Tag: Divorce

COVID Custody and Vaccinations

COVID and child custody are back in the news as news of the availability of vaccinations hitting the market becomes a reality. COVID first made family law news in Miami early in the pandemic, when an E.R. doctor was stripped of custody of her 4-year old daughter. What impact will COVID vaccines have on custody?

covid custody vaccine

Getting to the Point

In a recent Broward case, Melanie Joseph wanted to see her son, but a judge wouldn’t let her — for no reason except that she won’t wear a mask. Joseph’s 14-year-old son has asthma, a condition that could put him at risk of contracting COVID-19 during this pandemic, court filings show.

Broward Circuit Judge Dale Cohen called the mother an “anti-mask person” who had the “audacity” to brag about it on Facebook. Many take issue with the decision, but it illustrated how judges in family court consider the health risks of COVID-19.

Other cases followed across the country, most involving at least one parent working on the front lines of the crisis. Judges have been patient in considering both sides of coronavirus cases, but that doesn’t mean they’re not willing to step in when they think the child’s health might be at risk.

Florida Vaccinations and Child Custody

In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

I wrote an article on the relationship between vaccinations and child custody in Florida before. In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

A Dose of Reality

Melanie Joseph, who moved to North Carolina from Coral Springs at the outset of the pandemic response, drew Broward Circuit Judge Cohen’s ire by posting a picture of herself on social media that went viral: it showed her not wearing a mask while in the waiting room of her oral surgeon’s office in June.

Joseph’s selfie ran with the caption “no mask for this girl” on social media, drawing the ire of the Broward judge handling her custody case. She defended her selfie by saying she was alone in a doctor’s waiting room in North Carolina, where there was no mask requirement at the time.

“She’s one of those anti-mask people and she’s got the audacity to post that on social media,” the judge said. “She’s going to wear a mask. If she doesn’t, time-sharing is not going to happen.”

Cohen’s pointed criticism came in an online hearing Sept. 8 and prompted Joseph’s attorney to ask him to remove himself from the case, which has dragged on for 13 years (the child at the heart of it is 14). Cohen declined.

The judge said in-person visits would have to be supervised because he doesn’t trust Joseph, 43, to wear a mask. And he would not consider a long-distance parenting plan — which outlines each parent’s rights when they don’t live in the same state — between Joseph and her son until the COVID crisis has passed.

“When this pandemic is over and there’s no cases and there’s a vaccine … the mother is going to need to get a vaccine as well. When I have proof that everybody’s safe and the child’s not at risk or danger, then we can talk about a long-distance parenting plan.”

Ultimately, the issue of masks never made it into Cohen’s written ruling, issued late last week, and he softened the vaccine mandate. The order states:

“After a safe and reliable vaccination against COVID-19 is available, the mother may be vaccinated and the child may be vaccinated, thus eliminating that particular danger.”

Joseph acknowledged in an interview that she posted a selfie taken at her oral surgeon’s office in June. “No mask for this girl,” she wrote in the caption. At the time, Joseph said, there was no mask mandate in North Carolina and she was alone in her doctor’s waiting room.

She accused the judge of letting his personal political views cloud his judgment in the case. “My case has been in the court system for a number of years and I have experience with court proceedings,” she said. “What occurred is unconstitutional and should never happen to a parent.”

The child’s father thinks Cohen made the right decision. “My client has a legal obligation to protect his son,” said Donna Goldman, the father’s attorney. “This case has been going on a long time, and the judge weighed more than just COVID. He made the right decision to protect the child’s health.”

The Sun Sentinel article is here.

Divorce Fraud in Minnesota

Divorce fraud may be the reason a Minnesota judge rejected a proposed marital settlement agreement between Derek Chauvin, the former Minneapolis police officer charged in George Floyd’s death, and his estranged wife.

Divorce Fraud Minnesota

Fraud and Loathing in Minneapolis

Washington County Judge Juanita Freeman issued the order in late October declining the agreement, writing that a transfer of “substantially all” of one’s assets to the other in an uncontested marriage dissolution is a badge of fraud.

The Chauvin’s agreement apparently sought to transfer the majority of Derek Chauvin’s assets to Kellie Chauvin. The order said the couple’s agreement would transfer all the equity in their homes, funds in their bank and investment accounts, and all of Derek Chauvin’s pension and retirement accounts “except for the nonmarital portion of two specific accounts” to Kellie Chauvin.

State law encourages divorces to be settled without additional court involvement, but:

The court has a duty to ensure that marriage dissolution agreements are fair and equitable and says judges can deny an uncontested agreement between a couple if the transfer features badges of fraud.

She did not accuse them of fraud or provide any other details or motives for her decision. She did write the Chauvins’ can submit a revised agreement to be considered by the court, adding it must indicate which portion of Derek Chauvin’s pension and retirement accounts are nonmarital and “include a balance sheet specifically indicating the total dollar value of the debts and assets that are assigned to each party”.

Florida Agreements and Fraud

I’ve written about the Chauvin divorce before, and also about enforcing marital settlement agreements. Most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities.

A marital settlement agreement, entered into by the parties and ratified by a final judgment, is a contract subject to the laws of contract. In Florida, parenting plans and matters relating to the children must be approved by the family law judge. In addition, the judge is obligated to make sure child support is consistent with Florida’s child support guidelines.

Something is rotten in the state of Minnesota

Calling the judge’s ruling “rare,” local divorce attorneys in Minnesota said it adds to suspicions that Derek and Kellie Chauvin are trying to protect their assets.

This is just speculation, but it’s possible that the [agreement] was intentionally drafted to get assets out of Chauvin’s name in anticipation of a civil judgment against him from the estate of George Floyd. That may be what the court is getting at when it references ‘badges of fraud.

Other sources report that court documents highlight varied sources of incomes between the couple with Chauvin, 46, making between $52,000 and $72,000 per year as an officer. He worked as an off-duty security guard on the weekends at El Nuevo Rodeo dance club, Cub Foods, Midtown Global Marker, and EME Antro Bar.

However, Freeman wrote that under the agreement, Kellie Chauvin would have received all the equity in their two homes, all the money in their bank and investment accounts and all the money from Derek Chauvin’s pension and retirement accounts.

Funds from two of Derek Chauvin’s accounts that were earned before the couple’s 2010 marriage would have been exempt. Chauvin was a Minneapolis officer from 2001 until his firing this year. It’s unknown if the monetary amounts were listed in the agreement due to the heavy redaction. Chauvin has not begun drawing his pension, so that amount is not yet public information.

Several tax-related felony charges filed in Washington County this summer against the couple allege that they failed to claim $464,433 in joint income dating back to 2014. Derek Chauvin earned $52,000 to $72,000 annually between 2014 and 2019 as an officer. He also earned nearly $96,000 working security at businesses while off duty.

Divorces of convenience aren’t unheard of. They’re sometimes filed to protect assets when someone enters assisted living or is dealing with health problems that could result in exorbitant bills. Judges are compelled by law to ensure that divorces are equitable, but state law also encourages settlement agreements without additional court involvement.

It may be unusual that a judge would reject a stipulated agreement. Judges are happy to know that litigants have avoided any more administration of this case and a trial, which is really time-consuming.

The Chauvins could submit a revised agreement. If no revised agreement is reached and approved, the case could be tried in court. Theoretically, Judge Freeman could also divide the assets as she deems fit and is empowered to do through state law.

The Star Tribune article is here.

 

Fault and Extreme Cruelty in Divorce

The South Dakota Supreme Court weighs in on when a divorce can be issued on fault based grounds of extreme cruelty. A father in a divorce case was awarded custody of his children, attorneys’ fees and sanctions the hard way.

Divorce Extreme Cruelty

Bad Marriages in the Badlands

Rachel Evens and Tim Evens were married in 2005 and have four children. Tim owned and operated a carpet cleaning business, known as Tim Evens Carpet Care. Rachel began working for Tim’s carpet cleaning business and Tim gave her a 90% ownership interest.

Then things went bad.

Rachel obtained a domestic violence injunction based on allegations that Tim physically and sexually assaulted her. She removed the children from their schools in Rapid City and took them to Montana. But after an evidentiary, the court found her testimony was not credible and denied the injunction.

When Tim traveled 750 miles to get the children, Rachel prevented Tim’s departure by taking the keys to his vehicle and physically engaging him by pushing and pulling him inside of her house and in front of the children.

Rachel was represented by four different attorneys, each of whom quickly moved to withdraw

Rachel physically and mentally abused Tim, loudly accusing Tim of extramarital affairs at a restaurant, causing patrons to take notice. After dinner, Rachel told Tim she was going out to find a man to satisfy her, only to return later to taunt him by advising him she had succeeded in her effort.

Rachel falsely accused Tim of raping her, failing to pay taxes and hunting without a license, all of which the court determined were unsupported by the evidence

Tim commenced a divorce alleging irreconcilable differences or, in the alternative, extreme cruelty. Tim also requested primary physical custody of the children, equitable division of the parties’ assets, and child support

Florida Fault and Extreme Cruelty

I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Unlike South Dakota, Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or extreme cruelty.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Supreme Court of the Black Hills

The Supreme Court of South Dakota found that the family judge had made detailed findings of fact and conclusions of law as part of its decision to grant Tim’s request for divorce on the grounds of extreme cruelty.

Specifically, the court found that Rachel had physically abused Tim, including hitting, slapping, and kneeing him, as well as spitting in his face. The court also found Rachel had mentally abused Tim by calling him several names, including “stupid, dumb” and a “prick of a man.”

Rachel also told Tim that she was going to find someone else to satisfy her while also accusing him of having extramarital affairs and leveling unsupported allegations that he had committed serious criminal misconduct.

The court credited testimony from several witnesses who relayed derogatory comments Rachel made about Tim to her family, the parties’ children, and their friends.

This behavior, the court found, had continued throughout the marriage with more frequent, escalating incidents over time. As a result, the court found that “Rachel’s conduct toward Tim during this marriage has caused Tim great pain, anxiety, stress, grievous mental and physical suffering and constitutes extreme cruelty.

The circuit court’s comprehensive custody analysis includes over 300 findings directed to determining the children’s best interests. These findings are supported by the record, and we conclude that the court did not abuse its discretion by granting primary custody to Tim.

The South Dakota Supreme Court opinion is here.

 

Is No Fault Divorce Unconstitutional if You’re Religious?

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

Religious Divorce

The Cedars of Maryland

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

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

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

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

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

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

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

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

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

Florida No Fault Divorce

I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or unreasonable behavior.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

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

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

Divorce and the Constitution

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

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

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

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

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

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

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

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

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

The opinion is here.

The Grey Anatomy of Divorce and Social Media

Posting your kids’ photos on Facebook, Instagram and other social media is a fun and normal event for most parents. But posting those same pics after a divorce may not be so easy, as Grey’s Anatomy star Jesse Williams and his former wife, Aryn Drake-Lee found out.

Greys anatomy

Dr. Avery to the Courtroom

Taking over three years after splitting, the Grey’s Anatomy star, 39, and his former wife, a real estate broker, 38, were deemed legally single by a Los Angeles County judge. The agreement was initially reached in September 2019.

The exes will share joint legal and physical custody of their 6-year old daughter and 5 year old son. However, their divorce is particularly interesting because they are required to first speak to each other before they can upload photos of their children on social media according to the court documents.

One of their bitterly contested issues in the news reports about their divorce centered around their two children. Aryn filed legal motions to stop the “Grey’s Anatomy” actor from posting images of their kids on social media.

Jesse had argued that it’s his First Amendment right to post photos of his own children online. But the Mother argued differently. Aryn believed that by his posting the children’s photos online, he left the door open for Jesse’s fans to become obsessive, or even try to harm the children, in order to get closer to the star actor.

The mother was also  concerned that their children are not public figures like their father, and have their own rights. In court documents, the Mother argued she didn’t care if he shares images of their kids with family and friends, it’s the random people that worry her.

Florida Divorce and Social Media

I’ve written about divorce, social media, and some of the constitutional issues involved when the court limits your ability to post online. The Grey’s Anatomy actor and the Mother’s dispute is typical: he is concerned about his 1st Amendment protections, and she is concerned about the online safety of their children.

Divorce courts have a lot of power to protect children, and that can involve restraints on free speech, such as your ability to post photos on social media. One of the areas where this occurs most often is in domestic violence cases. That’s because speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also include cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

“This is your starting line. How well you play? That’s up to you.”

In court documents filed in August, Aryn allegedly claimed that their kids are being “emotionally compromised” because of Jesse’s dating life, saying he has a “revolving door” of women. She asked the judge to hand down an order that required women to stay away from the kids until he dates them for six months.

Aryn also argued that Jesse has an unhealthy temper. The actor countered that claim, saying that his kids have never seen him angry, but they have witnessed Aryn be verbally abusive to him. He also said she once repeatedly slammed the front door on his leg during an argument.

In July, he filed court documents claiming that his estranged wife refused his request for more time with the kids and so he asked for a “court order for a joint physical custody parenting plan.”

Jesse reportedly has been ordered to pay his ex-wife $40,000 in child support every month, as well as over $100,000 in two upcoming spousal support payments. He first met Drake-Lee while working as a schoolteacher in New York. The pair wed in September 2012 after more than five years together. In April 2017, the actor filed for divorce.

Williams and Drake-Lee were granted joint legal custody of their two children in August 2017 and joint physical custody in March 2018. The agreement according to sources, stated that Williams and Drake-Lee must alternate custody of the children for major holidays.

“When you start spinning, the children start spinning, so even if you’re looking at them and you’re telling them everything is fine, they know it’s not fine because they can feel it’s not fine.”

Jesse is now dating Hit The Floor actress Taylour Paige. They were first linked in January 2019 after spending time together at the Sundance Film Festival. He previously dated SportsNews New York anchor Taylor Rocks, and also dated Minka Kelly for several months before calling it off in January.

The People article is here.

 

Your French Divorce

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

French Divorce

C’est la vie

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

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

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

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

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

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

Florida International Divorce

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

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

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

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

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

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

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

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

No tears and no hearts breaking

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

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

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

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

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

The Local article is here.

 

Marriage Penalties

Although Florida doesn’t have a state income tax, many people moving here from other states and seeking divorce, frequently ask whether our state has marriage penalties built into the tax code. The Tax Foundation has the answer.

marriage penalty

What is a Marriage Penalty?

A marriage penalty is when a household’s overall tax bill increases due to a couple marrying and filing taxes jointly. A marriage penalty typically occurs when two individuals with similar incomes marry; this is true for both high- and low-income couples.

In other words, a marriage penalty arises any time a married couple pays higher income taxes than they would have paid if they were un-married and filed individual tax returns.

At the federal level, the Tax Cuts and Jobs Act of 2017 definitely lowered the cost of being married for many couples. But being married can be more expensive than being two single tax filers on April 15th.

For example, if a couple has children and both spouses earn income, they can owe thousands of dollars every year just for being married.

Some states have their own income tax. Under a graduated-rate income tax system, a taxpayer’s marginal income is exposed to progressively higher tax rates.

A marriage penalty might exist when a state’s income brackets for married taxpayers filing jointly are less than double the bracket widths that apply to single filers.

Put differently, married couples who file jointly under this scenario face a higher effective tax rate than they would if they filed as two single individuals with the same amount of combined income.

Florida Divorce and Tax

I’ve written about divorce and taxes before. For example, in 2012 the American Taxpayer Relief Act made permanent the Bush-era expanded standard deduction, and the expanded 15% bracket for joint filers.

But for high income earners, the 2012 law raised taxes on couples making more than $450,000, and individuals making more than $400,000.

As it turns out, some couples found out they could save over $25,000 a year if they divorced.

State Marriage Penalties

While Florida doesn’t have a state income tax, fifteen states have a marriage penalty built into their bracket structure. Seven additional states (Arkansas, Delaware, Iowa, Mississippi, Missouri, Montana, and West Virginia), as well as the District of Columbia, fail to double bracket widths, but offset the marriage penalty in their bracket structure by allowing married taxpayers to file separately on the same return to avoid losing credits and exemptions.

Ten states have a graduated-rate income tax but double their brackets to avoid a marriage penalty: Alabama, Arizona, Connecticut, Hawaii, Idaho, Kansas, Louisiana, Maine, Nebraska, and Oregon.

The ability to file separately on the same return is important in states that do not double bracket widths, as is the ability to do so even if the couple files jointly for federal purposes.

While married couples have the option of filing separately—though some states only allow this if they do so on their federal forms as well—this normally creates a disadvantage, because it either disallows or reduces the value of deductions and credits available to the family jointly, which is also a form of marriage penalty.

Filing separately on the same return eliminates this problem, though at the cost of slightly greater complexity than doubling tax brackets for joint filers so that there is no penalty for filing jointly.

The Tax Foundation article is here.

 

Dr. Dre, Divorce, and Dissipation

Rapper, Dr. Dre, and his wife Nicole Young’s divorce is in the news again as she is alleging dissipation in court documents, that Dre “secretly” transferred “valuable trademarks” they jointly owned — both the name “Dr. Dre” as well as his hit album The Chronic— after allegedly kicking her out of their home in April.

Dissipation

What’s the Difference?

Some couples divorce amicably, recognizing that a divorce is best concluded when they come to a quick and fair resolution as soon as possible so they can get on with their lives.

For other couples, divorcing is a lot more difficult. In high conflict cases, greed, anger, and spite are overwhelming, and the process can quickly spiral into all-out war fought over every dollar.

A common dirty trick in divorce is to “dissipate,” or waste, marital assets. When a person tries to dissipate assets, it means they are intentionally squandering marital property to prevent his wife from getting her fair share of it in the divorce settlement.

In the lawsuit, Young alleges that shortly after being “forced to leave their family home,” Dre, 55, registered a new holding company and then began transferring “highly valuable trademarks,” misrepresenting himself as the sole owner.

“Andre’s plan all along was to deny Nicole’s ownership rights,” the lawsuit alleges, claiming that the transfers were made before Dre threatened to file for divorce on June 27. Young went on to initiate proceedings two days later, on June 29.

Although Young claims she has “demanded return of the trademarks,” Dre has “failed and refused to do so. It is inequitable and unjust to retain ownership of the trademarks, and the value they hold, without paying Nicole or allowing her to maintain her equal ownership,” the lawsuit alleges.

Young is seeking damages in an amount to be determined at trial and wants the trademarks in question to be transferred to a trust.

Florida Divorce Fraud

I’ve written about various aspects of divorce and fraud before. 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, and transferring money and assets into separate accounts. In both cases, 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 way the other spouse disapproves. There has to be evidence of intentional dissipation or destruction.

Big Egos

Young, who filed for divorce in June after 24 years of marriage, is asking for nearly $2 million in monthly temporary spousal support and is also seeking $5 million in legal fees, according to court documents previously obtained by People.

Young has claimed that her husband’s “net worth is estimated to be in the ballpark of $1 billion” in the filing, adding that he earned much of that sum during their marriage.

The rapper previously filed a response, revealing that the couple had a prenuptial agreement — despite initial reports that said they did not have one. Young, however, has disputed the validity of that agreement, claiming that she was forced to sign it and that Dre ripped it up, rendering it invalid after they were married.

The People article is here.

 

Cardi B, Divorce, and Infidelity

Singer Cardi B has filed for divorce from rapper husband Offset because of his alleged infidelity. The divorce petition was filed in Georgia, and there is an initial hearing scheduled for November. Many have asked whether infidelity is grounds for a divorce.

Cardi B Divorce

No Longer Migos

Belcalis Marlenis Almánzar, known professionally as Cardi B, became an Internet celebrity and her debut album was number one on the Billboard 200, broke several streaming records, was certified triple platinum and named by Billboard the top female rap album of the 2010s.

Kiari Kendrell Cephus, known professionally as Offset, is a member of the hip hop and trap music trio, Migos. The couple married in 2017 in a secret ceremony.

Our relationship was so new breaking up and making up and we had a lot of growing up to do but we was so in love we didn’t want to lose each other, was one morning in September we woke up and decided to get married … No dress no make up and no ring.

Their daughter, Kulture, was born in July 2018 – Cardi B’s first child and Offset’s fourth. Cardi B is reportedly seeking primary custody, and child support from Offset.

Florida Divorce and Infidelity

I’ve written about the impact of infidelity 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.

Bad and Boujee

Their relationship has had high-profile ructions. Following rumors of Offset’s infidelity in 2017, Cardi B said:

“No, it’s not right … But what you want me to do? Start all over again and get cheated on again? This shit happens to everyone.”

The couple stayed together but briefly split in December 2018, with Cardi B saying: “Things just haven’t been working out between us for a long time … we just grew out of love.”

Offset publicly pleaded for a resolution, saying:

“I was partaking in activity that I shouldn’t have been partaking in, and I apologize. For breaking your heart, for breaking our promise, for breaking God’s promise and being a selfish, messed up husband.”

They reconciled in January 2019. But could he “walk it like I talk it?” Their divorce ends one of the highest-profile celebrity relationships in the US. Cardi B is among the world’s most successful and respected rappers – after breaking through in 2017 with US No 1 hit Bodak Yellow she has had three other No 1 singles, more than any other female rapper.

They collaborated with Cardi B on the 2017 single MotorSport. Offset has also released a successful solo album, Father of 4, featuring a hit track, Clout, with Cardi B. He has also guested on US Top 10 hits with Kodak Black and Tyga.

The Guardian article is here.

Photo by Frank Schwichtenberg – Own work.

Free Speech and Domestic Violence

In family law, when a cyberstalking complaint consists of social media posts, free speech and domestic violence can clash. In a recent case, a domestic violence court prohibited one Florida lawyer’s social media comments about the other lawyers in her case.

Cyberstalking

Injunction Junction

Florida lawyer Ashley Krapacs filed a petition for a domestic violence injunction against her ex-boyfriend and represented herself at the DV hearing. Attorney Russel J. Williams represented her Ex.

After Krapac lost the hearing, on jurisdictional grounds, she wrote an article about the opposing lawyer, saying that he lied to the judge on the record during these proceedings. As a result, Williams hired his own attorney, Nisha Bacchus, to sue Krapacs for defamation.

Krapacs responded by writing several social media posts disparaging the new lawyer, Bacchus, with personal insults for representing Williams in the defamation suit against her.

Then Krapacs created a blog post which claimed Bacchus filed a frivolous lawsuit against her, accused her of being a bully, and included a vulgar insult. She tagged Bacchus in more posts and hurled insults at Bacchus and her law firm and identified the car Bacchus drove.

In one of her final Facebook posts, Krapacs stated she was going to connect with Bacchus’s former clients to sue her for malpractice. Bacchus sought to stop this by filing a petition for an injunction, alleging Krapacs was cyberstalking her.

The DV judge entered the injunction and limited Krapacs’ use of her office space since both Krapacs and Bacchus had offices in the same building. The judge also prohibited Krapacs from posting on social media about Bacchus and ordered her to take down all the offending posts about Bacchus.

Krapacs appealed.

Family Law and Free Speech

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also mean cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Cyberstalking and Free Speech

The appellate court felt Krapacs’ actions did not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.

Retagging in social media posts for four hours constituted, in the court’s view, one instance of qualifying conduct under the statute. The other acts Bacchus complained of were deemed to be constitutionally protected and did not qualify as additional instances of repeated stalking.

The court also found that the injunction prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites, and requiring her to take down all social media and internet posts that reference Nisha Bacchus was overbroad.

While the appellate court held that her comments could not be subject to an injunction, it did find that Krapacs was not immune from civil liability for her actions and could face money damages.

Then there’s the Florida Bar, which then filed an emergency suspension petition against Krapacs. The Bar viewed her social media tweets, posts and comments as arising out of the opposing lawyers’ representation of clients who were litigating against her.

The Bar called Krapacs strategy “terrorist legal tactics” and felt it was prejudicial to the administration of justice.

After a hearing, the referee recommended a two-year suspension from the Florida Bar. The Florida Supreme Court reviewed the case, disapproved of the two-year suspension, and instead disbarred her.

The opinion is here.