When to Let Go: Practice Doesn’t Alway Make Perfect; Sometimes It Just Makes for Frivolous and/or Vexatious Litigation

Sometimes a spouse (or parent) gets stuck on something. They just can’t turn loose of it.

They start to sound like a broken record. Maybe even a little obsessed.

Perhaps they file for a restraining order of protection against domestic violence. (Perhaps something else.)

They lose. The court denies or dismisses their petition or motion.

So, they wait a week or two and then … they file again.

Essentially the same exact allegations. Just reworded a little bit.

And again they lose. Before the same judge, of course.

Who remembers the last go-round. Perfectly.

Or maybe the spouse or parent files for substantially the same relief in their divorce or child custody case this time around.

It may be pure malice. Or it may be sincere conviction that they deserve what they are seeking …

And the judge just didn’t get it last time, but this time will be different.

Truth be told, even some attorneys may humor their clients by enabling these legal efforts.

But the truth is that the claim does not improve with repetition. Quite the contrary.

More likely, the patience of the judge subjected to the same matter yet again will be sorely tested.

And the Court’s assessment of the spouse or parent’s credibility and reasonableness may suffer. Potentially, irreparably. First impressions ….

On top of that, in at least some of those instances, the spouse or parent may also be setting themselves up to have to pay the other spouse or parent’s legal fees incurred to defend vexatious and/or frivolous litigation. In addition to their own legal fees, of course.

And, in still other cases, the spouse or parent may be exposing themselves to the prospect of a separate civil lawsuit for damages, based on malicious prosecution or abuse of process or other similar legal theory.

When your attorney (or other friendly third party familiar with your case) advises you to let something go, you should give that advice thoughtful consideration. If you still remain firmly convinced of the rightness of your position after an open discussion with your attorney or other advisor, then consider seeking out a second (professional) opinion before you dig in your heels and insist or persist.

Following this advice just may save your money – and your case. Really.

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Always Get It in Writing: Girlfriend Sues Wealthy Boyfriend Over Alleged Oral Promise to Buy Her Posh Manhattan Apartment

Billionaire eighty year old Boyfriend and famous twenty-eight year old Girlfriend are a couple for several years.

Girlfriend, a foreign actress, is now pursuing higher education in New York City.

Boyfriend, an investor and philanthropist, allegedly promises to buy Girlfriend an Eastside apartment.

Boyfriend dumps Girlfriend.

Boyfriend has a new girlfriend.

Boyfriend gives an Eastside apartment (reportedly the one chosen by Girlfriend) to his new girlfriend.

Girlfriend is angry.

Girlfriend sues Boyfriend in New York … for $50 million.

That could buy quite a few apartments, even in New York City.

Girlfriend also alleges that Boyfriend was physically abusive toward her.

Read more in this New York Daily News article: Billionaire George Soros sued by former flame Adriana Ferreyr, who claims he reneged on luxe digs and this New York Post article: Soros’ jilted ex on their 5-year affair and his sudden change of heart.

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Innocent Spouse Rule on Taxes Relaxed

Way too often, clients come in who are totally in the dark about family finances.

Their spouse has been bringing home the bacon, managing the family accounts, paying the family bills, working with the family or their business accountant to prepare tax returns.

In too many instances, the breadwinning spouse orders the the other spouse to sign a joint return right now without even reviewing it. “It’s all correct, I’ve already checked, just sign it.”

That spouse may well be abusive, to one degree or another.

As a result, the intimidated spouse really has no idea how much comes in or even what brings it in, let alone the difference between gross and net and the basis for the spread.

They may – or may not – have some vague hunch that something is not quite right. But they are afraid to ask any questions, much less challenge their spouse.

And so it always comes as a rude shock that they are generally just as accountable and responsible to the Internal Revenue Service (IRS) as the controlling, breadwinning spouse.

Unless they qualify under IRS rules as an Innocent Spouse.

And under the traditional rule, it wasn’t always so easy to qualify and the relief wasn’t always so expansive.

Thanks to recent changes in the rules, it is now easier for an ignorant spouse to qualify for meaningful relief as an innocent spouse, as long as the couple is divorced or living separately for a year.

The new rule may excuse or reduce the liability of not only an unknowing spouse but also even a knowing spouse who signs a return under duress from the breadwinning spouse.

The new rule also reduces the impact of a two year time limit on claims for innocent spouse status. This change will even allow previously rejected applicants to reapply for protection.

Read more in

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Authorities React Swiftly and Aggressively to Alleged Cyberstalking of Mayor’s Daughter

Forty-eight year old New York Man falls for twenty-eight year old Woman.

Man allegedly e-mails Woman, texts her and posts on her Father’s Facebook page for work.

All told, seven lovestruck communications.

Law enforcement authorities instruct Man to cease and desist.

Man also texts New York police officer requesting assistance in reaching Woman and Father to make their wedding plans.

Man is arrested for aggravated harassment by city police as well as federal agents, and tossed in jail. Man is confined pending bail.

Impressive response from law enforcement?

Well, Father is a wealthy businessman and New York City’s mayor.

Man’s alleged conduct represents a modern, high tech twist to traditional stalking, known as “cyberstalking”. Computer and, more specifically, internet-facilitated stalking. No face to face contact or interaction required.

Man faces seven years’ incarceration.

Man’s defense reportedly is that the charges are ridiculous.

Oh, Woman has never met or even heard of Man. And Man works in a pizza place.

Man may also be charged with forging a federal judge’s signature on a court order in an unrelated matter.

Read more in this New York Daily News article: Police arrest cyberstalker obsessed with Georgina Bloomberg, Mayor Bloomberg’s daughter and this NBC New York article: Bloomberg Daughter’s Cyberstalker: “It’s Ridiculous” I’m in Jail.

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How to Financially Protect an Unmarried Cohabiting Partner In Case Death – or Life Events – Parts Them

At the moment, marriage is on the decline, at least temporarily. So, more couples are cohabiting or living together.

Generally speaking, that represents freedom from commitment and obligations.

That may be agreeable to both partners, at least for a time. But the time may come when it is not so agreeable, at least to one of them.

Yet by then it may be too late.

For example, a fifty year old Swedish author (Boyfriend) cohabited with Girlfriend. For thirty-two years.

Boyfriend and Girlfriend had no written cohabitation agreement between them and Boyfriend did not have a will.

Boyfriend wrote a trilogy consisting of three novels. He entrusted all three to his publisher simultaneously.

Boyfriend’s trilogy went on to sell kazillion copies and generate a great deal of revenue and income. Sadly, Boyfriend met an untimely death and didn’t live to see that.

At the time of Boyfriend’s death, his estate was worth about $40 million.

Under Swedish law, Girlfriend inherited from Boyfriend … practically nothing. Despite thirty-two years of living together.

Absent legal marriage or a will, a cohabiting boyfriend or girlfriend in much of the United States wouldn’t fare any better than Girlfriend.

Although it appears to have survived to some degree in Canada, the concept of common law marriage has all but faded away in many states in the US.

While both partners may have open eyes regarding their mutual day to day “freedom”, they may not intend to sign up for absolutely nothing in the event of a breakup or death twenty or thirty years into their relationship.

The bottom line is that unmarried cohabitants for the long haul, at least, would do well to ponder their legal position and potential vulnerability in the event of a breakup or their cohabitant’s death.

Even couples who wish to circumvent all the day to day obligations accompanying marriage can still take some fairly simple and straightforward steps to give their long term partner a measure of protection and comfort in the event of one’s death or departure from a lengthy cohabitation.

Those steps are:

  1. A will or trust. A will makes provision in the event of a partner’s death. A trust can make provision in the event of a partner’s death or in the event of a breakup. But it is very important to note that a trust or will can generally be changed at any time as long as the person who made it is still alive and legally competent … without notice to someone who was previously a beneficiary. There may be circumstances and conditions that may render a will or trust irrevocable and unmodifiable. But it’s simpler and more common to go with step 2 …

  2. A cohabitation agreement. This is a contract that spells out both parties’ understanding of their economic rights and obligations arising out of their relationship. The agreement can pertain to their breakup, the death of either partner, or both situations – as well as the death of both partners simultaneously.

Read more in this [Canadian] Financial Post editorial: Don’t wait till death do you part.

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Arizona Father Obtains Mediated Visitation and Child Custody Agreement in Brazil Concerning Daughter Allegedly Abducted There By Mother More Than Three Years Ago

US Father and Brazilian Mother have Daughter together.

Back in 2008, when Mother did not have legal status in the US and the family lived in Illinois, Father and Mother were battling over custody of Daughter.

So Mother allegedly made off with Daughter to her native Brazil.

Father hasn’t seen or spoken to Daughter since.

Until recently, that is.

But a couple of weeks ago, Father, who now lives in Arizona, went to mediation with Mother regarding Daughter, in Brazil.

The mediation was different from the typical divorce or child custody mediation. Not only did Mother’s mother attend (unusual in itself), but both the US State Department (the US central authority) and the Brazilian Central Authority had representatives attend under the Hague Convention on the Civil Aspects of International Child Abduction.

The marathon mediation session went on for fifteen hours. Kind of long for one session, but not altogether unheard of.

But the mediation was successful, and Mother and Father resolved custody and visitation and timesharing issues regarding Daughter.

And Father got to see Daughter for the first time in over three years.

Astonishingly, Daughter still remembered Father from before her abduction at two and one-half years of age.

And the two got to spend some quality time together in Brazil, having outings and re-establishing their father-daughter bond.

While the agreement cannot be described as overly generous to Father, it does at least provide for unlimited phone and internet-facilitated communication between Father and Daughter and for regular, if infrequent, timesharing and visitation with Daughter in Brazil until she is twelve and, thereafter, lengthier visitation and timesharing here in the US.

Meanwhile, Father continues to work on petitioning for legislation to facilitate blocking unauthorized removal of children from the US.

Mother could face federal criminal charges if she returns to the US.

Daughter is one of approximately twenty American children detained in Brazil despite the requirements of the Hague Convention.

On the other hand, Brazil claims that that about seventy Brazilian children are in the same boat here in the US.

Read more in this [Tempe, AZ] East Valley Tribune article: E.V. man finally sees daughter who was taken to Brazil; custody deal reached and this [Tempe, AZ] East Valley Tribune article: San Tan Valley man hopes international fight for daughter spurs law.

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Are Hurricanes (and Other Natural Disasters) Addressed in Your Parenting Plan or Timesharing Arrangement?

South Florida Husband and Wife have Children together.

Husband and Wife divorce.

Husband and Wife agree on timesharing schedule which is incorporated into final judgment.

Husband moves to an apartment east of Federal Highway, close to the ocean.

Wife and Children remain in marital home west of Florida’s Turnpike, well inland.

First hurricane season since divorce arrives.

A severe hurricane is expected to arrive during Husband’s timesharing.

Husband lives in an evacuation zone and it is anticipated that authorities will encourage Husband to stay in a shelter until the hurricane passes.

Wife suggests that Children stay in their own safe secure home with Wife during hurricane.

Husband insists on exercising his timesharing with Children, maintaining that whatever happens will be a learning and character-building experience for Children.

Such scenarios play out every year in South Florida.

And many variations of it.

(Husband lives in trailer … or houseboat. Or, Husband wants to take kids out of state – or out of the country – to avoid the hurricane completely.)

Unfortunately, the odds are high that neither the marital settlement agreement or parenting plan or final judgment specifically addresses situations like hurricanes.

Which are inherently emergency situations. Stressful and wrenching. Imminent.

One parent or the other – or both – start clamoring for emergency hearings over how to deal with the hurricane.

Just not feasible in the overwhelming majority of cases.

Although it may not be top of mind when your case is being decided / negotiated, what happens in a hurricane (or other natural disaster, especially where there’s warning) is well worth considering ahead of a crisis.

After all, at the very least, your children’s peace of mind may be at risk; at most, their actual safety and wellbeing.

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Modification of Child Custody in Contempt and Enforcement Proceedings is Reversed

Florida Husband and Wife have Children together.

Husband and Wife divorce.

Florida family court awards Husband primary residential custody of Children.

It appears that Husband may not be entirely cooperative with Wife’s exercise of visitation after their divorce.

Wife seeks and obtains from the Florida family court several different orders for enforcement of her visitation and holding Husband in contempt of court for his failure to comply with the Court’s orders for timesharing with Wife. The Florida family court also awards Wife significant compensatory visitation or makeup timesharing.

Because of Husband’s obstinacy, the Florida family court, without an evidentiary hearing, ultimately modifies custody of the Children to grant Wife primary residential custody of the Children. Without even having been asked to do so.

The court makes no written findings of fact in support of its ruling.

Husband appeals the modification of Children’s custody. On appeal, an intermediate level appellate court reverses for the following reasons.

  1. It is well-established here in Florida that children should not be punished due to their parent’s violation of court orders, or other misdeeds.

  2. Further, contempt proceedings are to enforce compliance with previous court orders. Not to modify custody. Especially not where the parent seeking enforcement has not put the other parent on formal notice that they are even looking to modify custody.

  3. And last, but not least, the Florida family court did not make any express findings that modification of custody would be in the best interests of the Children.

Read more in the Florida court’s appellate opinion reversing the modification of child custody in contempt proceedings.

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Last Year’s Domestic Violence in New York City Shoots Up Twelve Percent

New York City reports an alarming 12% spike in domestic violence cases last year.

Domestic violence against wives, girlfriends and ex-partners climbed by an even more troubling 17%.

Domestic violence against boyfriends and husbands also grew, but only by about a more modest 5%.

Eighteen percent of cases are for violating an existing domestic violence restraining order of protection.

Part of the rising statistics is a broadening of the definition of domestic violence to include violence between cohabiting intimate partners without children in common and dating couples, including teenagers and same-sex couples. But only part.

Many attribute the greater part of the increase in violence to the fallout of the recession.

Further jumps in the statistics are anticipated as a result of relaxation of the requirements to press criminal charges for choking an intimate partner.

Read more in this New York Daily News article: Domestic violence jumps 12.3% in NYC; Brooklyn is borough with most cases.

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Oil Spill Victims May See Their Claims Paid Out By BP Seized to Pay Past Due Child Support

In some states, enforcement of child support obligations keeps up with the times and gets increasingly creative.

Take the state of Louisiana.

Last year, it passed legislation authorizing seizure of winnings at casinos by parents behind on their child support obligations. Not entirely unique.

More recently, Louisiana has been eyeing claims paid out by BP Oil as a result of last year’s oil spill.

It turns out oil spill claims were filed by nearly 10,000 parents in arrears, who owe over $100 million in past due child support.

So Louisiana is now intercepting – seizing – their claims payments sent by BP.

Read more in this UPI news article: Oil spill aid diverted to child support.

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