Divorce, Annulment, Neither or Other?

“My spouse and I were married twenty-five years ago when we lived in another state. I found out later that our marriage was invalid. I want out of the ‘marriage’ now anyway. What do I do?”

Cases like this can be complicated, and the answer depends on the particular facts.

Why was the marriage invalid? Was the other spouse responsible? Did the other spouse know all along? When did the inquiring spouse find out about the invalidity? Did he or she take any action at that time? Are there children? Is there ‘marital property’? Does the inquiring ‘spouse’ want anything beyond “getting out”?

Florida generally will not grant a divorce unless a couple was actually married.

What other states did the couple live in during the ‘marriage’? Perhaps they established a valid common law marriage under the laws of another state that they may have lived in previously.

Florida couples cannot establish common law marriages based on cohabitation here (since 1968). But Florida may recognize a valid common law marriage established under the laws of another state at the time that a couple lived there. If Florida recognizes a common law marriage entered in another state, Florida may grant a divorce.

But if divorce does not fit the facts of the case, depending on the reason that the ‘marriage’ was invalid, it is possible that the ‘marriage’ may be annulled. But, for several reasons, Florida courts disfavor annulment.

Annulment does not always fit the facts of the case just because divorce is not available though. In those cases, ending the bogus marriage may be as simple as walking away.

But in those cases, the inquiring ‘spouse’ will have no right to division of ‘marital property’ and no potential right to alimony, as they may at the end of a marriage. Does that mean they walk away with nothing?

Not necessarily. Depending on the facts of the case, the ‘spouse’ may be able to resort to other, substantially equivalent but less common legal strategies to get what they are entitled to.

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Child Support Delinquency: Time to Lighten Up or Crack Down?

ScienceDaily reports that Michigan is going “to try child support amnesty”. The program gives parents the chance to avoid all civil and criminal consequences of their delinquency by simply bringing their existing past due obligations current by the end of the year.

The reader may walk away from the article with the impression that the amnesty program is too harsh. At least until they read this piecefrom the Virginian-Pilot.

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Elder Abuse: The Other Domestic Violence

Florida has the largest population of senior citizens in the country, right? Actually, according to an article from the Contra Cost Times that distinction goes to California, not Florida.

The article highlights a too-largely forgotten category of domestic violence (as well as other types of abuse by strangers and relatives alike) : elder abuse.

Unfortunately, Florida also sees its share of elder abuse, both violent and hidden abuse.

With the aging of the population, more and more seniors are increasingly vulnerable to this form of abuse, both within and outside their own families.

For more Florida-specific information, visit the Florida Department of Elder Affairs. To report senior abuse in Florida, call 800-962-2873.

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NV Judge Places Children in Father’s Arsenal with Tragic Consequences

The presumption of a defendant’s innocence is guaranteed in criminal court by the US Constitution. And prosecutors must ultimately prove their case against the criminal defendant beyond a reasonable doubt.

But not in family court. There, the most important rights to be protected are those of the children. At least in Florida, the court is supposed to act in the children’s best interests. And the burden of proof is much lower than “beyond a reasonable doubt”.

But in the article from the Las Vegas Review-Journal below, it appears that a Nevada father’s rights in a family court child custody case were protected as though he were in criminal court – at the ultimate, tragic expense of his young son’s life.

August 31, 2005

NV Judge criticized after boy’s suicide

Glenn Puit

A 12-year-old boy who fatally shot himself in Henderson on Friday was the subject of a custody dispute in which a judge was repeatedly warned that the child was surrounded by loaded, unsecured guns, according to court records.

Syber Wells was found shot to death at his father’s Henderson home on Friday.

According to taped Family Court proceedings obtained by the Review-Journal, Judge Cheryl Moss was warned in April that Syber Wells and his two younger brothers, ages 10 and 8, were exposed to the unsecured firearms while in the custody of their father, Geoffrey Wells, 36.

The children’s mother, Maria Wells, said Tuesday she even videotaped the guns at her estranged husband’s home to prove to the judge that the children were in danger.

But when Geoffrey Wells maintained that the guns were secured and that the children were part of a military family trained in gun safety, Moss agreed to give Geoffrey and Maria Wells joint legal custody of the three children.

‘I don’t see a problem with the gun issues,’ Moss said. ‘As long as the kids are, I guess they’re trained as a military family, grow up like that, it’s kind of a unique situation.’

On Friday, Syber Wells was discovered dead at the home on Basic Street, Henderson police said. The child died from a gunshot wound to the head. Henderson police officer Todd Rasmussen declined to comment further, citing an ongoing investigation.

But Maria Wells said police told her they found unsecured firearms throughout her estranged husband’s house, and that her son committed suicide.

‘They told me they found guns everywhere,’ Maria Wells said.

Maria Wells went on to say that Moss should have never put the children in her estranged husband’s custody given the prior warnings about the weapons.

‘Every court hearing we had, we discussed it,’ Maria Wells said. ‘I had videotapes of guns laying around the house, and everyone seemed to ignore it.

‘She screwed up,’ Maria Wells said. ‘She didn’t address the issue.’

Moss did not respond to a request for comment on Tuesday.

Court spokesman Michael Sommermeyer said Moss is prevented by Nevada judicial cannons from discussing pending court cases.

Geoffrey Wells could not be reached because a phone to his home has been disconnected. His attorney, Gerard Bongiovanni, did not respond to a request for comment left at his office on Tuesday.

According to the videotaped court proceedings, Geoffrey and Maria Wells were involved in a heated custody dispute over the three children. The dispute included allegations of domestic violence on both sides and financial mismanagement.

Moss, in making her custody ruling in April, said she had no definitive proof of domestic violence by either parent.

‘I don’t have any arrests. I don’t have any drugs, alcohol,’ Moss said.

Moss also noted that she would continue to examine the custody status of the children as more reports from court appointed experts were received.

The judge also recognized that there was a great deal of acrimony between the parents of the children.

‘There’s really some bad blood,’ the judge said, adding Maria Wells’ family ‘really don’t like Geoff.’

During the same hearing, Maria Wells’ attorney, Randall Roske, told the judge that Geoffrey Wells’ gun collection was excessive, and the guns were unsecured.

‘The guy has an arsenal of guns. … He has been recklessly spending money to build up, I don’t know what,’ Roske said. ‘This guy thinks he’s going to be a survivalist in the middle of Henderson.

‘He’s got all these guns … like someone, some army is going to have a commando operation on his home,’ Roske said.

Roske said Tuesday he, too, believes the gun issue was not adequately addressed. ‘She brushed it aside,’ Roske said.

Maria Wells said her 10-year-old son was the one who found his brother’s body. She also said the children were home alone with no baby sitter, shortly before 7 a.m., at the time of the shooting.

‘They are traumatized,’ she said of her surviving sons. ‘They are going to counseling.’

Rasmussen said once the police investigation is complete, the case will be forwarded to the Clark County district attorney’s office for review to determine whether ‘anything criminal occurred.’

The criticism of Moss is just the latest for the judge.

Earlier this year, attorney Randy Rumph, who represents himself in a child custody case, alleged that Moss gives preferential treatment to lawyers who have donated to her campaigns, including his ex-wife’s lawyer. Two of Moss’ former law clerks, Lucien Cravens and Marvin Santamaria, signed affidavits supporting Rumph’s allegation of favoritism, but Moss has denied any wrongdoing.

‘Unhappy litigants will do or say anything, no matter how outrageous, to get press coverage as a means to manipulate the judicial system,’ Moss said when first asked about Rumph’s allegations.

In 2003, the Review-Journal detailed how a Las Vegas sailor, James Denson II, had lost custody of his 8-year-old daughter because of a ruling by Moss.

Moss made the decision after Denson did not show up in court for a hearing. What the judge did not know was that Denson had been deployed to Kuwait for operation Iraqi Freedom.

Moss recused herself from the case, and another judge ended up reversing her order.

For educational purposes only and not intended to infringe on Copyright 2005 DR Partners d/b Las Vegas Review-Journal Las Vegas Review-Journal (Nevada)

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Financial Experts May Help with Property Division and Support Issues

Newsweek is carrying an article with advice from a divorce financial analyst. The article shows some ways that investing in the services of a financial analyst may maximize the marital assets and, therefore, lead to more property ultimately being distributed to one or both spouses. A financial analyst may also help to optimize allocation of the spouses’ future income(s) among each other and their children.

In appropriate cases, good financial analysts can add tremendous value to the divorce process. The spouses would do well to remember, however, that some financial analysts tend to view support and property division in a purely mathematical way.

But the impact of divorce can’t be boiled down to a straightforward mathematical formula.

For example, remaining in the marital home may help maintain some stability, emotional security and continuity for minor children whose parents are divorcing. This value to the entire family cannot be captured by a financial formula.

Similarly, tax savings, while important, may not be the overriding objectives for one or both spouses. Touching on an example in the article, alimony and child support serve different purposes and do not continue for the same periods of time. In some cases, it could ultimately prove detrimental to attempt to characterize payments for one as payments for the other just to achieve better tax treatment.

The totality of divorce is a complex process for the spouses and the family. Wherever possible, spouses/parents should evaluate alternative divisions of property and future support issues with their attorneys in the larger contexts of the divorce and the family.

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Child Support Orders: Religious Persecution?

A Vermont case against a Florida mother appears to raise a novel question: is it unconstitutional to penalize for prolonged non-payment of child support a mother whose church reportedly prohibits paid third-party employment and apparently requires instead that church members perform goodworks for other church members on a full-time basis?

Although the mother is a Florida resident, the support orders and enforcement orders were entered in Vermont under Vermont law. But Florida and other states similarly allow for suspension of driver’s licenses as a penalty for non-payment of child support in appropriate cases. Florida, specifically allows for a qualified suspension permitting certain driving, including driving for income-producing or “church…purposes“, as may Vermont.

The church pays this mother a modest amount of money that may be variously characterized as income, housing allowance or a stipend. That money seems to be the only source that the state of Vermont seeks payment of past due child support from. The mother reportedly did not challenge the support orders at the time they were entered.

Unusual child support case goes before High Court

By John Zicconi Vermont Press Bureau September 5, 2005

MONTPELIER — The Vermont Supreme Court will decide whether a former Vermont woman can avoid paying child support because of her religious beliefs.

The Vermont Office of Child Support in 2003 received a court order allowing it to suspend the driver’s license of Joyce Stanzione, a former Vermont resident who has not paid child support since she separated from her husband in 1991.

Stanzione is a long-time member of the Twelve Tribes Messianic Community in Florida and is not allowed under church law to have an income, said Jean Swantko, her attorney.

Suspending Stanzione’s driver’s license because she has no income violates the First Amendment of the U.S. Constitution, which protects religious freedom, said Swantko, who is also a member of the Twelve Tribes Community.

Stanzione appealed the lower court decision. The Supreme Court will hear arguments on Tuesday.

“She cannot pay because of her faith,” Swantko wrote in a legal brief to the high court. “Suspending (her) right to drive is punishment for the free exercise of her religious beliefs.”

Twelve Tribes has some 25 settlements worldwide, including Island Pond, which was the site of a raid by the state of Vermont in 1984. State officials alleged the community was abusing its children, but a judge dismissed all charges for a lack of evidence.

Stanzione now lives in another state, Swantko said, but suspending her Vermont right to drive would also bar her from driving in Florida because states honor each other’s suspensions.

Losing her ability to drive would prevent Stanzione, 54, from doing church work, Swantko said.

“She drives every day for the work she does in the community,” Swantko said. “She shops for the elderly and drives them around.”

Stanzione was ordered in 1991 to pay $50 per week in child support when she and her husband divorced and he left the religious community to return to Vermont along with three of the couple’s five children, according to court papers.

She never contested the order but made no payments, court papers said.

The youngest of her children turned 18 in 1999, but three years later Stanzione was brought back into court and ordered to pay $4,800 to the state to make up for the welfare payments Vermont taxpayers supplied her children while they lived with their father.

Stanzione again made no payments, and in 2003 the Office of Child Support successfully moved to have her driver’s license suspended. The suspension, however, has been put on hold pending the Supreme Court appeal.

“It’s a fairness issue,” said Jeff Cohen, director of the Office of Child Support. “The taxpayers supported three kids for a long time. We are just asking for a reasonable amount of assistance.”

Cohen said the state is not trampling on Stanzione’s religious freedom by asking her to help support her own children.

“There are a lot of low-income people out there who make good efforts to support their kids,” Cohen said. “There is an element of public policy behind this. It sends a message that people have to take responsibility for their kids.”

The Office of Child Support suspends about 24 driver’s licenses each year, he said.

A child-support order says Stanzione receives an annual “pro-rata share” of the church community’s income. That came to about $5,000 in both 2000 and 2001.

Stanzione has income, which is why the state suspended her license, Cohen said.

“I don’t think there is any question she has the ability to pay,” Cohen said. “If she did not have the ability, we would write it off.”

Swantko said Stanzione does not receive income from the church.

Members receive money “for tax purposes and to spend on food and shelter,” Swantko said. “They don’t get to spend it on themselves.”

Swantko said it is unconstitutional for the state to punish Stanzione, a church community member since 1983, for not having a personal income when it is against her religious beliefs.

“You cannot suspend someone’s license unless the person has the ability to pay,” Swantko said. “The reason she does not have any money is because of her religious beliefs. They don’t want to face that.”

Contact John Zicconi at john.zicconi@timesargus.com

Reprinted for educational purposes only and not intended to infringe on © 2005 Times Argus

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Florida Seeks to Curb High Incidence of Child Abuse

Florida (at least Palm Beach county and Broward county) possesses a massive legal machine and virtual army of professionals to process the saddest of cases: cases of abandonment, abuse and neglect of innocent children.

Despite that, the sobering article below from FloridaToday.com points out that Florida has one of the highest incidences of child abuse in the nation, about 100,000 incidents per year. (Florida also has a relatively high incidence of domestic violence in general.)

Florida’s latest strategy for tackling child abuse emphasizes preventative early intervention and education. Let’s hope it helps.

September 4, 2005

Stopping child abuse

New plan could help stem Florida’s epidemic neglect of its youngest citizens

A plan by the Florida Department of Children and Families to cut child abuse in the state in half by 2010 is the best news to come from the often criticized agency in many years.

The ambitious goal is direly needed, as Florida’s abuse and neglect rate is a dismal 31.5 per 1,000 children, higher than almost every other state in the nation.

To bring those abstract figures home, picture this:

More than 100,000 children in the Sunshine State are abused, neglected or abandoned each year. That’s the entire number of students enrolled in Brevard County public schools, plus another 25,000.

To combat the horrifying statistic, the DCF wants to forge closer connections among community, law enforcement, education, health and other agencies.

They in turn would work more comprehensively to prevent abuse, in part by expanding proven programs that support and strengthen the families of at-risk children.

Legislators started the new prevention plan rolling by mandating DCF to assess the needs of abused children statewide.

That was commendable. But now they must fulfill the tough part of the bargain — making sure the community-based care agencies that will actually implement the push have steady, adequate funding.

Strong abuse prevention programs will lessen the suffering of vulnerable children. But they’ll also reduce the long-term costs child abuse inflicts on society in education, health and crime problems, a wise investment.

For educational purposes only and without intent to infringe on Copyright © 2005 FLORIDA TODAY

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Striking First: Does It Matter?

Some people think that the law favors the first spouse to file for divorce. Ironically, just as many people believe the reverse.

Who’s right? In Florida, maybe none of them.

In most (but not all) situations, the law of divorce in Florida does not favor either the filer (called the petitioner) or the other spouse (called the respondent). Florida law does not attach “fault” or blame to either spouse for bringing about the end of the marriage, either legally or otherwise.

Having said that, there are often practical, tactical advantages to being the first to file. For one thing, the party who files first establishes the timeline for the case. The petitioner can choose a time that is convenient for the petitioner or, more likely, a time that is particularly inconvenient for the other spouse.

For another thing, the petitioner can secretly collect documentation and evidence for use in negotiations or trial, long before the other spouse is wise to the fact that a divorce is coming. The petitioner can also leisurely develop a legal strategy and build their case before the other spouse gets wind of their plans.

By contrast, when the other spouse is served out of the blue, he or she may be shell-shocked, unable to think straight or act effectively for a while. Yet the twenty days to respond is still ticking by while that spouse scrambles to get himself or herself together, line up an attorney and generally catch up.

So, while there may be advantages to being the petitioner in Florida divorce cases, for the most part, they are not dictated by Florida divorce law.

Unlike divorce law, however, Florida child custody law explicitly favors the parent who files for custody first in certain types of child custody cases (provided that other requirements are also met). But such cases are not the typical child custody case in the typical divorce scenario either.

In most Florida child custody cases in the context of divorce, the advantages of filing first are generally only practical and tactical, as in most Florida divorce cases.

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Can My Spouse Relocate with My Children?

We live in a very mobile society. Families today move hundreds and even thousands of miles all the time, with hardly a thought.

Until divorce. After divorce, the prospect of relocation becomes more complicated for a parent who has minor children.

But relocation is a fact of modern life, and both the Florida legislature and courts have addressed it. Under current Florida law, the primary residential parent does not have an unrestricted right to relocate with the children, but neither is there anything approaching an absolute bar to such relocation.

If divorced parents get into a dispute over a proposed relocation by the primary residential parent, a Florida court will settle the dispute by considering a number of factors. The most important consideration for the court is whether, all things considered, the relocation will be in the best interests of the children.

How does the court decide what is in the best interests of the children? By reviewing all the circumstances of the case.

For example, suppose

  • the primary residential parent and the non-custodial parent are constantly at war
  • the primary residential parent has a pattern of making it difficult for the non-residential parent to exercise visitation and bad-mouthing the non-residential parent to the children
  • then the custodial parent secretly moves the children 3,000 miles away, to an unfamiliar place to which they have no ties whatsoever
  • the custodial parent takes a lower-paying job there and moves the kids into a cramped apartment in a rougher neighborhood than their Florida house was in
  • further, transportation between the children’s new home and Florida is difficult, time-consuming and expensive and neither parent can really afford transportation for visitation.

As hard as the court looks, the only reason it may be able to come up with to explain this move is the custodial parent’s unjustified desire to start a new life with the children’s father out of the picture. In a case like this, there is more than a chance that the court will determine that this relocation will not serve the best interests of the children.

But suppose instead that

  • the non-residential parent often fails to show up for visitation, deeply disappointing the children, to the ongoing dismay of the primary residential parent
  • the non-residential parent is always behind in payment of child support, making it a constant struggle for the residential parent and the children
  • the residential parent has been openly searching for a better job to pick up the non-residential parent’s financial slack
  • then the primary residential parent gets offered a dream job 3,000 miles away, in the same city as the children’s grandparents and other extended family members
  • the grandparents and other relatives are thrilled and offer to babysit and help out in other ways too
  • with the career-enhancing job will come a big raise, plus a housing allowance.

Now, the residential parent will be able afford to move the children into a larger home in a better neighborhood, with top notch schools for the children and more cultural enrichment programs. The custodial parent will also be able to afford to pay transportation expenses for any visitation that the non-custodial parent might actually care to exercise. Further, the primary residential parent offers to pay for the non-residential parent’s long distance telephone service, high speed internet access and a web camera to facilitate meaningful contact with the children despite the distance.

The primary residential parent openly discusses the proposed move with the non-residential parent well in advance to work out an arrangement and then seeks permission from the court to move with the children. In a case like this, it would hardly be surprising if the court determines that this relocation will serve the best interests of the children.

While parents may think that they would prefer black and white rules of law to look to, in fact, such fixed, rigid rules usually don’t allow judges the flexibility they need to evaluate all the circumstances of the entire case (as in the hypothetical cases above) so as to reach a decision that will serve the best interests of the children. The best guidance in any particular case almost always comes from real court cases that have already been decided.

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