Tag: Separation

Dividing the Iron Throne: Divorce and Streaming Services

With the start of the final season of Game of Thrones, everyone wants to “borrow” passwords to HBO. Who will take the Iron Throne is almost as tough a question as how a divorce court handles streaming services like HBO, Netflix, Hulu and others.

Game of Groans

As the Wall Street Journal recently reported, when Aimee Custis and Kian McKellar broke up after four years, the couple divvied up their books, photography equipment and cookware.

Left undivided was their Netflix, Hulu and Pandora accounts. They didn’t discuss separating the subscriptions when one of them moved out of their shared Washington, D.C., apartment. They just continued paying their respective bills—hers, Hulu, and his, Netflix and Pandora.

Two-and-a-half years later, they still share those services. In the so-called sharing economy, even when love is no longer mutual, bills for entertainment and communication often are.

Streaming music and video services that permit multiple users, plus the proliferation of family cellphone plans in recent years that are cheaper than individual accounts, have created ties that bind long after a breakup or even divorce.

Florida Divorce and Streaming Services

I’ve written about property division 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 non-marital assets and debts, and then distribute the marital assets and debts between the parties.

Marital assets and liabilities include, in part, assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

Streaming services, such as HBO, Netflix and Hulu however are not marital assets per se. They are merely expenses, much like your cell phone plan. Cell phone plans typically require a contract for two years and you can face fees if you break your contract early.

There are not many options: break the plan and pay the fees and penalty or coming to an agreement with your spouse about who pays for what during the remainder of the contract.

No Battle for Winterfell?

Do you have to leave your Netflix and HBO access with your soon to be ex? No always. Interestingly, not everyone going through divorce and separation get dropped from the account.

Sometimes people do not realize that their password is shared and their spouse is still watching. But other times people purposefully keep their spouse or ex on the account because sentimentality intrudes.

A consultant in his 30s says he was puzzled by his parents’ decision to pay for his brother’s ex-girlfriend’s cellphone plan long after their breakup. The $30-per-month cost was minimal, they told him, and their memories of her were fond.

The Wall Street Journal article is here (subscription required).

The Engagement Ring

If the luck of the Irish holds, your engagement diamond may be yours forever. Diamonds, given to you after someone asks the question: “will you marry me?” with a “yes” to follow, are a contract. This is why so many of them end up in court property division cases.

The Engagement Ring Tradition

Until the 1930s, a woman jilted by her fiancé could sue for financial compensation for “damage” to her reputation under what was known as the “Breach of Promise to Marry” action.

As courts began to abolish such actions, diamond ring sales rose in response to a need for a symbol of financial commitment from the groom.

I’ve written about engagement rings before. Florida abolished the appropriately termed “heart balm statutes”. Heart balm statutes were laws allowing couples to sue each other to recover money for the alienation of affections and breaches of contract to marry.

As one court poetically noted:

[A] gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor – if the anchor of contractual performance sticks in the sands of irresolution and procrastination – the gift must be restored to the donor. A fortiori would this be true when the donee not only refuses to sail with the donor, but, on the contrary, walks up the gangplank of another ship arm in arm with the donor’s rival?

Engagement Rings in Court

After an engagement ring is given, and if the couple doesn’t marry, in New York the law deems a broken engagement as no one’s fault. Accordingly, the ring should be given back to the giver, with few exceptions. Most states have adopted that approach.

This is true in Florida. Lawsuits to recover an engagement ring by disappointed donors usually are resolved by courts looking to see if the engagement was terminated by the donee or by mutual consent of the parties.

The rationale is that rings are given on the implied condition that a marriage ensue.

Once a marriage proposal is extended and accepted — once the promise is made — no matter what day of the year, that ring is no longer considered a gift. It’s a contract to enter into marriage.

Most states embraced the no-fault rule after the 1997 case of Heiman v. Parrish. There, the Kansas Supreme Court decided that no matter who broke the engagement, the ring should be given back to the giver if the parties don’t marry.

“Ordinarily, the ring should be returned to the donor, regardless of fault,” the court found.

But Montana hasn’t followed the rule. Montana classifies the ring as an unconditional gift. The recipient keeps it. California and Texas take a middle-of-the road approach: the recipient of the ring is expected to return it, unless the giver called off the engagement.

The general rule in Florida is that an engagement ring given before the marriage, becomes a non-marital gift if the marriage is completed. If so, the ring becomes the non-marital property of the Wife.

If the engagement ring is viewed by the court as a non-marital asset, it is not subject to equitable distribution in divorce proceedings, and the spouse keeps it as their own.

The New York Times article is here.

 

Friends or Spouses?

Jennifer Aniston and Justin Theroux announced that they are going to file for divorce after two and a half years of marriage. However, some news outlets report they can’t locate the Friends’ star’s marriage license to see if they were even married. What would happen if you find out you were not married?

Friends Like Us

Irrespective of the status of their marriage license, according to news reports, the decision to divorce appears to have been mutual:

“We are two best friends who have decided to part ways as a couple, but look forward to continuing our cherished friendship.”

According to TMZ though: “We checked marriage records in L.A. County all the way back to 2010 and there is no record of a marriage license. There’s such a thing as a confidential marriage license, but we’re told they did NOT get one in L.A. County.”

Is Your Marriage Valid in Florida?

First off, common-law marriages have been abolished in Florida since 1968. In order to be validly married, you need a license. It may seem like a mere formality, but couples who want to be married must apply for a license.

There is a fee for getting a marriage license, and that fee is reduced for attending pre-marital counseling. The license is valid for 60 days. The officiant at the ceremony must certify that the marriage was solemnized.

The certified marriage license must be returned to the clerk or an issuing judge within 10 days, and the clerk or judge is required to keep a correct record of certified marriage licenses.

I have written about Florida marriages and divorces before. Florida courts have repeatedly warned people that they cannot depart from the requirement of the Florida Statutes to have a license, otherwise the courts would be re-creating common-law marriages.

In the event you do not obtain your marriage license, you cannot divorce. This means that certain rights can be lost. For example, you could not make claims for equitable distribution, and you could not ask a court for alimony. That can be a devastating result for many couples who unknowingly, are not married.

Central Perk

The report from TMZ sounds like ridiculously bad investigative journalism. Jennifer and Justin could have gotten a marriage license in any of the 57 other counties in California, or other states and even countries, and their marriage license would be valid.

But just because TMZ claims it spoke with some “Jen sources who have had regular contact with her for years, and they say there’s been talk for a long time they might not be legally married” does not prove or disprove anything.

According to the TMZ article:

“it’s certainly possible they’re legally married, but based on what we found, it’s possible they’re not.”

The TMZ article is here.

 

Ben Affleck: Should You Separate or Divorce?

Jennifer Garner filed for divorce from her husband, actor Ben Affleck, almost two years ago, but has yet to officially end her marriage despite a long-term separation.

Affleck has reportedly even been staying in a spare bedroom on the family’s Los Angeles compound. A few weeks back, Us Weekly reported that the couple would keep on with their divorce despite rumors of a possible reconciliation.

The next day, though, E! News claimed that the couple has a “fluid” relationship and that “nothing has really changed” for the couple who has “been working on their relationship for the past few years” and remain in a long-term separation.

Not obtaining an official divorce decree, and having a long-term separation, seems like a good idea, but there are risks. I’ve written about the risks when people separate for years before filing for, or dissolving, their marriages.

Control Over Assets

If you are in a long-term separation, you can be totally out-of-the-loop about your financial well-being. You don’t know what your spouse is earning, spending, investing, selling or buying. In Equitable Distribution states, like Florida, you may be on the hook for some of the debts accumulating during the long-term separation.

Hiding Assets

While you may see no immediate need to legally dissolve your marriage, a long-term separation allows a spouse to plan for a divorce. And, spouses usually plan to make sure that valuable, or difficult to trace, assets are gone when the time comes to disclose your assets and liabilities.

Relocation

Florida has laws governing all aspects of the divorce process, especially as they relate to children. During a long-term separation, your spouse could be transferred to another city, state, or even another country. You should know that the laws relating to divorce and interstate custody are not the same in every state.

Alimony Laws are Changing

For the last several years, the Florida Legislature has tried unsuccessfully to change our alimony laws. The Florida House and the Florida Senate have already introduced bills this year that would dramatically change alimony in Florida. During a long-term separation, alimony laws can change.

The new bills require use of factors to calculate alimony; provide presumptions concerning alimony awards based on the duration of marriages; provide for imputating income in certain circumstances; provide requirements related to taxing and deducting alimony; and prohibit courts from changing the duration of alimony award.

Meeting Someone New

While meeting someone new may make you happier and more fulfilled, it may not help your settlement negotiations. When spouses enter new relationships, they might spend your share of marital assets on their new love interest: buying gifts, going to expensive restaurants, and taking fancy vacations.

Whatever the reasons Ben Affleck and Jennifer Garner have had for putting off their divorce, there are pitfalls of a long separation you should be aware of.

The Vanity Fair article is here.