General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
In many divorce cases, the most thorny property division question is: what to do with the marital home?
That is especially likely in a depressed real estate market like the current one.
One commonly agreed to option is for the spouse who wants to remain in the house to refinance the other spouse’s name off the mortgage.
But what if the occupying spouse doesn’t have sufficient income or credit to accomplish what was agreed to?
Well, that may depend on what state you live in.
A Virginia women is apparently facing jail time for not being able to refinance as agreed.
Due to the downturn in the real estate market, she also has been unable to sell her way around the refinancing obligation.
Read more in this WAVY TV 10 (VA) article: York Co. woman faces possible jail time for failing to refinance, sell home.
A millionaire and his wife are pitted against each other in an ongoing custody battle … over their dog.
The “father”, who has no children, has spent over $60,000 to win custody of the pooch.
At first, the couple engaged in roughly equal timesharing, by agreement.
Then the “mother” accused the “father” of abuse.
The judge didn’t buy it, and the “father”’s timesharing resumed …
Until the “mother” moved to Connecticut.
Since then, the “father” has had no time with their pet.
The “father” is filing an appeal.
Read more in this New York Daily News article: Fur flies over dog custody.
When children are taken into foster care due to alleged abandonment, abuse or neglect, it sets in motion a series of events, including various hearings in juvenile dependency court.
Juvenile dependency court is unlike any other court.
Many of the families of removed children are indigent. Parents attorneys’ and children’s attorneys are typically court-appointed. They handle hundreds of cases per year.
They barely know their clients, let alone the parents and the family’s circumstances.
Yet these overburdened court-appointed attorneys are the just about the only thing standing between children - and removal from their parents and families.
The courts don’t allow much time for parents to defend return of children to their families. In California, sometimes just five minutes or less.
That’s all the time a judge has to get the facts and determine the best outcome. Informed only by attorneys and case workers who have inadequate time and too large caseloads to sort out the truth and come up with solutions.
And so children are removed from their homes … whether or not they should be …
Read horror story after horror story in this troubling Mercury News article: How rushed justice fails our kids - BROKEN FAMILIES, BROKEN COURTS: A MERCURY NEWS INVESTIGATION.
A father has not seen his son for more than a year.
The boy’s mother took the boy on a vacation to India.
And never returned.
India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. And India does not view child abduction as a crime.
As a result, India law enforcement reportedly will not act in cases such as this father’s.
As his last resort, the father has sought the aid of India’s apex child’s rights council because, he argues, his son has been denied contact with his father. He has also contacted the National Commission for Protection of Child Rights.
The boy in this case is a US citizen, and lived in the US for years prior to his abduction. Even under Indian law, his case should be heard in the US.
But …
Read more in this Telegraph - Calcutta article: NRI dads fight for ‘abducted’ children.
About half of American marriages end in divorce.
But they tend to last a bit longer today (8 years) than in the past (7 years).
Teen marriages, the most susceptible to failure, have declined.
Most couples are tending to marry a bit later in life.
About two-thirds of all American breakups are initiated by the wife.
Couples who are very demonstratively affectionate in public settings are most likely headed for trouble.
Modern divorces can be nasty and expensive.
One state stands out in American history as “divorce capital of the nation” around the turn of the 20th century: South Dakota.
At one point, the state’s residency requirement was just three months and several different grounds for divorce were available. In an era when residency was typically one year and the only ground was adultery.
Examples of grounds for which divorce was granted in the South Dakota of that era include:
For reasons like the above, South Dakota attracted unhappy wealthy couples from around the nation, who were in search of a quick, private divorce.
More than six thousand divorces were entered over a twenty year span. Two-thirds of them for people from out of state.
The divorce industry spurred the local real estate market, because couples needed a local home to establish residency. And contributed to relatively high local income.
To commemorate South Dakota’s historic distinction, the Minnehaha County Historical Society would like to erect a marker in Sioux Falls.
Read more in this KXMC TV Minot [SD] News article: Marker would recognize “divorce capital” and this Rapid City [SD] Journal article: Sioux Falls: Divorce capital of the world.
Last month I posted Canada to Enforce Premarital Agreements Crossing into Religious Issues.
In that case, the Canadian Supreme Court ordered a man to pay his ex-wife nearly $50,ooo for making her wait 15 years for a religious divorce - in violation of their prenuptial agreement.
The Canadian high Court based its ruling both on the contract and a Canadian statute that penalizes spouses who hold up religious divorces.
Now the ex-husband is seeking an appeal to challenge the statute as interfering with freedom of religion and as being discriminatory, because he argues that it targets Jews.
It is anticipated that the Canadian Supreme Court will decline to hear the appeal, possibly because the ruling was supported on contract grounds independent of the challenged statute.
Read more in this Montreal Gazette article: Man challenges divorce law.
Hawaii, which has a poor track record of collecting delinquent child support, has decided to crack down on deadbeat noncustodial parents.
The state has hired a paralegal and an investigator and is currently building and prosecuting misdemeanor and felony cases for chronic nonpayment of child support with insufficient justification.
The crackdown targets those significantly in arrears and who are well able to meet their legal obligation.
The new measures are the talk of Hawaii and are in fact motivating noncustodial parents to make payments toward their support obligation.
Prior to the crackdown, only a handful of cases were prosecuted in the last quarter of a century, even though the law permitted such prosecutions.
This new initiative is funded by a federal grant of funds.
Read more in this Honolulu Advertiser article: Indictments rattle deadbeat parents.
The family court’s mission is to make child custody determinations based on the best interests of the child. But some aspects of child rearing are not black and white and, arguably, not purely parenting decisions.
Take religion. An informal case survey suggests that custody battles are on the rise and that religion is increasingly the issue sparking the custody dispute.
How should the Family Court take these differences into account in custody awards? Which factors should tip the balance which way?
Free exercise of religion is constitutionally protected. This may cause judges to shy away from preferring either parent based on that parent’s exercise of religion.
But both choice of religion and degree of devotion impact on lifestyle of the child. And a child’s lifestyle is very much a parenting matter which is a legitimate concern of the Family Court.
Sampling of tough issues addressed in some recent cases:
According to the survey, judges are as likely to favor the religious parent as the secular parent.
Read more in this New York Times article: Religion Joins Custody Cases, to Judges’ Unease.
Here in South Florida, we have a lot of unmarried senior couples, in “second-time around” relationships, cohabiting with each other. The reasons for not remarrying vary.
Although Florida is not a common law marriage state, bare cohabiting can leave some important things up in the air - or up to a judge. A cohabitation agreement may avoid either outcome and facilitate clarity and control.
The agreement can set out household financial arrangements and expectations in the event of death or breakup.
The agreement, with companion documents, can give a cohabitant medical decision-making authority they would not otherwise have.
The agreement, with companion documents, can give the right to manage business / financial affairs of the cohabitant in the event the cohabitant is unable to do so.
The agreement, with companion documents, can provide for disposition of part or all of an estate to a cohabitant.
Little is automatic for an unmarried couple and extra effort may be required to “take care of” the surviving cohabitant - if that is the intention.
A cohabitation agreement is a starting point toward that goal, but not the ending point.
Although it is not specfic to Florida, more can be read in this ElderLawAnswers’ article - Cohabiting Seniors: Protect Your Rights.
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