Tag: interstate divorce

Reducing Divorce Waiting Periods

Posted by Ron Kauffman on

With many countries and U.S. states, having divorce waiting periods, the District of Columbia’s recent legislation, which is reducing its waiting period, is big news. The D.C. Council gave unanimous approval to legislation that eliminated long waiting periods to file for divorce. The waiting period was considered especially harmful to survivors of domestic violence filing for divorce.

divorce waiting period

Waiting in Vain

D.C. law previously allowed a couple to divorce after six months of living separately, only if both parties mutually and voluntarily agreed to it. If a spouse contested the divorce, D.C. law required the couple to remain legally married for a year. Now if one spouse wants a divorce, they can file for one at any time — without any waiting period.

“It made no sense at all that someone might be chained to their abuser or their partner when they didn’t want to be. This was a common sense reform that allows people to move on with their lives and also provide some extra supports for survivors of domestic violence.”

The D.C. Council unanimously approved the bill in November 2023, and the new law took effect last week. The new D.C. law also requires judges to consider domestic violence history, including physical, emotional and financial abuse, when determining alimony or property distribution and it explicitly allows judges to award exclusive use of a family home to either spouse while awaiting litigation.

Florida Divorce Waiting Period

I’ve written about divorce waiting periods, and your rights in divorce before. Like the District of Columbia and other U.S. states, Florida also has a divorce waiting period of sorts. In Florida, no final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage.

 The thinking behind waiting periods in Florida reflects the protective regard Florida holds toward the preservation of marriage and a public policy that marriage is the foundation of home and family.

In some cases the waiting period is longer. For instance, no dissolutions in Florida are allowed in cases of an incapacitated spouse unless the party alleged to be incapacitated has been adjudged incapacitated for a preceding period of at least 3 years. However, the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

Tired of Waiting

This change to the D.C. law will eliminate one of the many barriers people face when leaving abusive partners. The up-to-one year waiting period, which was established in the 1970s, was considered by many to be outdated and paternalistic.

Half of all states have a waiting period between the filing of divorce papers and when the marriage is legally dissolved, which can range from six months to even longer in some states. But why?

It has long been a recognized public policy by many states that encouraging and preserving the institution of marriage was a societal benefit. These days that notion may seem like an anachronistic legal concept. But the public policy underlying the presumption that marriage is a good institution still exists in many state statutes. Delaying a divorce then, comes from the theory that a couple, if they had more time, could preserve their marriage.

The Washington Post article is here.

China’s Divorce Laws Mean Fewer Marriages

Posted by Ron Kauffman on

China may be learning an old lesson that strict divorce laws can mean fewer marriages. In addition to the country’s recent worries about the imminent decline in its population, the number of people in China getting married for the first time has been dropping too.

Strict Divorce Law

Hidden Dragon

Although China has 1.4 billion people, the most in the world, its births are set to fall to record lows this year, demographers say, dropping 11.5% from 2020. China’s fertility rate in 2021 was below the OECD standard for a stable population, and among the lowest in the world.

Over the past year or so, China has enacted tax deductions, longer maternity leave, enhanced medical insurance, housing subsidies, and extra money for a third child, but the desire among Chinese women to have children is the lowest in the world.

Adding to the problem is China’s diminishing marriage rate, which slumped again. The number getting married for the first time dropped to 11.6 million last year, almost 700,000 down on the previous year. This was well down on a peak of 23.9 million in 2013.

Faced with mounting fertility problems and a soaring divorce rate, the ruling Communist Party in China introduced a rule last year to keep unhappy marriages together by forcing couples to undergo a 30-day “cooling off” period before finalizing a divorce.

The new law appears to have worked, according to government officials, marriage registration authorities have seen a drop in divorces that many local governments claimed was because of the controversial measure.

But along with that decline in the divorce rate, the number of marriage registrations plunged to a 36-year low in 2021. The fall in marriages has contributed to a plummet in birthrates, a worrying sign in China’s rapidly graying society and a phenomenon more familiar in countries like Japan and South Korea.

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 trends 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.

The Great Wall to Marriage

Posters on social media in China have hailed the “wise” decision made by young people not marrying, and said they too would not be getting married. One user wrote:

“Marriage is like a gamble. The problem is that ordinary people can’t afford to lose, so I choose not to take part.”

The controversial measures enacted by the Chinese Communist Party have led to a dramatic fall in the divorce rate but critics have said it disadvantages women, particularly those without an independent source of income.

A divorce seeker has to wait for 30 days after making an application, and longer if the partner refuses to get divorce. Not to mention many people’s divorce requests were not approved even when they were suffering from cheating and domestic violence.

The director of the Guangdong Population Development, told Yicai news:

Young people face increasing life pressures, and cannot afford the burden of getting married, which traditionally involves buying a house and raising children. Young people prefer the freedom of single life.

The average age of people who get married for the first time also increased significantly, from 24.89 in 2010 to 28.67 in 2020, according to the China Population Census Yearbook 2020. A 2021 report published by iiMedia Research also highlighted growing numbers of people consciously identifying themselves as celibate.

Four per cent of 3,900 single respondents between the age 20 and 45 identified themselves as “steadfast celibates”, with another 21 per cent describing themselves as “less-determined celibates”.

Most of the self-declared celibates were women over 30, who were better-educated with a higher income in first-tier cities, according to the report.

The South China Morning Post article is here.

Divorce Planning and Residency

Posted by Ron Kauffman on

As cold winds begin to blow, marriages start to feel the chill. Recent statistics show divorce rates rising by nearly 10 percent in some places. This means divorce planning. Your residency, the state where you file your divorce, can have a big impact on the outcome.

Divorce Residency

 

Florida Divorce and Taxes

The 2018 Tax Cuts and Jobs Act increased the tax incentives for people to move to Florida, both for older and younger taxpayers. One reason is because Florida is one of only a few U.S. states with no state income tax. Another reason is the dolphins.

New York, unlike Florida, has income tax rates exceeding eight percent. In New York, there is also an additional income tax levied within New York City. Similarly, California has a state income tax. The rates in California can reach up to 12.3 percent, in addition to a one percent mental health services tax applied to incomes exceeding $1m.

However, the tax implications aren’t the only impacts to consider when deciding to change your residency. Residency and domicile are the terms often used around the country in different states to describe the location of a person’s home, the place to which a person intends to return and remain, even if they reside elsewhere.

Because a lot of interest has developed in changing residence and domicile – primarily for the best tax savings – the question remains: do you qualify? States examine many factors to determine your permanent home.

The residency analysis can include how much time is spent in a state, where your car is registered, where you bank, what state you vote in, what you declare on your tax returns, and where your dentist or doctor is.

State and local tax laws differ from state to state, and they are enforced based on your place of residence. While there are major tax implications of changing your home, there are some important divorce issues to consider on top of the tax savings.

Florida Divorce and Residency

I have written about divorce planning in the past. In Florida, divorce is called “dissolution of marriage”. In order to file for dissolution of marriage in Florida, at least one of the spouses to the marriage must reside six months in the state before the filing of the petition.

Residency under Florida law usually means an actual presence in Florida coupled with an intention at that time to make Florida the residence.

In Florida, there is a difference between domicile and residence. A person’s domicile in Florida, involves the subjective intent of the person. Residence, on the other hand, is a matter of objective fact.

Although the state residency requirement has been construed to mean you must reside in Florida for the six months immediately preceding the divorce filing, courts have recognized exceptions. For example, Florida allows military and government personnel to file for divorce – without proving their actual presence in the state during the six-month statutory period – prior to the filing of their petitions of dissolution.

Under this exception, when a Florida resident is stationed outside the state by the military, the person did not lose their Florida residency, and could file for divorce – even though she had not been physically present in the state for the immediately preceding six-month period.

Moving to the Sunshine State

Before picking up and moving your residence or domicile to Florida to save on state income taxes, there are other things you may want to consider that can impact your legal rights and your savings.

For one, there’s a difference between equitable distribution states and community property states. The effect of moving from an equitable distribution state to a state with community property ownership, may have a huge impact on your property rights.

Many western states are community property states. In California, a community property state, marriage makes two people one legal “community.” Any property or debt acquired by one person during the marriage belongs to the community. In a divorce proceeding, community property is generally split equally by the court.

Conversely, Florida is an equitable distribution state.  In a divorce proceeding the court distributes the marital assets and liabilities with only the premise that the distribution should be equal. However, there may be a justification for an unequal distribution based on certain statutory factors.

The differences between states are not limited to property division. Each state has different local laws to deal with alimony, child support, child custody, and even prenuptial and postnuptial agreements.

Changing the state you live in can be complex, and there are factors besides the tax savings to consider before making any change.

The Crain’s Chicago article is here.

Devil’s Tower: Return to a Fault Based Divorce

Posted by Ron Kauffman on

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.

 

An Interstate Custody Marriage Story

Posted by Ron Kauffman on

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

interstate custody

Act 1: Whose Fault is It?

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

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

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

Act 2: Interstate Custody

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

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

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines. With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York for the Nicole and Charlie example. The ultimate determining factor in a New York case then, is what is the “home state” of the child. New York has initial jurisdiction to hear Nicole and Charlie’s case, for example, if New York was the Home State of their son on the date Nicole filed her case.

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

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

Act 3: The Big Decision

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

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

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

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

Highly recommended!

*Gage Skidmore photo credit

International Divorce and Jurisdiction

Posted by Ron Kauffman on

If Britain has the biggest pay-outs for divorcing spouses, can anyone file for divorce there? The ex-wife of a Russian oligarch, who was denied permission to pursue her international divorce claims against her husband’s $19 billion fortune, just found out about jurisdiction the hard way.

International Divorce and Jurisdiction

To Russia With Love

Natalia Potanina, 58 was attempting to secure an increased pay out through English courts from her former husband, Vladimir Potanin – Russia’s second richest man, claiming that the initial amount she received left her facing ‘hardship’ and did not meet her ‘reasonable needs.’

Ms Potanina claimed that she was only given $41.5 million when the couple divorced in 2014 but deserved considerably more because of the role she played in helping to build her husband’s extensive business empire.

She was attempting to launch a case in the English courts, where divorce pay outs are notoriously high, protesting that when she tried in Russia she got considerably less because of her husband’s ‘wealth, power and influence,’ which denied her a fair settlement.

She also alleged that he had secreted his vast wealth out of her reach in a complex web of offshore companies while pleading to judges in Moscow that he had virtually no assets.

International Divorce Issues

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 might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

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.

Back in the USSR

Lawyers acting for her husband took the matter to the High Court in London, asking for her English legal bid to be thrown out during a three-day hearing which took place last month. Delivering his judgment, Mr. Justice Cohen said that the claim that Mrs. Potanina received $41.5 million was ‘untrue and that the real figure was actually over $84 million. In addition to this, she also received $7.3 million in child maintenance. She also purchased a home in Long Island, New York, soon after the divorce, which is worth $6.5 million.

To most people it would seem inconceivable that someone who has received an award of $40-80 million could argue that reasonable needs have not been met, but each case is fact-specific and I accept that the wife could argue that her reasonable needs have not been met. However, the other 16 factors mitigate strongly against her claim proceeding.

If this claim is allowed to proceed then there is effectively no limit to divorce tourism”

Potanina is “very disappointed” and plans to appeal, the judge said. Lawyers for both sides declined to comment. Potanin, Russia’s richest tycoon with $27 billion fortune, is considered to be one of the few “oligarchs,” who became rich under first Russian President Boris Yeltsin. He also plays hockey at the so-called Night Hockey league, sometimes against President Vladimir Putin.

The judge dismissed arguments from Potanina that she couldn’t obtain justice in Russia, saying the local courts properly applied the law. Potanina said that her husband was “too powerful.”

“I do not believe that there is anything more I could have done to obtain justice in Russia. It was an impossible task,” she said in a written submission cited by the judge.

The couple lived in Russia for the length of their marriage, before Potanina moved to England in 2014, the judge said. Her first contact after her arrival appears to have been to obtain advice from London divorce lawyers, the judge said in his ruling.

The Bloomberg article is here.

 

Divorce and the Date of Marriage

Posted by Ron Kauffman on

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

Divorce and Date of marrage

Divorce in Hot Lanta

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

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

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

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

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

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

Florida Divorce

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

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

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

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

Wisdom, Justice, Moderation

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

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

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

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

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

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

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

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

The article is here.

 

Divorce and Infidelity in Congress

Posted by Ron Kauffman on

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

Sex and No Fault Divorce

The Candidate

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

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

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

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

Florida Divorce and Infidelity

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

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

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

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

Ms. Omar Goes to Washington

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

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

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

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

The Hill article is here.

 

Is Divorce Rotten in the State of Denmark?

Posted by Ron Kauffman on

Bucking the trend, Denmark is turning back the clock on divorce by making it less-easy. That may be because Denmark currently has the highest divorce rate in Europe. In our country’s attempts to make divorce less acrimonious and easier on children, have we created new problems by making it so easy? The trend in international divorces may have made something rotten in the state of Denmark.

International Divorce Laws

Dansk Divorce Laws

According to the Guardian, until recently Danes could divorce by filling out a simple online form. But under a package of legislation that came into force in April, couples determined to split must wait three months and undergo counselling before their marriage can be dissolved.

Meanwhile, a survey found that 68 of Denmark’s 98 local authorities were offering relationship therapy to couples in difficulty, on the grounds that keeping families together saves municipalities money on housing and services.

The initiatives, which in some countries might be seen as unwelcome state intrusion in citizens’ private lives, have been broadly welcomed by both the public and politicians in Denmark, with only the small Liberal Alliance party criticizing them as over-reach.

The country has long championed family rights, offering year-long parental leave and universal public daycare, but it recorded 15,000 divorces in 2018, equivalent to nearly half the marriages that year.

The government’s three-month waiting period and “cooperation after divorce” course, taken online or via an app, aims to smooth the process for divorcing couples and children by helping them improve communication and avoid pitfalls.

Parents can tailor their course individually from 17 half-hour modules offering concrete solutions to potential areas of conflict during the divorce process, including how to handle birthday parties or how to talk to an ex-partner when angry.

Florida Divorce

I have written about divorce planning and recent trends in divorce around the world before, such as the new Norse Divorce Course.

Although Florida has a lower divorce rate than Denmark, it is not only because a divorce course is required in Florida. Divorce rates have been falling in the United States, but that is not good news, as many people are having children outside of marriage, and the statistics for relationship breakups is staggering.

Like Denmark, in Florida, the legislature has found that a large number of children experience the separation or divorce of their parents. Parental conflict related to divorce is a major concern because children suffer potential short-term and long-term detrimental economic, emotional, and educational effects during this difficult period of family transition.

This harm can be particularly true when parents engage in lengthy legal conflict. So, like Denmark, Florida requires a divorce course called the “Parent Education and Family Stabilization Course” and may include several topics relating to custody, care, time-sharing, and support of children.

Back in København

In a trial with 2,500 volunteers before launching, the Denmark course has been praised by specialists and those who have completed it. “The data is clear: the program works,” he said. “In 13 out of 15 cases it had a moderate to strong positive effect on mental and physical health and led to fewer absences from work. After 12 months, couples were communicating with each other as if they had not divorced.”

Hjalmar, a marketing executive in his 40’s who preferred not to give his full name, said he took the course in its trial phase nearly four years ago and found it very useful. “Obviously it’s not going to repair a broken marriage,” he said. “But it helps you sort out some pretty important stuff when you may not be thinking very clearly.”

Relationship experts said the course was a step in the right direction but would not work for all couples. “It’s a fine tool and you can’t argue with its results,” said Trine Schaldemose, the deputy head of Mødrehjælpen, a family help association. “But it won’t help couples who are in very high conflict or violent relationships, or with a very low level of resources. They are going to need more than an online course. They will need personal, individual counselling. This won’t be a quick fix for them.”

Many consider Denmark’s new divorce rules were a big improvement. Before, the system was focused more on parents’ rights than children’s. And divorce involved a lot of different institutions, none of which were aligned. That’s changed.

Some experts are unsure about the boom in local authority-provided counselling. Five years ago only 20% offered any couples therapy at all. Any counselling was a positive development but the quality of programs varied and some couples may not be as open when counselling was provided by a local authority rather than independently.

Municipalities insist their programs work. In Ringkøbing-Skjern, which began offering free relationship therapy in 2011, the council says the divorce rate has fallen by 17% and last year 92 local couples sought counselling – the highest annual number so far.

All couples with children under 18 are entitled to five free sessions. Politicians, too, have been broadly welcoming. “Municipalities deserve praise for taking the initiative to help more families prosper and stay together”.

Divorce rates are 25% to 50% across western countries and it costs a huge amount of money and causes a lot of individual pain. Individual treatment would be too expensive. If we really want to take this seriously, we need to work together to develop something scaleable.

The Guardian article is here.

 

Strike!: Interstate Custody and Pro Sports

Posted by Ron Kauffman on

Chicago Cubs Ben “Zorilla” Zobrist and his wife, singer Julianna Zobrist, have each filed for divorce in separate states on the same day, according to court records. How is a court supposed to figure out which state you should file your divorce in is the place where interstate custody and pro sports collide.

Interstate Custody

Batter Up!

Ben Zobrist filed for legal separation Monday in Williamson County, Tenn., where the couple — married since December 2005 — keep an offseason home in a Nashville suburb.

But, Julianna Zobrist filed in Cook County, Illinois on the same Monday. Julianna, a 34-year-old Christian pop singer, did not provide a reason for seeking a divorce in her petition. She also recently deleted her Twitter account.

Zobrist is a baseball second baseman and outfielder for the Chicago Cubs. He is one of seven players in MLB history to have won back-to back World Series championships on different teams. But being on many teams in different states means that choosing jurisdiction isn’t always easy for professional athletes.

The Zorilla used to play for the Tampa Bay Devil Rays/Rays, his first MLB club and where he spent most of his career. Then he briefly for the Oakland Athletics and Kansas City Royals.

Interstate Custody

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

But which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.

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

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

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

The UCCJEA: Initial Actions

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 Florida for this example.

The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

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

Foul Ball!

According to the Tennessean, Ben Zobrist’s filing contends that his wife “has been guilty of inappropriate marital conduct which render further cohabitation impossible,” though the article didn’t elaborate.

“Husband is unsure if the marriage can be salvaged,” the filing says, according to the Tennessean.

When asked whether Julianna Zobrist would like to respond to her husband’s assertions, an assistant said, “Not at this time,” and added on behalf of her Chicago-based law firm, “We don’t have any information right now to release to the public.”

The Cubs granted Zobrist, 37, a leave of absence a week ago. Manager Joe Maddon, whose association with Zobrist dates to 2006 with the Rays, wasn’t sure when the valuable infielder-outfielder would return.

The Chicago Tribune article is here.