Tag: International Divorce

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.

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.

 

Divorce Causes in India

Divorce can have many causes, but in India there is a bizarre case going on in which a Muslim woman has sought divorce in an Islamic court from her husband on the grounds that he does not fight with her enough.

India Divorce

The Spice of Life

The unidentified woman in the Sambhal district of Uttar Pradesh has sought a divorce from her husband after only 18-months of marital bliss. The woman approached the Sharia court in Sambhal to seek a divorce, leaving the court puzzled.

Why was the court so confused?

The chief complaint from the woman is that her husband loves her too much and does not fight with her. The woman claimed that her husband’s love was ‘suffocating’ her.

“He does not shout at me and neither has he upset me on any issue. He even cooks for me and also helps me in performing household chores.”

She further said, “Whenever I make a mistake, he always forgives me for that. I wanted to argue with him. I do not need a life where the husband agrees to anything.”

The Sharia court cleric, as expected, rejected her plea for divorce, terming it as frivolous. When the Sharia court refused to grant her divorce, the woman took up the matter with the local panchayat (the local self-government in villages in rural India), which also expressed its inability to decide the issue.

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. So, whether your husband is always forgiving of your mistakes, or worse, very agreeable to anything you want, you don’t need to allege that as a grounds for divorce.

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

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

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.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Divorce Bollywood Style?

Back in India meanwhile, the nice husband has gone on record and stated that he loved his wife dearly and always wanted to keep her happy. He also asked the Sharia Court cleric to reject the divorce plea. Of course.

The court has now asked the couple to resolve the matter mutually.

The Tribune India article is here.

 

The Divorce Pandemic hits Saudi Arabia

The divorce pandemic hits Saudi Arabia after first starting in China, South Korea, and the United States – which have reported increases in divorce filings following the easing of some quarantine restrictions.

Saudi Divorce

Dry Statistics

According to Al-Amri, the number of divorce cases handled by courts across the Kingdom of Saudi Arabia reached 53,675 in 2017 or 149 cases each day.

But new reports show that divorce rates in Saudi Arabia have increased by 30% during the lockdown period enforced by the coronavirus or COVID-19 pandemic, reported the Dubai-based English language newspaper Gulf News quoting Saudi Justice Ministry.

The paper said the rate of divorce has increased compared to the same period last year.

However, during the lockdown period, 13,000 people also tied nuptial knots an increase of 5% compared to the same period in the previous year.

The ministry also informed that as many as 7,482 requests of divorce and Khula – a procedure in Islam which allows a woman to divorce her husband – were lodged.

According to the newspaper, some Saudi working women including doctors, citied secret marriages of their spouses as reasons for seeking a divorce.

Apparently, the preventive measures taken to stem the spread of the coronavirus including imposing lockdown – contributed to helping women to uncover the secret marriage of their husbands.

The high rate of divorce has become a destabilizing factor in Saudi society and it obstructs the Kingdom’s march to greater progress. Social consultant and researcher Salman Bin Mohammed Al-Amri has expressed his deep concern over the repercussions of the high incidence of divorce in society.

The office of the Grand Mufti approved 6,163 divorces during the same year, which is an increase of 846 cases compared to 2016.

“We should know that there are hundreds of divorces not recorded by the courts, so the actual figure could be much higher than what is officially reported”

The total number of divorces could be 40 to 45 percent of the total number of marriages, which was put at 159,386, in the same year. “This shows that we have to take drastic measures to bring down this huge number of divorce cases in the country,” Al-Amri told Okaz/Saudi Gazette.

Florida Divorce

I’ve written about the divorce statistics before. Forced together due to a shelter-in-place order may be the reason for your divorce, but legally you don’t need one. That’s because Florida is a no-fault divorce state.

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

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.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Shifting Sands

Measures must be taken to control divorces to reduce its social impact as it causes untold problems to the children of divorced couple. Men and women who have separated after years of living together also face psychological, economic and social problems.

“We have to conduct a detailed study on the increasing number of divorce cases in Saudi society to find a viable solution.”

Injustice, lack of honesty and trust, and confusion are the hallmarks of divorce cases across the Kingdom. It destabilizes families, the foundation of society.

Saudi and Gulf societies have changed considerably in recent years as a result of foreign influences and other factors, largely affecting social, cultural and economic norms.

“Our families have been influenced by the new urban culture and modern information technology. Education and employment of women and the Kingdom’s openness to foreign cultures were other factors that increased the divorce rate.”

Many parents have failed to prepare their sons to get married by training them to take responsibility. Some men fail to fulfill their Shariah duties toward their wives while those having more than one wife fail to treat all of them fairly and equally.

There are many other reasons including bad temper, infidelity, drug and liquor habits, miserly attitude and high dowry, in addition to psychological, health and social reasons.

Al-Amri said women are the most affected in case of divorce due to society’s negative attitude toward them. A divorcee loses economic support and financial security provided by her husband and this brings down her living standard, in addition to making her a burden on the family.

“As a result of this situation, such women will be forced to seek financial help from the Ministry of Labor and Social Affairs and charitable organizations. This will lead to depression and push them to commit suicide,” he explained.

Most divorced Arab women are unlikely to get married for a second time because of the tough attitude of society toward them.

The situation of divorced men is not very different as they too face a lot of difficulties and mental pressure. They may be forced to pay to child support. Many divorced men are afraid of marrying another woman due to the failure of the first marriage.

Children are the worst hit by divorce as they will lose the sense of security and will not be able to concentrate on their studies. The father will try to take custody of his children and keep them away from their mother. “This will create a horrible family atmosphere for children,” said Al-Amri.

Instead of becoming leaders of progress and prosperity, separated men and women would become depressed individuals unable to make any contributions to the country’s growth. It will increase financial burden on the state, charities and civil societies as the divorcees and their children will require financial support.

The Al Arabiya article is here.

 

Big British Property Division Case

A British woman who “sacrificed” her career as a lawyer so she could be a stay-home mum and raise her children has won an unequal property division on top of an equal share of the family’s wealth after her divorce. This case proves that the interruption of your career can impact your divorce.

Merry in England

A woman who “sacrificed” her career as a solicitor so she could look after her children has won compensation on top of an equal share of the family’s wealth after her divorce.

The ruling could have implications for other divorce cases in which one partner has stepped back from their career for the good of the family, a lawyer said. The Cambridge graduate was embroiled in a fight over cash with her millionaire husband, who is also a solicitor, after the breakdown of their marriage.

A judge has decided the pair, who were married for about a decade and have two children, should split assets of nearly £10 million equally but that the woman should get another £400,000 in compensation for curtailing her legal career.

Mr. Justice Moor said there had been “relationship-generated disadvantage” as the husband was still able to enjoy a “stellar” career.

[The woman] viewed herself as the parent who would take primary responsibility for the children. The husband’s career took precedence. I accept that it is unusual to find significant relationship-generated disadvantage that may lead to a claim for compensation but I am clear that this is one such case. I have come to the conclusion that an appropriate sum to award for relationship-generated disadvantage, over and above her half share of the assets, is the sum of £400,000.

As a talented lawyer, our client sacrificed a potentially lucrative career for her family and to care for the children. Although Mr. Justice Moor has made clear this decision should not open the floodgates to a raft of relationship-generated disadvantage claims, the judgment affirms that in truly exceptional circumstances the principle of compensation still exists in family law, and rightly so.

Florida Property Division and Careers

I have written about property division before. Florida’s equitable distribution statute begins with the premise that the distribution should be equal, but the trial court may make an unequal distribution when proper justification is demonstrated.

The equitable distribution statute lists several factors for a trial court to consider in making this determination, and the court must support its equitable distribution scheme with specific factual findings.

As in the recent England case, a Florida trial court follows several factors to support an unequal distribution, including: what were the contributions to the marriage by each spouse, the economic circumstances of the parties, the duration of the marriage, and the interruption of personal careers.

Generally, the fact that one spouse is the primary bread winner won’t support an unequal distribution in Florida.

Stiff Upper Lip

In another British case, a businesswoman who left behind her career in order to become a “stay at home mum” while her husband continued with his high-flying career has been awarded virtually all of the family fortune by a divorce judge.

Jane Morris, 52, had been criticized by her former husband for not bringing more money in after they split, having quit her career as a recruitment consultant to keep house for him and their three children for 20 years.

However, it emerged that she was awarded half a million pounds while husband, Peter Morris, the managing director of a software company with a seven-figure turnover, was left with just £66,000.

Details of the case came out as he launched a challenge in the court of appeal against the financial outcome of the divorce and a six-week prison sentence which is hanging over his head after it was imposed on a suspended basis for non-payment of alimony and support.

The court heard that the 51-year-old businessman “took credit” for the “high standard of living” the couple enjoyed in their £1.2m cottage in the Chiltern Hills.

However, the couple’s “extravagant” spending, both during their marriage and after their “bitterly contested” break-up in 2013, brought them “to the brink of financial disaster”, reducing multi-million-pound family assets to just £560,000.

Awarding 90% of the family assets to her, the judge had said that she “needs adequate maintenance” because sacrificing her career had left her with a “low earning capacity… in her middle fifties with rusty skills.”

Morris had hit out at his wife’s own expenditure and criticized her for not earning more, having re-entered the labor market since they separated. But she was ruled to be “a sensible woman” who was “probably in need of emotional and psychological comfort” during her own spending sprees.

The Guardian article is here.

 

Divorce in the Time of Coronavirus

A Chinese city has reached a peak in divorce filings as a result of the coronavirus COVID-19. Marriage registration offices in China’s Shaanxi Province report seeing an unprecedented number of divorce appointments since courts reopened this week.

divorce and coranavirus

El divorcio en los tiempos del coronavirus

No, not one of Gabriel García Márquez’s lesser known works. But what is happening around the world is impacting divorce. For example, a part of China’s coronavirus epidemic control efforts has been closing the marriage registration office, and adopting an appointment system on March 1. What they have discovered is interesting.

We started receiving some telephone appointments on March 2, and more appointments came in in the next future days an official of the registration office in Beilin district of Xi’an, told reporters. On March 5, the office received 14 divorce appointments, hitting the upper limit set by the office.

As a result of the epidemic, many couples have been bound with each other at home for over a month, which evoked the underlying conflicts, adding that the office had been closed for a month, therefore the office has seen an acutely increasing divorce appointment. Usually the office would see a wave of divorcemes after Spring Festival and the college entrance examination.

A similar situation also occurred in another marriage registration office in the city’s Yanta district, whose service limit is five appointments for divorce. An official of the office confirmed the office is also seeing a divorce peak.

There is no vacancy for divorce appointments until March 18. The official said that due to long-time staying at home, the underlying conflicts might emerge and result in impulsive divorces. “We received some divorce appointments and they regretted it later”.

Some young couples even decided to remarry when their divorce certificate is printing. The official suggested couples be serious and prudent toward their marriages and avoid regrets from impulsive decision-making.

A telephone appointment is required a day before the registration, and their visit time is scheduled down to minute. It usually takes 30 to 40 minutes for a couple to get a marriage or divorce certificate, and the office would be sanitized after receiving another couple.

Florida Vaccinations and Child Custody

The spread of Covid-19 brings to mind the frequent problem of parents not protecting their children against vaccine preventable diseases.

I’ve written on the relationship between vaccinations and child custody in Florida before. 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.

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.

Protect Yourself Against Coronavirus

The World Health Organization (the WHO) advises you to take care of your health and protect others by doing the following:

Wash your hands frequently. Regularly and thoroughly clean your hands with an alcohol-based hand rub or wash them with soap and water.

  • Why? Washing your hands with soap and water or using alcohol-based hand rub kills viruses that may be on your hands.

Maintain social distancing. Maintain at least 1-meter (3 feet) distance between yourself and anyone who is coughing or sneezing.

  • Why? When someone coughs or sneezes, they spray small liquid droplets from their nose or mouth which may contain virus. If you are too close, you can breathe in the droplets, including the COVID-19 virus if the person coughing has the disease.

Avoid touching eyes, nose and mouth.

  • Why? Hands touch many surfaces and can pick up viruses. Once contaminated, hands can transfer the virus to your eyes, nose or mouth. From there, the virus can enter your body and can make you sick.

Practice respiratory hygiene. Make sure you cover your mouth and nose with your bent elbow or tissue when you cough or sneeze. Then dispose of the used tissue immediately.

  • Why? Droplets spread virus. By following good respiratory hygiene, you protect the people around you from viruses such as cold, flu and COVID-19.

Stay home if you feel unwell. If you have a fever, cough and difficulty breathing, seek medical attention and call in advance. Follow the directions of your local health authority.

  • Why? National and local authorities will have the most up to date information on the situation in your area. Calling in advance will allow your health care provider to quickly direct you to the right health facility. This will also protect you and help prevent spread of viruses and other infections.

Stay informed. Follow advice given by your healthcare provider, your national and local public health authority or your employer on how to protect yourself and others from COVID-19.

  • Why? National and local authorities will have the most up to date information on whether COVID-19 is spreading in your area. They are best placed to advise on what people in your area should be doing to protect themselves.

Information from the WHO about the coronavirus Covid-19 is available here.

 

Devil’s Tower: Return to a Fault Based Divorce

Is divorce too easy? Some South Dakota lawmakers are trying, but recently failed in their effort, to pass a bill that would have eliminated no fault divorce, removed a common reason used by married couples seeking divorce, and make the whole process more difficult.

Devils Tower Divorce

The Mt. Rushmore of Divorce Law

Under South Dakota law, a divorce may be granted for any of the following grounds: adultery, extreme cruelty (including bodily injury or grievous mental suffering), willful desertion, willful neglect, habitual intemperance, conviction of a felony, chronic mental illness or irreconcilable differences.

South Dakota, unlike Florida, recognizes both “fault” and “no fault” divorces. A “no fault” divorce cites irreconcilable differences as the reason for the divorce.

Irreconcilable differences are defined as those determined by the court to be substantial enough reasons for not continuing the marriage and make it appear as though the marriage should be dissolved.

According to South Dakota sources, a Rapid City legislator introduced a bill to remove the grounds of “irreconcilable differences” as a legal reason for couples to get divorced.

In divorce court, irreconcilable differences are the most common in South Dakota. Irreconcilable differences are a way to have a no-fault divorce, and allows a couple to decide that the marriage isn’t working and ask a judge to dissolve the union for no other fault.

But the politician behind the bill said that making divorce harder to get was the point of his legislation: Divorce has gotten to be too easy, and married couples are giving up on their matrimonial contracts.

The result, he said, is that people are throwing each other away, leading to poverty and depression among children whose parents divorce. “How is that helpful to society?”

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 infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Avoiding the Badlands

Opponents of the South Dakota bill to make divorce harder included Robert Riter, representing the South Dakota Bar Association, and Steve Siegel, representing the South Dakota Trial Lawyers Association.

Siegel noted that removing irreconcilable differences would require couples to cite one of the six remaining reasons. Those include adultery, extreme cruelty and habitual intemperance. Those reasons would require couples to go to trial, forcing costly and contentious showdowns.

It’s going to force parties to air their dirty laundry in a public forum.

Riter said that the system of divorce law that existed when he started practicing law was worse before irreconcilable differences was added by the Legislature in the 1980s. He noted that other states have similar provisions.

“We’re not an island on this at all,” Riter said. “Society has decided that there ought to be opportunities for parties to agree that the marriage cannot be preserved.”

Tony Monnens, a farmer from Hazel, testified that his wife of 43 years filed for divorce last year after a head injury caused memory loss, which resulted in him losing a job. He said that divorce is too easy.

This thing is the absolute destruction of the family unit as we know it today.

South Dakota’s Argus Leader article is here.

 

A Bitter Yemen: International Child Custody and the UCCJEA

A new international child custody case under New York’s UCCJEA law involves a couple from Yemen who lived in New York with the children. They traveled back to Yemen to celebrate Ramadan and Eid. The mom was expecting to return with the children, but the father decided to stay in Yemen, marry another woman, and divorce the mother.

Yemen Child Custody

When Life Gives You Yemen . . .

Upon learning the Father married another woman, the mother traveled back to the United States to be with her parents in New York, but left the Children behind in Yemen. The children have resided in Yemen with the Father since 2016.

This year, the Mother filed a child custody case in New York to order the Father to bring the children to New York; surrender his and the children’s passport and other travel documents, and force the Father to remain in New York.

Why New York? The Mother claimed the Father worked at a deli in New York, frequently travels for business to New York, and has other business ventures in there.

The Mother’s choice to file under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and not the Hague Convention on the Civil Aspects of International Child Abduction is easy to explain: Yemen is not a signatory to the Hague Convention, so the Hague Convention doesn’t apply.

Florida International Child Custody

I’ve written and spoken about international child custody cases under the Hague Convention and the UCCJEA before. The Hague Convention seeks to deter abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

The removal or the retention of a child is to be considered wrongful where:

  1. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
  2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, many countries, like Yemen, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when the country holding the abducted children is not a signatory country, the UCCJEA may provide relief.

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York. The ultimate determining factor in a New York case then, is what is the “home state” of the child.

Alternatively, New York could possibly hear the case if New York was the Home State of the child within 6-months before filing or the children are in New York and the court has emergency jurisdiction.

The home state seems to be one of the many obstacles for the Yemeni mother in New York.

. . . you may be stuck with Yemen-ade

The Mother – who appeared in court fully-covered in a burqa – also filed domestic violence petition against the Father seeking an order of protection on behalf of herself and the children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father.

The Father moved to dismiss all of the Mother’s petitions on the basis that the New York court lacks subject matter jurisdiction under UCCJEA, because the children have undisputedly resided with him in Yemen for the last three years with the Mother’s consent.

They also were divorced in Yemen before the case was filed in New York. The Yemen divorce specifically refers to a settlement between the parties in which the Father got custody of the two older Children, the Mother got custody of the children.

In opposition to the Father’s Motions, the Mother argued that she and the children only stayed in Yemen out of fear of the Father’s retaliation and political connections with the Houthi government.

She also argued Yemen can’t be considered the children’s home state because Yemen is war-torn country, lawless and because of the human rights abuses in there.

The appellate court had to grant the Father’s motion to dismiss because Yemen is definitely not the children’s home state. It was undisputed that the children had been living in Yemen with Father for several years before she filed her UCCJEA case in New York.

Even if the court conceded that Yemen is in a civil war, and that Yemeni laws regarding domestic violence, child custody, and basic human rights do not conform to American law, home state jurisdiction is paramount under the UCCJEA.

The New York appellate decision is here.

 

Will the Philippines Legalize Divorce

We sometimes take it for granted that a toxic marriage, which can destroy your life and the lives of your children, can be amicably resolved here. That’s not true everywhere. There’s a new bill to legalize divorce in the Philippines — the only remaining state aside from Vatican City that has no divorce law.

Legalize Divorce

‘Thrilla’ in Manila

Many in the Philippines have been advocating for the passage of a divorce bill.

“Divorce is not a monster that will destroy marriages and wreck marital relationships. Let us be clear about this — the monsters that lead to the demise of a marriage are infidelity, abuse, financial problems, lack of intimacy and communication, and inequality.”

Despite this development, religious groups, pro-family advocates who were present in the hearing, and even fellow lawmakers expressed their disapproval of the measure.

Florida Divorce

I’ve written about attempts to criminalize divorce before. Divorce, of course, is legal in the United States. However, traditionally it was made difficult by having to prove “fault.” This required spouses to prove either adultery; abandonment for a certain length of time; prison confinement; a spouse is physically unable to have sexual intercourse; or that the other spouse has inflicted emotional or physical pain (cruelty).

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.”

After divorce became legal, the concept of proving fault gave way to no-fault laws 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. “Reduced” the need, not eliminated the need.

Dragged into the 21st Century

A Philippine church official has expressed surprise over the speedy acceptance of the bill in that would legalize divorce.

“I was surprised at the speed at which the committee accepted the bill. I was expecting exhaustive deliberations and discussions would be conducted on the measure.”

Bishop Arturo Bastes of Sorsogon described the acceptance of the proposed measure as alarming. Earlier, the Catholic Council of the Laity of the Philippines issued a statement expressing opposition to the divorce bill.

The group said the Catechism of the Catholic Church clearly provides that divorce is “immoral” because it introduces disorder into the family and into society.

The CNN article is here.

 

Did Your Promotion Cause Your Divorce?

Does a promotion to a top job increase your likelihood of divorce? Two Swedish professors researched that issue, and found that a promotion to a top job doubled the probability of divorce for women . . . but not so much for men.

Sweden Divorce

Divorce Stockholm Syndrome

The professors also found that there was a widening gender gap in divorce rates for men and women after being promoted to CEO. Their analysis of possible mechanisms may show that divorces are concentrated in more gender-traditional couples, while women in more gender-equal couples are unaffected.

No one doubts that the economic and social roles of men and women have been converging in recent decades. Women in Western democracies have largely caught up with men in terms of labor force participation, tertiary education, and career expectations.

But what lags behind is women’s realization of those career goals. In 2015, men accounted for 95% of CEOs in Forbes 500 firms and more than 75% of the world’s parliamentarians.

The professors argued that one potential reason for women’s slower career progressions is that a job promotion for a woman causes more stress and strain on the household than the job promotion of a man.

They also offer the first empirical analysis of how the promotion to a top job in the economy affects the marriage durability of men and women. They found that a promotion to a top job leads to an increased rate of divorce among women, but not among men.

Florida Divorce

I have written about some of the various reasons why people divorce in the past: snoring, calling the bride “fat” at the wedding and others. In Florida, a divorce is called a “dissolution of marriage.” Florida 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. Generally, you have to prove that your marriage exists, one of the spouse’s has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken.

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

Every case is different, so results can differ from case to case. Outcomes in a divorce include, among other things, dividing the assets and debts, an award of alimony, determining the amount of child support, and parental responsibility and time-sharing schedules. There is no “one-size-fits-all” or “standard” dissolution of marriage in Florida.

Divorce can be highly emotional for couples and their children. But was your promotion to CEO the cause of all of this trauma?

Relationship Fjords

The professors’ analysis was carried out using Swedish register data and targets promotions to three types of top jobs. Two of the jobs are top public sector jobs, and the third type was in the private sector: CEOs of companies with more than 100 employees.

The analysis linked the divorce impact of the promotion to couples for which the woman’s promotion to a top job conflicted with gender-traditional behavior in the household.

Divorces are more likely to occur when the wife is younger than her husband by a greater margin, and where she took a larger share of the couple’s total parental leave.

Another important finding was a large gender difference in the correlation between the probability of a divorce and experiencing a promotion that shifts earnings from dual-earner into the woman becoming the dominant earner.

Among women whose promotions make them the dominant earner, i.e. making more than 60% of household income, more than 15% divorced within three years after the promotion. In the corresponding group for men, only 3% had divorced.

Some of the problems with the study included the fact that there is no register for which spouse initiated the divorce, there is no good annual measure of the division of household work, and Sweden does not measure cohabitation accurately.

So, if job promotion causes divorce among women, is that a good thing or a bad thing? The professors argue that the implications for society are largely negative because human talent for top positions is evenly distributed among men and women and the vast majority of men and women put “family” at the top of their list of priorities for life satisfaction.

An abstract is available here.