Tag: international prenuptial agreement

Marital Settlement Agreements and Divorce Agreements

Posted by Ron Kauffman on

Marital settlement agreements are a matter of course in a divorce ending in settlement. However, a divorce agreement is not the same thing as a marital settlement agreement. A court in China has to decide whether an agreement to divorce is valid after a mistress paid a wife to divorce her husband, but the wife kept both the money and the husband.

Divorce Agreements

鱼与熊掌，不可兼得 (You can’t eat the fish and the bear’s claw too)

In December 2013, a man named Han married his wife, Yang, with whom he had two daughters whose ages remain undisclosed. Han started an affair with a colleague, a woman named Shi. They also entered into a business partnership and welcomed a son together in November 2022.

In an attempt to “replace” Han’s wife, Shi confronted Yan with a proposal. Shi offered to pay the Wife 2 million yuan ($280,000) if the Wife agreed to divorce her husband Han. As a down payment, and to initiate the agreement, Shi transferred 1.2 million yuan to the Wife at the end of 2022.

But incredibly, more than a year later, the Wife still had not consented to a divorce. Frustrated, the mistress demanded her money back and then filed a lawsuit to recover the 1.2 million yuan after the wife refused to return it.

Over a year after receiving the money, Yang still had not agreed to a divorce, prompting the mistress to take her to court. In the lawsuit, Shi claimed there was a “verbal agreement” that the payment was contingent upon Yang divorcing Han and requested the court to order Yang to return the money along with overdue payment interest for breach of contract.

Florida Marital Settlement Agreements

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

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities, alimony, child support, and any other items to which the parties have agreed.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. The enforceability of contracts in Florida is a matter of importance in Florida public policy.

A marital settlement agreement is recognized as conducive to marital tranquility and public policy. But contracts intended to promote a divorce will be declared illegal as contrary to public policy. The reason for the rule lies in the nature of the interest of the State. The state’s interest in the preservation of marriage is the basis for the rule that a divorce cannot be awarded by consent of the parties.

胸有成竹 (Be confident)

Back in China, the Shishi People’s Court in China ruled against Shi’s request, stating that the payment violated societal moral standards and public order as it was intended to disrupt a lawful marriage. Additionally, it was determined that Han and Yang had already signed a divorce agreement and were in a “cooling-off period”, which meant that the payment did not meet the legal conditions for a refund.

This “cooling-off” period, imposed by the Chinese government in 2021, requires couples to wait 30 days after submitting a divorce application before the separation is finalized. It has also been revealed that during his marriage, Han spent over 6 million yuan ($825,000) on Shi without his wife’s knowledge.

The court denied Shi’s refund petition, stating the payment violated societal morals and public order by aiming to disrupt a lawful marriage:

“Any significant assets acquired by a married man during the affair, without his wife’s consent, are considered jointly owned by the couple. The wife has the legal right to demand the return of her share from the third party.”

It remains unclear whether Han might face legal repercussions for potentially committing bigamy by living with and having children with someone else while still legally married. The case has sparked lively discussion on Chinese social media, with many describing the outcome as “justice served”.

The South China Morning Post article is here.

Hague Convention and the Mature Child Exception

Posted by Ron Kauffman on

A  common international custody issue under the Hague Convention involves a wrongfully removed child when there is an exception to being returned home. One such exception is the mature child exception. How mature does a child have to be in order to avoid being returned to the child’s habitual residence? A recent Florida case analyzes that question.

Hague Mature Child 2

Oh Mexico

The Father and Mother are the parents of a child born in Mexico in 2013. They lived together in Mexico until approximately one year after the child was born. After their separation, a Mexican court granted custodial rights and child support obligations. The custody order also contained a clause which prohibited Mother from removing minor child from Mexico without Father’s consent.

Then in December 2022, the Mother abducted the child to the United States. After learning his child was abducted, the Father filed a return petition under the Hague Convention in Florida.

The Mother opposed returning the child by arguing that the child was “sufficiently mature and intelligent to object to being repatriated to Mexico.” The trial court conducted an in-camera interview with the child who was then ten years old and had been exclusively with Mother in Florida for over a year. The child testified she lived in an apartment with Mother and her little brother and was attending school and taking English classes. She enjoyed playing at parks and wanted to join a football team.

She also admitted seeing Mother crying and being told by Mother that Father wanted minor child to go back to Mexico and that “I’m afraid that you might be sending me back to Mexico and that I won’t be able to see my mom.” The Mother testified she not only told minor child about the proceedings, but also told her she feared minor child “would be taken back to Mexico and no longer be with me.”

The trial judge denied the Hague return petition after applying the mature child exception. The father appealed.

Hague Convention

I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention’s mission is basic: to return children to their country of habitual residence.

In the recent Mexican case, the father had to prove by a preponderance of the evidence that the child was a habitual resident of Mexico immediately before her abduction, the removal was in breach of his custody rights under Mexican law, and he was actually exercising rights of custody, or would have been so exercised but for the removal. If so, the child must be promptly returned to Mexico unless there is an exception to return.

The key inquiry in this recent case was the mature child exception. A court may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is ap­propriate to take account of its views. A court may find that the child’s objection in and of itself is conclusive—it does not have to be coupled with another defense to be sustained.

Talking ’bout Mexico

On appeal, the district court noted that the child was exceptionally bright and articulate, she calmly and clearly conveyed her reluctance to return to Mexico, and conveyed significant family ties, teachers, and friends in Florida.

But in determining whether the mature child exception applies, courts primarily consider whether the child is sufficiently mature, has a particularized objection to being returned and whether the objection is the product of undue influence.

Here, the ten-year-old child’s preference to remain with Mother in Florida was based primarily on: friends, a desire to attend high school, and an upcoming school trip to Orlando. The appellate court found these to be generic and near-sighted responses and demonstrated the child’s inability to maturely comprehend or appreciate the long-term impact of her decisions.

This was especially true considering the child provided no significant testimony as to her life in Mexico or how life in Mexico differed from life in the United States. Also, her fear of return was based solely on not wanting to be separated from her Mother and return to Mexico does not necessarily mean she will be separated from Mother as Mother is free to return with her to Mexico.

Importantly, only a child’s objection is sufficient to trump the Convention’s strong presumption in favor of return, not the child’s mere preference. Here, the child just didn’t want to be separated from her mom. The only fear of returning to Mexico was being separated from Mother and not an unwillingness to live in Mexico.

Finally, the child’s objection was clearly the product of Mother’s undue influence. For example the Mother admitted she told minor child about the legal proceedings and about her fears of minor child being returned to Mexico.

The court reversed and remanded for the trial court to grant return to Mexico.

The opinion is here.

Mistakes In Your Agreement

Posted by Ron Kauffman on

What happens when you discover mistakes in your marital settlement agreement? Family and divorce lawyers are always interested in protecting their clients, and themselves, against mistakes. When agreements are entered into fast and furiously, mistakes can happen. One married couple in Florida found out just how courts look at mistakes in a marital settlement agreement.

Mistake Divorce Agreements

Fast and Furious Divorce

In 2019, the wife filed for divorce. In their in pretrial stipulation, the parties agreed they would each keep their own cars and pay their respective car loans. However, their agreement was not specific as to what type of car each party owned and which care they would keep.

At their final hearing, the trial court entered a final judgment and incorporated their agreement. The husband kept the 2010 Mercedes and the wife kept the 2005 Mercedes.

About a month after their divorce the wife asked the family judge to correct their final judgment, arguing, in part, that the 2010 Mercedes actually belonged to her, that they no longer owned the 2005 Mercedes, and that they actually owned a 2015 Mercedes. The Husband argued in response that the 2010 Mercedes was really his car, and that there was no error in the final judgment.

During the hearing on her motion, the wife told the judge the 2010 Mercedes is titled in her name, it was her Mother’s Day gift for herself, and they intended for her to keep the care when they signed the agreement.

The husband argued that they purchased the 2010 Mercedes after being in a car accident with their previous vehicle. The couple alternated which vehicle they drove based on their needs. Before their divorce, the husband testified that it was always his understanding that he would keep the 2010 Mercedes when entering into the agreement.

Following this hearing, the court found a mutual mistake in the agreement and final judgment should be set aside. The trial court entered a Consent Order Equitably Distributing Vehicles giving the wife a one-half interest in the 2010 Mercedes and sole possession of the 2015 Mercedes. The husband appealed.

Florida Setting Aside Final Judgments

After a final judgment is entered in a divorce, courts are limited in granting relief, but not entirely. For example, a court can relieve a person from a final judgment because of things like, mistake, inadvertence, surprise, or excusable neglect, newly discovered evidence, fraud and the like.

Motions seeking relief from a judgment usually must be filed within a reasonable time, and usually not more than 1 year after the judgment. However, there is no time limit in Florida if the motion for relief is based on a fraudulent financial affidavit in marital or paternity case.

Fate of the Furious

On appeal, the husband argued that, at most, there was a unilateral mistake on behalf of the wife, which is insufficient grounds to set aside the final judgment.

The appellate court agreed. A marital settlement agreement may be set aside when it is entered into as a result of mutual mistake. However, a mutual mistake occurs when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.

But if the mistake is due to your own negligence and lack of foresight and there is absence of fraud or imposition, equity will not relieve you.

In this case, the parties’ agreement provided that “each party shall keep their own vehicle. However, there was no evidence regarding the vehicles at the final hearing, and the motion for relief filed afterwards only showed that the parties’ testimonies contradicted each other. The order was reversed and the original agreement and its disposition of the cars was reinstated.

The appellate decision is here.

The Myth of Cross-Border Asset Protection

Posted by Ron Kauffman on

International Prenup

Is cross-border asset protection a myth? As the world becomes more mobile, issues relating to foreign prenuptial agreements, and the type of marital regime people enter, have taken on greater importance.

Prenuptial agreements are not only becoming more common, but are crossing international borders. The situation in which a couple marries in one country, owns assets in other countries, and live in yet another country, has now become commonplace.

I am honored to be speaking at a webinar on the Myth of Cross-Border Asset Protection on April 5th with Juan Francisco Zarricueta from Santiago Chile, and our two moderators, Vanessa L Hammer of Chicago, and Melissa A. Kucinski, from Washington, D.C.

The Webinar is sponsored by the American Academy of Matrimonial Lawyers and is open to everyone. One hour of CLE is available.

Registration information is available here.