702 were not substantive because they did not “create, define, or regulate a right”, but was procedural rulemaking instead.

Additionally, the Court held that the Daubert amendment conflicted with the exiting Frye rule because Frye and Daubert were competing methods to determine the reliability of expert testimony. Once again, Frye was the appropriate test in Florida courts. Unknown to everyone, Frye was on “Double Secret Probation.”

Faber College

After our new governor was sworn into office, he appointed three new Florida Supreme Court justices. This year, the Florida Supreme Court, without re-addressing the correctness of its own ruling in DeLisle, chose to recede from its prior decision not to adopt the Legislature’s Daubert amendments.

The dissent, made reference to the movie Animal House:“Like the little-known codicil in the Faber College constitution . . .” in objecting to the manner in which the majority of the Florida Supreme Court re-adopted Daubert.

Effective immediately, the Florida Supreme Court adopted the Legislatures’ 2013 amendments to section 90.702 as procedural rules of evidence, and adopted the amendment to section 90.704 to the extent it is procedural.

The article is available on the Florida Bar’s Family Law Section website here.

 

Speaking on Halloween and Daubert

Posted by Ron Kauffman on

This Halloween I will be co-presenting a webinar with the Hon. Samantha Ruiz Cohen. The presentation is sponsored by the Florida Bar Family Law Section. The webinar will discuss Florida’s dark, lonely road to a new standard for admitting expert testimony: Daubert Returns.

Daubert

The presentation addresses the changes to §90.702 and §90.704; how the new Daubert standard differs from Florida’s old Frye rule; the Constitutional problem, appellate cases applying the new standard; how the judge’s role has changed; and the new Rules’ impact on the admissibility of expert testimony in family law cases.

The webinar will take place tomorrow, October 31, 2019 beginning at noon.

Did I mention the witches?

There is still time to register by clicking here.

 

Divorce and the Engagement Ring

Posted by Ron Kauffman on

Kim Kardashian reportedly refused to give back her engagement ring to estranged husband, former basketball player, Kris Humphries. Is a spouse obligated to return an engagement ring after a divorce has been filed – whether the ring is worth $2mm or not?

engagement ring

Keeping Up with the Kardashians

A source close to the Kardashian situation reports that her husband Kris contends that the marriage was a total sham and that Kim only wed him for publicity so therefore she has no right to keep such an expensive gift.

This is the latest battle in the drawn-out Kardashian-Humphries divorce proceedings. The reality star filed for divorce from Humphries in October 2011 after just 72-days of marriage. He responded a month later by filing for an annulment on the basis of fraud and a legal separation.

Florida Engagement Rings

I’ve written about some of the history and law about engagement rings before. Until the 1930s, a woman jilted by her fiancé could sue for financial compensation for “damage” to her reputation under what was known as the “Breach of Promise to Marry” action.

As courts began to abolish such actions, diamond ring sales rose in response to a need for a symbol of financial commitment from the groom. Florida abolished the appropriately termed “heart balm statutes”. Heart balm statutes were laws allowing couples to sue each other to recover money for the alienation of affections and breaches of contract to marry.

As one court poetically noted:

[A] gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor – if the anchor of contractual performance sticks in the sands of irresolution and procrastination – the gift must be restored to the donor. A fortiori would this be true when the donee not only refuses to sail with the donor, but, on the contrary, walks up the gangplank of another ship arm in arm with the donor’s rival?

After an engagement ring is given, and if the couple doesn’t marry, in New York the law deems a broken engagement as no one’s fault. Accordingly, the ring should be given back to the giver, with few exceptions. Most states have adopted that approach.

This is true in Florida. Lawsuits to recover an engagement ring by disappointed donors usually are resolved by courts looking to see if the engagement was terminated by the donee or by mutual consent of the parties. The rationale is that rings are given on the implied condition that a marriage ensue.

Once a marriage proposal is extended and accepted — once the promise is made — no matter what day of the year, that ring is no longer considered a gift. It’s a contract to enter into marriage.

The general rule in Florida is that an engagement ring given before the marriage, becomes a non-marital gift if the marriage is completed. If so, the ring becomes the non-marital property of the Wife.

If the engagement ring is viewed by the court as a non-marital asset, it is not subject to equitable distribution in divorce proceedings, and the spouse keeps it as their own.

Reality TV

Relying on real attorneys and not Judge Judy, both sides of the Kardashian case have accused each other in court and in the media of deliberately slowing down the divorce process, which has lasted five times longer than their marriage.

Recently, Kardashian’s attorney told the judge that her client is “handcuffed to Mr. Humphries” because his team is still not ready for trial. The estranged couple is set to return to court in mid-February to determine a trial date.

The Huffington Post article is here.

 

Divorce and the Date of Marriage

Posted by Ron Kauffman on

The date of your marriage should be an easy question to answer. But, for one same-sex couple in the midst of a messy divorce – who made national headlines fighting to have their same-sex relationship recognized – the answer is anything but easy.

Divorce and Date of marrage

Divorce in Hot Lanta

Lawrie Demorest, an Atlanta attorney and Lee Kyser, a retired psychologist, are making headlines again, but this time over how to end their more than 20-year relationship.

The couple fought very publicly to have their relationship recognized by the Druid Hills Golf Club in Atlanta as the same as heterosexual couples, giving them the same rights and benefits as others.

Demorest, who has fought for LGBTQ equality, in response to a divorce brought by her lesbian partner, the former co-chair of the board of directors for the Human Rights Campaign has tried to legally nullify a relationship she once said should be treated the same as a marriage.

The two officially broke up in December 2017, and Demorest wanted the couple to walk away with what was titled in their own names. Kyser said no because in part she said she gave up her job to raise the twins the couple adopted in 1999, and her only source of income right now is Social Security. She accused Demorest of “setting her up for an undignified retirement.”

Kyser is suing Demorest for a divorce using the unusual argument that Georgia’s common law marriage, which was banned in 1997, coupled with the Obergefell v. Hodges decision “retroactively date the start of Kyser and Demorest’s marriage to July 1996, when Kyser moved into Demorest’s home. [Kyser] shows that, but for the unconstitutional prohibition on same-sex marriage, the parties would have been married by common law in July 1996.

DeKalb County Superior Court Judge Mark Anthony Scott denied Demorest’s Motion for Summary Judgment on Sept. 4. This means Kyser can further argue her claim that the couple should be considered common-law married due to the Obergefell ruling between July 1996, when they moved in together and January 1997, when the state banned common law marriage.

Florida Divorce

I have written about same-sex marriage and divorce issues before. Georgia, like Florida is among the states that do not recognize common law marriage. The Georgia case is important because same sex marriages were not recognized until 2014 and left an entire group of people “out in the cold” without the protections the law provides to heterosexual couples.

Florida law is similar in that no common-law marriage entered into after January 1, 1968, is valid in Florida. The generally established principle is that the validity of a marriage is determined by the law of the place where the marriage occurred. So, while Florida no longer recognizes common law marriages, nevertheless, it may to recognize the validity of common law marriages in other states.

Given the U.S. Supreme Court’s decision to recognize same sex marriage, everything else from the marriage follows including rights of the parties, including marital property, alimony, divorce, and anything else. The rights and duties of marriage now apply to same sex couples.

This divorce is unusual, because one spouse is arguing they were never legally married under Georgia law.

Wisdom, Justice, Moderation

Kyser said her shock with Demorest seemingly so willing to write off nothing close to a legal marriage led to the divorce filings. She said Demorest’s longtime advocacy for marriage equality is counter to what she is doing with her own family as part of the couple’s split.

For example, Demorest served 13 years on the national Human Rights Campaign board of directors, including as co-chair between 2002-2005 during its heyday in the fight for marriage equality. She also formerly served on the board of directors of the National LGBT Bar Foundation.

However, now that her 20-year relationship with Kyser has ended, Demorest has argued in court filings that their extended union was never a marriage, was never intended to be a marriage, and that Demorest, a national leader for LGBTQ rights, “did not anticipate or have any expectation that marriage would ever become available to same-sex couples in Georgia.”

“I just can’t get over her blindness. How did she get to where she really talked herself into believing that she can advocate for equality and have this tremendous reputation, and then turn around and try to exit our relationship in this way, which is totally contradictory to fairness and equity. To have built up such a reputation professionally and politically, and to then turn and handle her own relationship and family like this just tears it down.”

In court documents, Demorest said although she and Kyser were together for two decades, including holding a commitment ceremony in 1998 and adopting and raising twins together, they never were legally married even as marriage became legal for same-sex couples.

“Up until recently when I decided that I could not wait any longer to end our relationship, I had always considered my relationship with Lee to be as my ‘significant other’ or domestic partner and co-parent of our two children, but never at any time as a legally wedded spouse,” Demorest said in an affidavit.

Demorest’s attorney said that “it’s a very murky thing to dive into and talk about the spirit of the relationship because each relationship has its own milieu. They had the opportunity to get married in 2004, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 and they did not.

In ’15 [when Obergefell legalized same-sex marriage nationwide], they could’ve marched over to the probate court in DeKalb County like a thousand other people did and get a marriage license, but they chose not to do that.

The article is here.

 

Divorce and Infidelity in Congress

Posted by Ron Kauffman on

Rep. Ilhan Omar is divorcing her husband. The Minnesota Democrat filed for divorce from Ahmed Hirsi last week. This news follows earlier reports that the Representative’s political consultant is facing his own divorce because of his infidelity with Rep. Omar.

Sex and No Fault Divorce

The Candidate

Omar and Hirsi became engaged in 2002 but never legally married. The pair had two children together before separating in 2008. Omar married Ahmed Nur Said Elmi in 2009 and later said the two obtained a divorce in their Muslim faith tradition — albeit not a legal one — in 2011.

Beth Mynett, wife of Omar’s political consultant, alleged in court documents that her husband, Tim Mynett, confessed his “devastating and shocking declaration of love” for Omar this past April, which led to the divorce.

Tim Mynett’s company, the political consulting firm E Street Group, has worked with Omar’s campaign. Federal campaign finance records show that Omar’s campaign paid Tim Mynett $7,000 in July 2018 and E Street Group roughly $222,000 from 2018 to 2019.

The E Street Group and lawyers issue a statement saying “E Street Group does not comment on the personal life of either our staff or clients. As with all marriages, this is intensely personal and a difficult time for their family.

Florida Divorce and Infidelity

I’ve written about the impact of cheating and divorce before. In practical terms, adultery as a crime poses very little threat of prosecution, but it could have other consequences.

Cheating on your spouse can even be grounds for losing your job. This is particularly true in the military, where adultery has a maximum punishment of a dishonorable discharge.

Chapter 61 discusses the “the moral fitness of the parents” as one of the factors the court considers in determining the best interests of a child. Adultery may impact the division of property. Proof that one spouse intentionally wasted marital assets could be seen as dissipation of assets. Adultery of either spouse could be a factor in determining the amount of alimony, if any, to be awarded.

There are times when evidence of adultery comes into evidence. Most often it doesn’t. In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that sexual activity between consenting adults is legal.

Ms. Omar Goes to Washington

Omar and Hirsi reconciled after that and had a third child together in 2012. The lawmaker officially filed to divorce Elmi in 2017, and legally married Hirsi in 2018.

Earlier this year, a Minnesota campaign finance board’s investigation found that the 38-year-old freshman congresswoman and Hirsi filed joint tax returns in 2014 and 2015, while she was still legally married to Elmi.

“For years, Ilhan and Ahmed have been the object of speculation and innuendo from political opponents and the media. This has taken a significant toll on Ilhan, Ahmed, and their three children.”

The divorce documents allege there has been an irretrievable breakdown of the marriage relationship. Omar said neither partner is seeking an order of protection and she asks the court to grant them “joint legal and physical custody” of their three minor children. She also asked the court to determine child support to “serve the minor children’s best interest” and award the “marital property” as the court “may deem just and equitable.”

The Hill article is here.