Tag: international jurisdiction

Abu Dhabi’s Modernized Divorce Laws

News from the capital of the United Arab Emirates, Abu Dhabi, is that the country has modernized its divorce laws. The county has issued new rules governing divorce, inheritance, and child custody for non-Muslims living in the emirate.

Abu Dhabi Divorce

Bridging the Divorce Gulf

Abu Dhabi is one of seven sheikhdoms that make up the UAE and the new law affects only this sheikhdom. While the oil-rich emirate is the capital of the nation, Abu Dhabi’s population is dwarfed by that of neighboring Dubai.

The report on Sunday said Abu Dhabi would create a new court to handle these cases, which will be held in Arabic and English to be better understood by the emirate’s vast foreign worker population.

This latest development comes after news that more than half of all Emirati couples in Abu Dhabi face divorce within the first four years of marriage, according to research conducted by the Department of Community Development.

The emirate previously launched an initiative to raise awareness about the importance of seeking professional help at the first signs of conflict, with the aims of reducing divorce rates in the early stages of marriage.

Change in child custody will allow parents to share joint custody of their children, WAM reported. The law – which consists of 20 articles – also introduces the idea of civil marriage, allows wills to be drawn up granting inheritance to whomever a person chooses, and deals with paternity issues.

It is set to provide “a flexible and advanced judicial mechanism for the determination of personal status disputes for non-Muslims”, the Abu Dhabi Judicial Department said, according to The National newspaper.

Florida Religion and Divorce

I’ve written about the intersection of religion and divorce before – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

One of the earliest Florida cases in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the mother provided that she severs all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the mother’s free exercise of her religious beliefs and practices.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

Modernizing an Insular Peninsula

The new law comes after authorities last year said they would overhaul the country’s Islamic personal laws, allowing unmarried couples to cohabitate, loosening alcohol restrictions and criminalizing so-called “honour killings” – a widely criticized tribal custom in which a male relative may evade prosecution for assaulting a woman he claims has dishonored her family.

At the time, the government said the legal reforms were part of efforts to improve legislation and the investment climate in the country, as well as to consolidate “tolerance principles”.

Abu Dhabi also ended its alcohol license system in September 2020. Previously, individuals needed a liquor license to buy, transport or have alcohol in their homes. The rule would apparently allow Muslims who have been barred from obtaining licenses to drink alcoholic beverages freely.

The UAE as a whole in September this year announced yet another plan to stimulate its economy and liberalize stringent residency rules for foreigners. In January, the UAE announced it was opening a path to citizenship for select foreign nationals, who make up nearly 80 percent of the population.

The UAE last year introduced a number of legal changes at the federal level, including decriminalizing premarital sexual relations and alcohol consumption. These reforms, alongside measures such as introducing longer-term visas, have been seen as a way for the Gulf state to make itself more attractive for foreign investment, tourism and long-term residency.

The broadening of personal freedoms reflects the changing profile of a country that has sought to bill itself as a skyscraper-studded destination for Western tourists, fortune-seekers and businesses. The changes also reflect the efforts of the emirates’ rulers to keep pace with a rapidly changing society at home.

The Reuters article is here.

 

Enforcing Interstate Child Custody Orders

An important aspect of child custody involves enforcing interstate orders in different states because parents move around the country all the time. If you have a child custody order from say, North Carolina, and you want to enforce or modify it in another state, you must register it the right way.

Interstate Custody

Carolina in My Mind

One interstate case showed the problems that can result if the rules are not followed. A father with a daughter was divorced in Florida in 2016. The parties lived for a while in North Carolina too, and the Father had obtained a North Carolina custody order. When they divorced in Florida, they domesticated their 2014 North Carolina order in Florida. The North Carolina order awarded full legal custody of the daughter to the father, and the mother was given visitation.

Fast forward to 2020, and the mother filed her own ex parte emergency petition in Florida to domesticate a new North Carolina custody order in Florida. This new order was completely different, and awarded the mother emergency custody of the daughter.

However, even though the petition was ex parte and titled an “emergency”, the mother’s petition did not allege any kind of emergency situation. But mistakes happen. That same day, a Florida family judge entered an order granting the mother’s petition and domesticating the January 2020 North Carolina custody order in Florida.

The new Florida order did not list any emergency situation and was never served on the father, so the father didn’t have any notice of it. To his shock, the police showed up one night and the child was taken from him. Afterwards, the father filed a motion to vacate and set aside the Florida ex parte order, but the family judge in Florida denied it.

The Father appealed.

Florida Interstate Child Custody

I’ve written and spoken about interstate child custody issues before. The typical interstate problems occur in cases in which two parents reside in one state, like North Carolina for instance, then one or more of the parents and the children move across state lines to Florida.

Interstate problems can include enforcing foreign custody orders, enforcing or modifying family support orders (like alimony and child support), or enforcing foreign money judgments.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had previously adopted different approaches to issues related to interstate custody, interstate alimony, and child support. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) and Uniform Interstate Family Support Act (the UIFSA), which Florida and almost all U.S. states passed into law.

A major problem arises when a foreign or out of state final judgment is not properly registered or domesticated in Florida. When that happens, a serious due process violation can occur, because people are entitled to notice.

Registration is not too complicated. Briefly, registration involves sending to the new state a letter requesting registration along with two copies of the order sought to be registered, a statement that the order has not been modified, the name and address of the person seeking registration, and any parent who has been awarded custody or visitation in the child custody determination sought to be registered.

Hit Me from Behind

On appeal, the Father complained that the family judge in Florida didn’t properly follow the registration requirements in the UCCJEA. The Act required the Mother to provide “the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.”

The UCCJEA also requires the Florida family court to actually “[s]erve notice upon the persons named … and provide them with an opportunity to contest the registration in accordance with this section.”

On appeal, it was clear that the Florida court didn’t comply with the registration requirements of the UCCJEA. The Mother had failed to file the North Carolina final judgment or the accompanying documents as required.

In addition, the family court never provided the father with notice of the petition to domesticate the North Carolina order, thereby depriving the father of an opportunity to contest the validity of the North Carolina order – which is his right under the UCCJEA.

Because the Florida court failed to comply with the registration requirements of the UCCJEA and deprived the father with an opportunity to be heard, the resulting Florida order was declared void.

The case is here.

 

Recognizing International Divorce Decrees

Turkey’s Court of Cassation is not recognizing the international divorce decrees of other countries if they are against public policy. Turkey’s high court recently threw out a lower court verdict that a man’s divorce from his wife in Saudi Arabia is valid in Turkey. The “triple talaq”, or “unilateral” divorce contradicted with “Turkish public order as it ignored the woman’s will.”

Coffee Grounds for Divorce

A Marmara Marriage

The Supreme Court of Appeals of Turkey, which was founded in 1868, is the last instance for reviewing verdicts given by courts of criminal and civil justice. The Supreme Court recently announced that it is rejecting a verdict related to a 2016 divorce case approved by a Family Court in Jeddah, Saudi Arabia. The sides were a Turkish citizen of Afghan origin and his wife, an Afghan citizen.

When the man, unidentified in court documents made public, filed a lawsuit for recognition of the divorce, a local court approved it. However, the wife took the case to a higher court, seeking to annul the divorce. The higher court of appeals rejected her appeal but the Court of Cassation, the ultimate authority in such cases, sided with the woman.

The court reasoned that although divorce cases settled abroad can be recognized in Turkey, the court should examine whether the divorce verdicts comply with “basic values of Turkish law, Turkish morals, basic rights and freedoms and shared values of developed communities and level of civilization.”

The top court said women and men have equal rights under the Turkish constitution. “The recognized verdict of (the Saudi) court is based on a document on talaq (unilateral divorce) and the wife is deemed divorced after a period of three months when she is not reunited with her husband. As a matter of fact, there is no divorce verdict in this case.

Such a verdict is based on a one-sided declaration of the husband and his claim of failure to reunion within three months ignores the woman’s free will and hence, openly contradicts with Turkish public order,” the court said.

Florida Religion and Divorce

I’ve written about the triple talaq and other aspects of religious divorces before. How does religion impact Florida divorce? First, there can be issues relating to parental responsibility Religion, religious beliefs, and religious practices are not specific statutory factors in determining parental responsibility. Nor are religion and religious practices areas in which a parent may be granted ultimate responsibility. Instead, the weight religion plays in custody disputes incubated over time in various cases.

For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration.

In Florida, a determination of the best interests of the child is made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family.

There is also international divorce jurisdiction angle when a divorce is based on religion. Florida, under the UCCJEA provides a general legal framework for recognition and enforcement of foreign custody and visitation decrees originating from foreign jurisdictions.

A foreign country is treated as a “state” for purposes of applying the UCCJEA. The UCCJEA, like the Hague Convention, can also be used to seek the return of a child from Florida to a foreign country.

But there are limits, as Turkey’s high court recently found. For example, when the foreign law itself fails to recognize a fundamental public policy tenet, such as considering the best interests of the child, the courts of Florida may decline to recognize the judgment. However, whether the foreign court has properly applied its law is a question for the foreign jurisdiction.

Triple Talaq

Saudi Arabia adheres to an interpretation of Islamic law though there is no written law. Triple Talaq allows Muslim men to leave their wives instantaneously by saying “talaq,” meaning divorce three times. In Saudi Arabia Men are granted the right to talaq and, until recently, the courts were not required to immediately inform women that their husbands unilaterally divorced them.

Unilateral divorce is exclusive to men while women are entitled to khul or khal, a type of divorce where the husband should agree to pay back the dowry of the wife seeking divorce.

Men also remain the woman’s “guardian” throughout divorce proceedings in the country where most things women seek to do require the company of a male guardian, from travel to marriage.

Turkey’s Daily Sabah article is here.

New Article “Like Home: The New Definition of Habitual Residence”

My new article “Like Home: The New Definition of Habitual Residence”, discusses habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 and the federal International Child Abduction Remedies Act. The article is now available in the Florida Bar Journal.

New Article

American courts have had different standards for determining a child’s “habitual residence” under the Hague Convention. The controversy? How to establish a child’s habitual residence and what appellate standard of review should be applied after making that determination. The U.S. Supreme Court has now squarely addressed the conflict about habitual residence.

This new article examines the Hague Convention on international child abductions, ICARA, the U.S. Supreme Court decision, and . . . the Wizard of Oz.

The article is available here.

Enforcing Your Multi-Million Dollar Property Division Award

Enforcing your property division award is world news when it arises in the divorce of Russian billionaire Farkhad Akhmedov and Tatiana Akhmedova taking place in a London courtroom. In a twist, Ms. Akhmedova is now suing her son for nearly $100 million in cash and assets to collect.

Property Division

From Russia with Love

Suing her son is a part of Ms. Akhmedova’s ongoing efforts to claim a portion of a $615 million divorce judgment, believed to be the largest in Britain’s history after a trial in 2016.

Her ex-husband has refused to hand over a single ruble and has kept his money, and himself, far away from Britain and the reach of its courts.

A new approach, enforce the award against her son, Temur, the older of the couple’s two sons, who is a U.K. resident who has plenty to seize.

His father gave his son a three-bedroom apartment next to Hyde Park worth about $40 million, when he was still in college, he is also the “registered keeper” of a $460,000 Rolls-Royce S.U.V., and is being sued under a theory that he is helping hide millions into trusts and tax havens around the world to frustrate his mother’s equitable distribution.

Florida Property Division

I’ve written about this case and the subject of property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties.

In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal. However, if there is a justification for an unequal distribution, as in the Akhmedov divorce, the court has the authority.

However, the court must base an unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

It has been a long-standing rule in Florida that an unequal distribution of marital assets may be justified to compensate for one spouse’s “intentional dissipation, waste, depletion or destruction of marital assets after filing of the petition….”

Moscow on Thames

Since the collapse of the Soviet Union, London has been the place where rich and safety-minded Russians have parked their families, and at least some of their money.

The sons and daughters of these billionaires are now grown up, and Temur is part of a generation known for driving flashy cars and running up big tabs at posh restaurants in Knightsbridge and Mayfair.

In addition to mansions, a private jet, helicopters and masterpieces by artists like Rothko and Warhol, he bought a $500 million yacht, the Luna, from his fellow oligarch Roman Abramovich.

“It is 380 feet of floating luxury, with nine decks, space for 18 guests, a crew of 50 and — just in case — a missile detection system and bombproof doors.”

Allegations of infidelity made by both husband and wife led to divorce, but Mr. Akhmedov refused to even send a lawyer to the 2016 proceedings, arguing that the couple was already divorced. A court in Moscow dissolved the marriage in 2000, he said.

Temur is described in court as his father’s “lieutenant,” but he says he was more of a secretary than a second in command. When he lived and traveled with his father, he typed dictated messages, which he sent to Mr. Akhmedov’s team of advisers, bankers and lawyers. These were often instructions, adamant and profane, on how to evade Ms. Akhmedova and her financial backers.

One of Temur’s texts included a message about a plan to transfer about $100 million worth of art in Mr. Akhmedov’s collection from a storage facility in Liechtenstein to the Luna. The point of moving the works, Temur testified, was to make them readily viewable by his father.

“I don’t want to sound boasting or anything,” Temur replied, “but on a $500 million boat, $100 million paintings isn’t really something crazy. It’s nice to look at the paintings.”

Ms. Akhmedova testified first, and her tone reflected more sorrow than enmity. She’d helped her son decorate that deluxe apartment given to him by his father. But at some point she started to believe that Temur was part of an effort to thwart her pursuit of her divorce settlement.

Temur’s own time on the stand was far more tumultuous, once he actually showed up. On opening day, Dec. 2, he was in Moscow and said in open court, via video call, that he’d been advised that his mother’s lawyers might try to win a restraining order that could strip him of his passport.

Temur denounced his mother as opportunistic and greedy. She filed for divorce, he said, right after her now ex-husband sold Northgas. He said that she’d declined an out-of-court settlement of $100 million offered by his father, a sum the younger Mr. Akhmedov considered exceptionally generous given his mother’s history of infidelity.

The New York Times article is here.

 

90-Day Fiancé and International Child Custody

A 90 Day Fiancé star, Jihoon Lee, may soon become involved in an international child custody case after his estranged wife moved from South Korea to Utah with their son and a child from another relationship.

International Child Custody

Seoul to Soul

According to reports, Jihoon hasn’t reached out to estranged wife, Deavan Clegg in months amid their divorce, an insider exclusively reveals to In Touch.

“Things are very messy with the divorce right now. The papers have been filed, but Jihoon is currently on the run from trying to be served them,” the source continues. “Deavan’s lawyer is taking every step possible to make sure he is served and the divorce can be finalized soon so she can officially move on from their relationship.”

Jihoon is not taking his son’s removal to the United States well:

Being alone is so painful. I miss [my son] so much and I want to hug him. I felt broken without [my son] after not being together for a year. But now another man is pretending to be [my son’s] father and my wife’s husband. On paper, Deavan and I are still married.

While there has not been a report of a court action to return any child to South Korea, what are the remedies available if he wanted to do something about returning his child to South Korea?

Florida and International Child Abduction

I’ve written about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting 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:

  • 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
  • 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, unlike South Korea and the United States, are either not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country 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 Utah. The ultimate determining factor in a Utah case then, is what is the “home state” of the child.

90-Day Divorce?

Jihoon, 31, confirmed the separation from Deavan, 24, in August while their story line on season 2 of 90 Day Fiancé: The Other Way was still playing out on TV. Deavan then confirmed she moved back to America from the former couple’s marital home in South Korea with their son and her daughter from a previous relationship.

Since Deavan left Jihoon in South Korea, the couple have not been in communication. He reportedly blocked Deavan for five months now so it’s been hard to get a hold of him or even reached out to their son since he’s been back in America, so it’s nice to see Topher step in as a father figure.

Jihoon previously spoke out against Deavan’s claims, defending himself and explaining the reason why he blocked the mother of his son on all platforms.

“The reality is terrible. I know all this s–t. Like he’s going to have a new father. Do you know how it feels? My heart is always breaking. It happened without my knowledge,” Jihoon wrote in a statement via Instagram on September 3, revealing Deavan had not yet filed for divorce at the time. “And I don’t want to get involved in their lives. So I blocked them all. So extreme. But that’s how I organize my mind-set. I will never forget my son and love him forever.”

The In Touch 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.

 

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.

 

Israeli Prenuptial Agreements are Kosher

Whether Israeli prenuptial agreements are kosher is a big question in the holy land as Israel’s version of Real Housewives, Nicol Raidman, has filed for divorce from her former oligarch and billionaire industrialist husband Michael Cherney.

Israeli Prenuptial Agreement

Land of Milk and Honey

Nicol Raidman is a businesswoman, socialite and former reality TV celebrity in Israel, who recently announced she is divorcing her billionaire husband in what is shaping up to be the most expensive divorce lawsuit in Israeli history, Channel 12 news reported Monday.

After 11 years of marriage, Raidman and industrialist Michael Cherney are dissolving their union. But Raidman is alleging that Cherney has failed to honor his prenup with her, which promised her $25 million (NIS 86 million) in any settlement.

She is now planning to take Cherney to court and demanding hundreds of millions of shekels under their prenuptial agreement.

Prenuptial agreements are generally enforceable in Israel, if authorized before a notary, a marriage registrar, or by the family court or the religious court. In fact, former Justice Minister, Ayelet Shaked, called on couples getting married to sign prenuptial agreements to ensure that husbands will not withhold a get, or Jewish writ of divorce, from their wives.

In Israel, where all divorces are subject to religious law, the norm has left thousands of women in legal limbo due to husbands who refuse to grant divorces. The phenomenon has received a lot of attention in recent years as rabbis try to battle husbands who are “get-refusers.”

Some Jewish groups mandate its members require couples to sign a prenuptial agreement to avoid such scenarios. The agreement, commonly referred to as a “halachic prenup,” generally penalizes the husband financially for refusing to give the get.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for celebrity sports figures, and they are about much more than just resolving uncertainty in a marriage.

Any couple who brings any personal or business assets to the union can benefit from one. They are also important to have in place before a couple starts investing in businesses, properties and other investments. But prenups are frequently challenged in court.

Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

For example, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Real Housewives of the Holy Land

Cherney’s lawyer told the network that any and all claims would be made to the court rather than the media. Raidman is known to be a close friend of Prime Minister Benjamin Netanyahu’s wife Sara.

In 2011-2013 Raidman took part in the Channel 10 reality television show “Me’usharot” based on the US show “The Real Housewives.” She has launched her own luxury clothing and perfume brands.

Cherney, an oligarch who made his fortune in the former Soviet Union, is a close confidant of Yisrael Beyteinu party leader Avigdor Liberman. The couple have two children.

The Times of Israel article is here.

 

Texas Hold ‘Em: Hague Convention and More Good News on the Coronavirus

The national emergency has not stopped international child custody and Hague child abduction cases, but definitely made them more challenging. I recently came back from trial in a Texas federal court helping a father return his daughter to Mexico, and there is good news on the coronavirus front.

Hague Child Abduction Mexico

Oh, Mexico

My client and the Mother are dual citizens of Mexico and Cuba, and met in Cancun, Mexico. They are both professional musicians. Together they have a daughter who is currently five years old.

During the early years of their relationship, they all lived together in an apartment, and traveled together. When they broke up, the Father moved to an apartment nearby, and he and his daughter would timeshare, he paid for her piano lessons, her private school tuition, and even the Mother’s rent.

On July 12, 2019, at approximately 11:30 a.m., the Mother called the Father that she had taken their daughter to an undisclosed location.

He suspected she took her to Florida, and even had a possible address for the Mother here. Unbeknownst to him, the Mother actually took their daughter to a small, west Texas town.

The same day, the Father went to the Cancun Police and filed a missing child report. A few days later, he filed a Hague application for the child’s return. He hired me to file a case in Miami federal court, which was transferred to a federal court in Texas when the child was discovered there.

Habitual Residence and the Hague Convention

While the abduction was going on, and a few days before our Texas trial, the U.S. Supreme Court decided a major Hague Child abduction case involving the habitual residence of a child.

I have written about the recent U.S. Supreme Court case before. In Monasky v. Taglieri, the U.S. Supreme Court held that the determination of a child’s “habitual residence” for purposes of the Hague Convention depends on a totality-of-the-circumstances analysis and that a district court’s habitual-residence determination should be reviewed for clear error.

The Hague Convention on the Civil Aspects of International Child Abduction provides that a child wrongfully removed from his or her country of “habitual residence” must be returned to that country, which then has primary jurisdiction over any resulting custody proceedings.

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

In Monasky, an American brought her infant daughter to Ohio from Italy after her Italian husband, Domenico Taglieri, became physically abusive. Taglieri petitioned for his daughter’s return under the Hague Convention, arguing that Italy was the daughter’s “habitual residence.”

The federal court agreed, and found the parents had exhibited a “shared intention” to raise their daughter in Italy. The Sixth Circuit Court of Appeals affirmed with dissents. Monasky then petitioned the U.S. Supreme Court, arguing that establishment of a child’s habitual residence requires actual agreement between the parents.

The Supreme Court noted that the Hague Convention does not define “habitual residence.” Relying on the treaty and decisions from the countries who are signatories, the high court concluded habitual residence it is a “fact-driven inquiry into the particular circumstances of the case.”

The Supreme Court also noted that Monasky’s ‘actual agreement’ requirement would leave many children without a habitual residence, and outside the Convention’s domain and the Hague Convention always allows a court concerned about domestic violence to not order a child’s return if “there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Texas Hold Em

Texas Hold ‘Em?

One of the issues which had to be resolved in our trial was the habitual residence of the child, and whether the parents shared an intent to abandon it. During our trial in Texas, the U.S. District Court found the parents did not share an intent to change the child’s habitual residence, among other defenses, and ordered the child returned to the Father and to her home in Mexico.

Relying on the U.S. Supreme Court’s, brand new decision, the federal court found the daughter’s habitual residence is Mexico, and that she was wrongfully removed to the United States in violation of the Hague Convention.

At the same time the Coronavirus was raging across the world, the U.S. government just ordered the border with Canada closed, courts were closing around the country, and there was a real concern we wouldn’t be able to return to Mexico.

But we faced another, potentially bigger problem. How do you enforce a federal court order to return a child to Mexico when the entire world is shutting down? The alternative to us moving immediately to secure the child’s return to Mexico would be to ‘hold em’ in Texas. Acting quickly, the father and daughter made it safely home to the habitual residence of Mexico.

Good News and the Coronavirus

We are under quarantine, and we can expect that to continue in the near future. But that doesn’t mean there isn’t some good news to report. For instance:

  • Distilleries across the U.S. are making their own alcohol-based hand sanitizers and giving it away for free.
  • Restaurants, sports, and businesses are stepping up to combat the community effects of the novel coronavirus. The sports world is raising money for stadium employees, and Uber Eats is divvying out free delivery to help independent restaurants to name a few.

Air and Water pollution has plummeted in cities with high numbers of quarantined individuals. In fact, Venice’s waters are running clear for the first time and people are seeing fish.

  • China is re-opening parks and athletic centers, and loosening travel restrictions as the novel coronavirus comes under control in China, and parks and tourist attractions have reopened across the country.
  • Neighbors across the country are stepping up to make grocery runs for those who can’t leave their homes.

The U.S. Supreme Court decision is here.