Deciding to pick up the phone and make that dreaded first call when you feel the time is right to contact an attorney is a petrifying moment. It’s one of those times in your life where you just have to take the plunge, dial the phone and make the call.
Category: Separation Law
Separating? Here are blogs and news updates about laws regarding separation, divorce and your children, written by family lawyers and law firms.
In November 2014, Harold Hamm, the CEO of Continental Resources, was ordered to pay his ex-wife Sue Ann $995.5 million in what was described as one of the biggest divorce settlements in history. With the award representing only a fraction of Mr Hamm’s estimated $18 billion empire, Sue Ann appealed, claiming that she should be entitled to a much heftier settlement due to her significant contributions during their 26-year marriage. Conversely, Harold made his own appeal, arguing that the almost $1 billion figure was excessive.
During the couple’s relationship, the pair lived a nomadic lifestyle, surviving on very little money. Following their separation, life continued in a similar manner for Ms Wyatt, who today lives in an ex-council house in Wales with her children. However, things changed dramatically for Mr Vince when he founded Ecotricity in 1995, which is now one of the UK’s biggest green energy companies.Mr Vince’s new lifestyle mirrors his business success and he currently lives in a £3 million 18th-century castle with his new wife and their son.
A stay-at-home father who was supported by his millionaire wife is appealing a court decision that would see him receive a £300,000 lump sum, as well as a long term £50,000 annual maintenance payment.
Mediation will make the divorce process quicker, fairer and more empowering for both parties, says a family law expert at Manchester-based Kuits Solicitors today to mark the beginning of Family Dispute Resolution Week.
American entrepreneur Harold Hamm, best known for his position as CEO of Continental Resources, has been ordered to pay his ex-wife, Sue Ann Hamm, $995.5 million in what has been referred to as one of the biggest divorce settlements in history. Although an enormous figure to most, it is only a fraction of Mr Hamm’s $14 billion empire and Sue Ann plans to appeal the decision on the grounds that it is inequitable. For this reason, the ruling invites an intriguing question – is the Oklahoma County Court’s decision reasonable compared to the conclusion that a court in England and Wales would have reached?
Note also you can see our new guide to some of the best divorce lawyers in the US here.
The welfare of the child has always been the fundamental consideration for courts dealing with child arrangements following a couple’s separation. The welfare checklist set out in S8 of the Children Act 1989 provides statutory guidance that requires certain factors to be considered. Amongst other things, the wishes and feelings of the child and the child’s needs are considered, so that the most appropriate arrangement is reached. Due to the subjective requirements of each child, extreme care must be taken to ensure that the specific needs of the child are met.
Many family law hearings in the UK are held in secret, but more will be published in the future, says the court of protection. Unless there are extremely compelling reason not to, judges will give permission to make the hearing public. More details will emerge from sensitive domestic disputes, even if some of them are anonymised. These new regulations will begin on the 3rd of February. Sir James Munby is the main man who has been pushing for these reforms to the family court system.
This move will improve public understanding about the court process, and hopefully incur greater faith in the system. Public debates about famous cases – such as the pregnant lady who was forced to receive a caesarean – are often misinformed because the facts aren’t readily available. False reporting isn’t always the fault of the media, if they can’t access the details of the hearing. With greater transparency, public debates and articles will be better informed of all the facts. This will hopefully create a less biased account of events.
The Decision
There are two types of judgements: normally published cases and possibly publishable cases. These categories provide the framework in which a decision is made.
The judge will only publish the hearing if he or she deems that it’s in the public interest to do so. Families under protection, children, and vulnerable individuals that can’t usually make their own decisions, will obviously continue to benefit from anonymity. A judge will choose to keep a judgement or case secret, if this would breach any important anonymity. In many cases, the judge will decide what is appropriate for publication – he or she is not allowed to publish information at the request of a party or the media. The judge must decide that it’s within the public interest.
Is That All?
Exonerated parents or anonymous parties may wish to discuss their experience with the media; sometimes this is advantageous to the case, as it can bring forward more evidence or witnesses. Otherwise, there are strict rules about what the media can or can’t publish from the family courts. Journalists can attend hearings, but they need to obtain the court’s permission if they want to report the case.
There may be details which a journalist isn’t able to publish, due to the sensitivity of the details.
In the court of protection, the hearings are private – the media and the public aren’t allowed in. This is to safeguard the rights of vulnerable people who would suffer unduly if the contents of the case were made public. It seems like this will happen more rarely in the future, as the government is on an anti-privacy binge.
Military divorces are much like any other divorce. Two people decide they no longer want to be married, and go through the process of separating property, assets and determining child custody issues. However, the way these concerns are addressed, and the way things are separated between the two parties, requires a consideration of the military member’s lifestyle and benefits. Understanding how survivor benefits and military pensions are divided up, and how custody of children is determined, is important for both spouses considering divorce.
Child Custody
Many military marriages involve an active duty spouse and a civilian spouse. The lifestyle of these families adapts to the military world, with active duty personnel moving regularly for various deployments, and with the military spouse frequently away from home. Families that fit this description should be aware that the courts will rarely grant full custody to the active duty spouse.
When determining child custody, the courts always look out for the best interests of the child. It is understood that, while the active duty spouse is doing much for his or her country, the lifestyle is ill suited for raising children. Military families should assume that child custody will go to the non-active spouse, and this will likely include child support payments.
Division of Military Pensions
Active duty service members are entitled to a pension after 20 years of service. The courts answer the question how to divide up this pension in the case of divorce. Most military couples are aware that the non-military spouse is entitled to half of the pension after 10 years of marriage. However, not all are aware that this division is negotiable.
The couple can come to an agreement on the division of the pension in their own way. This includes if the marriage has been shorter than the standard 10 years, and it includes the possibility of a payout of less than 50 percent of the pension after the 10-year mark.
The 10-year and 50 percent standards are simply guidelines for the court to go on. The arguments presented by both divorce attorneys and the decision of the court can produce a number of different results. Each spouse may wind up with more, or less, than he or she was aiming for.
It should also be noted that only after ten years of marriage can the finance center pay the awarded portion of the pension to the spouse. If the non-military spouse wins some of the pension, but the marriage did not last for at least ten years, it is the responsibility of the retiree to make the payments to the ex-spouse.
Survivor Benefits
Some spouses make the mistake of assuming that the Survivor’s Benefit Plan (SBP) – the payout that happens upon the death of the military spouse – will still go them in the event of death. While the SBP can be awarded to the divorced spouse during the divorce proceedings, this is certainly not guaranteed.
If the ex-spouse is not awarded the SBP, then he or she will stop receiving pension payments in the event that the military member dies. This is something to remain aware of during divorce negotiations.
Military Divorce Lawyer
Spouses considering a military divorce should seek the help of an experienced military divorce lawyer. This will help ensure the best possible results from the divorce.
(Victorian & Australian Law. Click here for Top Family Lawyers in Australia)
In recent times, the jurisdiction of property disputes in Family Law has broadened. Traditionally, property was only divisible between married or divorced couples. De-facto and same sex partners are now able to apply for a property settlement, though under different law. In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court, to be decided on the basis of need.
The settlement reached becomes legally binding and enforceable by the courts. Here’s a rough guide to what usually happens in these situations…
Applications
Parties can make a property settlement by agreement or, if agreement cannot be reached, make an application to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court or to the Federal Magistrates Court where a property dispute is worth less than $700,000.
Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. De-facto and same sex partners can make an application under the Property Law Act 1958 (Vic) in the Supreme Court, County Court or Magistrates’ Court.
Once an application is made, the parties will be asked to attend a case conference, with the aim of settling the property dispute by agreement before it goes to court. Present at this conference will be the parties, any family lawyer involved and a court registrar. If this conference is unsuccessful, the parties will go to court.
Property disputes in de-facto and same sex relationships (domestic relationships) are dealt with under the Property Law Act 1958 (Vic). A domestic relationship is a relationship between two people (regardless of gender) who live together as a couple on a domestic basis but are not married. The domestic relationship must have existed for at least two years for an application for a property dispute to be made under Part 9 of the Property Law Act . If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. The relationship must have ended after 8 November 2001 for Part 9 to apply.
Property
The type of property divisible in a property settlement includes assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account. In a domestic relationship, as governed by the Property Law Act , superannuation and retirement benefits are not included in a property settlement. In making an order for property settlement, the court calculates the total pool of assets of the parties.
The division of these assets is based on both contributions made by each of the parties to the asset pool and future needs. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.
If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.
Spousal Maintenance
A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once.
Spousal maintenance cannot be applied for where a domestic relationship exists.
Enforcement
If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied.
If a party is not complying with the orders made, an application can be made to the court for enforcement. In this application, the party applying must set out exactly what the problem is. The court will then decide whether an order is needed to enforce the existing order.
A family law property settlement is an important process to go through after the breakdown of a marriage or domestic relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.
Though the U.S. Supreme Court recently struck down portions of the federal Defense of Marriage Act (“DOMA”), state DOMAs were not affected by the ruling. This means that same sex couples cannot get legally married in states, such as Florida, that enacted a DOMA.
This also means that gay and lesbian couples cannot get divorced in many DOMA states and oftentimes do not have any legal remedy to separate. If the domestic partners did not adopt each other’s children, even if both partners had been considered the parents of the children, then child custody, visitation, and child support laws usually will not apply. Equitable distribution laws (laws related to division of marital assets and debts) do not apply, so separating property and liabilities can get real messy, real quick. Further, alimony and spousal maintenance laws do not apply, so a partner who spent years homemaking and taking care of children may suddenly become destitute. So what are separating same sex couples to do?
Domestic partners who are dissolving their relationship should seriously consider entering into a collaborative family law process.
Collaborative family law is a form of private dispute resolution that allows clients to enter into agreements and achieve results that could never be attained through a court process. Each client retains a separate attorney who advises and counsels the client and helps in the negotiating process. A neutral facilitator, who is a mental health professional or mediator, helps the clients focus on their interests, such as the welfare of clients’ children, continued relationships with each other’s family members, or financial stability. If there are substantial assets or debts or a business, a neutral accountant or financial planner will be brought in to educate the parties in finances, help fairly and cost-effectively divide property and liabilities, and, if requested, develop a budget for the clients’ future.
As you can see, collaborative family law is a holistic process that takes into account not only the legal, but also the emotional and financial needs of the clients.
The crux of collaborative family law is that the clients agree at the beginning that they will not seek to resolve their dispute through court battles, but rather they will come to a mutually agreeable settlement through this private process. The clients, and their attorneys, enter into a participation agreement which disqualifies the attorneys from representing the clients in any contested court action. This provides a safe space in collaborative meetings because each client knows that the other client’s attorney is not conducting opposition research and is committed solely to helping the clients reach a mutually acceptable agreement. This allows clients to feel more comfortable offering and listening to potential solutions.
In truth, the disqualification clause has much more of an effect on heterosexual couples who are getting divorced, rather than homosexual couples who are separating. This is because, as stated above, most DOMA state courts just do not have remedies that would properly address the clients’ concerns, and so attempts to fight it out in court will oftentimes be dismissed.
If you are experiencing a same sex separation, make sure to speak with an attorney who offers collaborative family law, and check to see whether the attorney has received collaborative law training that meets at least the minimum Basic Training standards of the International Academy of Collaborative Professionals.
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If you have questions regarding a Tampa Bay collaborative family law process, or you want to learn more about your Florida family law rights, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our contact form.
Adam B. Cordover currently serves as Research Chair of the Collaborative Family Law Council of Florida and Vice President of the Collaborative Divorce Institute of Tampa Bay. Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit of Florida to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida) and has completed over 40 hours of basic and advanced collaborative family law continuing legal education credit.
Rupert Murdoch has recently filed for divorce from Wendi Deng, his third wife. Even though it is unknown what caused the marriage of 14 years to end, people have speculated for months about the relationship of the couple. Deng, who is Chinese-born and Yale-educated, is accomplished on her own before ever marrying Murdoch, but that didn’t stop people from dubbing her as a gold digger.
Since the 82-year-old Murdoch runs a powerful conglomerate in terms of media, many people wonder what is going to come of his fortune. When you consider he has 20th Century Fox, Sky News Service, Fox Television, the Wall Street Journal, Harper Collins Publishing and many others, you can easily see just how much he is worth financially. Even though Deng stayed out of the public eye for much of their marriage, everyone wonders what the legal precedent is now that the divorce is underway.Shortly after they wed, Murdoch announced that Deng was going to step down from her role at News Corp. in Hong Kong. She never fully left the media world. She would attend meetings with Murdoch and his son to make sure everything went smoothly. During their marriage, she had two girls with Murdoch. He has four other children from his other two marriages.
According to her Yale profile, she is the co-founder of Big Feet Productions, which is an independent studio based in East London making games and applications for Apple. The divorce would effectively end Deng and Murdoch’s union and set a battle into motion for how much of the fortune she and the children are going to receive. His recent fortune was estimated at more than $11 billion. The showdown comes at a bad time for News Corp. They recently approved plans to split operations between two publicly traded companies.
Since Murdoch is the largest shareholder in the company, he will be the chairman of the two new enterprises. It is not yet known whether there was a prenuptial agreement signed between Deng and Murdoch before they were married. Even if there is, no one knows where it was filed at. Most people assume there was documentation filed to protect Murdoch’s fortune, especially when there was so much to lose.
Depending upon where the paperwork was filed, individual states will choose whether the terms are unfair or unconscionable and proceed with upholding the prenuptial agreement or making their own amendments to the document. Other countries may have their own set of rules and restrictions, but in the United States, things would be handled in the aforementioned manner.
A prenuptial agreement can do a lot for protecting the best interest of the parties involved, but the court and legal system will determine whether they are going to overturn the agreement or uphold it. In the end, lawyers and the legal system are the ones going to make the arguments and final decisions on what is going to happen. A trained lawyer will be able to fight in the best interest of the parties involved.
(U.S. Law and Generally) When your spouse leaves you and your children, it’s not long until you feel the financial pinch in your pocketbook. In your new role as a single parent, taking care of your children and your household expenses on a single paycheck soon becomes challenging, especially since you no longer have your spouse to help you financially.
How to Receive Child Support
If you have asked for money for your children and your spouse refused to help out, you can get a court to order your spouse to pay child support while you are separated. Here are steps you can take to start receiving child support:
1. Locate the OCSE in your area. In some states, the Office of Child Support Enforcement (OCSE) is called the Friend of the Court (FOC) and is located in the county courthouse. Find your local OCSE by conducting an Internet search of your city or state or call the clerk’s office of your local courthouse.
2. Complete an application. OCSE has applications for child support online that you can print out and complete prior to meeting with a caseworker.
3. Schedule an appointment. The OCSE takes new cases by appointment, but some offices allow “walk-ins.” If you visit the office as a walk-in, be prepared to wait since most offices are very busy. Be prepared to pay a fee since OCSE’s charge an annual service fee to the custodial parent to open a child support case.
4. Bring relevant information. Your case worker will need information such as your spouse’s address, telephone number, employer’s name, annual income and type of vehicle he or she drives. This information will be used to locate your spouse should he or she fail to either receive or respond to child support papers served on him or her. Child support payments are usually collected through the non-custodial parent’s paycheck. You will also be asked to provide information such as your employer’s name, health insurance information and whether you have received child support in the past. The case worker will also give you other documents to complete.
5. Attend your court hearing. Your case worker will take you through the child support process, which includes filing your documents with the court, serving your spouse with a copy of the papers and scheduling a court hearing. Your spouse will have an opportunity to respond to the papers you filed as well as attend the court hearing.
Consider getting Legal Advice
Filing for help from an absent parent, whether it’s California or New Hampshire child support, is a lengthy process and can become complicated, particularly if your spouse objects to paying support. If your spouse had a larger income and carried health benefits for the family, consider filing for a legal separation rather than a divorce, at least for the time being. There are several financial benefits to getting a legal separation for both of you, but this is something that you should discuss with a family lawyer.
An attorney experienced in family law will get your OCSE case moving along while advising you of the legal separation process. The ultimate decision to file for a legal separation is up to you, but in the meantime, your attorney can relieve your financial pressure by getting court-ordered support from you spouse so that you can better provide for your children.
Mother of two and author, Molly Pearce knows the challenges that single parenting presents. She shares this info in the hopes that it can simplify the child support process for readers. New Hampshire child support lawyers, Tenn and Tenn, P.A., also hope to make the seperation and divorce process easier by providing knowledgeable and experienced representation to families in need.
Getting married is one of the most exciting periods in life. The joy of spending life with your partner is constant, but while you may be euphoric, it’s important to come back to reality and consider the financial impact of your partnership. While prenuptial agreements can be a strong safeguard for your pre-marriage finances, they can cause painful emotions and feelings of resentments. Here are some of the pros and cons of prenuptial agreements.
What is a Prenuptial Agreement?
A prenuptial agreement is simply a legal contract that separates your pre-marriage finances from the ones you possess in a partnership. In the event of a separation or divorce, the prenuptial agreement protects your ownership over those finances. If you don’t have the protection of a prenuptial agreement, your pre-marriage financial assets are at risk of being split if a divorce does occur.
Financial Protection
This is the first big one. Being able to have in writing what you’d like to do with your money in the event of a divorce or death is serious protection. If you have children from a previous marriage or have experienced a costly divorce in the past, signing a prenuptial agreement can ensure that if things don’t go as planned, you’ll still be able to stay financially afloat. While it’s unpleasant to think that your wonderful partnership could end in divorce, keeping that in mind while signing a prenuptial agreement will help you realize it’s for your financial protection.
Trust Issues
This is the biggest downside: while there are no statistics on how many prenuptial agreements are signed per year, the divorce rate in the United States continues to hover around 45%. While no one can be sure if this is due to prenuptial agreements, asking your partner to sign such a document can make them feel alienated, suspicious, or betrayed. Be sure to carefully outline your concerns before broaching this subject with your loved one.
Security
Often times one of the main boons of marriage is the guaranteed financial security for the less affluent spouse, or even for the spouse who is unemployed or underemployed. If one partner enters the union without a large amount of assets, and chooses not to work during the marriage, in the event of a divorce that partner will still have access to his/her spouse’ s premarital finances. Upon signing a prenuptial agreement, if one partner enters the marriage wealthier than the other, it will stay that way if a separation is to occur. This agreement then helps to ensure that both parties are marrying for purposes other than financial security.
Emotional Issues
While it’s nice to believe that these issues can be looked at logically and rationally, setting aside emotions during this process can be a difficult task. While there are many partners out there who support the financial independence of their spouse, many might take this suggestion as an assumption that one party is only in it for the money. This can take an emotional toll on both partners from which it’s difficult to heal.
Choose Wisely
When it comes to prenuptial agreements, each scenario will be best suited by a different act. If you’ re unsure about what to do, talk over the issue with friends, family, and most importantly your spouse, in order to understand your needs and prepare for the future.
This article was contributed by Sandy Wallace, an aspiring lawyer who loves to share his far-reaching knowledge of law with anyone who will listen. Sandy writes on behalf a Denton divorce lawyer from Hammerlie Finley Law Firm –Texas’s passionate, personable divorce and family lawyers.
Editor’s note: See also our guide to some of the best Texas family lawyers here – based on reviews, ratings and more.
After the recent cuts to legal aid the government has taken steps to redress the balance in favour of separated parents by announcing £6.5 million of support. The money will help over a quarter of a million separated parents throughout Britain, funding pioneering and innovative support to help them work together for the sake of their children.
The new funding has been awarded to seven voluntary and third sector organisations and will give around 280,000 separated families targeted help to work together in their children’s interests. The funding is part of £20 million the government has dedicated to helping separated families, as it attempts to provide as much support to out of court settlements as possible following the large cuts to legal aid. The coalition will hope that this extra funding will prevent warring couples from representing themselves in court, which slows down the legal process and often results in vitriolic testimonies against former partners. Taking couples away out of this confrontational environment should create a more constructive atmosphere that is much less harmful to any children involved.
The government funding has been awarded to projects in Powys, Oxfordshire, Cheshire, Newcastle, Warwickshire, Scotland, Kent, Stirlingshire, Angus, Birmingham and the West Midlands. The projects include an online tool that provides coaching to separated couples and face to face guidance and mediation projects to help low income couples. Alongside the schemes are plans for parenting classes for teenage mums and dads, counselling and therapy projects and specialist support for those who live in fear of their ex-partners.
The focus on providing mediation services highlights the government’s desire to protect the interests of children in these situations. Because mediation is focused on helping couples resolve their differences amicably there is less risk of the separation being hostile as it can often be when taken through the court system. Children will be better off in a family where parents are on good terms and focussed on being the best possible parents to their children, rather than looking after their own personal interests.
It will be some time before we can assess the impact of the government’s latest efforts to give families an alternative to going through the court system. Whilst the cuts to legal aid may help to cut the deficit in the long term, critics of the move will maintain that in many cases mediation is simply not viable as an option for those separating. In many relationships communication deteriorates to such an extent that mediation will not help and court proceedings are ultimately required. However this latest round of funding is focussed on helping parents re-engage with each other no matter how bad their relationship has become. Legal aid is no longer a reality for many separated families, and they will have to decide if they want what is best for their children before completely rejecting family mediation.
About the author: Ramsdens Solicitors offers help settling child custody disputes inside and outside of court.
Background
Civil partnerships were introduced in the UK in 2005, but legislation such as the Matrimonial Causes Act 1973 has historically prevented the marriage of same sex couples. In a bid to step closer to equality, the Coalition Government introduced the Marriage (Same Sex Couples) Bill (“the Bill”) which will legalise the civil and religious marriage of same sex couples. If the Bill receives Royal Assent it will undoubtedly mark an important milestone in the battle for equality. A number of YouGov surveys published between 2012 and 2013 reveal that although the precise figures vary, the majority of participants have confirmed their support of the legalisation of same sex marriage.
On overview of the area
While the majority of the British public appear to be in favour of same sex marriage, presumably many of us anticipated that making it legal would simply require the Government to extend the current legislation to include the gay community. However, some unanticipated difficulties have arisen during the drafting of the required new legislation.
One of the main causes of confusion that has arisen is that under the present drafting adultery will only be a ground for divorce if the adultery has taken place between the cheating spouse and a member of the opposite sex. In other words, if two men are married and one of them is unfaithful with another man, his husband will not be able to petition him for divorce on grounds his adultery. Instead, he will have to rely on grounds of unreasonable behaviour. If, however, his husband were to be unfaithful with a woman, the aggrieved husband could petition for divorce on grounds of adultery.
There has been concern that some couples will choose to wed to benefit from tax and other reasons disassociated from traditional factors such as love and children. Others argue that those who take this view are simply opponents of same sex marriage seeking to opportunistically discredit the viability of the Bill.
The Marriage (Same Sex Couples) Bill was not featured in the Queen’s Speech this year, but it continues to progress speedily through the House of Commons and is expected to reach the House of Lords in June. The Bill may be subject to amendment on its way to Royal Assent and once it becomes law certain aspects may be made subject to judicial interpretation (for example, notions of consummation and adultery seem particularly vulnerable to litigation given the unanticipated difficulties). Despite the technical difficulties faced by the legislators so far, the majority of the British public supports the right of same sex couples to marry and we are well on the way to making it legal, despite some bumps in the road.
For more information on same sex marriage of any area of family and matrimonial law contact Lisa Kemp
Parental child abduction cases are on the rise. In December 2012, the Foreign and Commonwealth Office launched a media campaign in which they revealed that parental child abduction cases had risen by 88% in under a decade. Between 2001 and 2011 there was a 206% increase in the number of children being taken to a country which has not ratified the Hague Convention on child abduction, making it much harder to arrange for the children’s return.
In two recent cases the main issue for the courts has been in determining where the children are habitually resident, and therefore whether they should be returned to the country from which they have been taken.
Child Abduction Case 1 – R v A
In R v A [2013] EWHC 692 (Fam) the parents originated from Zimbabwe and moved to California following their marriage. Their two oldest children were born in California and their third child was born in England. The parents had travelled to England on what the father claimed to be a temporary visit for the sole purpose of the caesarean section delivery of the third child. Following the birth, albeit after some delay due to medical complications, the family returned to California. Thereafter, the mother removed the children from California and brought them to England without the consent of their father.
In determining that the children were not habitually resident in England, the court considered the mother’s witness evidence to be “unimpressive” and inconsistent. The children’s stay in England had not become an ordinary part of their lives and the mother did not own a home there. An order returning the children to California was made.
Child Abduction Case 2 – FT and NT
In FT and NT (Children), Re [2013] EWHC 850 (Fam) both parents were British nationals who were born in the UK. Two years after the birth of their second child, the family relocated permanently to Canada. Whilst the father conceded that the move was intended to be permanent, he claimed that he made the decision to relocate conditionally on both parents finding jobs, being settled and being happy. The parties separated soon after their relocation.
The father maintained that there was always an agreement between the parties to return to the UK if either or both of them was unhappy in Canada. He contended that whilst the intention was to settle in Canada, this was never achieved.
The court dismissed the father’s assertions and found that there could be “no other conclusion” than that the children were habitually resident in Canada at the time of their removal by their father. The evidence in favour of this decision was “overwhelming” and included such facts as the family home in England having been sold six months before the move, the mother attaining employment in Canada and the enrollment of the children in a Canadian school and nursery respectively. The court accordingly made an order returning the children to Canada.
In 2011/12, children were abducted to 84 different countries. The Foreign and Commonwealth Office is limited in how it can assist parents whose children have been subject to parental child abduction, particularly where they have been taken to countries which have not ratified the Hague Convention. If you are concerned that your child is at risk of parental child abduction, you should contact a child abduction solicitor as soon as possible.
You can also download a help pack from the Reunite website at www.reunite.org.
For help and advice relating to child abduction cases, or any other area of family and divorce law, contact Lisa Kemp
It seems same-sex marriage is all the talk these days – which states allow it, which states ban it. But what about same-sex divorce? Why is no one paying attention to the laws that surround the dissolution of a union?
Imagine the Following Hypothetical Story:
Jane and Jill wanted to get married. Their state didn’t allow same-sex marriages. So, they traveled to one of the USA’s nine states that did allow such a union. Since the state didn’t have a residency requirement, they were able to just pop in for a few days. After the honeymoon, the couple returned to their home and proceeded with life as usual.
Several years down the road, married life began to loose its luster. Both Jane and Jill wanted to end the marriage. Things just weren’t working out. However, their state didn’t acknowledge their union from the very beginning. Therefore, the state said there wasn’t anything to dissolve. Divorce wasn’t an option.
Do They Need a Divorce?
At this point, about the only option Jane and Jill have is to relocate to a state that allows same-sex marriages so they can get a same-sex divorce. While the law varies from state to state, most have a six month to two year residency requirement for divorce. Can you imagine?! “Honey, I don’t want to be in a marriage with you anymore, but let’s pack up all our earthly possessions, quit our jobs, sell our home, move across the country, and start a new life – even though we can’t stand the sight of each other. Don’t worry. This is just a temporary situation. After a few years, you’ll finally be rid of me.”
So, do Jane and Jill even need to worry about divorce? If their home state doesn’t see them as married, why do they need to be divorced?
If one spouse gives birth to a child, the law presumes the other spouse is the parent. Additionally, neither spouse can re-marry or enter into a civil union with a new partner without setting themselves up for bigamy charges. And what happens to their home, assets, and life insurance policies?
While many people are interested in the legal termination of their marriage, the emotional dissolution is sometimes just as valuable. People need closure. Divorce usually provides that.
What to Expect
Deborah Wald of the National Family Law Advisory Council for the National Center for Lesbian Rights says Jane and Jill are “wed-locked.” This precarious position is one no one wants to find themselves in.
If a couple is wed-locked, they can expect a difficult legal battle. For starters, the process is very confusing to nearly everyone involved. Therefore, there is the potential for lots of honest mistakes to happen. In the meantime, the situation will probably be very expensive to get sorted out.
If Jane and Jill want to get a divorce in their home state, a state that doesn’t recognize their union, they will have a difficult fight ahead of them. One such couple was recently able to get a divorce because they were able to prove the situation unconstitutional – they didn’t have a remedy for getting out of their marriage.
Other divorce lawyers push for nunc pro tunc (retroactive to an earlier date) judgments. Either way, same-sex divorce is very, very different from heterosexual divorce.
What’s the Difference?
As of now, there is no universal rule for same-sex divorce. Since it isn’t recognized on a federal level, retirement packages aren’t easily divided up. Other financial issues may arise, and tax ramifications are usually different for same-sex divorce too.
Child custody cases tend to be very ugly in same-sex divorce. The child is biologically related to one parent, but not the other. This can cause some serious problems, even if both parents raised the child since birth. Legal rights for non-related parents are tricky.
In a perfect world, a gay couple would have a prenuptial agreement. This is about the only way to navigate safely – with minimal drama – through the divorce process.
In addition to legal differences, same-sex marriages differ from heterosexual marriages on an emotional level too. A lot of divorced gay people feel a much larger sense of guilt. Since same-sex marriage advocates have fought so hard for their right to marry, the destruction of the marriage seems like a much bigger failure. Married same-sex couples often feel like role models for the gay community. While it certainly isn’t true, they feel their divorce is letting everyone down.
What Do You Think?
What are your thoughts on same-sex divorce? Should states offer an out to unhappy couples, even if they don’t offer same-sex marriage? Do you think gay couples should even worry about divorce if things like property and children aren’t involved? Let us know what you think!
Guest author Jessica Velasco works for a Clearwater divorce lawyer. Since Florida doesn’t allow same-sex marriage, she was recently approached by a wed-locked couple seeking a divorce.
(Guest post from a US family law firm) The dissolution of a marriage can be an emotional difficult and financially draining uphill battle. Many couples who are considering divorce opt for a legal separation in order to test the waters before taking the steps to divorce, which can often be an uphill battle. While a divorce is a proceeding that legally dissolves a marriage and allows each party to go on to embark on separate lives and romantic relationships, a legal separation allows a couple’s marriage to remain intact while the parties live separately.
A couple becomes legally separated when they wish to remain legally married, but live lifestyles that are removed from one another. The parties separate and receive a court order regarding issues similar to those they would come across in a divorce, like the division of property, alimony, child support, custody and visitation. Alimony and child support for legally separated couples are gained through a motion “pendente lite,” which is Latin for “while the action is pending” or “during litigation.” This motion is more commonly known as a separation agreement, and exists to protect the parties’ interests until a final decision to file for divorce is made. Separation agreements are not to be taken lightly, as they take precedent in divorce proceedings. A judge commonly assumes that the spouses in legal separation are pleased with the separation agreement, and will assign divorce conditions accordingly by simply converting the separation agreement to a mirrored divorce agreement.
While getting a legal separation in order to allow time to attend counseling or be sure of their decision before a divorce is common, far more uncommon is couples who opt for legal separation rather than divorce entirely. These couples usually choose legal separation for religious, financial or personal purposes. Most religions frown upon divorce, so especially religious parties will choose a legal separation in order to continue on with their own lives while remaining married for religious purposes. In many cases couples can benefit financially from remaining married. Maintaining a ten year marriage qualifies couples to take advantage of certain social security benefits, and marriages in which one or more spouses is a member of the military have especially profitable options.
An important aspect of a legal separation is that parties may not enter another marriage or domestic partnership while separated. To file for separation, one party must reside in the county where the papers are filed at the time the case has begun. There is no required length of residency for a legal separation. If you are facing the difficult decision of filing for legal separation or divorce, consult with a family attorney who can help guide you on your path.
Most marriages end in divorce. Different jurisdictions have different rules pertaining to how assets and liabilities are distributed to the parties after a divorce. When young married couples decide to divorce, student loan debt is a common liability that the parties must cope with. Ongoing expenses that may be incurred if one spouse is actively attending college can influence the amount of alimony awarded to a spouse.
How States Treat Assets During Divorce
Our lawyers at Tenn And Tenn, P.A. tell us that states generally fall into three categories when discussing divorce. In community property states and if the parties have not agreed to distribute assets in a certain manner, the court will divide the marital assets in half. If the debt is incurred during the marriage, the courts will view student loan debt as community property. Student loan debt is a liability and hence is subject to being apportioned between the parties.Other states follow a common law rule. For example, New York also seeks to divide marital property equitably. Unlike a common law jurisdiction, however, the court need not divide everything equally. A court that follows a common law rule will consider a wide array of factors in order to achieve what it perceives to be a fair outcome. Such factors include whether one spouse has title to a property, whether a spouse has commercial interests, and the couple’s living arrangements.
Some states stretch the equitable distribution concept even further. Some states, like Massachusetts and New Hampshire, also seek to provide an equitable distribution during the asset and liability allocations. These states uniquely consider all property owned by both parties, regardless of whether the assets were acquired during the marriage or owned personally. The fact that a party owned an asset or a liability prior to marriage may be a factor for consideration, but is not determinate of the outcome.
Responsibility to Pay for an Education
Whether a party is responsible for continuing payments on a divorcing spouse’s student loans varies depending upon the court’s decision. Even in community property states, courts have some degree of latitude in making asset decisions. Most states permit courts to order parties to pay other liabilities if the court finds that it would be in the interests of justice to do so.
If one spouse is actively attending college, the issue becomes one of spousal support. Tuition and literary expenditures may increase one party’s living expenses, which can increase the alimony award. Among other factors, courts will often consider retraining or educational expenses in awarding spousal support to one party. If a party who is receiving alimony is attending college or seeking job retraining, the court may increase the award of alimony accordingly. If a court order is issued compelling one party to pay spousal support, that party must do so regardless of whether he or she agrees with the award.
While courts normally follow statutory guidelines, the goal in most states is to achieve an equitable dissolution of the marriage, not an equal one. In most states, courts have a wide degree of latitude to make decisions regarding asset allocations, liability allocations, and spousal support. Navigating the laws and presenting a compelling case in the pleadings requires the knowledge of an experienced local attorney.
Saam Banai is a freelance writer and editor and proponent of fair dispersal of assets after divorce. If you find yourself in the midst of a divorce and have costly college payments to make in addition to everything else, contact a divorce attorney from the firm, Tenn And Tenn, P.A. Their experienced attorneys are uniquely equipped due to their training and experience to provide large law firm excellence in a more client-centered atmosphere.